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New Jersey Division of Youth v. A.K

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 18, 2012

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

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FG-05-18-09.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 2, 2012

Before Judges Cuff, Lihotz, and Waugh.

Defendant A.K., to whom we refer by the pseudonym Alice, appeals from the Family Part's March 31, 2011 order terminating her parental rights to her daughter Laura.*fn1 We affirm.

I.

We discern the following facts and procedural history from the record on appeal.

A.

Laura was born on June 17, 2005. At that time, Alice was living with Laura's father, to whom we refer by the pseudonym Carl. Alice and Carl were living on the second floor of the house owned by Carl's mother and stepfather, who resided on the first floor.

On June 21, 2005, plaintiff Division of Youth and Family Services (Division) received a report that the father of Alice's son Paul*fn2 was seeking to stop parenting time between Paul and Alice on an emergent basis. According to the report, Paul witnessed a violent argument between Alice and Carl while visiting their residence. Alice threw a mirror at Carl and hit him with a golf club during the argument. A Division representative substantiated abuse and neglect, but that determination was overturned at a subsequent review hearing. Nevertheless, the Division opened a case so that services could be provided to the family. The case was closed after a year.

On October 10, 2007, the Division received a report from Carl's mother that the police had been called to the house the previous night because of a domestic dispute between Alice and Carl. She informed the Division that the police told her that Alice's apartment was "unsafe, unhealthy and not fit for a dog."

When a Division worker went to the house, she found police on the scene. The worker learned that Alice had received a temporary restraining order against Carl earlier that morning,*fn3

as a result of which she had temporary custody of Laura. The parties were gathered outside on the sidewalk, where Carl was refusing to let Alice leave with Laura.

After speaking with Alice and Carl, the worker went to their apartment, which she found to be in deplorable condition. She described it as dirty and cluttered to the point that it was impossible to move around without climbing over boxes. The worker took photographs of the apartment, which were introduced at the subsequent trial.

After the worker consulted her supervisor, the Division effectuated an emergency removal. Laura was placed with Carl's mother and stepfather, with whom she still resides and who are interested in adopting her. As a condition of the placement, Carl and Alice were barred from living in the same house. On October 12, 2007, the Division filed a verified complaint seeking continuing custody of Laura, which was granted.

The Division's investigation revealed a lengthy history of domestic violence and legal problems involving Alice and Carl. Temporary restraining orders had been obtained and then dismissed by both Alice and Carl in August and September 2007. Hospital records from October 10, indicated that Alice was treated for a contusion on her left side, which she attributed to Carl punching her.

Although Alice obtained a final restraining order against Carl on October 24, the police found them together in a vehicle at a motel parking lot in November. Alice was arrested on December 4 for trespassing outside of Carl's mother and stepfather's home.

On February 21, 2008, Alice stipulated to the abuse and neglect of Laura.*fn4 That stipulation, which took the form of a suspended judgment, was apparently never formally entered. At a January 28, 2009 hearing, the Division sought termination of the abuse and neglect litigation so that a guardianship complaint could be filed. The judge granted that request. The hearing resulted in a case management order establishing a supervised visitation schedule and directing Alice to submit to bonding evaluations, psychological evaluations, and intensive individual psychotherapy.

Status conferences were held on March 5, May 14, July 9, and September 10. A permanency hearing was held on October 28, which resulted in orders that Alice attend additional evaluations and individual psychotherapy. In a permanency order issued on that date, the judge approved the Division's plan for termination of parental rights followed by relative adoption.

On May 20, 2010, Carl executed an identified surrender of his parental rights to Laura in favor of his mother and stepfather. The trial with respect to Alice's parental rights took place over ten days between August 6 and December 17, 2010.

B.

The facts that follow were developed during the trial through testimony and the introduction of documents.

The Division initially offered Alice services aimed at facilitating reunification. During the course of both litigations, Alice was referred for parenting classes, parenting capacity assessments, substance abuse evaluation and treatment, urine screens, psychological evaluations, bonding evaluations, individual counseling, therapeutic parenting classes, and domestic violence assessment and treatment. She was also provided with a monthly bus pass.

Alice was compliant with many of those services, particularly at the beginning. She completed domestic violence counseling, substance abuse education classes, parenting classes, some individual counseling, and several psychological and bonding evaluations. All urine screens were negative. However, Alice stopped participating in random urine testing in July 2010, and discontinued individual counseling with her therapist.

Alice was initially permitted one hour of parenting time with Laura each week, supervised by the Division. At Alice's request, parenting time was changed to two hours every other week. Carl's mother offered to supervise additional parenting time in her home, but Alice refused. The Division insisted that all parenting time be supervised because of concerns that Alice would leave the state with Laura, which concern was based on a report received by the Division in September 2002 that Alice had taken Paul out of state without permission. It was also based on Carl's assertion that Alice had often taken Laura and disappeared for days at a time without saying where they were.

Alice's participation in parenting time was erratic. She was late for some visits and failed to appear for others. The Division attempted to put other service providers in place to increase her parenting time without success. Alice's friend was approved to supervise visits, and some visits did occur in her friend's home. They were discontinued in 2008, however, because of Alice's noncompliance with the Division's monthly parenting-time requirement.

Throughout most of the litigation, case workers could not ascertain Alice's place of residence. She sometimes failed to appear for appointments and could not be reached on the telephone. Alice's driver's license was suspended in December 2008. She was occasionally incarcerated for failure to pay Paul's child support. According to the trial testimony, Alice last visited Laura on July 23, 2010, and has not seen or spoken to her since then.

During the course of the litigation, Alice did not hold steady employment. Although she worked for short periods of time for at least eight or nine different employers, she was unemployed most of the time. Alice told the Division that she was a student at Cumberland Community College. However, she refused to sign a release so that the Division could obtain her school records.

In December 2008, the Division received a report from a women's center that Alice was pregnant. At a hearing on January 28, 2009, Alice's attorney told the judge that she was not pregnant. Nevertheless, following the hearing, the Division workers observed that Alice wore a long black trench coat during parenting time. They eventually ascertained that she was visibly pregnant. She did not appear at the March 5 status conference.

On April 18, 2009, Alice gave birth to a baby girl, Emma. No drugs or alcohol were found in the baby's blood at birth. The Division nevertheless removed Emma from Alice's care because of its concern over her ability to parent. Because Emma's father, to whom we refer by the pseudonym Chuck, was incarcerated for use and distribution of heroin, the Division placed her with her paternal grandmother. Emma died on July 19. The autopsy report attributed the cause of death to "sudden death of co-sleeping infant."

When Chuck was released from prison, he and Alice began living together. After inspecting their apartment, Division worker Margaret Laurito concluded it would not be suitable for Laura because there was only one bedroom and there were no screens on the windows. Furthermore, she was concerned about Laura's association with Chuck, who had serious drug problems.

Laurito explained that the Division was troubled by Alice's pattern of forming relationships with individuals who had substance abuse, mental health issues, or both. Paul's father was a drug abuser who had served time in prison for his involvement with illegal substances. Carl was diagnosed with bipolar disorder and had a severe addiction to heroin, cocaine, and prescription pain killers. Chuck pled guilty to distribution of heroin and served two years in prison before being paroled. He was also diagnosed with bipolar disorder.

Laurito testified that Laura was happy and well-adjusted in her grandparents' home. She had no developmental problems. She had made many friends in kindergarten. When the litigation first began, Laura was very happy to see her mother during parenting time and became upset when it was time to leave. By the time of the trial, however, Laurito reported that Laura would "freak[] out" when she had to go to parenting time, crying and clinging to her grandmother and the transportation aid.

Three psychologists, who were accepted as experts by the trial judge, testified at trial. While the psychologists differed on certain points, their diagnoses and opinions were generally consistent.

Dr. Janet Cahill conducted a parenting capacity evaluation of Alice at the Division's request in April 2008. Cahill testified that Alice was extremely defensive during her clinical interview, refusing to answer many questions and providing a minimum of information. Furthermore, some of the information that Alice provided was later found to be inconsistent with facts in the record. Overall, Cahill had the impression that Alice was attempting to manipulate the information and to provide as little as possible.

Alice told Cahill that all of the problems in her home were caused by Carl and that her only fault was in not leaving the situation sooner. She said her apartment was somewhat messy, but denied that it was unfit for a child. She conceded that she often lost jobs because of her behavior and that she had never been able to maintain stable housing. Alice attributed losing custody of Paul to her lack of stable housing. Although Paul lived in New Jersey with his grandfather, Alice had not seen him since October 2007, and she told Cahill that she had no plans to visit him.

Alice denied being depressed or anxious. Cahill, however, testified that she appeared to be depressed, irritable, and jumpy during her evaluation. She described Alice as having "an unusual and odd affect" that was disproportionate to the setting.

Cahill administered the Personality Assessment Inventory, and found that Alice "was incredibly defensive," observing that "she blew the validity scales for defensiveness." Even though Alice's responses to the validity scales "invalidated the instrument," Cahill was able to compare her responses to those of other defensive responders. In so doing, she found that Alice had elevations in the areas of hostilities, suspiciousness, and mistrust. Consequently, as compared to other people who were being defensive, Cahill concluded that Alice viewed the world as a more hostile place, tended to isolate herself socially, and mistrusted the intentions of others. Based on the evaluation as a whole, Cahill concluded that Alice had a mood or personality disorder but she was not displaying specific symptoms of a specific disorder.

Cahill testified that, when she asked Alice about an interaction with Laura that Cahill had herself witnessed, Alice flatly denied that it had ever happened. Nevertheless, Cahill concluded that Alice genuinely believed what she was saying, and was not deliberately misrepresenting the truth. Cahill concluded that Alice has a fundamental personality disorder that might lie somewhere in the paranoid or schizotypal spectrum.

Such a disorder would, according to Cahill, explain why Alice has so much trouble functioning with respect to basic life tasks.

Because Alice was not sufficiently forthcoming with information, Cahill was unable to make an accurate diagnosis. She nevertheless concluded that Alice has a serious mood or thought disorder, probably a borderline personality disorder. Cahill wanted to "rule out" bipolar disorder, major depressive disorder, and substance abuse; that is, there was evidence that Alice suffered from those disorders, but Cahill could not gather enough information to make those diagnoses due to Alice's lack of forthcoming answers.

Based on Alice's many risk factors, Cahill recommended that Laura not be returned to her. She advised the Division that Alice should go to counseling with a focus on addressing judgment, insight, and coping skills. Cahill told the Division that she would only recommend that Alice and Laura participate in parent-child interaction therapy if Alice gained better insight and a willingness to change her behavior. In the meantime, Cahill cautioned that Alice should not be left alone with Laura for even brief periods of time because of her potential flight risk.

Cahill also testified that the Division informed her that Alice was pregnant in March 2008, but that she was attempting to hide that fact from the Division and the judge. Cahill concluded that Alice's failure to be forthright about the pregnancy and her failure to comply with all recommended services reinforced her pattern of poor insight and judgment.

Cahill explained that complying with therapy required more than simply showing up for appointments; it required making observable changes that were stable over time. Alice had made no significant changes because she still did not have a job, had not paid her child support, had not restored her driver's license, had not established a consistent relationship with Paul, had not taken advantage of all parenting time with Laura, and had not cooperated with drug testing. In light of Alice's lack of progress, Cahill advised the Division that she should not be referred to parent-child interaction therapy.

Dr. Linda R. Jeffrey was retained by the Division to perform psychological evaluations and parenting assessments. She first saw Alice on March 19, 2009, at which time she conducted an interview and administered a battery of psychological tests. Jeffrey testified that Alice dropped out of high school after completing tenth grade, but later earned a GED certificate.*fn5 Alice's IQ measured in the high average range. She was reading above the twelfth grade level. She was alert, oriented to time and place, and had no difficulty communicating her personal history to Jeffrey.

Alice told Jeffrey that she had had problems with depression when she was fifteen years old and had undergone six months of counseling. Jeffrey's independent review of Alice's adolescent counseling records raised concerns about the accuracy of her account. While depression was raised as an issue at the time, the primary concerns raised then were poly-substance abuse that included LSD, and brief psychotic episodes. Alice had been put on anti-psychotic medication, but was ultimately discharged by her psychiatrist for noncompliance with the medication regimen and failure to keep appointments.

Alice denied having problems with drugs or alcohol, despite her pattern of associating with partners who were heavily involved with both. She told Jeffrey that she had received no special education services while in school, even though her records indicate that she was in alternative classes. Alice denied physically fighting with her partners or assaulting anyone, and denied having had a restraining order obtained against her, despite clear evidence to the contrary in the police records. Although Alice denied having a relationship with Emma's father, Jeffrey noted that her highest parenting alliance score was with him.

Jeffrey described Alice as a very poor informant. She noted that other evaluators had experienced the same difficulties with the accuracy of Alice's self-reporting.

Jeffrey administered the following tests to Alice: Wide Range Achievement Test IV; Paulhus Deception Scales (PDS); General Ability Measure for Adults; Millon Clinical Multi-Axial Inventory III (Millon); Personal Problems Checklist for Adults; State Trait Anger Expression Inventory II; Substance Abuse Subtle Screening Inventory III; Parenting Alliance Measure; and Parenting Stress Index.

According to Jeffrey, Alice's "very much above average" score on the PDS's impression management scale produced a "faking good" profile. Jeffrey explained that the score means that Alice was attempting to present herself in the most socially desirable light during testing. This result was consistent with her result on the Millon, on which Alice scored very high on the desirability index. Jeffrey testified that the higher the score on the desirability index, the more likely it is that the subject failed to reveal personal psychological problems or interpersonal difficulties. Further, Alice's compulsivity scale on the Millon also indicated a high level of test defensiveness.

While Alice's results on the Millon showed elevated histrionic and narcissistic traits, Jeffrey doubted that these results reflected all of Alice's disorders due to her high desirability response. Jeffrey explained that, while it is not unusual for social deception scores to be elevated in the child custody context, Alice's score was unusually high and indicated that her responses to test questions could not be trusted.

Jeffrey ultimately diagnosed Alice as follows:

Axis I: Rule out Substance Abuse NOS Axis II: Narcissistic Personality Disorder with histrionic and antisocial features Rule out Borderline Personality Disorder Axis III: By client report, Mitral Valve Prolapse

Axis IV: Problems with primary support group, problems related to the social environment, occupational problems, housing problems, economic problems, problems related to interaction with the legal system.

Axis V: Global Assessment of Functioning (GAF): 40 Major impairment in work, family relations, and judgment Jeffrey concluded that Alice had "significant mental health and adjustment problems that seriously decrease her parenting capacity to provide a minimum safe level of parenting." She believed that Laura would be at high risk of harm if placed in Alice's care.

Jeffrey saw Alice for a second evaluation on February 4, 2010. Alice provided much the same information as she had during the first interview. She blamed Emma's death on the Division, telling Jeffrey that she had expressed concern about the paternal grandmother's ability to care for the baby.

Alice's scores on the PDS were even higher than at her first evaluation, demonstrating what Jeffrey described as a "repressor pattern." She explained that individuals displaying a repressor pattern have tendencies towards narcissism, self-enhancement, and manipulation. They lack insight, may appear sanctimonious, and resist admitting even minor problems. Alice's desirability scale score was so elevated that it invalidated all other findings on her personality assessment inventory.

Jeffrey further explained that Alice may have made a conscious decision to be deceptive or she may have been incapable of discerning the truth. Either way, Alice's dishonesty was problematic in terms of parenting because it directly related to her level of personal responsibility.

Jeffrey's diagnosis of Alice remained the same after the second evaluation. She concluded that Alice was still not prepared to provide a minimum level of safe, reliable, and attuned parenting for Laura. Further, she saw little prospect for change in the future given Alice's borderline narcissistic/histrionic personality disorder and antisocial traits.

Dr. Jesse Whitehead testified on behalf of Alice, whom he evaluated on June 24, 2009. He administered a Rorschach Interpretation test and a Bender Visual Motor Gestalt Test, in addition to many of the tests administered by Jeffrey. His initial findings were that Alice's mental status was normal and that she was not suffering from any apparent neurological dysfunction.

On the Millon, Whitehead found that Alice displayed characteristics of denial, insecurity, and defensiveness. He also found that she demonstrated a self-dramatizing style; a persistent habit of pursuing praise; a weak sense of self-satisfaction and self-worth; a tendency to withdraw, deny or be dejected; a feeling of being lost in a hostile environment; and a view of herself as being devoted to doing things that are expected of her.

Alice received the same very high scores on the desirability and compulsivity scales on Whitehead's test as she did on Jeffrey's. Whitehead agreed that this indicated that Alice "was trying to [portray] herself in a very, very favorable light" and that she may have been less than candid in some of her responses. He nevertheless insisted that the high scores did not invalidate the test, but merely changed the way he interpreted the result.

The Rorschach revealed basically the same personality picture as the Millon. According to Whitehead, Alice's results reflected a limited ability to manage interpersonal relationships: somewhat passive and acquiescent, not totally forthcoming, and feeling uncomfortable in unstructured, open environments.

Whitehead concluded that Alice suffered from mild depression with a tendency toward anxiety. While he believed she had a personality disorder not otherwise specified (NOS), he testified that Alice did not have schizophrenia or paranoia or any other psychopathology. He based his finding of personality disorder NOS on the fact that Alice had personality features found in several disorders, without amplification to be individually described, but which together caused clinically significant distress in one or more areas of functioning. He concluded that further clinical investigation was needed to rule out major depression or generalized anxiety disorder.

The parenting tests revealed that Alice was not likely to be a child abuser. While she scored in the low range in her ability to communicate with her children, she scored in the high average range for parenting support structures and she projected feelings that were congruent with positive parenting. Whitehead opined that Alice is a non-assertive kind of person who is not likely to be aggressive.

Whitehead testified that the results of Alice's substance abuse screening inventory were inconclusive but suspicious. He noted that Alice responded defensively to questions on the test and that she may have understated possible substance abuse problems. For that reason, he recommended that the test not be used as the sole instrument in determining whether she needs substance abuse treatment.

Whitehead conceded that Alice lied to him when she said that the Division had not scheduled regular parenting time for her with Laura. He also acknowledged that a parent's failure to take advantage of opportunities for parenting time with her child may reflect poorly on that parent's commitment to raise the child. He opined that Alice's failure to visit Laura after July 23, 2010, would probably have a negative effect on Laura's attachment to Alice.

Whitehead concluded that, although Alice is not an abusive person, she should not be reunified with her daughter as of the time of trial because she has no means of supporting the child. However, he opined that if Alice had adequate housing and a stable job, she would be an appropriate parent for Laura. Nevertheless, Whitehead explained that Alice's chronic problems with housing and unemployment "render her a very unlikely person capable of parenting." Even if Alice obtained stable housing and a job, she would need to undergo a period of observation, psychotherapy, and increased visitation before reunification. He estimated that this process could take between two and fourteen months.

Reports and letters from several psychologists who did not testify at trial were admitted into evidence and considered by the trial judge. Dr. David T. London evaluated Alice on November 8, 2005. He found her to have average intellectual functioning with abilities ranging from the low-average to the very superior level. He noted that while she was very capable, there were noticeable inconsistencies in her ability to manage her affairs. He also noted that Alice usually dealt with problems by pretending, shifting focus, positivising, and glossing over and avoiding confrontation. He diagnosed her as suffering from depression, personality disorder NOS, problems with primary support group, occupational problems, and interactions with the legal system.

Dr. JoAnne Gonzalez evaluated Alice on November 13, 2007. She described her attitude as "marginally cooperative." She characterized Alice as a very smart woman who does not fully use her cognitive abilities to solve her problems. She concluded that Alice had shown poor judgment in many situations and has limited resources to manage stress. Gonzalez also diagnosed Alice with dysthymic disorder, a type of depression, and personality disorder NOS.

Dr. Erika Salminen provided Alice with individual psychotherapy. In a letter to the Division dated September 24, 2008, Salminen wrote that Alice was initially resistant to treatment, but had started to participate more fully. In a letter dated January 20, 2009, Salminen wrote that Alice had completed her individual therapy. In Salminen's opinion, Alice met the criteria for major depressive disorder in partial remission, but her symptoms were not sufficiently severe to warrant medication. Salminen felt that Alice was demonstrating significant changes in her insight and problem solving skills and that there was a high probability that she would be able to maintain these changes.

Dr. Scott R. Schafer also provided Alice with individual psychotherapy. In a letter to the Division dated December 12, 2009, Schafer wrote that counseling for Alice had "gone into limbo" because she had failed to appear for appointments beginning October 28, 2009. Schafer stated that "[w]hen [Alice] was last seen she was contrary and frustrated, with her eyes in constant movement darting about in a distracted unsettled fashion."

Bonding evaluations were performed by Cahill, Jeffrey and Whitehead. All three agreed that Laura is an imaginative child who appears to be developing normally. Cahill observed Alice with Laura in April 2008. She noted that Alice was not able to engage Laura in interactive play, but simply followed her around the room. Alice also showed very poor verbal control over Laura. She did successfully scan the area for safety issues and kept track of Laura while distracted with another task. Cahill concluded that Alice was very strongly attached to Laura and that Laura showed signs of attachment to her. Nevertheless, Cahill concluded that Alice's parenting was inappropriate and overly intrusive, and that she showed a high level of anxiety that she was not able to put aside.

Jeffrey conducted a bonding evaluation between Alice and Laura on March 19, 2009. She testified that Laura was very self-directed and self-possessed in terms of play. Jeffrey thought that Laura was the one who was structuring the situation while Alice passively watched. Alice's affect was flat and she did not attempt to engage Laura. According to Jeffrey, Laura seemed irritated if Alice tried to interact with her directly. Laura also appeared emotionally detached and bored. Jeffrey did not observe the sort of warm, relaxed interaction one sees between a securely attached parent and child. She observed that Laura did not react joyfully when meeting Alice or sadly when leaving her. When Laura was taken to the reception area where her grandparents were waiting, she grabbed them and seemed delighted. From this, Jeffrey concluded that Laura was insecurely attached to Alice and did not place her sense of basic trust in her relationship with her mother.

Jeffrey conducted a bonding evaluation between Laura and her grandparents on the same day. Jeffrey found Laura's interaction with her grandparents to be very normal. She described Laura as affectionate, relaxed and comfortable. The grandparents guided and structured the activity, displaying authoritative parenting and spontaneous affection. Jeffrey concluded that there was a high probability that Laura was securely attached to her grandparents.

Jeffrey repeated these evaluations on February 4, 2010. She saw Laura with her grandparents first and found that she was a "very happy, relaxed, comfortable little girl" when with them. The grandparents were attentive to Laura and appropriate in their interactions. Jeffrey again concluded that there is a high likelihood that Laura is securely attached to each of her grandparents and that she has formed a sense of basic trust in them. She testified that they are her "psychological parents."

When Laura entered the room where Alice was waiting, she did not show any excitement when she saw Alice. Laura did become very happy, however, when Alice gave her a toy she had brought for her. Throughout the visit, Alice maintained the same flat affect that Jeffrey had observed the year before, causing Jeffrey to remark that "[t]here is a passivity to the way that [Alice] relates to [Laura] that is quite striking." Jeffrey again concluded that Laura is insecurely attached to Alice. Although she has an affectionate tie to Alice, Laura does not use her as a secure base.

Jeffrey testified that it would be more beneficial for Laura to stay with her grandparents. She testified to a strong probability that severing her secure attachment to them would lead to serious and enduring harm. Although there might be some harm in severing Laura's relationship with Alice, Jeffrey concluded it was not likely to be serious or enduring. Staying with her grandparents would make Laura more resilient to severing her bond with Alice.

Whitehead conducted bonding evaluations on June 24, 2009. He found that the interaction between Alice and Laura went smoothly. He noted that mother and daughter needed to work on communication and trust, but observed no significant negative interactions. He commented that Laura knows Alice and recognizes her as a parent. He conceded that the bonding between Alice and Laura was of "less strength" than one would normally expect of a parent and a four-year-old. In fact, he stated that Laura projected herself with characteristics frequently seen in much younger children who were just beginning the process of bonding. He characterized the attachment between Alice and Laura as the kind one would see between a parent and a child who is several months old.

According to Whitehead, Laura's attachment to her grandmother was clearly discernable. Whitehead had no doubt that Laura is strongly bonded to her grandmother and would experience a serious sense of loss if removed from her. He opined that while severance of that bond would be harmful initially, any negative effects could be ameliorated by Laura's gradual transition from grandparents to Alice followed by family therapy involving all parties.

Alice's attendance at the guardianship hearings was sporadic. Out of eighteen days, she was absent ten times and late twice. Her attorney could not account for Alice's absence on most of those occasions, including December 17, 2010, when she was scheduled to testify. The judge granted defense counsel's request for the opportunity to make an application to present Alice's testimony at a later date, but no such application was made.

The judge placed an oral decision on the record on March 31, 2011. The judge found that the Division had proven all prongs of the best interests test by clear and convincing evidence. A judgment of guardianship was entered on March 31, 2011, terminating Alice's parental rights to Laura. The judgment also denied Alice's requests for a stay and for ongoing parenting time pending appeal. This appeal followed.

II.

On appeal, Alice argues that she never caused her daughter any harm and that she complied with all services offered to her. She further claims that the judge ignored the progress she made toward reunification and mistakenly relied on unfounded allegations concerning her substance abuse and incarcerations.

She raises the following specific issues:

POINT I: The Trial Court's Termination Of The Mother's Parental Right Was Not Supported By Sufficient, Credible Evidence.

A. THE TRIAL COURT ERRED IN

FINDING THAT [THE DIVISION] HAD DEMONSTRATED, BY CLEAR AND CONVINCING EVIDENCE, THAT THE CHILD'S HEALTH AND SAFETY HAS BEEN OR WILL CONTINUE TO BE AT RISK OF HARM BECAUSE THERE WAS NO SHOWING THAT PAST DOMESTIC VIOLENCE HARMED OR WOULD HARM THE CHILD, OR THAT [ALICE'S] MENTAL HEALTH ISSUES AFFECTED HER PARENTING ABILITY.

B. THE TRIAL COURT ERRED IN

FINDING THAT [THE DIVISION] HAD DEMONSTRATED, BY CLEAR AND CONVINCING EVIDENCE, THAT [ALICE] WAS UNWILLING OR UNABLE TO ELIMINATE THE ALLEGED HARM FACING THE CHILD BECAUSE [ALICE] COMPLETED COUNSELING PROGRAMS, CONSISTENTLY TESTED NEGATIVE FOR DRUGS AND ALCOHOL, AND BECAUSE THERE WAS NO EVIDENCE TO SUPPORT THE COURT'S FINDING THAT [ALICE] WAS "FREQUENTLY INCARCERATED."

C. THE TRIAL COURT ERRED IN

FINDING THAT [THE DIVISION] HAD DEMONSTRATED, BY CLEAR AND CONVINCING EVIDENCE, THAT IT MADE REASONABLE EFFORTS TO ADDRESS THE PROBLEMS THAT LED TO PLACEMENT BECAUSE [THE DIVISION] ARRANGED FOR VISITATION TO BE SUPERVISED BY THE CHILD'S PATERNAL GRANDPARENTS, DESPITE KNOWING THAT THE GRANDPARENT HAD A STRAINED

RELATIONSHIP WITH [ALICE].

D. THE TRIAL COURT ERRED IN

FINDING THAT [THE DIVISION] HAD DEMONSTRATED, BY CLEAR AND CONVINCING EVIDENCE, THAT TERMINATION OF PARENTAL RIGHTS WOULD NOT DO MORE HARM THAN GOOD BECAUSE THE BOND BETWEEN THE CHILD AND FOSTER PARENT IS NOT SUFFICIENT TO WARRANT TERMINATION OF PARENTAL RIGHTS.

Before addressing those issues, we outline the general legal principles that govern our review of judgments terminating 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) (alteration in original), 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.

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; In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). 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, the Division 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 the Division 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.").

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 the Division 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, the Division 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." K.H.O., supra, 161 N.J. at 352. 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. (citations and internal quotation marks omitted). 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) (citations omitted); 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." (citing In re Guardianship of J.C., 129 N.J. 1, 18 (1992))).

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, the Division 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, the Division 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. J.C., supra, 129 N.J. at 19. "[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, the Division "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).

III.

Based upon our review of the record in light of the applicable law, we conclude that the record supports the trial judge's conclusion that all four prongs of the statutory test were proven by clear and convincing evidence. We review each of the prongs separately.

A.

The first prong requires the Division to establish that the children's safety, health or development has been and will continue to be endangered by the parental relationship.

Alice argues that there was no proof of actual harm to Laura. However, the absence of physical abuse is not conclusive on the issue of harm, because courts must consider psychological and developmental injury to the child as well. In re Guardianship of R., G. & F., 155 N.J. Super. 186, 194 (App. Div. 1977).

The Division demonstrated that, at the time of the emergent removal, Alice and Carl had exposed Laura to domestic violence over a period of several years. While that fact is not determinative, N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 22-25 (App. Div. 2004), certif. denied, 182 N.J. 426 (2005), the type of ongoing domestic violence reported as taking place at Laura's residence, engaged in by both of her parents and including the throwing of objects, had the potential to lead to physical harm. Most importantly, however, in October 2007 Laura was living in "deplorable" conditions that were determined to constitute neglect sufficient to warrant removal from her parents and guardianship by the Division.

Although the Division provided services, Alice was never able to develop the skills to provide appropriate housing, financial support, and effective parenting to Laura. Unlike the mother in G.L., supra, 191 N.J. at 607, Alice was unable to demonstrate stability in housing, employment, or interpersonal relationships at the time of the trial.

Alice's sporadic exercise of her parenting time was also harmful to Laura, as was her eventual discontinuance of parenting time altogether. In D.M.H., the Supreme Court recognized that to a child "the attention and concern of a caring family is the most precious of all resources." 161 N.J. at 379 (citations and internal quotation marks omitted). The Court held that "[a] parent's withdrawal of that solicitude, nurture, and care for an extended period of time is itself a harm that endangers the health and development of a child." Ibid. (citing K.H.O., supra, 161 N.J. at 352-54).

We recognize that Alice is morally blameless for any mental illness that impairs her ability to parent. N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 438 (App. Div. 2001) (citing R.G. & F., supra, 155 N.J. Super. at 194-95), certif. denied, 171 N.J. 44 (2002). However, the practical result of her mental health problems is that she cannot act as an effective or safe parent for Laura.

Consequently, we are satisfied that the first prong was satisfied by clear and convincing evidence.

B.

The second prong requires a finding that a parent is unwilling or unable to eliminate the harm to the child, and that a delay in permanent placement will add to the harm. K.H.O., supra, 161 N.J. at 352. "The question is whether the parent can become fit in time to meet the needs of the child." N.J. Div. of Youth & Family Servs. v. T.S., 417 N.J. Super. 228, 244 (App. Div. 2010) (citing J.C., supra, 129 N.J. at 10), certif. denied, N.J. Div. of Youth & Family Servs v. K.G., 205 N.J. 519 (2011).

Although Alice participated in and completed many of the programs to which the Division referred her, she stopped cooperating in urine testing. In addition, Alice had a continuing inability to provide an appropriate home, material support, and effective parenting to Laura, which the judge concluded still existed at the time of the trial. He further concluded that there was no basis to believe that the situation would change in the foreseeable future.

In reaching his conclusion, the judge relied principally on Jeffrey's opinions. Jeffrey was the expert whose testimony the judge found most compelling. Even Whitehead, Alice's expert, agreed that Alice was not able to parent Laura as of the time of the trial, although his opinion was that she might be able to do so in the near future, but only if she could stabilize her housing and employment situation.

Jeffrey concluded that Laura would suffer serious and enduring harm if her relationship with her grandparents, whom she characterized as Laura's psychological parents, were terminated. In contrast, she characterized Laura's attachment to Alice as "an insecure attachment," which she described as "a love for a person that you don't trust." Jeffrey further testified that such an attachment to a parent figure is "in and of itself harmful." Her opinion was that, while severing Laura's relationship with Alice would likely cause some harm, it would not cause serious and enduring harm. She also testified that continuing Laura's relationship with Alice was "unlikely to be constructive."

Our review of the record convinces us that the trial judge's conclusion that the second prong was satisfied by clear and convincing evidence is fully supported in the record. We will not second-guess the judge's credibility findings with respect to the experts, which also finds ample support in the record.

C.

The third prong requires the Division to make reasonable efforts to help the parent correct the circumstances that led to the child's placement outside the home and that the court consider alternatives to the termination of parental rights. "The reasonableness of the Division's efforts depends on the facts in each case." A.G., supra, 344 N.J. Super. at 435 (citing D.M.H., supra, 161 N.J. at 390). Nevertheless, "the parent's failure to become a caretaker for his children is not determinative of the sufficiency of [the Division's] efforts at family reunification." D.M.H., supra, 161 N.J. at 393.

The Division provided many services to Alice in connection with the 2005 litigation and during the course of the current litigations. We reject her argument that the Division did not provide the right ones, including her argument that the parenting-time arrangements were structured inappropriately. The Division offered alternative and additional parenting-time arrangements, some of which were rejected by Alice and others of which could not be implemented for acceptable reasons.

The record fully supports the trial judge's conclusion that the third prong was satisfied by clear and convincing evidence.

D.

Finally, the fourth prong requires a finding that termination of parental rights will not do more harm than good.

"[T]o satisfy the fourth prong, the State should offer testimony of a 'well qualified expert who has had full opportunity to make a comprehensive, objective, and informed evaluation' of the child's relationship with both the natural parents and the foster parents." M.M., supra, 189 N.J. at 281 (quoting J.C., supra, 129 N.J. at 19). "A child's need for permanency is an important consideration under the fourth prong." Ibid. (citing K.H.O., supra, 161 N.J. at 357-58).

We addressed this issue in connection with our discussion of prong two. Jeffrey concluded that (1) Laura would suffer serious and enduring harm if her relationship with her grandparents were terminated and (2) severing Laura's relationship with Alice would likely cause some harm, but not cause serious and enduring harm. Jeffrey explained that the harm facing Laura would be increased if permanency were delayed. "A child's need for permanency is an important consideration," M.M., supra, 189 N.J. at 281, and New Jersey has a strong public policy in favor of permanency. See K.H.O., supra, 161 N.J. at 358 (noting paramount need of children to have a permanent and defined parent-child relationship).

There is substantial and credible evidence to support the judge's finding, by clear and convincing evidence, that terminating Alice's parental rights so that Laura can be adopted by her grandparents would not do more harm than good. In contrast, there was persuasive evidence that further delay would cause more harm than good.

Affirmed.


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