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New Jersey Division of Youth and Family Services v. R.B. and D.S

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 4, 2012

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
R.B. AND D.S., DEFENDANTS-APPELLANTS.
IN THE MATTER OF THE GUARDIANSHIP OF: T.B., A MINOR.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FG-15-37-09.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 17, 2012 -

Before Judges Payne, Simonelli and Hayden.

D.S., the mother of T.B., a daughter born in 1997, and R.B., her father, appeal from an order of September 9, 2010 terminating their parental rights to the child.

I.

The record discloses that, on September 15, 2005, the Division of Youth and Family Services (DYFS) responded to reports of neglect of T.B. by her parents who were known heroin users. Prior to that date, there had been seven referrals regarding the family. Although the reports of neglect were found to be unsubstantiated, on September 26, 2005, the court granted DYFS an order to show cause seeking care and supervision of T.B. Thereafter, on October 14, 2005, neglect was substantiated when it was determined that T.B. had been left home unattended. D.S., who had initially hidden from the DYFS worker to avoid a drug test, appeared to be under the influence of drugs and admitted to taking Methadone and Percocet. On that same day, DYFS received confirmation that a urine sample taken from R.B. a few days earlier was positive for cocaine. T.B. was therefore removed from her parents' custody, and on October 18, 2005, the court entered an order granting custody of the child to DYFS. The parents have never regained custody.

On November 30, 2005, D.S. attended substance abuse and psychological evaluations. At that time, she disclosed a criminal history commencing in the late 1980s, a history of substance abuse beginning as a teenager and a history of suicide attempts, with the most recent attempt being in 2001. She also stated to the evaluator that she had been jailed four times in 2005 and had four pending charges, two for drug possession and two for violation of probation.

During 2005, D.S. received drug treatment at Project Recovery. However, her attendance was sporadic, and on two occasions she tested positive for drugs.

On January 27, 2006, D.S. pled guilty to possession of a controlled dangerous substance with the intent to distribute, forgery, shoplifting, and violation of probation. She was sentenced to a five-year prison term with a one-year parole disqualifier.

In February 2007, D.S. was evaluated by psychologist Dr. Alan Lee. She disclosed to him that, in addition to her present charges, she had been arrested for crimes including shoplifting on approximately twenty occasions, driving with a revoked license on five occasions, theft on five to ten occasions, writing bad checks on seven occasions, and domestic violence. She additionally reported various detentions in county jails and periods of probation, as well as a lengthy juvenile history.

D.S. admitted to having used marijuana, cocaine, heroin, and LSD, as well as abusing prescription drugs. Her last employment was at a Burger King in 1990. Since then, D.S. stated that her income was based on Social Security disability, welfare and food stamp benefits. She reported that she had been diagnosed as suffering from bipolar disorder, schizophrenia and agoraphobia and stated that she had undergone approximately five psychiatric hospitalizations.

Following testing, Dr. Lee concluded that D.S. had average intelligence. However, she demonstrated antisocial traits and was self-absorbed, impulsive, needy, unhappy, angry, and hostile. She was not empathetic and had a strong sense of self-entitlement based on her belief that she had an unfortunate childhood. Dr. Lee found D.S. to be chronically depressed, suffering from anxiety and subject to panic attacks. She could not regulate her emotions, and as a result had occasions of explosive anger. The doctor found D.S. to be at "strikingly" high risk for continued substance abuse and criminal recidivism.

Overall, he determined that she had deeply rooted character traits that would prevent her from properly caring for a minor child.

In April 2007, D.S. was transferred to an intensive supervision program. However, on May 12, 2007, she left the program without approval, but was located in September 2007 in connection with an investigation occurring after the murder of another daughter. At the time, she was incarcerated in the Ocean County jail for credit card fraud, theft and forgery. She remained in jail until January 2008, when she was transferred to State prison to complete her term. She expected to receive a further three-year sentence for absconding, and to be released from prison in 2009.

In June 2008, D.S. was again evaluated by Dr. Lee. In his report following the evaluation, the doctor noted that D.S. had abandoned T.B. during her brief release from prison. Although D.S. reported that she was "changed" and wished to be reunited with T.B., re-engage with R.B., purchase a home, attend substance abuse treatment, and obtain employment, the doctor determined that she remained at high risk for criminal recidivism and substance abuse relapse. He did not support D.S.'s involvement as a caretaker for T.B., finding that she still suffered from immaturity, impulsivity, and poor coping skills. D.S., he thought, was still very self-absorbed, anxious and angry, and she had repeated difficulty conforming to society's rules.

R.B.'s history to this point was little better. Like D.S., R.B. attended substance abuse and psychological evaluations on November 30, 2005. At that time, he admitted to having been a habitual cocaine user since the age of nineteen, and he stated that he had been arrested on approximately forty occasions. He had recently been arrested for hindering apprehension and resisting arrest in connection with an incident involving D.S. It was recommended that reunification be deferred until R.B. had abstained from drug use for a period of six months and had finished all recommended treatment programs.

In January 2006, R.B.'s visitations with T.B. were terminated because he threatened staff members at Preferred Behavioral Health where the visits were being conducted, as well as another of his children. However, supervised visitation was later resumed.

During 2006, R.B. received drug treatment through the DARE program at Preferred Behavioral Health, testing positive for illicit substances on more than one occasion. Because of transportation difficulties, in June 2006, R.B.'s treatment was transferred to Ocean Mental Health. However, he failed to attend his first session at Ocean Mental Health because he was arrested. He subsequently attended for one month, but on two occasions, he tested positive for cocaine. He was terminated from its program in August or September 2006 for noncompliance with treatment and positive drug screens in July, August and September and his refusal to submit to additional drug screens. R.B. also tested positive for cocaine at Community Medical Center.

In September 2006, R.B. entered a fifteen-day rehabilitation program at New Hope Treatment Center. However, he left the program after one day.

In November and December 2006, R.B. was arrested on various occasions and incarcerated. In February 2007, he was arrested and jailed again, remaining in jail at least until April 2007 on two traffic and two shoplifting charges. Following his release, R.B. was rearrested for theft on April 20, 2007. In September 2007, he was arrested for credit card fraud and incarcerated in the Ocean County jail. In March 2008, R.B. was admitted to drug court, entering in-patient drug treatment at Integrity House. Although he attended anger management classes and counseling, he did not complete either. He completed parenting classes on his second attempt.

In June 2008, Dr. Lee performed a psychological evaluation of R.B. The doctor noted his substance abuse problems, and the fact that he resisted accepting responsibility for his circumstances. The doctor reported R.B.'s criminal involvement as including four instances of shoplifting, three instances of drug possession, one instance of forgery, one violation of parole, the use of a false Social Security number, theft, and simple assault. He had served a period of juvenile probation. Dr. Lee found R.B. to be at high risk for drug relapse and reinvolvement in crime. He was found to have an impulse control disorder, and a personality disorder with narcissistic and antisocial traits. Dr. Lee found R.B. to be self-absorbed and to lack empathy. He concluded that R.B. had deeply ingrained character flaws, and did not support R.B.'s involvement as a caretaker for T.B. then or in the foreseeable future.

In August 2008, R.B. moved to Oxford House, a halfway house, where he was subjected to random urine screenings and was required to attend Narcotics Anonymous meetings.

In November 2008, Dr. David Wolff performed a psychiatric evaluation of R.B. on behalf of DYFS, at which time he admitted to having a cocaine abuse problem and to using marijuana and alcohol. He stated that he had remained drug-free since August 2007. R.B. disclosed that he received income as an office cleaner and from Social Security disability. He acknowledged that, prior to entering drug court, he had been noncompliant with substance abuse treatment. R.B. had been psychiatrically treated for anxiety. Dr. Wolff found R.B. to be in early remission from his drug addiction, and he stated that, from a psychiatric standpoint, there was nothing preventing R.B. from parenting his children. However, the doctor recommended that he attend and complete parenting skills training and that his supervised visitation be maintained at potentially advancing levels of contact.

In the meantime, in January 2007, custody of T.B. had been assumed by her paternal uncle, F.B. and aunt, L.B. In June 2008, Dr. Lee conducted a bonding evaluation between T.B. and her mother, D.S. He found no evidence of a significant or positive bond between the two. At the time of the evaluation, T.B. was unsure whether she wanted to live with her parents or with L.B. As a result, Lee stated that "it was equivocal whether terminating the relationship between [T.B.] and [D.S.] would result in severe, enduring or irreparable psychological harm."

During the same month, Dr. Lee conducted a bonding evaluation between T.B. and R.B., but the record does not contain his report, and the results of the evaluation were not addressed by the doctor in his trial testimony.

Dr. Lee also conducted a bonding evaluation between T.B. and L.B. in 2008 when T.B. had been in her custody for approximately eleven months. The doctor found the two to be comfortable around each other, and T.B. told the doctor that she was happy living with L.B. As a result, the doctor was of the opinion that the two seemed to be forming a positive relationship. However, because T.B. had lived with her parents for a substantial period of time, she still had residual loyalty to them.

As a procedural matter, on April 12, 2006, following a Title 9 fact-finding hearing, the court had found that, on October 14, 2005, T.B. had been neglected by her parents as the result of their drug use. On November 29, 2007, the court had held a permanency hearing, at which time it approved DYFS's plan of adoption of T.B. by L.B. and F.B. On January 14, 2008, DYFS filed a complaint for guardianship of T.B., and on October 31, 2008, a second guardianship complaint was filed.

The guardianship trial commenced on March 31, 2008. T.B. testified in camera. D.S. waived her right to be present on the first day of the proceedings, but participated remotely on the second day. R.B. left during the first day of the hearing, and informed his attorney that he would not be returning. He was absent on the second day. During the hearing, testimony was provided by Annette Smith, the DYFS caseworker assigned to the family from 2005 to 2007. She testified to T.B.'s removal, the provision of services by DYFS, and R.B.'s noncompliance with the drug treatment programs, parenting classes and anger management classes offered to him.

Amy Dudley, a DYFS caseworker assigned to the family from 2008 to 2009, also testified. She recounted two instances during which T.B. had informed R.B. that she wished to be adopted by L.B. Dudley stated that T.B. was not comfortable engaging in unsupervised visitation with R.B. She stated that she had discussed kinship legal guardianship with L.B., but that she had stated that she wished to adopt.

Additionally, testimony was provided on R.B.'s behalf by a psychologist, Dr. Jesse Whitehead, who had previously evaluated him. Dr. Whitehead testified that R.B. had a personality disorder with narcissistic and antisocial tendencies, a depressive disorder, a generalized anxiety disorder and was in need of anger management. On direct examination, Dr. Whitehead opined:

[R.B. is] average to bright, [and] he's well aware of the differences between right and wrong. He has no neurologic disease, capable of good, practical judgment, and he's capable of positive parental instincts and should be able to serve as more than adequate provider for his daughter just based on those characteristics. To accomplish such, he will have to work diligently to overcome learned and inappropriate behaviors from his past.

However, the doctor did not presently support R.B. as a parent for T.B. because he had not completed anger management, his drug court involvement, individual psychotherapy and a recommended psychiatric consultation. The doctor declined to forecast when R.B. would be in a position to parent T.B. He performed no bonding evaluations.

On April 30, 2009, R.B. and D.S. made an identified surrender of T.B. to F.B. and L.B. that was accepted by the court. In May 2009, F.B. and L.B. informed DYFS that they wished to proceed with adoption.

In the meantime, in May 2009, R.B. tested positive for drugs and he was returned to prison for one week and required to wear an electronic bracelet. He did not comply with the bracelet requirement, left Oxford House, and became homeless. In June 2009, R.B. began living with friends, where he was later joined by D.S. upon her release from prison on November 23, 2009.

On October 28, 2009, the identified surrender was vacated because L.B. and F.B. separated, and on November 16, 2009, the court determined that it would be necessary to complete the guardianship trial. Nonetheless, in December 2009, T.B. indicated that she still wished to be adopted, and she rejected further contact with either of her parents.

During the period prior to the recommencement of the trial, Dr. Lee conducted additional psychological evaluations of D.S. and R.B. The doctor's evaluation of D.S. confirmed his earlier findings in 2007 and 2008 that D.S. was not capable of acting as a caregiver for T.B. then or in the foreseeable future. He reached a similar conclusion with respect to R.B. Bonding evaluations for each parent with T.B. were negative, and as a result, Dr. Lee opined that the risk of harm to T.B. if her parents' rights were terminated was low.

Additionally, Dr. Lee performed a bonding evaluation between T.B. and L.B. In that regard, he reported that T.B. wished to be adopted by L.B. and was doing well in her care. In a letter written in August 2009, she had stated that she wished to live with L.B. forever, and that she did not wish to visit with her parents. At the time, L.B. was employed full-time and was in stable financial circumstances. She wished to adopt the child, who was then twelve years of age, and Dr. Lee "very much supported" that course of action.

In addition to evaluations by Dr. Lee, D.S. was psychiatrically evaluated by Dr. Delfin Ibanez on January 22, 2010. The doctor found D.S. to be in early full remission from her cocaine addiction and to be suffering from a substance-induced mood disorder but no psychosis. The doctor reported that: "If [D.S.] maintains sobriety she will be able to perform as a parent at her pre-existing parental capacity, if she is unable to maintain sobriety and relapses her parental capacity will once again be significantly impaired." In an addendum to the doctor's report by Larry Thompson, a licensed social worker, it was noted that D.S. suffered such a relapse as revealed by a urine test on January 25, 2010 that was positive for opiates. Thus Thompson found that D.S.'s "ability to offer parental capacity [was] impaired." Addiction recovery services were recommended, with the caveat that, if D.S. "continues to relapse her capacity to offer effective parenting will once again be impaired." D.S.'s urine again tested positive for morphine use on March 19 and March 30, 2010.

In February 2010, Dr. Whitehead reexamined R.B., concluding that R.B. appeared "capable, with continued involvement in current programs, of becoming a supportive parental figure as well as maintaining the posture and status of a law abiding citizen." The doctor noted that R.B. had been working diligently to overcome his past history, and he recommended continued involvement in intensive psychotherapy. If DYFS contemplated reunification, the doctor recommended that visitation, which had not taken place in some time, be resumed and gradually increased.

On January 29, 2010, Dr. Whitehead conducted a bonding evaluation between T.B. and R.B., finding it to have been positive. However, he acknowledged T.B.'s desire to be adopted by L.B. While Dr. Whitehead was of the opinion that the bond between T.B. and R.B. was progressing and "on schedule as if no separation had occurred," he noted that he had not evaluated the bond between T.B. and L.B.

The second guardianship trial was held between May and August 2010. At that trial, Laura Zito, a supervisor at Preferred Children's Services, testified for DYFS regarding D.S.'s positive January and March 2010 drug tests. Dr. Ibanez confirmed that while D.S. continued to abuse drugs, she would remain incapable of performing her family obligations. Further, the doctor was of the opinion that if D.S. lived with or remained associated with people who were currently addicted or in recovery, she was likely to have difficulty in maintaining her sobriety. Dr. Lee testified on behalf of DYFS in a manner that was consistent with his reports. As the result of T.B.'s strong bond with L.B., and her lack of a bond with her birth parents, Dr. Lee was of the opinion that T.B. would suffer great harm if her placement with L.B. were altered, whereas she would be at low risk of harm if D.S.'s and R.B.'s parental rights were terminated.

T.B., testifying in chambers, stated that she wished to remain living with her aunt, and that she wanted her aunt to become her mom. She said that she had wished for adoption for approximately two years. T.B. testified additionally that she did not want to see her parents again, and that she did not believe that they loved her. She feared that if she were returned to her parents, the prior cycle of conduct would simply repeat itself.

Testimony was also provided by L.B., who rejected the idea of kinship legal guardianship and stated that both she and T.B. sought adoption. She stated that she and her husband had separated when he started smoking marijuana, a circumstance that she reported to DYFS, and that her divorce would be final on May 27, 2010.

Additional testimony was provided by DYFS caseworkers Annette Smith and Amy Dudley, who testified in a manner that was consistent with DYFS records and the factual summary that we have set forth. DYFS caseworker Dudley testified that she had been assigned to the case in January 2008 after the goal of the case had been changed to adoption. She testified that, following D.S.'s release from custody in November 2009, DYFS provided D.S. with psychological, bonding, psychiatric and substance abuse evaluations, as well as substance abuse treatment and counseling. However, D.S. was not compliant with offered services. She started counseling, but then stopped participating in March 2010 after five sessions. Additionally D.S. was discharged from intensive outpatient substance abuse treatment at Seashore House for noncompliance. D.S. refused additional parenting classes, although they were recommended. Additionally, she refused to return any of Dudley's phone calls.

With respect to R.B., Dudley confirmed his referral to drug court, in-patient drug treatment from January to August 2008, and residence at Oxford House until November. She stated that DYFS had provided to R.B. psychological, bonding and psychiatric evaluations, visitation, and parenting, anger management and domestic violence classes. Initially, R.B. did not complete any of the classes, but he completed parenting classes in 2010. He was discharged from anger management classes in May 2010 for noncompliance and ten absences. At the time of trial, R.B. remained under the supervision of the drug court.

Dudley testified that, in 2010, R.B. was arrested for possession of drug paraphernalia during a motor vehicle stop, and in June 2010, he had a positive urine screen, was arrested, and he spent thirty days in jail. He was arrested again on July 26, 2010 for refusing to wear an ankle monitor bracelet and spent one week in the Ocean County jail.

Dr. Whitehead appeared as a witness on behalf of R.B., testifying in a manner that was consistent with his prior reports. Because T.B. indicated that she wished to be adopted, and that she feared that if she were returned to her parents, the prior problems would recur, he stated that he could not make any recommendations regarding permanency.

R.B. testified on his own behalf, stating that he did not believe that placement with L.B. was in T.B.'s best interests and that it was his "responsibility and job to raise her." He stated that he had not been living with D.S. for approximately two months and that he had no plans to resume the relationship since she was not as far along in her recovery as he was. He stated that, in order to secure T.B.'s return, he was willing to comply with services proffered by DYFS. However, he admitted that he was at risk for being dismissed from the domestic violence class that he was attending. R.B. claimed to have been sober for thirty-five months.

Testimony was also provided on R.B.'s behalf by Kathleen Stonaker, a counselor at Preferred Behavioral Health who had worked with the intensive outpatient program provided through the drug court. In that connection, she had worked with R.B. weekly as his primary counselor from August 2008 through February 2010. She stated that during that period, R.B.'s urine tests were all negative, and that his achievement scores were satisfactory or good. However, Stonaker admitted on cross-examination that R.B. had a dirty urine on May 28, 2009 and was sent to jail for seven days. She also admitted that he was noncompliant with the requirement that he wear an electronic bracelet. Stonaker regarded the prospect that R.B. would be living with D.S. as likely to be detrimental to his recovery.

D.S. did not testify on her own behalf. She left the courtroom after the second day of trial and did not return.

On September 9, 2010, the court terminated D.S.'s and R.B.'s parental rights to T.B., accompanying his order with a comprehensive written opinion. Both parents have appealed.

II.

On appeal, D.S. and R.B. argue that the court erred in holding that DYFS had met its burden of proving all four prongs of the best interests test set forth in N.J.S.A. 30:4C-15.1a by clear and convincing evidence. That test requires a clear and convincing demonstration that:

(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 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 the termination of parental rights; and

(4) Termination of parental rights will not do more harm than good.

Our review of a termination decision by the Family Part court is limited. "'Trial court findings are ordinarily not disturbed unless "they are so wholly unsupportable as to result in a denial of justice," and are upheld whenever they are "supported by adequate, substantial and credible evidence."'"

N.J. Div. of Youth & Family Servs. v. V.K., 236 N.J. Super. 243, 255 (App. Div. 1989), certif. denied, 121 N.J. 614, cert. denied, 495 U.S. 934, 110 S. Ct. 2178, 109 L. Ed. 2d 507 (1990) (quoting Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 475 (1988), quoting Rova Farms Resort & Investors Ins. Co., 65 N.J. 474, 483-84 (1974)). We give deference to the credibility determinations made by the trial court. In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999); Cesare v. Cesare, 154 N.J. 394, 412-13 (1998).

Our review of the record in the present case satisfies us that clear and convincing evidence meeting all four statutory prongs was produced in this matter with respect to each parent, and that termination of parental rights was thus proper. As far as D.S. is concerned, it is clear that she endangered T.B. by leaving her unattended as a young child and by impairing her own ability as a mother to care for the child as the result of her abuse of drugs. In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999) (holding that failure to provide care constitutes a "harm" to the child). As the result of D.S.'s lengthy incarceration from January 2006 to November 2009, she deprived T.B. of the maternal care necessary to the child's well-being.

K.H.O., supra, 161 N.J. at 352-54; In re Adoption of Children by L.A.S., 134 N.J. 127, 136-37 (1993) (recognizing that a parent's incarceration bears directly on the parent-child relationship and is relevant to whether that relationship should be terminated); N.J. Div. of Youth & Family Servs. v. S.A., 382 N.J. Super. 525, 534 (App. Div. 2006) (finding incarceration relevant to ability to perform parental functions and considering in that regard the nature of the crime committed, the potential for rehabilitation, and the length of the sentence). Further, D.S.'s continued use of drugs since her release demonstrates her inability to eliminate the harm that she has caused her daughter. K.H.O., supra, 161 N.J. at 353 (recognizing continued drug use as evidence relevant to the second prong).

Dudley's testimony demonstrated the range of services offered to D.S. in accordance with N.J.S.A. 30:4C-12.1, as well as D.S.'s unwillingness to meaningfully participate in anything except evaluative procedures. As a consequence of D.S.'s behavior, she had alienated T.B. and, according to bonding evaluations, eliminated any bond that may have existed between mother and daughter.

T.B. has expressed a strong desire to be adopted by L.B., with whom she had been living happily for three years prior to trial. N.J. Div. of Youth & Family Servs. v. L.L., 201 N.J. 210, 228 (2010) (determining child's wishes to be a relevant factor in addressing the best interests of the child); N.J. Div. of Youth and Family Servs. v. E.P., 196 N.J. 88, 113 (2008) (holding that, "in appropriate cases, the family court would benefit from hearing the wishes of a child over the age of ten, who has reached a level of maturity that allows the child to form and express an intelligent opinion"). Similarly, L.B. has testified to her willingness to become T.B.'s adoptive mother, and to her unwillingness to engage in kinship legal guardianship. See N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 509 (holding kinship legal guardianship to be available only when adoption of the child is neither feasible or likely); N.J.S.A. 3B:12A-6d(3).

Dr. Lee has supported the plan of adoption, and has opined that termination of D.S.'s parental rights has a low risk of causing harm to T.B., whereas the risk of harm would be high if T.B. were to be removed from L.B.'s care. See In re Guardianship of J.C., 129 N.J. 1, 19 (1992) (requiring expert testimony evaluating the child's relationship with her natural parents and proposed adoptive parent in order to gauge the potential harm that would be sustained by terminating parental rights); see also K.H.O., supra, 161 N.J. at 363 (finding the fourth prong satisfied when a child's bond with the foster parent is strong and, in comparison, the bond with the natural parent is not as strong). Thus, we find that the trial court's determination to sever D.S.'s parental rights was well supported by the record.

We reach the same conclusion with respect to R.B., who suffers from the same cocaine addiction experienced by D.S. and whose similar neglect of T.B. led to her removal from the home. While R.B.'s subsequent drug-induced criminal conduct did not lead to as sustained a period of incarceration as did D.S.'s, he was nonetheless frequently jailed and thus unavailable to care for or visit T.B. R.B.'s participation in six months of in-patient drug treatment under the auspices of the drug court, while laudable, nonetheless resulted in a further, lengthy period during which he was separated from his daughter.

Although still under drug court supervision at the time of trial, R.B.'s progress was not without its difficulties, including his determination to leave the halfway house where he had been staying, his arrest for possession of drug paraphernalia and, later, his arrest for a dirty urine. Further, although R.B. stated at trial that he was willing to engage in services offered by DYFS, his history of noncompliance rendered his testimony suspect. Significantly, even R.B.'s expert, Dr. Whitehead, was not able to determine when R.B. would be in a position to properly parent T.B.

Moreover, T.B., who was twelve years of age at the time of trial and thus old enough to formulate and give voice to her own opinions, adamantly resisted reunification, and stated that she did not wish to participate in visitation with R.B. and that she wanted to be adopted by L.B. In that regard, T.B. expressed her desire for permanency and stability - both important considerations in determining T.B.'s best interests. New Jersey Div. of Youth & Family Servs. v. M.M. 189 N.J. 261, 281 (2007); In re K.H.O., supra, 161 N.J. at 357-58. Accordingly, we are satisfied that termination of R.B.'s parental rights was also justified by clear and convincing evidence and was in T.B.'s best interest, and we reject the arguments on behalf of D.S. and R.B. to the contrary.

We also reject D.S.'s and R.B.'s argument that delays in the resolution of the matter prejudiced their rights and violated N.J.S.A. 30:4C-15.2 and N.J.S.A. 30:4C-10. We find the parties' arguments, which were not raised before the trial court, lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

20120504

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