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New Jersey Division of Youth and Family Services v. S.P. and T.Y.B

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


December 5, 2012

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
S.P. AND T.Y.B., DEFENDANTS-APPELLANTS.
IN THE MATTER OF THE GUARDIANSHIP OF M.S. AND J.P., MINORS.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-126-10.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 2, 2012

Before Judges Messano, Ostrer and Kennedy.

In these consolidated appeals, defendants T.Y.B. (Tess) and S.P. (Sam) appeal from the termination of their parental rights to their son, J.P. (Jason), and Tess also appeals from the termination of her parental rights to her son, M.S. (Mark).*fn1 We have considered the arguments raised in light of the record and applicable legal standards. We affirm.

I.

Tess is the mother of five other children: C.B. (Charles); R.S. (Ryan); T.S. (Tim); K.S. (Kate); and A.B. (Andy). None of the children are in her care and custody.*fn2 Her parental rights to Charles and Andy were terminated in separate actions prior to the resolution of this case. Tim, Ryan, and Kate reside with their biological father, Larry, and were not subjects of this action.

Tess gave birth to Charles while she was still a teenager. She left high school and began a relationship with Larry, twenty-two years her senior, which led to the birth of their first child, Ryan, in 1998. In December of that year, Larry called the Division of Youth and Family Services (the Division)*fn3 to report Tess was handling Ryan roughly when she changed his diaper.

After some initial investigation, the case was closed in February 1999.

In November 1999, a social worker at Beth Israel Medical Center reported to the Division that Ryan, then a year old, weighed only fifteen pounds. Tess, who was again pregnant, reported being physically abused by Larry. Although it was determined that Ryan was not malnourished, the Division referred Tess to a nutritionist to assist her in feeding Ryan and referred her and Larry for domestic violence counseling.

Tim was born in January 2000, and Kate was born June 2002. In March 2003, Tess was arrested for hitting four-year-old Ryan with a belt, leaving welts on his legs, back, and stomach. Charles and Tim reported that their mother had also hit them, and an unexplained mark was found on Tim's back. Larry was granted custody of Tim, Ryan, and Kate; Charles was placed in the custody of his biological father.

Frank Dyer, Ph.D., performed a psychological evaluation of Tess in June 2003. Dyer found Tess to be "an anxious, dependent, emotionally needy young woman who projects an aura of helplessness," and whose intellectual functioning was in the mildly retarded range. Dyer expressed "serious reservations" about Tess's ability "to parent her children independently," stating that "no matter how well-adjusted she became as a result of therapy," her cognitive limitations would mean that she would need in-home supervision before she could "be entrusted with the care of any child." Dyer recommended individual psychotherapy, parenting skills classes, and domestic violence counseling. The Division referred Tess for various services.

In April 2004, Tri-City People Corporation (Tri-City), which oversaw Tess's supervised visitation with her children, advised the Division that Tess had brought her then-newborn son, Andy, to the visit. Concerned for the baby's well-being given the psychological evaluation from Dyer, the Division effected an emergency removal and placed Andy in foster care.

On June 8, 2004, Tess was convicted of endangering the welfare of a child, Ryan, sentenced to probation and ordered to continue parenting counseling arranged by the Division. In July, the Division received a referral indicating that Charles was no longer with his father, but rather was living with Tess at Larry's home. Larry told the Division only that Charles had been calling him from Tess's home in New York for the past two weeks. Tess and Charles could not be located by the Division.

It is unclear from the record whether the Division was able to locate Tess during the next few months. In September, Babyland Family Services advised the Division that Tess's attendance at parenting classes was sporadic; Family Connections, a counseling service Tess was referred to by the Division, advised that she failed to keep an intake appointment. In a November 8 letter, the Division documented its attempts to reach Tess by phone and mail. The caseworker requested that Tess contact her "so that I can talk with you about your progress with the current case plan." The Division advised Tess of a psychological evaluation scheduled for December.

In February 2005, Family Connections closed Tess's case due to "sporadic" attendance and "limited contact." In March 2005, the Division advised Tess that attempts to contact her had been unsuccessful, and she had failed to complete any of the services provided, including a psychiatric evaluation, individual counseling and an updated assessment by Dyer.

In August 2005, the Division received another referral indicating that Tess had beaten Charles with a belt buckle. The referrant indicated Tess and Charles were at Larry's home. Division caseworkers went to Larry's home to investigate. Larry confirmed seeing Tess and Charles on a weekly basis when she came to visit the children, but Larry claimed that he never allowed them to stay with him and "his family."

While the workers were in Larry's home, Tess called, and Larry told her to come over. When she arrived with Charles, the workers interviewed Tess. She claimed to be living with a friend but provided no address; later in the interview, Tess claimed to be living in New York City. Tess told the workers that "she did not know that she c[ould] not have her child with her." Charles told the workers he stayed with his maternal aunt, Penelope, and, while the workers were still in the home, Penelope arrived to pick him up. Charles was released to Penelope's custody after Tess and Penelope executed a case plan, and Tess was again advised that she could not have unsupervised contact with any of her children. Ultimately, the Division determined the charge of abuse as to Charles was "unfounded."

In June 2006, Penelope contacted the Division, advising that she had returned Charles to his father because Tess "was causing problems for her." Penelope advised that Charles' father had since returned the child to Tess. The Division was unable to contact Tess, but, approximately two weeks later, the caseworker received a phone call from Tess. She told the worker Charles was with his father in Florida. When contacted, the father denied this and told the worker that he sent his son "up for the summer to visit with his mother." On September 13, 2006, the Division was granted custody of Charles, although his whereabouts were still unknown. When he was finally located in New York, the Division effected an emergency removal, and Charles was placed in foster care in December.*fn4

In January 2007, Tess was psychologically evaluated by Albert R. Griffith, Ed.D., in conjunction with permanency planning for Andy, who had been in foster care for approximately two years. Griffith found Tess was functioning in the "mildly retarded range." Griffith noted that Tess had never functioned independently and could not handle complex social challenges. He concluded that it could not be expected that Tess would "be able to provide primary parenting for [Andy] in the foreseeable future." The Division referred Tess to parenting classes at the Family Life Education Center (FLEC).

In November 2007, Tess was again evaluated, this time by psychologist Diane McCabe, Ed.D. Tess admitted that she was pregnant but stated "she had no intention of keeping the baby." McCabe opined that "[t]his mother's anger -- with its potential for displacement -- along with her cognitive limitations and inability to function independently, significantly limits her capacity to parent effectively and with assurance that her children will be adequately protected."

In February 2008, FLEC reported that Tess had attended her classes sporadically, presenting as disinterested because she had "completed similar programs in the past." The treatment goals were not met and Tess did not complete the program. Tess failed to maintain contact with the Division, which could not locate her and sent letters to hospitals around Newark and New York City requesting that they advise if Tess presented at its facility.

The Division received a report that Mark was born on March 18, 2008.*fn5 Social workers in New York reported that Tess intended to move back to New Jersey, with her newborn, and live with Larry. Attempts to contact Tess through the Administration for Children's Services in New York were unsuccessful. When she was eventually reached by phone in May, Tess denied having given birth to Mark. In May 16, 2008, Tess failed to appear at trial in Andy's guardianship proceeding, and an order was entered terminating her parental rights on May 19.

On August 8, 2008, the Division filed an order to show cause for investigation and to produce Mark. On August 6, Tess contacted the Division's caseworker asking whether a portable game system she had left for Charles had been given to him. When told it had not, because it would permit the exchange of emails, Tess became angry. She contacted the Division's supervisor, who heard "an infant crying in the background." Tess confirmed "the baby was in her presence." When Tess arrived at the Division office a few days later, she said she did not know where Mark was. A few days later, the caseworker told Tess that if she did not appear in court for a hearing in two days' time, a warrant would be issued for her arrest. Tess did not appear, refused to disclose her child's whereabouts and a warrant was issued for her arrest.

In November 2008, the Division received a referral providing an address where Tess had been seen. The Human Services Police responded to the address and found Tess and Mark. Mark was placed with a foster family on an emergent basis. At a fact-finding hearing held on January 14, 2009, Tess was found to have abused and neglected Mark, the order noting that she had "cognitive and psychological issues that preclude[d] her from safely parenting any child independently," that "these issues remained unaddressed due to her previous and current non-compliance with services[,]" and that Tess had "no independent housing, no income, and no means to support herself or the child . . . ."

In January 2009, Barry Katz, Ph.D., psychologically evaluated Tess, who told Katz that she was five months pregnant but did not know if she was going to keep the baby. Katz noted that Tess had "significant and pervasive paranoid thoughts and delusional ideation" which would mean that she would "display[]

[a] severe disturbance in interpersonal interactions and daily functioning." Tess was "severely narcissistic, paranoid and ha[d] disturbance of thought and in her interpersonal relationships." These problems "result[ed] in significant impairments in [Tess's] ability to care for a child on an ongoing basis" and "increase[d] the risk of continued harm to a child placed with" her.

In April, the Division again lost contact with Tess. It sent out letters to area hospitals advising that Tess was more than eight months pregnant. On May 21, 2009, during a hearing on the guardianship case involving Charles and Mark, Tess's counsel advised the judge that she had given birth to a baby boy, Jason, on March 5, and Sam was his father. Tess provided an address for Sam and Jason. The judge entered an order, pursuant to N.J.S.A. 30:4C-11.2, permitting the Division to remove Jason "due to imminent danger to [his] life, safety or health." The order further noted that Tess had twice told the Division that she had terminated the pregnancy and had "fled and hid prior children from the Division." Jason was removed that afternoon and placed in foster care.

Following trial, Tess's parental rights to Charles were terminated by order dated June 29, 2009.*fn6 On September 2, 2009, the court entered an order, pursuant to N.J.S.A. 30:4C-11.3(c), relieving the Division of its obligation to provide reasonable efforts to reunify Tess with Mark and Jason.*fn7 In November, DNA tests confirmed that Sam was Jason's father. At the time, Sam was incarcerated in the Essex County Correctional Facility.

The Division's efforts to contact Tess regarding alternative placement resources for her son were not successful. The Division sent multiple letters requesting that Tess contact caseworkers to discuss permanency plans for Jason and Mark. Ultimately, Tess supplied the name of a friend who was ruled out by the Division.

In December, Jason was placed in the same foster home where Mark had been since April. The foster father indicated his interest in adopting both boys.

Sam provided the names of relatives, including his sister, who were potential placements for Jason. After some initial difficulty contacting her, the Division determined that the sister's home had insufficient space. Sam also named his nephew in Maryland. While in the process of an interstate evaluation, the nephew and his paramour separated and the case was closed. The nephew returned to New Jersey and moved in with his mother, the above-mentioned sister, whose home was not large enough. The Division excluded Sam's nephew as a placement alternative.

Andrew P. Brown, III, Ph.D., psychologically evaluated Sam on September 28, 2010, at the Kintock halfway house in Newark. Sam had been incarcerated for eighteen months, released to Kintock and planned to move in with his sister upon satisfying his parole requirements. He was employed at a warehouse. Sam admitted prior incarcerations and a history of arrests beginning at age sixteen. The record reflects three prior judgments of conviction that were entered on a single day in February 2004. Brown recommended that reunification be considered only when Sam could demonstrate that he was prepared to parent. The prognosis for parenting was "guarded pending [Sam]'s ability to remain free of legal difficulty upon his release."

Sam was referred to and accepted into a parenting skills training program with Alex, Sam's other son who was also in the Division's custody, at Essex County College. Supervised visitation with Jason was arranged through Tri-City. However, even though he had not seen Jason for some time, Sam failed to attend on many occasions, and, in December, Tri-City terminated Sam from the program because of his poor attendance.

Tri-City also supervised visitation between Tess, Mark and Jason. But, in April 2011, the Division received a call that Tess had confirmed her visitation and failed to attend each of the last three sessions. Also, Tess told her caseworker that she was pregnant again and had left the shelter where she was living, which had been providing her with bus cards.

In April and May, Katz was able to update his psychological evaluation of Tess and conduct bonding evaluations of Tess, Mark and Jason, and the children with their foster father. Katz also psychologically evaluated Sam.

Katz concluded that Tess "continue[d] to display a pervasive pattern of denial and minimization of her problems", and she described unrealistic plans such as having all seven children returned to her care. She displayed no understanding of the harm her pattern of neglect, physical abuse, lack of compliance with court orders and abandonment had caused her children.

While the boys recognized Tess as a familiar figure, they did not show a bond or attachment to her as a parental figure, and did not look to her "for ongoing emotional support, nurturance or guidance." Although Tess loved her children, Katz opined that her cognitive and emotional limitations left her unable to deal with the children's behavior. These problems posed a significant risk of harm to the children because it was likely that Tess would again resort to corporal punishment and abuse.

Sam admitted that he stopped going to visits and told Katz that it was useless to continue because he was not going to have custody of Jason. Sam admitted that he had an anger problem and stated that he was taking anger management counseling at Kintock Group. Sam admitted using marijuana on a daily basis from 2007 until his incarceration in 2009, at which point he stopped.

Katz opined that while Sam did not present an immediate risk for child abuse, he did have significant deficits that indicated a risk of problems in parenting. Katz expressed concern that Sam's drug use had stopped only when he was incarcerated, and Sam had yet to "demonstrate[] ongoing sobriety when he is in the community."

In the bonding evaluation of Jason and Mark with their foster father, Katz noted that both boys referred to their foster father as "daddy." Katz found that the boys had a strong, stable attachment to their foster father, and they viewed him as their primary parental figure.

Katz concluded that neither Tess nor Sam had "the capacity to care for a child at th[at] time or in the foreseeable future." Both Tess and Sam had "parenting deficits that [were] chronic and predate[d] the birth of the[] children" and "ha[d] been resistant at efforts to change them." Katz concluded that the children did not have a bond with Tess, and "[t]here would be no harm or risk to the children if the biological parents had their rights terminated and the children were to be adopted."

At the request of the children's law guardian, Elizabeth M. Smith, Psy.D., performed psychological evaluations of Tess and Sam, as well as bonding evaluations of the boys with Tess and their foster father. Smith found Tess to be "an immature, impulsive, unstable woman with limited intellectual abilities" and "a personality disorder with dependent and borderline features." Smith concluded that Tess's prognosis for change was poor and she "presente[d] an unacceptable degree of risk for child abuse and neglect" should any child be placed in her care.

Sam told Smith that he was at fault for failing to visit Jason, the result of missing curfew at the halfway house and being confined to Kintock for thirty days. Sam described the two visits he did have with Jason as being "like two strangers." Sam stated that he would not have a problem with Tess visiting Jason whether her parental rights were terminated or not.

Although Smith believed Sam to be sincere in his wish to parent Jason, she "ha[d] doubts about his ability to provide a stable and safe home." While Sam was intelligent and had good intentions, he "tended to take the path of least resistance." Sam admitted that he had not completed parenting classes. Smith noted that it was "unclear . . . how much time he ha[d] actually spent parenting any of his children." Sam was "quite naive regarding [Tess's] obvious deficits."

Smith's observation of Mark and Jason with their foster father was similar to that described by Katz. She concluded that Mark and Jason "demonstrated a warm and secure attachment to their foster father and to each other." The foster father evidenced good child management skills and the children were doing well in his care. On the other hand, Smith's observation of Tess with her children were similar to those made by Katz.

Smith concluded that the boys had a warm and secure relationship with their foster father and the loss of their foster parent and/or a brother "would be highly traumatic . . . and place them at risk for a host of short and long[-]term consequences." Tess could not mitigate this harm, whereas the foster father was capable of mitigating any sense of loss the boys might feel if Tess's parental rights were terminated. Smith concluded that the boys' best interests were served if adopted by their foster father.

At trial, the Division produced Katz as its expert witness, and Smith was produced as an expert by the children's law guardian. Both testified consistently with their reports and the opinions expressed therein.

As to Sam, Katz testified that his testing revealed elevated scales for antisocial personality disorder. This indicated strange thinking patterns and ideation, trouble dealing with interpersonal relationships, anxiousness, and fear of bad outcomes. Katz explained that Sam was extremely limited in how he dealt with people, especially children, and was limited in how he could deal with frustration, anger, and the needs of his sons. Katz also explained that although Sam did not present as a risk of future abuse in his testing, Sam had not been involved with his children, had no history of stress in parenting and was not responding as someone who had experienced anger with children. Katz also did not believe Sam would be capable of understanding and mitigating the harm to Jason if separated from his foster father and Mark.

Smith noted that despite understanding the significance of forming a bond with a child at an early age, Sam had not undertaken reestablishing his visits with Jason after they were terminated. While Sam "seemed to have very good aspirations and some good ideas about parenting" he "just seemed not to follow through on things." Smith did not believe that Sam could mitigate the harm caused to Jason by separating him from his foster father and Mark because he "just doesn't seem very attuned and able to act on [the] information he has." Smith questioned Sam's commitment to actually raising Jason.

The Division's caseworkers -- Carlos Quinones, Zara Daniels and Eloise McDaniel -- also testified at trial. Quinones was the caseworker from March 2007 to February 2009, during Tess's pregnancy with Mark. He testified to much of what we have recounted above, including his efforts to locate Tess and Mark. Quinones admitted that he had never formulated a case plan with Tess and could not explain this failure. Quinones explained the difficulties in contacting Tess by phone and by mail.

Daniels worked on the case from February 2009 to April 2010. When she first assumed responsibility for the case, Tess was "in missing status." Daniels testified that in late April 2009, Tess had arrived at the Division's office unannounced and untruthfully reported that she had terminated her pregnancy. Daniels and others were involved in the removal of Jason in May 2009. Daniels also described the great difficulty she had in contacting Tess while assigned to her case.

Tess refused to give Daniels her address, making it difficult to provide referrals for services. Daniels did not complete a case plan for this reason. She could not remember ever having a working telephone number for Tess. When Daniels received the case, the goal was adoption, not reunification.

As to Sam, Daniels explained that the Division assessed some of his relatives as potential placements for Jason. She could not recall any meetings or conversations with Sam while he was incarcerated, and acknowledged that the Division can offer some services to an incarcerated parent but not all of those services were offered to Sam.

McDonald became the caseworker in April 2010 and was the worker assigned at the time of trial. She described her difficulties in contacting Tess. In May 2010, McDonald tried to formulate a case plan with Tess, but when she mentioned psychotherapy, which had been recommended, Tess laughed and refused to sign the case plan. Despite the "no reasonable efforts" order, McDonald still attempted to provide services to Tess, but Tess did not comply.

Neither Tess nor Sam testified or called any witnesses. In summation, Sam's attorney stated that Sam was not presenting himself as a placement at that time. He asked the court to consider an alternative, i.e., placement with Tess.

On August 16, 2011, the judge entered an order terminating Tess's parental rights to Mark and Jason, and Sam's parental rights to Jason. This appeal followed.

II.

We set forth some of the well-known principles that guide 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)).

We accord particular deference to the judge's factfinding

because of "the family courts' special jurisdiction and expertise in family matters." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (citation omitted). "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." E.P., supra, 196 N.J. at 104 (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007)).

"[W]here the focus of the dispute is . . . alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom, the traditional scope of review is expanded." M.M., supra, 189 N.J. at 279 (internal quotation marks and citations omitted). Yet, "even in those circumstances[,] we will accord deference unless the trial court's findings went so wide of the mark that a mistake must have been made." Ibid. (internal quotation marks and citations omitted).

"The focus of a termination-of-parental-rights hearing is the best interests of the child[,]" and the Division must "satisfy by clear and convincing evidence four factors, known as the best-interests-of-the-child test, set forth in N.J.S.A. 30:4C-15.1(a)." N.J. Div. of Youth and Fam. Servs. v. F.M., 211 N.J. 420, 447 (2012) (citations omitted). Those statutory prongs are:

(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 [D]ivision 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 (1999). The 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).

A.

We first address the issues raised by Tess. She argues that the Division failed to establish the third prong of the statutory test by clear and convincing evidence. Specifically, Tess contends that the Division failed to create a case plan, thereby "violating" State law, and failed to provide reunification services. She argues these failures "reflect[] a bias against parents with limited financial and intellectual means." Tess also contends that the judge failed to "properly consider alternatives to termination."

In addressing the trial evidence regarding prong three, the judge found that despite the "no reasonable efforts order," the Division continued to offer services to Tess which she refused. He noted Tess's history of lying and hiding pregnancies from the Division, as well as her failure to obey prior orders. Citing the expert psychological testimony, the judge concluded that Tess was unable to be an effective parent even if she availed herself of all the services offered. The judge further concluded that the Division had made reasonable efforts in seeking alternatives to termination, including the ruling out of suggested placement resources offered by Tess.

N.J.S.A. 30:4C-15.1(c) defines "reasonable efforts," which consist of actions by the Division "to assist the parents in remedying the circumstances and conditions that led to the placement of the child and in reinforcing the family structure." 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.

A court must consider whether a parent actively participated in the reunification effort. See In re Guardianship of D.M.H., 161 N.J. 365, 390 (1999). The reasonableness of the Division's efforts "is not measured by their success." Id. at 393. Ultimately, "[t]he failure or lack of success of the [Division's] efforts does not foreclose a finding that the Division met its statutory burden to try to reunify the children with the family." N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 620 (App. Div.) (citing D.M.H., supra, 161 N.J. at 393), certif. denied, 192 N.J. 68 (2007). Moreover, "[e]ven if the Division ha[s] been deficient in the services offered to" a parent, reversal of the termination order is not necessarily "warranted, because the best interests of the child controls." Id. at 621.

We reject the argument that the Division failed to make reasonable efforts toward reunification prior to the September 2, 2009, order relieving it of such obligation pursuant to N.J.S.A. 30:4C-11.3. The record is replete with instances of the services provided, which, in nearly every instance, Tess failed to attend or fully complete. She categorically refused to consider psychotherapy, a modality repeatedly recommended.

Tess frequently failed to keep in contact with the Division and failed to provide current information regarding her address.

Tess specifically asserts that the Division failed to formulate a case plan, which she claims is a "per se" violation of law. A case plan is defined as "a written statement of the Division's intervention on behalf of a child, which includes identification of the problems which necessitate Division involvement with the family, the services or actions needed, who will accomplish or provide them, and the planned time frame for providing each service." N.J.A.C. 10:133-1.3. A case plan is required to be developed within sixty days of a report or referral to the Division, within thirty days of an out-of-home placement and every six months thereafter. N.J.A.C. 10:133D-1.4.

However, we recently said that a "[d]elay of permanency or reversal of termination based on the Division's noncompliance with its statutory obligations is warranted only when it is in the best interests of the child." N.J. Div. of Youth and Family Svcs. v. K.L.W., 419 N.J. Super. 568, 581 (App. Div. 2011). We are firmly convinced based on the overwhelming evidence in the record that, when weighed against the best interests of Mark and Jason, the Division's failure to formulate a case plan in this case was insignificant.

We are sensitive to the argument Tess makes regarding institutional "bias" in the Division's efforts. "Parents are not to be adjudged unfit because they lack resources or intelligence, but only by reason of conduct detrimental to the physical or mental health of the child, specifically in the form of actual or imminent harm." A.W., supra, 103 N.J. at 616. We have said that "[t]he Division's efforts . . . must by their very nature take into consideration the abilities and mental conditions of the parents." N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 442 (App. Div. 2001). In this case, however, the evidence is that the Division's attempts were tailored to Tess's needs, but, in most instances, they were thwarted or rejected. We see no evidence of bias.

Lastly, we reject Tess's claim that the Division failed to consider alternatives to termination. She argues that she presented a friend, C.W., as a placement alternative but the Division ruled her out without reason. We reject that argument because the evidence reveals that C.W., who was a Division-approved resource parent, met with the caseworker in October 2009 and attended visitation with Tess and the boys during October and November. However, by December, she no longer came to visitation, and Tess indicated that she had not spoken to C.W. for some time. There was never any further contact by

In sum, there was adequate, substantial, and credible evidence in the record to support the judge's conclusion that the Division had proven prong three by clear and convincing evidence. We affirm the order terminating Tess's parental rights to her sons Mark and Jason.

B.

Sam argues that because the trial judge made "insufficient and inaccurate factual findings," we should remand the matter with instructions. Alternatively, Sam contends that the Division failed to establish all four prongs of the statutory test.

The trial judge concluded that Sam's involvement in Jason's life was marked by "half-hearted" attempts to avail himself of the Division's services. Once Sam's visitations were terminated, he made no effort to have the visits reinstated. The judge found that Sam lacked stable housing and never offered himself as an immediate placement for Jason. The judge found that the Division had made reasonable efforts in getting Sam involved and in considering alternatives to termination. But, the judge noted that Sam admitted he was a stranger to Jason, and he concluded that termination of Sam's parental rights would not do Jason more harm than good.

The failure to perform adequate fact-finding "constitutes a disservice to the litigants, the attorneys and the appellate court[,]" and unnecessarily complicates appellate review. N.J. Div. of Youth & Fam. Servs. v. J.Y., 352 N.J. Super. 245, 261 (App. Div. 2002). However, even if a trial court's legal analysis and findings are incomplete, "the underlying evidence and the court's findings of fact may be reviewed to ascertain whether the evidence fulfills the best interests standard of N.J.S.A. 30:4C-15.1(a)." D.M.H., supra, 161 N.J. at 378. While the trial judge's findings and conclusions were tersely stated, we believe the voluminous record in this case permits us to fully review the substantive arguments Sam presents. We now turn to them.

Sam claims the Division failed to prove prong one of the statutory test because it was impossible for him to have harmed or put Jason at risk since he was "prevented for caring for [Jason] due to his incarceration." Sam further claims it was error to find prong two satisfied because he was willing to provide a safe and stable home for his son, and "poverty alone cannot support a termination of parental rights."

When considering the first prong, 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," F.H., supra, 389 N.J. Super. at 615, the courts "need not wait to act until a child is actually irreparably impaired by parental inattention or neglect." D.M.H., supra, 161 N.J. at 383.

Regarding the second prong, we have said that "[c]oncern 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). 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.

Sam's incarceration was a relevant factor for consideration because it was probative of whether he was capable of properly caring for Jason. In re Adoption of Children by L.A.S., 134 N.J. 127, 135-36 (1993). However, we have said that "it is by no means settled or obvious that incarceration is so inimical to the [parental] relationship as to justify its termination as a matter of law." N.J. Div. of Youth & Fam. Servs. v. S.A., 382 N.J. Super. 525, 534 (App. Div. 2006).

In this case, Sam's incarceration was relatively brief, but significantly he was unable to continue visiting Jason because he violated curfew and was remanded to Kintock. Thereafter, he never sought to reinstate his visitation with his son. In short, Sam never established a nurturing relationship with Jason when he had the opportunity to do so, and the likelihood of a continued lack of such a relationship was clearly and convincingly proven.

We have noted 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. 2004) ("[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). Sam never proposed that Jason be placed with him, and the record repeatedly provides support for the conclusion that Sam never viewed himself as a full-time parent to his son. See N.J. Div. of Youth & Fam. Servs. v. T.S., 417 N.J. Super. 228, 243 (App. Div. 2010) (father's failure to advance a desire to assume his child's care was a factor in determining whether to uphold the termination of the father's parental right). Instead, knowing full well Tess's history and the risk she presented, Sam offered her as a placement for Jason at the close of trial. The proof under prong two was clear and convincing.

Sam argues that the Division "made absolutely no effort to include [him] in the case planning for his child." The argument does not find support in the record.

We have said that reasonable efforts toward reunification may be "impeded by the difficulty and likely futility of providing services to a person in custody." T.S., supra, 417 N.J. Super. at 242. Daniels testified that she never met with Sam while he was incarcerated. But, the Division provided Sam with services upon his release; he failed to take advantage of them. Sam dropped out of parenting classes and his visitation was terminated because he failed to attend. Kintock provided Sam with anger management and substance abuse counseling, as well as behavior modification classes. There was no need for the Division to duplicate those services. The Division evaluated Sam's relatives as possible placements and properly rejected them. The prong three proofs were clear and convincing.

As to prong four, Sam argues that termination of his parental rights will harm Jason financially because he will no longer be entitled to intestate inheritance or Social Security survivor benefits when Sam dies. The argument fails to focus on the essence of the best interests test.

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.

In this case, the overwhelming evidence was that Jason had a strong and nurturing bond with his foster father, and no bond existed between the child and Sam. Financial consequences that may or may not arise years in the future are not relevant to the inquiry demanded by the statute, which recognizes the child's need for permanency as its paramount concern. C.S., supra, 367 N.J. Super. at 111.

Affirmed.

A-0628-11T2


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