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

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 13, 2012

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
L.T.S., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF A.J.P. AND K.D.S.P., MINORS.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FG-12-103-10.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 23, 2012

Before Judges Axelrad, Sapp-Peterson and Ostrer.

L.T.S. (Leslie) appeals from an order entered April 27, 2011 following a three-day trial terminating her parental rights to her daughters, A.J.P. (Ally) born November 7, 2000, and K.D.S.P. (Kay) born October 10, 2002.*fn1 Leslie challenges the court's findings on each of the four prongs of the statutory test for termination of parental rights. N.J.S.A. 30:4C-15.1a(1), (2), (3) and (4). As we discern substantial credible evidence in the record to support Judge Robert P. Figarotta's decision terminating parental rights, we affirm.

I.

In summary, the trial in this case involved the disputed impact of Leslie's mental illness on her ability to serve as a parent for Ally and Kay, who themselves suffer from behavioral health issues. The children were removed from their mother's home in September 2007 and remained in DYFS's continuous custody thereafter. The Division's initial goal was reunification; it shifted to a plan for kinship legal guardianship in June 2009; and in June 2010, filed its complaint for guardianship. Leslie challenged the State's evidence regarding the seriousness and persistence of her mental illness; her inconsistent effort to address her mental illness; the adequacy of the Division's efforts to secure treatment and supports for her; and the balance between the undisputed harm the children would suffer from severing their strong attachment to their mother, with whom they both wished to live, and the benefit to them of terminating Leslie's parental rights and freeing them for adoption, the prospects of which were complicated by the children's behavioral health issues. We address the record evidence in the context of our evaluation of the four prongs.

Leslie raises the following points on appeal:

I. THE TRIAL COURT'S TERMINATION OF THE MOTHER'S PARENTAL RIGHTS WAS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE AND TESTIMONY AT TRIAL.

A. The Trial Court Erred in Finding that DYFS Had Demonstrated, By Clear And Convincing Evidence, That the Safety, Health or Development of the Children Had Been or Would Continue to be Endangered by the Parental Relationship with the Mother or that the Mother was Unwilling or Unable to Eliminate any Such Harm.

B. The Trial Court Erred in Failing to Adequately Consider Alternatives to Termination of Parental Rights.

C. The Trial Court Erred in Concluding that DYFS Had Demonstrated, by Clear and Convincing Evidence, that the Termination of the Mother's Parental Rights Would Not Do More Harm Than Good.

The Law Guardian also seeks reversal of the court's judgment, arguing the Division failed to satisfy prongs two, three and four; specifically regarding prong three, the Law Guardian argues the court failed to consider kinship legal guardianship (KLG) as an alternative to termination of parental rights.

II.

Our scope of review is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). We defer to the trial judge's factual findings based on the judge's familiarity with the case, opportunity to make credibility judgments based on live testimony, and expertise in family and child welfare matters. See N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008); Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). We will affirm the Family Part's decision to terminate parental rights when substantial, credible evidence in the record supports the court's findings. E.P., supra, 196 N.J. at 104.

The Division bears the burden to establish by clear and convincing evidence four prerequisites to terminating 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) [DYFS] 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-15.1a.]

See also N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-10 (1986). These four, often overlapping elements, "provide a comprehensive standard that identifies a child's best interests." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). A parent's right to raise his or her child is constitutionally protected. Id. at 346. However, that right may be terminated upon a showing by clear and convincing evidence that the child is at risk of serious and lasting future harm under the four-prong statutory test. In re Guardianship of J.C., 129 N.J. 1, 10 (1992).

A.

To meet the first prong of the termination statute, the State must show a harm that threatened the child's health and that it will likely have continuing deleterious effects on the child. K.H.O., supra, 161 N.J. at 348. "Although a particularly egregious single harm can trigger the standard, the focus is on the effect of harm arising from the parent-child relationship over time on the child's health and development." Ibid. The absence of physical abuse or neglect is not conclusive; the court also must consider the potential for serious psychological damage. A.W., supra, 103 N.J. at 605; 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); In re Guardianship of R.G. & F., 155 N.J. Super. 186, 194 (App. Div. 1977).

"A parent's withdrawal of solicitude, nurture, and care for an extended period is in itself a harm that endangers the health and development of the child." In re Guardianship of DMH, 161 N.J. 365, 379 (1999). The "relevant inquiry focuses on the cumulative effect, over time, of harms arising from the home life provided by the parent." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 289 (2007).

Judge Figarotta found the Division satisfied prong one by proving generally that Leslie provided a "marked lack of supervision" of her children, and specifically, that Leslie left Ally and Kay home alone for several days in June 2007. We are satisfied there was sufficient evidence to support that finding.

The record reflects that on June 11, 2007, Carteret Police contacted DYFS to express concern about Leslie's inadequate supervision of Ally and Kay, as well as their two older brothers, then fifteen and sixteen years old.*fn2 After investigating, DYFS found Leslie had left the home for three days and "made no formal arrangements for adequate adult supervision" of her children. The investigation revealed that Leslie left the children alone repeatedly. Ally told a worker her mother would leave the home and "not come back the next day, next day, and next day." Ally was also apparently denied appropriate dental care, as the investigation also revealed that Ally's teeth appeared to be "rotting and discolored."

Leslie told a DYFS caseworker that she was not employed, received Social Security, and had been diagnosed as a paranoid schizophrenic about five years earlier; she had been prescribed psychotropic medications but had run out of medication; she admitted not taking her medicine everyday because it made her sleepy and unable to care for Kay; and she claimed she currently attended therapy at Trinitas Hospital in Elizabeth. A hospital representative reported later to DYFS that Leslie was diagnosed with undifferentiated schizophrenia and was prescribed medicine for psychosis, anxiety and depression, but her case was closed in January 2006 after she stopped attending appointments.

Although the Division's initial response to the neglect was to conclude the children were safe, it ordered psychological and psychiatric evaluations of Leslie. On August 21, 2007, at the Division's request, Dr. Alexander Iofin conducted a psychiatric evaluation of Leslie, leading to a September 25, 2007 report. Although Leslie did not appear to be psychotic or acting under the influence of internal stimuli, she reported "she is suffering from paranoid ideation as well as visual and auditory hallucinations," and described visualizing three adult males, who she knew were not real, commanding her to kill herself. She also reported significant mood swings, depression, and anxiety, and admitted a history of noncompliance with medications. She reported an inpatient psychiatric hospitalization in 2003 and outpatient treatment on and off. She stated she was physically abused by paramours, sexually molested by an uncle and other adults, and raped twice.

Dr. Iofin concluded that Leslie suffered from undifferentiated schizophrenia, and a personality disorder NOS with schizoid and schizotypal features. He opined that the command type hallucinations could include commands to hurt the children as well as herself, and "she can only be considered for unsupervised handling of her children when she has documented follow-up with mental health providers, has documented compliance with medications . . . and her good response to this treatment with full disappearance of her visual and auditory hallucinations."

Upon receiving Dr. Iofin's report on September 26, 2007, DYFS determined that Leslie's children were in imminent danger and secured their emergency "Dodd removal." N.J.S.A. 9:6-8.29. When a Division worker met with Leslie at her home before the removal, she insisted that "she does not need anyone telling her when or how to take her medicine." She reported that when she felt depressed, she would go into her room and sleep all day.

Upon the Division's request, the court entered an order to show cause on September 28, 2007, removing the children based on Leslie's failure to be engaged in mental health services, but granting liberal visitation. At a subsequent fact-finding hearing in January 2008, Leslie stipulated that she had "neglected the children by leaving them home alone for several days without supervision."

Thus, there was ample support for the court's conclusion that the first prong of the test was met. The Law Guardian does not disagree.

B.

With respect to the second prong, the Division was required to prove that defendant was "unwilling or unable to eliminate the harm facing the child" or was "unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm." N.J.S.A. 30:4C-15.1a(2). The second prong is aimed at determining whether the parent has "cured or overcome the initial harm that endangered the health, safety, or welfare of the child, and is able to continue a parental relationship without recurrent harm to the child." In re Guardianship of K.H.O., supra, 161 N.J. at 348. Alternatively, the court must determine whether "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." Id. at 348-49. The court is not required to wait "until a child is actually irreparably impaired by parental inattention or neglect." In re Guardianship of DMH, supra, 161 N.J. at 383. Satisfying this prong does not depend on a finding of moral culpability. We have previously recognized the sad reality that a morally blameless parent's significant, but intractable mental disabilities may render him or her unable to parent. See A.G., supra, 344 N.J. Super. at 439.

Judge Figarotta found "a real marked lack of understanding as to [Leslie's] need for treatment . . . and that same reluctance to recognize her problems continues to this day." Although the judge found that Leslie engaged in substantial treatment at Raritan Bay Mental Health Center (Raritan Bay) in 2007 and 2008 and achieved significant progress, she was thereafter inconsistent with services, medication, and therapy and that she lacked commitment to manage her mental illness. As a result "she's having basically the same problems that she was having four years ago."

Is she in the foreseeable future able to deal with these children[?] After looking at everything that's been presented to me, the answer to that question, as far as I'm concerned, is no. She hasn't acknowledged her own problems. She can't provide for herself. She can't deal with her day-to-day problems. She struggles to exist as she current[ly] is, and to add two children to that stressful situations leads to my conclusion that she cannot in the foreseeable future parent these children. She hasn't been able to get her life together in four years. Prior occurrences are the best predictor of what's going to happen in the future. If she still doesn't recognize that she's got these problems and deal with them, she can't deal with her own life, much less the life of two children[.]

He concluded that her inability to consistently address her mental illness prevented reunification, and the delay in securing a permanent placement for the children caused them harm.

We discern sufficient credible evidence in the record to support this finding. We recognize the issue was strongly contested, although Leslie did not present affirmative expert testimony at trial, as the court barred her from doing so because of her late disclosure of witnesses.*fn3 Leslie challenged the accuracy of Dr. Iofin's diagnoses of psychosis, and argued she suffered only from depression. She disputed the extent to which her mental illness impaired her ability to parent.

However, even those experts who were unable to confirm Dr. Iofin's initial finding that Leslie suffered from psychosis and hallucination nonetheless opined that Leslie suffered from severe psychological disorders that rendered her unfit to parent. The record contains the psychological report of Dr. Mark H. Seglin, who found, based on his psychological testing, Leslie was "primarily suffering from a personality disorder, rather than from psychosis." He opined, "Indeed there is almost nothing in any of her personality testing to suggest classic psychotic or schizophrenic symptoms."

On the other hand, Dr. Seglin opined Leslie suffered from "a moderately severe mental disorder" which he described as "Schizoid Personality Disorder, and Narcissistic Personality Disorder with Negativistic (Passive-Aggressive) Personality Traits, and Paranoid Personality Features[.]" Although he suggested Dr. Iofin re-examine her in light of his report, he nonetheless concluded she suffers from "pervasive difficulties of adjustment," and that she "by no means emerges as a fit mother and she looks particularly problematic with respect to coping with three troubled children." He recommended intensive psychological treatment and counseling, and parenting skills education.

Also supporting Dr. Iofin's diagnosis was Leslie's past medical records, admitted into evidence. These included records from Trinitas Hospital from May 2005, when Leslie presented and requested admission, reporting command hallucinations. The medical record stated, "Pt. reported that she has 'voices in my head' & sometime 'not wanting to live' sometimes voices tell her to kill herself. This is going on for a long time so pt. has learned to ignore the voices." The hospital record also stated, "When she forgets to take her meds her Sx [symptoms] worsen." She was thereafter unresponsive to outreach from the hospital.

There was substantial credible evidence of non-compliance with treatment after the children were removed. Leslie entered Raritan Bay in November 2007. Raritan Bay recommended that she attend its partial care program five days a week, along with medication monitoring. In February 2008, Raritan Bay staff noted Leslie's attendance had been "sporadic." Leslie was also referred to Multicultural Community Services (MCS) in Edison to receive parenting skills education. She failed to attend any appointments with MCS after January 10, and MCS therefore closed the case on February 25, 2008 "due to the client's lack of participation in MCS services[.]"

Leslie's participation at Raritan Bay did improve. After a hearing in September 2008, the court entered a permanency order finding reunification to be an appropriate and acceptable plan. Leslie was "engaged with mental health services," and Raritan Bay had reported that Leslie's attendance had improved, she had "shown improvement in all areas of treatment," was "compliant with treatment," and "readily agreed to have her medications monitored[.]" The court ordered a psychiatric evaluation "to determine when reunification should occur."

However, the evaluating psychiatrist, Dr. Vivian Chern Shnaidman, opined that Leslie was not yet ready to be reunified with her daughters. Dr. Shnaidman diagnosed Leslie with chronic undifferentiated schizophrenia and found she was "essentially noncompliant with psychotropic medication." While she was "currently fairly asymptomatic . . . her symptoms can change at any time. Schizophrenia, like all psychiatric disorders, is cyclical, waxing and waning in response to both the internal (physiological) as well as the external environment." Dr. Shnaidman found that unless Leslie were treated with long-term new generation antipsychotic medicine, "she will not be capable of caring for her children in the long term."

Leslie then began to fall behind with her mental health treatment and services. She missed five days of sessions at Raritan Bay in October 2008 and twelve days in November 2008. She missed twenty days between December 2008 and February 2009, and thirty-one days between March 2009 and July 2009. During her absences from the program, Leslie's medication compliance was unknown.

The court had also ordered Leslie to attend parenting skills training at Catholic Charities. However, on March 17, 2009, Catholic Charities closed Leslie's case because she failed to attend the parenting group sessions.

In March 2009, Leslie obtained her own psychological examination by Jonathan Mack, Psy.D., who also performed a bonding evaluation of the children with Leslie and their current caregiver, their great-aunt, with whom Kay had been living since January 2008 and Ally had been living since April 2009. Dr. Mack found that Leslie did not have evidence of schizophrenia, psychotic process, or marked mood disorder, although "there is some confirmation of this from the history," and Leslie was "now fit to regain custody of all her children." Although the report was not admitted into evidence at trial, Dr. Mack's opinion that Leslie should be downgraded from her intensive outpatient program to twice weekly individual psychotherapy and approximately biweekly medication monitoring, led to the termination of her intensive outpatient treatment at Raritan Bay. Her treatment was reduced to three days a week; her medications would no longer be monitored due to the change in schedule; but, she verbally committed to complying with her medication regimen.

Following a two-day hearing on June 2 and 3, 2009, the court found KLG for the great aunt, then almost seventy years old, to be an appropriate and acceptable plan. The court found it was not safe for the children to return to their mother because it had not received a recommendation for immediate reunification. The court ordered the Division to "convene a family team meeting including the service providers and Dr. Mack to determine a road map for services and the long term plan[.]"*fn4

DYFS continued to make efforts toward reunification of Leslie with her daughters. In September 2009, the family was referred to Catholic Charities for family preservation services to work on parenting and structure. However, less than a week later, Catholic Charities terminated the intervention because Leslie was not home, did not make herself available to meet, and could not be reached by telephone.

In October 2009, Raritan Bay terminated its services for Leslie stating that DYFS no longer mandated her full-time day treatment, Dr. Mack had recommended outpatient services and medical monitoring, and Leslie was set up with Catholic Charities for in-home services.

On April 8, 2010, the court entered a third permanency order. Because the great aunt withdrew her interest in KLG, the court found termination of parental rights followed by adoption by another relative and his wife, within ninety days to be an appropriate and acceptable permanent plan for Ally and Kay. The court noted it would not be safe to return the children to Leslie in the foreseeable future because, since the end of September 2009, she had been "non-compliant with all services, including mental health treatment and medications."

On April 20, 2010, Leslie self-referred to Trinitas, where she reported having suicidal thoughts two weeks prior (which coincided with her court appearance), panic attacks, and depression. She was prescribed Paxil, and referred to services with the daily living skills group, which she did not attend. Leslie eventually followed up on the treatment from her visit in September, and began meeting with a physician for medication monitoring.

Two experts called by the Division testified at trial that Leslie's mental illness and her failure to address it adequately disabled her from parenting her daughters. Dr. Delfin Ibanez, a psychiatrist, diagnosed Leslie with schizoaffective disorder, depressed type, psychotic disorder, and narcissistic personality disorder with avoidant, paranoid and schizoid features. Dr. Ibanez expressed concern about Leslie's denial of psychotic symptoms, stated, "One of the most significant barriers for the chronically mentally ill is the acceptance of their disorder and medication compliance." He opined:

In the absence of a consistent partial treatment program with medication management, in the absence of a stable and appropriate partner to assist [her], and in the absence of [her] personal responsibility to care for herself - she would not be endorsed as an independent caregiver to her children, especially considering their special needs.

Dr. Ibanez testified that by controlling the depression, the recurrence of the psychosis could be prevented, and he recommended continued treatment.

Dr. Jason Fleming, a psychologist, performed a psychological evaluation of Leslie. He testified that Leslie reported to him that she had suffered from depression, anxiety, and poor mental health for much of her life, but denied she ever experienced command hallucinations. Like Dr. Ibanez, Dr. Fleming was concerned about "her denial of symptoms." Dr. Fleming found her amenability to treatment was "less than average." He found that "someone dealing with . . . that degree of emotional distress is . . . likely to have a significantly more difficult time caring and tending to and being aware of the issues of younger children who are also in their care." Ultimately, Dr. Fleming opined Leslie did not demonstrate positive and sustained progress over three years, and would not likely do so in the future. He opined that "[g]iven her history with the poor compliance and sustaining any positive momentum I am not convinced, regardless of her current diagnosis that she is capable of managing the responsibility of her own life while also managing the responsibility of parenting two young girls."

The Law Guardian argues that Leslie's symptoms could have been sufficiently managed with appropriate mental health support. Pointing to Leslie's success at Raritan Bay, the Law Guardian argues that partial care services, which could have checked on Leslie's medication compliance on a daily basis, should have been tried before concluding that Leslie was unable to adequately address her mental illness. We are unpersuaded. While one may assert that daily in-home medication management might have been successful, we shall not disturb the trial court's conclusion that after over three-and-a-half years, Leslie demonstrated insufficient commitment to consistent treatment, which had already been offered to her from a variety of providers in a variety of settings.

In view of the expert opinions, and the evidence of Leslie's treatment history, we discern sufficient credible evidence in the record to support the court's finding that prong two was met. The evidence supported the conclusion that Leslie suffered from chronic and sometimes severe mental illness that disabled her from safely caring for her daughters, and she was unwilling or unable to comply with prescribed treatment that might have enabled her to appropriately manage, if not overcome, her illness.

C.

The court found that prong three was met, stating, "[T]he Division has made every effort to provide her with the services that she needs over the years." The third element has two parts. First, the Division must make "reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home." N.J.S.A. 30:4C-15.1a(3). Second, the court must have "considered alternatives to termination of parental rights." Ibid.

With respect to the first part, "reasonable efforts" consist of attempts to assist a parent in remedying the circumstances and conditions that led to the child's placement. N.J.S.A. 30:4C-15.1c. These include, but are not limited to: developing a plan for services; providing services to further family reunification; informing the parent at appropriate intervals of the child's progress, development and health; and facilitating appropriate visitation. Ibid. The statute requires that the Division's efforts be reasonable; not that they be successful. In re Guardianship of DMH, supra, 161 N.J. at 393.

Leslie does not appear to dispute that the Division satisfied this first part of prong three. Leslie and the Law Guardian argue instead the Division failed to consider alternatives to termination of parental rights by failing to pursue KLG by Leslie's brother, W.S. (Wallace). We disagree.

At the time of trial, DYFS was in the process of exploring Wallace as a placement. Deanna Stickle, a DYFS adoption supervisor, and Division Worker Nancy Camero, testified Wallace was in his late twenties, had stable employment at a security company, and lived in a long-term relationship with a woman with whom he had two children. Wallace had frequent contact with Ally and Kay before their removal. He volunteered as a placement after other relative placements were unsuccessful. Paperwork and background checks were completed and given to the local office manager to review, but a walk-through and home study still needed to be performed. Stickle testified that they had only discussed adoption, but if Wallace only wanted KLG, DYFS would explore that option.

The potential availability of KLG cannot be used as a defense to the termination of parental rights. N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 512-13 (2004).*fn5

The plain language of the [KLG] Act, as well as its legislative history, establish kinship legal guardianship as a more permanent option than foster care when adoption "is neither feasible nor likely" and "kinship legal guardianship is in the child's best interest." Conversely, when the permanency provided by adoption is available, kinship legal guardianship cannot be used as a defense to termination of parental rights[.] [Ibid. (internal citations omitted).]

Here, DYFS did seek alternatives to adoption. For two years, DYFS sought reunification. DYFS also sought KLG with the great aunt, but the aunt withdrew. So long as adoption is feasible, the Division is not compelled to seek KLG.

D.

Judge Figarotta acknowledged that the prong-four analysis was "[t]he hardest part of this case[.]" He acknowledged "there is a real relationship between [Leslie] and the two girls" and termination of parental rights would be "hurtful" and severing the relationship "is going to cause the children problems." Yet, the court concluded that Leslie would be unable to assume the role of parent, and the children's interests in permanence outweighed the harm from termination. The court found the children suffered significant harm from the continuing uncertainty in their lives. He concluded that termination would lead to a "permanence and stability" ideally through adoption by "somebody who knows them, understands their situation, and can deal with what is necessary for them to receive the counseling and therapy necessary[.]"

Leslie and the Law Guardian argue the court erred and that terminating Leslie's parental rights will do more harm than good, in light of the strong mutual bond between Ally and Kay and their mother, and the uncertain prospects for adoption. See N.J.S.A. 30:4C-15.1a(4). Leslie and the Law Guardian argue the court's decision will render the children legal orphans, in violation of the principles set forth in E.P., supra, 196 N.J. at 106.

We disagree, and discern sufficient credible evidence in the record to support the court's conclusion. The fourth prong "cannot require a showing that no harm will befall the child as a result of the severing of biological ties." In re Guardianship of K.H.O., supra, 161 N.J. at 355. It is, concededly, a "painfully difficult" decision that necessarily requires expert opinions, but is ultimately vested in the trial judge who is most familiar with the case. Ibid. (quoting In re Guardianship of J.C., 129 N.J. 1, 25 (1992)).*fn6 This prong "serves as a fail-safe against termination even where the remaining standards have been met." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 609 (2007).

"The question ultimately is not whether a biological mother or father is a worthy parent, but whether a child's interest will best be served by completely terminating the child's relationship with the parent." E.P., supra, 196 N.J. at 108. In E.P., the Court found it was error to sever a thirteen-year-old girl's "certain and intense bond to her mother," who struggled with drug addiction, marked by multiple relapses, homelessness, and unemployment, and showed little prospect of ever being able to serve as a fit parent, where the girl had but a "slender prospect of adoption" because of her age and unabated behavioral problems including suicidal behaviors. Id. at 110. In that case, the "unlikely possibility of permanency in the future" did not outweigh the "strong and supportive relationship with a natural parent." Id. at 111.

It was undisputed at trial that the girls had a strong attachment to their mother, who offered them love and emotional support, and they would suffer substantial emotional loss as a result of termination of Leslie's parental rights.

On the other hand, there was sufficient credible evidence that the emotional harm that would be caused by terminating Leslie's rights would be offset by the good that would follow from termination. The record evidence demonstrated that after removal from Leslie's care, the children manifested significant behavioral and psychological problems.*fn7 There was ample evidence in the record, including the opinion of Dr. Fleming, upon which to conclude that Leslie, who inconsistently managed her own mental illness, would be ill-equipped to assist her daughters in coping with their own behavioral health challenges. Rather, the children faced significant risk of harm if returned to their mother.

Ally lived in five different homes between September and November 2007, and was admitted to a residential program in January 2008 for behavior modification therapy. She was diagnosed with oppositional defiant disorder and depressive disorder. She exhibited various out-of-control behaviors, and tantrums. Kay also was diagnosed with disruptive behavior disorder and adjustment disorder with mixed disturbance of emotions and conduct. She received in-home therapy for defiant, disruptive behavior. She tried to leave her foster home. She physically attacked a MCS staff member following visitation in November 2007.

In January 2008, Kay began living with her great aunt. Ally eventually joined them in April 2009. Visitation by Leslie occurred most weekends for hours at a time. However, the aunt was an elderly woman who ultimately decided in December 2009 to withdraw from the plan of KLG because of her own age and limitations.

The children were transitioned into another family member's home in June 2010. However, that family member declined to supervise visitation, which instead occurred off-site. After a visit in July 2010, Ally acted out in such extreme and violent behaviors that she was hospitalized. The foster parents then requested the removal of both girls from their home. Also, as a result of that episode, Leslie's visitation with the children was suspended based on the recommendations of Catholic Charities, which concluded the visits were "emotionally difficult for the children," and were counterproductive to the girls' need to focus on adjusting to a new placement.

The children's aggressive behaviors continued. Ultimately, the girls were separated. Kay was placed in a therapeutic home, and Ally was placed in a residential treatment center. At the time of trial, both girls were receiving psychotropic medication to control their aggressive behaviors. Ally had been in residential treatment for approximately eight months of a total recommended period of six to eighteen months. Kay had been in a therapeutic treatment home for approximately nine months in a program that generally lasted a year.

However, a DYFS witness testified that adoption-related planning could occur while the girls remained in their current settings. Division witnesses also testified that the girls' behaviors had been improving while in treatment. Kay had expressed an interest in becoming a part of her therapeutic foster parents' home, reflecting her amenability to attaching to a new family. The Division's adoption specialist, Deanna Stickle testified that delays in clarifying the children's future - whether they would be adopted after their mother's rights were terminated, or would be reunified with their mother - had caused a "standstill" in therapy.

Dr. Fleming testified that the children would benefit from the permanent option of adoption, ideally with a family member who could voluntarily allow Leslie to maintain a relationship with her children "without having to bear the responsibility of being their primary caretaker." Dr. Fleming acknowledged that a termination of parental rights that resulted in a termination of all contact with Leslie "could likely exacerbate" the girls' problems. He nonetheless opined that even if continued contact with Leslie could not be guaranteed, the children's need for permanency predominated,

In this case, given . . . the three and a half years of this DYFS involvement and visitations or not visitations and issues with the children and issues with [Leslie], . . . I think that their need for permanency outweighs just . . . keeping it like this. The children are continuing to struggle. In my opinion, [Leslie] is not a viable option for them to go home to, currently, or in the very near future . . . . I don't see the benefit of prolonging this longer. I think it's just a more detrimental situation for the children.

Dr. Fleming opined that notwithstanding the girls' attachment to their mother, and their awareness of their removal, they were still capable of forming positive attachments to adoptive parents.

Moreover, unlike in E.P., supra, the prospects for adoption of Ally and Kay were not "slender" according to Stickle's testimony. The Division had identified seven homes through its Select Home Adoption process that would be interested in taking Ally and Kay, cognizant of their behavioral health issues, with the ultimate goal of adoption, once parental rights were terminated. Stickle testified that she has had success in placing children similar to Ally and Kay.

On the other hand, the Division was actively exploring Leslie's brother Wallace as a potential adoptive parent. As noted above, the Division's review of his suitability was ongoing during trial. If approved, Wallace would satisfy Dr. Fleming's notion of an ideal placement - one in which the children would achieve permanence with a fit parent, while likely maintaining contact with Leslie.

The record before us includes a post-trial order from January 2012 by Judge Barbara Stolte in which the court approved a plan of relative home adoption with Wallace. The court ordered that "sibling visitation with maternal uncle shall continue," "[Kay] shall transition to the maternal uncle first," and the Division shall work with Ally's residential treatment center "to look for an appropriate home setting should [Ally] be released."*fn8 Although obviously not a part of the trial record, we consider the January 2012 order consistent with Rule 2:6-11(f), which allows a party to advise the court of "any change in the placement status of the child" pending appeal. Leslie did not move to strike the order from the record, but instead responded to it, arguing that it did not tip the balance in the Division's favor.*fn9 The apparent progress toward placing the children with Wallace is additional evidence that the prospects for permanent placement of the children were not as "slender" as in E.P., supra.

In sum, the credible evidence in the record before us supports the trial court's conclusion that termination of parental rights would not do more harm than good - the fourth and final prong of the statutory test.

Affirmed.


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