December 30, 2011
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF J.L.H., JR. AND J.X.H., MINORS.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, Docket No. FG-06-34-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 7, 2011
Before Judges Lihotz and Waugh.
We are requested to review challenges to a Family Part judgment of guardianship terminating the parental rights of defendant D.D., the mother of J.L.H., Jr., born in September 2007, and J.X.H., born in December 2008, who have been in the custody of the Division of Youth and Family Services (the Division) since birth. The judgment also terminated the parental rights of the children's father, who has not appealed that determination. Therefore, we confine our discussion to the facts and circumstances involving D.D.
On appeal, D.D. argues the trial court's findings concluding that the Division satisfied each prong of the best interests test, N.J.S.A. 30:4C-15.1a, were unsupported by clear and convincing evidence. We disagree and affirm.
These are the facts upon which the trial judge based his findings and conclusions. The Division began its involvement with D.D. in April 1996. D.D. suffers from substance abuse and mental illness. In addition to J.L.H., Jr. and J.X.H., D.D. has five children, none of whom are in her care and custody. Her oldest child was placed with a relative pursuant to judgment of kinship legal guardianship, two children live with their natural fathers, and two others were adopted following the Division's award of guardianship. Throughout D.D.'s first five pregnancies, the Division extended services in an effort to address D.D.'s and the children's needs.
The Division received a referral from the hospital prior to J.L.H., Jr.'s birth. On September 5, 2007, D.D. was admitted to Our Lady of Lourdes Hospital in Camden after her membrane ruptured. Tests reflected she had been using opiates. Against medical advice, likely fearing the Division would intervene, D.D. left the hospital. Hospital staff contacted the Division, which unsuccessfully attempted to locate D.D. to urge her return to the hospital to prevent injury to herself and her yet unborn child.
Several days later, J.L.H., Jr. was born at a different hospital. He was premature, completing only thirty weeks gestation, and tested positive for cocaine shortly after his birth. The baby weighed three pounds and suffered a myriad of problems including, but not limited to: respiratory distress requiring connection to a ventilator; intrauterine drug exposure to cocaine; anemia; a prolapsed foot; and other complications resulting from the prolonged ruptured membrane. The child remained hospitalized for fifty-six days.
The Division sought and was awarded custody, care and supervision of J.L.H., Jr. Upon his discharge from the hospital, he was placed in a special medical foster home. Since birth, J.L.H., Jr. has remained in foster care.
The Division later filed a guardianship complaint seeking to terminate D.D.'s parental rights regarding J.L.H., Jr. D.D. was again pregnant and began complying with the Division's requests to engage services.
The Division was contacted when J.X.H. was born at Jefferson Hospital in Philadelphia, Pennsylvania. D.D. traveled to Philadelphia hoping to avoid the Division's involvement. When interviewed, she explained she was diagnosed with bipolar disorder. She received pre-natal care. Other than the need to surgically remove a cyst, the child was healthy. On January 6, 2009, the Division filed an emergent application under Title Nine seeking custody of J.X.H. because of D.D.'s failure to comply with substance abuse treatment programs and her mental instability. The court granted the request.
At the urging of D.D.'s cousin, I.M., the Division placed J.X.H. in her care, but later removed the child at I.M.'s request. He was placed with a resource family when no other relatives were identified by D.D. as potential caregivers. Ultimately J.L.H., Jr. was placed with the same resource family, which has stated an intention to adopt the brothers.
The Division worked with D.D. in an effort to achieve reunification with her sons. When her efforts to address her issues were not consistently maintained, the Division closed the Title Nine action on April 29, 2010, and filed a complaint for guardianship of both J.L.H., Jr. and J.X.H.
In the course of the litigation, the Division provided D.D. with services including substance abuse treatment, visitation, counseling, and parenting classes. D.D. was referred to four different substance abuse programs, none of which she completed. D.D. was referred to Dr. Scott Schafer for individual therapy sessions, but was discharged when she failed to attend. Subsequently, the Division arranged for therapy with Jason Walker through the Child Family Resource Center, which also discharged her for absenteeism. D.D. successfully graduated from a parenting skills course and participated in some visits at the Division's offices and, later, in-home visits supervised by Community Treatment Solutions. Nevertheless, at trial it was disclosed that D.D. last visited her children in October or November 2010.
In support of its request for guardianship, the Division presented the testimony of James Loving, Ph.D., an expert in the fields of clinical and forensic psychology. Dr. Loving performed a psychological evaluation of D.D., a bonding evaluation between J.L.H., Jr. and D.D. and a bonding evaluation between J.X.H., D.D. and his foster mother.
Dr. Loving conducted the psychological examination over three dates: January 12, 27, and June 22, 2010. In his evaluation of D.D., Dr. Loving utilized psychological testing, including a personality assessment inventory, the Rorschach Inkblot test, a Child Abuse Potential Inventory, the Beck Depression Inventory, and the Beck Anxiety Inventory. Dr. Loving also conducted a clinical interview and reviewed numerous documents regarding D.D.'s medical and psychological treatment history.
In his trial testimony, Dr. Loving outlined three areas of risk D.D. posed as a caretaker to her children: (1) her history of psychosis and mood related problems stemming from her bipolar disorder; (2) a borderline personality disorder; and (3) exposure to domestic violence. The first risk factor could impair "day-to-day functioning . . . including . . . parenting abilities." The second factor could place her children "at risk of emotional harm or physical harm if they were with her while she's relating to people in this way." The third showed D.D. was involved in destructive situations, creating a risk that the children would suffer physical harm from exposure to her "borderline personality style and all of the chaos that comes with it."
Detailing these areas, Dr. Loving noted D.D. had "a very lengthy break from reality," was hearing voices and became profoundly depressed and paranoid, requiring admission to Ancora Hospital. During the evaluation D.D. showed no acute symptoms, but Dr. Loving explained there was a "risk for reoccurrence of these mood symptoms and . . . psychosis" if she faces "overwhelming stress in her life." She was not prescribed medication, but expressed her position that she would not again take medication, raising serious concerns regarding whether she would recognize the need for medication or be inclined to seek medical assistance were she to suffer another psychotic incident.
In his opinion, Dr. Loving concluded D.D.'s unhealthy "borderline personality style" results from her past experiences of abuse, invalidation, neglect and trauma, causing her to treat others with suspicion, hostility and conflict. "She is perpetuating conflict and drama in her day-to-day relationships," which includes "domestic violence and turbulence" that would adversely affect the safety and security of the children's home life. Moreover, D.D. does not understand she must change to eliminate this harm. Dr. Loving also noted D.D. had been arrested twenty-three times, many for probation violations related to charges for theft, forgery and identity theft, making her "substantially at risk for additional arrests."
Dr. Loving noted there was no compelling concern of drug or alcohol abuse, but stated D.D. was compliant only in areas she agreed required assistance and rejected services in areas she refused to address like "domestic violence [and] . . . relationship conflicts." This treatment noncompliance stems from a lack of insight into the risks the behaviors posed. Prior to any consideration of the children being placed in D.D.'s care, Dr. Loving recommended she attend a domestic violence program and undergo regular individual counseling for a year. Finally, Dr. Loving opined the combination of risk factors posed a very high danger to the children precluding D.D.'s ability to safely parent them.
Dr. Loving next related his expert opinion regarding J.L.H., Jr.'s and J.X.H.'s bonding. He noted J.L.H., Jr. and J.X.H. demonstrated a "fairly weak" attachment to D.D., although J.X.H. became "a little distressed when it was time to separate" from D.D. Dr. Loving opined neither child would suffer any enduring or permanent harm if D.D.'s parental rights were terminated because they did not view her "as a central parent figure[,]" nor as "an important attachment figure." Consequently, based on the weak quality and depth of each child's emotional relationship with D.D., he concluded the loss of contact with D.D. "would not be an important loss to them."
The bonding evaluation between J.X.H. and his foster parents, however, yielded a different result. After only five months, J.X.H. showed "attachment seeking behaviors" with his resource parents and demonstrated a "fairly strong, positive healthy attachment." Dr. Loving did not conduct a bonding evaluation between J.L.H., Jr. and his resource parents because he believed the child soon would be placed with his brother's resource family. Dr. Loving had no doubt that, absent evidence to the contrary, allowing the siblings to live together would have a positive affect on them. Overall, Dr. Loving recommended the children not be returned to D.D.'s care.
The Division also presented Denise Martinelli, the case supervisor who had been assigned to assist D.D. since 2002, and had been involved with the placement of J.L.H., Jr. and J.X.H. Her testimony supported the Division's goal of adoption for J.L.H., Jr. and J.X.H. based on D.D.'s inability to provide for her children resulting from her unaddressed mental health concerns, failure to commit to mental health treatment, and untreated medical problems, including sickle cell anemia, thyroid issues, and kidney problems. Martinelli noted D.D. missed visitations and services extended by the Division because of her untreated medical issues. Martinelli explained the children have been in foster care since birth because D.D. had not satisfactorily addressed the concerns she posed for their safety and security. Consequently, the Division desired to terminate D.D.'s parental rights, allowing J.X.H.'s foster parents to adopt both boys.
The Division moved for the admission of the documentary evidence and rested. Despite notice of the trial dates, D.D. did not personally appear and presented no evidence. Her attorney's continued attempts to locate her were unsuccessful. The court recessed following closings and the trial judge rendered a bench decision later that afternoon.
Crediting Martinelli's testimony regarding her almost ten-year interactions with D.D. and her children, the trial judge found D.D. had not utilized the myriad of services extended by the Division, including visitation with the children. The judge also accepted "as credible" Dr. Loving's conclusion that D.D. could not be considered "for safe, healthy reunification now or in the foreseeable future." While D.D. could address the identified risk factors with treatment, this would entail a very "lengthy, difficult process" with a "guarded" outcome. The trial judge concluded the Division's "plan that would move the boys towards adoption at this time" was in the children's best interests as it afforded them permanency in a safe, stable home, realizing the most beneficial outcome for social and emotional health.
The trial court concluded the evidence presented clearly and convincingly satisfied the four-prong test warranting termination of parental rights. The judge found D.D.'s substance abuse and mental health issues, coupled with her lack of housing, posed continuing harm to the children's safety, health, and development. Moreover, D.D.'s conduct over ten years demonstrated her unwillingness to eliminate the harm through consistent attendance at counseling and visitations. The trial judge also found further delay in securing a permanent placement would harm J.L.H., Jr. and J.X.H. The court determined the services extended by the Division satisfied its requirement to make reasonable efforts to aid D.D. in eliminating the harm, but D.D. chose not to engage in the services. Alternatives to termination through the children's placement with a relative proved unworkable. I.M. withdrew her offer to accept custody and no other family members were identified by either parent. Finally, relying heavily on the uncontroverted testimony of Dr. Loving, the trial judge found termination of parental rights followed by adoption would not do more harm than good, stating "if I didn't terminate parental rights . . . [J.L.H., Jr. and J.X.H.] would probably flap in the winds of the system for the next [couple of] years waiting for the hope that mom and dad would begin to do services, and most certainly mom and dad are not going to do those services." The judgment of guardianship was entered on March 7, 2011. D.D.'s appeal ensued.
As a threshold matter, the scope of appellate review of an award of guardianship is limited. N.J. Div. of Youth & Family Servs. v. K.L.W., 419 N.J. Super. 568, 577 (App. Div. 2011). "The factual findings which undergird a judgment in such a case should not be disturbed unless they are so wholly insupportable as to result in a denial of justice, and should be upheld whenever they are supported by adequate, substantial and credible evidence." In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (internal quotation marks and citations omitted). "[I]n reviewing the factual findings and conclusions of a trial judge, we are obliged to accord deference to the . . . court's credibility determination[s] and the judge's 'feel of the case' based upon his . . . opportunity to see and hear the witnesses[,]" N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006) (quoting Cesare v. Cesare, 154 N.J. 394, 411-13 (1998)), certif. denied, 190 N.J. 257 (2007), which "can never be realized by a review of the cold record[,]" N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008).
We also recognize the special expertise of those judges assigned to the Family Part. Cesare, supra, 154 N.J. at 412-13. "However, where the focus of the dispute is . . . alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom, the traditional scope of review is expanded." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (alteration in original) (internal quotation marks and citations omitted). In those circumstances we "accord deference unless the trial court's findings went so wide of the mark that a mistake must have been made." Ibid. (internal quotation marks and citations omitted).
When reviewing a Family Part order terminating parental rights, we consider these legal principles. "A parent's right to enjoy a relationship with his or her child is constitutionally protected." In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). Parents have a fundamental liberty interest in raising their children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394, 71 L. Ed. 2d 599, 606 (1982). Both the federal and state constitutions protect the inviolability of the family unit. See Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212-13, 31 L. Ed. 2d 551, 558-59 (1972); N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986). However, "the right of parents to be free from governmental intrusion is not absolute." A.W., supra, 103 N.J. at 599. Accord, In re Guardianship of J.N.H., 172 N.J. 440, 471 (2002). "The constitutional protection surrounding family rights is tempered by the State's parens patriae responsibility to protect the welfare of children." K.H.O., supra, 161 N.J. at 347.
"The law's concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life's difficult decisions." Parham v. J.R., 442 U.S. 584, 602, 99 S. Ct. 2493, 2504, 61 L. Ed. 2d 101, 118 (1979). Nevertheless, "some parents may at times be acting against the interests of their children[.]" Id. at 602, 99 S. Ct. at 2504, 61 L. Ed. 2d at 119 (internal quotations and citations omitted). When "experience and reality . . . rebut[s] what the law accepts as a starting point[,]" the State's parens patriae obligations are triggered. Ibid. "More recently, 'concern has arisen for the best interests of children whose parents have forsaken their parental duties. The child's right to a permanent home has gained increasing prominence.'" N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 505 (2004) (quoting In re Adoption of Children by G.P.B., Jr., 161 N.J. 396, 404 (1999)). Undoubtedly, a child's need for permanency and stability is a critical factor in guardianship cases.
When a child's biological parents resist the termination of their parental rights, the court's function is to decide whether the parents can raise the child without causing further harm. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). "[T]he cornerstone of the inquiry is not whether the biological parents are fit but whether they can cease causing their child harm." Ibid. "The analysis of harm entails strict standards to protect the statutory and constitutional rights of the natural parents[,]" and the "burden falls on the State to demonstrate by clear and convincing evidence that the natural parent has not cured the initial cause of harm and will continue to cause serious and lasting harm to the child." Ibid.
While recognizing the fundamental nature of parental rights and the need to preserve and strengthen family life, the Legislature has also recognized "the health and safety of the child shall be the State's paramount concern when making a decision on whether or not it is in the child's best interest to preserve the family unit[.]" N.J.S.A. 30:4C-1(a). This responsibility, in some cases, requires that the parent-child relationship be severed. A.W., supra, 103 N.J. at 599.
"The balance between parental rights and the State's interest in the welfare of children is achieved through the best interests of the child standard." K.H.O., supra, 161 N.J. at 347. The best interests standard, initially formulated by the Court in A.W., supra, 103 N.J. at 602-11, was codified in N.J.S.A. 30:4C-15.1a, and requires the State to establish each of the following standards by clear and convincing evidence before parental rights may be severed:
(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) The division 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-15.1a.]
These four requirements "are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." K.H.O., supra, 161 N.J. at 348. The considerations involved are "'extremely fact sensitive' and require particularized evidence that addresses the specific circumstances of each case." N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 258-59 (App. Div. 2005) (quoting K.H.O., supra, 161 N.J. at 348). With each of these principles in mind, we turn to our review of the arguments advanced on appeal.
D.D. challenges the evidence relied upon by the trial judge to support satisfaction of the second, third, and fourth prongs of the statutory test set forth in N.J.S.A. 30:4C-15.1a. Regarding the Division's evidence to satisfy the second prong, D.D. identifies inconsistencies and errors in the trial court's recitation of its factual findings, arguing the trial court omitted her progress. D.D. maintains the evidence showed she was willing and able to eliminate the harm resulting in removal of the children. By way of example, D.D. states: (1) the trial judge stated she had not attended counseling arranged by the Division with Jason Walker, when she attended several sessions; (2) visitation was available but not exercised, yet the judge omitted mention that D.D. provided doctor's notes explaining her absence resulting from her need to attend medical appointments or as a result of illness; and (3) the judge accepted Martinelli's inaccurate assertion that D.D. needed dialysis, as her kidney disease did not require dialysis.
To prove the second prong of the four-prong statutory test, the Division must show not only that the child's health and development have been and continue to be endangered, but also that the harm is likely to continue because the parent is unable or unwilling to overcome or remove the harm.
That inquiry is aimed at determining whether the parent has cured and overcome the initial harm that endangered the health, safety, or welfare of the child, and is able to continue a parental relationship without recurrent harm to the child. Alternatively, under this second criterion, it may be 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 (citations omitted).]
Although at times the trial judge's factual findings were broadly stated, falling short of complete accuracy, none of the examples cited by D.D. overcomes the well-supported facts in the record, which the trial judge relied upon to find D.D. had not eliminated the harm, thereby precluding the children's return to her care.
D.D. may have attended some mental health services, but she has not embraced the need for individual therapy to stabilize her mental health issues. The Division scheduled sessions with Dr. Schafer and Jason Walker, but D.D. was eventually terminated for lack of participation. In his expert testimony, Dr. Loving emphasized D.D.'s need for long-term psychotherapy to assure her mental health.
As to her mental illness, D.D. was in remission. However, following her "severe psychotic break" in 2004, she demonstrated an unwillingness to actively address her bi-polar disorder with medication, a suspicion toward medical professionals, and a disregard for the need of regular counseling. These facts supported the significant possibility of relapse, which would pose significant harm to the children. The court also relied on the uncontroverted expert opinion of Dr. Loving citing D.D.'s personality disorder as causing her failure to confront risk areas in her life, such as domestic violence and relationship conflicts.
As to visitation, the context of the trial court's reference shows the comment was directed to the fact D.D. last saw the children in October or November 2010, which she does not deny. Most assuredly, the trial judge's opinion took account of D.D.'s visits with J.L.H., Jr. and J.X.H. at the Division office and in her home.
The inclusion of substance abuse as a continuing harm was error, but it is harmless. See Rule 2:10-2 ("Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result[.]"). Dr. Loving accurately noted D.D. did not suffer from psychosis or substance abuse at the time of her evaluation, and stated D.D. had no substance abuse concerns.
Part of the trial judge's analysis of the facts supporting satisfaction of the second prong included the harm occasioned by further delay in the children's permanent placement, which was grounded on Dr. Loving's conclusions. J.L.H., Jr. and J.X.H. never had a consistent relationship with D.D., who remains unable to offer them a stable home. D.D. proposes no time frame to enable her to assume the role as the children's caregiver; she merely argues she should be given the opportunity to do so.
The errors in the trial judge's factual recitation are inconsequential and insufficient to reject the entirety of his findings to which we defer. See N.J. Div. of Youth & Family Servs. v. D.M., 414 N.J. Super. 56, 72 (App. Div. 2010). Our review discerns clear and convincing evidence present in the record showing D.D. has not abated the identified harm and remains unable to safely parent her children.
D.D. additionally argues the trial judge erred in not articulating explicit reasons pertaining solely to D.D., as distinct from the conduct of the children's father, J.X.H., Sr. Based on our prior discussion, we reject this argument as meritless. R. 2:11-3(e)(1)(E).
D.D. next argues the Division failed to make reasonable efforts to correct the circumstances leading to the children's removal and consistently reinforce the family structure as required by the third prong of the best interests test. D.D. supports this notion by asserting the Division never requested the trial court order her to attend domestic violence counseling. We disagree.
"Reasonable efforts" is defined in the statute to mean:
[A]ttempts by an agency authorized 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, including, but not limited to:
(1) consultation and cooperation with the parent in developing a plan for appropriate services;
(2) providing services that have been agreed upon, to the family, in order to further the goal of family reunification;
(3) informing the parent at appropriate intervals of the child's progress, development and health; and
(4) facilitating appropriate visitation. [N.J.S.A. 30:4C-15.1c.]
The emphasis is not on providing specific services or a quantum of services; rather, it examines the quality of the effort put forth and the relevance of the services offered in an effort to reunite the family, based on the unique facts of the case. See K.H.O, supra, 161 N.J. at 354.
The trial court mentioned the Division's extended involvement with D.D. prior to J.L.H., Jr.'s birth in 2007. The incorporation of the services previously provided was not erroneous as it shows the Division's attempts to mitigate the harm posed by D.D.'s mental health problems and other parenting impediments.
Focusing on the services extended after the birth of J.L.H., Jr., we note the Division offered D.D. individual counseling with mental health professionals Walker and Schafer. Therapy with Walker began on July 28, 2009. When Walker attempted to focus on the harm posed by D.D.'s alcohol use, domestic violence, and the volatility of D.D.'s personal relationships, she told him she did not want to discuss the issues and would not comply with Walker's recommendations. She was discharged. D.D. also attended a psychiatric evaluation with Edward Baruch, M.D., who diagnosed her with depression and adjustment disorder, prescribed medication, and scheduled a follow-up appointment. Dr. Baruch later diagnosed D.D. as suffering from schizoaffective disorder. D.D. commenced counseling with Schafer in September 2010, but was discharged for lack of attendance.
The Division also provided alcohol abuse treatment after each child was born. D.D. did not follow through with the programs. She did complete SODAT's Strengthening Families parenting skills course and in April 2008, D.D. registered for the Cumberland County Guidance Center's Project to Assist in Transition. Supervised visitation at the Division offices was arranged. At D.D.'s request, visits were moved to her home, but these visits were discontinued because D.D. had an unidentified man in her residence.
The record supports the trial court's finding that clear and convincing evidence of the Division's reasonable efforts to resolve the harm causing the children's removal. The record also substantiates the Division's attempts to consider alternatives to avoid termination of parental rights. D.D. was asked repeatedly to provide the names of relatives who might care for the children. Other than I.M., D.D. offered no information to aid a possible relative placement.
Finally, D.D. maintains the Division failed to prove by clear and convincing evidence that termination of her parental rights will not do more harm than good and argued the trial judge's reliance on Dr. Loving's bonding evaluations was erroneous. We reject these arguments.
The balance of the possible harm caused by a termination of parental rights and the benefits of freeing a child to pursue the opportunity presented by a stable permanent home is a most difficult one. K.H.O., supra, 161 N.J. at 355. Children experience harm when parental contact is severed. F.M., supra, 375 N.J. Super. at 264. However, this harm must be weighed against evidence establishing a child is securely bonded to a foster parent and severing the bond would cause significant and long-standing psychological trauma, incapable of mitigation by the child's parent. "The question to be addressed under that prong is whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with her natural parents than from the permanent disruption of her relationship with [his] foster parents." K.H.O., supra, 161 N.J. at 355. Accordingly, "where it is shown that the bond with foster parents is strong and, in comparison, the bond with the natural parent is not as strong, that evidence will satisfy the requirement of N.J.S.A. 30:4C-15.1(a)(4)[.]" Id. at 363.
Here, the trial court grounded its conclusion on the testimony of Dr. Loving and found no harm would befall J.L.H., Jr. and J.X.H. if their ties with D.D. were severed. Dr. Loving found a weak attachment between each child and D.D. but a strong, positive, healthy connection between J.X.H. and his resource family. At the time of the evaluations, plans to move J.L.H., Jr. to the same resource home were made but not effectuated. Thus, no bonding evaluation between J.L.H., Jr. and the resource family was conducted. Based on his analysis, although limited by the circumstances presented, Dr. Loving opined neither J.L.H., Jr. nor J.X.H. would suffer enduring or permanent harm if their ties to D.D. were severed.
Following our review, we conclude the court properly weighed the evidence presented, including the expert opinion of Dr. Loving, acknowledging its limitations. D.D.'s inconsistent visitation, her disinterest in following through with services to mitigate the harm posed by alcohol use and domestic violence, and her sporadic participation in therapy, joined with evidence showing she has a weak bond with her children, support the conclusion that the termination of D.D.'s parental rights would not do more harm than good. These two children cannot wait for their mother to "get herself together." N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 113 (App. Div.), certif. denied, 180 N.J. 456 (2004). These two boys "cannot be held prisoner [to] the rights of [their mother,] . . . [they] have their own rights, including the right to a permanent, safe and stable placement." Id. at 111.
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