July 16, 2012
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
B.D. AND A.R.D., SR., DEFENDANTS-APPELLANTS.
IN THE MATTER OF THE GUARDIANSHIP OF N.M.M.D., C.M.D. AND A.R.D., JR., MINORS.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FG-11-32-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 15, 2012
Before Judges Messano, Yannotti and Espinosa.
In these consolidated appeals, defendants B.D. ("Bonnie") and A.R.D., Sr. ("Arthur") seek review of the Family Part's order terminating their parental rights to their three children, A.R.D., Jr. ("Arthur Jr."), N.M.M.D. ("Nelly"), and C.M.D. ("Claire").*fn1 Both defendants contend that the Division of Youth and Family Services (DYFS or the Division) failed to establish by clear and convincing evidence the statutory criteria contained in N.J.S.A. 30:4C-15.1(a).
We have considered defendants' arguments in light of the record and applicable legal standards. We affirm.
Defendants were married on August 14, 2002. On August 27, Arthur Jr. was born at Children's Hospital of Philadelphia (CHOP) with a diaphragmatic hernia that was subsequently surgically repaired.*fn2 On September 11, CHOP contacted DYFS, concerned that, because of their cognitive impairments, defendants were unable to care for Arthur Jr. upon his release.
DYFS interviewed the couple on September 27 at their Trenton apartment which was clean and orderly. Arthur claimed to be on leave from his position at WalMart; Bonnie did not work and received monthly income from Social Security. Arthur also received a monthly disability payment from the Veterans Benefits Administration (VA). The DYFS workers told defendants that Arthur Jr. would not be released to their custody unless someone could assist with child care. Various family members were considered to no avail. DYFS also wanted defendants to be psychologically evaluated. They agreed, and, in November, Dr. Alan Lee conducted the evaluations.
Lee reported that Bonnie had a "long history of cognitive and intellectual limitations and apparent developmental delays," suffered from low self-esteem and appeared passive and dependent. Lee believed Bonnie could care for her child if services were in place to help her. He recommended that DYFS monitor the family, provide counseling and provide an in-home health aide and visiting nurse.
Arthur exhibited symptoms of Bipolar Disorder, but Lee opined that reunification with his son "appear[ed] possible, particularly if in-home support services [were] implemented." Lee also recommended that Arthur be psychiatrically evaluated and receive individual counseling and ongoing supervision by DYFS.
In December, after a home health aide was provided, Arthur Jr. was released from CHOP to his parents' care. DYFS continued to assist defendants in securing services and monitored the family. On March 5, 2003, the Division noted during a home visit that Bonnie had left the oven on with the door open to provide heat in the apartment. In May, a nurse examining Arthur Jr. expressed concern that he may have developmental delays. At the end of June, DYFS reported that defendants' home was "very untidy."
Arthur Jr. was accepted into a program called Special Child Health Services (SCHS), which would provide in-home therapy. Within weeks, a SCHS worker contacted DYFS with concerns about the family, in particular that Arthur "was having problems dealing with things. He appeared overwhelmed and did not understand what and why [SCHS was] there." The worker suggested that Arthur Jr. receive therapy at a day care center because Arthur's attitude made in-home therapy impossible. She believed the family "was struggling."
By August, Arthur Jr. was enrolled in a medical day care, and workers recognized his developmental delays. The following month, Arthur lost his job. DYFS also received a call from the day care reporting that Arthur Jr. had been sent to the day care center with sour formula. On October 8, a neighbor reported to DYFS that defendants' home was unsanitary and the family was being evicted for non-payment of their rent.
On October 14, a home visit reported defendants' home was in such disarray that the floor in several rooms was barely visible. Arthur claimed the family was in the process of moving, although he could provide no address for the new residence. Beverlyn Grissom, a legal advisor at Mercer County Children's Medical Daycare Center, confirmed that she had found the family a new apartment which they could move into on November 1.
However, on January 28, 2004, Grissom notified DYFS that the family had not moved into the new apartment, but, instead, moved to New York. They had now returned, were homeless and residing in the Trenton train station. Grissom had arranged for them to stay at a hotel for the next two days. Caseworkers met the family at the hotel and noted that Arthur Jr. was "very dirty," had no clean clothes, and weighed only seventeen pounds.
Defendants agreed to permit the temporary six-month placement of their son with D.L., a nurse who worked at the medical day care that Arthur Jr. had attended. Defendants visited their son at the day care two days per week. When D.L. resigned from her position in February, she sought to enroll Arthur Jr. in another day care center.
On March 17, 2004, D.L. expressed concerns about defendants' behavior to DYFS. She said that most of their visits took place at a local mall, and Arthur stole things from the stores and endangered Arthur Jr. by placing him on the escalator railing because the boy enjoyed it. D.L. often brought food for Arthur Jr. to eat during the visits, but Arthur and Bonnie took the food and ate it themselves. D.L. told DYFS she wished to adopt Arthur Jr.; however, the caseworker informed her the Division's plan was for reunification of the family.
By April, defendants had secured an appropriate two-bedroom apartment and wanted Arthur Jr. returned to their care, but DYFS indicated that they needed to complete parenting skills classes beforehand. Arthur Jr. was progressing while in D.L.'s care, though he still had health and developmental problems -- he weighed only twenty-two pounds, spoke few words, and often fell because of his pronated feet. By July, defendants were participating in a parenting class with the Children's Home Society (CHS) and attending bi-weekly individual and couples counseling on caring for a child, budgeting money and utilizing resources.
When the six-month consensual placement ended in August 2004, DYFS initiated a Title Nine action and was granted custody, care and supervision of Arthur Jr. CHS reported that defendants were doing very well in the program. Bonnie's mother agreed to assist the family. Lee conducted another psychological evaluation of Arthur and Bonnie in October and reached similar conclusions to those contained in his earlier report. Also in October, defendants completed the CHS program, and its director recommended their son be returned to them provided community and familial supports were in place.
Arthur Jr. was showing signs of developmental disorders. In mid-December, D.L. informed DYFS that she would no longer care for the child. He was placed in another foster home by the end of the month.
Dr. Alexander Iofin evaluated Arthur in November, and concluded he was "functioning in either the borderline level of intellectual functioning or the very top level of mild mental retardation" and presented symptoms of Bipolar Disorder or some type of mood disorder. Iofin recommended further testing and mental health services, and was unsure whether reunification was a viable option.
Defendants underwent a series of parenting evaluations during June and July 2005 which were positive, and Arthur had regained employment at WalMart. From mid-October to December 7, however, Arthur Jr. was hospitalized for failure to thrive. DYFS received two referrals in December 2005 and January 2006 alleging defendants neglected Arthur Jr. by failing to properly feed and supervise him. The Division's ensuing investigations did not substantiate the claims. On January 18, DYFS dismissed the Title Nine complaint and Arthur Jr. was formally returned to his parents' custody.
A visit in February revealed that defendants' home was extremely cluttered, although defendants cleaned most of the apartment within a week. Defendants removed Arthur Jr. from the day care he had been attending because they preferred the medical day care he attended previously.
On April 2, 2006, Nelly was born. In June, defendants told DYFS they no longer needed, nor would they accept, the Division's services. A week later, DYFS received a call reporting that the children were being neglected. Specifically, the referent claimed that Arthur Jr. was allowed to roam the neighborhood alone, had nearly been struck by a car, and ate bread left on the ground for birds because there was no food in the house. The following month DYFS received a call from a neighbor reporting that Bonnie and Arthur had left Arthur Jr. unattended in an inflatable pool, and the family was homeless and staying with a friend. DYFS visited the family at a friend's home, and defendants again denied any neglect, claiming their former neighbors were making these allegations to harass them.
On August 2, 2006, Detective Burns of the Lawrence Township Police Department reported to DYFS that he had responded to an ambulance call for Nelly who was lethargic, vomiting, and had diarrhea as well as a bruise on her hand, which defendants could not explain. Defendants told DYFS that they had been evicted from their apartment and were staying with a friend whom they blamed for causing the bruise.
Defendants moved the family into Bonnie's mother's one bedroom apartment, which was unsuitable for their needs. For the next ten days, the Division was unable to locate the family, but eventually found them residing at the Budget Inn hotel in Trenton where they stayed until they located another apartment in October. Arthur Jr. had still not returned to day care.
On February 20, 2007, DYFS found a note in the family mailbox advising they had once again moved to a new apartment. On May 21, Arthur told DYFS that he had been laid off from Lowes, a position he had recently obtained, and was applying for unemployment benefits. The family was again behind on its rent. Defendants considered moving to Florida to be closer to family. The Division contacted numerous social service agencies, successfully staving off eviction.
On July 2, 2007, DYFS learned that Bonnie was two months pregnant. Defendants told the Division they were surprised by the pregnancy because they believed Bonnie had undergone a tubal ligation.
By October, although defendants were paying their rent, their home was "very cluttered and messy." On a more positive note, Bonnie was receiving neonatal care, and she and Arthur attended pregnancy classes three nights a week. Arthur Jr. was in day care, and Bonnie continued to receive cash benefits from the Division of Developmental Disabilities (DDD).
Bonnie gave birth to Claire on December 18, 2007. Arthur was again without work, the family's bills were mounting and they faced interruption of their utilities because of non-payment. A home visit revealed the apartment was "a mess." On January 14, 2008, the family's landlord told the Division that they had not been paying their rent, and he would evict them in a few days if they did not make payment in full. Defendants sought money from a friend.
On January 24, 2008, DYFS received a call from the Mercer Hospital Health Start Clinic indicating that during a postnatal visit, Bonnie scored "slightly high" for postpartum depression. Bonnie was feeling overwhelmed and stated that Arthur had punched her in the arm. During a home visit, Arthur admitted having hit Bonnie in the arm.
DYFS caseworker Joseph Goss was assigned to the family in March 2008. During an unannounced April home visit, Goss reported: "All furniture in the room, except for the table and couch, has massive amounts of clutter on them (i.e. blankets, strollers, toys, clothes, etc.). There are some stacked about 6 feet high." Goss observed "more than ample food supplies . . . almost to the point of absurdity." For example, he counted fourteen bags of Cheerios cereal. On June 13, 2008, defendants' landlord contacted DYFS and reported filing another eviction action for non-payment.
On July 22, 2008, DYFS received a report that defendants' home was in complete disarray. The Division's workers responded and saw the conditions that included piles of personal belongings between seven and ten feet tall in the various rooms.
The beds were soiled and the bathroom tub was filled with dirty dishes. With respect to the pending eviction notice, Arthur claimed that the welfare office had helped them pay rent for May through July, and they were on a waiting list for subsidized housing. Defendants were told to clean their home and that they needed to immediately remove the children. The family stayed with a friend that evening.
An inspection the next day revealed little change. Defendants were told the Division's workers would return late in the afternoon to determine if the house was safe and clean enough for the children to return. When the workers returned, no one was home. Arthur returned shortly thereafter and claimed he did not know where Bonnie and the children were. The Division found them at a bus stop, drove them back to the apartment and effectuated an emergency removal. Initially, Arthur Jr. and Nelly were placed in a foster home together, and Claire was placed with a different family. Two days later, the Division filed a verified complaint and order to show cause seeking custody of the three children. The judge granted the Division's request and ordered defendants to undergo psychological evaluation and cooperate with homemaker services. Defendants engaged in supervised visitation on a weekly basis.
In November 2008, defendants waived their right to a fact-finding hearing and admitted that the conditions in their home put their children at risk. The judge converted the Title Nine action to one under Title Thirty seeking the termination of defendants' parental rights.*fn3
By December 2008, Arthur Jr. was placed in a therapeutic foster home, and Nelly was placed with the D. family, where Claire had been living. Dr. Alan Gordon, a psychologist, evaluated defendants in December 2008, January 2009, and August 2009. Gordon opined that Bonnie functioned in the mildly retarded range of intelligence, showed "evidence of a high degree of anxiety" and "major depression," "lack[ed] social initiative," and "prefer[red] a peripheral role in her family and social relationships." Gordon believed that she had "very little knowledge as to parenting."
Regarding Arthur, Gordon noted his "general attitude was that everything was okay and none of the problems were the result of his doing." While Gordon believed Arthur "was capable of functioning as a parent" on an intellectual level, he exhibited "a psychological dysfunction of mild to moderate severity." Gordon opined that Arthur was "a narcissistic individual who trie[d] to hide feelings of anger and antagonisms." Gordon opined that Arthur could not independently care for his children.
While defendants maintained supervised visitation at the Division's offices and later in their apartment, Goss testified regarding his concerns over their inability to supply the children with nutritional food. During some visits, they paid little attention to the children and spent most of the time playing video games. In early 2010, Arthur Jr.'s behavior became increasingly unruly during visits. He refused to put on his shoes and coat when it was time to leave, cursed at his parents and sometimes hit or kicked them.
Throughout 2009, Goss continued to assist defendants in trying to maintain their financial health. Bonnie was working and still receiving her Social Security benefits. Arthur was receiving his veterans' benefits. Nonetheless, defendants continued to struggle with their rent and utilities.
By April, Bonnie had quit her job claiming it interfered with her need to do the things necessary for the return of her children. In July, CHS reported that it would not accept defendants into its counseling and parenting group because they had successfully completed the program in 2005 and any ability to further benefit from the program was circumscribed by their cognitive limitations.
In addition to the re-evaluation of each defendant, Gordon conducted a bonding evaluation in October 2009. He wrote:
It appears clear that while the children have recognition of [Bonnie and Arthur], they do not look to them for their basic needs of food, clothing, shelter and protection. [Arthur] Jr. stayed by himself during the evaluation. He did his own thing. He did not seek out Mom or Dad to play games. From time to time, [Arthur] stated that he would play with [Arthur Jr.], but never seemed to find time to do so.
Gordon also conducted a bonding evaluation with Nelly, Claire, and the D. family that included another recently-born foster child, "John."*fn4 Gordon opined that the girls and the D. family shared a very secure bond. The children have their needs met in this home. They are affectionate with the foster parents and that affection was returned. Removing the children from this environment would be detrimental to their care.
It is felt that the children have received the type of care, love and stability that was never found in the home of their birth parents.
Following an extensive permanency hearing over several days in late 2009, on January 4, 2010, the judge approved the Division's plan to terminate defendants' parental rights. On February 4, the Division filed its guardianship complaint, and trial commenced in January 2011.
At trial, Goss testified regarding much of the Division's involvement with the family. The Division called psychologist Amy Becker-Mattes as its expert. She testified regarding her psychological evaluations of defendants and the bonding evaluations she conducted between defendants and their children, and between Nelly, Claire and the D. family.
Becker-Mattes asked Bonnie why she believed the children had been removed from her care. After first claiming that she did not know, Bonnie told Becker-Mattes it was the landlord's fault for not allowing the family to store their belongings in the basement. She also blamed her in-home aide. Becker-Mattes concluded that, given her limitations, Bonnie needed help caring for herself throughout her life and, although she loved her children, she could not adequately care for them. Becker-Mattes recommended termination of Bonnie's parental rights.
Arthur scored higher on the intelligence test, but "his behavior tend[ed] to be a little lower functioning." His responses showed "some indication that he may have difficulty handling the stresses of parenting" and that he tended to "perceive children as objects for adult [g]ratification."
Becker-Mattes believed he "would have problems taking care of" his children and could not be "an independent caretaker of a minor."
Becker-Mattes conducted the bonding evaluation with defendants and their children on June 24, 2010. She concluded that none of the children had a healthful bond with defendants. Becker-Mattes further opined that the children would not suffer enduring harm if the defendants' parental rights were terminated.
As noted, Becker-Mattes also conducted a bonding session with Nelly, Claire and the D. family. She found both foster parents to be involved with the three children, and concluded that a positive bond existed. Becker-Mattes opined that Nelly and Claire would suffer enduring emotional harm if removed from the care of the D. family.
Y.D., the foster mother of Nelly and Claire, testified that she and her husband wanted to adopt Nelly, Claire and John. She described in detail the family's lifestyle and the children's progress since they were placed in foster care with the D. family. Y.D. had little contact with Arthur Jr., and was equivocal as to whether she would allow him to have contact with his sisters.
Nomi Kendall, a DYFS caseworker, testified regarding Arthur Jr.'s situation. There was no current prospect for his adoption; however, he was being well cared for and doing better in school.*fn5
Melissa Rivera-Morano testified as a defense expert witness regarding her evaluation of Arthur. She did not detect "any significant psycho pathology that would prevent [Arthur] from parenting." Additionally, Rivera-Morano conducted two bonding evaluations and concluded that Arthur's interaction with the children was appropriate and positive. She also concluded that the bonding session with Nelly, Claire and the D. family was positive.
Bonnie testified that DYFS had done little for her and her family. She and Arthur now lived in a home that was neat and had adequate space for the three children and their belongings. Bonnie further testified that she was receiving twenty dollars per month in Social Security benefits and had no other source of income.
Arthur testified that he had been employed full-time by Home Depot for a year and had received a good review and a raise. He detailed his income and the family's budget, and denied being delinquent in payment of necessary expenses. Although Arthur admitted the family home was cluttered and it resulted in DYFS removing the children, he denied it was as cluttered as DYFS claimed, and further testified that DYFS did not assist Bonnie and himself in removing the clutter.
On the next trial day, Arthur corrected his testimony that he was not delinquent in paying any of his bills, admitting that he had not paid rent for six months. Arthur claimed he was purposely withholding his rent because his landlord refused to make necessary repairs but admitted that he had not escrowed any monies for six months because he did not know how to create an escrow account.
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 Youth & 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) [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-15.1(a); see also In re Guardianship of K.H.O., 161 N.J. 337, 347-48, 363 (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).
After extensively reviewing the evidence at trial, the judge found that defendants were "advised that their children's physical safety was jeopardized by the out of control clutter," yet "[a]wareness of cleanliness and hygienic standards [were] still not remedied. . . . [B]asic understanding of household and financial management remains unsolved." The judge further noted that even though Arthur was currently employed, the family remained "months behind" in their rent. The judge concluded defendants were "unable to remediate their severe cognitive limitations to a level that would enable them to assess the safety risks that endanger their children on a daily basis." The judge found DYFS had proven prong one of the statutory criteria.
Arthur contends that the Division failed to prove the first prong because "[t]he children did not suffer any physical harm or emotional abuse as a result of a cluttered home." Bonnie similarly argues that DYFS failed to establish the type of harm "remed[ied] by terminating a parent's rights." We disagree.
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 & 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 DMH, 161 N.J. 365, 383 (1999).
In this case, the conditions that existed in defendants' apartment were only part of the problem. The evidence demonstrated that Arthur Jr., who was medically-fragile, had already suffered harm as a result of defendants' inability to provide a safe and stable home. His weight was extremely low, and he was unable to recognize letters or count numerically when removed from defendants' custody in 2008. Nelly was found to have rotten teeth that needed to be removed and capped. During supervised visits, defendants were unable to follow rudimentary instructions to ensure their children's continued good health. The prong one evidence was sufficient.
The judge found that "[i]n this instance the children are placed in harm's way, not because these parents are unwilling, but[,] because in spite of all their efforts[,] are unable to provide a safe and stable home . . . [due to] their severe cognitive limitations." Again noting the current rent arrearages, the judge observed:
[Defendants] have engaged in services to no avail. . . . [Defendants] are still unable to comprehend any danger or risk to their children. .
In the face of all the evidence to the contrary[,] they continue to aver that all is well in their lives.
The judge also noted that the expert testimony from Becker-Mattes demonstrated that Nelly and Claire would suffer "serious psychological harm" if removed from their foster parents, and defendants "[did] not recognize" Arthur Jr.'s special needs. The judge found the prong two evidence was clear and convincing.
Arthur argues that he continued to maintain employment and avail himself of services, and he was willing to arrange his work schedule to spend more time with the children. Bonnie contends that she and Arthur addressed the Division's concerns when provided with the necessary services, and that the Division's own failures and delays occasioned their inability to maintain stability in their housing. Again, we disagree.
The second prong of the best interests standard "relates to parental unfitness," which may be established by demonstrating that: (1) "[t]he parent is unwilling or unable to eliminate the harm"; (2) "the parent has failed to provide a safe and stable home"; or (3) "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)) (internal quotation marks omitted). "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.
In this case, defendants were unable to keep their home in a safe condition, despite the variety of services provided. They remained unable to provide for the stable housing in which to raise their children. The judge's conclusions regarding the expert testimony were amply supported by the evidence.
We have no doubt that defendants' efforts were well-intentioned, and that they love their children. We have noted, however, 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, despite his or her willingness to try. See N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div.) ("[T]he . . . 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). The proof under prong two was clear and convincing.
Regarding prong three of the statutory test, the judge listed the "multitudinous services" DYFS provided defendants. She also observed that the Division attempted to find family members willing to reside with defendants "to assist them with the care of their children," but these efforts were unsuccessful. The judge determined DYFS had met its burden of proof regarding "reasonable efforts to provide services" to defendants. N.J.S.A. 30:4C-15.1(a)(3).
Arthur contends that DYFS relied upon the DDD to provide services to Bonnie and therefore failed to provide him with services. Bonnie argues that DYFS "was fully aware of [DDD's] foot dragging," it failed to pressure DDD into providing the necessary services. She claims that is was unfair to hold defendants "accountable for fractured services between state agencies."
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." DMH, supra, 161 N.J. at 393.
In this case, the Division's efforts cannot be faulted. The judge properly took note of all the services that were provided to defendants. To the extent that the coordination of services between two state agencies was inefficient, the record does not demonstrate that DYFS was to blame. The evidence under prong three was sufficient.
Regarding prong four, as to Nelly and Claire, the judge found:
Expert after expert has opined that . . . as much as they love their children[,] [defendants] do not have the cognitive capacity to effectively provide the safe and secure nurturance to parent these children. The foster parents do. They further have the capacity to remediate any harm occurring to the girls that could result from the termination of [defendants'] parental rights.
The judge also found that Arthur Jr. was "safe and secure" in "a therapeutic foster home" where "[h]is needs [were] being provided [for]." She concluded DYFS had met its burden of proof under prong four.
Arthur argues that Rivera-Morano's testimony was credible, and the evidence demonstrated he maintained a solid bond with his children despite the adversities the family faced. Bonnie claims that DYFS engaged in "blatant social engineering" by supporting the adoption of Nelly and Claire only because the foster parents were more financially secure than defendants.
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 whether "the child will suffer a greater harm from the termination of ties with her natural parents than from the permanent disruption of her relationship with her foster parents." Id. at 355. Answering that question "necessarily requires expert inquiry specifically directed to the strength of each relationship." Ibid. (quoting In re Guardianship of J.C., 129 N.J 1, 25 (1992)). 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 biological ties." Ibid.
The judge relied extensively upon the expert opinions of Becker-Mattes. She noted the chaotic bonding evaluation session that occurred when defendants were with their children, and how the two girls sought guidance from the doctor, not their parents. We note that even Arthur's expert, Rivera-Morano, recognized the significant bond between the girls and their foster parents. Arthur Jr. remained in a therapeutic foster home and, at the time of trial, adoption was unlikely; however, his progress in that setting was well-documented. In short, the judge's findings and conclusions regarding prong four of the statutory best interests test were supported by clear and convincing evidence.