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New Jersey Division of Youth and Family Services v. T.L.B

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 24, 2012

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
T.L.B., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF S.B. AND I.B., MINORS.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-151-10.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 6, 2012

Before Judges Yannotti, Kennedy and Guadagno.

Defendant T.L.B. appeals from the February 9, 2011 Family Part order that terminated her parental rights to two of her children, S.B. (Sally) and I.B. (Isaac).*fn1 The father of the children, D.H., was also subject to the order terminating parental rights but he does not appeal. T.L.B. argues that the Division of Youth and Family Services (DYFS or the Division) failed to establish by clear and convincing evidence the four criteria for terminating parental rights set forth in N.J.S.A. 30:4C-15.1(a). We agree with the trial judge that DYFS clearly and convincingly established all of the statutory prongs. Accordingly, we affirm.

I.

T.L.B. and D.H. are the parents of nine children. Their parental rights to the seven oldest children, with birth dates ranging from 1996 to 2007, were terminated on September 9, 2008, by a judgment of guardianship after default. The two youngest children of T.L.B. and D.H., Isaac and Sally, are the subject of this appeal. Because the factors which led the trial court to terminate T.L.B.'s parental rights to Isaac and Sally are intertwined with the parent's history of involvement with the Division, we briefly review that history here.

The Division's involvement with T.L.B. and D.H. started in October 2000. At that time, their second child suffered a fractured arm and leg and the Division investigated and substantiated physical abuse by D.H. The court ordered that the children be placed in the legal custody of the Division and directed that the children not be left unsupervised with D.H. The court also ordered T.L.B. and D.H. to undergo psychological evaluations and to take parenting classes. After both parents missed scheduled evaluations, the court ordered the children to be placed with a relative.

The children were returned to T.L.B. in January 2001, after she agreed to begin parenting classes. The Division also assisted by providing daycare and a home health aide.

The Division received six subsequent referrals regarding T.L.B., D.H., and their children in 2004 and 2005. These referrals arose from excessive school absences, signs of physical abuse and lack of proper nutrition. In November 2004, the Division substantiated an allegation of neglect based upon T.L.B.'s failure to pick up one of her children from school despite the child's high fever. The referent also asserted that the children walked to and from school unattended across railroad tracks, arrived late and rarely brought lunch with them.

The Division subsequently filed for and was granted care and supervision of T.L.B.'s children on November 22, 2005. At that time, T.L.B. signed a case plan whereby the Division would assist with daycare and T.L.B. would submit to a psychological evaluation.

In early 2006, T.L.B.'s caseworker noticed the home was unclean, that the children were unkempt, and that defendant had left one of her children, a two-year old, unattended in the bathtub. Further, T.L.B. had admitted she had not taken the children to a pediatrician since 2004. T.L.B. claimed that her home was only dirty "when the Division visited" and that she had no intention of taking the children to a doctor.

On April 15, 2006, T.L.B. placed her youngest three children with relatives but did not promptly inform the Division of that fact. She also missed a psychological evaluation scheduled that month. Consequently, the Division filed a verified complaint on May 16, 2006, seeking custody of all six children born at that time, citing T.L.B.'s long history with the Division and non-compliance with services. The Division at the time also referred T.L.B. to therapy with Asun Star Counseling. However, T.L.B. was discontinued from that program when she failed to schedule appointments.

In June 2007, T.L.B. and D.H. were again advised by DYFS that they must undergo psychological and psychiatric assessments and attend individual therapy sessions before the children could be returned to them. At this point, T.L.B. informed the caseworker that she was pregnant with her seventh child and admitted that she was not receiving prenatal care.

DYFS filed a complaint for guardianship on July 10, 2007, and alleged that T.L.B. and D.H. were unwilling or unable to eliminate harm facing the children and were unable to provide a safe and stable home for them. An order of guardianship was entered and T.L.B.'s and D.H.'s parental rights to the seven children were terminated following a proof hearing after both parents defaulted. The six oldest children were adopted by T.L.B.'s maternal aunt in November 2008, and the seventh child was adopted by a non-relative caretaker, Ms. N.

II.

T.L.B. gave birth to Isaac on January 4, 2009, in Newark. Hospital personnel contacted the Division because T.L.B. presented herself as "homeless." The Division filed for custody of Isaac on January 7, 2009 contending that T.L.B. lacked stable housing and made little progress in mitigating the issues that led to the removal of her older children. The court determined removal was necessary due to potential danger to the child's safety and health, given the Division's history with T.L.B. and D.H. Following Isaac's release from the hospital, he was placed with Ms. N., the adoptive mother of his sister, N.H. Ms. N. also expressed interest in adopting Isaac if reunification was not possible.

T.L.B. submitted to a court-ordered psychological evaluation on April 30, 2009, but missed multiple therapy sessions and failed to enroll in parenting classes. T.L.B. claimed that she did not attend therapy or parenting classes because she was not given "respect" by DYFS. In 2010, T.L.B. attended six therapy sessions at the Family Services Bureau (FSB) of Newark, but FSB later discontinued T.L.B.'s therapy claiming that she had not cooperated.

T.L.B.'s visitation with Isaac was sporadic. She missed three consecutive visits with him in April and May 2010, and then missed all visits in July and August 2010. DYFS attempted to locate T.L.B. during this period but its efforts were unsuccessful.

On September 6, 2010, T.L.B. left a voicemail message with a Division case manager indicating she had given birth to another child and wanted to visit Isaac. The Division thereafter attempted unsuccessfully to contact T.L.B. and applied to the trial court for a bench warrant, which was granted on September 9, 2010. With police assistance, the Division located T.L.B. on September 10, 2010, at the home of D.H.'s mother. Sally, who was born on July 6, 2010, was found at that time and DYFS effected a Dodd removal*fn2 of the child.

The Division subsequently filed for and was granted custody of Isaac on September 14, 2010. The Division then filed an amended complaint for guardianship on September 30, 2010, adding Sally to the complaint for guardianship. Sally was placed in temporary foster care with Ms. N. at this time.

The Division also provided T.L.B. with another therapist so she could continue with therapy despite her dismissal from previous programs. However, T.L.B. claimed she did not want to attend any additional therapy because "she did not need it."

During the course of the Division's involvement with her family, T.L.B. underwent psychological and psychiatric evaluations on numerous occasions. On June 12, 2006, she underwent a psychological evaluation by Dr. Mark Singer who found T.L.B. experienced paranoid ideation and could not provide her children with a secure home environment. He recommended that T.L.B. undertake a parenting program and therapy before reunification with her children. He indicated that the children would be at "continued risk" if she did not comply with these recommendations. Despite these recommendations, T.L.B. failed to participate in individual therapy or court-ordered psychiatric evaluations.

Subsequently, on August 23, 2007, plaintiff was examined by Dr. Donna LoBiondo, a psychologist, who opined that T.L.B. was "overwhelmed by her maternal responsibilities" and failed to participate in therapy or secure stable employment and housing. Dr. LoBiondo recommended that plaintiff attend parenting classes and individual therapy.

Next, Dr. Alexander Iofin, a psychiatrist, evaluated T.L.B. on September 18, 2007. He found T.L.B. suffered from an affective disorder and needed individual and group therapy as well as psychotropic medication to address her paranoia and underlying psychiatric issues.

On April 30, 2009, Dr. Diane McCabe, a psychologist, evaluated T.L.B. and found her to have "doubtful emotional stability." Dr. McCabe explained that T.L.B.'s lack of resources, unrealistic outlook, and doubtful emotional stability seriously diminished her ability to parent her children.

T.L.B. underwent a further psychiatric evaluation on April 26, 2010, with Dr. Samiris Sostre. Dr. Sostre opined that T.L.B. exhibited symptoms of paranoia and that these symptoms likely indicated an underlying paranoid personality disorder. Dr. Sostre recommended anti-psychotic medications as well as therapy. He indicated, however, that given her history of non-compliance she would probably be unwilling to take these steps.

Finally, on June 22, 2010, Dr. Peter DeNigris, a psychologist, undertook another court-ordered psychological evaluation of T.L.B. He also performed bonding assessments to determine the level of attachment between Isaac and both T.L.B. and his resource parent, Ms. N.

Dr. DeNigris found that T.L.B. lacked insight into her mental health issues and tended to shift blame to others for her problems. T.L.B. did not acknowledge or try to improve her personal and parenting deficits. Dr. DeNigris concurred with the conclusion of Dr. Sostre that T.L.B. lacked insight into her problems and that her attitudes would place Isaac at risk if reunification occurred. Also, "her lack of compliance with prior services called into question her commitment to achieve reunification."

Dr. DeNigris further found that Isaac would likely suffer harm if removed from the foster home and opined that the termination of T.L.B.'s parental rights would not do more harm than good to Isaac and would, in fact, provide him with a secure stable home. He added that he was concerned that T.L.B.'s untreated paranoia could present serious risks to any child in her care.

Dr. DeNigris testified at the guardianship proceeding. He indicated that Sally was too young to participate in a bonding evaluation. He stated that a healthy bond had not formed between T.L.B. and Isaac. However, Dr. DeNigris opined that Isaac did have a strong and healthy bond with his foster mother, Ms. N.

Dr. DeNigris concluded that it was in the best interests of both children that T.L.B.'s parental rights be terminated. He opined that T.L.B. was unfit to parent and could not be rehabilitated in the foreseeable future.

A Division caseworker also testified at the guardianship proceeding. The caseworker highlighted inconsistencies in T.L.B's description of her personal life. For example, T.L.B. claimed to be separated from D.H. but then had a ninth child with him shortly thereafter. T.L.B. failed to substantiate her claims of having employment and suitable housing. She had a practice of providing false addresses and disappeared without notice to the Division on several occasions.

Further, the caseworker testified that T.L.B. did not consistently visit Isaac and repeatedly failed to comply with services provided by the Division. The caseworker recounted the Division's efforts to provide T.L.B. with therapy, support and parenting education.

Defendant testified that she did not understand why the Division was involved in her life. She maintained that she complied with all the Division's required services and that while she had undergone some therapy, she found the therapy "not helpful."

In terminating T.L.B.'s parental rights to Isaac and Sally, the trial judge explained that the Division had satisfied all four prongs of the best interests test by clear and convincing evidence. The judge found the Division's witnesses to be credible and uncontradicted and relied upon the bonding evaluations by Dr. DeNigris which revealed that Isaac shared a strong bond with his foster mother. The judge found defendant to lack credibility and did not believe her allegations of compliance with services and visitation. He found that, indeed, her allegations of compliance and visitation were directly contradicted by the record.

This appeal followed.

III.

On appeal, T.L.B. presents the following arguments:

THE JUDGMENT OF GUARDIANSHIP SHOULD BE REVERSED BECAUSE THE DIVISION'S COMPLAINT, AND THE TRIAL COURT'S FINDINGS, WERE BASED ON AN IMPROPER ANTE-FACTUM "BETTER INTERESTS" STANDARD AND NOT ON THE STATUTORILY AUTHORIZED BEST INTERESTS TEST (A) THE DEFENDANT DID NOT "HARM" [ISAAC] OR [SALLY] UNDER THE FIRST PRONG AND THE DIVISION'S DECISION TO REMOVE THEM FROM THE DEFENDANT'S CUSTODY WAS UNRELATED TO BEST INTERESTS CRITERIA (B) THE TYPE OF PARENTAL INADEQUACIES IDENTIFIED BY THE DIVISION WERE ATTRIBUTABLE TO PARENTAL "POVERTY" AND DID NOT CONSTITUTE CLEAR AND CONVINCING EVIDENCE OF PARENTAL "UNFITNESS" UNDER N.J.S.A. 30:4C- 15.1 CRITERIA (C) THE DIVISION FAILED TO MAKE "REASONABLE EFFORTS" UNDER THE THIRD PRONG BECAUSE IT WAS NOT COMMITTED TO THE SUCCESS OF ITS REUNIFICATION EFFORT (D) TERMINATION OF PARENTAL RIGHTS WOULD DO MORE HARM THAN GOOD BECAUSE THERE WERE NO COMPELLING REASONS TO TERMINATE THE DEFENDANT'S PARENTAL RIGHTS.

After considering the record and the briefs in light of the applicable law, we are satisfied that the trial judge's findings and conclusions are firmly supported by substantial, credible evidence on the record as a whole and we affirm.

We state some general principles that inform our review.

"We will not disturb the family court's decision to terminate parental rights when there is substantial credible evidence in the record to support the court's findings." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). "We ordinarily defer to the factual findings of the trial court because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a 'feel of the case' that can never be realized by a review of the cold record." Ibid. (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007)). "Only when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark' should an appellate court intervene and make its own findings to ensure that there is not a denial of justice." Ibid. (quoting N.J. Div. of Family Servs. v. G.L., 191 N.J. 596, 605 (2007)).

When the State seeks to terminate parental rights, it must prove by clear and convincing evidence each of the following four standards:

(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); see also In re Guardianship of K.H.O., 161 N.J. 337, 347-48 (1999).]

These four prongs require a fact-sensitive analysis, and "are neither discrete nor separate. They overlap to provide a composite picture of what may be necessary to advance the best interests of the children." M.M., supra, 189 N.J. at 280 (quoting N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J.

Super. 235, 258 (App. Div. 2005) (internal quotation marks omitted)). A.

Regarding prong one, T.L.B. asserts that "the Division failed to present expert testimony establishing exactly what harms were caused to [Isaac] and [Sally] by the defendant's conduct." Consequently, T.L.B. claims that the Division did not prove harm by clear and convincing evidence.

When considering the first prong of the best interests test, the court's focus is not "on a single or isolated harm or past harm," but rather "on the effect of harms arising from the parent-child relationship over time on the child's health and development." K.H.O., supra, 161 N.J. at 348. Where there is "a clear record showing a pattern of parental inaction and neglect amounting to unfitness," N.J. Div. of Youth and Family Servs. v. F.H., 389 N.J. Super. 576, 615 (App. Div.), certif. denied, 192 N.J. 68 (2007), the courts "need not wait to act until a child is actually irreparably impaired by parental inattention or neglect." In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999). Rather, courts will focus not only on the actual harm suffered by a child, but also the risk of future harm. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 607 (1986).

In this case, the trial judge referenced T.L.B's involvement with the Division over more than ten years, during which T.L.B. made little effort to create a stable, safe and secure home for her family. Since becoming involved with the Division in 2000, T.L.B. failed to maintain stable employment or housing for an extended period of time; was evasive and vague about her residence and employment; and failed to address through therapy her mental and emotional issues. We have recognized that mental illness of a parent which affects the ability to perform parental responsibilities can be a basis for termination of parental rights. A.G. v. R.L. (In re Guardianship of R.G.L.), 344 N.J. Super. 418, 435-36 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002).

The Division presented overwhelming evidence, including psychological and psychiatric evaluations, indicating that T.L.B. had serious mental issues, most notably paranoid ideation and an affective disorder, that compromised her capacity to be an adequate parent. Dr. DeNigris testified that T.L.B.'s untreated paranoia could cause her to be distrustful of medical or educational professionals, thereby preventing her from seeking essential medical and educational services for her children. He also expressed concern that T.L.B. did not seem to understand the gravity of her mental health issues or believed that she needed help. Consequently, he asserted there was a great likelihood that T.L.B. would fail to seek and cooperate with treatment and this failure would unnecessarily expose both Isaac and Sally to a risk of serious physical and emotional harm.

Such evidence was clear and convincing proof that the children had been or would continue to be endangered by the parental relationship. N.J.S.A. 30:4C-15.1(a)(1).

B.

T.L.B. challenges the trial judge's findings with regard to the second prong and claims that the judge's findings failed to recognize that T.L.B.'s inadequacies were more attributable to her "poverty" rather than general parental unfitness.

The second prong of the best interests standard "relates to parental fitness," which may be established by demonstrating that: (1) "the parent is 'unwilling or unable to eliminate the harm'"; (2) "the parent has likely failed to provide a 'safe and stable home'" and "a 'delay' in 'permanent placement' will further harm the child." K.H.O., supra, 161 N.J. at 352 (quoting N.J.S.A. 30:4C-15.1(a)(2)). The inquiry is "whether that parent can raise the child without inflicting any further harm." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 87 (App. Div. 2006) (citing In re Guardianship of J.C., 129 N.J. 1, 10 (1992)), certif. denied, 190 N.J. 257 (2007).

Further, "concern and efforts by a natural parent after his or her child has been removed from the home, and making genuine and successful efforts to overcome the cause of the removal is of enormous significance" when determining fitness. N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 437 (App. Div. 2009). However, the second prong is also established when it is "shown that the parent is unable to provide a safe and stable home for the child and that the delay in securing permanency continues or adds to the child's harm." K.H.O., supra, 161 N.J. at 348-49.

Here, despite her claims of poverty, T.L.B. refused to attend therapy sessions provided for her on a regular basis. This refusal resulted in her removal from the programs. Several healthcare providers recommended that T.L.B. take medication for her mental health issues. She refused to comply. None of this can be ascribed to "poverty".

T.L.B.'s repeated refusal to address her long-standing parenting problems and comply with services resulted in the Division's filing of the complaint. Despite this, T.L.B. was still not motivated to work toward the reunification as was evidenced by her failure to attend visitation regularly and provide direct contact information to the Division.

At the time of the bonding evaluation undertaken by Dr. DeNigris in June 2010, T.L.B. still did not accept responsibility for the removal of her children; did not take medication to assist in overcoming her mental health problems; declined to attend therapy; and adopted the position that future services were unnecessary. Also, there was overwhelming evidence that T.L.B. did not possess basic parenting knowledge and failed to understand childhood development.

Moreover, Sally's subsequent birth did little to motivate T.L.B. to seek reunification with her family. After Sally's removal, T.L.B. missed visits with the children and refused to comply with therapy.

We have noted that instability and lack of permanency adversely affect the development of a child, and the child's best interests cannot be sacrificed because of a parent's inability to address potential future harms. See, N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div.) ("[T]he New Jersey statute[] reflect[s] reforms acknowledging the need for permanency of placements by placing limits on the time for a birth parent to correct conditions in anticipation of reuniting with the child."), certif. denied, 180 N.J. 456 (2004); see also K.H.O., supra, 161 N.J. at 358. Proof under prong two is thus clear and convincing.

C.

As to prong three, T.L.B. claims that the Division failed to provide her with housing and childcare assistance and offered her services simply in an attempt to develop corroborating evidence in support of its guardianship complaint. This claim is not supported by the record.

N.J.S.A. 30:4C-15.1(c) defines "reasonable efforts" as actions by the Division "to assist the parents in remedying the circumstances and conditions that led to the placement of the child and in reinforcing the family structure." Provision of services under the third prong "contemplates efforts that focus on reunification," K.H.O., supra, 161 N.J. at 354, and "may include consultation with the parent, developing a plan for reunification, providing services essential to the realization of the reunification plan, informing the family of the child's progress, and facilitating visitation. M.M., supra, 189 N.J. at 281. The reasonableness of the Division's efforts "is not measured by their success." D.M.H., supra, 161 N.J. at 393. T.L.B. essentially argues that DYFS should have provided daycare and housing assistance. However, as noted, she also alleges that any services provided by DYFS were part of an attempt to build a case against her to terminate her parental rights. These claims are, to a degree, contradictory.

The trial judge nonetheless found that the Division made reasonable efforts to provide services to the defendant. The judge noted that the Division continued to provide services to T.L.B. despite her continued failure to comply. T.L.B.'s failure to achieve reunification with Isaac and Sally was based upon her refusal to take advantage of the services provided by the Division. The trial judge also explained that DYFS examined alternatives to termination of parental rights and held that the third prong of the best interests test was satisfied.

Specifically, with regard to daycare, both Isaac and Sally were removed shortly after their birth, so it is unclear how T.L.B. would have benefited from daycare services. Also, defendant was unemployed at the time of Isaac's birth and removal. T.L.B. was provided with visitation opportunities and she only visited the children sporadically. As to housing assistance, the record reveals that T.L.B. routinely failed to provide the Division current and correct contact information and it was not until the middle of 2010 that Division representatives understood that the addresses T.L.B. provided were locations where she did not actually live. As a result, her claim that she needed housing assistance is disingenuous because her conduct was intended to lead the Division to believe she had stable housing.

Moreover, the Division provided services which included parenting classes, visitation, therapy, and psychological and psychiatric evaluations. In addition, the Division researched other placements for both children before placing them with a non-relative, foster mother. Despite being given these services, T.L.B. regularly failed to attend services and refused to develop parenting skills. She declined to attend therapy and to enroll in parenting classes even after Isaac was removed from her care. T.L.B's argument that she was not provided services is not supported in the record. The record reveals she was provided with multitude of services but that she consistently refused to participate and benefit from them. T.L.B.'s challenges to the trial judge's findings with respect to prong three are without merit.

D.

T.L.B. argues that DYFS failed to prove that termination of her parental rights would not do more harm than good, and, further, the trial judge ignored the "inherent harm that would occur as a result of termination." These arguments are without merit.

The statute's fourth prong mandates a determination as to "whether a child's interest will best be served by completely terminating the child's relationship with that parent." E.P., supra, 196 N.J. at 108. The court must examine the child's bond with both biological and foster parents. K.H.O., supra, 161 N.J. at 355. "[W]here it is shown that the bond with foster parents is strong, and in comparison, the bond with the natural parent is not as strong," termination may be appropriate. Id. at 363. "[A]fter considering and balancing the two relationships," the question becomes will "the child . . . suffer a greater harm from the termination of ties with her natural parents than from the permanent disruption of a relationship with her foster parents?" Id. at 355. Answering that question "necessarily requires expert inquiries specifically directed to the strength of each relationship." Ibid. (quoting J.C., supra, 129 N.J. at 25). Adequate proof as to prong four does not and "cannot require a showing that no harm will befall the child as a result of the severing of the biological ties." Ibid.

The trial judge relied extensively on the expert opinions offered by Dr. DeNigris. The trial judge found the bonding evaluations conducted by Dr. DeNigris indicated that Isaac would suffer harm if he were removed from his foster home, and that terminating T.L.B.'s rights would not do more harm than good. Specifically, Isaac had formed a strong and healthy bond with his foster mother, whereas T.L.B. did not have a strong bond with Isaac and had trouble displaying and reciprocating affection. While Sally was too young for a bonding evaluation, the foster mother had taken care of Sally and Isaac, and also had adopted another of their siblings. In regard to Sally, the trial judge held that the termination of defendant's rights would not do more harm than good since it was unlikely that T.L.B. could take custody of her in the foreseeable future.

The expert testimony of Dr. DeNigris concluded that the foster parent of the children created a strong and nurturing relationship with them and that rupturing those bonds would cause serious and enduring harm to the children. The proof regarding prong four of the statutory best interests test was clear and convincing.

Affirmed.


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