September 28, 2012
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
J.C. AND M.L., DEFENDANTS-APPELLANTS.
IN THE MATTER OF THE GUARDIANSHIP OF V.C., C.C., AND M.C., MINORS.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket Nos. FG-06-29-11 and FG-16-17-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 19, 2012
Before Judges Reisner and Harris.
Defendants J.C. (father) and M.L. (mother) appeal from a May 26, 2011 order terminating their parental rights to their three children. The trial judge determined that, due to defendants' significant developmental limitations, they failed to address their children's significant medical problems in the past, they were not currently capable of caring for their children, and they would not be able to do so in the future. Two of the children had lived with a foster family for an extended period of time and had bonded with the family, who wanted to adopt them. The third child had such severe developmental and physical limitations that he would probably live permanently in a hospital unless adopted by a specialized resource family; due to their own limitations, defendants could not make necessary medical decisions for his care. However, the judge's May 26, 2011 order granted defendants' request to have continuing visitation with this child even after termination of parental rights.
We recognize that defendants love their children and it is not defendants' fault that they cannot care for them. However, we find no basis in this record to overturn the Family Part judge's decision that termination of parental rights is in the children's best interests, N.J.S.A. 30:4C-15.1a. That decision is clearly and convincingly supported by substantial credible evidence, and we therefore affirm the order on appeal.
M.L. and J.C. have three children - a daughter, V.C., who was born May 13, 2005, and twin sons, C.C. and M.C., who were born December 17, 2007. Because C.C. was born with severe disabilities, including suspected brain damage, he remained in the hospital for more than a month after his birth.
The Division of Youth and Family Services (Division)*fn1
first became involved with the family on January 23, 2008,
after receiving a referral from a hospital social worker who was
concerned about defendants' ability to care for their children. At
that time, C.C., who was still hospitalized, was due to undergo
surgery to have a feeding tube inserted, and the hospital staff was
concerned that M.L., who was illiterate and spoke no English, would
not be able to read instructions, properly administer medicine to
C.C., and maintain the clean
environment needed by a child with a feeding tube. The social worker
also reported that V.C. had a rotten tooth which had gone without
treatment, and that the family was living in a one-room apartment with
no proper sleeping accommodations for the children.
The Division's investigators made a home visit and confirmed the hospital social worker's observations. During their conversations with M.L., she did not appear to understand the seriousness of C.C.'s medical condition or how to care for him. They also noted that V.C. had a rotten tooth and was not yet talking or making any sounds, although she was almost three years old. The other son, M.C., was sleeping in a car seat because there was no crib for him. M.L. told the Division investigators that she had no family support and had not obtained dental care for V.C. because she did not know how to find a dentist.
When interviewed by Division staff a couple of days later, J.C. stated that he did not know what was wrong with C.C. because the hospital staff did not speak Spanish. He also stated that it was not his responsibility to figure out how to deal with the son's medical problems because he worked all day and M.L. should be responsible to care for C.C. During further discussions with the Division worker, J.C. admitted that he did not know how he or M.L. would be able to care for C.C. when neither of them could read medical instructions and had no family who could help them to care for the child. On re-contacting the hospital, the Division also learned that M.L. had a history of bringing V.C. in for medical appointments and then failing to follow treatment instructions.
The Division then set in place a range of support services and other assistance for the family, including buying furniture, arranging for a home health aide, and referring V.C. and M.C. to an early intervention program because both children had developmental delays. The Division also arranged for C.C. to be evaluated by the UMDNJ Child Health Program. He was diagnosed with encephalopathy, global development delay, seizure disorder, microcephaly, and cerebral palsy. When he was released from the hospital on March 31, 2008, the Division arranged for physical and occupational therapists to visit the home.
Due to concerns about defendants' parenting abilities, the Division also arranged for both of them to undergo psychological evaluations. Dr. Iser diagnosed M.L. with moderate mental retardation and recommended that she be trained in providing medical care for C.C. Additionally, Dr. Iser diagnosed J.C. as being in the lower range of intelligence and as having problems with adaptive functioning. He recommended that J.C. attend parenting classes.
Accordingly, the Division continued to provide the family with services through the end of 2008. During that time, C.C. had a number of health crises, and the Division learned that on one occasion, the parents failed to obtain necessary medication for him. When asked to explain that failure, J.C. claimed he was embarrassed because he could not sign his name, which was necessary to obtain the medicine at the pharmacy, and M.L. claimed she was afraid to go to the pharmacy lest she be identified and deported. In November, C.C. was hospitalized with pneumonia, and in December, M.L. filed for a restraining order against J.C., alleging that he tried to kill her.
On January 2, 2009, the Division removed the children on an emergency basis, after the assigned in-home therapist reported that M.L. was unable to care for the children. The therapist reported that C.C. appeared ill and in respiratory distress, and might not survive without intervention; and M.C. had been very ill for two weeks, with severe breathing problems, but defendants had not sought medical treatment for him. A Division investigation confirmed that information. On being interviewed by a Division case worker, M.L. stated that she did not seek medical attention for M.C. because she was only told to take C.C. to the hospital. The worker also observed that M.L. had a black eye, which M.L. said J.C. had inflicted on her. Understandably concerned that M.L. was overwhelmed and unable to care for the children, and that the children were at risk, the Division conducted a DODD removal. N.J.S.A. 9:6-8.29. The Division placed V.C. and M.C. in a foster home, and placed C.C. in the Children's Specialized Hospital because he needed round-the-clock care.
There followed a series of additional evaluations, all of which resulted in expert opinions that both parents had serious intelligence deficits. With one exception, those experts also opined that neither parent could independently care for the children. Dr. Sostre opined that J.C. might be able to care for the children if he received appropriate training. However, Dr. Sostre also speculated that J.C.'s mother might assist him in caring for the children.
The Division arranged for both parents to attend parenting classes, which they completed. The agency also arranged for a range of additional services, including literacy classes and psychological therapy for M.L., after Dr. Amaro diagnosed her with depression. The agency also attempted to identify relatives to care for the children, a search that ultimately proved unsuccessful.
The court initially rejected the agency's plan to file for termination of parental rights, directing that the agency search for additional services for the parents. On August 11, 2010, finally satisfied that the Division had exhausted its efforts to find available resources to assist defendants to improve their parenting skills to an acceptable level, and had been unable to find relatives to care for the children, the court approved the agency's plan to terminate parental rights. At that point, the children had been out of the home since January 2, 2009.
At the trial, which commenced in March 2011, Division case worker Maria Gonzalez testified that the agency initially planned to return the children to M.L.'s custody, conditioned on their all living with M.L.'s sister, who would assist M.L. in parenting.*fn2 However, at a family team meeting on June 16, 2010, the sister told Gonzalez that she was "no longer able to assist [M.L.]" because they were not getting along.*fn3 M.L. then asked the Division to consider her father and brother as placements. However, the Division ruled them out based on the negative recommendations of a psychologist who examined them. Gonzalez testified that each family member who was ruled out was sent a letter, in English and Spanish, advising of that decision.*fn4
Gonzales explained that the children could not be placed with the paternal grandmother because she was an undocumented immigrant. M.L. also told Gonzalez that she was uncomfortable with the grandmother's practice of kissing V.C. on the mouth.
Gonzalez testified that when the children were still living with defendants, the Division arranged for in-home nursing assistance for C.C. and in-home speech therapy for V.C. After the children were placed in foster care, J.C. frequently missed visits. M.L. had difficulty figuring out how to take the bus and was often late in arriving. Gonzalez also testified to the Division's efforts to provide M.L. with literacy instruction. M.L. dropped out of the class, explaining that she needed to work. The agency also arranged for both parents to take parenting classes.
According to Gonzalez, soon after the children were placed in foster care, the foster mother observed V.C. engage in sexualized behavior, such as putting sticks of string cheese in her underwear, and jumping up and down on a stuffed animal as though she were having sexual relations with it. When the parents were asked if they had observed such behavior while V.C. was living with them, J.C. said that he had but he did not know what to do about it. M.L. denied seeing the behavior. Ultimately, the agency was unable to confirm whether the child had been sexually molested by anyone.
Addressing C.C.'s situation, Gonzalez testified that he was confined to a specialized hospital, because he could not breathe without a tracheotomy tube, and had to be fed through a tube in his stomach. M.L. had so little understanding of C.C.'s medical condition that she once tried to disconnect his breathing tube in order to give him a lollipop.
A Division adoption specialist, Ms. Ramos, testified to her observation of M.C. and V.C. in the foster parents' home. She confirmed that the children were happy, thriving, and well-cared for. She also testified about C.C.'s very severe disabilities; he is quadriplegic and needs round-the-clock care. Only M.L. visits him. The Division's plan for C.C. was to search, through an adoption exchange, for a family willing to adopt him. According to Ramos, however, that search could not begin until defendants' parental rights were terminated. However, she testified that until and unless the child was adopted, the Division would not object to M.L. continuing to visit with C.C. after her parental rights were terminated.
Ramos offered additional testimony about the Division's extensive efforts to provide defendants with services. She also described M.L.'s inability to ensure the children's safety during her visits with M.C. and V.C., and her occasional inappropriate behavior including angrily storming out of visits.
The Division also presented testimony from Dr. Frank Dyer, a psychologist who speaks fluent Spanish and has performed thousands of evaluations in Spanish. He evaluated defendants "particularly with respect to parenting capacity" and "intellectual functioning." He also performed bonding evaluations with defendants and V.C. and M.C., and with those two children and their foster parents.
Based on testing, he determined that M.L. had an I.Q. of 51, and was moderately retarded, indicating that she had more severe intellectual limitations than a person diagnosed as mildly retarded. She had received no formal education, was completely illiterate, and her "developmentally primitive" drawings were of a type "usually found only in preschool children." In the interview, M.L. expressed no understanding as to why she might have difficulty safely caring for her children or why the Division was concerned about her ability to care for them. M.L. told Dr. Dyer that she currently had a hostile relationship with J.C. and his mother.
In addition to developmental disability, Dr. Dyer diagnosed M.L. as having "depressive disorder not otherwise specified." In further explaining his diagnosis of moderate mental retardation, Dr. Dyer opined that M.L. was "rather helpless in dealing with" the challenges of everyday life. She also lacked "personal maturity" and had poor impulse control and poor judgment. He opined that she would not be able to provide "proper structure, guidance, nurturance, or physical protection for a child." In part because she grew up with no education and no special services to help her compensate for her developmental limitations, she also had no ability to effectively navigate the world in which she was currently living. She would be unable to interact with teachers, social service providers, and others with whom she might need to deal for her own or the children's benefit. He concluded that M.L. "should not be considered as a viable caretaker for any child."
Dr. Dyer also opined that J.C. was incapable of parenting the children. During Dr. Dyer's interview with J.C., he blamed M.L. for any failure to properly care for their children. J.C. disclaimed any "responsibility with respect to [his] children's welfare, any neglect that they may have suffered because he was at work for most of the time." J.C. claimed that he had no "clear idea" what was wrong with their severely disabled son, C.C., until the child was removed from defendants' custody and hospitalized. J.C. told Dr. Dyer that although he worked long hours, if the children were returned to him he would rely on his then-paramour to help care for them. He admitted that he no longer had a good relationship with M.L. and that his paramour had physically assaulted M.L. on one occasion.
Based on his psychological evaluation, Dr. Dyer concluded that J.C. had "substantial cognitive delays, although he was functioning higher than was [M.L.]." With an I.Q. of 61, J.C. was "in the mildly retarded range." He reads at the third grade level. Dr. Dyer also found J.C. to be "lacking in emotional maturity" and having "rather poor impulse control." J.C. "uses denial to filter out any perceptions of his environment that are unpleasant or inconvenient." Based on J.C.'s documented history of threatening and assaulting M.L., Dr. Dyer also diagnosed him as having "impulse control disorder not otherwise specified."
Based on his evaluation of J.C., Dr. Dyer opined that J.C. was really not equipped intellectually to provide adequate structure, nurturance, guidance, physical protection, positive role modeling for a child without extensive supervision and support. His impulse control disorder [also] poses some degree of risk for a child[.]
Dr. Dyer also expressed concern about J.C.'s complete unwillingness to take personal responsibility for the children's well-being. He was, for example, unwilling to go to the pharmacy to pick up medicine for the severely-disabled C.C., because he was embarrassed at not being able to sign his name. And he blamed M.L. for the children's neglected state when they were removed from defendants' custody. This "does not predict a positive outcome in terms of his being able to assume adequate parental responsibility if either or both of the children were to be reunified [with] him."
Dr. Dyer next testified about the bonding evaluations he performed. As part of that process, he first interviewed and assessed M.C. and V.C. and found that they both had developmental delays. Dr. Dyer opined that children who are developmentally delayed require "a particularly vigilant degree of parenting" because they tend not to perceive "common environmental dangers," have poor judgment and impulse control, and "tend not to be very well adjusted socially." Hence, these children "require much more assistance and supervision than would a normally endowed child." The foster parents told Dr. Dyer that they had considerable success in helping V.C. and M.C. overcome problems that the children displayed when they first came into foster care, and they were very interested in adopting the children.
During the bonding assessment, Dr. Dyer found that the foster parents "were very competent and attentive to the children's needs" and he observed a "good attachment between both children and the foster parents." He further testified that the children's "deep attachment" to the foster parents was reflected in their reliance on them for safety, comfort and "as figures who are capable and willing and trustworthy to supply their basic day-to-day [emotional and material] needs."
He also observed that J.C. was "attentive" to the children and they "were enthusiastic while they were playing with him." He found that V.C. had "some residual degree of attachment to [J.C.]," but her primary attachment was "most likely" to the foster parents. He found no parent-child attachment between M.C. and J.C., while, by contrast, M.C. was "profoundly attached to the foster parents."
When Dr. Dyer observed M.L. with the children, he found that M.L. "really did not know how to engage them. She was more of a playmate . . . rather than projecting any kind of parental authority." The children responded by "ignoring her to some degree." At one point M.C. hit his mother and then hit his sister V.C. He did not do that during his interactions with his father or the foster parents.
Dr. Dyer opined that M.C. would suffer a "catastrophic" emotional loss if he were separated from his foster parents and reunited with his birth parents. He would have an even more difficult time coping because of his developmental delay. He "would be in an extraordinary degree of distress" and would probably "regress significantly" from the developmental progress he had made while living with the foster parents. Dr. Dyer testified that neither defendant had any ability to mitigate that harm.
Dr. Dyer opined that if separated from the foster parents, V.C. would suffer a "short-term disorganizing loss" and "her entire routine would be disrupted." He testified that "[t]here would be very significant questions in her mind as to why the foster parents suddenly abandoned her. It would have some effect on issues of . . . self esteem and basic trust." Further, because of defendants' severe limitations, "there would be no parent figure in [V.C.'s] environment who is capable of properly addressing this child's distress." On the other hand, the foster parents would be well able to assist V.C. in overcoming her feelings of loss if she were unable to have contact with her birth parents. Moreover, since the foster parents were willing to adopt both children, V.C. would be guaranteed an intact relationship with her brother.
On cross-examination by the Law Guardian, Dr. Dyer confirmed that even if the children spoke Spanish, instead of only English, it would not change his opinion. It would not affect defendants' ability to act as parents. He confirmed that neither parent could care for any of their children, including C.C., who was profoundly disabled.
In his defense, J.C. presented testimony from Dr. Melissa Marano, a psychologist, who had evaluated J.C. to determine his "parental competency in relation to his children." Like Dr. Dyer, she evaluated J.C. using tests in Spanish and tests that were geared toward evaluating people with little formal education. J.C.'s scores showed "between a mild to moderate range of cognitive deficiency." This would affect his ability to make decisions about how to care for the children, particularly if they were simultaneously making multiple demands for attention. He might not be able to make good judgments about the order in which to meet their needs. However, she believed he had sufficient adaptive skills that he could act as a parent with "support." He had no psychiatric problems that would place the children at risk.
Dr. Marano also performed bonding evaluations between J.C. and the two older children. She testified that V.C. appeared to be comfortable with her father and "he was responsive with her." She observed a positive attachment between them. J.C. also related well to his son M.C.
She agreed that J.C. would have some difficulty in helping address V.C.'s speech delay, because of his own "cognitive limitations." She also conceded, on cross-examination, that his limited English language skills would "negatively impact her progress with her speech and language." Dr. Marano admitted that J.C.'s limited ability to read and write would make it difficult for him to address the children's educational and medical needs. She testified that J.C. could not parent the children "independently."
Dr. Marano testified that during the interview, J.C. admitted seeing V.C. acting out sexually in his presence, but told her that he did not know what to do about it. He "definitely . . . has held back from acting on situations that were novel to him and that he was not sure about what to do."
She agreed that parenting was "a series of novel situations" and J.C. had a tendency to become overwhelmed when confronted by "complicated" situations. She also acknowledged that the Division had attempted to provide J.C. with services from the ARC, which had a three-year waiting list, and from the Division of Developmental Disabilities, which could not assist him due to his immigration status. She testified that without those sorts of outside parenting resources, the children could potentially be at risk if placed with J.C. She conceded that none of the experts who had evaluated J.C. had concluded that he could independently act as a parent. She agreed that he had taken a "very passive role" in parenting the children when they were living with him. He had "left 100% of the childcare and dealing with the children" to M.L. despite her significant limitations as a parent.
While the trial was ongoing, Dr. Marano performed a bonding evaluation between the foster parents and V.C. and M.C. She was recalled as a witness to testify about those evaluations. Dr. Marano concluded that the children had a strong bond with the foster parents, and the foster parents had become their psychological parents. She opined that removing the children from their care would place them at risk of emotional and behavioral harm. The children were particularly at risk because of their "cognitive delays." She also concluded that because of his cognitive limitations and lack of parenting support, J.C. could not mitigate the harm the children would suffer if they were removed from the foster parents. The positive interaction that she earlier observed between J.C. and the children at their bonding evaluation did not change that conclusion.
On May 26, 2011, Judge George Sabbath issued a lengthy oral opinion concluding that the Division had proven all four prongs of the best interests test, N.J.S.A. 30:4C-15.1a, by clear and convincing evidence. He first found that the children's safety, health or development had been and would likely continue to be endangered by maintaining a child-parent relationship with both defendants. Focusing on the medical neglect suffered by the children, Judge Sabbath found there was no real dispute with regard to the first prong of the test. He referred specifically to M.L.'s inability to understand C.C.'s medical needs, and her failure to administer proper medication to M.C.:
When the Division went to the premises to address the referral [M.C.] was found to be in great distress, suffering terribly from an asthma attack and gasping for [breath]. He had not been medicated by [M.L.]. She . . . explained that she was not under the impression that he was to be medicated by her, and that it was [C.C.] . . . who had a medical condition that had to be addressed.
At the same time, subsequent explanations by [J.C.] were to the effect that he did not believe that he was in the role of a caretaker in this respect, and that he expected [M.L.] to be responsible for the issues of caring for the children in this respect. As a result [M.C.] had to be taken and hospitalized.
The judge also considered J.C.'s failure to obtain a needed medical prescription for C.C. The judge found this was due to J.C.'s cognitive deficiency, leading to his failure to appreciate how important it was to fill the prescription even if he was embarrassed about his inability to sign his name. He also noted both parents' failure to obtain dental care for V.C.
As to the second prong, the judge found that defendants lacked the capacity to parent and the ability to remediate the neglect that had led to the children's removal in the first place.*fn5 Judge Sabbath cited their inability to recognize the medical needs and environmental issues confronting the children. He also considered Dr. Dyer's and Dr. Marano's expert opinions that the parents lacked the capacity to care for the children independently. The judge found that, to the extent the two expert's opinions were in conflict, Dr. Dyer's testimony was more credible than that of Dr. Marano. The judge particularly relied on the expert testimony concerning the strong bond between the children and their foster parents and the serious and significant harm that the children would suffer if that relationship were severed.
On the third prong, Judge Sabbath found that the Division "provided numerous and extensive services," both prior to and subsequent to the children's removal. The judge noted the tremendous obstacle posed by the lack of available resources for defendants, who were illiterate, and the Division's extensive efforts to find appropriate programs for them. He further noted that the Division had reviewed and addressed relative resource references provided by the parents, and he found by clear and convincing evidence that the Division's efforts were substantial. He also credited Gonzalez's testimony that she personally delivered the rule-out letters to the relatives and explained them in Spanish.
Finally, as to the fourth prong, Judge Sabbath determined that the Division had demonstrated by clear and convincing evidence that terminating defendants' parental rights would not cause more harm than good to the children. He noted that, by the end of the trial, both Dr. Dyer and Dr. Marano agreed that V.C. and M.C. had bonded with their foster parents and would suffer serious harm if separated from them. He also found that M.L. and J.C. could not ameliorate the harm that the children would suffer if they were separated from the foster parents and placed with defendants. On the other hand, he found that the foster parents could "mitigate any harm as a result of termination of parental rights."
Judge Sabbath further addressed C.C.'s best interests by noting that he would likely spend the rest of his life hospitalized, and that, critically neither M.L. nor J.C. would be capable of making the expected medical decisions that would arise during C.C's ongoing care. He ultimately noted: . . . although [M.L.] and [J.C.] may love their children they don't have the ability to understand or to make those decisions, or to communicate with the huge number of medical personnel with whom they're going to be required to communicate, would be required to communicate, as well as many social services workers, placement. There's going to be a lot that's going to be done for this unfortunate child [C.C.]. And it would best and in the best interest of the child to have a medical guardian or some other person that the Division may be able to obtain to make those informed decisions in his best interests. Therefore, I am including the termination of parental rights to include [C.C.].
Finding all four prongs of the statutory test satisfied by clear and convincing evidence, Judge Sabbath entered a judgment of guardianship terminating defendants' parental rights and awarding guardianship of all three children to the Division. Judge Sabbath also granted M.L. and J.C. continuing visitation rights with C.C., but denied post-judgment visitation with the other two children.
In striking a balance between the parents' constitutional rights and the children's fundamental needs, courts engage in the four-part guardianship test articulated in N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986), and codified as N.J.S.A. 30:4C-15.1a:
a. The division shall initiate a petition to terminate parental rights on the grounds of the "best interests of the child" pursuant to subsection (c) of section 15 of P.L. 1951, c. 138 (C. 30:4C-15) if the following standards are met:
(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.
In their application, the four factors above "'are not discrete and separate, but relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests.'" N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 167 (2010) (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 606-07 (2007)).
In reviewing Judge Sabbath's decision approving termination of defendants' parental rights, we do not write on a clean slate. Ordinarily, we defer to a trial judge's factual determinations unless those findings "'went so wide of the mark that a mistake must have been made.'" N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (citation omitted). We will not disturb the Family Part's factual findings so long as "they are 'supported by adequate, substantial and credible evidence.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1983) (citation omitted). And we owe special deference to the Family Part judge's credibility determinations. Cesare v. Cesare, 154 N.J. 394, 413 (1998). In this case, we find that the record amply supports Judge Sabbath's factual findings and, in light of those findings, his legal conclusions are entirely correct.
On this appeal, M.L. raises these arguments for our consideration:
POINT I: DYFS FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THE STATUTORY REQUIREMENTS OF N.J.S.A. 30:4C-15 AND 30:4C-15.1.
POINT 1A: DYFS FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT DEFENDANT-APPELLANT [M.L.] WAS UNWILLING OR UNABLE TO ELIMINATE THE HARM FACING THE CHILDREN, OR WAS UNABLE OR WILLING TO PROVIDE A SAFE AND STABLE HOME FOR THE CHILDREN.
POINT 1B: DYFS FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT IT MADE REASONABLE EFFORTS TO HELP THE DEFENDANT-APPELLANT [M.L.] CORRECT THE CIRCUMSTANCES WHICH LED TO THE CHILDREN'S REMOVAL.
POINT 1C: DYFS FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT IT CONSIDERED ALTERNATIVES TO TERMINATION OF PARENTAL RIGHTS.
POINT 1D: DYFS FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT TERMINATION OF THE APPELLANT'S PARENTAL RIGHTS WILL NOT DO MORE HARM THAN GOOD.
J.C. raises these appellate contentions:
POINT I: THE TRIAL COURT'S DECISION TERMINATING [J.C.'S] PARENTAL RIGHTS TO HIS CHILDREN WAS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE AND SHOULD BE REVERSED.
(1) DYFS Failed to Prove the First Prong Because the Children's Safety, Health or Development Was Not Endangered By The Parental Relationship.
(2) DYFS Failed to Prove the Second Prong Because [J.C.] Was Able and Willing to Provide a Stable Home for [V.C.] and [M.C.] and a Delay in Placement of the Children Would Not Add to the Harm.
(3) DYFS Failed to Prove the Third Prong Because DYFS Did Not Make Reasonable Efforts to Preserve the Family.
(4) DYFS Failed to Prove that Terminating [J.C.'s] Parental Rights Will Do No More Harm than Good.
We conclude that defendants' arguments are not supported by the record and are without merit. Except as addressed below, they do not warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons stated in Judge Sabbath's opinion. We add these comments.
While this is a sympathetic case, it is not a close one. Both of the testifying experts agreed that neither J.C. nor M.L. could independently parent their children. Moreover, the record overwhelmingly supports the conclusion that, due to their respective serious developmental limitations, they will never be able to do so. In addition to their mental challenges, defendants are either largely or entirely illiterate, cannot speak English, and are undocumented immigrants. The children have significant special needs and therefore require caregivers who are more than usually capable of coping with the daily challenges of parenting. Defendants do not have that capability. Further, the agency made reasonable, if not entirely successful, efforts to locate the scarce resources these parents needed, a search complicated by defendants' undocumented status.*fn6 The Division also made appropriate, but unsuccessful, efforts to locate available relatives to care for the children. "The diligence of [the Division's] efforts on behalf of a parent is not measured by their success." In re Guardianship of D.M.H., 161 N.J. 365, 393 (1999).
Both testifying experts agreed that M.C. and V.C. have bonded with their foster mother and father, who have become their psychological parents. If separated from the foster family, both children would suffer severe harm that defendants could not mitigate. The foster parents wish to adopt them. That outcome is manifestly in these children's best interests.
While there is no evidence that C.C. has bonded with any caretaker, and he may not be capable of bonding, it is clear on this record that neither defendant could possibly care for him or make medical decisions in his interest. His only chance of finding a permanent home is through adoption by a special resource family, and the Division can only conduct a search for such a family after he is freed for adoption. Meanwhile, we agree with Judge Sabbath's decision to permit defendants to continue visiting with C.C. until such time as he is adopted. The Division sensibly consented to that order.