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New Jersey Division of Youth and Family Services v. K.W

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 8, 2012

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
K.W., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF K.W., A MINOR.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FG-16-0039-11.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 24, 2012 --

Before Judges Baxter, Nugent and Carchman.

Defendant K.W., the biological mother of Kate,*fn1 born in October 2007, appeals from the final judgment issued by the Family Part terminating her parental rights. K.W. contends that plaintiff Division of Youth & Family Services (Division or DYFS) failed to prove by clear and convincing evidence the four statutory prongs contained in N.J.S.A. 30:4C-15.1(a). She further maintains that the judge erred by barring a portion of the testimony of her witness Patricia Johnson, and by admitting hearsay testimony and documents upon which the judge relied in terminating K.W.'s parental rights.

We reject each of these contentions, concluding that the evidence amply satisfied the statutory standard for termination of parental rights; the judge did not restrict Johnson's testimony but instead permitted K.W. to present all evidence that was within the proffer K.W. made; and the hearsay statement concerning K.W.'s statement to a therapist, as repeated in the testimony of a DYFS caseworker -- that K.W. intended to kidnap Kate and run away -- did not play a role in the judge's decision to terminate K.W.'s parental rights, but was mentioned by the judge only in connection with visitation pending appeal. We affirm.

I.

The Division's involvement with K.W. began when the hospital in which K.W. gave birth to Kate notified the Division that K.W. did not want to take her baby home with her at the time of discharge because she was afraid to go home. K.W. did not want to expose the child to the "negative, unstable and unsafe . . . environment" of the home she shared with her parents and fifty-six year old second cousin, D.W. K.W. advised hospital staff that Kate was born as the result of K.W.'s rape by D.W. When Kate was five days old, DYFS placed her with the foster parents with whom she resides today.

Following the removal of Kate from K.W.'s care, the Division filed a verified complaint seeking custody of the child. By order of October 31, 2007, the judge concluded that the child's removal was necessary to protect her from "imminent danger" resulting from K.W.'s psychiatric problems and inability to parent.

Shortly thereafter, DYFS arranged for an initial psychological evaluation of K.W. by Dr. Margaret Doherty DeLong. Dr. DeLong opined that K.W. "demonstrated significant problems in self-sufficiency" and has "difficulty [maintaining] herself independently," principally because K.W. suffers from "low cognitive functioning." As an example of K.W.'s cognitive impairment, Dr. DeLong noted that K.W. was not able to comprehend the written testing materials, and tended to demonstrate "concrete thinking." Dr. DeLong characterized K.W.'s "parenting knowledge and skills" as "below average," commenting that K.W. admitted that she needed "help" caring for her daughter.

K.W.'s inability to live independently of her parents was of grave concern to Dr. DeLong, as K.W.'s mother suffered from schizophrenia and her father was an alcoholic who had been verbally and physically abusive to both K.W. and her mother, once threatening her mother with a knife. Dr. DeLong also opined that K.W. demonstrated irrational thinking, as K.W. believed that her mother would help her raise Kate, even though K.W.'s mother herself needed to be taken care of due to her own psychiatric disabilities.

DYFS arranged for Dr. DeLong to reevaluate K.W. in August 2008, by which time Kate was nine months old. After conducting a clinical interview and administering psychological tests, Dr. DeLong opined that despite the parenting skills training DYFS had provided, K.W. continued to demonstrate severe deficits in that area. She explained:

Despite participating in parenting skills training, [K.W.] demonstrate[s] a belief in the use of physical discipline, an expectation for obedience, an expectation for [Kate] to meet [Kate's] own emotional needs, and lack of empathy. In addition, it was reported that [K.W.] needed instruction regarding holding her daughter and diapering her properly[.] . . . It is highly recommended that she participate in . . . additional . . . individual instruction regarding parenting and child care. [Although K.W.] is likely to benefit from parenting skills training that is related to very concrete skills[,] [s]he does not appear to have the cognitive ability to benefit from material or instruction that involves abstract thinking. This also speaks to [K.W.'s] limited ability to provide adequate parenting independently. Additionally, DYFS secured a neuropsychological evaluation of K.W., which was performed by Dr. James Battaglia in early 2009, by which time Kate was fifteen months old. Dr. Battaglia's conclusions mirrored those of Dr. DeLong. Based on the psychological testing he administered, Dr. Battaglia opined that K.W. was functioning in the "extremely low range" of cognitive ability, as she tested in the third percentile for intellectual functioning, the second percentile for verbal comprehension, the first percentile for conceptual reasoning, and the first percentile for working memory.

Dr. Battaglia noted that although K.W. "sincerely desire[d] to parent her young child," permitting her to do so would expose Kate to a "real risk of harm," "abuse" and "neglect." Dr. Battaglia also expressed concern that K.W.'s limited ability to "anticipate consequences and make decisions" would endanger Kate if the child were returned to her mother's care. Ultimately, Dr. Battaglia concluded:

[K.W.] does not have a realistic appraisal of what is involved in raising a child. . . . Her limitations will interfere with her ability to grasp her daughter's developmental/medical condition, administer medications, or schedule and keep appointments. . . . [K.W.] has limited means of independently developing alternatives to the problematic childrearing practices she [herself] experienced. . . .

[H]er . . . problem solving skills are limited, she has problems with anger management, and her judgment is very poor.

A medical evaluation of Kate revealed that she was suffering from serious and wide-ranging medical problems, which compounded the challenges that would face K.W. if Kate were returned to her care. Although Kate had no abnormalities at birth, she developed a number of serious health problems and developmental disabilities, including an irregular heartbeat, a spinal abnormality, a seizure disorder, and a brain malformation, which typically requires surgical intervention. By the time Kate was two years old, she had regressed considerably in all areas of child development: she was no longer able to walk up the stairs without assistance, reverted to crawling, began walking in a abnormal fashion and lost the few words that she had been able to say. Her loss of speech resulted in behavioral problems including increased frustration and the throwing of objects. She also began to deliberately and repeatedly bang her head against the wall. As a result of these conditions, Kate required extensive physical, speech and language therapy.

A child study team evaluation conducted when Kate was two years and ten months old classified her as suffering from a "significant developmental delay" and ranked her in the first, and lowest, percentile. As a result, DYFS provided ongoing services to Kate, including speech therapy, early intervention services, and treatment by a cardiologist and a neurologist.

In light of the myriad challenges facing K.W., DYFS provided an extensive array of services designed to culminate in reunification. Specifically, although the standard DYFS supervised visitation consisted of one hour per week, DYFS afforded K.W. four hours per week until November 2010, at which time DYFS reduced the visitation to two hours per week. Initially, K.W.'s visits with Kate were supervised by a caseworker, but DYFS later added a nurse, who provided instruction to K.W. to help her handle Kate's seizures.

During the supervised visitation sessions, the caseworker, Marie Lugo, observed that K.W. was nervous and upset, as she did not know how to handle ordinary childcare responsibilities such as changing a diaper or feeding Kate an appropriate amount of food. On occasion, K.W. overfed Kate, causing her to vomit. K.W. also talked to her daughter about adult topics.

In addition to the supervised visitation, DYFS provided K.W. with individual counseling, domestic violence counseling, parenting skills classes and anger management training. As K.W. was living with her parents and D.W., DYFS enrolled K.W. in the Switch program, to assist her in learning the skills necessary for independent living. At Switch, K.W. was assigned her own room under the supervision of a "house mother." Despite the significant benefits offered by the Switch program, K.W. chose not to have Kate join her there because K.W. "didn't feel that [the] Switch program was for her." She also complained of mold and bedbugs in her room, and asked Lugo to move her elsewhere.

Lugo arranged for K.W. to enter a similar program, Catherine Rowe, a transitional living program at which K.W. would be provided her own two-bedroom apartment. Like Switch, mothers and children lived together while receiving social services. Before Kate could join her mother there, K.W. was summarily discharged because she permitted D.W. to come to the facility in violation of its rules.

By December 2009, after more than two years, K.W. had not made progress in overcoming the significant obstacles facing her in her effort to achieve reunification. For that reason, DYFS proposed a permanency plan of termination of parental rights, followed by adoption. On December 16, 2009, the judge rejected the Division's proposed permanency plan, not because K.W. was presently capable of properly parenting Kate, but rather because the Division had not provided K.W. with services that would help her "identify and respond to [her daughter's] special needs." The judge also found that the services DYFS provided had failed to include "specialized services tailored to [K.W.]'s own needs." The judge directed DYFS to change its goal to reunification, dismissed the guardianship complaint and reinstated the Division's protective services complaint.

In response to the judge's order directing the Division to provide more intensive services to K.W., the agency provided individual therapy for K.W. with Dr. Elizabeth Smith, a psychologist specializing in providing specific, goal-directed techniques for improving parenting skills. In alternate weeks, Kate joined K.W. and Dr. Smith in the therapy sessions so that Dr. Smith could observe K.W.'s interaction with her daughter and make specific recommendations aimed at improving K.W.'s parenting skills. The therapy Dr. Smith provided was designed to teach K.W. simple tasks such as changing Kate's diaper, but also included helping K.W. develop insight into her daughter's severe developmental delays, and teaching her to respond to Kate's needs in a consistent and nurturing manner. In the hour-long sessions over the course of nearly a year, Dr. Smith also endeavored to teach K.W. how to structure time in a visit, play with age-appropriate toys, reduce Kate's frustration, encourage and reward calm and goal-directed behavior, and provide the language stimulation that Kate required.

At the end of the nearly one year of individual therapy, Dr. Smith opined that K.W. had benefited little, if at all, from the intensive therapy Dr. Smith had provided. Dr. Smith also observed that K.W. displayed an "utter lack of appreciation" of the complex medical treatment needed for Kate's brain malformation and for the child's other physical and developmental problems.

On September 15, 2010, during a compliance review hearing, the court entered an order finding that in light of the considerable additional services DYFS had provided, DYFS had now made reasonable efforts to assist K.W. to remedy the conditions that led to Kate's out-of-home placement. For that reason, the judge approved DYFS's plan to terminate K.W.'s parental rights. DYFS filed its complaint for guardianship on November 5, 2010. The judge ordered DYFS to secure bonding evaluations of Kate with K.W. and with the foster parents.

Following unsuccessful mediation, trial began on April 20, 2011. DYFS presented the testimony of caseworker Lugo, its expert, Dr. Frank Dyer, and its Adoption Specialist, Gillian Batts. Lugo described the extensive services DYFS had provided. She explained that although Dr. Smith had recommended that K.W. develop a plan for daily life with Kate, K.W. was unable to identify the tasks she would need to accomplish, such as selecting a pediatrician or daycare center. Lugo explained that after working with K.W. for three years, she was forced to conclude that providing additional services would not ameliorate K.W.'s shortcomings as a parent.

Dr. Dyer testified that based upon his observations of Kate with K.W. during the bonding evaluation, it was his opinion that although Kate was comfortable with K.W., she had no emotional bond with her and would suffer no harm if her relationship with K.W. were to be terminated. In contrast, Dr. Dyer opined that Kate had developed a significant emotional bond with her foster parents, both of whom were extremely devoted to her and attentive to her serious medical problems and developmental delays. Dr. Dyer observed that Kate's foster mother was appropriately providing her with developmental therapy, consisting of attendance at a specialized preschool program, as well as occupational therapy, physical therapy and speech therapy.

In short, according to Dr. Dyer, the foster parents were fully aware of Kate's disabilities and needs, and addressing them properly. Dr. Dyer opined that were Kate to be separated from her foster parents, she would suffer regression in her behavior and in all aspects of her development; her ability to relate normally to other people would be weakened; her developmental delays would be exacerbated; and she would experience long-term problems with self-esteem.

In contrast, Dr. Dyer concluded that if Kate were to be reunited with her mother, she "would be subjected to an individual who . . . does not have the cognitive capacity to make adequate judgments . . . in terms of care, to provide consistent structure, nurturance, and physical protection, who occasionally displays bizarre behavior around her [child]."

Dr. Dyer elaborated on K.W.'s pronounced psychological problems and cognitive limitations. Like Drs. DeLong and Battaglia, Dr. Dyer opined that K.W.'s intellectual functioning fell in the bottom one percent and that she suffered from serious emotional problems that would impair her ability to live independently and provide a safe and nurturing environment for her daughter. He diagnosed K.W. with mild mental retardation and borderline personality disorder. He further opined that the combination of the two rendered K.W. "manifestly incapable of exercising adequate judgment, impulse control, self-regulation . . . and all of the other aspects of psychological functioning that we typically associate with adequate parenting."

It was Dr. Dyer's opinion that wholly apart from any emotional problems from which K.W. suffered, her cognitive limitations rendered her incapable of caring for a child, especially one with special needs. He opined that "[K.W.] was not intellectually fit to make adequate decisions about a child's welfare, [or] to exercise appropriate vigilance and care in supervising a child." According to Dr. Dyer, no further training would change the prognosis. His testimony concluded with his observation that the combination of K.W.'s cognitive deficits and her emotional problems was a "recipe" for a "disaster" if Kate were to be returned to K.W. Dr. Dyer recommended termination of K.W.'s parental rights followed by adoption by the foster parents.

Batts testified that she investigated the possibility of placing Kate with three relatives as an alternative to adoption. The first, D.W.'s adult son who lived in Florida, did not cooperate with the investigation and was ruled out as a possible placement. The second, K.W.'s aunt, responded with a letter stating she had no interest in raising or adopting Kate. The third, D.W.'s aunt, said the same.

During her testimony, Batts discussed K.W.'s emotional outburst during a counseling session at the Straight and Narrow Program. Batts repeated the counselor's remark that during the counseling session K.W. stated she wanted to kidnap Kate, dye her hair, and move with her out of state. Batts had not personally heard K.W. make the alleged kidnapping threat, but instead testified to what the therapist had reported.

K.W. testified briefly on her own behalf, explaining she intended to support herself and her daughter on her Social Security benefits. She told the judge she enjoyed her weekly visitations with her daughter when the two played with toys together. She also testified that the Division should have provided additional services, but never identified the particular services that DYFS had failed to provide.

K.W. also presented the testimony of Johnson, an employee of Strengthen Our Sisters (SOS), a program K.W. had attended for a short time. Because Johnson was employed as an "[a]dvocate," and was not a clinician or a therapist, DYFS objected to Johnson providing expert testimony. When the judge asked K.W.'s attorney to describe the intended scope of Johnson's testimony, counsel explained that he did not intend to ask Johnson to discuss "any therapeutic issues," but rather intended to elicit testimony establishing that K.W. had participated in group therapy at SOS and had been attempting to improve her parenting abilities through attendance at those sessions. Counsel for K.W. assured the judge that he intended to offer Johnson's testimony for only that "limited purpose." DYFS responded it had no objection to that testimony. The judge never had the occasion to limit Johnson's testimony.

The Law Guardian did not present any witnesses, but advised the judge that she supported the Division's request for termination of K.W.'s parental rights.

At the conclusion of the two-day trial, Judge Sabbath carefully reviewed the evidence presented by DYFS, and concluded that DYFS had satisfied by clear and convincing evidence all of the legal requirements for an order of guardianship. In the course of his detailed and comprehensive oral opinion, the judge did not rely on the hearsay testimony concerning K.W.'s alleged threat to dye Kate's hair and flee with her to another state. The only time the judge made reference to that hearsay testimony was when he denied K.W.'s motion for visitation pending appeal and cited the hearsay kidnapping testimony.

On appeal, K.W. raises the following claims: 1) the judge erred by terminating K.W.'s parental rights as DYFS failed to satisfy the requirements of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence; 2) the judge erred by limiting the scope of Johnson's testimony; and 3) the judge erred by relying on inadmissible hearsay testimony concerning K.W.'s alleged threat to kidnap her daughter and flee the state.

II.

Due to the fact-sensitive nature of family cases in general and parental rights cases in particular, the scope of our review of the findings of fact made by a trial judge is limited. In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). When we review a trial judge's findings, we are obliged to accord deference to the trial court's credibility determinations and its feel of the case based upon its opportunity to see and hear the witnesses. Indeed, a trial court's findings are binding on appeal when supported by adequate, substantial and credible evidence. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002).

"A parent's right to enjoy a relationship with his or her child is constitutionally protected." K.H.O., supra, 161 N.J. at 346. However, these parental rights are not absolute because the State has a parens patriae responsibility to protect minor children from serious physical or emotional harm. J.N.H., supra, 172 N.J. at 471. When a child's physical or mental health is at stake, "'a state is not without constitutional control over parental discretion[.]'" In re Adoption of Children by G.P.B., 161 N.J. 396, 414 (1999) (O'Hern, J., concurring) (quoting Parham v. J.R., 442 U.S. 584, 603, 99 S. Ct. 2493, 2504, 61 L. Ed. 2d 101, 119 (1979)). In some cases, in order to protect the child, the severance of the parent-child relationship may be required. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986).

In a termination case, "[t]he burden falls on the State to demonstrate by clear and convincing evidence that the natural parent has not cured the initial cause of harm and will continue to cause serious and lasting harm to the child." In re Guardianship of J.C., 129 N.J. 1, 10 (1992). DYFS must present sufficient evidence to demonstrate that the child's "best interests" will be substantially prejudiced if the parent-child relationship is preserved. A.W., supra, 103 N.J. at 603.

New Jersey courts follow a four-part standard in a termination case, as articulated in A.W. and codified in N.J.S.A. 30:4C-15.1(a). The statute authorizes a court to terminate parental rights if DYFS proves by clear and convincing evidence 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 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 statutory criteria are "not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." K.H.O., supra, 161 N.J. at 348.

A. The first prong

To satisfy the first prong of N.J.S.A. 30:4C-15.1(a), the Division must prove that the "child's safety, health or development ha[ve] been or will continue to be endangered by the parental relationship." K.H.O., supra, 161 N.J. at 347 (quoting N.J.S.A. 30:4C-15.1(a)). Here, the undisputed testimony in the record established that K.W. is unable to meet the day-to-day requirements of providing adequate parental care for her daughter. This inability is attributable primarily to K.W.'s cognitive limitations and long-term psychological disorder, and has resulted in Kate remaining in foster placement for more than four years. We recognize that K.W.'s limitations are not attributable to any voluntary action on her part, unlike the circumstances of a parent who is drug-addicted. Nonetheless, K.W.'s daughter's right to the security of a safe and nurturing home environment is unaffected by the fact that her mother is morally blameless. N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 438-39 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002). Indeed, a parent's illness, which renders the parent unable on a protracted basis to provide safe parenting to a child, justifies the termination of parental rights. Ibid.

In A.G., we affirmed the termination of a mother's parental rights where she suffered from a severe mental illness that rendered her "unable to protect and care for [her] child on a daily basis." Id. at 436. We also relied upon the mother's "lack[] [of] understanding of the basic requirements for parenting." Ibid. In affirming the termination of parental rights, we credited the trial judge's conclusion that the mother's mental illness was so severe and pervasive that "the child's safety, health and development would be jeopardized" if returned to the mother. Ibid.

So too here. K.W.'s cognitive limitations render her unable to safely assume custody of her child. She is unable to perform routine parenting tasks and is unable to provide the parental supervision her daughter requires. The harm resulting from this inability is exacerbated by the child's profound special needs. Kate suffers from severe cardiac and neurological problems, combined with mobility impairments and a speech deficit. Such problems would overwhelm any parent, but for someone like K.W., who ranks in the lowest percentile of intellectual functioning, it is beyond dispute that the child's safety, health or development will continue to be endangered by the parental relationship, thereby satisfying the first prong of N.J.S.A. 30:4C-15.1(a).

In concluding that DYFS satisfied the first prong, we reject K.W.'s contention that the proofs were insufficient because DYFS failed to demonstrate that Kate suffered actual harm as a result of the parental relationship. As the Court observed in In re Guardianship of DMH, 161 N.J. 365, 383 (1999), a court "need not wait to act until a child is actually irreparably impaired by parental inattention or neglect." For that reason, proof by clear and convincing evidence that the child's safety will be endangered satisfies the requirement of the first prong in the same fashion as would proof of actual harm.

B. The second prong

In addressing the second prong of the statutory test, whether K.W. is unable or unwilling to eliminate the harm, the trial judge correctly concluded that it was not a question of whether K.W. was unwilling to eliminate the harm facing her daughter, but rather whether she was able to do so. The judge found that the debilitating cognitive impairment and psychological disorders from which K.W. suffered would continue to prevent her from meeting her daughter's needs in the future. That conclusion was well-supported by the unrefuted testimony of Dr. Dyer, who opined that no amount of further treatment, services or intervention would change K.W.'s inability to safely parent her daughter, or alter the dire prognosis. We concur in the judge's determination that DYFS satisfied the second prong.

C. The third prong

The third prong of the statutory test contains two elements. The first of the two requires the Division to make reasonable efforts to provide services to assist a parent in correcting the circumstances that led to the child's removal. The record reflects that for a four-year period, the Division made more than reasonable efforts to assist K.W. in correcting those circumstances. DYFS provided individual therapy with Dr. Smith for nearly a year, anger management classes, supervised visitation, transitional housing at two different programs, both of which were designed to enhance the prospects for successful independent living, medical care and supportive services for Kate, and seminars and classes designed to assist K.W. in learning parenting skills. The weekly therapy sessions with Dr. Smith attempted to provide K.W. with intensive and specialized training in the specific skills necessary to become a successful parent. Unfortunately, at the end of more than ten months, Dr. Smith opined that despite her best efforts, K.W. had not benefited from the training she provided. Nonetheless, it is the efforts DYFS made, and not the success of the intervention, that is determinative. Id. at 393. DYFS provided an extraordinary array of services, thereby satisfying the first portion of the third prong.

The second portion of the third prong requires DYFS to establish that it considered alternatives to termination of parental rights. The record demonstrates that DYFS contacted the three relatives proposed by K.W. and D.W., but none was interested in the prospect of adopting Kate. We concur in the judge's determination that DYFS satisfied the second portion of the third prong.

D. The fourth prong

Finally, DYFS must establish that the termination of parental rights will not do more harm than good. The question under this prong is "whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with her natural parent[] than from the permanent disruption of her relationship with her foster parents." K.H.O., supra, 161 N.J. at 355. "[W]here it is shown that the bond with the foster parents is strong and, in comparison, the bond with the natural parent is not as strong, the evidence will satisfy the requirement of N.J.S.A. 30:4C-15.1(a)(4)." Id. at 363.

The trial judge balanced the relationship of the child with her mother and with her foster parents. Judge Sabbath concluded that Kate is currently happy and well-adjusted, and that her relationship with her foster parents should be maintained. Dr. Dyer's unrefuted testimony, which the judge credited, established that removing Kate from her foster parents would cause her serious and enduring emotional harm.

That [K.W.] may be morally blameless is not sufficient to "tip the scales in [her] favor." A.G., supra, 344 N.J. Super. at 439. As in A.G., "[t]he judge was correct in finding the child was happy and developing normally with the foster parents and the relationship must be maintained." Ibid. Indeed, that conclusion applies with even greater force here than it did in A.G., as here, unlike in A.G., the child has profound disabilities that require the constant care and insight of a nurturing parent, qualities that K.W. does not possess. We affirm the trial judge's determination that DYFS satisfied not only the fourth prong, but all four prongs of the statutory test by clear and convincing evidence.

III.

In her second point, K.W. maintains that the judge erred by limiting her direct examination of Johnson. The record tells us otherwise. As we have noted, when the judge asked K.W.'s attorney for a proffer of the testimony he intended to elicit, and counsel provided such a summary, the Deputy Attorney General representing DYFS advised the judge she had no objection to that testimony. As a result, the judge did not limit the direct examination of Johnson. We reject defendant's argument to the contrary.

IV.

Finally, K.W. asserts that she was denied a fair trial because the judge relied upon inadmissible hearsay testimony from a witness who did not testify at trial. As we have already noted, Batts testified that a counselor from Straight and Narrow told her that during a therapy session, K.W. commented that she intended to dye Kate's hair and flee with her to another state. Contrary to K.W.'s arguments on appeal, the judge did not rely upon that hearsay testimony as a basis for terminating K.W.'s parental rights. Instead, after he had already pronounced judgment terminating K.W.'s parental rights, then, and only then, did the judge make any reference to K.W.'s threat to remove Kate from the State. Specifically, the judge referred to the "kidnapping" remark only in support of his conclusion that K.W. should not be provided visitation pending appeal. As the "kidnapping" threat had no bearing on the judge's decision to terminate K.W.'s parental rights, we reject this claim in its entirety.

Affirmed.


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