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New Jersey Division of Youth & Family Services v. B.C.

Superior Court of New Jersey, Appellate Division

July 11, 2013

B.C., Defendant-Appellant, and J.S. and G.R., Defendants. IN THE MATTER OF THE GUARDIANSHIP OF J.E. and I.C.-P., minors.


Submitted May 20, 2013.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FG-11-76-09.

Joseph E. Krakora, Public Defender, attorney for appellant (Jennifer M. Kurtz, Designated Counsel, on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Stephanie Anatale, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors J.E. and I.C.-P. (Christopher A. Huling, Designated Counsel, on the brief).

Before Graves, Ashrafi and Espinosa, Judges.


B.C. (Bonnie)[2] appeals from the termination of her parental rights to two of her six children, J.E. (Jesse), born in March 2004, and I.C.-P. (Isabel), born in April 2008.[3] The Law Guardian for the children supports the trial court's decision. For the reasons that follow, we affirm.

From 2003 through November 2006, the Division of Youth and Family Services (DYFS or the Division) received several referrals alleging abuse by Bonnie. None of these were substantiated.

In February 2007, Bonnie lived with her three children, Sam, Jesse, and Michael. On February 6, 2007, Bonnie's aunt, C.C. (Carol), took Bonnie to Helene Fuld Hospital in Trenton, reporting Bonnie had come to her "home crying with her three children . . . stating she thought her home was on fire." Carol investigated and found "a ball of paper on fire under the boiler" at Bonnie's home. Carol was concerned because Bonnie had been "paranoid recently, non[-]compliant with outpatient treatment and medication, . . . under a lot of stress . . . [and] has a history of fire setting and of attempting to poison her father in Puerto Rico." Bonnie was diagnosed with "psychotic disorder not otherwise specified (NOS)."

On the following day, Bonnie was involuntarily committed to Trenton Psychiatric Hospital (TPH). A certification by Mohammad M. Bari, M.D., one of the psychiatrists who examined Bonnie in conjunction with this admission, states she "set fire in basement with kids home. Says she wanted to kill somebody . . . ."

Upon admission to TPH, Bonnie reported moving from Puerto Rico to the United States eight years earlier. She lived in an apartment with her three children, receiving monthly Supplemental Security Income (SSI) benefits. Bonnie stated that, at eighteen or nineteen years old, she was dismissed from the police academy for allegedly attempting to poison her father. Carol also reported that Bonnie had been previously hospitalized four times, three times for depression and once for attempted suicide. According to TPH records, Bonnie admitted to starting the fire in her basement because she was depressed and "tired of putting up with unsanitary conditions." She regretted her actions and "expressed a willingness/desire to comply with treatment/medication when she returns to the community." She also admitted to hearing "voices" three years earlier. In a subsequent team meeting, Bonnie stated she believed "people [were] out to get her" and denied poisoning her father.

Bonnie's treating physician initially prescribed her Abilify, an antipsychotic mood stabilizer. On March 8, 2007, she was prescribed Risperdal, an antipsychotic medication. Abilify was discontinued in mid-March due to her complaints of dizziness. In its place, Lexapro was prescribed "for depression/anxiety."

On March 30, 2007, a psychological assessment of Bonnie was conducted at TPH by Glenn Ryer, Ph.D., who did not testify at trial. Ryer found Bonnie was "experiencing [a] moderate degree of depression, " but was not in a schizophrenic psychotic state. Ryer diagnosed Bonnie with schizoaffective disorder and opined "her future risk of arson can be mitigated by treating her underlying psychosis and contributing toward a constructive support [system]." He recommended therapy and medication.

Bonnie was discharged from TPH in April 2007. Her final diagnosis was "[p]sychotic disorder, not otherwise specified with features of anxiety and depression." She was provided with a thirty-day supply of Lexapro and referred to Greater Trenton Integrated Case Management Services (ICMS), a service designed to support mental health, housing, and employment goals, and Partners in Recovery, a daycare program.

Jesse and Michael were in the custody of F.E. (Frank), Michael's biological father, while Bonnie was hospitalized and remained there until September 2007. However, the Division received a referral from Carol that Frank was reportedly drunk, high on marijuana, and left the children unattended. The allegations were substantiated and the Division effectuated an emergency removal pursuant to N.J.S.A. 9:6-8.29 and -8.30. The Division filed a verified complaint and order to show cause against Bonnie to obtain protective custody of Michael and Jesse, which was granted.

Both Jesse and Michael were placed with Bonnie's aunt, Nancy, who has legal custody of Sam.

Shortly thereafter, Jesse was placed with a Special Home Service Provider (SHPS) due to his severe autism. He was additionally diagnosed with ADHD and a severe mixed receptive-expressive language disorder.

In late September 2007, DYFS referred Bonnie to a Child Protection Substance Abuse Initiative (CPSAI) counselor. Bonnie stated she never had a full-time job. She also reported that, when admitted to TPH, "she was diagnosed . . . with depression and schizophrenia." She said she stopped taking her prescribed medication when she became pregnant with her fourth child in July 2007. Since her drug screens were negative, CPSAI services were terminated.

In late February 2008, Bonnie was referred to El Centro of Catholic Charities (Catholic Charities), "a program primarily for Spanish speaking individuals" that provided "general case management service[s]." DYFS provided her with a bus pass for transportation to the sessions. Bonnie engaged in Catholic Charities services, including individual counseling with bilingual therapist Mary Lopez and psychotropic medication monitoring with Dr. Robert Davis.

Initially, Bonnie was compliant with her medication regime. She told Lopez in July 2008 she had started taking her medication and it was helpful. Again, in an August 2008 meeting, Bonnie reported the medication "helped her control her emotions." Bonnie was discharged from medication monitoring because Bonnie unilaterally decided to stop taking her medication sometime in January 2009, although she was not pregnant at that time. Bonnie also missed approximately one-third of her scheduled appointments with Lopez over two years. According to Lopez, everything Bonnie disclosed about her life was positive. For example, Bonnie failed to tell Lopez about an incident in June 2010, in which her husband[4] threatened to kill her with a knife during the middle of the night.

Bonnie gave birth to Isabel in April 2008. A DYFS caseworker met with Bonnie in the hospital and advised her that the Division had determined that, based on her psychological and psychiatric evaluations, the Division would have to take custody of Isabel. The caseworker further explained that Bonnie needed to become compliant with her medications. Bonnie replied that she did not have any mental health problems and did not know why the Division had her children. The Division filed an amended complaint, seeking protective custody of Isabel, which was granted. After placement with other maternal relatives failed, Isabel was placed with Carl and Megan, who want to adopt her.

In May 2008, Carol filed a domestic violence complaint against Bonnie. She alleged that Bonnie came to her residence with two men threatening to kill her unless she gave her Isabel, even though Carol did not have custody of the child.

In November 2008, the court held a permanency hearing and approved a plan to terminate Bonnie's parental rights to Michael, Jesse and Isabel; for Michael and Isabel to be adopted by relatives; and for the Division to pursue select home adoption for Jesse.

Between September 2007 and May 2009, Jesse resided in four foster homes. In May 2009, the Division received a letter from the Division of Developmental Disabilities (DDD), confirming Jesse's eligibility for services. He subsequently moved three more times before being sent to his current foster placement through the New Jersey MENTOR program. In the interim, DYFS pursued relative placements, but they ruled themselves out because they were either non-responsive or unwilling to care for a special needs child.

Since his last placement in July 2009, Jesse has developmentally and behaviorally progressed. The DYFS caseworker, Sharon Perez, testified that he has a "close and warm relationship" with his foster father and is "very attached" to his foster mother. Although the foster parents have expressed a desire to adopt Jesse, there are some impediments to adoption, i.e., the foster father's "very serious medical illness, " the foster mother's expressed concern regarding her ability to raise Jesse alone, and the continuation of provided services after adoption. Should adoption by Jesse's current foster parents be unattainable, the Division would pursue select home adoption.

Bonnie had supervised visitation with Jesse beginning in late 2007, and with Isabel after she was born, through early 2010, and attended the majority of the visits. Although the interactions were generally appropriate, Jesse tended to keep to himself, not engaging with Bonnie. Beginning in August 2008, Bonnie participated in parenting skills classes through Mercer County Hispanic Association. Although she missed a few sessions, she completed the classes in early 2009.

In February 2009, DYFS filed a complaint for guardianship of Jesse and Isabel.[5] At the trial that followed, the evidence included testimony from four mental health professionals: Charles Kaska, Psy.D. (for DYFS), Edward Szteinbaum, M.D. (for the Law Guardian), Melissa Rivera Marano, Psy.D. (for Bonnie), and Arnaldo Apolito, M.D. (for Bonnie). Their respective reports were received in evidence. All of the experts' evaluations of Bonnie were conducted in Spanish.

Kaska conducted a psychological evaluation of Bonnie in December 2007. Bonnie stated she had never been employed during her seven years in the United States and was receiving SSI benefits for her "nerves" during the past five years. She could not explain why none of her children were in her custody. Regarding her mental health history, Bonnie explained that she became depressed as a teenager due to her mother's abuse. She was prescribed medication, but did not take it because it made her feel "like a zombie." She denied having any mental health problems since coming to the United States, stating that her admission to TPH "resulted from false allegations made by vindictive relatives." She admitted that she failed to adhere to TPH's aftercare instructions of medication and attendance at the Partners in Recovery program.

Kaska conducted an updated psychological evaluation of Bonnie in July 2009. He acknowledged that, to her credit, Bonnie was gainfully employed and living independently in a room in a private residence. However, Bonnie had stopped taking her medication two months earlier because she "did not like the side effects[.]" Although she stated she was receiving SSI benefits for her "nerves" at the 2007 evaluation, Bonnie denied having any problems, including "nerves." Kaska questioned Bonnie about the allegations in the guardianship complaint. Bonnie denied the events as stated, but could not provide any alternative account of them. She felt her children were removed from her care without reason.

Kaska provisionally diagnosed her with schizophrenia, undifferentiated type. Although he did not observe hallucinations or disorganized speech/behavior, Kaska concluded that Bonnie was delusional about her mental health history and the circumstances that resulted in the removal of her children, and exhibited negative symptoms, such as lack of emotion, poverty of speech, and low energy. He recommended that she be further evaluated to confirm or rule out his provisional diagnosis. Kaska found it significant that Bonnie was resistant to medication, which could "help to slow the progress of the disorder[.]" He had "no optimism" that she could parent and opined that reunification would pose a risk of harm to the children.

Rivera Marano conducted a psychological evaluation of Bonnie in October 2009. During the evaluation, Bonnie stated that Carol was responsible for her children's removal because she reported to DYFS that Bonnie was mentally ill. Bonnie denied poisoning her father, stating it was "another lie" perpetrated by Carol. Regarding the 2007 fire, Bonnie recalled that she had accidentally left a lit cigarette in the basement.

Bonnie told Rivera Marano her admission to TPH was her first hospitalization and that she had never been previously treated for psychological issues. She denied suffering from mental illness, explaining that her "nerves" caused her hospitalization. She was not taking medication at the time of the evaluation.

In addition to a clinical interview, Rivera Marano administered the Millon Clinical Multiaxial Inventory (MCMI-III). Although the MCMI-III results suggested that Bonnie suffered from schizophrenia, Rivera Marano diagnosed her with major depressive disorder, in partial remission; post-traumatic stress disorder features-rule out; and borderline personality disorder.

Rivera Marano did not review all of Bonnie's TPH records, which included Bonnie's admission that she started the 2007 fire. She admitted that her assessment would have been significantly impacted if she had done so.

On December 17, 2009, Apolito conducted a psychological evaluation of Bonnie, who denied any present psychotic experiences and blamed Carol for many of her past problems. Bonnie informed Apolito she was not taking any medication. Although Bonnie had unilaterally stopped taking the medication, Apolito believed that the medication had been discontinued because her treating psychiatrist (Dr. Davis) concluded she did not need it. Apolito opined that Bonnie was suffering from a mood disorder, NOS, in therapeutic remission. She did not present as psychotic. Apolito believed Bonnie was fit to parent, recommending "gradual reunification" conditioned upon finding appropriate housing and conducting more supervised visitations "without any adverse experience[.]"

On cross-examination, Apolito admitted he had not reviewed the TPH records and was not apprised that Bonnie had started the 2007 fire. He thought Bonnie qualified for SSI benefits as a result of her 2007 hospitalization. Apolito further acknowledged that placement of Jesse with Bonnie would be a "significant stressor" in her life.

When Szteinbaum conducted a psychiatric evaluation of Bonnie in March 2010, she denied setting the fire that led to her involuntary commitment. She was unable to explain why none of her children were in her custody. Bonnie stated she had become depressed in her mid-teens as a result of her mother's verbal and physical abuse and had periodic "flashbacks" of the abuse. Bonnie said she was prescribed psychotropic medication after her grandmother sought mental health treatment for her. She said she stopped taking the medication because it made her feel like a "zombie." Szteinbaum reported that Bonnie said when she babysat children, "she [had] difficulty with children when they walk or cry, but said that this would happen when there is more than one child."

Szteinbaum reviewed TPH inpatient notes, dated February 20 through April 10, 2007, as well as the reports of Kaska, Apolito, Rivera Marano and S. Oquendo, M.D. (who did not testify at trial) as part of his evaluation. Szteinbaum diagnosed Bonnie with psychotic disorder, NOS, rule-out schizophrenia;[6]anxiety disorder, NOS, with generalized anxiety symptoms; agoraphobia with limited panic symptoms; post-traumatic stress disorder symptoms; and personality disorder with narcissistic, schizoid and schizotypal traits.

Szteinbaum opined that Bonnie was not currently capable of parenting due to her past behavior of starting fires, failing to appreciate her mental illness, non-compliance with treatment, and her admittance that she had difficulty caring for multiple children at once. Placement of the children with Bonnie would likely diminish her "impulse control . . . meaning that she would have more difficulty controlling her anger[, ] . . . [and] her insight and judgment in everyday activities" would likely be adversely affected. Thus, Szteinbaum concluded that reunification would pose a risk of harm to the children. He recommended that Bonnie participate in ongoing psychotherapy and take psychotropic medications.

Both Kaska and Rivera Marano conducted bonding evaluations. Although he did not conduct a bonding evaluation between Bonnie and her children, Apolito believed that the children would suffer harm if removed from Bonnie's care.

Rivera Marano's bonding evaluation of Bonnie with Jesse, Michael, and Isabel is not part of the appellate record. However, she testified that Bonnie acted appropriately with the children during the evaluation.

Rivera Marano also conducted a bonding evaluation between Isabel and her foster parents in December 2009. She opined that Isabel would respond positively to permanent placement with them as they were securely bonded. Rivera Marano also stated she believed Isabel would "be able to develop" a bond with Bonnie "if the [reunification] transition" between mother and daughter occurred "correctly."

Kaska conducted a bonding evaluation of Bonnie with Jesse, Michael, and Isabel in July 2009. He observed that none of the children related to each other or to their mother. He reasoned that Isabel's lack of bonding to Bonnie was attributable to the fact that she had been placed with relatives at birth. He attributed the lack of bonding between Jesse and Bonnie to her mental illness, which prevents her from developing the kind of intimacy necessary for bonding, and his autism, which limits his ability to relate to others. He noted further that Bonnie did not appear to appreciate Jesse's special needs, as she indicated to Kaska that he just needed extra attention.[7]

Kaska concluded that Bonnie could not presently parent her children because she did not possess the requisite skills to ameliorate the conditions that led to the children's removal in the short-term. Kaska was unable to predict whether Bonnie could parent in the long-term, explaining that she would need "to recognize that she has serious problems and [would need] to trust someone enough to be able to adhere to a treatment plan . . . [for] her mental problems." Her history of non-compliance did not bode well in enabling her to confront and correct her psychological problems. Thus, the children would face a significant risk of harm if reunified with their mother.

Kaska conducted a bonding evaluation between Isabel and her foster parents in August 2009. He opined that Isabel was bonded to them and would suffer harm if removed from their care.

The trial court issued an oral opinion and order of judgment, terminating Bonnie's parental rights to Jesse and Isabel, in January 2011. Termination of parental rights is warranted when the Division establishes by clear and convincing evidence that:

(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;
(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;
(3) The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and
(4) Termination of parental rights will not do more harm than good.
[N.J.S.A. 30:4C-15.1(a); N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 167-68 (2010).]

In her appeal, Bonnie argues that the State failed to prove each of these prongs by clear and convincing evidence. We disagree.

The four statutory criteria "are not discrete and separate; they relate to and overlap with one another 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). Notably, the best interests standard is applied in light of "New Jersey's strong public policy in favor of permanency." Id. at 357. Accordingly, "[i]n all our guardianship and adoption cases, the child's need for permanency and stability emerges as a central factor." Ibid.; see also In re Guardianship of J.C., 129 N.J. 1, 26 (1992).

In a contested action, "the court's function will ordinarily be to decide whether the parents can raise their children without causing them further harm." J.C., supra, 129 N.J. at 10. Although the proofs will generally "focus on past abuse and neglect and on the likelihood of it continuing . . . the cornerstone of the inquiry is not whether the biological parents are fit but whether they can cease causing their child harm." Ibid.

A trial court's decision to terminate parental rights is subject to limited appellate review. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). If supported by "adequate, substantial, and credible evidence in the record[, ]" the trial court's findings of fact are entitled to deference. Ibid.; see also Cesare v. Cesare, 154 N.J. 394, 413 (1998) ("Because of the family courts' special . . . expertise in family matters, appellate courts should accord deference to family court factfinding."). The family court's decision to terminate parental rights will not be disturbed "when there is substantial credible evidence in the record to support the court's findings." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008).

Harm, as addressed by the first prong of the statutory test, "involves the endangerment of the child's health and development resulting from the parental relationship." K.H.O., supra, 161 N.J. at 348. "To satisfy this prong, DYFS does not have to wait 'until a child is actually irreparably impaired by parental inattention or neglect.'" N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 449 (2012) (quoting In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999)). "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.

The trial judge found that Bonnie "set in motion a series of events which eventually led to her children being removed from her care." This began in February 2007, when she set a fire under the boiler of her home while the children were present. She left with the children and went to her aunt, Carol, who brought Bonnie to Helene Fuld Hospital in Trenton. Bonnie was diagnosed with "psychotic disorder not otherwise specified." On February 8, 2007, she was ordered involuntarily committed to TPH, where she was diagnosed with psychosis NOS and schizoaffective disorder. The judge found that after compromising the safety of the children, Bonnie "continue[d] to deny her ongoing mental health issues and steadfastly refuse[d] to take her medication thereby not remediating the condition which led to the initial removal of her children." Based on these findings, the trial judge found that the first prong had been proven by clear and convincing evidence.

Bonnie argues that the trial court erred in reaching this conclusion. She contends that the TPH records were inadmissible, [8] that the expert opinion relied upon by the court was "worthless, " and that the State failed to show that she suffers from a mental illness and harmed the children.

As a preliminary matter, the first prong does not require proof of actual harm but only that the alleged harm "threatens the child's health and will likely have continuing deleterious effects on the child." K.H.O., supra, 161 N.J. at 352. "Mental illness, alone, does not disqualify a parent from raising a child. But it is a different matter if a parent refuses to treat [her] mental illness, the mental illness poses a real threat to a child, and the . . . parent . . . is unwilling or incapable of . . . shield[ing] her child from that danger." F.M., surpa, 211 N.J. at 450-51.

The central issue regarding the first prong was whether Bonnie suffers from a mental illness that, untreated, threatens harm to her children. Despite significant medical records and testimony and her own admissions, Bonnie maintains that she does not suffer from such illness and does not require any medication.

As the trial judge noted, Bonnie was involuntarily admitted to TPH. She told one of the examining psychiatrists that she set the fire, with her children in the house because "she wanted to kill somebody[.]" The TPH records reflected a history of mental illness, treatment and non-compliance with medication and aftercare services. The risk of harm created by her mental illness was further evident in her earlier attempt to poison her father by putting rat poison in his coffee.[9] Her statements to the mental health professionals who testified included multiple admissions of her unilateral decisions to cease taking prescribed medication, despite the fact that she also reported that the medication helped her. The trial judge's determination to give greater weight to the opinions of Dr. Szteinbaum and Dr. Kaska was entirely reasonable since Dr. Szteinbaum was the only doctor to read all the TPH records and both Dr. Rivera Marano and Dr. Apolito relied upon incorrect or incomplete facts as provided by Bonnie. The record therefore provided clear and convincing evidence that Bonnie suffers from a serious mental illness and that, because she persists in denying her illness and refusing medication, her illness creates a risk of harm to her children.

Under the second statutory prong, "[n]o more and no less is required of [the parents] than that they will not place their children in substantial jeopardy to physical or mental health." N.J. Div. of Youth & Family Servcs. v. A.W., 103 N.J. 591, 607 (1986). In other words, "[t]he Division must demonstrate that the parent is 'unable to eliminate the harm facing the child or is unable . . . to provide a safe and stable home for the child, ' . . . before any delay in permanent placement becomes a harm in and of itself." N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J.Super. 418, 434 (App. Div. 2001) (quoting N.J.S.A. 30:4C-15.1(a)(2)), certif. denied, 171 N.J. 44 (2002).

The trial judge found that Bonnie "has been unable to provide a safe home to which her children can return." In addition to the "chaos" in Bonnie's domestic situation and her "sporadic" employment, the judge noted that Bonnie "refuses to take her medication. She sporadically attends therapy." The judge accepted the evaluations of Dr. Kaska and Dr. Szteinbaum that Bonnie has schizophrenia and observed the contradiction in Bonnie's denial that she has the illness while she receives SSI benefits for the illness. The judge found that Bonnie

does not have adequate coping skills for responses to daily living. Her lack of empathy does not support her as a care giver for children. It would also deter her from successfully remediating any harm that would result from the children being removed from their current care givers.

Bonnie contends that this prong was not satisfied. She first submits that because she did not endanger her children, there was no harm to be eliminated. As we have discussed regarding the evidence to support the first prong, this contention was properly rejected.

Bonnie next argues that the requirement that she take medication was "impossible" because her treating psychiatrist found she did not require medication. To support this argument, she states that Dr. Davis, her "DYFS-ordered psychiatrist and therapist[, ]" discharged her from his care in July 2009 because she no longer needed medication and had not required any for six months. She also claims that Lopez, her "DYFS-ordered therapist, " found that she did not need medication. These arguments rest upon a distortion of the record. None of Bonnie's citations to the record support the conclusion that either Dr. Davis or Lopez "found" that Bonnie did not require medication. Rather, the citations show that she unilaterally stopped taking medication and that the psychiatrist "discharged" her "due to her reporting that she had been off her psychotropic medication for about six months now and has been doing much better." (Emphasis added). The "discharge" was thus a function of Bonnie's unilateral decisions rather than a diagnostic finding. The records cited also show that Bonnie did not attend therapy with Lopez from May through September 2009, which made it "hard" to do more than "catch[] up on what she has been doing in the time that she was not coming to therapy." When asked in September 2009 how Bonnie looked to her, Lopez "explained . . . she had not seen [Bonnie] since May 2009 but that she looked good, she did not appear to be presenting any psychotic features and [Bonnie] states that she [is] doing fine." The record thus shows that Lopez did little more than report Bonnie's self-appraisal, which was consistent with her pattern of denial, rather than make any cognizable finding of her mental status.

Finally, Bonnie argues that she actively sought reunification and was able to provide a safe and stable home for her children. Although Bonnie did make some efforts, as the trial judge concluded, she continues to refuse medication and has neither a stable home nor stable employment. She has identified no evidence on appeal to refute that conclusion. Thus, the evidence clearly and convincingly shows that the second prong was satisfied.

The third prong of the best interests standard contemplates DYFS's efforts to reunify the parent and the child by assisting the parent in addressing the problems that led to placement. K.H.O., supra, 161 N.J. at 354. Such efforts include:

(1) consultation and cooperation with the parent in developing a plan for appropriate services;
(2) providing services that have been agreed upon, to the family, in order to further the goal of family reunification;
(3) informing the parent at appropriate intervals of the child's progress, development and health; and
(4) facilitating appropriate visitation.
[N.J.S.A. 30:4C-15.1(c).]

However, DYFS's efforts should be measured not by their success but against the standards of adequacy in light of the family's needs in a particular case. D.M.H., supra, 161 N.J. at 390.

In finding this prong was proven, the trial judge stated that services were offered to Bonnie "to assist her with the many mental health issues as well as housing and employment." Both a psychological and a psychiatric evaluation were conducted. Although Bonnie submitted to the evaluations, she did not follow up with counseling and refused to take the medication for schizophrenia. She was provided supervised visitation. Bonnie was referred to a guidance clinic for counseling and medical monitoring; to Catholic Charities for psychiatric and medicine management -- but refused medication; to parenting classes; and to individual therapy. The judge found that Bonnie cooperated in some of these referrals, but was non-compliant with others.

The judge also addressed alternatives to termination. She noted the initial plan was reunification. The Division considered relative caretakers. Two could not care for Jesse because of his disabilities and a third relative did not respond.

Bonnie argues that, although the Division "provided evaluations, medication management and therapy and parenting skills classes[, ]" it "failed to employ any of the reasonable efforts required by the statute." This argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Lastly, the fourth prong addresses whether "[t]ermination of parental rights will not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4). The focus of this prong is whether the child will suffer a greater harm from the termination of ties with the natural parents than from the permanent disruption of the child's relationship with the foster parents. K.H.O., supra, 161 N.J. at 354-55. "This criterion is related to the first and second elements of the best interests standard, which also focus on parental harm to the children." D.M.H., supra, 161 N.J. at 384. "[T]he child's need for permanency and stability emerges as a central factor." K.H.O., supra, 161 N.J. at 357.

The trial judge gave great weight to the children's need for permanency, quoting from A.W., supra, 103 N.J. at 610, "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." She stated:

These children need permanency. [Bonnie] has been unable to remediate the harm which caused the removal of these children initially. She is non-compliant with most of the services provided to her. She refuses to take medications which have been prescribed for her to control her schizophrenia for which she collects Social Security. She ignores any negative aspects of her life and refuses to address them. She protects herself first. The children are in safe placements and doing well.
This Court finds the termination of parental rights will not do more harm than good. Termination will bring stability to the lives of these children.

Bonnie argues that the State failed to prove the fourth prong by clear and convincing evidence. She contends that Isabel's home is unsafe and that the Division has failed to find an adoptive home for Jesse. She states that both Dr. Marano Rivera and Dr. Apolito found that she understood her children's needs and could be a good parent to them and, further, that Dr. Apolito stated both children were well-bonded to her and would suffer harm if her rights were terminated. She also states that Dr. Marano Rivera found that Isabel could be removed from her foster home because the foundation was present for her to bond with Bonnie and because Bonnie was able to parent her.

Bonnie's argument that Isabel's foster home is unsafe is based upon unsubstantiated allegations that Michael suffered abuse there. Bonnie has not argued, nor is there any record evidence to substantiate, that Isabel's foster parents have harmed her. To the contrary, the evidence establishes that Isabel is not at risk for harm and has thrived in her foster placement. Moreover, since the allegations regarding Michael were made, the parents were counseled against physical abuse of the children and no such incidents have since been reported.

Bonnie further contends that termination of parental rights would do more harm than good to Jesse because there is not yet any permanent placement for him.

"[T]erminating parental rights without any compensating benefit, such as adoption, may do great harm to a child[, ]" such as "when a child is cycled through multiple foster homes after a parent's rights are severed." E.P., supra, 196 N.J. at 109 (citing A.W., supra, 103 N.J. at 610-11). The harm created under such circumstances lies in the severing of "the child's psychological and emotional bond to the parent . . . with nothing substituted in its place." Ibid. "A court should hesitate to terminate parental rights in the absence of a permanent plan that will satisfy the child's needs." N.J. Div. of Youth & Family Servs. v. B.G.S., 291 N.J.Super. 582, 593 (App Div 1996) (citing AW supra 103 N.J. at 610-11) However "there will be circumstances when the termination of parental rights must precede the permanency plan" AW supra 103 N.J. at 611

The circumstances here necessitate termination of Bonnie's parental rights despite the fact that Jesse does not yet have a permanent placement As previously discussed Bonnie is unfit to parent Jesse is doing better in his current placement and would likely be harmed by an unsuccessful attempt at reunification The court appropriately gave substantial weight to Kaska's and Szteinbaum's testimony that the children would be harmed if reunified with Bonnie In sum Kaska's and Szteinbaum's testimony along with Bonnie's failure to recognize and correct the mental issues that render her incapable of parenting support the court's finding that prong four is satisfied


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