November 28, 2011
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF V.L.S., G.L.S., N.L.S., F.M.S., AND I.T.S., MINORS.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-0068-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 4, 2011
Before Judges Messano, Espinosa and Kennedy.
At the time of trial in this termination of parental rights
litigation, defendant J.L.S. was thirty-two years old and had been in
a relationship with co-defendant R.M.F. for thirteen years.*fn1
Together the couple had eight children, six of whom were
subjects of the guardianship complaint: V.L.S., a daughter born in
2000; G.L.S., a son born in 2003; N.L.S., a son born in 2004; F.M.S.,
a daughter born in 2005; and I.T.S., a son born in 2006. The couple's
oldest daughter, D.M.S., originally included in the complaint, was
removed from the litigation at the request of the Division of Youth
and Family Services (DYFS or the Division). Another son, born after
the removal of his six older siblings, is the subject of separate
Defendant raises the following argument on appeal:
POINT I [DYFS] FAILED TO SATISFY BY CLEAR AND CONVINCING EVIDENCE THE REQUIREMENTS OF N.J.S.A. 30:4C-15.1(a), AND, THEREFORE, J.L.S.' PARENTAL RIGHTS MUST BE REINSTATED.
We have considered that contention in light of the record and applicable legal standards. We affirm.
On October 20, 2007, DYFS received a report that two-year-old F.M.S. was severely injured when attacked by a dog while she rode her bicycle. R.M.F.'s mother was on the porch watching the girls while R.M.F. was inside preparing a meal, and defendant was changing another child's diaper. F.M.S. was taken to the hospital.
A DYFS worker who visited the home that night found it was very dirty and told R.M.F. that, because of the risk of infection, the home had to be thoroughly cleaned before F.M.S. could return. A worker who visited the home the next day noted that R.M.F. was "overwhelmed with the care of all of her children and could benefit from . . . services." Although medically ready for discharge, F.M.S. was placed on a "hospital hold" until the house was sufficiently clean. The incident resulted in a substantiated allegation of neglect against defendant and R.M.F.
Soon after F.M.S. was discharged, DYFS received a report that the children had been left unattended. Investigation established that the children were left with their grandmother while defendant and R.M.F. went to pick up medication for F.M.S. The grandmother, in turn, left the children alone. Defendant and R.M.F. told DYFS that the grandmother was homeless, occasionally slept on their porch and was using drugs. They promised not to leave the children in her care again. The Division substantiated another charge of neglect against defendant and R.M.F.
Several days later, DYFS received a report that R.M.F. had been to the emergency room on eight occasions since August requesting Adavant, a medication used to treat anxiety. R.M.F. had come to the hospital with one of her children, who was "dirty all over [and] . . . said he was hungry." R.M.F. told the DYFS worker that she was taking more of her medication since F.M.S. was bitten, but claimed she had only been to the hospital twice and denied her purpose was to get Adavant. Defendant told the DYFS worker that he was not on any medication and was capable of caring for the children.
While investigating the dog bite incident, DYFS discovered that V.L.S., N.L.S. and I.T.S. had not been to the doctor in more than a year. There was concern that V.L.S. was not receiving appropriate care for a possible heart condition and hearing impairment. In addition, DYFS received a report in December 2007, that D.M.S., V.L.S. and G.L.S. had elevated lead levels in 2005, and, since April 2007, R.M.F. had not responded to requests to have the children re-tested. Defendant and R.M.F. told the Division that the high lead levels were traced to the paint in their prior residence, and subsequent testing documented that the lead levels decreased after the family moved.
Nonetheless, DYFS scheduled medical appointments for all the children in January 2008. I.T.S., who was thirteen-months old at the time, had not had a check-up since birth. All the children received their missing immunizations and tests confirmed that their lead levels were reduced. The children had lice but otherwise were healthy.
Since R.M.F. had missed V.L.S.'s cardiology appointment in September 2007, the Division re-scheduled an appointment for April 7, 2008. However, during a home visit on April 15 by a new case worker, defendant and R.M.F. advised that they had canceled the appointment and rescheduled it for later in the month because they lacked transportation.
In August 2008, when asked why V.L.S. still had not seen the cardiologist, defendant claimed he was told by the prior caseworker that DYFS would provide transportation to the family, a claim the worker refuted. I.T.S. had reddish spots on his cheeks, dried mucus in his nose and a raw area on his face that appeared to be infected. Defendant said I.T.S. had been to the doctor and presented a prescription dated five days earlier. Defendant explained it remained unfilled because the doctor said the medication might not be necessary, and I.T.S. improved without the medication.
In June 2008, the Division's worker described the condition of the home as "deplorable." Two months later, the home was still "filthy" and pipes and wiring were exposed because a panel had been removed from the kitchen ceiling. Although the children's feet, hands and clothing were dirty, there were no obvious signs of physical abuse and there appeared to be sufficient food.
Defendant was employed as a supervisor for a cleaning service but left his job to help R.M.F. care for the children. She was not working and received food stamps. Defendant hoped to return to his job soon and would not apply for unemployment benefits because he feared "child support" obligations. Defendant explained to the Division's caseworker in December 2007 that the family were squatters in the building where they lived and had not paid rent for over one year. Family members helped pay their utility bills.
During a May 2008 home visit, defendant told the new DYFS case worker that the family had until September to find housing. In June, the Division gave defendant a list of low income housing. Several days later, the case worker completed and submitted a low-income housing application on the family's behalf.
At the next home visit, R.M.F. showed the worker a warrant for removal issued by the court dated May 22, 2008, and effective July 21, 2008. Defendant insisted, however, that it was not legally valid. As he explained to the caseworker, the family had not paid rent for eighteen months because "the landlord sold the house, didn't tell them anything, so why should they pay rent." Defendant admitted that the family had not used the low-income housing list provided by the case worker and rejected her suggestion that they consider staying temporarily in a shelter. Defendant claimed he was trying to procure $2500 for a security deposit on a new four-bedroom apartment, and suggested the family could move in with one of his relatives. DYFS rejected that suggestion because the home was inadequate.
Defendant still had not addressed the housing situation by the following month because he believed the eviction notice was not valid and the family was living rent free. The case worker returned to the home about one week later with a safety plan. Defendant signed the plan and said he understood the steps to be taken, but R.M.F. became hostile and refused.
Two days later, on September 5, 2008, the Division's workers arrived at the house intending to effectuate an emergency removal of the children. R.M.F. was asleep on the downstairs couch and defendant had difficulty waking her. Defendant said he would deal with the housing situation when the family was actually evicted, telling the workers, "why should [we] move when [we] don't have to pay rent."
The house was messy and roach-infested, but the utilities were working and there was ample food. When the worker inquired about V.L.S.'s heart condition, defendant presented a heart monitor and cassette tape labeled "Dr. Mark Levine 5/4/06." Both parents claimed they had taken V.L.S. to the cardiologist since that time, but neither could identify when. Defendant, who remained unemployed, told the worker he had not applied for welfare because of concerns "with paying child support." The workers did not remove the children at that time, telling R.M.F. and defendant they would return the following Monday.
The next documented home visit in the record occurred on October 8, 2008. The house was now vacant. The caseworker contacted family members and left messages in an attempt to locate defendant, R.M.F. and the children. When R.M.F. returned the worker's call, she accused the Division of causing the family's eviction.
On December 4, 2008, the Division conducted a home visit after locating the family. R.M.F. was living with the children in a roach-infested house and told the worker that defendant had left the family. The case worker reminded R.M.F. that V.L.S. had a cardiologist appointment which DYFS had scheduled in September for 9:30 a.m. the next day.
The next morning R.M.F. advised DYFS that she rescheduled
V.L.S.'s appointment with a different doctor who had previously seen V.L.S. The Division workers called that doctor to confirm the appointment and were told the doctor had relocated out-of-state. Later that day, DYFS effectuated a Dodd removal*fn3 of all the children except D.M.S., who was staying with defendant's mother, M.S.
The workers went to M.S.'s home and located D.M.S., who had a large abrasion on her face. The child told the workers that defendant was mad because she went to school early to play with her friends, and he was concerned that the other girls would beat her up. As punishment, defendant hit D.M.S. with a belt on her buttocks, but she moved, causing the belt to strike her face. D.M.S showed the workers a scar under her hair line that was caused by defendant hitting her with a belt sometime earlier. When interviewed, V.L.S., N.L.S., and G.L.S. said that they saw defendant hit D.M.S. in the face with the belt. DYFS referred the allegation of defendant's physical abuse of D.M.S. to the Camden County Prosecutor's Office.
On December 9, 2008, DYFS filed a verified complaint and order to show cause seeking care, custody and control of the six children. The judge granted the Division's request. Post-removal physical examinations of the children revealed that N.L.S., F.M.S., and I.T.S. had ear infections, and V.L.S., who had evidenced some difficulty hearing, had impacted ear wax. She was also seen by a cardiologist on December 24, 2008, and it was determined that she had a benign heart murmur.
On February 25, 2009, defendant pled guilty to an accusation charging him with third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). On April 17, 2009, he was sentenced to four years probation, a specific condition of which included incarceration in the Camden County Correctional Facility (CCCF) for 270 days.*fn4
Following a fact-finding hearing on March 10, 2009, the judge concluded that R.M.F. and defendant "abused or neglected" the children. She ordered R.M.F. to attend anger management and parenting classes, and psychological therapy. Defendant was ordered to attend a substance abuse evaluation and submit to a hair follicle test.
On March 25, defendant was psychologically evaluated by Larry Seidman, Ph.D. Seidman did not testify at trial but his report was admitted into evidence. He diagnosed defendant with "[a]djustment [d]isorder with [m]ixed [a]nxiety and [d]epression, [c]hronic"; "[p]ersonality [d]isorder Not Otherwise Specified: with paranoid, obsessive-compulsive, avoidant and antisocial features"; and "[a]lcohol [a]buse." Seidman concluded that defendant "lacks the psychological wherewithal and maturity as well [as] the consistency and parenting skills to meet his children's needs on a consistent and reliable basis . . . [and] it is clear . . . that it would not be in the best interests of his children to be returned to his sole custody at this time." However, defendant's "sentiment regarding his children appears to be in the right place which holds hope for improved parenting." Seidman recommended that defendant participate in parenting and anger management classes, an outpatient drug and alcohol program, and weekly counseling to address his "dysfunctional personality patterns, reduce symptoms of anxiety and depression, help to facilitate improved interpersonal skills, and promote greater self-esteem."
In a substance abuse assessment form dated April 8, 2009, defendant reported he had used marijuana but stopped at age twenty-two, drank occasionally, and denied any problem with alcohol or drugs. It was recommended that he undergo an extended assessment. A drug screen performed in June 2009 was negative for drugs and alcohol.
On July 27, 2009, the judge entered an order approving the Division's "concurrent" permanency plan of reunification with R.M.F. and termination of parental rights, noting the "parents have not cooperated with the Div[ision]." On September 8, DYFS filed its guardianship complaint.
At a case management conference held before a different Family Part judge on October 16, 2009, the Deputy Attorney General (DAG) represented that D.M.S. was in a group home and had "some behavioral issues." V.L.S. and G.L.S. were in a foster home placement together, and it was anticipated that D.M.S. would join them when "discharged." N.L.S., F.M.S., and I.T.S. were in another placement, but the children had "sibling visitation." A friend of the family, A.P., sought custody of "the three girls," but the judge denied the request finding it not to be in the children's "best interest."
On July 8, 2010, a case management conference was held before a third Family Part judge who became the trial judge. A.P. had re-applied for custody of D.M.S., and the DAG advised that the Division was evaluating A.P. as a possible placement parent. The judge agreed to delay consideration until trial.
On the first day of trial, August 25, A.P. withdrew her application for custody of D.M.S. The judge also accepted R.M.F.'s identified surrender of her parental rights to the five remaining children named in the guardianship complaint. He also granted the Division's request to withdraw the guardianship complaint as to D.M.S. because the child required additional evaluations and services before the termination could proceed. The trial proceeded as to the five remaining children.
DYFS presented testimony from two workers, Tara Sinclair and Dawn Brach, as well as Chester Sigafoos, Ph.D., who had conducted a psychological evaluation of defendant and bonding evaluations of the children with defendant and R.M.F., and the children with their foster parents. Sinclair, the family's caseworker since February 2010, and Brach, the supervisor assigned to the case since May 2008, testified in a manner that was largely consistent with the history we outlined above. Both testified regarding the services DYFS provided to the family prior to, and after, the children were removed.
Prior to removal, the family received services through the Center for Family Services, which include parenting skills training and assistance with housing, education and employment. They also received Healthy Mothers, Healthy Babies services. Brach testified that the family was very resistant, and service providers would often not be allowed in the home.
In May 2008, R.M.F. began individual and family counseling through PC Counseling and Rehabilitation. An August 25, 2008 report indicates that although defendant participated in most of the sessions, the family presented "difficult challenges in the area of parenting, relationship, communication and taking responsibility." The report noted that defendant and R.M.F. would demonstrate "anger and intense verbal aggression" toward each other.
After the children were removed, defendant was referred to Velez Professional Services for therapy to address anger management, domestic violence, and parenting. According to Sinclair, defendant was discharged from anger management classes because of poor attendance and minimal participation, and he refused to participate in domestic violence classes because it was not court ordered. However, he regularly attended the parenting skills class and was motivated, engaged and open to feedback. Although the record is somewhat unclear, both DYFS workers testified that defendant was ordered to retake the parenting course through Velez. Sinclair claimed defendant was discharged because he failed to attend, and, while there is no documentary evidence of the discharge, a DYFS contact sheet, dated July 7, 2010, indicates that defendant had not attended parenting class since April.
In May 2010, defendant began receiving psychological counseling from Dr. Kristen Cirelli at Delaware Valley Psychological Services. Cirelli reported that defendant was compliant and cooperative. However, based on factual inaccuracies in Cirelli's verbal and written reports, Sinclair did not believe that defendant was forthright during therapy.
Defendant and R.M.F. were permitted weekly visits with their children. The visits were supervised by Robin's Nest Family Ties program, which provided a therapeutic component. Defendant consistently attended the visits. Sinclair observed six of those visits, which she described as "chaotic," and without any structure or limits set on the children's behavior. She saw the children on occasion wander out of the room unnoticed by the parents.
Sinclair also testified regarding the Division's efforts to identify family members for placement. She explained that defendant's brother was ruled out because of his criminal history, his parents were ruled out because of a prior court order prohibiting placement with the paternal grandparents, and the maternal grandmother was ruled out because a complaint against her for neglect had been substantiated. Three other individuals were contacted but declined to care for the children. Rule-out letters were sent to those individuals.
Sinclair testified that F.M.S., N.L.S. and I.T.S. were together in one foster home, and V.L.S. and G.L.S. were together in another home. The foster homes were clean and well-organized, and the foster mothers provide appropriate structure and attention to the children. She noted that some of the children had special needs, including behavioral and physical problems, which were promptly addressed by the foster parents. The Division planned that the foster parents would adopt those children in their respective care.
Sigafoos testified that defendant's IQ score of 72 placed him in the borderline range of intellectual functioning. Sigafoos made the following diagnoses: Axis I, physical abuse of an adult (perpetrator), physical abuse of a child (perpetrator); generalized anxiety disorder; Axis II, borderline level of intellectual functioning, histrionic personality disorder, obsessive compulsive personality disorder, anti-social personality disorder, paranoid personality traits; Axis III, back problems; Axis IV, problems with primary support group, academic problems, occupational problems, economic problems, housing problems, problems related to interaction with the legal system; Axis 5, General Assessment of Functioning of
48. He described in detail the components of the Axis II diagnosis.
Sigafoos concluded that defendant's "numerous psychopathological disorders and conditions . . . interfere with his ability to effectively parent his children and pose a significant risk of harm to the children if untreated." Sigafoos opined that defendant needed at least two years of inpatient treatment consisting of "individual counseling, anger management and parenting [instruction]." But, he expressed doubt that even inpatient therapy would be successful because of defendant's lack of insight and motivation. In Sigafoos' opinion, defendant's prognosis was poor, and the children could not wait for him to undergo lengthy, and potentially unsuccessful treatment.
Regarding the bonding evaluation between defendant, R.M.F. and all six children, Sigafoos described the session as "a caged wrestling match." Several of the children were climbing over defendant and hitting him, which defendant encouraged. Sigafoos was particularly troubled because one of the boys hit defendant in the groin. The children were also throwing toys and jumping on furniture, yet the parents typically did nothing to control the behavior. Sigafoos concluded that "neither parent exercised mature, healthy[,] parenting behavior that would be an example of how they could care for these children."
Sigafoos described defendant's conduct as "more like a child [than] . . . a parent," which was "very consistent with his histrionic personality disorder." He opined that the children would be at risk for impulse control problems, irresponsible behavior, difficulty with relationships, and substance abuse because of the permissive parenting style exhibited by defendant and R.M.F., and that the parents did not understand the potentially harmful effects of their conduct. Sigafoos concluded that the children had an "insecure/ambivalent" attachment to their parents.
Sigafoos also conducted a bonding evaluation of N.L.S., F.M.S. and I.T.S. with their foster mother. D.M.S. was also present, although she was still residing in a group home. Sigafoos observed that "the children easily engage [with the foster mother] and show no aversion to physical contact." The foster mother exhibited "an authoritative parenting style, which balance[d] out love and control," and the children were "active [but] well[-]behaved and cooperative with each other."
Sigafoos expressed similar opinions following his bonding evaluation of G.L.S. and V.L.S. with their foster mother. She had an "authoritative parenting style," and the children engaged in appropriate activities and were well-behaved.
Sigafoos concluded that all of the children had a secure attachment to their respective foster mothers and would "suffer serious and enduring harm if not allowed to have a continued relationship" with them. In contrast, he concluded that "placement of the children with their biological parents will cause serious and irreparable harm to the children's psychological health." In his opinion, the foster parents were already the children's psychological parents.
The law guardian called Linda Jeffrey, Ph.D., who had performed a psychological evaluation of defendant and bonding evaluations of the children with their parents and foster parents, as a witness. Jeffrey concluded that defendant had an IQ score of 90, which placed him in the average range, but he was reading only at a fourth grade level. Jeffrey diagnosed defendant with a learning disability and narcissistic personality disorder with anti-social traits.
She opined that a narcissistic personality disorder would affect a person's ability to parent because they would lack sensitivity to their children's needs and would not take steps necessary to meet those needs. People with narcissistic personality disorders are particularly hard to treat because they generally do not recognize that they have a problem and, as a result, tend to be less motivated to engage in therapy. When a person complies with therapy, Jeffrey further opined that improvement usually requires one to two years of treatment. She believed it would be difficult for defendant to improve with therapy because the results of the psychological evaluation documented his lack of insight into his own problems.
Jeffrey conducted a bonding evaluation of defendant, R.M.F. and the children. Unlike Sigafoos, she observed defendant and R.M.F. together with the children and then observed each parent separately. Jeffrey too noted a chaotic session with minimal structure or management of the children's behaviors. Defendant exacerbated the chaos by tickling the children. There was a similar level of chaos and lack of control when defendant was alone with the children. Jeffrey concluded that defendant was more like a playmate than a parent. She opined that the children had an insecure attachment to defendant and recommended against the return of the children to defendant's care.
Jeffrey also concluded that the foster mothers established structure with the children during the bonding evaluation, the children were well-behaved, and there was affection between the foster mothers and the children. She described both foster mothers as "really skillful" and "a cut above the average, for sure."
Jeffrey concluded that the children would not suffer serious and enduring harm if defendant's parental rights were terminated in light of their insecure attachment to him and their secure attachment to their foster mothers. In contrast, they would suffer serious and enduring harm if removed from the custody of their foster mothers.
Defendant testified in his own behalf. He described his affectionate relationship with each of the children. Defendant testified that when he was working, R.M.F. was primarily responsible for the children's medical care and he was responsible for paying the bills. He briefly found employment with a janitorial service but was fired because of his conviction for child endangerment. Defendant admitted that he made "one mistake," i.e., when he hit D.M.S. He believed he was a good father and could care for all the children.
Following the closing arguments of counsel, the judge issued an oral opinion on the record. He concluded that DYFS had proven the four statutory prongs of the best interests test set forth in N.J.S.A. 30:4C-15.1(a). The judge entered an order terminating defendant's parental rights to V.L.S., G.L.S., N.L.S., F.M.S. and I.T.S. This appeal followed.
We state some general principles that inform our review. "We will not disturb the family court's decision to terminate parental rights when there is substantial credible evidence in the record to support the court's findings." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). "We ordinarily defer to the factual findings of the trial court because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a 'feel of the case' that can never be realized by a review of the cold record." Ibid. (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007)). "Only when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark' should an appellate court intervene and make its own findings to ensure that there is not a denial of justice." Ibid. (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007)).
When the State seeks to terminate parental rights, it must prove by clear and convincing evidence each of the following four standards:
(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;
(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;
(3) [DYFS] has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and
(4) Termination of parental rights will not do more harm than good. [N.J.S.A. 30:4C-15.1(a); see also In re Guardianship of K.H.O., 161 N.J. 337, 347-48, 362 (1999).]
These four prongs require a fact-sensitive analysis, and "are neither discrete nor separate. They overlap to provide a composite picture of what may be necessary to advance the best interests of the children." M.M., supra, 189 N.J. at 280 (quoting N.J. Div. of Youth & Family Servs. v. R.L., 375 N.J. Super. 235, 258 (App. Div. 2005) (internal quotation marks omitted).
Regarding prong one, defendant essentially concedes that the children were harmed. However, he argues they did not suffer long-term consequences from the "dirty house," and any harms arising from the missed medical appointments and condition of the home would have been remedied if DYFS had provided timely and appropriate services.
When considering the first prong of the best interests test, the court's focus is not "on a single or isolated harm or past harm," but rather "on the effect of harms arising from the parent-child relationship over time on the child's health and development." K.H.O., supra, 161 N.J. at 348. Where there is "a clear record showing a pattern of parental inaction and neglect, amounting to unfitness," N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 615 (App. Div.), certif. denied, 192 N.J. 68 (2007), the courts "need not wait to act until a child is actually irreparably impaired by parental inattention or neglect." In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999).
In this case, the judge noted that defendant had "turned a blind eye to the medical health of his children" because he believed that was R.M.F.'s job. That attitude was particularly harmful in light of some of the children's special needs. The judge further noted that the situation was not improving, despite the provision of services by DYFS, citing, as an example, the continued physical condition of the home and defendant's physical abuse of one of the children. The evidence was sufficient proof that the children "ha[d] been or w[ould] continue to be endangered by the parental relationship." N.J.S.A. 30:4C-15.1(a)(1).
Defendant argues that the judge erred by finding that DYFS satisfied the second prong of the best interests test. More specifically, defendant claims that the judge failed to consider his participation in classes and counseling services that were offered by DYFS, which demonstrates his willingness and ability to eliminate the harm to his children.
The second prong of the best interests standard "relates to parental unfitness," which may be established by demonstrating that: (1) "the parent is 'unwilling or unable to eliminate the harm'"; or (2) "the parent has failed to provide a 'safe and stable home'" and "a 'delay' in 'permanent placement' will further harm the child." K.H.O., supra, 161 N.J. at 352 (quoting N.J.S.A. 30:4C-15.1(a)(2)). The inquiry is "whether that parent can raise the child without inflicting any further harm." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 87 (App Div. 2006) (citing In re Guardianship of J.C., 129 N.J. 1, 10 (1992)), certif. denied, 190 N.J. 257 (2007).
"Concern and efforts by a natural parent after his or her child has been removed from the home, and making genuine and successful efforts to overcome the cause of the removal is of enormous significance" when determining fitness. N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 437 (App. Div. 2009). However, the second prong is also established when it is "shown that the parent is unable to provide a safe and stable home for the child and that the delay in securing permanency continues or adds to the child's harm." K.H.O., supra, 161 N.J. at 348-49.
In addressing the prong two evidence, the trial judge concluded that defendant may be willing, but he is unable because of his personality disorders to eliminate the harm facing his children. He has not been able to and is not able to and will not be able to provide a stable home for the children. He has no housing and, apparently, no prospect of any housing. Delay of permanent placement will add to the harm.
There is sufficient credible evidence in the record to support the conclusion that defendant's personality disorders, and their effect on his ability to provide a safe and stable environment for his children, would cause continued harm.
Moreover, the undisputed expert testimony, which the judge specifically accepted as credible, demonstrated that even after one to two years of intensive therapy, defendant might not improve. Both Sigafoos and Jeffrey described the conduct associated with the disorders -- impulsivity, irresponsibility, disregard for the rights of others, and a lack of insight -- all of which were potentially pernicious to the children's upbringing.
We have noted that instability and lack of permanency adversely affect the development of a child, and the child's best interests cannot be sacrificed because of a parent's inability to address potential future harms, despite his willingness to try. See N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div.) ("[T]he New Jersey statute reflect[s] reforms acknowledging the need for permanency of placements by placing limits on the time for a birth parent to correct conditions in anticipation of reuniting with the child."), certif. denied, 180 N.J. 456 (2004); see also K.H.O., supra, 161 N.J. at 358 (bolstering the longstanding principle that birth parents should only have a limited time to eliminate the harm facing their child).
The proof under prong two was clear and convincing.
As to prong three, defendant argues that the judge erred in finding that DYFS made reasonable efforts to provide services because he was allowed inadequate visitation of only one hour per week, DYFS failed to help with housing or employment, and failed to provide timely psychological services for his personality disorder. He also claims that DYFS did not adequately consider alternatives to the termination of his parental rights.
N.J.S.A. 30:4C-15.1(c) defines "reasonable efforts," which consist of actions by the Division "to assist the parents in remedying the circumstances and conditions that led to the placement of the child and in reinforcing the family structure." Provision of services under the third prong "contemplates efforts that focus on reunification," K.H.O., supra, 161 N.J. at 354, and "may include consultation with the parent, developing a plan for reunification, providing services essential to the realization of the reunification plan, informing the family of the child's progress, and facilitating visitation." M.M., supra, 189 N.J. at 281. The reasonableness of the Division's efforts "is not measured by their success." D.M.H., supra, 161 N.J. at 393.
The judge found that the evidence was "replete with the efforts made by [DYFS], both before and after the removal of the children for the services[,] which have been documented and testified to." He also noted that "[a]s to alternatives to termination, various family members were considered by [DYFS] . . . [and] for the reasons stated, properly rejected by DYFS."
We agree that DYFS provided many services to defendant and his family, facilitated attempts to find decent housing, and assisted with the children's medical needs. In many ways, defendant's own actions -- quitting his stable job and refusing to look for alternative housing, while knowing he would be evicted -- thwarted any reasonable prospect that the services would help maintain his family. Any claims that the visitation schedule was insufficient, or DYFS failed to consider alternative placement with friends and family members, are without sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).
Seidman recommended weekly counseling to address defendant's personality disorder in March 2009, yet defendant did not begin to see Cirelli until May 2010. However, when the removal occurred in December 2008, the children were residing with R.M.F., and she and defendant were no longer living together. R.M.F. indicated that defendant had left the family. Thus, DYFS appropriately directed additional services to R.M.F. See D.M.H., supra, 161 N.J. at 393 (holding that it is reasonable for DYFS to focus its efforts of family reunification on the custodial parent).
Additionally, there was sufficient proof in the record to conclude that defendant's earlier compliance with services was sporadic at best. He and R.M.F. were discharged from family counseling because they would demonstrate "anger and intense verbal aggression" toward each other. Reports from Velez Professional Services, which provided anger management, domestic violence, and parenting skills sessions, reveals that defendant attended and participated in some sessions, but on other occasions simply failed to appear.
Moreover, there is nothing in the record that lends particular support to the proposition that had defendant seen Cirelli at some earlier point, his progress would have advanced in any meaningful way. There is no report from Cirelli, and both psychological experts who testified at trial opined that defendant needed at least one or two years of intensive therapy to address his problems and success was not likely. The prong three proofs were sufficient.
Defendant argues that DYFS failed to prove that termination of his parental rights would not do more harm than good, and, alternatively, that the failure to provide timely mental health services denied him the opportunity to develop better parenting skills.
The statute's fourth prong mandates a determination as to "whether a child's interest will best be served by completely terminating the child's relationship with that parent." E.P., supra, 196 N.J. at 108. The court must examine the child's bond with both biological and foster parents. K.H.O., supra, 161 N.J. at 355. "[W]here it is shown that the bond with foster parents is strong and, in comparison, the bond with the natural parent is not as strong," termination may be appropriate. Id. at 363. "[A]fter considering and balancing the two relationships," the question becomes will "the child . . . suffer a greater harm from the termination of ties with her natural parents than from the permanent disruption of her relationship with her foster parents?" Id. at 355. Answering that question "necessarily requires expert inquiry specifically directed to the strength of each relationship." Ibid. (quoting J.C., supra, 129 N.J. at 25). Adequate proof as to prong four does not and "cannot require a showing that no harm will befall the child as a result of the severing of biological ties." Ibid.
The judge relied extensively on the expert opinions offered by Sigafoos and Jeffrey. Each concluded that defendant's bond with his children was insecure, and that he was seen by them more as a playmate than a parent. We do not accept the proposition that had defendant been provided psychological counseling earlier, he would have developed a more secure and nurturing bond with his children. For the reasons already stated, the evidence in the record is to the contrary.
Both Sigafoos and Jeffrey also concluded that the foster parents of the children had created strong, nurturing bonds, and that rupturing those bonds would cause serious and enduring harm to the children. The proof regarding prong four of the statutory best interests test was sufficient.