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New Jersey Division of Youth v. K.Y.B. and G.A

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 28, 2012

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
K.Y.B. AND G.A., DEFENDANTS-APPELLANTS. IN THE MATTER OF THE GUARDIANSHIP OF T.D.M.A., A MINOR.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-193-10.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued June 6, 2012

Before Judges Graves, J. N. Harris, and Koblitz.

In these consolidated appeals, defendants K.Y.B. (Karen) and G.A. (George) seek review of the Family Part's judgments terminating their parental rights to their developmentally disabled daughter T.D.M.A. (Tasha).*fn1 Both parents contend that plaintiff New Jersey Division of Youth and Family Services (the Division) did not prove by clear and convincing evidence the requisite statutory factors to establish that Tasha's best interests would be served by severance of their parental ties. We note that the Law Guardian supports termination of both parents' rights to Tasha. After considering the record in light of the applicable law, we are satisfied that the trial judge's findings and conclusions are firmly supported by substantial, credible evidence in the record as a whole. See, e.g., N.J. Div. of Youth & Family Servs. v. A.R.G., 361 N.J. Super. 46, 78 (App. Div. 2003), aff'd in part, modified in part, and remanded, 179 N.J. 264 (2004), certif. denied, 186 N.J. 603 (2006). Accordingly, we affirm the judgment against both parents.

I.

In July 2001, at birth, Tasha tested positive for methadone. By the time of trial, as recounted by the Division's witness Justine Cedeno, Tasha was diagnosed with a seizure disorder requiring daily medication and "routine follow-up[s] with a neurologist"; asthma requiring a pump inhaler, which is monitored by her primary care physician; a limp requiring that she be "seen by an orthopedic doctor"; crossed-eyes necessitating eye surgery; and urinary incontinence being treated by a urologist.

In 2005, the Division was informed that Tasha had been taken to a hospital emergency room for a convulsion where doctors discovered that she had low levels of seizure medication. Karen was instructed to immediately take Tasha to a neurologist for a follow-up examination, which she failed to do.

In April 2007, the Division confirmed that Karen tested positive for ingesting cocaine, marijuana, benzodiazepines, and opiates. She and George were not living together at that time, but George occasionally visited his daughter. Karen and Tasha resided with Tasha's aunt and grandmother in Newark where the three adults cared for the child. After an investigation, the Division determined that "the risk [of harm] to [Tasha] appear[ed] to be low" due to "the care of her mother, grandmother, and aunt." The Division, however, required that Karen comply with a drug treatment program and not engage in any drug use "other than methadone."

On September 20, 2007, George was arrested for a narcotics violation. This triggered a parole violation for a crime previously committed in New York, which resulted in George's incarceration from March 2008 to August 2009.

In February 2008, Karen was discharged from her outpatient drug treatment program because of non-compliance, including her continued abuse of cocaine and alcoholic beverages. In April 2008, Karen's methadone clinic contacted the Division after she screened positive for cocaine, opiate, and benzodiazepine use. The clinic also reported that Karen was not compliant with her treatment and that her attendance was sporadic.

That same month, the Division received an anonymous referral concerning Tasha's living arrangements. The referent alleged that drug dealers were visiting Karen's Newark home and that unknown persons were staying there in Tasha's presence. Karen agreed to a case plan where her mother and her adult daughter would oversee Tasha's care.

In May 2008, Karen was terminated from the Substance Abuse Initiative (SAI) program after failing to attend more than seventy-five percent of the classes and had three positive drug tests in four weeks for cocaine and benzodiazepine use. As a result of Karen's non-compliance with the SAI, she risked losing public assistance benefits.

On June 4, 2008, Karen failed to appear for an initial appointment at another drug treatment program. A few months later, she was arrested for assault, and was consequently incarcerated for several months. In November 2008, Karen failed to report to the Division. In December 2008, the Division located her and scheduled a substance abuse evaluation that she never attended. In January 2009, the Division again attempted to conduct Karen's substance abuse assessment, but again she failed to attend.

At some point between January 2009 and March 2009, the Division determined that Karen and Tasha were living at a friend's home in Newark. The dwelling allegedly had no heat or food. Upon further investigation, the Division found that Tasha and her mother were sleeping on a mattress on the floor and some of their belongings were stored in trash bags. However, because the home contained food and the Division found no safety hazards, it did not substantiate neglect. During the investigation, Karen informed a Division caseworker that she and Tasha had left her prior home several months earlier due to a drug raid in the building. Karen also revealed that she lost her welfare benefits as a sanction after failing to report to the welfare agency. She admitted heroin and cocaine abuse, and informed the Division that she had started using heroin when she was pregnant with Tasha.

The Division lost contact with Karen from March 4 to March 11, 2009. On March 11, 2009, the Division received a referral reporting that Karen was unable to care for Tasha and that the child was sleeping on a blanket on a mildew-infused carpet, which negatively affected her asthma. On April 13, 2009, the Division located Karen and Tasha living in an abandoned building with no heat. The Division informed Karen that she needed to attend a drug assessment the following day, but she failed to appear.

On April 16, 2009, the Division was granted custody of Tasha. The court found that Karen had a history of drug abuse, was consistently non-compliant with services, and could not provide stable housing for Tasha, thereby increasing Tasha's risk of neglect and abuse. Consequently, Tasha was placed in a non-relative resource home. Family reunification was the Division's goal at the time.

On April 28, 2009, Tasha's health was evaluated. She was in need of dental care, and was behind on receiving her immunizations. Her growth was abnormal and she was malnourished. She was suffering from bronchial asthma, a seizure disorder, and developmental delays. She needed regular treatment with a pediatric neurologist and a speech therapist.

On May 20, 2009, the court ordered the continued care and custody of Tasha with the Division. Karen was directed to attend substance abuse evaluations, submit to random urine screenings, and ordered to participate in parenting skills classes.

On July 29, 2009, the court held that the Division had proven by clear and convincing evidence that defendants had abused and neglected Tasha. Karen had failed to complete drug treatment and neglected to present a parenting plan. She had not complied with the Division's required services since April 2009 and had not located stable housing. George, who was still incarcerated in New York, was obviously unable to care for Tasha. George was required to contact the Division as soon as he was released so that supervised visitation could be arranged. The Division was granted the continued care and custody of Tasha.

In August 2009, Karen participated in a substance abuse assessment and tested positive for cocaine. The assessment revealed that she suffered from cocaine, alcohol, and opiate dependence. Karen informed her evaluator that she had been abusing alcohol for twenty years, cocaine for ten years, and heroin for nine years. She was unemployed and not looking for work. As a result of her evaluation, Karen was referred to an intensive outpatient drug treatment program. Subsequent to her substance abuse evaluation, Karen had only sporadic contact with the Division. On more than one occasion, the Division offered her visitation with Tasha, but Karen repeatedly declined.

Around the same time, George underwent a psychological evaluation with Dr. Denise M. Williams Johnson, Ph.D. He told Dr. Johnson that he and Karen were in a relationship from 1996 until 2009 and that he had abused heroin for more than thirty years, that he knew Karen lived a transient life-style, that both Karen and Tasha had been living in an abandoned building, and that Karen abused drugs. Nevertheless, George felt that it was appropriate for Karen to have unsupervised access to Tasha because "she would not hurt the kid."

Dr. Johnson had concerns regarding George's ability to parent Tasha, especially in light of his 1995 New York conviction for the attempted rape of a minor. Following that conviction, George never attended sex offender therapy or any other form of counseling following his conviction. Dr. Johnson opined that George had no insight into the harm that could befall Tasha and recommended that George attend individual therapy, participate in regular drug testing, and enroll in parenting classes. She also recommended that George enroll in formal sex offender treatment, but only after taking responsibility for having assaulted a minor. Any visits with Tasha should be supervised, and George should be forbidden to have any physical contact with Tasha. Overall, Dr. Johnson determined that George was unreliable, that he had problems living a responsible lifestyle, and that Tasha would be unsafe in his unsupervised presence.

In September 2009, Karen was again terminated from a drug treatment program because of non-compliance and failure to contact her counselor. In October 2009, Tasha's resource family -- her paternal aunt and uncle -- informed the Division that they did not intend to provide long-term care for Tasha.

On October 14, 2009, the court held a case management conference. At the time, George tested positive for morphine. Karen was ordered to attend a psychological evaluation, drug treatment, and parenting skill classes, and was told to locate employment and find stable housing. George was ordered to attend psychosexual therapy and parenting skills classes in addition to submitting to drug screenings and releasing his criminal record to the Division. The court further ordered Tasha's continued care and custody to remain with the Division.

On October 29, 2009, George was referred for a substance abuse evaluation, which he failed to attend. George was also referred to individual and group therapy. He also began attending supervised visitation with Tasha.

In January 2010, the court ordered George to submit to a drug screening, attend parenting classes, and comply with other Division requirements. Karen was ordered to make herself available to participate in the Division's services. The court permitted supervised visitation, and throughout January 2010, George took advantage by visiting with Tasha. Karen, however, did not.

On February 3, 2010, George failed to attend his substance abuse evaluation. While he did attend three individual therapy sessions, he failed to attend five other sessions.

On April 15, 2010, the court held a permanency and compliance review hearing. The Division presented its new permanency plan for Tasha of termination of Karen's and George's parental rights followed by select home adoption. The court determined that Karen had not complied with the required services, failed to complete drug treatment, and still neglected to present a parenting plan. She had not visited Tasha since April 2009 and had no communication with the Division since January 20, 2010. The court ordered that Karen complete an intensive outpatient drug program and a psychological evaluation.

That same day, George refused to submit to a drug screening claiming that it would likely evidence drug use. The court recounted that George had tested positive for drug use during other court hearings, refused to submit to a substance abuse assessment, lacked stable housing, and was not employed. Moreover, he had been skipping his substance abuse assessments, had not been attending individual therapy on a regular basis, and was at risk of repeating a sex offense. The court ordered George to attend a substance abuse evaluation and drug treatment. It ruled that the Division was not required to make further parenting skills referrals for George until he achieved three months of sobriety. On April 16, 2010, George tested positive for morphine.

In June 2010, the Division filed a guardianship complaint to facilitate its plan of adoption. George had just completed a detoxification program and informed the Division that he could not care for Tasha at that time because "he needed to take care of himself first." The Division referred George to an intensive outpatient substance abuse program and provided him with a bus card to assist him with transportation to the program. However, he did not attend.

In August 2010, Tasha was removed from her aunt's and uncle's home due to their disinterest in being long-term caregivers or a permanent resource for Tasha. George told the Division that he did not have any other caregiver suggestions. He did not offer himself as a caregiver and did not offer his father's residence, where he had been staying.

In September 2010, George completed his substance abuse assessment. The Division then referred him to a drug treatment program, where, on September 22, 2010, George tested positive for opiates. Also, the Division scheduled a substance abuse assessment for Karen on September 23, 2010, which she finally completed.

On October 6, 2010, Tasha's placement failed. She was placed in another temporary home until the Division resolved an allegation of possible sexual contact, based on a suspicion she had genital warts and genital herpes. Although additional medical testing indicated that Tasha did not have genital herpes, it was impossible to tell if Tasha had contracted genital warts because any warts that may have been present in the past had cleared up and she was determined to be in good health.

On October 7, 2010, George once again tested positive for opiates. Karen was referred for a substance abuse evaluation, which she failed to attend.

Also in October 2010, the Division sent letters to several of Karen's relatives asking that they cooperate with the Division's efforts to find a permanent placement for Tasha. None of them responded. Furthermore, the Division determined that Karen's mother did not have proper housing, so she could not be a family resource for Tasha.

On October 24, 2010, George appeared at a bonding evaluation with Tasha conducted by a psychologist, Dr. Peter DeNigris, Psy.D. Dr. DeNigris also conducted a psychological evaluation of George. Based on the evaluations, Dr. DeNigris opined that termination of parental rights followed by select home adoption was in Tasha's best interest. He cited George's poor judgment and long-term history of drug abuse as indicating that George could never properly care for Tasha. Dr. DeNigris was concerned that George withdrew from his parenting skills classes, counseling, and substance abuse treatment. Dr. DeNigris believed that George lacked a plan for Tasha's future, had not obtained a suitable home for her, lacked knowledge of her needs, and had not been a consistent parental figure in her life. Consequently, Dr. DeNigris concluded that these factors placed Tasha at risk of neglect.

Finally, Dr. DeNigris concluded that a healthy bond did not exist between George and Tasha. Accordingly, Dr. DeNigris determined that Tasha would not suffer harm if George's parental rights were terminated and that she could achieve permanency through select home adoption.

On December 21, 2010, Dr. DeNigris conducted a bonding evaluation of Karen with Tasha. The next day he conducted a psychological evaluation of Karen. Dr. DeNigris concluded that termination of Karen's parental rights followed by select home adoption was in Tasha's best interests. Karen had a ten-year history of substance abuse coupled with a criminal history that resulted in two incarcerations. She had not planned for Tasha's future, was unemployed, and had been living a transient lifestyle, all of which indicated that Division involvement was going to continue. Furthermore, despite the passage of two years, Karen lacked knowledge of Tasha's needs and also had been unable to rectify the factors that led to the Division's involvement.

According to Dr. DeNigris, a healthy bond did not exist between Karen and Tasha. Karen would be unfit to parent for the foreseeable future, and Tasha would not suffer harm if Karen's parental rights were severed.

In January 2011, the Division referred Karen and George for additional substance abuse evaluations. In that same month, the Division again referred George to a drug detoxification program, but he was non-compliant. The Division, nevertheless, continued to provide bus cards so George could attend the services.

On March 14, 2011, George's expert, Dr. Albert R. Griffith, Ed.D., conducted a bonding evaluation of father and daughter. Dr. Griffith noted that George was "not generous with praise" toward Tasha and that there was little, if any, personal interaction between the two. George did not express his love or affection, and in return Tasha did not display any signs of love or affection to him. Overall, Dr. Griffith determined that George could not safely parent due to his age, lack of cooperation, and refusal to attend treatment services. While Dr. Griffith believed that Tasha would suffer harm if George's parental rights were severed, he believed that the harm could be mitigated by phone contact with her father and therapy.

The guardianship trial was held on two days in late March 2011. Karen failed to appear. George left during the lunch break on the first day and did not return until the next day. On the second day of trial, George refused to submit to a drug screening after the morning session, and did not attend the afternoon session.

The Division presented four witnesses: a caseworker, a case supervisor, an adoption specialist, and Dr. DeNigris. Neither Karen nor George testified, but Dr. Griffith was called on George's behalf. The Division's employees outlined the history of the Division's involvement with the family, the services provided, Tasha's placement, and the parents' unsuccessful utilization of the Division's resources.

Dr. DeNigris testified consistently with his prior evaluations. Dr. DeNigris opined that both Karen and George exhibited poor judgment, endangered Tasha's well-being, and were not consistent caretakers. Moreover, he believed that Tasha did not have a stable bond with either parent, and that each did not understand her special needs. Although Tasha wanted to be reunited with George, Dr. DeNigris explained that she was too young to understand what was in her best interests. He determined that any harm she experienced by the termination of Karen's and George's parental rights would not be so severe or enduring that it could not be mitigated.

Tasha was described as doing well in her current resource home. Her behavior had improved, she no longer had outbursts, and had stopped wetting the bed. Tasha's resource parent took her to all of her appointments, met her needs, and provided her with "excellent" overall care. Although Tasha had only been with this resource parent for three months at the time of trial, she was considering adoption.*fn2

Dr. Griffith expressed concerns that George had not completed sex offender therapy and still abused drugs. These facts caused Dr. Griffith to believe that George could not safely parent Tasha. Furthermore, he determined that George did not have an understanding of Tasha's special needs. Additionally, Dr. Griffith explained that Tasha's relationship with George was lacking critical components. Nevertheless, Dr. Griffith acknowledged that Tasha wanted to reside with George, and therefore, Dr. Griffith believed that Tasha would be harmed if her relationship with George were severed, and recommended services to help her mitigate the loss.

On April 1, 2011, the trial court rendered an oral decision holding that the Division had satisfied all four factors of the best interests test by clear and convincing evidence, and terminated Karen's and George's parental rights. This appeal followed.

II.

Parents have a constitutionally-protected right to enjoy a relationship with, and care for, their children. N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 165-66 (2010). "Few forms of state action are both so severe and so irreversible" as termination of parental rights. Santosky v. Kramer, 455 U.S. 745, 759, 102 S. Ct. 1388, 1398, 71 L. Ed. 2d 599, 610 (1982). Because termination completely severs the relationship between the biological parent and child, the Division has the burden to prove, by clear and convincing evidence, that it has satisfied all four factors of the statutory test. N.J.S.A. 30:4C-15.1(a).

However, the right of parents to raise or manage the care of their children is not absolute. The State also has an interest in protecting the welfare of children through its parens patriae responsibility. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). Notwithstanding our recognition that parental rights are of constitutional dimension, In re Adoption of Children by L.A.S., 134 N.J. 127, 132 (1993), intervention by way of terminating parental rights may be necessary to protect children. Here, the Family Part's judgment to that effect is supported by clear and convincing evidence and we are obliged to affirm. In re Guardianship of K.H.O., 161 N.J. 337, 347-48 (1999).

A trial court's factual findings "should not be disturbed unless 'they are so wholly insupportable as to result in a denial of justice.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)). Thus, we must defer to the trial court's findings of fact so long as "they are supported by substantial, credible evidence." In re Adoption of a Child by P.S., 315 N.J. Super. 91, 107 (App. Div. 1998) (citation omitted). In contrast, the "trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 89 (App. Div. 2006) (quoting Manalapan Realty v. Twp. Comm. of the Twp. of Manalapan, 140 N.J. 366, 378 (1995)).

Termination of parental rights is governed by N.J.S.A. 30:4C-15.1(a). The legislation sets out a four-part test that must be met by clear and convincing evidence in order to terminate parental rights:

(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)(1)-(4).]

The statute demands that the best interests of the child govern whether termination is proper. The test is demanding, but not rigid. Instead, each case is "extremely fact sensitive" and the four factors "relate to and overlap with one another." K.H.O., supra, 161 N.J. at 348.

This analysis requires "particularized evidence" that is "clear and convincing" for all of the factors. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 280 (2007). Presumptions have no place in this judicial determination of parental fitness. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 606 (2007). The threat of harm facing a child must be based on clear and convincing evidence, not speculation. Id. at 608. Moreover, "all doubts must be resolved against termination of parental rights." K.H.O., supra, 161 N.J. at 347.

Karen and George appeal separately, and each is entitled to have a separate determination of whether the Division established its case by clear and convincing evidence. Parental rights are individual in nature; therefore, whether a person is fit to parent must be evaluated on an individual basis. M.M., supra, 189 N.J. at 288. In other words, one person's parental rights may not be terminated simply because the other parent is found unfit. Ibid.

George contends that the court erred in finding that the first factor of the best interests test was satisfied because no evidence existed that he ever harmed Tasha. Specifically, he argues that his incarceration was not a proper basis to terminate his parental rights, that the court erred by accepting Dr. DeNigris's testimony, that it was an error to cite to his criminal record, and that the court failed to explain how his relationship with Tasha would cause "continued" harm. Furthermore, he asserts that his failure to comply with services; his drug abuse and lack of employment; and his failure to secure housing only pertain to factors two and three of the best interests analysis. The Division and the Law Guardian disagree, as do we.

In determining whether the first factor of the best interests analysis is satisfied, the court can take into account psychological harm. N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 440 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002). It may also observe whether emotional harm will occur. N.J. Div. of Youth & Family Servs v. A.W., 103 N.J. 591, 605 (1986). Furthermore, the court need not wait until the child is "irreparably impaired" by parental abuse or neglect. In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999) (citation omitted).

Despite George's arguments to the contrary, his past crimes do have a bearing on his ability to provide a safe home for his daughter. George never attended any sex offender therapy or counseling for his conduct. These facts concerned Dr. Johnson and Dr. DeNigris, both of whom had performed George's psychological evaluations. Both evaluators believed that he could not safely care for Tasha and that he was at high risk to recommit a sexual crime.

We have held that the past conduct of a parent is both relevant and admissible when the court is determining whether there is a risk to the child's health and safely. N.J. Div. of Youth & Family Services v. I.H.C., 415 N.J. Super. 551, 573 (App. Div. 2010). In regard to George's history of sexual misconduct, it is unlikely that Tasha would be safe in his unsupervised presence.

Despite George's claims otherwise, his incarceration is directly related to the parent-child relationship and is relevant in determining whether a parent's rights should be terminated. L.A.S., supra, 134 N.J. at 136-37. In fact, incarceration affects whether a parent can perform the basic functions of the parental relationship. N.J. Div. of Youth & Family Servs. v. S.A., 382 N.J. Super. 525, 534 (App. Div. 2006) (citations omitted). Notwithstanding his age,*fn3 George's history of incarceration and inability to complete the Division's services indicates that he is at high risk for criminal recidivism. If he were reunited with Tasha, but later returned to prison, then Tasha would be left without a caretaker and would once again be exposed to instability in her life.

Even after George was released from prison, he never assumed a caregiver's role in his daughter's life. Although expressing an interest in that role, George did not have an understanding of Tasha's developmental needs or a plan for assisting her with her learning disabilities. Importantly, in June 2010, he informed the Division that he could not care for Tasha. He neither suggested alternative caregivers for Tasha nor offered himself or his residence as a placement.

While George alleges that the court erred by accepting Dr. DeNigris's testimony as proof of the first best interests factor, his own expert Dr. Griffith reached similar conclusions by opining that George could not safely parent Tasha. The Court has held that the mere potential for injury is a valid harm.

A.W., supra, 103 N.J. at 605. Here, George did not show interest, love, or support for his daughter, which was likely to continue throughout their relationship.

Moreover, George continued to abuse drugs and never fully complied with Division services. He failed to attend his substance abuse evaluations, refused to submit to drug tests, and had several positive drug tests. He failed to attend his intensive outpatient substance abuse program, admitted that he later stopped attending his substance abuse treatment and individual counseling, and refused to go to a drug detoxification program. His attendance at therapeutic sessions was sporadic.

George's ongoing drug problems and history of non-compliance with services indicated that his behavior had not been remediated. Even though he claims that these facts cannot be used to prove the requirements of factor one, the likelihood that a parent's neglectful or abusive conduct will continue into the future is relevant to the analysis. J.C., supra, 129 N.J. at 12.

The trial court relied on substantial credible evidence when it held that the Division satisfied the first factor of the best interests test with respect to George. The record reflects that George did expose Tasha to harm and that she would continue to be harmed in his presence. Additionally, the Division proved by clear and convincing evidence that Karen had neglected Tasha over a long period of time, that both parents struggled with drug addiction, and that neither parent had completed services. Furthermore, Karen had problems maintaining a residence and George spent time in and out of prison. Even when George was in the community and in touch with Karen, Tasha's needs went unfulfilled.

Karen argues that the Division failed to prove by clear and convincing evidence that it made reasonable efforts to reunify the family. Specifically, she contends that the Division did not fully investigate all possible placements and the Division did not properly investigate how Tasha contracted genital herpes.

Similarly, George contends that the Division failed to provide him with reasonable services and that the court failed to consider alternatives to the termination of parental rights. Specifically, George argues he was not provided with housing assistance, job training counseling, or substance abuse treatment. George also alleges that the trial court erred in not considering kinship legal guardianship because adoption was not a realistic option.

The trial court held that the Division had made reasonable efforts to help both parents correct the problems that led to the Division's involvement. Karen had been given evaluations and referrals "too numerous to count." She was offered visitation with Tasha that she never accepted. She disappeared while the Division was trying to provide her with services.

As to George, the court held that he had been provided with evaluations, parenting skills classes, substance abuse treatment, visitation, and transportation. Furthermore, the court considered various family members as alternatives, but explained that the potential caregivers failed to respond to the Division. The Division did examine Karen's mother and determined that her home was unsafe and improper for Tasha's special needs, and the grandmother never indicated that she wanted to care for her. Other members of Karen's family were ruled out based on their disinterest in caring for Tasha.

The third factor of the best interests test requires that the Division make reasonable efforts to provide services to help individuals correct the problems that necessitated placing the child outside of the home. N.J.S.A. 30:4C-15.1(a)(3). The court must also consider alternatives to the termination of parental rights. N.J. Div of Youth & Family Servs. v. K.L.W., 419 N.J. Super. 568, 580 (App. Div. 2011); N.J.S.A. 30:4C-12.1. Reasonable efforts include:

(1) consultation and cooperation with the parent in developing a plan for appropriate services;

(2) providing services that have been agreed upon, to the family, in order to further the goal of family reunification;

(3) informing the parent at appropriate intervals of the child's progress, development and health; and

(4) facilitating appropriate visitation. [N.J.S.A. 30:4C-15.1(c).]

Contrary to both parents' contentions, they were provided with a full spectrum of services, which satisfied the Division's burden. "The diligence of [the Division's] efforts on behalf of a parent is not measured by their success." D.M.H., supra, 161 N.J. at 393. Here, neither parent expressed a willingness to actively attend services despite the Division's provision of a substantial amount of offerings.

In addition, the Family Part considered alternatives to the termination of parental rights. There were no available or interested relatives who wanted to explore either adoption or kinship legal guardianship. There were simply no alternatives available for the court to consider.

Finally, while Karen contends that the Division failed to explore how Tasha contracted genital herpes, the record reflects that upon examination, she did not have genital herpes. Similarly, if she did have genital warts, the condition cleared up on its own leaving nothing to investigate. The court observed that Tasha's outbreak of genital herpes or warts was not the result of an assault or improper conduct.

Karen and George argue that the Division failed to prove by clear and convincing evidence that the termination of parental rights would not result in more harm than good. Specifically, Karen alleges that the Division did not conduct a bonding evaluation with the resource parent caring for Tasha at the time of trial and that no expert could appropriately testify whether she would be harmed if Karen's parental rights were severed. In addition, Karen argues that the court erred in terminating her parental rights because there was no prospective adoptive family at the time of trial and that adoption was unlikely due to Tasha's age and disabilities.

In a related argument, George contends that because the Division presented no evidence of abuse by George and because the Division did not provide reasonable efforts, the fourth factor of the analysis was not satisfied.

The trial court held that the Division satisfied the fourth factor and that Tasha needed permanency. Dr. DeNigris concluded that healthy bonds did not exist between Tasha and her parents. Similarly, Dr. Griffith did not believe that a healthy attachment bond existed between George and Tasha. Positive progress was being made in foster care and the court was confident that Tasha would be placed in a permanent home in due course. Because her parents would not be able to provide a safe and stable home in the future, the court found that Tasha should be allowed to pursue a safe and stable placement free of their parental rights.

The fourth factor of the best interests test requires that the Division show that the termination of parental rights "will not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4). Thus, the court examines whether the child will experience harm if the parental rights are terminated. K.H.O., supra, 161 N.J. at 345-46. If a child's interests will be best served by the termination of his or her parental rights, then this aspect of the analysis is satisfied. Id. at 345. The inquiry is not whether no harm will occur if the parental rights are terminated. K.H.O., supra, 161 N.J. at 355. Furthermore, a child's need for permanency and stability is of great consideration. M.M., supra, 189 N.J. at 281.

As a threshold matter, Karen cites New Jersey Division of Youth and Family Services v. E.P., 196 N.J. 88, 92 (2008), in support of her appeal. In E.P., the New Jersey Supreme Court reversed our decision to terminate the parental rights of a drug-addicted mother to her daughter. Ibid. The Court based its ruling on the evidence of a strong and loving bond that existed between the defendant and her daughter and "because a permanent placement with an adoptive family [was] nowhere in sight." Ibid. It concluded that there was no benefit from the termination of the defendant's rights and that the "mother's love and emotional support" sustained the child. Id. at 109-110.

These facts are not analogous to the present case. For example, Karen declined visitation with Tasha for many months and did not attend the guardianship trial. More importantly, Dr. DeNigris concluded that Karen did not have a stable bond with Tasha.

In general, when a child is harmed by his or her parents, and those parents have not corrected the conditions that caused the harm, and when the child has bonded with a foster parent in a stable home, the termination of parental rights will not do more harm than good. Id. at 108. While it is true that no bonding evaluation with Tasha's current caretaker was conducted, at the time of the guardianship trial Tasha had only been residing with that resource parent for a few months. As such, a bonding evaluation would have been premature.

We conclude that this case represents one of the few instances where a comparative bonding analysis is not required. N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 440 (App. Div. 2009). The expert opinion that Tasha had not bonded with her parents in any significant way supports this view. Additionally, the record indicates that there is no prospect of reunification with the parents in the foreseeable future, despite the lengthy opportunity the Division gave them to work towards that goal.

Although Tasha did not have an adoptive parent prepared to proceed with her permanent care at the time of trial, her current resource parent was then identified as a strong possibility. Allowing Tasha to be free for adoption increases the likelihood that she will achieve permanency in the future. Thus, the underlying fundamentals of the best interests test, to provide a child with an opportunity to find a permanent and stable home, were satisfied. E.P., supra, 196 N.J. at 92.

Finally, George's argument is similarly without merit that the court erred in holding that the fourth factor was satisfied because factors one and three of the best interests test were not satisfied. The Division proved that George harmed Tasha and it provided George with reasonable services aimed at reunification.

The remaining contentions of Karen and George are sufficiently without merit to warrant further discussion. R. 2:11-3(e)(1)(E).

Affirmed.


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