June 7, 2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent,
O.F.A. and F.A., Defendants-Appellants. IN THE MATTER OF THE GUARDIANSHIP OF O.E.A., a minor.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 30, 2013
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-78-09.
Joseph E. Krakora, Public Defender, attorney for appellant O.F.A. (Glenn D. Kassman, Designated Counsel, on the brief).
Joseph E. Krakora, Public Defender, attorney for appellant F.A. (Angelo G. Garubo, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Cristina Ramundo, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor O.E.A. (Melissa R. Vance, Assistant Deputy Public Defender, on the brief).
Before Judges Axelrad, Sapp-Peterson and Haas.
In these two consolidated cases, defendants O.F.A. (Olivia) and F.A. (Floyd) appeal from the November 30, 2011 judgment of the Family Part terminating their parental rights to their son, O.E.A. (Evan). They argue the Division of Youth and Family Services (Division) did not prove the four prongs of the termination statute by clear and convincing evidence. The Law Guardian supports the termination on appeal.
Based on our review of the record and applicable law, we are satisfied the evidence in favor of the guardianship petition overwhelmingly supports the termination of defendants' parental rights. See, e.g.,
N.J. Div. of Youth & Family Servs. v. M.M. , 189 N.J. 261, 279 (2009) (holding a reviewing court should uphold the factual findings respecting the termination of parental rights if they are supported by substantial credible evidence in the record as a whole). Accordingly, we affirm.
This is the second time this family has been before us. On April 27, 2011, we reversed the trial court's decision to dismiss the Division's guardianship complaint following the completion of its case at trial.
N.J. Div. of Youth & Family Servs. v. F.A. and O.F.A., No. A-5652-09 (App. Div. April 27, 2011). We found the Division had presented a prima facie case for termination of parental rights, sufficient to withstand a motion to dismiss. (Slip op. at 18). Therefore, we remanded the matter for a new trial before a different judge. Id. at 26. We set forth the background facts from our earlier opinion.
Olivia and Floyd are the biological parents of Evan, who was born in 2004 in Maryland. Id. at 3. Olivia and Floyd also have an older daughter who resides with relatives in Nigeria. Evan is the only child involved in this appeal. Ibid. The parents immigrated to the United States from Nigeria in 1997 and neither are citizens of the United States and neither has a valid visa. Ibid. However, because Evan was born in this country, he is an American citizen.
After she assaulted Floyd in 2005, Olivia was committed to a psychiatric hospital in Maryland, where she continues to reside. Ibid. Floyd moved with Evan to New Jersey. The family first came to the Division's attention in October 2006, when New Jersey Transit Police found Floyd and two-year-old Evan sleeping at Newark's Penn Station. Ibid. Because Floyd had little money or food, was unable to provide suitable housing for himself or Evan at that time, and had no plan for doing so, the Division effected an emergency removal. Id. at 3-4. In November 2006, a Family Part judge conducted a fact-finding hearing and determined that Floyd was unable to care for Evan due to his lack of housing and employment. Id. at 4. The judge also found that Olivia was similarly incapable because of her commitment to the psychiatric hospital. Ibid.
Evan has remained in foster care since he was removed from Floyd's care in October 2006. He has lived with his current foster parent, Ms. Thomas (a pseudonym) since January 2008. Thomas has expressed a strong desire to adopt Evan. In October 2008, the Division filed a guardianship complaint seeking to terminate Olivia and Floyd's parental rights so that Evan could be adopted. As noted above, that complaint was dismissed by the trial judge, but we ordered the complaint reinstated in our April 27, 2011 opinion.
On the remand, the matter was assigned to Judge David Katz, who conducted an eight-day trial on non-consecutive days between October 20 and November 30, 2011. The Division presented the testimony of caseworker Kali Holland, Thomas, and its expert, Dr. Mark Singer. Olivia and Floyd each presented an expert, Dr. Andrew Brown and Dr. Mathew Johnson, respectively, and the Law Guardian relied upon the expert testimony of Dr. Antonio Burr.Olivia's guardian ad litem presented the testimony of her treating physician, Dr. Chineye Ekoh. Neither Olivia nor Floyd testified. Because she could not leave the hospital to attend the trial, Olivia participated by telephone.
After she was committed to the psychiatric hospital, Olivia visited with Evan on only four occasions between 2005 and September 2006. The last of these visits was through the fence of the hospital's courtyard. Once the Division became involved, it attempted to arrange contact for the child through Olivia's social workers. However, the hospital advised the Division that it did not allow its patients to visit with children. In addition, Olivia did not independently request the opportunity to visit with Evan. Nevertheless, the Division arranged for Olivia to speak with Evan by telephone and sent her photographs of him on two occasions.
Dr. Singer performed a psychological evaluation of Olivia. She told him she did not want to remain with Floyd, planned to stay in Maryland, and hoped to care for Evan with the assistance of her godfather and an aunt. She denied having a mental illness and believed her medication was only a vitamin.
Following his evaluation, Dr. Singer concluded Olivia suffers from schizoaffective disorder, and is bipolar, a "chronic" condition that "creates significant deficits in thought processes" and causes "delusions and hallucinations, as well as significant deficits in the affective realm, meaning things like mania and depression." Dr. Singer opined that Olivia could not function as a stable individual outside the confines of a controlled facility. Dr. Singer testified that Evan did not see Olivia as a parental figure and the child would not have a significant reaction if Olivia's parental rights were terminated.
Olivia's treating physician, Dr. Ekoh, agreed with Dr. Singer's conclusion that Olivia suffers from schizoaffective disorder of the bipolar type. Dr. Ekoh recommended that Olivia remain hospitalized to enable her to receive the twenty-four hour care she needs.
Dr. Brown conducted a psychological evaluation of Olivia, but he was unable to complete a bonding evaluation at the hospital with Evan because the child became upset and asked to go home. Dr. Brown opined that Evan showed no evidence of attachment to Olivia and he conceded she could not adequately parent him.
After Evan was removed from Floyd in 2006, the Division attempted to assist Floyd in reuniting with his son. In November 2006, the Division scheduled a psychological evaluation for Floyd to determine necessary services and offered him parenting classes. He refused to attend parenting skills classes or counseling. The Division took Floyd to the Consulate General of Nigeria in New York City in an attempt to sort out his immigration issues, but he did not follow up.
Although he visited with Evan on a weekly basis, Floyd continued to live a transient life. Holland visited two of his temporary residences in 2009. Neither was suitable for a child. In December 2010, Floyd told the Division he was going to live with a "church family." However, this did not pan out. Floyd did not cooperate with the Division's attempt to obtain housing for him through the Newark Housing Authority. At the time of the trial, Floyd refused to allow the Division to access his current residence. He told the Division he worked at a car lot, but he would not divulge the name of his employer or provide any proof he was actually employed.
Floyd consistently told the Division that his plan was to reunite with Olivia and take Evan to Nigeria with them to live. He was not willing to return to Nigeria without Olivia. As noted above, Olivia has no desire to resume living with Floyd or to return to Nigeria.
Dr. Singer conducted three psychological evaluations of Floyd. Floyd told the doctor that Olivia did not suffer from a mental illness and that he could cure her "through prayer." Dr. Singer opined that Floyd's reunification plan was not viable and, because Floyd was not open to other alternatives, the doctor testified that the termination of Floyd and Olivia's parental rights was the only option available to provide Evan with permanency.
Dr. Singer conducted a bonding evaluation and concluded that Evan understands Floyd is his father and a significant figure in his life. However, Evan does not perceive his father as an emotional, consistent, or nurturing figure. Evan told Dr. Singer he wanted to live with Thomas and did not want to go to Nigeria. Dr. Singer testified that, if Floyd's parental rights were terminated, Evan would experience "a negative reaction to such a loss." However, the child had distanced himself from Floyd over the years and, therefore, any adverse reaction would not be "enduring in nature" and would be ameliorated by Thomas.
Dr. Johnson performed a psychological assessment of Floyd and conducted a bonding evaluation. He testified that Evan had a parent-child attachment to both Floyd and Thomas and that the loss of either relationship would adversely affect the child. He opined that Evan would not suffer serious harm if removed from his foster mother "unless the separation is associated with placement in an environment that lacked sufficient sensitivity and nurturance." Ultimately, Dr. Johnson did not recommend that Evan be reunited with Floyd.
Dr. Burr conducted a psychological evaluation of Floyd, as well as a bonding evaluation. He found that Floyd had "very simplistic ideas that don't really address important dimensions of the emotional development of his child or problems . . . with [Olivia]." Dr. Burr did not believe Floyd could adequately parent Evan and that he was not sensitive to the child's emotional needs. Dr. Burr opined that Evan was emotionally attached to Floyd and would suffer a "very substantial loss" if that relationship were terminated. He opined that a kinship legal guardianship (KLG) would be appropriate.
Thomas has cared for Evan since February 2008. She is a single-parent with a natural son, who was nine-years-old at the time of the trial. Evan has a positive relationship with Thomas's son. Thomas testified she wanted to adopt Evan. She stated she would continue to allow Evan to visit with Floyd and Olivia if their parental rights were terminated.
Based upon his bonding evaluation, Dr. Singer opined that Thomas was Evan's psychological parent. If that bond was broken, Dr. Singer testified Evan would experience "significant feelings of loss as a result of losing . . . the only consistent, healthy parental figure this child has had in his life for the past three years." The child would regress emotionally and behaviorally in the short term, and experience long-term feelings of sadness, loss, and insecurity. Floyd would not be able to ameliorate this harm because he is unable to meet Evan's basic physical dependency needs, in terms of housing and food. Dr. Singer further opined that KLG was not a suitable option in this case because, here, there was no viable potential for reunification between Evan and either Olivia or Floyd in the foreseeable future.
Dr. Burr also conducted a bonding evaluation of Evan and Thomas. He found that Evan "has developed a parental bond with [Thomas], to the extent that he expects to receive nurturing and care from her." Thus, he opined that "a good outcome for [Evan] would be to have permanency with his psychological parent[, ]" Thomas, while maintaining contact with Floyd through a KLG.
The Division investigated possible relative placement for Evan. Two of Olivia's maternal relatives in the United States were investigated. However, they were ruled out because an adult in the home had a criminal history.
In December 2008, Floyd requested that Evan's maternal aunt and uncle in Nigeria be investigated. The Division worked through the International Social Service Agency to obtain a home study. The home study was positive and the relatives were interested in caring for Evan. However, Dr. Singer opined that separating Evan from Thomas to go live in Nigeria would be harmful to the child. He would be placed in a new culture and environment. The relatives spoke a language, Yoruba, which Evan did not. Evan had also expressed an interest in staying in the United States, where he is a citizen, with Thomas. Therefore, the Division ruled out this possible placement.
At the conclusion of the trial, Judge Katz issued a seventy-three page opinion. The judge found the Division had satisfied all four prongs of the statutory standard, N.J.S.A. 30:4C-15.1 by clear and convincing evidence. Accordingly, he terminated Olivia's and Floyd's parental rights.
The judge concluded that neither Floyd nor Olivia were capable of providing Evan with suitable, safe and appropriate care or housing and were unable to do so in the future. Relying upon the testimony of the psychologists, the judge found that Floyd's future "parenting plan is simply not viable" because Floyd did not understand Evan's emotional needs and could not meet his physical needs. Because of her mental illness, Olivia is similarly unable to care for Evan. The judge therefore concluded the parents had harmed their child by failing to meet his needs and that they would be unable to cease this harm in the future.
Judge Katz also found the Division had provided Floyd with services and that Olivia was receiving appropriate care in the psychiatric hospital. However, Floyd did not take advantage of the opportunities afforded him and he continued to live a transient life. The judge concluded the Division had also explored, and appropriately rejected, alternatives to termination. In so ruling, the judge disagreed with Dr. Burr's conclusion that a KLG would work in this case, finding the record clearly demonstrated that Floyd "lacks empathy and the ability to address the complexities that flow from a continuing relationship and, further, that [Floyd] outright refuses to engage in any Division services to assist him in understanding and properly dealing with those complexities."
Finally, Judge Katz found the Division had established that termination would not do Evan more harm than good. Evan was strongly bonded to Thomas and viewed her as his psychological parent. If that bond were terminated, neither defendant would be able to ameliorate the harm. None of the experts testified that either parent was able to care for Evan at the time of trial or that they would be able to do so in the future. Thus, the judge terminated Olivia and Floyd's parental rights. This appeal followed.
Olivia raises the following arguments on appeal:
THE DECISION OF THE TRIAL COURT IN THIS MATTER SHOULD BE REVERSED BECAUSE THE DIVISION FAILED TO ESTABLISH THE CRITERIA FOR TERMINATION OF PARENTAL RIGHTS BY CLEAR AND CONVINCING EVIDENCE.
A. The Division Presented No Evidence Whatsoever to Demonstrate that [Evan's] Health and Development will be Endangered by an Ongoing Relationship with his Biological Mother.
B. By Doing Virtually Nothing to Facilitate Visitation and Communication Between [Olivia] and [Evan] During the Five Years [Evan] was in its Custody, the Division Egregiously Failed in its Obligation to Make Reasonable Efforts to Find an Alternative to Termination of [Olivia's] Parental Rights.
C. The Division Violated its Legal Obligation to Make Reasonable Efforts to Find an Alternative to Termination of [Olivia's] Parental Rights By Failing to Timely Investigate [Olivia's] Nigerian Relatives as an Option for Placement.
Floyd has raised the following contentions:
THE TRIAL COURT ERRED IN FINDING THAT THE STATE ESTABLISHED BY CLEAR AND CONVINCING EVIDENCE THAT [FLOYD'S] PARENTAL RIGHTS SHOULD BE TERMINATED.
A. THE DIVISION FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT [EVAN'S] HEALTH AND DEVELOPMENT HAS BEEN OR WILL CONTINUE TO BE ENDANGERED BY THE CONTINUATION OF THE PARENTAL RELATIONSHIP WITH [FLOYD].
B. THE DIVISION HAS FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT [FLOYD] IS UNWILLING OR UNABLE TO ELIMINATE THE HARM FACING THE CHILD OR IS UNABLE OR UNWILLING TO PROVIDE A SAFE AND STABLE HOME FOR HIS CHILD.
C. THE DIVISION FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT IT MADE REASONABLE EFFORTS TO PROVIDE SERVICES TO HELP [FLOYD] CORRECT THE CIRCUMSTANCES WHICH LED TO [EVAN'S] REMOVAL.
D. THE DIVISION FAILED TO EXERCISE REASONABLE EFFORTS TO PLACE [EVAN] WITH RELATIVES AND HIS SISTER AND THE COURT FAILED TO ADEQUATELY CONSIDER ALTERNATIVES TO TERMINATION.
E. THE COURT BELOW ERRED IN FINDING [THAT] K.L.G. WAS NOT AN APPROPRIATE ALTERNATIVE TO TERMINATION OF [FLOYD'S] PARENTAL RIGHTS.
F. THE COURT BELOW ERRED IN FINDING THAT TERMINATION WOULD NOT DO MORE HARM THAN GOOD AND THE DIVISION FAILED TO SHOW THAT A DELAY OF PERMANENT PLACEMENT WOULD CAUSE OR ADD TO THE HARM.
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, 1212-13, 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.
"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 N.J.Super. 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 Judge Katz's conclusion that Evan's best interests required termination of Olivia and Floyd's parental rights.
In addressing the first statutory prong, Olivia and Floyd argue the Division failed to prove that Evan's safety, health or development has been or will continue to be endangered by the parental relationship. They both assert they did not physically harm the child and, therefore, this prong could not be met. We disagree.
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 this 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).
Here, neither Olivia nor Floyd have been able to care for Evan since 2006, when the child was found sleeping with his father in a train station. Olivia has been in a psychiatric hospital since 2005 and Floyd steadfastly refuses to seek appropriate housing or to even apprise the Division of his sources of income, if any. Because neither parent can provide Evan's most basic physical needs, food and shelter, he would obviously be placed at imminent risk of harm if placed in either Olivia's or Floyd's care. Moreover, as Judge Katz found, all of the psychologists agreed that Floyd does not understand Evan's emotional needs and, due to her illness, Olivia is also unable to nurture the child.
Under these circumstances, the child's safety, health and development would be jeopardized if he were returned to either Olivia or Floyd Thus, Judge Katz 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.
D.M.H., supra, 161 N.J. at 379.
This prong was clearly met in this case. While Olivia is compliant with her treatment at the psychiatric hospital, she cannot live outside an institutional facility. Her treating physician, Dr. Ekoh, testified that Olivia cannot be discharged from the hospital because a suitable aftercare plan cannot be developed due to the severity of Olivia's illness.
Floyd continues to insist everything will be fine once Olivia is discharged and the couple can then return to Nigeria with Evan. As the experts agreed, Floyd's plan is completely unrealistic because Olivia is not going to be released from the hospital in the foreseeable future; Olivia does not want to return to Floyd; and Evan has continually expressed a strong interest in remaining in the United States. Floyd continues to live a transient life and refuses to cooperate with services designed to help him secure stable housing. He argues his immigration status hampers his housing search, but he failed to follow through after the Division contacted the Nigerian Consulate on his behalf.
Because neither parent is able or willing to eliminate the harms facing Evan, we discern no basis to disturb Judge Katz's conclusion that the Division met the second statutory prong by clear and convincing evidence.
Olivia and Floyd next argue the record does not support the trial 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 the Division to make reasonable efforts to provide services to assist a parent to correct his or her 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 the Division to reunite a family.
D.M.H., supra, 161 N.J. at 390-91. 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.
Floyd was given many opportunities to engage in, and comply with, multiple services. He refused to participate in either counseling or parenting skills classes, arguing he had no need for them. He failed to follow through with housing opportunities; did not address his continued visa problems; and even refused to give the Division information about his alleged employment. Olivia has been cared for in a psychiatric hospital since 2005. However, even after receiving twenty-four hour care for almost eight years, she is completely unable to care for Evan.
Olivia alleges the Division should have done more to enable her to visit with Evan. However, Judge Katz found Holland's testimony that the hospital's policy prohibited such visits to be credible and we defer to that finding. In addition, there is no evidence Olivia sought to have in-person parenting time with the child.
Both Olivia and Floyd argue the Division failed to pursue the possibility of placing Evan with their relatives and purposely delayed exploring sending Evan to Nigeria until after he was already bonded with Thomas. We disagree.
There is no presumption in favor of placement with a relative.
N.J. Div. of Youth & Family Servs. v. M.F., 357 N.J.Super. 515, 528-29 (App. Div. 2003) ("[A]lthough there are statutory provisions in Title 30 and Title 9 which refer to relative placements, the statutes do not create a presumption in favor of such placement."). A child is entitled to the Division's best efforts to be placed with a relative and any siblings and to have regular visitation with any siblings, if that is "consistent with the health, safety and physical and psychological welfare of the child and as appropriate to the individual circumstances of the child's physical or mental development." N.J.S.A. 9:6B-4b, d, f.
The record demonstrates the Division thoroughly considered the possibility of placing Evan with a relative. However, Olivia's relatives were properly ruled out after it was discovered a person in the home had a criminal record. As for Floyd's plan to relocate Evan to Nigeria, the Division thoroughly explored that possibility even though Floyd did not propose it until late 2008, two years after Evan was placed in the Division's custody. An international home study was ordered and there is simply no credible evidence in the record to suggest the Division deliberately prolonged the process of completing it. Even though the study was positive, there is ample evidence to support the Division's conclusion that the placement would not be in Evan's best interests. The child was bonded to Thomas; did not want to leave the United States; and, in Dr. Singer's expert opinion, it would be very difficult for the child to adjust to a different language and culture.
Floyd argues the Division should have explored KLG instead of terminating his parental rights. This argument lacks merit. The potential availability of KLG cannot be used as a defense to the termination of parental rights.
N.J. Div. of Youth & Family Servs. v. P.P. , 180 N.J. 494, 512-13 (2004). As the Supreme Court explained:
The plain language of the [KLG] Act, as well as its legislative history, establish [KLG] as a more permanent option than foster case where adoption "is neither feasible nor likely" and "[KLG] is in the child's best interest." Conversely, when the permanency provided by adoption is available, [KLG] cannot be used as a defense to termination of parental rights.
[Ibid. (internal citations omitted).]
The record fully supports Judge Katz's finding that the Division clearly and convincingly established it made more than reasonable efforts to help Floyd with his many issues and it attempted to achieve reunification. Thomas has expressed a desire to adopt Evan. Under these circumstances, KLG is not a viable alternative to terminating Floyd's and Olivia's 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, Judge Katz found that termination of parental rights would not do more harm than good and concluded that terminating Evan's parental rights was in the children's best interests. There was ample evidence in the record to support this finding. Evan has no bond with Olivia and, while he has an attachment to Floyd, he does not look to him for emotional support. Evan clearly views Thomas as his psychological parent and he is fully bonded to her. She is capable of ameliorating any harm that may be caused by the termination of Olivia and Floyd's parental rights. The converse is simply not true. Thus, the record fully supports the judge's conclusion that termination of Olivia's and Floyd's parental rights will not cause Evan more harm than good.