November 15, 2012
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
S.S. AND J.A., DEFENDANTS-APPELLANTS.
IN THE MATTER OF THE GUARDIANSHIP OF J.C.S., J.Z.A.-S. AND Y.R.A.-S., MINORS.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-162-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 31, 2012 -
Before Judges Axelrad, Nugent and Haas.
Defendants S.S. ("Susan") and J.A. ("Jacob") appeal from the October 21, 2011 order terminating their parental rights to their three children, a boy J.C.S. ("John") born on November 17, 2002, and a boy J.Z.A.S. ("James") and his twin sister Y.R.A.S. ("Yasmin") on May 20, 2005.*fn1 After reviewing the record in light of the contentions advanced on appeal, we affirm.
This is the second time this family has been before us. Earlier this year, we reversed the trial court's decision that Susan had abused and neglected the children by leaving them with relatives for a three-day period, two positive marijuana screens within one week of each other, and her temporary lack of housing. N.J. Div. of Youth & Family Servs. v. S.S.,*fn2 No. A-4372-10 (App. Div. 2012). We set forth the underlying facts from that opinion.
The Division of Youth and Family Services*fn3 (Division) has been involved with Susan and Jacob since February 2007, when it removed the children from Susan after Jacob hit Yasmin with a belt. (Slip op. at 2-3). The children spent almost a year in foster care. Id. at 3. The Division substantiated Jacob for physical abuse, and Susan for neglect for her failure to protect Yasmin. Ibid. On May 16, 2007, Jacob pled guilty to fourth-degree abuse of a child under N.J.S.A. 9:6-1 and -3, and was sentenced to five years probation with conditions, including supervised visitation with Yasmin. Ibid.
On December 15, 2009, the Division filed a verified complaint and Order to Show Cause against Susan for abuse and neglect of her children under Docket No. FN-04-282-10, which was amended on March 9, 2010. Ibid. The complaint was limited to three allegations, namely, Susan's unstable housing, her use of marijuana on two documented occasions, and an incident on December 14, 2009, where she could not be located by the Division. Ibid. After a fact-finding hearing on March 17, 2010, the trial judge found the Division proved by a preponderance of the evidence that Susan had abused or neglected her children based upon these incidents. Id. at 6.
Susan filed an appeal and we reversed in an unpublished opinion. Based solely "on a snapshot of the case as presented on the record" at the March 17, 2010 fact-finding hearing, we held that the Division failed to meet its burden of proving abuse and neglect based upon the three incidents involved at that point in the proceedings. Id. at 13, 25. The evidence presented by the Division was largely hearsay and, we concluded, it failed to demonstrate the "level of 'gross negligence' or 'recklessness'" necessary to substantiate a finding of abuse and neglect regarding any of the three incidents. Id. at 15.
While the appeal of the abuse and neglect determination was pending, the Division continued to attempt to provide services to both parents in order to seek a reunification of the family. Ultimately, however, the Division filed an action seeking to terminate Susan and Jacob's parental rights. The Division developed the following proofs at the guardianship trial.
After the children were removed, Susan was referred to Velez Professional on March 3, 2007 for parenting classes. However, she was discharged from this program on April 26, 2007 for non-compliance. She received a second referral to the program on July 17, 2007, but she only attended six of the sixteen scheduled sessions.
Susan was also accepted into the Rainbow of Hope mentoring program in May 2007. However, she was terminated from this program in July 2007 for non-attendance. She did not respond to a request that she submit certain documentation in order to return to the program.
Compliance reviews were held on September 12, 2007 and October 11, 2007. Susan was ordered to attend substance abuse treatment, submit to random urine screening, attend parenting skills training, and attend counseling. On November 21, 2007, however, Susan did not attend her parenting skills class. Jacob was in jail at this time and he was ordered to contact the Division after he was released.
Another compliance review and a permanency hearing were held on January 14, 2008. Susan was now in compliance with services. She agreed to participate in a Mother and Child program and Horizon counseling. Jacob was still incarcerated at that time. Because Susan had agreed to participate in services, the Division's plan was to possibly return the children to her if Susan's progress continued over the next three months.
On February 1, 2008, Susan gave birth to a fourth child, J.S. ("Jordan"). However, Jordan died at the age of three months while in the care of a friend. The Gloucester County Prosecutor's Office concluded the child's death was accidental. (Slip op. at 2 n. 1).
Following a compliance hearing on July 1, 2008, the court ordered that, because Susan had complied with services, the children should be returned to her no later than July 18, 2008. The court further ordered that Jacob was not permitted to be in Susan's home or to have any contact with the children without Division supervision. On September 22, 2008, the litigation was terminated, although the Division continued to provide counseling services to Susan. On November 26 and again on December 3, 2008, Susan did not attend her counseling services.
On January 15, 2009, the Division received an anonymous referral that Jacob was out of jail, but had violated the conditions of his parole. The report also stated that Jacob was staying in Susan's home, which was a violation of the court's prior order and a violation of Jacob's parole. The allegations of neglect were substantiated against both parents. Jacob was re-incarcerated on a parole violation after he tested positive for marijuana and admitted to being in Susan's home with the children. While incarcerated, he completed treatment for substance abuse and anger management.
Jacob remained in jail until April 16, 2009. Two days later, the Division learned Jacob had again been in the home with Susan and the children. The Division reported this to Jacob's parole officer, and Jacob was again found in the home on April 28, 2009. He was arrested for violating his parole on April 30, 2009. Jacob completed his parole, and was released from jail, on May 6, 2009.
At a home visit on May 27, 2009, the Division again found Jacob in the home. He agreed to participate in services. However, he did not attend a scheduled appointment for an evaluation with the Center for Family Services (CFS). The appointment was rescheduled for June 23, 2009, but Jacob did not attend.
On June 26, 2009, the Division was notified that Susan's home had sustained fire damage and she and the children were homeless. She was moved to a motel. That day, a Division caseworker visited and the children were not present. Susan stated they were with relatives. Susan checked out of the motel on June 29, 2009 and the Division was unable to locate her, Jacob or the children. The Division later learned the family had moved to New York, and a case was opened for them in that state.
On November 23, 2009, the Division received a referral stating that Susan and the children were now back in Williamstown, New Jersey and living with a friend. The friend reported that Susan was smoking marijuana and having sex for money. A Division caseworker went to the friend's home and found Susan. She told the caseworker the children were sometimes living with her and sometimes staying with relatives in Sicklerville.
On December 11, 2009, a caseworker came to transport Susan for a drug screen. Susan told the worker she would test positive for marijuana.
On December 14, 2009, the Director of the Pfeiffer Community Center in Williamstown, where Yasmin and James attended daycare, called the Division to report concerns about the children. Yasmin appeared to have ringworm and James' ear appeared to be infected. The relatives who were caring for them told the Director that Susan had abandoned the children.
An emergency removal of the children was conducted and they were placed in foster care. On December 16, 2009, the trial court found the removal was appropriate. Susan was ordered to complete a substance abuse evaluation and a psychological evaluation. A urine screen taken that day in court was positive for THC.
On January 5, 2010, Susan did not attend the scheduled evaluation at CFS. On January 20, 2010, the substance abuse evaluation was held. Susan tested positive for benzodiazepines. She was again referred to CFS, but failed to attend two appointments. Susan was terminated from CFS for non-compliance.
On March 9, 2010, Susan attended a psychological evaluation with Dr. Larry Seidman. She was diagnosed with "dysthymic disorder, panic disorder with agoraphobia, [PCP] abuse, cannabis abuse, and avoidant personality disorder." Dr. Seidman recommended that Susan complete an intensive outpatient drug program. He also opined that Susan "was not ready or capable of assuming the custodial role with her children."
On March 12, 2010, Susan successfully completed parenting classes. On March 17, 2010, the court held a fact-finding hearing, which resulted in the order substantiating abuse and neglect, which we reversed in our April 4, 2012 decision.
Susan did not show up for a drug evaluation on April 4, 2010. However, she was seen by a psychiatrist at CFS's Family First program on April 16, 2010 and was prescribed medications.
On April 24, 2010, Jacob was arrested for aggravated assault against Susan. She obtained a temporary restraining order against him on April 25, 2010. In her complaint, Susan referred to prior, unreported assaults against her by Jacob.
On May 15, 2010, Susan was discharged from domestic violence counseling at the Camden County Women's Center for non-compliance. On June 30, 2010, she was terminated from the CFS Family First program for the same reason.
After a July 7, 2010 compliance hearing, Susan was ordered to attend substance abuse treatment, submit to random urine screens, and attend individual counseling and comply with recommendations. Jacob was ordered, once he was released from jail, to attend a psychological and substance abuse evaluation.
Susan did not attend a substance abuse evaluation with CFS scheduled for July 8, a July 23 random urine screen at SODAT, or a July 28 substance abuse evaluation. She also refused a substance abuse assessment on August 18, 2010.
Jacob was released from jail on August 28, 2010. He thereafter failed to show up for drug evaluation appointments on October 6, 16, 20 and 29, 2010. Susan began substance abuse treatment on November 15, but was discharged from the program on December 15, 2010 after missing nine of the thirteen scheduled group counseling sessions. She tested positive for marijuana and alcohol on November 8 and 15, 2010.
On November 24, 2010, Jacob attended his psychological evaluation. He was diagnosed with "post[-]traumatic stress disorder, panic disorder with agoraphobia, major depressive episode severe with psychotic features, depersonalization disorder and antisocial personality disorder." It was recommended that he attend a psychiatric evaluation, monthly psychiatric monitoring and, once stabilized, anger management and parent education classes.
On January 14, 2011, a permanency hearing was held and order entered directing the Division to file a guardianship complaint because the children had been in placement since December 2009 and neither parent had been able to complete any of the offered services. Susan tested positive for THC on that date and Jacob did not respond when called for his drug test. On February 28, 2011, the Division filed the guardianship complaint.
On April 5, 2011, Susan began attending domestic violence classes again but on July 25, 2011, she was terminated for non-attendance. Jacob began anger management classes on April 7, and was scheduled to begin domestic violence classes on April 14, 2011. However, he did not report for any domestic violence classes and only attended two anger management classes.
The guardianship trial was originally scheduled for September 8, 2011. However, Susan tested positive for marijuana on that date and Jacob had not yet attended his psychological evaluation. The trial began on October 6, 2011, but Jacob did not attend.
The only expert who testified was Linda R. Jeffrey, Ph.D., who was called by the Division. The trial judge found that Dr. Jeffrey qualified "as an expert in the field of clinical psychology and the treatment of alcohol and other psychoactive substance abuse disorders." The judge also found Dr. Jeffrey to be a credible witness.
Dr. Jeffrey performed a psychological evaluation of Susan and a bonding analysis of both parents with the children. As a result of her testing and observations, Dr. Jeffrey diagnosed Susan as "having adjustment disorder, substance dependence disorder, alcohol dependence disorder, and narcissistic personality disorder." According to Dr. Jeffrey, Susan had "a fundamental emotional maturity problem," which meant she was more interested in addressing her own needs, than those of her children. Susan told Dr. Jeffrey that there had been no domestic violence between her and Jacob, despite the documentary evidence to the contrary. She also stated that she planned to co-parent with Jacob.
Because Susan continually tested positive for marijuana, Dr. Jeffrey opined that the prognosis was "poor" for Susan to be able to go into remission. Her problems persisted even after the Division had removed the children for the second time in December 2009. Dr. Jeffrey testified Susan was not prepared to provide a minimum level of safe parenting.
Jacob refused to complete a psychological evaluation with Dr. Jeffrey. At first, he indicated that, because of a language barrier, he could not understand the testing process. An interpreter was provided at the next session, but after Jacob asked the interpreter to complete the test for him, the evaluation could not be completed.
Dr. Jeffrey performed a bonding evaluation of the children with Susan and Jacob. She observed that neither parent exercised any parenting authority. They simply allowed the children to do as they pleased. Dr. Jeffrey stated the parties acted like "adult indulgent babysitters" rather than as parents. Dr. Jeffrey opined that the children had "an insecure attachment" with Susan and Jacob. This is a type of bond where the children have an "affectionate tie" with the parents, but lack trust in the relationship. Dr. Jeffrey testified that, when a bond like this ends, there is harm, but it is neither serious nor enduring.
Dr. Jeffrey also conducted a bonding evaluation of the children and their foster parents. John had always been in a different home than his siblings. He had been in his current home for about five months at the time of trial. He was behaving much better than he had in the past. The Division's plan for him was select home adoption. The twins were living with foster parents who stated they wished to adopt them. Dr. Jeffrey opined that the children needed to move on so they could achieve security in their lives.
A Division caseworker, Jennifer Perez, testified the Division had explored possible relative placements for the children, but none of Susan and Jacob's relatives were able to take on a parental role. Perez testified that Susan and Jacob did attend weekly supervised visits with the children.
Susan testified she did not complete her counseling and substance abuse programs because she could not afford them and because she was homeless. She explained that, at the bonding evaluation, she and Jacob wanted the children to have a good time, since they only saw them once a week. Susan admitted she had been using marijuana since November 2009. Susan also acknowledged the domestic violence that occurred during her relationship with Jacob. However, she claimed that, for the past month, she was no longer living with him.
Following the two-day bench trial, the trial judge issued an order and a thirty-four page written opinion on October 11, 2011 terminating Susan and Jacob's parental rights to John, James and Yasmin. The judge found that the Division had proved its case by clear and convincing evidence.
II. Susan raises the following issues on appeal:
THE TRIAL COURT ERRED IN FINDING THAT THE "BEST INTERESTS" TEST WAS PROVEN BY CLEAR AND CONVINCING EVIDENCE.
(A) THERE DID NOT EXIST CLEAR AND CONVINCING EVIDENCE TO SUPPORT THE FINDING THAT THE HEALTH AND DEVELOPMENT OF THE CHILDREN WAS AND CONTINUED TO BE ENDANGERED BY THE PARENTAL RELATIONSHIP.
1. BECAUSE [THE DIVISION] FAILED TO PROVE THAT THE CIRCUMSTANCES WHICH LED TO THE REMOVAL OF THE CHILDREN DID NOT CONSTITUTE ABUSE OR NEGLECT, DYFS ALSO FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THE HARM REQUIRED UNDER PRONG ONE OF THE BEST INTERESTS ANALYSIS.
2. [THE DIVISION] FAILED TO PROVE PRONG ONE OF N.J.S.A. 30:4C-15.1(a) IRRESPECTIVE OF THE REVERSAL OF THE PRIOR ABUSE OR NEGLECT FINDING BY THIS COURT.
(B) CLEAR AND CONVINCING EVIDENCE DID NOT EXIST TO SUPPORT A FINDING THAT [SUSAN] IS UNWILLING OR UNABLE TO ELIMINATE THE HARM FACING HER CHILDREN.
(C) THERE DID NOT EXIST CLEAR AND CONVINCING EVIDENCE THAT THE DIVISION MADE REASONABLE EFFORTS TO PROVIDE SERVICES TO HELP [SUSAN] CORRECT THE CIRCUMSTANCES WHICH LED TO HER CHILDREN'S PLACEMENT OUTSIDE THE HOME.
(D) [THE DIVISION] DID NOT PROVE BY CLEAR AND CONVINCING EVIDENCE THAT TERMINATION OF PARENTAL RIGHTS WOULD NOT CAUSE MORE HARM THAN GOOD.
Jacob has raised the following contentions:
THE DIVISION FAILED TO ESTABLISH BY CLEAR AND CONVINCING EVIDENCE THAT IT IS NECESSARY TO TERMINATE [JACOB'S] PARENTAL RIGHTS IN ORDER TO PROTECT HIS CHILDREN'S BEST INTERESTS.
A. No Evidence that [Jacob] Harmed The Children.
B. No Evidence that [Jacob] is Unwilling or Unable to Eliminate Harm.
C. [The Division] Failed to Make Reasonable Efforts to Provide [Jacob] with Appropriate Services.
D. [The Division] Failed to Prove that Termination Would Not Do More Harm than Good.
The law governing our analysis is well-known. Parents have a fundamental constitutional right to raise their children. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 102 (2008) (citing Stanley v. Ill., 405 U.S. 645, 651-52, 92 S. Ct. 1208, 1212, 31 L. Ed. 2d 551, 558-59 (1972)). However, the constitutional protection surrounding family rights is not absolute and may be tempered by the State's parens patriae responsibility to protect the welfare of children. In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). In some cases, severance of the parent-child relationship may be required to protect the child. E.P., supra, 196 N.J. at 102.
"The burden rests on the party seeking to terminate parental rights 'to demonstrate by clear and convincing evidence' that risk of 'serious and lasting [future] harm to the child' is sufficiently great as to require severance of parental ties." In re Adoption of a Child by W.P. & M.P., 308 N.J. Super. 376, 383 (App. Div. l998) (alteration in original) (quoting In re Guardianship of J.C., 129 N.J. 1, 10 (1992)). The question for the court "focuses upon what course serves the 'best interests' of the child." W.P. & M.P., supra, 308 N.J. Super. at 383.
In evaluating the best interests of the child, courts follow a four-prong standard, codified in N.J.S.A. 30:4C-15.1(a). This standard allows for termination when the Division proves, by clear and convincing evidence, that:
(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;
(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;
(3) The Division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and
(4) Termination of parental rights will not do more harm than good. [N.J.S.A. 30:4C-15.1(a).]
"These standards 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." N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 258 (App. Div. 2005) (citing K.H.O., supra, 161 N.J. at 348). The considerations involved in determining parental fitness are "extremely fact sensitive and require particularized evidence that address[es] the specific circumstances in the given case." K.H.O., supra, 161 N.J. at 348 (citation omitted) (internal quotation marks omitted).
The scope of our review of a trial court's decision to terminate parental rights is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). "Because of the family courts' special jurisdiction and expertise in family matters," we accord deference to the trial court's fact-finding and the conclusions that flow logically from those findings of fact. Cesare v. Cesare, 154 N.J. 394, 413 (l998). We are further obliged to defer to the trial judge's credibility determinations and the judge's "'feel of the case' based upon the opportunity of the judge to see and hear the witnesses." N.J. Div. of Youth & Family Servs. v. A.R.G., 361 N.J. Super. 46, 78 (App. Div. 2003) (citing Cesare, supra, 154 N.J. at 411-12; Pascale v. Pascale, 113 N.J. 20, 33 (l988)), aff'd in part and modified in part, 179 N.J. 264 (2004). "When the credibility of witnesses is an important factor, the trial court's conclusions must be given great weight and must be accepted by the appellate court unless clearly lacking in reasonable support." F.M., supra, 375 at 259 (citing In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999)).
When the trial court's findings of fact are supported by adequate, substantial and credible evidence, they are binding on appeal. See Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (l974) (holding an appellate court is not to disturb the factual findings and legal conclusions of the trial judge unless they are "so manifestly unsupportable by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice"). Reversal is required only in those circumstances in which the trial court's findings are "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) (internal quotation marks and citation omitted). Applying this standard, we discern ample evidence in the record to support the judge's conclusions that the three children's best interests required termination of Susan and Jacob's parental rights.
In addressing the first statutory prong, Susan argues that because of our reversal of the judge's finding that she had abused and neglected the children, there is no longer a factual basis in the record to support the judge's finding that this prong was met in the guardianship case. We disagree. As we specifically stated in our prior opinion, our "determination [was] based solely on a snapshot of the case as presented on the record" on March 17, 2010. (Slip op. at 13). At that time, the only allegations against Susan concerned her use of marijuana on two occasions, leaving the children with relatives for a three-day period, and a temporary lack of housing. Id. at 25.
Much more has occurred since March 2010. Susan continued to use marijuana and even tested positive for this drug on the day the guardianship trial was to begin. Her housing is still not stable. She continued her relationship with Jacob, who had assaulted both her and Yasmin. Susan also failed to complete any of the services provided to her by the Division. The expert testimony presented at trial, which was unopposed, demonstrated that she is not able to parent the three children. None of these facts were present at the time of our prior decision, where we reminded the parties that Susan's appeal in this case would "be based on the trial court's record as of October 21, 2011," the day of the judge's decision terminating the parties' parental rights. Id. at 13.
It is also well settled that termination of parental rights and abuse and neglect matters are distinct causes of action with separate statutory elements and different burdens of proof. N.J. Div. of Youth & Family Servs. v. R.D., 207 N.J. 88, 108-112 (2011). There is no requirement that the Division even pursue an abuse and neglect finding before instituting a termination action. N.J. Div. of Youth & Family Servs. v. A.P., 408 N.J. Super. 252, 259 (App. Div. 2009). Thus, our prior ruling on whether there was sufficient evidence in March 2010 to find Susan had abused and neglected the children based on just the three incidents at issue at that time, did not bar the trial court from considering the entirety of the record developed in this case over the years in which the Division was involved with this family.
Both Susan and Jacob next argue the Division failed to prove the children's safety, health or development has been or will continue to be endangered by the parental relationship. However, the record does not support their contention.
The first statutory prong involves an inquiry into whether there has been an "endanger[ing] of the child's health and development resulting from the parental relationship[,]" and whether there will be future harm to the child's safety, health, or development if the parental relationship is not terminated. K.H.O., supra, 161 N.J. at 348. The harm "must be one that threatens the child's health and will likely have continuing deleterious effects on the child." Id. at 352. This standard may be triggered by a single or isolated harm, or by an accumulation of harms over time. Id. at 348. The absence of physical abuse alone is not conclusive, because the court also must consider the potential for serious psychological harm to the child. In re Guardianship of R., 155 N.J. Super. 186, 194 (App. Div. 1977).
Courts, however, need not wait to act until a child is actually irreparably impaired by parental inattention or neglect. The inability of a parent to provide any nurturing or care for his or her child for a prolonged period constitutes a harm under the standard. K.H.O., supra, 161 N.J. at 356. The fact that a parent may be morally blameless is not a sufficient reason to tip the scales in his or her favor. N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 438 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002).
Both parents argue there was no proof submitted to show the children were harmed by being exposed to the domestic violence that permeated Susan and Jacob's relationship. However, their argument ignores the fact that, while Susan stood by and did nothing to protect her, Jacob hit Yasmin with a belt. He was substantiated for abuse and Susan was substantiated for neglect as a result of this assault. Jacob continued to assault Susan both while the children were in her care and after they were again placed in foster care.
After the children were removed from her for the first time, Susan took Jacob back into the house as soon as he was released from jail, despite a court order prohibiting her from letting him have any contact with the children. Thus, she placed the children directly in harm's way. When Susan moved to New York, she did so in order to live with Jacob. He subsequently assaulted her and she came back to New Jersey, only to again return to him with the children. Her actions, and Jacob's actions in returning to the home in violation of court orders, prevented the children from staying together in a safe and nurturing environment, which clearly endangered their safety, health and development.
Neither Susan nor Jacob successfully completed domestic violence and parenting classes or substance abuse treatment. The Division continually stressed the dangers inherent in their relationship, which involved a long history of domestic violence, and which included an assault by Jacob against one of the children. Yet, the relationship continued until, according to Susan, just a month before trial. However, the family's past history strongly indicates that the few times Susan left Jacob in the past, she always returned to him.
Jacob was convicted for child endangerment after he struck Yasmin when she was less than two years old. He has never addressed his anger management issues and failed to undergo a required psychological evaluation.
Under these circumstances, the children's health and development would continue to be jeopardized if they were returned to either Susan or Jacob. Thus, the trial judge correctly held that the Division sustained its burden as to the first prong.
The second statutory prong requires the Division to show that the parent is unable or unwilling to eliminate the harm facing the child. N.J.S.A. 30:4C-15.1(a)(2). The focus of this inquiry is to determine "whether the parent has cured and 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." K.H.O., supra, 161 N.J. at 348. Alternatively, the State may show "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." Id. at 348-49. "The question is whether the parent can become fit in time to meet the needs of the child." N.J. Div. of Youth & Family Servs. v. T.S., 417 N.J. Super. 228, 244 (App. Div. 2010), certif. denied, 205 N.J. 519 (2011). The withdrawal of nurture and care for an extended period of time is itself a harm that endangers the health and development of the child. In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999).
This prong was clearly met as to both parents. Neither Susan nor Jacob have taken consistent steps to eliminate the harm facing their children. Susan remained in her relationship with Jacob, even after he hit Yasmin with a belt, and permitted him to return to the home despite a court order to the contrary. Both parents refused to complete domestic violence counseling and programs. Susan continued to exercise poor judgment, which continued to put the children at risk. As the trial judge observed:
However, what is most alarming is that [Susan] sees no problem in [Jacob's] behavior. According to her psychological evaluation with Dr. Jeffrey, [Susan] believes she and [Jacob] have a perfect parenting alliance and she endorsed all positive things about his parenting style. Moreover, she believed she was a good parent. This Court is cognizant of the effects domestic violence can have on an individual. If [Susan] is suffering from the cycle of violence, [Susan] would be unable to eliminate the harm facing her children or provide a safe and stable home for her children.
Susan also continued to abuse marijuana, which further demonstrated her unwillingness to eliminate the harm to her children. After the children were removed for the second time, she failed to complete any substance abuse program.
Jacob did not complete any of the many services and programs offered to him. He failed to complete his psychological evaluation. He did not even take part in the trial. As a result of his conduct, the children have not had a stable home since February 2007. He has not demonstrated any willingness to address the issues facing this family. The trial judge's finding that the second prong of the statutory test was satisfied is fully supported by the record.
Susan and Jacob argue the record does not support the judge's finding that the Division made reasonable efforts to provide adequate services and that it considered alternatives to termination. This argument also lacks merit.
The third statutory prong requires DYFS to make reasonable efforts to provide services to assist the parents to correct their circumstances, and to consider alternatives to parental termination. N.J.S.A. 30:4C-15.1(a)(3). A court evaluates on an individual basis the efforts undertaken by DYFS to reunite a family. D.M.H., supra, 161 N.J. at 390. These efforts may include the encouragement of an ongoing parent-child relationship and regular visitation. Id. at 393. "Consistent efforts to maintain and support the parent-child bond are central to the court's determination." Ibid.
Susan was given many opportunities to engage in, and comply with, multiple services. Her compliance was minimal at best and she was continually terminated from programs for non-attendance. She never completed any of the substance abuse programs to which she was referred. She failed to attend eight of the seventeen domestic violence classes the Division arranged for her. Under these circumstances, there is ample evidence to support the judge's finding that Susan had done "absolutely nothing to have her children placed in her care."
Likewise, Jacob did little to address the problems which caused the children to be placed in foster care. He rarely attended the anger management and domestic violence classes the Division arranged for him.
The Division also reached out to the parties' relatives, but no one stepped forward to indicate an interest or ability in assuming a parental role for the children. Thus, the record supports the trial judge's finding that the Division made reasonable efforts to assist Susan and Jacob and there were no alternatives to the termination of her parental rights.
The fourth statutory prong requires the court to determine whether termination of parental rights will not do more harm than good to the child. N.J.S.A. 30:4C-15.1(a)(4). This prong "serves as a fail-safe against termination even where the remaining standards have been met." Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 609 (2007). The question is "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 ultimate determination to be made under the fourth prong is "whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with [the] natural parents than from the permanent disruption of [the] relationship with [the] foster parents." K.H.O., supra, 161 N.J. at 355. Weighing the potential harm from terminating parental rights against separating the child from foster parents requires expert testimony on the strength of each relationship. Ibid. When a termination action is based on parental unfitness rather than bonding, the proper inquiry under the fourth prong focuses on the child's need for permanency and the parent's inability to care for him or her in the foreseeable future. N.J. Div. of Youth & Family Servs. v. B.G.S., 291 N.J. Super. 582, 593 (1996).
Here, the trial judge found that termination of parental rights would not do more harm than good and concluded that terminating Susan and Jacob's parental rights was in the children's best interests. There was ample evidence in the record to support this finding.
Dr. Jeffrey's uncontradicted expert testimony was that all three children had only an insecure attachment to their parents. Such an attachment is harmful to them because it impairs each child's ability to detect possible risk of harm from others and impairs their ability to form future emotional bonds, possibly even with their own children.
Thus, Dr. Jeffrey concluded it would be unlikely that severance of the children's relationship with their parents would cause them serious or enduring harm. The judge found Dr. Jeffrey credible. "[W]e rely on the trial court's acceptance of the credibility of the expert's testimony and the court's fact-finding based thereon, noting that the trial court is better positioned to evaluate the [expert] witness' credibility, qualifications, and weight to be accorded [the] testimony." DMH, supra, 161 N.J. at 382.
There was, therefore, sufficient evidence in the record to support the judge's finding that the Division had proven by clear and convincing evidence that termination of parental rights will not do more harm than good. While the children will undoubtedly suffer from some degree of loss from the termination of their parents' parental rights, the children cannot and should not be expected to wait for their parents to finally realize they need to put the children ahead of their own personal interests. N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 114 (App. Div.), certif. denied, 180 N.J. 456 (2004). There comes a time when a child's need for permanency outweighs the parent's right to maintain a relationship with his or her child. K.H.O., supra, 161 N.J. at 355. The record fully supports the trial judge's finding that that point was reached here.
Susan and Jacob point out that, following the judge's decision, the Division's placement plan for all three children changed. John had been in a separate placement from James and Yasmin. On May 5, 2012, James and Yasmin were moved at the request of their foster parent and placed together in a new foster-adoption home. On June 20, 2012, John was placed in the same home as the twins. The new foster parents have committed to adopting all three children.
Susan and Jacob argue that severing the children's ties with their new foster parents could not possibly harm them, since the placement has only recently taken place. Therefore, they argue the children should be returned to them. We disagree.
The best interests of all three children required the termination of Susan and Jacob's parental rights. Contrary to their argument, the recent change in placement has not "negated" the basis for the judge's findings regarding prong four. While there will be some limited harm to the children when Susan and Jacob's parental rights are terminated, this harm will be neither serious nor enduring. On the other hand, the insecure attachment they have with their parents causes them more serious harm, both now and in the future. It is in their best interests to sever that attachment.
Susan and Jacob have never addressed the many problems that prevent them from acting as parents. As a result, all three children have been denied permanency for many years. The children are now all together for the first time and have the opportunity for the permanency denied to them by Susan and Jacob since 2007. While the Division's placement plan has changed, it appears, on its face, to have changed for the better because the children now have the opportunity to all live together. Thus, the record in this case fully supports the trial judge's conclusion that termination of Susan and Jacob's relationship with the three children would not cause the children more harm than good.