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New Jersey Division of Youth and Family Services v. S.L.U


May 3, 2012


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket Nos. FG-07-0137-10 and FN-07-0288-08.

Per curiam.



Submitted February 29, 2012

Before Judges Waugh and St. John.

The New Jersey Division of Youth and Family Services (DYFS) appeals an order of the Family Part, dated March 23, 2011, dismissing its guardianship complaint filed against defendant S.L.U. (Sue) for termination of Sue's parental rights and for resource parent adoption of Sue's son, A.R.U. (Aaron).*fn1 The order also terminated the guardianship litigation and reopened the protective service litigation. DYFS argues the judge erred by not terminating Sue's parental rights, as DYFS established by clear and convincing evidence each prong of the best interests of the child standard, N.J.S.A. 30:4C-15.1(a). We disagree and affirm.


On appeal, the record discloses the following facts and procedural history.

On November 30, 2007, DYFS received a referral from Sue's uncle, indicating that seventeen-year-old Sue was seven months pregnant, homeless, and without supervision because her mother, P.U. (Pearl), was incarcerated. Sue was placed in DYFS's custody on January 7, 2008. DYFS received a second referral, reporting that Sue had given birth to Aaron on January 20, 2008. M.W. (Michael) is Aaron's father.*fn2 DYFS executed an emergency removal and Sue and Aaron were temporarily placed in the physical custody of Sue's maternal relative. DYFS also filed a verified complaint and order to show cause pursuant to N.J.S.A. 30:4C-11 and -12, and was granted custody, care, and supervision of Aaron.

On February 19, 2008, Sue and Aaron left the care of her relative because Sue would not follow her relative's house rules, and they were placed at Isaiah House, a mother/child shelter that provides parenting classes and therapy. On February 29, 2008, the Family Part entered an order granting Sue physical custody of Aaron so long as they remained in the Isaiah House program. Sue was referred to Dr. Anice George, a clinical psychologist, for psychological evaluation. Dr. George recommended that Sue receive long term individual therapy, a parenting group course, in-home support, and placement with Aaron in a therapeutic facility.

Sue was instructed that she was not to leave Aaron unsupervised in Pearl's care because Pearl tested positive for illegal substances. Sue was also referred to enroll in a G.E.D. course at Youth Build Newark. Between late February and August 2008, several incident reports were filed by Isaiah House counselors, noting that Sue consistently violated the program's rules by leaving with Aaron to spend time with her boyfriend, Michael, and her mother, Pearl. Another report noted that Sue was not attending her required parenting skills classes.

On August 26, 2008, DYFS filed an amended verified complaint under N.J.S.A. 9:6-8.21 and N.J.S.A. 30:4C-12 alleging that Pearl had tested positive for cocaine and therefore she is not an appropriate caregiver for Aaron. It further stated that Sue continued to remove him from Isaiah House without the program's consent. On that same date, the Family Part granted DYFS custody. Aaron was placed with Mr. C., a resource parent. Between March and October 2008, Sue was referred to enroll at three different high schools, although she never did. In September, she enrolled at Essex County College's Gateway to College Program, but she failed to regularly attend its classes and was dropped from enrollment.

On September 25, 2008, Aaron was returned to Sue's care at the Single Women in Transitional Housing Program (SWITCH), where Sue was placed after being terminated from Isaiah House. After Sue failed to bring Aaron to a doctor's appointment for a heart murmur, DYFS removed Aaron from Sue's custody, pursuant to a court order that again placed Aaron in Mr. C.'s care. Aaron has remained with Mr. C. to date.

On December 24, 2008, the court granted Sue extended visitation at SWITCH so she could spend the holiday weekend with Aaron. On December 26, DYFS filed a referral because Sue failed to timely return Aaron to DYFS's office.

In early January 2009, Sue began supervised visits with Aaron through Reunity House. On January 16, 2009, a permanency hearing was held, and the Family Part determined the goal to reunite Sue and Aaron within three to six months to be appropriate. In the months following the Christmas weekend incident, Sue continued to demonstrate disrespectful behavior at SWITCH, which included not reporting to the program classes, failing to perform daily chores, and disobeying curfew. On April 14, 2009, the SWITCH Program Director requested that Sue's enrollment be terminated because she "lacks motivation [and] has no personal goals towards education/employment." However, Sue remained there as a resident.

On August 11, 2009, Sue was terminated from receiving Reunity House's services because she failed to regularly attend her visitations with Aaron as well as her scheduled parenting group classes. She was thereafter referred to Family Connections for a parenting group program and therapy sessions, but was dismissed for failing to attend.

On September 29, 2009, the court held another permanency hearing, and found the goal of reuniting Aaron with Sue within three months to be appropriate. On October 20, 2009, Sue was referred to Tri-City People's Corporation for supervised visits with Aaron. These visits continued sporadically. In December 2009, Sue was registered to attend Essex County Community College, and she was scheduled to attend parenting and life skills classes as well as sessions with a new therapist.

On January 15, 2010, the court held a third permanency hearing, and found DYFS's new goal of terminating Sue's parental rights followed by resource parent adoption of Aaron to be appropriate. The court found that Sue is "not able to provide a stable environment for her child and she has yet to complete therapy and parenting services that have been arranged several times. [Michael] remains incarcerated and, prior to his incarceration, he did not want to be the plan [for custody]."

On March 4, 2010, Sue graduated from the Isaiah House's parenting series course, and received a certificate memorializing her completion. On March 5, 2010, DYFS filed a complaint for guardianship of Aaron pursuant to N.J.S.A. 30:4C-15, seeking termination of Sue and Michael's parental rights to Aaron. The court held a fourth permanency hearing on January 10, 2011, and found appropriate DYFS's goal of terminating Sue and Michael's parental rights and placing Aaron for adoption.


A five-day trial commenced on February 1, 2011, and continued on February 16, 17, 18, and 28.

The court heard, on behalf of DYFS, the testimony of DYFS caseworkers, Lisa Hall and Cassandra McGee, and Dr. Eric Kirschner, a board certified psychologist. Sue and Pearl testified on Sue's behalf. Sue stipulated that part of DYFS's reasonable efforts consisted of an assessment of her relatives as a placement for her and Aaron, and a psychological evaluation of Sue.

Dr. Kirschner explained the results of his May 2010 psychological evaluation and bonding evaluations. He stated that Sue was not capable of caring for Aaron's needs with regard to safety, nurturing, stability, guidance, and judgment. Further, Dr. Kirschner expressed concern with Sue's inconsistent visits with Aaron during the course of the litigation. He opined that consistent visitations are of the "utmost importance" because the child has to come to "trust the parent" and know that the parent can meet the child's needs. He also noted that due to Sue's lack of compliance during the numerous opportunities she has been afforded through "Mommy and Me" programs, Sue has allowed Aaron to be removed from her care and custody.

Dr. Kirschner perceived Sue to be a "narcissistic individual" who is focused on herself and who "views other people as essentially objects for [her] to be able to utilize [or] help [her] meet their own needs." Specifically, in Sue's case, he said she has "placed her child's needs secondary to her own." Dr. Kirschner determined that "we really have the kind of complete opposite of the parent child dynamic that would be considered to be healthy for . . . the child as far as their development is concerned."

Dr. Kirschner stated that his opinions regarding Sue's inability to adequately nurture Aaron would not change even if Sue secured stable housing. Even though such a development would be considered a "step in the right direction,". . .

"without addressing and making some meaningful changes to all of these other issues," he would not change his position.

With regard to the bonding evaluations, Dr. Kirschner opined that there was no indication of any sort of bond between Aaron and Sue because Aaron had not differentiated Sue as his mother, either biologically or psychologically. In comparison, Aaron's bond with Mr. C. indicated there was a "secure attachment" between them. If removed, Aaron would suffer a "definite risk of harm" because "between the ages of two and three is when a child is considered to be in a position from a cognitive development standpoint to internalize their attachment figure where the attachment figure really is sort of cemented in a way." Dr. Kirschner concluded that severing the attachment relationship between Sue and Aaron would be "low to minimal" in risk of harm to Aaron.

McGee was assigned as Sue's caseworker in March 2010. McGee stated that Sue had obtained her G.E.D. and now had permanent housing. When asked whether any bars remain to Sue and Aaron's reunification now that Sue had obtained housing and completed her G.E.D.,*fn3 McGee responded that Sue's ability "to maintain stability and consistency is our biggest issue at this point." McGee also stated that Sue had completed her parenting classes, and in terms of services that remain for Sue to complete, that counseling "would have been the last requirement for DYFS as far as services go." She indicated that Sue has no mental concerns or drug problems.

McGee was questioned regarding Sue's weekly visits with Aaron at Tri-Cities. She related that Sue stated she would miss visits with Aaron because she was looking for employment and schooling. McGee noted Sue requested a change in her visitation schedule so that she could have visits with Aaron on Saturday. Unfortunately, Tri-Cities did not have any openings on Saturday. DYFS never explored finding another location for the visits so that Sue could visit during those times.

Sue informed the court that she had a normal pregnancy, with prenatal care, and delivered a full term baby, Aaron. She explained she had violated the curfew rules because, as a new mother, she wanted to be with her mother Pearl. She acknowledged that DYFS had instructed her to not leave Aaron with Pearl because Pearl has tested positive for illegal drugs, and admitted that on three occasions she left Aaron in Pearl's care. As far as missing certain appointments, Sue explained that she was placed by an agency in temporary employment, which sometimes conflicted with her therapy sessions and visitation with Aaron. She indicated that Aaron recognizes her as his mother and calls her "Mommy." On her own initiative, Sue found housing. Sue stated that other then completing therapy, which she is willing to do, in her opinion she has complied with all that DYFS requested in order to get her son back. When asked to explain why she is more mature at twenty than she was at seventeen, Sue replied:

Why, because I wouldn't listen to nobody, I wouldn't take nobody's help. I talked back, I'd get an attitude, I'd walk off, I'd be very stubborn. Now I think I'm much more calm, respectful, I understand the facts and the reality of the situation. Before it's just like I didn't care, I wanted to do whatever I wanted to do. Now I think I'm ready.

She acknowledged that Mr. C was providing good care for Aaron. However, after noting her ongoing responsibilities such as school, work, and caring for Aaron, Sue unequivocally asserted that she wants her son back.

On March 23, 2011, the Family Part judge issued an oral decision, and determined that DYFS had failed to meet its burden under prongs one and two of the best interest of the child test, but had satisfied by clear and convincing evidence prongs three and four. On that same date, the court entered an order terminating the guardianship litigation under Docket No. FG-07-0137-10, but reopened the protective service litigation under Docket No. FN-07-0288-08, and changed DYFS's goal to reunite Aaron and Sue within six months.

The court granted DYFS's oral motion to stay the change of the permanency plan from adoption to reunification pending appeal. Further, the court ordered that visitation continue for Sue pending appeal while Aaron remains in the temporary custody of Mr. C., the foster parent. Protective service litigation has continued with permanency hearings held on April 28, July 14 and 21, and August 30, 2011.

On appeal, DYFS argues that it met its burden of proof in establishing each prong of N.J.S.A. 30:4C-15.1, and the Family Part's decision to dismiss the guardianship complaint was in error.


Before addressing the contentions advanced by DYFS, we set forth the principles that govern our review of judgments affecting parental rights.

The scope of our review of a Family Part judge's factual findings is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278-79 (2007)

(citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). Those findings may not be disturbed unless they are "'so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)). See also N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004). "A reviewing court should uphold the factual findings undergirding the trial court's decision if they are supported by 'adequate, substantial and credible evidence' on the record." M.M., supra, 189 N.J. at 279 (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)).

As a general rule, we should also defer to the judge's credibility determinations. Ibid. Such deference is appropriate because the trial judge has a feel for the case and "the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008). See also M.M., supra, 189 N.J. at 293.

In New Jersey Division of Youth & Family Services v. M.C. III, 201 N.J. 328, 343 (2010), the Supreme Court reiterated the standard first used in Cesare v. Cesare, 154 N.J. 394, 413 (1998), recognizing that "'[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding.'" We have held that, "'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." J.T., supra, 269 N.J. Super. at 188-89 (quoting C.B. Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989)). See also N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). Deference is still appropriate even in that circumstance "unless the trial court's findings 'went so wide of the mark that a mistake must have been made.'" M.M., supra, 189 N.J. at 279 (quoting C.B. Snyder Realty, supra, 233 N.J. Super. at 69).

Nevertheless, the trial judge's legal conclusions, and the application of those conclusions to the facts, are subject to plenary review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). We need not defer to the trial court's legal conclusions reached from the established facts. See State v. Brown, 118 N.J. 595, 604 (1990). "If the trial court acts under a misconception of the applicable law," we need not defer to its ruling. Ibid.

Even though the scope of review remains the same, we also note that in this case the Law Guardian disagrees with the trial judge with respect to the denial of termination of Sue's parental rights to Aaron. While the Law Guardian has an obligation to advocate for the wishes of a child over ten who is able to express his or her own view on the issue, see E.P., supra, 196 N.J. at 112-14, in this case Aaron cannot yet speak for himself. The Law Guardian, while he actively represents and speaks for the child, has to advocate for the best interests of a child too young to speak for himself, and represents neither adversary in the case. Compare Rule 5:8A, with Div. of Youth & Family Servs. v. Robert M., 347 N.J. Super. 44, 69, certif. denied, 174 N.J. 39 (2002).

The Supreme Court first articulated the best interests standard in New Jersey Division of Youth & Family Services v. A.W., 103 N.J. 591, 602-11 (1986). The Legislature subsequently amended Title 30 in 1991 to conform with the court's holding in A.W., codifying the standard at N.J.S.A. 30:4C-15.1(a). See L. 1991, c. 275, § 7. The statute provides that DYFS must prove:

(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-15.1(a).]

These four factors are not independent of each other; rather, they are "interrelated and overlapping[,] . . . designed to identify and assess what may be necessary to promote and protect the best interests of the child." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006) (citing K.H.O., supra, 161 N.J. at 348), certif. denied, 190 N.J. 257 (2007). Application of the test is "extremely fact sensitive," requiring "particularized evidence that addresses the specific circumstances of the individual case." Ibid. (citation and internal quotation marks omitted).

Under the first prong of the best interests standard, DYFS must prove by clear and convincing evidence that "[t]he child's safety, health or development has been or will continue to be endangered by the parental relationship." N.J.S.A. 30:4C-15.1(a)(1). "The harm shown . . . must be one that threatens the child's health and will likely have continuing deleterious effects on the child." In re Guardianship of K.H.O., 161 N.J. 337, 352 (1999). There are situations where "[t]he potential return of a child to a parent may be so injurious that it would bar such an alternative." A.W., supra, 103 N.J. at 605. Accordingly, the absence of physical abuse or neglect is not conclusive; indeed, serious emotional and developmental injury should be regarded as injury to the child. Ibid. Moreover, trial courts must consider the potential psychological damage that may result from reunification with a parent. Ibid. "[T]he psychological aspect of parenthood is more important in terms of the development of the child and its mental and emotional health than the coincidence of biological or natural parenthood." Sees v. Baber, 74 N.J. 201, 222 (1977). See also In re Guardianship of K.L.F., 129 N.J. 32, 44 (1992) ("Serious and lasting emotional or psychological harm to children as the result of the action or inaction of their biological parents can constitute injury sufficient to authorize the termination of parental rights.").

Under the second prong of the best interests standard, a trial court is required to determine whether it is "reasonably foreseeable that the parents can cease to inflict harm upon" the child. A.W., supra, 103 N.J. at 607. "No more and no less is required of them than that they will not place their children in substantial jeopardy to physical or mental health." Ibid. This prong may be satisfied "by indications of parental dereliction and irresponsibility, such as the parent's continued or recurrent drug abuse, the inability to provide a stable and protective home, [and] the withholding of parental attention and care, . . . with the resultant neglect and lack of nurture for the child." K.H.O., supra, 161 N.J. at 353. This harm includes "evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child." N.J.S.A. 30:4C-15.1(a)(2). The second prong focuses on parental unfitness and overlaps with the proofs supporting the first prong. In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999).

Under the third prong of the best interests standard, DYFS must make "reasonable efforts to provide services to help the parent correct the circumstances" that necessitated removal and placement of the child in foster case. N.J.S.A. 30:4C-15.1(a)(3); K.H.O., supra, 161 N.J. at 354. "Reasonable efforts" may include parental consultation, plans for reunification, services essential to achieving reunification, notice to the family of the child's progress, and visitation facilitation. N.J.S.A. 30:4C-15.1(c). Those efforts depend upon the facts and circumstances of each case. D.M.H., supra, 161 N.J. at 390. The services provided to meet the child's need for permanency and the parent's right to reunification must be "'coordinated'" and must have a "'realistic potential'" to succeed. N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 267 n.10 (App. Div. 2002) (quoting N.J.A.C. 10:133-1.3).

Under the last prong of the best interests standard, the question to be addressed 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 her foster parents." K.H.O., supra, 161 N.J. at 355. The overriding consideration under this prong is the child's need for permanency and stability. Id. at 357. If a child can be returned to the parental home without endangering the child's health and safety, the parent's right to reunification takes precedence over the permanency plan. A.W., supra, 103 N.J. at 607-09. The mere existence of a bond with the foster parent does not alone justify the termination of parental rights.

K.L.F., supra, 129 N.J. at 44-45; N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 263-64 (App. Div. 2005).

In meeting this prong, DYFS should adduce testimony from a "well qualified expert who has had full opportunity to make a comprehensive, objective, and informed evaluation" of the child's relationship with the natural and foster parents. In re Guardianship of J.C., 129 N.J. 1, 19 (1992). "[T]ermination of parental rights likely will not do more harm than good" where the child has bonded with foster parents in a nurturing and safe home. E.P., supra, 196 N.J. at 108 (citations omitted). Yet, DYFS "must show 'that separating the child from his or her foster parents would cause serious and enduring emotional or psychological harm.'" Ibid. (quoting J.C., supra, 129 N.J. at 19).

When the child's biological parent resists termination of parental rights, it is the court's function to decide whether the parent can raise the child without causing harm. J.C., supra, 129 N.J. at 10. The cornerstone of our inquiry is not whether the parent is fit, but whether the parent can become fit to assume the parental role in time to meet the child's needs. Ibid. (citing A.W., supra, 103 N.J. at 607). "The analysis . . . entails strict standards to protect the statutory and constitutional rights of the natural parents." J.C., supra, 129 N.J. at 10. "The burden rests on the party seeking to terminate parental rights 'to demonstrate by clear and convincing evidence' that risk of 'serious and lasting [future] harm to the child' is sufficiently great as to require severance of parental ties." In re Adoption of a Child by W.P. & M.P., 308 N.J. Super. 376, 383 (App. Div. 1998) (alteration in original) (quoting J.C., supra, 129 N.J. at 10), vacated and rev'd, 163 N.J. 158 (2000).


Our analysis focuses on the judge's finding that DYFS failed to prove the first two prongs of the best interests standard. First, we address the proofs regarding whether "[t]he child's safety, health or development has been or will continue to be endangered by the parental relationship." N.J.S.A. 30:4C-15.1(a)(1). We begin by noting that most of the "harm" faced by Aaron is caused by Sue's unstable behavior, unwillingness or inability to follow rules, or take advantage of services provided by DYFS. Additionally, DYFS asserts Sue caused harm by exposing Aaron to Pearl. Although it is acknowledged that Pearl has a drug problem, there is no evidence that Pearl either used drugs or was under the influence of illegal substances in Aaron's presence. However, because a child's safety is the paramount concern, a judge "need not wait to act until a child is actually irreparably impaired by parental inattention or neglect." D.M.H., supra, 161 N.J. at 383. A finding of abuse may be substantiated by the "likelihood of future harm." N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 24 (App. Div. 2004), certif. denied, 182 N.J. 426 (2005).

We reject the Family Part judge's determination that the Division did not meet its burden with regard to this prong. The evidence clearly and convincingly established that Aaron was harmed by Sue's initial inability to care for him and to protect him from the likelihood of future harm by Pearl.

We now proceed to the second prong. N.J.S.A. 30:4C-15.1(a)(2). This prong relates to a parent's continued unfitness, which may be established by demonstrating a parent was "'unwilling or unable to eliminate the harm' that has endangered the child's health and development." K.H.O., supra, 161 N.J. at 352 (quoting N.J.S.A. 30:4C-15.1(a)(2)). Parental unfitness is also established when a parent fails "to provide a 'safe and stable home for the child' and a 'delay in permanent placement' will further harm the child." Ibid. As already noted, the burden falls on DYFS 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." J.C., supra, 129 N.J. at 10 (Santosky v. Kramer, 455 U.S. 745, 768, 102 S. Ct. 1388, 1402, 71 L. Ed. 2d 599, 616-17 (1982)).

Moreover, "[t]o the extent that the quality of the child's relationship with foster parents may be relevant to termination of the natural parents' status, that relationship must be viewed not in isolation but in a broader context that includes as well the quality of the child's relationship with his or her natural parents." J.C., supra, 129 N.J. at 18. "[T]he development of disproportionately stronger ties between a child and foster parents may lead to a bonding relationship the severing of which would cause profound harm . . . ." Ibid. However, it is not enough for DYFS to simply "show that the child has a strong relationship with the foster parents or might be better off if left in their custody . . . ." Id. at 19 (citing In re Baby M, 109 N.J. 396, 445 (1988)). The burden is on DYFS to prove, "by clear and convincing evidence that separating the child from his or her foster parents would cause serious and enduring emotional or psychological harm." Ibid. (citing Santosky, supra, 455 U.S. at 768, 102 S. Ct. at 1402, 71 L. Ed. 2d at 616-17). "Such proof should include the 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 the foster parent." Ibid.

In the present case, the trial judge found that Sue had eliminated the harm facing Aaron and could now provide a safe and stable home for him. The judge based this determination on Sue's ultimate compliance with the services DYFS had provided. The judge noted that Sue had an apartment, some employment, and had proven that she can comply with services. 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.

As we have indicated previously, a judge's findings of fact are binding on appeal "when supported by adequate, substantial, credible evidence." Cesare, supra, 154 N.J. at 412. "Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413. We conclude that the judge exercised her discretion appropriately in determining that DYFS failed to satisfy prong two of N.J.S.A. 30:4C-15.1(a)(2), having acquired the "feel of the case." M.M., supra, 189 N.J. at 293 (internal quotations and citation omitted).

DYFS argues that the findings are "contrary to the evidence." It supports this contention by citing the testimony of the psychological experts during trial. DYFS notes that Dr. George concluded that "it is of great importance that [Sue] receives psychological treatment as well as support in caring for her child." DYFS also notes that Dr. Kirschner opined that Aaron had formed a bond with Mr. C. and that there was a lack of a bond with Sue as a result of her inconsistency in visitation.

Parents have a constitutionally-protected right to enjoy a relationship with their children. N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 165-66 (2010); E.P., supra, 196 N.J. at 102; K.H.O., supra, 161 N.J. at 346. Strict standards have consistently been imposed in the termination of parental rights. K.H.O., supra, 161 N.J. at 347. To balance these constitutional rights against potential harm to the child, when applying for guardianship, DYFS must institute "a termination proceeding when such action would be in the best interest of the child." N.J. Div. of Youth & Family Servs. v. K.M., 136 N.J. 546, 557 (1994). The burden of proof is on DYFS to establish its case by clear and convincing evidence. Ibid.; J.N.H., supra, 172 N.J. at 464; see also P.P., supra, 180 N.J. at 511 ("On appeal, a reviewing court must determine whether a trial court's decision in respect of termination of parental rights was based on clear and convincing evidence supported by the record before the court.").

DYFS contends that placement with Mr. C. would be in Aaron's best interest, and Sue acknowledges that Mr. C. has provided appropriate care for Aaron. However, we have stated "the 'best interests' of a child can never mean the better interest of the child." N.J. Div. of Youth and Family Servs. v. C.S., 367 N.J. Super. 76, 110 (App. Div.), certif. denied, 180 N.J. 456 (2004) (quoting A.W., supra, 103 N.J. at 602). Thus, termination will not be appropriate where caregivers are merely endowed with "unequal skills" or by a showing that a child would be better off with a prospective adoptive parent. Id. at 109-10. That principle is significant in this matter because it is clear that Aaron's resource parent provides better care than Sue, who has at times been overwhelmed by the responsibility.

The Family Part judge found,

. . . [Sue] now has addressed the issue of housing, because she has an apartment. She has addressed the issue of her parenting skills classes because she has completed them. She has addressed the . . . issue of educational unfitness, again because she's completed or in the process of completing her G.E.D.

Additionally, the trial judge stated: "The court does find, however, that the expert opinion that the defendant mother would not be able to mitigate that harm is without sufficient basis." Based on Sue's compliance and response to the services provided, the trial judge's credibility findings, and the testimony, especially with respect to Sue's progress, the determination as to the second prong must be upheld based on our scope of review. However, we see no reason to disturb the trial judge's decision that DYFS has not met its burden of proving the second prong of the best interest of the child standard. N.J.S.A. 30:4C-15.1(a).


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