June 24, 2013
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent,
E.C., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF S.Y.C. and N.I.C., minors.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 15, 2013
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-207-10.
Joseph E. Krakora, Public Defender, attorney for appellant (Edward F. McGinty, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Lindsay C. Wight, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for S.Y.C. and N.I.C., minors (Lisa M. Black, Designated Counsel, on the brief).
Before Judges Axelrad, Sapp-Peterson and Haas.
Defendant, E.C., appeals from the April 4, 2012 judgment of the Family Part, entered following a bench trial, terminating his parental rights to his two children: Sally,  born February 5, 2005, and Nick, born June 7, 2008. The children's mother, Rina, executed an identified surrender of her parental rights to the children prior to trial. Defendant contends the Division of Child Protection and Permanency (Division) violated his due process rights and otherwise failed to 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 defendant's 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.
The guardianship trial was conducted over two non-consecutive days, February 7, 2012 and April 4, 2012. Defendant was represented by counsel for the entire trial. The Division presented its caseworker, Shannon Johnson, who had been assigned to the family's case since 2010. It also moved into evidence its records, which were marked P-1 through P-124. Defense counsel had no objection to any documents related to Nick and Sally, but argued records pertaining to the older children were not relevant. The Division also presented its expert, Dr. Eric Kirshcner, the psychologist who evaluated Sally and conducted bonding evaluations between Rina and the children, and between Nick and Sally and their foster mother. Defendant briefly appeared, telephonically, at the February 7 proceeding, until his phone card expired. On the second day of trial, he testified telephonically in his own defense.
Although the Division had been involved with the family since 2005, the events precipitating the Division's filing of a complaint for guardianship occurred in January 2009, shortly before defendant, who had been arrested and detained since July 2008, was deported to Haiti. The Irvington police notified the Division that the basement apartment where Rina lived with Nick, Sally, and her two older children,  had been raided. They reported that during the raid, they found drugs and a handgun, to which both children had easy access. The Division responded to the location.
The caseworker discovered that nine adults and four children occupied the two-bedroom basement apartment. The apartment was filthy, foul-smelling, lacked heat and the children were urinating in a bucket. Rina agreed to a safety plan requiring that she and the children stay with a friend in the second-floor apartment in the same building, but she moved three times over the following week. She signed a case management plan. Under the plan, she agreed that she and the children would remain in the friend's home, which the Division had approved and from which they had moved. Rina also agreed to address the children's educational and clothing needs. The Division provided her with diapers and clothing for the children.
Within a few days of entering into this case plan, Rina was no longer welcome at her friend's home. The Division arranged for the family's temporary placement at a Newark shelter, but Rina left four days later. She and the children returned to the two-bedroom basement apartment. When the Division investigated the apartment again, it was in the same "deplorable" condition. Nick, then only seven months old, appeared sick. He was wearing ill-fitting shoes, jeans with dried feces caked on the inside, and clothes generally inappropriate for the weather. The Division effectuated an emergency Dodd removal of the children. Nick and Sally were ultimately placed with their current foster parents.
The Division initiated abuse or neglect proceedings under Title Nine, N.J.S.A. 9:6-1 to 9:6-8.106, but failed to serve defendant with a copy of the complaint, although he was housed at the Hudson County Jail at that point. After he was deported, the Division still did not contact defendant, although it attempted to obtain information from Rina, who denied any knowledge of his whereabouts.
The Division filed its complaint for guardianship in June 2010. Following a case management hearing in January 2011, Rina provided the Division with a phone number for defendant in Haiti and, in February, provided defendant's address. The Division mailed the guardianship complaint to him along with an application for appointment of assigned counsel.
In April 2011, defendant contacted the Division. He informed the Division that he wanted his children to live with him in Haiti. He told the Division that as a result of the earthquake, he was living in a tent, but offered a Florida relative as an alternative placement for his two children. The Division was unable to contact this relative. Defendant also offered his mother as a placement option, but she was also living in a tent in Haiti.
Once defendant obtained counsel, he participated, albeit telephonically, in a number of proceedings. In one such proceeding, the court expressed its understanding that defendant wanted the children to join him in Haiti:
THE COURT: . . . What I understood from reading the reports is that . . . it was not your thought [for] your children to be returned to you in Haiti, that you do not want that to happen. I now hear from the Division that the Division believes that you do want the children to be placed with you in Haiti, is that correct?
[DEFENDANT]: I don't want that to happen. If I can't come back there to take care of my kids I would want to have my kids with me. Because wherever they are at I want them to be with me, because I'm their father. They want to give me the orders and I paid my taxes in the U.S. I will – and I'll do little bit things -- they deport me. My kids can't live without me. Anybody couldn't care for my kids more than I do.
In his trial testimony, Dr. Kirschner expressed the opinion that Nick and Sally exhibited a "secure level of attachment" to their foster mother. He testified that because defendant had been deported, he was unable to conduct a bonding evaluation between defendant and the children. He explained that conducting a telephonic bonding session would have been challenging to undertake and of little use. In his opinion, it was "almost impossible . . . to imagine" that any attachment had developed between defendant and Nick in the month between Nick's birth and defendant's arrest that would present any negative consequences to Nick if defendant's parental rights were severed.
As for Sally, Dr. Kirschner testified that she had had a greater opportunity to interact with defendant, but, even if any bond had ever existed between them, the negative impact from its disruption would already have materialized at the time of their separation and would likely not linger several years later, particularly given that she had developed a secure attachment to her foster mother.
The doctor testified that in his opinion, it was in the children's best interests that defendant's parental rights be terminated and the children adopted by their foster parents. He expressed the belief that delaying permanency until defendant could reenter the United States to parent them would harm the children, who would come to feel insecure in their placement with parental figures with whom they had already securely bonded. Moreover, Dr. Kirschner testified that uprooting them to live in Haiti, on the other hand, would subject them to even more enduring trauma both from disruption of their bond with their foster parents and adjustment to a different home environment and culture.
In his telephonic testimony on the second day of trial, defendant testified that he had had no contact with the children since his arrest in 2009. When asked directly about his plans for Sally and Nick, he responded that he wanted his children to be placed with relatives for now. He stated that his older brother, who lived in Brooklyn, was willing to look after Nick and would ask their cousin, who also lived in Brooklyn, whether she would be willing to look after Sally. He provided both of their names, but neither of their addresses, and acknowledged that he had not suggested them to the Division earlier. Defendant acknowledged that he was unable to care for the children at that time. He testified that he was unemployed, living in a tent with a dirt floor and no running water, and the camp where he lived was infested with mice and mosquitoes that could carry the Dengue virus. He expressed the desire to have his children stay with family for the time being because he would "be back one day." He repeatedly stated that Haiti was the "wors[t] country" and that he wanted the court to "[l]eave my kids there [in the United States] for me until I get on my feet." Defendant acknowledged that he had received the CD recordings of the first day of trial, listened to them, and understood them.
At the conclusion of the trial, Judge Claude Coleman rendered an oral decision finding that the Division had proven all four prongs of the best interests test by clear and convincing evidence. The judge entered judgment terminating defendant's parental rights. The present appeal ensured.
On appeal, defendant raises the following points for our consideration:
THE TRIAL COURT'S TERMINATION OF THE FATHER'S PARENTAL RIGHTS VIOLATED THE FATHER'S DUE PROCESS RIGHTS AND THE RULING MUST BE REVERSED.
A. THE STATE OF NEW JERSEY HAD NO PERSONAL JURISDICTION OVER THE FATHER.
B. THE FATHER WAS NOT PROVIDED ADEQUATE NOTICE OF THE TITLE 9 AND TITLE 30 ACTIONS.
C. THE FATHER WAS DENIED HIS SIXTH AMENDMENT RIGHT TO CONFRONT WITNESSES.
D. THE FATHER WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.
THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THE TRIAL COURT'S TERMINATION OF THE FATHER'S PARENTAL RIGHTS.
A. THE TRIAL COURT ERRED IN FINDING THAT [THE DIVISION] HAD DEMONSTRATED, BY CLEAR AND CONVINCING EVIDENCE, THAT THE SAFETY, HEALTH OR DEVELOPMENT OF THE CHILDREN HAD BEEN OR WOULD CONTINUE TO BE ENDANGERED BY THE PARENTAL RELATIONSHIP WITH THE FATHER.
B. THE TRIAL COURT ERRED IN FINDING THAT [THE DIVISION] HAD DEMONSTRATED, BY CLEAR AND CONVINCING EVIDENCE, THAT THE FATHER IS UNWILLING OR UNABLE TO ELIMINATE THE HARM FACING HIS CHILDREN.
C. THE TRIAL COURT ERRED IN FINDING THAT [THE DIVISION] HAD DEMONSTRATED, BY CLEAR AND CONVINCING EVIDENCE, THAT REASONABLE EFFORTS TO PROVIDE SERVICES TO THE FATHER WERE MADE AND THE TRIAL COURT FAILED TO ADEQUATELY CONSIDER ALTERNATIVES TO TERMINATION OF PARENTAL RIGHTS.
D. THE TRIAL COURT ERRED IN CONCLUDING THAT [THE DIVISION] HAD DEMONSTRATED, BY CLEAR AND CONVINCING EVIDENCE, THAT THE TERMINATION OF THE FATHER'S PARENTAL RIGHTS WOULD NOT DO MORE HARM THAN GOOD.
We first dispense with defendant's claim that the court lacked personal jurisdiction over him because he was living in Haiti at the time the guardianship complaint was filed and the requisite minimum contacts with New Jersey had not been established so as to uphold the court's exercise of jurisdiction over him. We disagree.
Our courts have long recognized that jurisdiction over a non-resident defendant may be invoked in custody disputes irrespective of whether a defendant has had sufficient minimum contact with this State to otherwise confer jurisdiction. See Genoe v. Genoe, 205 N.J.Super. 6, 13-14 & n.1 (App. Div. 1985) (citing Shaffer v. Heitner, 433 U.S. 186, 208 n.30, 97 S.Ct. 2569, 2582 n.30, 53 L.Ed.2d 683, 700 n.30 (1977)). We adhered to this principle in the parental termination context in New Jersey Division of Youth and Family Services v. M.Y.J.P., 360 N.J.Super. 426, 458-59 (App. Div.), certif. denied, 177 N.J. 575 (2003), cert. denied, 540 U.S. 1162, 124 S.Ct. 1176, 157 L.Ed.2d 1207 (2004), where we held personal jurisdiction was properly invoked despite the fact that the non-resident defendant had never been to the United States.
We reject defendant's attempt to distinguish M.Y.J.P. Defendant urges that unlike the non-resident parent there, he never acquiesced in his children's placement in foster care, he expressed his desire to be reunited with his children, was never furnished with a notice of the abuse or neglect proceedings, and, most important, he had had no direct involvement in their care at the time of their removal from Rina's care. None of these factors, even if true, are relevant to the question of the court's jurisdiction. The justification for jurisdiction over the non-resident parent is the fact that New Jersey is Nick and Sally's home state. Id. at 454 (stating "[t]he State's parens patriae interest in the welfare of children does not spring from citizenship . . . or from domicile, but rather from the presence of a child in this State for a sufficient amount of time to justify the exertion of governmental authority on his behalf for his protection").
Defendant next contends the Division failed to provide him with notice of these proceedings at a meaningful time so that he could adequately prepare his defense. Due process requires at least "notice and an opportunity to be heard." In re Registrant, C.A., 146 N.J. 71, 94 (1996). A defendant must be apprised by such notice of the matters at issue and be afforded an "adequate opportunity" to respond and prepare for trial. N.J. Div. of Youth & Family Servs. v. B.M., 413 N.J.Super. 118, 126 (App. Div. 2010) (citing H.E.S. v. J.S.C., 175 N.J. 309, 321-22 (2003)).
It is true defendant never received notice of the Title 9 proceeding, although he was incarcerated at the Hudson County Jail at the time of the emergency Dodd removal. It is also true that he was not served with a copy of the guardianship complaint until seven months after the complaint was initiated. Even if the delay in providing him notice was inexcusable, defendant has failed to establish how he was harmed by this delay.
Defendant had already been deported by the time the guardianship complaint was filed. Defendant acknowledges that the subsequent earthquake limited his contact with the outside world. However, once the Division contacted him, it provided him with a copy of the complaint to apprise him of the matters at issue and a form to secure representation, and provided him with phone cards to assist him in participating at trial and contacting his counsel to prepare.
Defendant never asserts that the materials provided did not fairly advise him of the issues meant to be addressed at trial so as to inhibit his preparation. Moreover, he had a year to prepare for trial and fails to indicate how that time period was inadequate to prepare a defense to the allegations in the complaint. The notice afforded defendant of these proceedings, while not as prompt as it should have been, was nonetheless not constitutionally deficient under the circumstances of this case, and defendant's arguments to the contrary do not provide a basis for reversal.
Defendant next argues that he was denied his right to confrontation on grounds that failure to afford him adequate means of communication with his counsel precluded meaningful cross-examination of adverse witnesses. Because an action for termination of parental rights is a civil rather than a criminal proceeding, the "requirements of due process do not confer a constitutional right of confrontation or [even] mandate a parent's presence at the trial." M.Y.J.P., supra, 360 N.J.Super. at 467. To the extent that defendant's arguments may be read as a broader indictment of the integrity of these proceedings, due process is a "flexible concept and calls for such procedural protections as the particular situation demands." Id. at 464. Evaluation of the appropriate protection demanded under the circumstances of a particular case is a fact-sensitive inquiry requiring a "careful balancing" of three considerations:
(1) identification and specification of the private interest that will be affected by the official action; (2) assessment of the risk that there will be an erroneous deprivation of the interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) evaluation of the governmental interest involved, including the added fiscal and administrative burdens that additional or substitute procedures would require.
[Id. at 465 (citing Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18, 33 (1976)).]
Admittedly, the procedural protections afforded to defendant were not optimal. Notwithstanding the court's order, defense counsel never sent transcripts of the first day of trial to defendant, despite the two-month interval between the first day of the trial and the second day. Additionally, although defendant participated telephonically in a couple of case management conferences, there were more that he missed, presumably because he did not have a phone card or because communications, even with a phone card, were interrupted due to technical problems. When defendant did participate in the proceedings, his testimony was inaudible at times and there was never any trial preparation with his attorney.
Nonetheless, defendant had some meaningful participation in the trial. He not only had the opportunity to testify, he also had the opportunity to put forth viable alternatives to termination, but was unable to do. Thus, although the level of his participation was not an optimal situation, he in fact participated to such an extent that the court was able to consider his position on the issues.
Finally, defendant contends he was denied effective assistance of counsel. Specifically, defendant contends his trial counsel made no objections during the proceedings, never objected to the timing of the permanency hearing, never requested adjournments of proceedings to ensure defendant's participation, and failed, during the course of the proceedings leading up to trial, to request that the court order services for him. As noted earlier, defense counsel failed to provide defendant with a transcript from the first trial date.
In actions for termination of parental rights, the right to effective assistance of counsel is protected both by statute, N.J.S.A. 30:4C-15.4(a), and the due process guarantee of our state constitution, and is guided by the same principles as applicable in the criminal context. N.J. Div. of Youth & Fam. Servs. v. B.R., 192 N.J. 301, 306, 309 (2007). As such, to establish a claim for ineffective assistance of counsel under the circumstances of a particular case, the defendant must demonstrate both that his or her counsel's performance was deficient, and that that deficiency prejudiced him or her. State v. Goodwin, 173 N.J. 583, 596 (2002) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984)). In the first respect, counsel's performance must fall outside the "wide range of reasonable professional assistance[.]" Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694. In the second, there must be a reasonable probability that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698.
Measured under this standard, the alleged deficiencies here reflect that trial counsel's performance fell outside the "wide range of reasonable professional assistance[.]" Id. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694. However, notwithstanding these deficiencies, there was no reasonable probability that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698.
Defendant lists no information he would have provided his counsel or any strategy he would have suggested that, if implemented, would carry any possibility of altering the outcome of this case. State v. Worlock, 117 N.J. 596, 625 (1990). Likewise, none of the services defendant asserts his attorney should have requested had any reasonable probability of helping him provide the children with a safe, stable home within a reasonable time.
Moreover, at trial, defendant testified that Haiti was the "wors[t] country" and that he wanted the children to remain in the United States. Additionally, he indicated that his living conditions at the time were plainly unsuitable for reunification. He identified no reasonable services that would have made reunification a realistic possibility. Thus, trial counsel's failure to secure adjournments, raise objections, or to request services to investigate his relatives as resources, similarly would have had no effect on the outcome of the trial. Consequently, defendant cannot meet the standard for establishing that he received ineffective assistance of trial counsel, and his arguments to the contrary do not constitute grounds for reversal.
Parents have a constitutionally protected right to enjoy a relationship with and rear their children. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). The State may exercise its parens patriae responsibility to protect the children's welfare only where it "has demonstrated that the child's parent or custodian is unfit, or that the child has been neglected or harmed." In re Guardianship of J.C., 129 N.J. 1, 10 (1992) (internal citation omitted). Termination of parental rights is not appropriate unless the State carries the heavy burden of demonstrating by clear and convincing evidence that termination is in the best interests of the child. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 280 (2007). Specifically, the State must establish 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;
(4) Termination of parental rights will not do more harm than good.
These factors are not mutually exclusive, but overlap "to provide a comprehensive standard that identifies a child's best interests." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). Application of the standard is a fact-sensitive undertaking and must rely on particularized evidence addressing the circumstances of each case. N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J.Super. 235, 258-59 (App. Div. 2005).
A court's conclusion that termination is in the child's best interests must be accorded deference on appeal so long as the court's findings are supported by adequate, substantial, credible evidence in the record. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). That deference is particularly appropriate in light of the family court's expertise in domestic matters, Cesare v. Cesare, 154 N.J. 394, 413 (1998), and its opportunity to observe witnesses testify first-hand to evaluate their credibility, Div. of Youth & Family Servs. v. R.L., 388 N.J.Super. 81, 88 (App. Div. 2006), certif. denied, 190 N.J. 257 (2007).
Defendant claims the Division failed to establish the four prongs of the best interests test by clear and convincing evidence. We are satisfied this argument is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following comments.
Defendant was deported for conduct committed well before the children were even born. He found himself unable to contact his children in the aftermath of the catastrophic earthquake in Haiti just a few months after his deportation. He then had no opportunity to offer himself as a placement until the Division contacted him late in the proceedings and, when he did, the Division failed even to investigate the possibility. He analogizes his situation to that of the father in New Jersey Division of Youth and Family Services v. I.S., 202 N.J. 145 (2010), who was unaware of his child's existence until the Division contacted him. The defendant initially declined to take custody but had a change of heart prior to trial. The Court held that the father's failure to make himself available as the child's caregiver for those few months between when he was notified about the child and when he began to pursue custody did not in itself constitute the sort of harm contemplated in the statute. Id. at 170-73.
However, unlike the father in I.S., defendant knew of his children since their births. Therefore, the court could and did reasonably find that he was no less responsible than Rina, whether by his action or inaction, for the "deplorable" conditions in the home that occasioned the Division's involvement with the family. Those conditions continued unabated following his incarceration and until the children's removal, and the court further concluded that his absence rendered him unable or unwilling, to remove that harm. See, e.g., N.J. Div. of Youth & Family Servs. v. T.S., 417 N.J.Super. 228, 242-43 (App. Div. 2010) (termination appropriate where father was incarcerated and had no reasonable prospect of being able to offer the child permanency), certif. denied, 205 N.J. 519 (2011). It may be, as defendant suggests, that his absence from the children's lives was not voluntary, but the appropriate focus of inquiry here is whether harm arises from the parental relationship, not whether the parent is morally culpable for that harm. M.M., supra, 189 N.J. at 289.
In addressing the second prong, the court emphasized that defendant's absence from the children's lives had caused them harm, and concluded that due to his incarceration and deportation, he remained unable to eliminate that harm and provide the children with a safe and suitable home. It recalled that, although defendant expressed great concern for the children, he did not want the children to live with him in Haiti and acknowledged that he was not able to care for them there, as he was unemployed and living in a tent with no running water. Thus, the record supports the court's conclusion that the harm to the children arose from defendant's failure to provide them a safe, healthy home environment prior to his imprisonment, his absence from their lives following that imprisonment, and his continued inability to eliminate the harmful conditions that occasioned removal.
Turning to the third prong, the court noted that while the Division had provided Rina with services to address the circumstances that occasioned removal, it offered defendant few services because of its inability to locate him "despite diligent efforts." When the Division did find defendant in April 2011, it mailed him the complaint and other documents pertaining to this litigation, provided him with an attorney, and sent him telephone cards to ensure that he could communicate with counsel and participate in the proceedings. It did not, as he had earlier requested, buy him a home or help him return to the United States.
The court also found that defendant presented no viable alternative to termination. He offered relatives as resources but could not provide their addresses. In particular, his suggestion that one of his children be placed with one cousin and the other child with another cousin would separate the children and, according to Dr. Kirschner, would be traumatic for both of them. Meanwhile, the children had already been living with their foster parents for more than three years--Nick for nearly his entire life. The foster parents were prepared to adopt and both children were faring well in their care. Dr. Kirschner testified about the children's bond with them and concluded that any delay in securing permanency would be contrary to the children's best interest.
We agree that the Division's efforts were less than overwhelming. While it notified defendant, kept him abreast of the proceedings and provided him with some means of communication with his counsel and participation in the litigation, it provided him no resources meant to address the circumstances surrounding removal so that he could safely parent the children in the event of reunification. However, defendant identifies no services the Division could have provided him that would have had any "realistic potential" of helping him achieve reunification in the reasonably foreseeable future, before the resulting delay in permanency would endanger the children in itself. N.J.A.C. 10:133-1.3.
Although the Division never conducted an assessment of defendant's living conditions in Haiti, his own testimony amply demonstrated that the conditions were inadequate to ensure the children a safe, stable, and healthy home environment, and he identified no services, except perhaps outright buying him a house, that would have rectified the situation within a similarly meaningful period of time. To the extent the Division's efforts may have been deficient, such deficiency does not warrant reversal in light of the court's determination as to the balance of the best-interests standard. See N.J. Div. of Youth & Fam. Servs. v. F.H., 389 N.J.Super. 576, 621 (App. Div.) (explaining under facts of case, even if DYFS had not made reasonable efforts toward providing services to parent, termination was still in child's best interests), certif. denied, 192 N.J. 68 (2077).
As for alternatives to termination, although the Division's policy is, to the extent possible, to place children with relatives, there is no presumption favoring that placement rather than placement with a third party. Id. at 619. One of defendant's cousins may well have provided a suitable placement option just after removal, but by the time the Division was able to reach defendant so that he could even suggest any of his relatives, the children had already been in the care of their foster parents for several years and developed an attachment to them. The court concluded elsewhere in its analysis, based on sufficient, credible evidence in the record, that uprooting the children from that placement would harm them, and it follows that disrupting that placement so that they could be separated and sent to live with relatives with whom they were less familiar would not have been in their best interests. The court's conclusions with respect to the third prong of the best interests standard are entitled to deference, and defendant's arguments to the contrary do not provide a basis for reversal.
Finally, in order to satisfy the fourth prong, the Division was not required to demonstrate that no harm will result from termination. Rather, its burden was to prove that any such harm would be outweighed by the harm resulting from non-termination. K.H.O., supra, 161 N.J. at 355. That analysis is meant to act as a fail-safe and prevent "an inappropriate or premature termination of parental rights" even if the Division satisfies its burden as to the rest of the standard. F.M., supra, 211 N.J. at 453. Evaluation of the fourth prong should be informed by the child's need for stability and permanency, K.H.O., supra, 161 N.J. at 357-58, as well as by the quality of his or her relationship with parents and foster parents in light of testimony from a "well qualified expert who has had full opportunity to make a comprehensive, objective, and informed evaluation" of those relationships, J.C., supra, 129 N.J. at 19.
The court here concluded that termination would not do more harm than good. It recounted Dr. Kirschner's observation that the children had a strong bond with their foster parents, desired to remain with them, and "would be saddened if asked to leave." In contrast, they had little emotional attachment to Rina and, although no meaningful bonding evaluation could be conducted with the children and defendant, such an evaluation would likely show little or no attachment to defendant as well. Sally was only three years old and Nick just one month old when they were removed and had been out of Rina and defendant's care for more than four years. Dr. Kirschner explained that bonding typically occurs between the ages of one and three years old, and once a relationship is formed, disruption could be harmful.
Defendant correctly points out that a comparatively weak bond with a parent must not in itself be an independent basis for termination, relying, for example, on G.L., supra, 191 N.J. at 608-09, where the child's bond with her mother weakened over time only as a result of her improper removal from her mother's care. To the extent that the children's bond with defendant may be weaker than the one with their foster parents, defendant asserts that the weakness of that bond was attributable to circumstances not of his own making--his arrest and deportation, Rina's refusal to allow the children to see him after his arrest, and the Division's delay in contacting him.
The court, however, never identified the weakness of defendant's bond with the children as the basis for termination. Rather, the court found, based on sufficient, credible evidence in the record, that the children had been endangered by Rina and defendant's relationship with them that defendant was unable to remove that danger and that there existed no viable alternatives to termination The court considered the children's stronger bond with their foster parents only in concluding that termination otherwise appropriate pursuant to the first three prongs of the standard would do no more harm than good The court's conclusion in that regard is amply supported by sufficient credible evidence in the record and defendant's arguments to the contrary do not constitute grounds for reversal Affirmed