July 10, 2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent,
J.R., Defendant-Appellant, and A.S. and M.S., Defendants. IN THE MATTER OF THE GUARDIANSHIP OF K.A.R. AND K.S.R., minors.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 29, 2013
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-158-11.
Joseph E. Krakora, Public Defender, attorney for appellant (Adrienne Kalosieh, Assistant Deputy Public Defender, on the briefs).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Delia A. DeLisi, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Katherine J. Bierwas, Designated Counsel, on the brief).
Before Judges Alvarez and Waugh.
J.R. (Joan) appeals the Family Part's May 24, 2012 order terminating her parental rights to her eleven-year-old daughter K.A.R. (Amy) and eight-year-old son K.S.R. (Steve). We affirm.
We discern the following factual and procedural background from the record on appeal.
Joan, Amy, and Steve came to the Division's attention on March 4, 2004, when Jersey City Medical Center reported that Joan had given birth to Steve and admitted to using PCP within twenty-four hours of entering the hospital. Steve tested positive for PCP on March 5. Joan told a Division worker she had used PCP two days before giving birth, but stated she had not used PCP for six months before that and did not have a drug addiction or need services. Joan informed the Division that she lived with her mother, Faith, who was looking after Amy while she was in the hospital.
The Division visited Faith's home and found it to be overcrowded, with mattresses on the floor and an open oven heating the apartment. The Division provided homemaker services on March 5. On March 8, Joan told a Division caseworker that Faith used cocaine regularly.
On March 9, the Division substantiated Joan for child neglect based on her use of PCP shortly before Steve's birth, Steve's positive PCP test result, and living with Amy in the home of Faith, a cocaine user. On March 12, the Division filed for and was granted care and custody of the children.
Joan tested positive on six drug screens between March 17 and 30. On April 1, Joan entered a stipulation acknowledging she used PCP while pregnant with Steve.
Joan was authorized to have supervised visitation with the children every other week, starting on March 23. From mid-June to early August, she did not regularly attend visits. However, she attended a number of visits in the fall, and by May 2005 was visiting the children weekly.
The Division referred Joan for outpatient drug treatment at a program run by the Medical and Social Services for the Homeless (MASSH), which she successfully completed on April 28, 2005. It also referred her for parenting classes. Joan completed the Family and Children Early Education Services (FACES) parenting program on March 1.
In anticipation of the children's reunification with Joan, the Division provided her with homemaker services. The services went well in May. The children were reunified with Joan on June 3. During June, July, and August, Joan refused to let the homemaker in or was not there when the homemaker arrived.
Joan tested positive for PCP on or about July 21, but tested negative on July 27, August 3, and August 11. In September, she complied with a substance abuse evaluation arranged by the Division, and tested negative on two follow-up random drug screens.
By October, Joan was living in a two-bedroom apartment with the children. The Division continued to work with the family, providing financial assistance for the children's clothing, a bed for Amy, and a crib for Steve. On November 17, legal custody of the children was transferred to Joan and the care and custody litigation was dismissed.
On January 31, 2006, a caseworker visited the home and reported that there were no child welfare concerns. On February 1, the caseworker learned that Steve had not attended daycare in January. On the same day, Lilly, Joan's aunt, reported to a Division caseworker that the children had been staying with her for approximately a month.
By early March, the children had returned to Joan's home. On March 15, Amy's school notified the Division that Amy had recently missed nineteen days of school and had demonstrated inappropriate and sexualized behavior. Amy subsequently told a Division worker that she was "often" left home alone and that "her mother beats her and her brother . . . with a belt when they do not listen." However, Amy could not remember when this had last occurred, and the worker observed no physical marks on Amy.
On March 16, a teacher called the Division to report that Amy had touched a classmate's private parts and to convey the school's concerns that Amy might have a history of sexual abuse. The Division interviewed Joan, who initially denied Amy had ever been sexually abused. Later in the interview, Joan disclosed that, when Amy was two years old, she had "walked in on [Amy] and another cousin and there were two boys in their room humping them." She said she "got the boys off both girls" and "beat their behinds" before sending them home. The Division concluded that the allegations of abuse were unfounded.
On March 21, the school notified the Division that Amy had broken blood vessels near her right eye and had disclosed that her mother hit her with a belt. A Division caseworker interviewed Amy at school that day. When asked what had happened to her face, Amy responded that something had fallen on her, but she could not identify what it was. Joan told the caseworker she had not seen the marks on Amy's face the night before. However, another caseworker who visited the house unannounced later that day noted that Amy appeared to be afraid of her mother. The Division substantiated allegations of physical abuse by an unknown perpetrator.
On March 22, the Division filed for and was granted custody of Amy and Steve. Steve was taken to the pediatrician for a routine placement physical. When the Division worker took Steve's shoes off, "he screamed extremely loud[ly] in excruciating pain" and "would not allow anyone to touch his feet." Another Division worker "observed a knot on the right side of [Steve's] head" and "a scratch mark on his lower right side."
Steve was taken to the emergency room, where the examining physician observed "what appeared to be belt marks on both sides of his upper inner thighs, " scratch marks on his back, ear, and behind his ear, and "a quarter size knot on the right side of his head." The doctor also stated that Steve could not stand due to "wearing tight sneakers/shoes for an extended period of time."
According to the Division worker, Amy told her that her mother held Steve up by the throat and beat him with a belt. Amy also reported that Joan beat her with a belt on her face and arms, and that she had been beaten by Joan "since she was three years old."
The Division substantiated physical abuse by Joan. It placed Amy with Lilly, and Steve with someone who, at the time, was believed to be his paternal grandmother. After paternity test results ruled out a biological relationship and the placement's negative background was discovered, Steve was also placed with Lilly.
Joan was arrested on March 29, and charged with child abuse, aggravated assault, and endangering the welfare of a child. On October 23, she pled guilty to two counts of endangering the welfare of a child, and was sentenced to a five-year term of probation.
On June 6, Joan underwent a psychological evaluation by Robert Kanen, Psy.D. When Kanen asked why she had been referred for evaluation, Joan responded, "I beat my children but not to the point I abuse them. I hit them with a belt. I don't normally beat them. They bruise easily. I beat them to discipline them." She also told Kanen that she "used to get beatings, " had grown up in an unstable home, and "wanted to break the cycle." Joan began individual counseling sessions at Mt. Carmel Guild in July.
On July 28, Joan stipulated "that as a result of allegations of physical abuse [she] was arrested and unable to care for [the] children which put them at risk." Joan was allowed supervised visitation with the children.
In July, a visitation supervisor reported that when she asked Amy how she felt about seeing her mother, Amy said "she is happy to see her mother and want[s] to live with her." In contrast, Steve was reported as "not show[ing] any affection towards his mother, " and as being "anxious and . . . happy to leave the visits." Lilly informed the Division she was allowing Joan to visit the children at her home, as of October.
In February 2007, the Division discovered that Lilly was on probation for a criminal conviction in North Carolina and removed the children from her home. The children were placed with a non-relative foster parent. Lilly was formally ruled out as a placement in August.
In March, Joan was hospitalized for seven days for "alcohol detox." The discharging physician, who reported Axis I diagnoses of "polysubstance dependency" and "psychosis due to substance use, " referred Joan for further treatment. Joan received inpatient substance abuse treatment from April 27 to May 24. She was referred for follow-up treatment, but was discharged from one program for non-compliance and failed to attend assessment appointments for another program.
In April 2007, the children were referred for weekly counseling based on concerns their foster mother, G.E., had about their behavior. In June, G.E. requested their removal from her home due to behavioral problems. They were moved to another non-relative placement, where they remained until October, when they were returned to G.E.'s home. The children were moved to a different non-relative placement in January 2008, after G.E. told the Division she could no longer care for them.
Dean M. De Crisce, M.D., conducted a psychiatric evaluation of Joan on July 30. He observed that Joan "minimizes her substance abuse and does not appear to recognize her significant need for treatment." He found that she "show[ed] little acknowledgement or insight" regarding the physical abuse and neglect of her children. He noted that she "appear[ed] to represent a continued, significant risk to the welfare of her children, " but recommended that she be allowed "to visit and maintain a relationship with her children under supervision."
In July, the Division received a referral concerning Amy's sexualized behavior. In October, Steve was referred for in-home behavioral therapy based on cursing and fighting with Amy.
The Division continued to arrange visitation with Joan either at the Division office or through the Urban League. The Division also continued to evaluate relatives as potential placements for the children. Maternal grandmother Faith was formally ruled out in November 2007, based on her history with the Division. The Division also ruled out the woman originally thought to be Steve's paternal grandmother, based on her domestic violence history. Lilly was ruled out for the second time. Only Lilly sought an internal review of the decision. In December, her case was returned to the local Division office for further review of her suitability.
In December, the Division sought a change in the permanency plan from termination of parental rights followed by adoption by Lilly to termination followed by select home adoption. It argued that Lilly was disqualified under applicable federal law because of a 1994 criminal conviction. The judge denied the Division's motion. She denied the Division's motion for reconsideration in February and again in JUne, having determined that Lilly's guilty plea to burglary was not a disqualifier. The judge observed that "[t]he only stable placement that these children have ever had was with [Lilly]."
The judge ordered the Division to return Amy and Steve to Lilly's home in August. The children were placed with Lilly in September 2008.
Joan's sporadic supervised visits continued in 2008. Joan attended two visits in January and one in March, but missed a visit in February. On April 9, she arrived for a visit thirty minutes late and left immediately. Amy, who had "started to jump screaming 'Mommy, Mommy!'" when Joan appeared, was left "crying." According to the visitation supervisors, the children, especially Amy, were sad when visits ended and when Joan missed visits.
On April 13, Joan was arrested for burglary. She remained incarcerated until September 30, the day after she pled guilty to fourth-degree criminal trespass. Joan was unable to attend visits after her incarceration in mid-April.
In October, Lilly informed the Division that she wanted to pursue kinship legal guardianship rather than adoption. The judge dismissed the guardianship complaint and reinstated the care and custody litigation on October 29.
In January 2009, Joan started to receive services at Christ Hospital's Project Second Chance. However, she was incarcerated from late January through February due to an alleged fighting incident. She resumed services in March, but only attended sporadically.
In February, the Division confirmed with Lilly that Joan had been visiting with the children at her home, and that Lilly supervised those visits. On March 27, Lilly reported to the Division that Joan had hit Steve during a visit. A Division worker observed Steve had "welt marks on [his] neck and above his ear, as well as a large red mark near his left temple, " "scratches above and below [his] eyes, " a three- to four-inch long bruise on his left side, and "belt marks" on his arms.
Amy told investigators she saw her mother slap Steve and hit him on his arms and legs with a belt. Steve reported that Joan scratched him on his face because he was not doing his homework, and also hit him with the belt on his side. Joan claimed her children bruise easily, but acknowledged that she had "popped" Steve on the legs with an open hand because she heard he had been bothering one of his cousins, and again when he refused to write his name for her. She also acknowledged that she "used a belt" four times on his legs. She also admitted to yelling at Steve, causing him to jump backward and hit his head on a dresser.
The Division subsequently substantiated Joan for physical abuse of Steve. That was Joan's fourth abuse or neglect substantiation. On April 1, Joan was arrested in connection with the incident. In June 2010, she pled guilty to one count of second-degree endangering the welfare of a child, for which she received a four-year prison sentence. Joan remained incarcerated from April 1, 2009, until spring 2011. During Joan's incarceration, the children told the Division caseworker that they missed their mother and were hoping that, one day, they could live with her as a family again. In December 2009, one of Amy's teachers reported that Amy "writes her [mother] letters and we mail them out." In July and September 2009, the children told Division caseworkers they would like to visit Joan in prison. They reiterated this desire in March 2010.
The children continued to live with Lilly. On April 29, 2010, the Division received a referral alleging that Amy had been physically abused in Lilly's home. The Division's investigation confirmed that Lilly hit Amy "on her palm with a belt, " but concluded the action did not meet the statutory standard for abuse.
The Division worker who interviewed the children was told by Steve that Amy had told him and his cousin "to pull down their pants and touch each other's 'pee pee.'" Amy denied doing so, but divulged that Lilly's teenage son had tried to make her touch his private parts about four years earlier, during her first placement in Lilly's home. Amy told the worker that she had disclosed the incidents to Joan, Faith, and Lilly. When asked if her cousin "tried to get on top of her, " Amy said he had. According to Amy, the last incident had taken place five years earlier. Amy also disclosed that she had seen her cousin "humping" someone.
When interviewed on May 3, Lilly denied knowledge of incidents involving sexual contact between Amy and her cousin. However, Lilly acknowledged that she had caught her son having sex in the home. Her son told the investigator that Amy had "walked in on him when he [was] having sex." At Lilly's request, the Division removed the children from her home during the investigation.
A Division worker subsequently interviewed Joan, who admitted that both she and Lilly knew about the incident involving Amy's cousin four years earlier. Joan said she had not told the Division about the incident because she "didn't want anyone to get in trouble."
The children underwent medical and psychosocial evaluations at Audrey Hepburn Children's House (AHCH) in July. Amy told evaluator Patricia Sermabeikian, Ph.D., that she "got beat a lot of times" by Lilly. She also acknowledged being physically abused when she lived with her mother, and that she would "cry" and "be scared." When asked who beat her more, Lilly or her mom, Amy replied, "My mom and it makes me feel so sad."
Sermabeikian concluded that there was clinical support for a finding of physical and sexual abuse of Amy. She reported that Amy displayed "a sense of resignation that being physically abused was a part of her life with family members." However, she noted that Amy's "primary attachment remains with her biological mother and she has positive memories of her mother. She is aware that her mother is incarcerated. She expressed wanting to visit with her mother."
Candice Hudson, Psy.D., evaluated Steve. She concluded that sexual abuse of Steve was not clinically supported. Although Steve "appeared happy and playful, " she opined that he was "experiencing internal sadness and anxiety related to family separation, particularly [from] his sister, and moving to different placements, " and that those feelings were "being externalized through behavior difficulties."
Following their evaluations, the children continued to receive in-home therapeutic services for behavioral issues and history of abuse. They also began counseling at AHCH.
The Division identified A.S. as Amy's father in June. In early July, Amy was placed in the home of her father's cousin, N.M. (Nadine). Steve was placed with her in late August. Nadine told a Division caseworker she would adopt the children if needed.
On July 27, the judge ordered the Division to re-evaluate Faith. She ordered evaluations of Joan's great uncle, S.T.M.M. (Tim), as well as another relative "and any other relatives provided by [Joan] in the future as possible resource placement[s]."
Division caseworkers continued to note that the children talked about missing their mother. On November 17, Steve asked if he could draw a picture for the caseworker to give to Joan. On December 15, both children told the caseworker that they were "very sad that they are not with their mother and that they miss her."
At the October 19, 2010 compliance review, the judge ordered the Division to continue its evaluation of Tim, including an interstate home study of his residence in Maryland. At the January 28, 2011 compliance review, the judge again ordered the Division to continue its evaluation of Tim. She also ordered the Division to provide her and counsel with a copy of an earlier rule-out letter sent to Tim, a record of his convictions, specification of which convictions were Federal disqualifiers, and information on "whether [the] Division will consider a waiver of those convictions." In addition, she ordered the Division to assess Joan's sister, T.R. (Tracy), as a possible placement.
On February 1, Joan wrote to the Division caseworker to provide Tracy's contact information. She emphasized that she was "not signing over [her] rights, " and wrote "I'm willing to do everything to get my children back. I know I made a mistake. Not to blame it on the P.C.P. but it plays a part . . . . I'm a changed person now. I'm in [parenting and anger management] classes . . . and I'm in school."
At the March 18 case management conference, Faith testified by telephone concerning her interest in caring for the children and her concerns over difficulties she had encountered in arranging for the Division to evaluate her as a placement. The Division informed the judge that Faith had been ruled out "based on her history with the Division." The judge ordered the Division to continue to evaluate Faith and to undertake an interstate home study in Florida, where Faith was now living.
Division caseworker Tony Sims testified that Tim had been ruled out because of a past domestic violence charge. The judge ordered the Division to provide an official copy of the rule-out letter sent to Tim.
Amy's law guardian informed the judge about her request for visitation or other contact with her mother. Because of the no-contact order, the judge ordered the Division to consult with AHCH to determine whether it would be appropriate for the children to have visitation with Joan.
On March 23, the Division caseworker met with Amy's father during one of his visits with Amy at Nadine's home. Amy's father informed the Division that he was not in a position to care for Amy. He told the caseworker he would like Nadine to adopt her.
At the April 15 case management conference, Tim, who maintained that he had not received a rule-out letter, testified to his willingness to be the caretaker for the children. He acknowledged having two criminal convictions, one in 1991 and the other in 2001. The judge ordered the Division to provide a copy of the rule-out letter to Tim, and reiterated her order that the Division provide specific evidence pertaining to the criminal history that formed the basis for excluding Tim. She also ordered the Division to expedite the interstate evaluation of Faith and to evaluate Tracy.
Following the May 13 case management conference, the judge reiterated the order that the Division evaluate Tracy. The judge also ordered an expedited home study of Faith and required the Division to complete its investigation of Tim within thirty days.
Steve's behavior deteriorated in late 2010 and early 2011. He bit a child at school in December 2010. In February 2011, Nadine requested that he be removed from her home because of his behavior. AHCH suspended his therapy in April, having concluded that he needed more intensive services than it could provide. Steve was suspended from school in April for destroying school property and choking a classmate, and in May for throwing chairs. In June, he threatened to shoot a classmate.
In July, Steve was moved to a therapeutic foster home, where he remained until January 2012. One of the therapists reported that Steve "had to be constantly reassured that he would not be hit as a form of discipline" when he arrived at the therapeutic home. Steve's Division caseworker reported that his behavior improved significantly at the therapeutic home.
In March 2011, while living with Nadine, Amy told the Division caseworker that "she wanted to be with her mother when she gets out of prison." On June 14, Amy told her caseworker she did not want to be adopted and she wanted to return to her mother. In July, Nadine reported that Amy's behavior worsened after Faith told her that Joan would be released in October. Amy told Nadine that "she did not want to be adopted by her, " "she did not want to stay there anymore, " and "she did not care what [Nadine] said because she can go to another foster home."
Amy became upset when the worker advised her that "the courts will decide what place is best for her. It could be with [Nadine, ] her mother or several other places." Amy responded that she wanted to be with her brother and that "she do[es] not like to be called a foster child."
Amy continued to live with Nadine until August 2011. She was removed after Nadine informed the Division that she was concerned that "accidents are happening with [Amy] involving the younger children too often." After her removal from Nadine's home, Amy's father stopped visiting her.
On September 20, Sonia Oquendo, M.D., conducted a psychiatric evaluation of Amy. Amy reported "mood swings" and frequent irritability, and "said she feels sad, especially because she is not with her brother and said that she hates her life. She hates the stigma of being a foster child and avoids telling others that she does not live with her own family." When asked to list three wishes, her first wish was "to be able to live with her mother and brother again." Oquendo concluded that Amy's symptoms, including reported behavioral problems, "are most likely directly related to the traumatic experiences of being physically abused, sexually molested and, most recently, separated from her brother."
Amy was placed in three different non-relative resource homes from August 2011 to March 2012. She was then moved to a therapeutic foster home where she continues to reside. As of January 2013, Amy and Steve were in separate placements.
In September 2011, Frank Dyer, Ph.D., conducted a psychological evaluation of Joan on behalf of the Division. Joan admitted to a history of smoking PCP since age sixteen. She stated she "was under the influence and . . . hit [Steve]." Dyer found Joan to be "an emotionally unstable young woman with an extremely troubled childhood background who is currently abstinent from drugs solely because she is confined in a facility where drugs are not available." He reported that she has "a vulnerability to episodes of aggressive acting out and psychotic breaks with reality, " as well as an "entrenched pattern of becoming dependent on PCP, attending a drug rehabilitation program where she achieves brief sobriety, and then relapsing on PCP." He concluded it would be "inconceivable" that Joan "would be able to provide even minimal structure, security, safety, nurturance, and material comforts for any child in her care."
Following a case management conference on September 16, the judge ordered the Division "to follow-up with the home study of [Faith]." She again ordered the Division to complete its investigation of Tim, and to assess whether his prior criminal convictions could be waived.
Because of Joan's incarceration, the children had no visitation with her when she was transferred from prison to a half-way house in spring 2011. Joan was released from the halfway house in October 2011 and paroled to Florida. One of the conditions of her parole was that she have no contact with the children. The parole address in Joan's discharge plan was Faith's home in Florida. Joan returned to New Jersey in early December.
The Division arranged for two hours of supervised visitation involving the children and Faith, Tim, and Faith's son on October 28. The caseworker observed that "the children appeared very happy to see [Faith]" and that "[t]here appears to be a familiar closeness between [Amy] and [Faith] especially. The children dance[d], played and tried entertaining their relative[s] with some humor." Amy displayed "a lot of affection to [Faith] and stayed close to her throughout the visit. She sat on her lap and spoke with her. . . . [Amy] asked [Faith] . . . about her mother and aunt who recently moved to Florida." Steve "read to his relatives, " but "was more occupied with playing with the toys in the room and his uncle['s] phone."
Joan's expert, Marc Friedman, Ph.D., evaluated her on December 5. Joan scored "extremely high" on the narcissistic and paranoid scales. Friedman reported that high scores on the narcissistic scale often correspond to "indifferen[ce] to the rights of other people." He concluded that Joan had
a long-standing personality and mood disorder, as well as significant problems with substance abuse. There is also a history of child abuse. She is going to require several years of psychotherapy and several years of abstinence from drugs before she would be in a position to re-obtain custody of her children.
On December 6, the judge heard Joan's renewed motion for bonding evaluations concerning the children and her. The Division opposed her motion, arguing that the AHCH therapists recommended that the children have no contact with Joan. The judge nevertheless granted the application.
Friedman conducted the bonding evaluation, which was the first time the children had seen Joan since her arrest in April 2009. He found that Joan
appear[s] to have a strong emotional bond to her children and they in turn appeared to be strongly bonded to her. Terminating her parental rights and placing the children for adoption I believe would be risky and subject the children to feelings of abandonment and insecurity.
While [Joan] is currently not able to resume custody of her children, I believe that maintaining a bond with her is extremely important for the children, and that supervised visitation [should] occur at least monthly. . . . If [Joan] can show signs of improved stability of functioning over a two-year period and be drug-free during this time, then I would consider returning the children to her care.
On December 13, 2011, Steve's father made an identified surrender of his parental rights so that his sister could adopt Steve. Steve was placed in her home in January 2012. He was still living with her at the time of trial. As previously noted, however, Steve was removed from his paternal aunt's home in December and the identified surrender was vacated. Also on December 13, the judge again ordered the Division to complete its investigation of Tim.
Dyer conducted a bonding evaluation of Joan and the children on January 5, 2012. This was Joan's second in-person contact with the children since 2009. At trial, Dyer testified that he found the children shared a "positive tie" with Joan that does not rise "to the level of . . . a true attachment." He acknowledged the affection between the children and their mother, but opined it did not indicate a true bond, given that Joan was "not the central figure in these children's lives."
Dyer interviewed each child following the bonding session. He reported that Steve said he loved his mother and wanted to live with her, but he could not remember "anything about having lived with" Joan. Amy indicated to Dyer that she wanted to live with her mother. Dyer characterized this desire as a "fantasy of a successful reunification with her birth mother in an idealized family setting where the past problems will have resolved themselves." When Dyer discussed adoption with Amy, she told him she did not want to be adopted by a stranger, but that if she could not live with her mother, her second choice would be adoption by Faith, and her third choice would be adoption by Tim. Dyer opined that if adoption by a relative was not feasible, he recommended the "careful selection of an adoptive parent for [Amy], with a considerable trial period and thorough briefing of the prospective adoptive parents as to the specifics of [Amy's] emotional and behavioral problems."
At trial, Dyer testified that adoption would be the "best case goal" for both children. He also stated that Amy and Steve could be placed in separate adoptive homes, based on indications that, in the past, they had done better when in separate homes.
The Division arranged for Tim to visit with the children twice in the fall of 2011. At trial in February 2012, a Division caseworker testified that Tim had "basically dropped out" after the second visit. Tim acknowledged at the trial that he started a job in Virginia in December 2011, but maintained that he still returned to New Jersey on weekends. He also testified that he tried to reach the Division to confirm another visit, but that no one called him back until the actual date of the visit.
The guardianship trial took place before another Family Part judge over four days in January and February 2012. The Division presented testimony from Dyer and caseworkers Kim Pigott-Johnson and Saudah Muhammad, Division investigator Charysse Kennedy, and Deputy First Assistant Prosecutor Debra Simon. Friedman, Tim, and Faith testified for Joan. The testimony of both experts was generally consistent with their reports.
Pigott-Johnson testified that Faith had been ruled out "[b]ecause her home did not meet standards, and . . . because of income, she is not able to move and get something that would actually be able to be licensed." She explained that Tracy had been ruled out solely because "[s]he resides in the same home with [Faith], who was also ruled out based on the home not meeting standards." In response to further questioning, she noted that Tracy was nineteen years old, did not have an income, and was pregnant at the time.
Pigott-Johnson was aware that Amy wanted to be adopted by a relative. She described ongoing efforts to explore relative placements, including Tim and a paternal aunt in North Carolina. In addition, she testified the Division had identified three non-relative homes that might be suitable placements for Amy, all of which "reported that they were willing to have some sort of contact with relatives."
Muhammad explained the Division's preference for the placement of children with relatives. At the time of trial, Steve was living with his paternal aunt. Muhammad testified that she had reviewed home studies of seven New Jersey families who expressed interest in adopting a child of Amy's age and background, adding that termination of Joan's parental rights would increase the number of homes that the Division could explore. She added that, if necessary, the Division would do a nationwide search for adoptive placement options.
Tim testified that his preference was to have legal custody of the children "until [Joan] got herself together, " but that he was also willing to adopt the children. In response to the Division caseworker's testimony that he had "basically dropped out, " Tim testified that, although he had not provided the Division with his new address, he had the same telephone number. His attempts to follow up with the Division regarding his evaluation had gone unanswered. He explained that the Division had scheduled two visits with him, but then failed to get back to him when he tried to schedule subsequent visits.
Faith testified by telephone from Florida. She explained that she would "love to have" legal and physical custody of the children. When asked whether she would adopt them if they were available for adoption, she responded, "I sure would, ma'am. I would love to." She testified that she was living in a large one-bedroom apartment with her twenty-year-old daughter, Tracy. She explained that Tracy was planning to move out the following month.
Faith further testified that she would put an additional bed in her bedroom for Amy, and a sofa bed in the living room for Steve. She was saving up money to move to a larger apartment. Faith confirmed that Joan had been released to her address on parole, but had "left" and "was staying in Orlando." She told the judge that she had complied with the interstate assessment process in Florida, and had "completed my classes, got my certificate and . . . . cooperated with everything they needed me to do, " but had then been told she would "have to move to a bigger apartment."
Faith acknowledged she had a history of substance abuse, but testified that she had graduated from a treatment program in 2008 and had stayed clean since then. She explained that the Florida authorities had not asked her to complete a substance abuse or psychological evaluation. She confirmed that the Division had custody of her son, now twenty-one, at one time. Faith told the judge that the Division provided transportation for her to visit the children in New Jersey in early February 2012. She had not had any contact with the children since then.
On May 24, the judge placed an oral decision on the record, explaining why she was ruling in favor of the Division. She found that the Division had proven by clear and convincing evidence each of the four prongs of the best interests test. N.J.S.A. 30:4C-15.1(a).
With regard to the first prong, "[t]he child's safety, health or development has been or will continue to be endangered by the parental relationship, " the judge relied on the events underlying Joan's two criminal convictions for endangering the welfare of her children, as well as her longstanding substance abuse issues, periods of incarceration, and the parole condition that she have no contact with the children. She noted that Amy had been placed in eight foster homes and Steve in nine as a result of Joan's behavior. In addition, the judge found both children had suffered emotional and psychological harm, as evidenced by the requests of foster parents to have the children removed from their homes due to behavioral issues.
As additional bases for prong one, the judge found in Steve's case that he had tested positive for PCP at birth as a result of his mother's admitted ingestion of PCP about two days before his birth. She pointed to Joan's knowledge of, but failure to report, Amy's sexual abuse by Lilly's son during her first placement with Lilly, which resulted in a second placement with that family during which she was at risk of continued abuse.
The judge also found that there was "great risk that the children will continue to experience harms at the hands of [Joan, ]" based on both psychologists' testimony and stressing Friedman's conclusion that "it's going to be several years before there could be consideration of [Joan] being able to parent the children." (Emphasis added).
The judge next found that the Division had satisfied the second prong, which requires that it prove by clear and convincing evidence that "[t]he 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." N.J.S.A. 30:4C-15.1(a)(2). She found "no evidence that [Joan] is willing or able to eliminate the harm she poses to her children. Almost eight years of history in this case indicate that she's not able to eliminate the harm." The judge noted that both psychologists had opined that Joan's "prognosis for parenting is poor."
While acknowledging that Joan had recently started to engage in services, the judge noted Joan's history of substance abuse, including a recurring pattern of treatment followed by relapse, which "poses a risk to her ability to parent the children in the foreseeable future." She credited Friedman's testimony that Joan "showed signs of psychiatric illness, mood disorder, [and] severe personality disorder, " including narcissistic and paranoid qualities that "have impaired [Joan] in the past from being an adequate parent, and in fact, beyond inadequate, causing physical and emotional harm." The judge concluded that
[i]t's unfortunate, but [Joan has] not been able to get a handle on . . . the disease of substance abuse, or the other issues that have precipitated these problems. The Division has proven by clear and convincing evidence that [Joan's] inability to address her parenting deficits make[s] it virtually impossible to reunify her with the children now, or in the foreseeable future . . . .
The judge then found that the Division had satisfied the third prong of the best interests standard, which requires that the Division "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." N.J.S.A. 30:4C-15.1(a)(3). With regard to services provided to Joan, the judge observed that during the first removal, from March 2004 to early June 2005, Joan had complied with Division services, successfully completing a substance abuse program. After the children were returned to Joan's care in June 2005, the Division arranged for her to receive homemaking assistance, funds for clothing and furniture, and daycare for the children. Nevertheless, it became necessary for the Division to remove the children again.
The judge found that
[o]ver the course of . . . eight years the Division has referred [Joan] to many substance abuse programs, a few of which she completed, most [of] which she did not. They provided substance abuse testing, they provided homemaking, they referred her to parenting skills classes which she did complete the first time around . . . .
[Joan] was referred to psychological evaluations, psychological treatment, both inpatient and outpatient, individual counseling, housing assistance.
The judge further found that the Division had arranged for Joan to visit with the children, providing transportation as needed. She noted that the Division had cancelled some visits because Joan had failed to confirm them with the Division ahead of time. In addition, Joan had canceled or failed to show up for visits. Finally, visits ceased because of Joan's incarceration and the no contact order. The judge concluded that the Division had "provided more than reasonable, ample services to [Joan] to help her rehabilitate herself, and be able to be reunified and parent the children."
The judge then addressed the alternatives to termination of parental rights. She observed that the Division had located and confirmed the paternity of Steve's and Amy's fathers, but that "neither father [was] able to care for his respective child." However, the Division had found a suitable relative placement for Steve.
With respect to relative placements for Amy, the Division had investigated but ruled out Faith, based on Faith's own substance abuse history, inappropriate housing, and Joan's residing with Faith, which precluded placing the children with Faith while Joan was subject to the no contact order. She observed that the Division was still investigating Tim and was also evaluating a paternal aunt.
Finally, the judge held that the Division had satisfied the fourth prong, based on findings and conclusions that we discuss in detail below.
In summary, the judge observed,
this Court finds [the Division] has met its burden by clear and convincing evidence on each of the four prongs with regard to both parents. Sadly, even though there's no definite plan for the children, because of the length of their bouncing around like ping pong balls to various foster homes, their repeated disappointments and rejections, whether it was purposeful or a byproduct of substance abuse disease, these children have suffered, suffered, and suffered, and the fantasies they have of a normal family life, according to the experts, are just that, fantasies, for the foreseeable future, and our law tells us, and the experts tell us that these children need permanency.
The implementing order was issued on May 24. The same day, Joan's attorney made an oral motion for visitation pending appeal, which was denied. A second motion, seeking a final visit with the children, was denied without prejudice. The judge directed the Division to obtain advice from the children's therapists regarding the final visitation. This appeal followed.
On appeal, Joan raises the following arguments:
POINT I: THE TRIAL COURT ERRED IN TERMINATING THE PARENTAL RIGHTS OF THE MOTHER BECAUSE THE SEVERANCE OF THE CHILDREN'S BOND WITH HER AND HER FAMILY IS NOT OUTWEIGHED BY THE BENEFIT OF ADOPTION BY PATERNAL RELATIVES FOR ONE CHILD AND BY AN UNNAMED STRANGER FOR THE OTHER.
A. The judgment terminating the mother's parental rights should be reversed because [the Division] failed to prove that severance of the parental bond would not do more harm than good pursuant to N.J.S.A. 30:4C-15.1(a)(4) where both children were emotionally bonded to their mother, articulated that they wished to maintain the parental bond, and do not have permanency elsewhere in their lives.
1. Bonding Evaluations Indicated Strong Emotional Attachment between Mother and Children.
2. Children's Stated Wish is to Continue the Parental Relationship with their Mother.
3. Relationship with Defendant-appellant Mother Provides the Only Permanency the Children Have Known.
B. Termination of parental rights was improper because [the Division's] exploration of alternatives to termination pursuant to N.J.S.A. 30:4C-15.1(a)(3) was inadequate.
1. Improper Evaluation of Maternal Grandmother as a Placement.
2. Lack of Diligence in Evaluating Maternal Uncle as a Placement.
3. Incorrect Assessment of Maternal Aunt as a Placement.
Before addressing those issues, we outline the general legal principles that govern our review of judgments terminating parental rights.
The scope of our review of a Family Part judge's factual findings is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278-79 (2007). Those findings may not be disturbed unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J.Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)) (internal quotation mark omitted); see also N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004). "A reviewing court should uphold the factual findings undergirding the trial court's decision if they are supported by 'adequate, substantial and credible evidence' on the record." M.M., supra, 189 N.J. at 279 (quoting In re Guardianship of J.T., 269 N.J.Super. 172, 188(App. Div. 1993)).
As a general rule, we should also defer to the judge's credibility determinations. Ibid. Such deference is appropriate because the trial judge has a feel for the case and "the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008); see also M.M., supra, 189 N.J. at 293. In New Jersey Division of Youth & Family Services v. M.C. III, 201 N.J. 328, 343 (2010) (alteration in original), the Supreme Court reiterated the standard first used in Cesare v. Cesare, 154 N.J. 394, 413 (1998), recognizing that "'[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding.'"
We have held that, "'where 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." J.T., supra, 269 N.J.Super. at 188-89 (quoting C.B. Snyder Realty Inc. v. BMW of N. Am. Inc., 233 N.J.Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989)); see also N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). Deference is appropriate even in that circumstance "unless the trial court's findings 'went so wide of the mark that a mistake must have been made.'" M.M., supra, 189 N.J. at 279 (quoting C.B. Snyder Realty, supra, 233 N.J.Super. at 69).
Nevertheless, the trial judge's legal conclusions, and the application of those conclusions to the facts, are subject to plenary review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). We need not defer to the trial court's legal conclusions reached from the established facts. See State v. Brown, 118 N.J. 595, 604 (1990). "If the trial court acts under a misconception of the applicable law, " we need not defer to its ruling. Ibid.
Parents have a constitutionally-protected right to enjoy a relationship with their children. N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 165-66 (2010); E.P., supra, 196 N.J. at 102; In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). Strict standards have consistently been imposed in the termination of parental rights. K.H.O., supra, 161 N.J. at 347. To balance these constitutional rights against potential harm to the child, when applying for guardianship, the Division must institute "a termination proceeding when such action would be in the best interest of the child." N.J. Div. of Youth & Family Servs. v. K.M., 136 N.J. 546, 557 (1994). The burden of proof is on the Division to establish its case by clear and convincing evidence. Ibid.; In re Guardianship of J.N.H., 172 N.J. 440, 464 (2002); see also P.P., supra, 180 N.J. at 511 ("On appeal, a reviewing court must determine whether a trial court's decision in respect of termination of parental rights was based on clear and convincing evidence supported by the record before the court.").
The Supreme Court first articulated the best interests standard in New Jersey Division of Youth & Family Services v. A.W., 103 N.J. 591, 602-11 (1986). The Legislature subsequently amended Title 30 in 1991 to conform with the court's holding in A.W., codifying the standard at N.J.S.A. 30:4C-15.1(a). See L. 1991, c. 275, § 7. The statute provides that the Division must prove:
(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 four factors are not independent of each other; rather, they are "interrelated and overlapping[, ] . . . designed to identify and assess what may be necessary to promote and protect the best interests of the child." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J.Super. 81, 88 (App. Div. 2006) (citing K.H.O., supra, 161 N.J. at 348), certif. denied, 190 N.J. 257 (2007). Application of the test is "extremely fact sensitive, " requiring "particularized evidence that addresses the specific circumstances of the individual case." Ibid. (internal quotation marks omitted).
Under the first prong of the best interests standard, the Division must prove by clear and convincing evidence that "[t]he child's safety, health or development has been or will continue to be endangered by the parental relationship." N.J.S.A. 30:4C-15.1(a)(1). "The harm shown . . . must be one that threatens the child's health and will likely have continuing deleterious effects on the child." K.H.O., supra, 161 N.J. at 352. There are situations where "[t]he potential return of a child to a parent may be so injurious that it would bar such an alternative." A.W., supra, 103 N.J. at 605. Accordingly, the "absence of physical abuse or neglect is not conclusive"; indeed, serious emotional and developmental injury should be regarded as injury to the child. Ibid. Moreover, trial courts must consider the potential psychological damage that may result from reunification with a parent. Ibid. "[T]he psychological aspect of parenthood is more important in terms of the development of the child and its mental and emotional health than the coincidence of biological or natural parenthood." Sees v. Baber, 74 N.J. 201, 222 (1977); see also In re Guardianship of K.L.F., 129 N.J. 32, 44 (1992) ("Serious and lasting emotional or psychological harm to children as the result of the action or inaction of their biological parents can constitute injury sufficient to authorize the termination of parental rights.").
Under the second prong of the best interests standard, a trial court is required to determine whether it is "reasonably foreseeable that the parents can cease to inflict harm upon" their child. A.W., supra, 103 N.J. at 607. "No more and no less is required of them than that they will not place their children in substantial jeopardy to physical or mental health." Ibid. This prong may be satisfied "by indications of parental dereliction and irresponsibility, such as the parent's continued or recurrent drug abuse, the inability to provide a stable and protective home, [and] the withholding of parental attention and care, . . . with the resultant neglect and lack of nurture for the child." K.H.O., supra, 161 N.J. at 353. This harm includes "evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child." N.J.S.A. 30:4C-15.1(a)(2). The second prong focuses on parental unfitness and its proofs overlap with the proofs supporting the first prong. In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999).
Under the third prong of the best interests standard, the Division must make "reasonable efforts to provide services to help the parent correct the circumstances" that necessitated removal and placement of the child in foster case. N.J.S.A. 30:4C-15.1(a)(3); K.H.O., supra, 161 N.J. at 354. "Reasonable efforts" may include parental consultation, plans for reunification, services to further the goal of reunification, notice to the family of the child's progress, and visitation facilitation. N.J.S.A. 30:4C-15.1(c). Those efforts depend upon the facts and circumstances of each case. D.M.H., supra, 161 N.J. at 390. The services provided to meet the child's need for permanency and the parent's right to reunification must be "coordinated" and must have a "realistic potential" to succeed. N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J.Super. 245, 267 n.10 (App. Div. 2002) (quoting N.J.A.C. 10:133-1.3).
The third prong also requires that the court consider "alternatives to termination of parental rights." N.J.S.A. 30:4C-15.1(a)(3). Where a relative caregiver agrees to raise a child to adulthood, the court may award kinship legal guardianship to that relative pursuant to N.J.S.A. 3B:12A-6. N.J. Div. of Youth & Family Servs. v. S.V., 362 N.J.Super. 76, 87 (App. Div. 2003). However, this option is not appropriate where adoption is feasible and likely. Id. at 88 (citing N.J.S.A. 3B:12A-6(d)(3)); see also N.J. Div. of Youth & Family Servs. v. S.F., 392 N.J.Super. 201, 213 (App. Div.), certif. denied, 192 N.J. 293 (2007).
Under the last prong of the best interests standard, the question to be addressed is "whether, after considering and balancing the two relationships, 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." K.H.O., supra, 161 N.J. at 355. The overriding consideration under this prong is the child's need for permanency and stability. Id. at 357. "If a child can be returned to the parental home without endangering [her] health and safety, the parent's right to reunification takes precedence over the permanency plan." N.J. Div. of Youth & Family Servs. v. L.J.D., 428 N.J.Super. 451, 492 (App. Div. 2012). The mere existence of a bond with the foster parent does not alone justify the termination of parental rights. N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J.Super. 235, 263-64 (App. Div. 2005); see K.L.F., supra, 129 N.J. at 44-45.
In meeting this prong, the Division should adduce testimony from a "well qualified expert who has had full opportunity to make a comprehensive, objective, and informed evaluation of the child's relationship" with the natural parent and foster parent. In re Guardianship of J.C., 129 N.J. 1, 19 (1992). "[T]ermination of parental rights likely will not do more harm than good" where a child has been exposed to continuing harm by the parent and, in contrast, "has bonded with foster parents who have provided a nurturing and safe home." E.P., supra, 196 N.J. at 108. "[T]he Division must show 'that separating the child from his or her foster parents would cause serious and enduring emotional or psychological harm.'" Ibid. (quoting J.C., supra, 129 N.J. at 19).
Based upon our review of the record in light of the applicable law, we conclude that the record supports the trial judge's conclusion that all four prongs of the statutory test were proven by clear and convincing evidence. We focus our discussion on the two specific issues raised by Joan, whether the Division proved the fourth prong by clear and convincing evidence and whether it failed properly to explore alternatives to termination.
Joan argues that she "has been the consistent loving force in [the children's] lives despite her battle with addiction" and that, in contrast, the Division "has not identified a prospective home in which [Amy] can find permanency." She stresses that the bonding evaluations showed that the children had a strong emotional attachment to her, and that the children have stated their wish to continue their parental relationship with her.
The Division argues that "[b]oth children have been in foster care for most of their lives, " that Joan "is not able to parent [them], at this time or in the foreseeable future, " and that as a result, termination of Joan's parental rights offers "the only possibility these children have at enjoying a permanent home with a family." The Law Guardian concurs, arguing that Joan has never provided the children with the "permanent and defined parent-child relationship" characterized by the Supreme Court as "paramount." J.C., supra, 129 N.J. at 26.
In reaching her decision concerning the fourth prong, the trial judge relied on New Jersey Division of Youth & Family Services v. B.G.S., 291 N.J.Super. 582, 592 (App. Div. 1996), for the proposition that "if the parent is unable to address the issues and would not be able to take custody for an indefinite period of time, it's against the child's best interests to prolong resolution of the child's status by indefinitely extending foster care placement." She also quoted A.W., supra, 103 N.J. at 610, in which the Court observed that "it seems generally agreed that permanence in itself is an important part" of nurturing the child. The judge aptly observed that the fourth prong "does not require the Division to prove that no harm will befall the child by severing biological ties, " but rather to show that severing the ties would not result in greater harm than good.
The judge carefully evaluated the testimony of the two experts, Dyer and Friedman, as follows:
[Dyer] and [Friedman's] opinions differ with regard to whether the children had a bond with [Joan], and if so, to what extent? [Friedman, the defense's expert, opined] that the children had, in his words, a strong bond with their mother, but he really gave no strong basis for that opinion, other than that they seemed affectionate with their mother [during the evaluation].
[Friedman's] opinion, given the ages of the children, what they've been through, the length of time they've not seen [Joan] because of her incarceration and her substance abuse issues, their many, many placements in foster homes, and the many times that [Joan] did not exercise her right to visitation during the time she was not incarcerated, given all of those things, his recommendation . . . that termination would do more harm than good conflicts with his statement that adoption of [Steve] by the paternal aunt he's currently with would be an appropriate plan for [Steve] because [Friedman], on the stand, did acknowledge that that was an appropriate plan for adoption of [Steve].
As to [Amy], given her behavior issues, and [Friedman's] own statement that it will take at least two years to be able to address concerns that [Joan] could properly parent, I do not find his bottom line opinion to have a sound basis. There is not adequate consideration given to the ages of the children, the length of time that has gone by since they've been with their mother, all of the physical abuse, the emotional abuse, [and] with regard to Amy[, ] [Joan's] inability to address or protect her from risk of sexual abuse.
[The opinion expressed by Dyer, the Division's expert, ] that the children have a tie to [Joan] rather than a bond, is the more logical and convincing assessment of the two. He said the children seemed affectionate towards their mother, but in describing what a true bond is, affectionate isn't even close. He described the bond as a feeling of trust that they could depend on that person for their physical needs, for their well being, to protect them. Here we have no indication that the person that should be protecting them has done anything but hurt them, physically and emotionally, and we have no indication that anything can change in the foreseeable future.
[Friedman's] recommendation that everything should remain as it is, meaning [Amy] in foster care indefinitely with no chance of her forming a bond with a parent surrogate leaves both children hanging out there, and they need permanency, they need to bond with someone that can provide them [the] nurture that the testimony tells us they require. [Dyer] testified that an attachment figure was critically necessary, and that without it severe psychological disorders could result. He also testified that he found [Amy] open to developing an attachment. He further testified that he did not ask [Amy] who she wanted to live with, that this is something she proposed to him, that if she couldn't be with her mom she wanted to live with a relative, and to him that indicated she was clearly aware of the possibility that she may not return to living with her mother . . . . He also testified that [Amy] impressed him as a bright, articulate and engaging young woman with a lot of potential, and that her intelligence sets her apart from other children in not only making her more appealing to be adopted, to potential parents, but in assisting her to overcome her behavioral problems. She had not ruled out adoption for herself. She had just put terms on how she would like it to occur, if need be. I think the Division is trying very hard to comply with her terms and working hard to find an appropriate relative.
The judge also pointed to the view expressed by the children's therapists that they "should not have any contact with their mother, " even for pre-trial bonding evaluations.
Relying on A.W., Joan emphasizes the fact that the termination of her parental rights will not necessarily result in permanency because the children have not bonded with foster parents who are willing to adopt. In A.W., the Supreme Court commented that the requirement that "[t]he termination of parental rights will not do more harm than good"
conveys . . . that termination of parental rights will result, among other things, in a permanent resolution of the child's status. . . .
If one thing is clear, it is that the child deeply needs association with a nurturing adult. Since it seems generally agreed that permanence in itself is an important part of that nurture, a court must carefully weigh that aspect of the child's life. Hence, courts should consider the permanency plan presented:
It is an unfortunate truth that not all children, who are "freed" from their legal relationship with their parents, find the stable and permanent situation that is desired even though this is the implicit promise made by the state when it seeks to terminate the parent-child relationship. Multiple placements and impermanent situations sometimes mark the state's guardianship of a child. This unstable situation is frequently detrimental to a child. Indeed, the detriment may be greater than keeping the parent-child relationship intact since the child's psychological and emotional bond to the parent may have been broken with nothing substituted in its place.
[A.W., supra, 103 N.J. at 610-11 (citation omitted) (quoting In re Angelia P., 623 P.2d 198, 210 (1981) (Bird, C.J., concurring and dissenting)).]
The Court nevertheless reversed the trial court's denial of termination in A.W., despite the fact that permanency was not assured, noting that "[n]aturally, there will be circumstances when the termination of parental rights must precede the permanency plan." Id. at 611. We are satisfied that the same situation exists in this case for the reasons articulated by the trial judge. The children's exposure to Joan has been harmful, as have her absences from their lives, and there is no assurance that Joan will be in a position to be reunited with them in the foreseeable future, if ever.
Joan also cites E.P., supra, 196 N.J. at 109, 111. There the Court reversed termination of a parent's rights, observing that
[a]lthough this Court, the State Legislature, and even the United States Congress, have emphasized that permanency must be the Division's goal, see N.J.S.A. 9:3A-2(d); K.H.O., supra, 161 N.J. at 357-58, none has stated that the unlikely possibility of permanency in the future should outweigh a strong and supportive relationship with a natural parent.
[Id. at 110-11 (footnote omitted).]
E.P. is clearly distinguishable because the twelve-year-old child in that case had had continuing contact with her mother, and the Family Part judge found the mother to be the "only consistent figure in [the child's] life." Id. at 101 (internal quotation marks omitted). Those are simply not the facts in this case.
We consequently conclude that the trial judge's holding that the Division established prong four by clear and convincing evidence is fully supported by the applicable law and the credible evidence in the record.
Joan also contends the Division failed properly to investigate Faith, Tim, and Tracy, and therefore failed to satisfy the second part of the third prong, which requires "the court [to consider] alternatives to termination of parental rights." N.J.S.A. 30:4C-15.1(a)(3). We disagree.
The record reflects that the judges who oversaw the pretrial proceedings in this case went to considerable effort to make sure the Division considered a variety of relative placements. At trial, the Division explained its reasons for ruling out the candidates. Faith, who had been ruled out twice, did not have adequate housing to accommodate the children at the time of trial. Tracy had been ruled out because she lived with Faith and similarly could not offer suitable housing. Tim was still being evaluated and testified to his willingness to adopt the children if Joan's parental rights were terminated. The children had lived with a number of other relatives in placements that had not worked out.
The trial judge's reasons for accepting the Division's conclusions regarding relative placements were supported by the record. We conclude she did not abuse her discretion in finding that aspect of the third prong satisfied.
Our standard of review requires us to defer to the expertise of the Family Part judges. Cesare, supra, 154 N.J. at 413. We are satisfied that such deference is warranted in this case.