April 9, 2012
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
M.N.R., DEFENDANT-APPELLANT. IN THE MATTER OF THE GUARDIANSHIP OF J.Z.R., A MINOR.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-104-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 5, 2012
Before Judges A. A. Rodriguez, Ashrafi and Fasciale.
Defendant-mother M.N.R. appeals from a judgment of the Family Part terminating her parental rights to her son by birth, J.Z.R., who is now ten years old. The Division of Youth and Family Services (DYFS) removed the boy from M.N.R.'s care when he was three years old, and mother and son have had no contact for the past four years.
The Family Part had entered a default judgment in 2007 terminating M.N.R.'s parental rights, but on appeal, we vacated that judgment and remanded the matter for further proceedings.
N.J. Div. of Youth & Family Servs. v. M.R., No. A-1770-08 (App. Div. Sept. 24, 2009). On remand, the Family Part conducted a seven-day trial and concluded again that DYFS had met the requisite statutory elements and entered judgment terminating M.N.R.'s parental rights. In the current appeal, M.N.R. argues again that DYFS did not produce sufficient evidence to meet the statutory criteria. She also argues that the court violated procedural and evidentiary requirements in conducting the trial. Having reviewed the record in accordance with our standard of review, we affirm the Family Part's judgment.
We begin by quoting the relevant statutory elements that DYFS must prove. Under N.J.S.A. 30:4C-15.1a, parental rights are terminated when:
(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. . . .
(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.
The four prongs of the statute 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." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). DYFS bears the burden of proving all four prongs by clear and convincing evidence. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 606 (2007).
In this case, DYFS proved the following facts. M.N.R., who is now twenty-nine years old, was raised in an abusive home.
She attended school up to the ninth grade. She can read and write but has "borderline" intellectual function. She suffers from mental illness and has been hospitalized in the past for psychiatric treatment. Sometime before 2005, she was diagnosed with bipolar disorder and prescribed medication for her mental condition.
M.N.R. has never worked at a stable and lasting job, depending on government assistance throughout her life. Since the age of fifteen, she has had "very short, temporary relationships with a number of men." She first became pregnant at age sixteen. She has given birth to four children, J.Z.R. being the third, and none of the children remain in her care.
DYFS has been involved with J.Z.R.'s care and custody since he was seven months old. Between October 2002 and January 2005, DYFS and the Family Part attempted to fashion permanency plans for J.Z.R., primarily based on a kinship legal guardianship by a relative in the same home as M.N.R. so that she could stay together with her son, but the plans did not come to fruition. During that time, DYFS directed M.N.R. to parenting classes and other services in an effort to facilitate its permanency plans. In June 2004, DYFS referred M.N.R. for evaluation by Guillermo Gallegos, Ph.D., a clinical psychologist. Gallegos found that M.N.R. genuinely cared for and was attached to J.Z.R. but nevertheless concluded that:
As a parent [M.N.R.] falls short of being adequate. She has many unmet needs and little tolerance for frustration or delay of gratification. With a generally depressive mood and a personality that is markedly vulnerable to others' influence, her own sense of urgency may, at times, displace the attention or care she needs to give to her child. Her level of energy is poor and her motivation to sacrifice for the sake of her children is limited.
In October 2004, DYFS discovered that J.Z.R. had been residing in a home without heat or electricity for two weeks. Despite the living conditions, J.Z.R. was healthy and unharmed. Shortly thereafter, M.N.R. voluntarily entered into a case plan with DYFS, by which she agreed to attend counseling, parenting skills classes, and a GED program. In November 2004, DYFS referred M.N.R. to the Newark Family Resource Network for a parent aide. At a compliance hearing before the Family Part in December 2004, the court ordered DYFS to pursue a residential mental health program that would permit M.N.R. to maintain custody of J.Z.R.
In January 2005, M.N.R. began making daily visits to the DYFS office and behaving in an "erratic and anxious" manner. She told DYFS personnel that she would hurt J.Z.R. if DYFS did not take custody of him. By an emergent removal hearing on January 28, 2005, the Family Part granted DYFS's application for custody of J.Z.R. The court noted that M.N.R. had failed to comply with the vocational training program and the therapy provided by Beth Israel Behavior Health Center, and that she was refusing to take the medication prescribed by her psychiatrist.
At that time, DYFS was able to place J.Z.R. temporarily with a relative. As of March 2005, DYFS was attempting but unable to locate a residential treatment program that could accommodate both mother and child. The relative who was caring for J.Z.R. requested that DYFS place the child with a foster family because of M.N.R.'s aggressive and threatening behavior.
In 2005, M.N.R. began receiving mental health services from Medallion Care, but she failed to complete the program because of "an altercation . . . with the caseworker." In December 2005, DYFS referred M.N.R. for a psychiatric evaluation by Dr. Samiris Sostre, M.D. Dr. Sostre concluded that M.N.R. was suffering from depression, noting that symptoms of "irritability, poor frustration tolerance, and anger . . . have made it difficult for her to parent her son." He recommended reunification after M.N.R. overcame her depression through an adjustment of her medication, regular psychotherapy, parenting classes, and completion of GED training. DYFS referred M.N.R. to Reunity House for weekly therapeutic visitation with J.Z.R. and weekly group therapy. Subsequently, M.N.R.'s therapist expressed concern about her repeated tardiness.
In a February 2006 letter, M.N.R.'s clinician at Beth Israel Medical Center reported that she was attending outpatient sessions and improving her communication skills and anger management. At the same time, M.N.R. admitted that she skipped therapy sessions because she "ha[d] stuff to do."
In April 2006, DYFS referred M.N.R. for a third evaluation, this time by psychologist Mark Singer, Ed.D. Singer described M.N.R. as having "feelings of depression," being "overly reliant on others," and "experiencing paranoid ideation, possibly rising to the level of delusional content." He concluded that M.N.R. "lacks the physical and emotional resources needed to care for her son." Singer recommended that M.N.R. continue treatment and medicine monitoring with a psychiatrist, obtain and maintain employment and housing, regularly attend therapy, and complete parenting skills training in order to become a "viable placement option" for her son. He also stated that if M.N.R. continues to be unable to care for J.Z.R., permanent outside placement options should be explored.
In June 2006, M.N.R.'s therapist at Reunity House reported that she was regularly attending her therapeutic visitation with J.Z.R., but the visits "had ups and downs." On multiple occasions, M.N.R. arrived late and, when confronted by the therapist, refused to acknowledge that her tardiness was harming her four-year-old son. M.N.R. also engaged in aggressive confrontational outbursts.
In February 2007, Medallion Care terminated M.N.R.'s participation in its mental health program for a second time because of her absenteeism and "lack of motivation." In March 2007, DYFS referred M.N.R. to an in-home parenting skills program provided by Asun Star Consulting. M.N.R. successfully completed the program, but the therapist reported that stress related to DYFS's involvement in her life was triggering anger. The therapist stated that M.N.R. would refuse to take responsibility for her behavior, which led the therapist to conclude that her dysfunctional patterns of behavior rooted in her abusive childhood "have become character defects."
In March and July 2007, the clinician at Reunity House reported that M.N.R. regularly attended therapeutic visitation with her son but was inconsistent in attending group therapy. The clinician noted that M.N.R. clearly loved her son but continued to struggle with proper parenting behavior. For example, during a visit she brought her son's favorite snack and then taunted him with it by refusing to give it to him. The clinician did not recommend reunification until M.N.R. made more progress in her parenting capacity.
In August 2007, DYFS referred M.N.R. to Medallion Care a third time for mental health therapy. Again, she failed to complete the program, largely because she was frequently absent. The therapist at Medallion Care reported that it would be in the best interest of J.Z.R. that reunification wait until M.N.R. achieves better anger management skills, attributing her lack of progress to "questionable" motivation.
In November 2007, a clinician at Reunity House reported that M.N.R. usually attended both therapeutic visitation and group therapy, and that the relationship between M.N.R. and J.Z.R. had improved and the two had bonded. She noted, however, that M.N.R. continued to be defensive during parenting classes, to argue with clinicians, and to treat J.Z.R. like a sibling or peer. Despite a "strong attachment," the clinician concluded that M.N.R. "would struggle in parenting [J.Z.R.] alone." Likewise, the therapist at Reunity House concluded that M.N.R. lacked parenting skills, was hostile to instruction, struggled with anger control, and treated her four-year-old son like a sibling or peer. For example, M.N.R. was observed taunting and criticizing her son. In one instance, she frightened and prevented him from using the bathroom by telling him Freddie Cougar was in the bathroom.
On October 31, 2007, DYFS filed its complaint for guardianship and termination of M.N.R.'s parental rights because of her failure to complete mental health and other services intended to facilitate her reunification with J.Z.R. In our prior decision on appeal, we set forth in detail that DYFS provided notice to M.N.R. of a scheduled hearing on December 20, 2007, but that M.N.R. did not attend the hearing. The Family Part entered a default judgment at that time terminating M.N.R.'s parental rights. N.J. Div. of Youth & Family Servs. v. M.R., supra, slip op. at 3-11.
M.N.R.'s last contact with J.Z.R. was a final good-bye visit in December 2007. About nine months later, M.N.R. contacted DYFS to inquire about her son. In October 2008, she moved to vacate the default judgment. The Family Part denied her motion and simultaneously approved DYFS's plan for J.Z.R.'s adoption by his foster parent. M.N.R. then filed the prior appeal. While that appeal was pending, DYFS learned that the proposed adoptive mother was resorting to severe corporal punishment to discipline J.Z.R. DYFS removed the child from that foster home. In issuing our September 2009 reversal of the default judgment terminating M.N.R.'s parental rights, we took that unfortunate development into consideration and also commented upon the absence of detailed findings of fact at the December 2007 default hearing. Id. at 12. We remanded the matter for a new trial. Id. at 15.
On remand, DYFS informed the Family Part that J.Z.R.'s therapist opposed visitation between mother and son because it would be harmful to the boy. The therapist recommended further evaluations before visitation might resume. The court ordered DYFS to conduct psychiatric evaluations to assess M.N.R.'s parental fitness and the propriety of resuming visitation. It postponed bonding evaluations until after the issue of visitation was resolved.
Since 2005, J.Z.R. has had four foster placements. At the proposed adoptive home where he resided from March 2005 to July 2009, J.Z.R. identified his foster parent as "mommy" and the other adopted foster children as his sisters. However, J.Z.R. was transferred out of that home and to an emergency foster home in July 2009, after DYFS saw a bruise on his arm and learned that his foster mother had used a belt to discipline him.
Over the years, J.Z.R. has manifested mental health and behavioral problems, and he has been classified as a "special needs" child. His conduct towards his foster family, his classmates, and others has frequently included violent outbursts. He has been diagnosed with attention deficit hyperactivity disorder and oppositional defiant disorder, and he has been prescribed medications for his mental and other medical conditions. He has been enrolled in at least five different therapeutic and psychological programs since 2008.
Since our remand to the Family Part, DYFS's further efforts at reunification with M.N.R. have shown no promise of success. In November 2009, M.N.R. failed in her third attempt at completing the Medallion Care program. In December 2009, the DYFS caseworker met with her to develop a case plan for reunification. DFYS sought placement with a relative, but the relative was unwilling to serve as a kinship legal guardian.
M.N.R. was examined by psychologist Andrew Brown, Ph.D., in December 2009. After interviewing her and administering a Child Abuse Potential Inventory and Personality Assessment Screener, Brown concluded that she "has sustained psychiatric problems in the realm of poor impulse control, anger management, depression, suicidal ideation, paranoia, and delusional thought." He noted her "sporadic" compliance with psychiatric intervention. Brown's assessment indicated a "high potential for physical parental abuse" and "significant potential to engage in acts of child endangerment" because M.N.R. "does not demonstrate that she is psychologically prepared to parent a child as her tolerance for coping is shallow in light of her multiple and unresolved mental health issues." Further, he noted that "[p]arenting education will not resolve or modify [M.N.R.]'s parental disposition as her mental health issues overwhelm any potential benefit that may be derived." He recommended that M.N.R. undergo "chronic and sustained mental health intervention." Brown concluded that "within a reasonable degree of psychological certainty . . . [M.N.R.] does not demonstrate that she is ready or able to parent as her psychological status is not conducive to fulfillment of parenting obligations," and that her "prognosis for parenting is poor even with administration of and full service compliance with mental health services considering the stable course of [her] Schizotypal Personality Disorder."
M.N.R. was also examined by psychologist Erik Kirschner, Ph.D., in January 2010. After administering the Beck Depression Inventory-III, Kirschner found M.N.R. to have a "severe level" of depressive symptoms. Using the Severe Personality Pathology, he found elevated scores of delusional disorder and major depression, schizoid, masochistic, avoidant, dysthymia, and anxiety clinical syndromes. On the Adult-Adolescent Parenting Inventory-2, used to assess parenting attitudes, M.N.R.'s results indicated a "risk for practicing behaviors known to be attributable to child abuse and neglect." She was "characterized by impulsivity and aggression with a pervasive pattern of instability in regard to her mood, interpersonal relationships and self-image." Kirschner concluded that M.N.R.'s "personality characteristics negatively impacted her ability to meet [J.Z.R.]'s needs," she "lacked nurturing skills . . . to recognize a child's emotional state," and she "lacked the psychological capacity to adequately meet [J.Z.R.]'s special emotional and behavioral needs, let alone his basic needs for protection, nurturance, stability, and guidance." He also noted that her psychological impairments are unlikely to be mitigated by receiving further "pyschoeducation" or therapy. Kirschner stated: "based on a reasonable degree of psychological certainty that it is not in [J.Z.R.]'s best interests to begin visitation with his mother as it would likely contribute to psychological harm."
In sum, the psychological reports did not recommend resumption of visitation and held out little hope of improvement in M.N.R.'s parenting deficits. On January 25, 2010, the Family Part declined to order visitation and ordered DYFS to refer M.N.R. for additional mental health services.
M.N.R. began attending New Hope Behavioral Health Center for counseling and group therapy. New Hope's staff psychiatrist diagnosed her with depression and anger management issues. The case manager reported that sporadic attendance, rare participation, and angry outbursts prevented M.N.R. from developing parenting skills. The case manager also noted that M.N.R. often made conflicting statements about her desire to have custody of J.Z.R.
The Family Part held a trial on seven dates from August 13 to November 1, 2010, to determine whether M.N.R.'s parental rights should be terminated. In addition to the facts described here, evidence was presented that M.N.R. has had no contact with J.Z.R since December 2007. In January 2010, J.Z.R. was placed in a permanent resource home. The DYFS caseworker testified that he is now in a nurturing environment and that his current foster family is enabling him to address his special needs. The foster parent has expressed a commitment to adopting him.
J.Z.R.'s law guardian indicated that J.Z.R. wants to remain with his current foster family.
After hearing the testimony of psychologists Brown and Kirschner as expert witnesses and DYFS caseworker Michelle Montgomery and M.N.R. herself as fact witnesses, the judge of the Family Part gave his decision orally on January 31, 2011. The judge made findings with respect to each prong of the statute, N.J.S.A. 30:4C-15.1, and he concluded that DYFS had produced clear and convincing evidence that it was in the best interest of J.Z.R. to terminate M.N.R.'s parental rights. The judge also approved DYFS's proposed permanency plan leading to eventual adoption of J.Z.R. by his foster parent. After M.N.R. filed this appeal, the judge submitted a written supplementary opinion pursuant to Rule 2:5-1(b).
Our standard of review is limited. G.L., supra, 191 N.J. at 605; In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). We defer to the trial court's findings as to credibility of witnesses and facts supported in the record, unless the finding is so wide of the mark to be clearly mistaken. G.L., supra, 191 N.J. at 605; Cesare v. Cesare, 154 N.J. 394, 411-13 (1998).
M.N.R. contends that DYFS did not prove the first prong of N.J.S.A. 30:4C-15.1a because "[t]he so-called harm to J.Z.R. set forth in the trial court's opinion . . . simply does not rise to the necessary level." Additionally, she argues any harm to J.Z.R. cannot be attributed to her action or inaction, but to DYFS's removal of J.Z.R. from her custody and subsequent multiple placements. We conclude that the record establishes clear and convincing evidence that J.Z.R.'s "safety, health or development has been or will continue to be endangered by the parental relationship."
"[T]he best interests standard does not concentrate on a single or isolated harm or past harm as such. . . . [T]he focus is 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. Here, the Family Part appropriately identified the harm to J.Z.R. as the lack of a permanent and stable home with a nurturing parent, M.N.R.'s inability to "meet his basic needs," and the child's related special needs and emotional problems.
Psychological and developmental harm, which may be caused by neglect, lack of nurture, or lack of a permanent home, are cognizable harm under N.J.S.A. 30:4C-15.1a(1). See K.H.O., supra, 161 N.J. at 353; In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999); N.J. Div. of Youth & Family Servs. v. B.G.S., 291 N.J. Super. 582, 591-92 (1996); In re Guardianship of R.G., 155 N.J. Super. 186, 194 (App. Div. 1977). J.Z.R. has suffered psychological and development harm because of four placements since his initial removal in 2005 and his mother's inability to provide a nurturing home for him. He entered the foster system at M.N.R.'s request because she feared she would hurt him. He has remained in foster homes because of M.N.R.'s inability to overcome her mental health deficits by following through with treatment and other services to which DYFS has directed her and by her failure to take her medications consistently.
Not only was M.N.R. unable to care for J.Z.R. and to assure his safety in January 2005, but she undermined the efforts of DYFS to place J.Z.R. with a relative by acting aggressively toward the relative and by failing to control her angry behavior. M.N.R. also aggravated the harm to J.Z.R. by failing to complete her rehabilitative mental treatment. Furthermore, M.N.R. caused harm by inappropriate behavior during visitations.
The first statutory prong also addresses the risk of future harm to the child. The testimony of psychologists Brown and Kirschner alerted the court to risks because M.N.R. had a "high potential for physical parental abuse" and "significant potential to engage in acts of child endangerment" and because M.N.R. "lacked the psychological capacity to adequately meet [J.Z.R.]'s special emotional and behavioral needs, let alone his basic needs for protection, nurturance, stability, and guidance."
We conclude that the record contains clear and convincing evidence that J.Z.R. has suffered harm, that the harm emanates from the parent-child relationship, and that the parental relationship poses a risk of future harm.
M.N.R. argues that DYFS did not prove the second statutory prong because she "has repeatedly and demonstrably shown that she is willing to eliminate the harm by attempting to comply with all of the [DYFS] prerequisites to reunification."
M.N.R.'s "willingness" is admirable to such extent as shown by the record, but it is not sufficient to refute clear and convincing proof that she is not capable of overcoming her parenting deficits.
First, the record is mixed as to M.N.R.'s "willingness" to eliminate the harm to her son. She has vacillated between moderate progress and subsequent regression to the harmful behavioral patterns that caused J.Z.R.'s initial placement in the foster system. Some reports from mental health service providers indicated a degree of improvement in parenting skills and a clear attachment between mother and child. But the evidence also revealed a pattern of absenteeism, tardiness, belligerence, failure to take medication, and lack of motivation or commitment to mental health programs. During supervised visitation, M.N.R. exhibited a sibling-like relationship with her young son, and at times she taunted or teased him. Notably, none of the therapists, clinicians, or case managers who worked with her from 2005 through 2010 ever concluded that she was fit to be nurturing parent for J.Z.R.
To prove the second statutory prong, "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 (emphasis added). The trial judge found credible the testimony of the experts, Brown and Kirschner, both of whom concluded within a reasonable degree of psychological certainty that M.N.R. is not able to provide nurture and care as a parent because of her serious and chronic mental health conditions. They also concluded that her current psychological impairments will not be overcome and would overwhelm any benefit of further parenting training and support services. Kirschner found that M.N.R. was unfit to care for J.Z.R. because of her inability to recognize the child's emotional state and because of her inflexibility and aggressive behavior. According to Brown, despite years of mental health services, M.N.R. "has sustained psychiatric problems in the realm of poor impulse control, anger management, depression, suicidal ideation, paranoia, and delusional thought." There is "high potential for physical parental abuse" and "significant potential to engage in acts of child endangerment."
The trial judge made the following findings relevant to the second prong:
[M.N.R.] remains unable to effectively address her mental health issues and has, unfortunately, continued to interact aggressively towards those who have attempted to assist her.
As noted in Dr. Andrew Brown's psychological evaluation . . . and consistent with his credible testimony at trial . . . "[M.N.R.] has a significant potential to engage in acts of child endangerment. [M.N.R.] does not demonstrate that she is psychologically prepared to parent a child as her tolerance for coping is shallow in light of her multiple and unresolved mental health issues. Parental education will not resolve or modify [M.N.R.]'s parental disposition as her mental health issues overwhelm any potential benefit that may be derived . . . ."
There was sufficient evidence in the record to support the court's finding that M.N.R. is unable to eliminate the harm by becoming a stable, nurturing parent. See N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 436-37 (App. Div. 2001) (a diagnosis of ongoing mental disability satisfied prong two), certif. denied, 171 N.J. 44 (2002).
The third prong of N.J.S.A. 30:4C-15.1a "requires DYFS to undertake diligent efforts to reunite the family. . . . [focusing on] assistance to the parent to correct and overcome those circumstances that necessitated the placement of the child into foster care." K.H.O., supra, 161 N.J. at 354 (citing D.M.H., supra, 161 N.J. at 386-87). "The reasonableness of [DYFS]'s efforts depends on the facts in each case." A.G., supra, 344 N.J. Super. at 435 (citing D.M.H., supra, 161 N.J. at 390).
In concluding that DYFS had made reasonable efforts to facilitate reunification, the trial court found:
[M.N.R.] has been provided with a host of social services, including psychiatric evaluations, psychiatric treatment, medication monitoring, psychological evaluations, recommended counseling including, but not limited to anger management, supervised therapeutic visitation, housing assistance, assessment and consideration of relative resource[s] . . . .
[DYFS] has provided referral after referral for the benefit of [M.N.R.] for services which have only been met with sporadic participation, and at times defiance and challenge from [M.N.R.] It is clear that [DYFS] has exercised case plan after case plan. Referred [M.N.R.] to program after program, has assisted her financially with regard to guidance as to housing. Has placed her with relatives. Has supported relative placement all without success. [DYFS] . . . has exercised reasonable efforts.
[T]he testimony of Michelle Montgomery [the DYFS caseworker] introduce[ed] various reports of the programs to which [M.N.R.] was referred, all of which have met with opposition, non compliance by [M.N.R.] so far as her ability to maintain her participation in a positive way.
M.N.R. contends that the services have not included "effective" mental health treatment or "suitable" housing.
She argues that DYFS only provided generic therapy designed for substance abuse and failed to provide "tailored" mental health services as recommended in a July 2007 psychological evaluation. It is true that one therapist reported that M.N.R. would benefit from a program "in which the population is less chronic and are around her age." But the mental health services provided by DYFS were not simply generic services designed for substance abusers. Not only did DYFS display an enduring commitment to support M.N.R. through mental health services but the referrals were geared towards her needs, such as, depression, coping skills, anger management, poor parenting skills, and medication monitoring.*fn1
M.N.R.'s argument that DYFS provided inadequate mental health services is also undermined by her lack of commitment to almost every program. Without belaboring the facts detailed earlier, M.N.R.'s failure to benefit from the services provided is attributable in part to her absenteeism, belligerence, unwillingness to take on responsibility, and general lack of motivation.
M.N.R. also argues the third prong was not proven because DYFS did not consider alternatives to termination of parental rights. The identity of J.Z.R.'s father is unknown. J.Z.R.'s siblings are in the care of kinship guardians or wards of the court. DYFS sought unsuccessfully to place J.Z.R. with a relative in 2005 and again in 2010. M.N.R. does not indicate what other alternative DYFS should have considered.
The record contains clear and convincing evidence of reasonable efforts to meet M.N.R.'s mental health and other needs and efforts to find alternatives to termination of parental rights.
M.N.R. argues that DYFS did not prove the fourth prong of N.J.S.A. 30:4C-15.1a because there was no comparative bonding evaluation. DYFS and J.Z.R.'s law guardian argue that a comparative bonding evaluation is not required under these circumstances because of M.N.R.'s inability to overcome her mental illness and J.Z.R.'s right to a stable and permanent placement.
When applying prong four, the court considers "whether, after . . . balancing the two relationships, the child will suffer a greater harm from the termination of ties with [his] natural parent than from the permanent disruption of [his] relationship with [his] foster parent." K.H.O., supra, 161 N.J. at 355. In many cases, the question is whether there is "'clear and convincing evidence that separating the child from his . . . foster parents would cause serious and enduring emotional or psychological harm.'" A.G., supra, 344 N.J. Super. at 435 (alteration in original) (quoting In re Guardianship of J.C., 129 N.J. 1, 19 (1992)). The court looks for "testimony of a 'well-qualified expert who has had full opportunity to make a comprehensive, objective, and informed evaluation' of the child's relationship with both the natural parent and the foster parent." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 281 (2007) (quoting J.C., supra, 129 N.J. at 19). The rationale behind the bonding evaluation is to assess the relative attachment of the child to the natural and foster parents when the basis for termination is not only the natural parent's unfitness but the child's attachment to the foster parent. J.C., supra, 129 N.J. at 18-19. In limited and rare circumstances, however, a comparative bonding analysis may not be required. N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 440 (App. Div. 2009).
This case presents such a circumstance. Unlike in J.C., DYFS's proofs were not focused on J.Z.R.'s attachment to a foster parent but on M.N.R.'s unfitness as proven over many years to care for and nurture her son and the need for a permanency plan after efforts of long duration to bring about reunification. Brown and Kirschner concluded there is no foreseeable prospect of reunification because M.N.R.'s chronic mental illness makes the prospects of her being able to care for her child highly unlikely. M.N.R.'s therapist also stated that there is a bond between her and J.Z.R. but that the relationship is more like that of siblings or peers.
J.Z.R. has not been in his mother's care since January 2005 and has not seen her since December 2007. Brown and Kirschner advised against allowing visitation because it would harm J.Z.R.'s potential of attaching to his current foster parent and achieving permanence. While the degree of attachment to the foster parent was not established because of the recent placement, evidence was presented that the foster parent is committed to adopting J.Z.R. Also, the foster parent is addressing J.Z.R.'s special needs and behavioral problems.
Without visitation and with no contact between mother and child for some two years, a bonding evaluation would not have been useful. With respect to prong four, the trial judge found:
The Court notes that . . . [it] terminat[ed] even supervised visitation with [J.Z.R.] . . . [and] takes note of the behaviors of [M.N.R.] under circumstances where she would bring food to visits and taunt [J.Z.R.] [by] withholding the same from him. Dr. Kirschner's testimony with respect to [J.Z.R.] being harmed by his mother's behavior is accepted by this Court as being credible and logical . . ..
[M.N.R.] . . . has parentified the child in accordance with Dr. Brown's testimony with the mother acting on occasion more child like than [J.Z.R.] . . . [By] example . . . [M.N.R.] came to a visit and refused to participate and interact with [J.Z.R.], stating her preference for coloring.
These findings were supported by the evidentiary record. We conclude that, despite the absence of bonding evaluations, the termination of M.N.R.'s parental rights did not cause more harm than good to J.Z.R.
In sum, we conclude that the trial court had substantial credible evidence in the record to support its conclusion that DYFS had proven by clear and convincing evidence all four prongs of N.J.S.A. 30:4C-15.1a.
M.N.R. asserts she was denied a fair proceeding as a result of violations of Rules 1:7-4(a), 2:5-1(b), and 5:12-4(d). She contends the trial court made inadequate findings of fact in its initial oral decision and then relied upon inadmissible expert reports in its supplementary opinion.
Rule 5:12-4(d) provides that DYFS "shall be permitted to submit into evidence, pursuant to N.J.R.E. 803(c)(6) and 801(d), reports by . . . professional consultants." For admission of a report by a non-testifying expert, DYFS must lay a foundation and satisfy the requirements of the business records exception to the hearsay rule. See N.J.R.E. 803(c)(6); N.J. Div. of Youth & Family Servs. v. B.M., 413 N.J. Super. 118, 129-32 (App. Div. 2010). The trial court ruled that the reports of experts who were not testifying at the trial were only admissible "for the limited purpose of case planning and implementation subject to [DYFS] substantiating documents." Although the judge's supplementary opinion made reference to the reports "merely to index" the proofs, the earlier oral decision was based exclusively upon the expert testimony and reports of psychologists Brown and Kirschner, who testified at the trial.
In the supplementary opinion, the court confirmed that it "has relied heavily and primarily upon Brown's opinion which is not otherwise contradicted by the experts who have completed reports and have testified." Since the oral decision sufficiently stated the court's findings and conclusions and was based on the trial testimony of two expert witnesses, we find no necessity in evaluating whether the reference to the non-testifying experts' reports in the supplementary opinion constitutes a deviation from the rules for admission of evidence.