July 19, 2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, 
S.G.C. and R.M.P., Defendants-Appellants. IN THE MATTER OF THE GUARDIANSHIP OF Q.S.C., Q.F.C., R.S.P. and Q.S.C., minors.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 7, 2013
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-82-11.
Joseph E. Krakora, Public Defender, attorney for appellant S.G.C. (Beryl Foster-Andres, Designated Counsel, on the brief).
Joseph E. Krakora, Public Defender, attorney for appellant R.M.P. (William J. Sweeney, Designated Counsel, on the briefs).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Thomas Ercolano, III, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors Q.S.C., Q.F.C., R.S.P. and Q.S.C. (Lisa M. Black, Designated Counsel, on the brief).
Before Judges Messano, Lihotz and Ostrer.
In these consolidated appeals, S.G.C. (Chase) and R.M.P. (Polk) appeal from an order entered January 6, 2012 terminating their parental rights to their four children: daughter Q.S.C. (Emma) born December 24, 2002; daughter Q.F.C. (Rhonda) born May 15, 2004; son R.S.C. (Ray) born June 17, 2005; and daughter Q.S.C. (Sarah), born July 14, 2007. The parents separately argue the Division failed to meet its burden to establish the four prerequisites to terminating parental rights set forth in N.J.S.A. 30:4C-15.1a. We disagree and affirm substantially for the reasons set forth in Judge David B. Katz's comprehensive seventy-seven-page oral opinion issued January 6, 2012 after a seven-day trial in late 2011.
The four children were most recently removed from their parents in August 2010. Despite a range of services provided, it was the third time that Chase and Polk demonstrated an inability to safely and properly care for their children. During the course of the Division's involvement with the family, it substantiated three instances of abuse or neglect by defendants. One instance resulted in Polk's criminal conviction for fourth-degree child abuse or neglect.
Chase's ability to parent was impaired by cognitive and psychological limitations, as well as drug use. Polk had anger issues, engaged in criminal activity, and also used drugs. The two parents had unstable housing, and lacked reliable financial support. All four of their children had special needs, and the parents demonstrated an inability to appreciate those needs and to respond to them.
The first removal — involving Emma, then twenty-two months old and Rhonda, then five months old — occurred on October 22, 2004. Chase, Polk and the children were living in a motel in East Orange. The Division received a referral four days earlier that Chase was a prostitute and Polk was selling drugs. During the Division's investigation, the motel clerk reported that Chase was a stripper who brought men back to the motel for short stays in various rooms. The Division staff observed that the parents lacked a crib for Rhonda, and learned they had not obtained her immunizations. The parents also lacked formula and proper food for the children.
When interviewed, Chase appeared cognitively disabled. Division staff later learned she was mildly retarded. She denied she was a prostitute, stating she was a dancer. Polk also vociferously denied selling drugs.
Despite the Division's efforts to assist the parents in obtaining Rhonda's immunizations, the parents did not comply. Upon the Division's initial contacts and at subsequent meetings, Polk cursed, shouted, acted aggressively toward Division staff, and threatened at one point to blow up the Division's building. He repeatedly invited the Division to take his children. The children were removed and placed with their maternal grandmother. During the placement of Emma and Rhonda, Chase gave birth to Ray, who was permitted to remain with his parents.
After the parents received various services and Polk completed an anger management counseling program, the two older children were returned to their parents in October 2005. Chase was required to continue taking parenting classes, Polk agreed to receive substance abuse treatment, and the Division remained involved, and continued to provide services.
Meanwhile, Sarah was born in July 2007. By early 2008, it was clear that both Emma and Rhonda had significant learning disabilities. Their schools prepared individualized education programs (IEPs) for both of them. Determining the family was stable, the Division terminated its services in January 2008.
The second removal occurred six months later. During the morning of June 17, 2008, an East Orange police officer noticed Ray, then just three years old, unsafely sitting in a window. The officer discovered that Ray and Sarah, then an infant, had been left alone. According to the officer, the children were covered with feces; the apartment was in deplorable condition with trash strewn about; there were no clean clothes found to dress the children; and no food. Ray told the officer he was very hungry. Police cleaned and dressed the children, and took them to the police station. The older children were retrieved from school. All four children were dirty, and malodorous. Emma's front teeth appeared badly decayed.
Chase and Polk appeared a few hours later. Chase and Polk denied they had done anything wrong. Polk reacted loudly and aggressively. Chase claimed her brother was supposed to be watching the children, but had left them without notifying her. The Division did not interview the brother.
The incident led to a fact-finding hearing and a determination that both parents neglected their children. They were also indicted for second-degree endangering the welfare of children. Polk was later charged with terroristic threats arising out of an incident four months later. At a meeting at Division offices in October 2008 to report that they had been denied a particular subsidized apartment, Polk became irate, expressed anger at the Division and the housing agency, and threatened to "get [his] gun, load it up and come back."
In return for Polk's plea in January 2009 to fourth-degree abuse or neglect, the State agreed to dismiss an indictment and a separate complaint alleging third-degree terroristic threats. Polk was sentenced to two years of non-custodial probation. Notwithstanding his plea of guilty, Polk would later assert that Chase was at fault for leaving the children unsupervised, as he was at work.
Ray and Sarah were placed in one foster home and Emma and Rhonda in another. During their foster home stays, the older girls exhibited severe behavioral issues. They would alternate between being sweet and playful to being threatening, violent, aggressive, and disrespectful. Rhonda also displayed sexual behavior. They were placed in numerous foster homes. They required in-home counseling sessions. Ray and Sarah also had developmental delays.
The parents received services through Family Connections, including a supervised visitation program. Chase was initially more compliant with services than Polk. Program providers recognized Chase's progress, and motivation, noting she demonstrated an ability to manage the children during visits. Although Polk had admitted to smoking marijuana, he initially did not attend a Family Connections program related to substance abuse. Ultimately, his attendance became consistent and he successfully completed the program in May 2009.
Beginning in the summer 2009, the children began overnight visits with their parents. Emma and Rhonda reported in August 2009 that they "had sex" with their brother. Emma said her mother let her and Ray shower together and Ray rubbed his private part against her. Similar behavior occurred when Rhonda and Ray were in bed together. The children alleged they saw pornography on a computer at home. Polk admitted he saw a pornography website pop up on the computer while the children were using it and he immediately closed it.
Between October 28 and December 4, 2009, Polk was incarcerated on charges of third-degree unlawful possession of a weapon (a pellet gun), and impersonating a law enforcement officer. He was released on bail on December 4, 2009. He had been working as a uniformed security guard in a bar, but lacked the appropriate credentials to do so; he also lacked a permit to carry the weapon.
While the charges were pending, but after Polk's release on bail, the family was reunited in December 2009. The Bridge Family Protection Services (the Bridge) terminated services in January after providing almost thirty-one hours of services in seventeen sessions, because of defendants' missed sessions. In the termination summary, the Bridge noted that Rhonda and Emma continued to have behavioral issues with which Chase and Polk appeared ill-equipped to address; and Emma expressed a desire to return to her foster caregiver. The report concluded, "If the family refuses to accept assistance from outside services to ensure stability, the children's permanency and ability to flourish may be at risk." In January 2010, Rhonda was admitted to Newark Beth Israel Hospital for seven days after a psychiatric evaluation. Emma's behavior was reported as "regressed" around the same time.
Defendants were assisted by in-home aides, and continued to receive treatment and services from Family Connections. They resumed services with the Bridge in February 2010. The in-home aides reported in February through April 2010 that the house was clean, and the children were washed and fed. The parents completed the Bridge's parenting and communication skills program.
Family Connections reported that the family needed intensive support. As of April 2010, a Family Connections clinician reported continued work with Chase and Polk about improving communication, providing consistency, structure and limits for their children. She noted Rhonda and Emma had shown improvement in their "sibling dynamics" but Emma continued to struggle with her behavior.
Reflecting the children's behavioral issues, in April 2010, the Division received a report that the children, then ranging in age from two to seven, were seen throwing window blinds, which were lit on fire, out of the window to the floor below. The fire department responded. The reports variously stated that at the time, Polk was home asleep, or he was in the bathroom. In either case, the Division concluded, "According to the allegation base protocol, allegation of Inadequate Supervision Unfounded. The children not left unsupervised as Mr. [Polk] was inside the bathroom when the children lit the mini blinds on fire and threw them out the window." After obtaining assurances that the parents would child-proof the stove, the Division determined the children were safe in defendants' care.
In April and May, the parents' attendance at sessions with Family Connections became more sporadic. In mid-June, it was reported that "Ms. [Chase] has not made herself available for sessions since 5/4/10." Chase was also frequently absent from the home for days at a time, making Polk's parenting tasks more difficult. Chase expressed dissatisfaction with the assigned clinician. Family Connections intended to terminate services if the parents continuously failed to comply.
An in-home aide's report in July 2010, indicated the home lacked food, the children were hungry, and the home smelled of smoke and garbage. "Mr. [Polk] is normally in the bed or yelling at the children all day and Ms. [Chase] spends most of the day looking out of the window and neither parent has much interaction or takes the children outside to play." The aide also noted, "[T]here is little for the children to do in the house because they do not have any toys to play with or books to read." Also, Chase had a "hygiene problem and walk[ed] around the house dressed very inappropriately." The children's hair appeared unwashed and matted down. Later in July, both parents ceased contact with Family Connections. In-home aide visits were terminated after Chase refused to admit the aides into the home.
On June 20, 2010 Polk pleaded guilty to the pending charges of unlawfully possessing a weapon, and impersonating a law enforcement officer. He was sentenced on July 27, 2010, to three years of non-custodial probation.
The children were removed the third and last time on August 16, 2010. The Division received a referral that the children were left unsupervised. The referral was received around 9:30 a.m.; police arrived at the home at 9:57 a.m.; and Polk returned home about two minutes later, reporting that he had gone to move his car to avoid a ticket, and then to buy food for the children at the corner store. Polk said Chase had left the home the previous night and she was with a boyfriend. He expressed how difficult it was to parent the four children when Chase suddenly left the home for extended periods. Police noted the electricity was shut off. The Division substantiated neglect against both parents and removed the children.
After the children were removed, the parents had twice-weekly visits, which generally were positive. The children enjoyed being with their parents, and their parents acted appropriately with them.
In December 2010, the Division considered placing the children with relatives of Polk and Chase, but neither were willing to take the children. Around the same time, Ray was diagnosed with attention deficit hyperactivity disorder with features of oppositional defiant disorder. Then five years old, Ray did not recognize all the letters in the alphabet. The evaluation reflected he at times screamed, engaged in biting, and acted disobediently.
In November 2010, the court held a permanency hearing and found appropriate the Division's plan of termination of parental rights followed by adoption. The complaint for guardianship was filed in January 2011.
Twice between January and March 2011, Chase tested positive for cocaine. On one occasion, she also tested positive for marijuana; on the other, she also tested positive for morphine and methamphetamine. Polk refused to submit to one drug test during the same time frame. He was incarcerated on new criminal charges throughout the trial in October and November 2011.
The children also acted out more than usual during family visits. The parents could not control them. The children cycled through numerous foster homes. By the time of trial, Rhonda was in her eighth placement, Emma her seventh, and Ray and Sarah their third. Foster parents were unable or unwilling to cope with the children's special needs. Rhonda was diagnosed with oppositional defiant disorder in May 2011, and received medication. However, her condition worsened, and her behavior included pulling her pants down in public, defecating on the living room floor, spitting, and picking fights with her sister Emma.
On July 14, 2011, Family Connections reported to the Division that Chase had been complying with her therapy sessions and had been visiting with her children consistently. She had made some progress and seemed motivated to regain custody of her children.
On July 22, 2011, Emma's and Rhonda's foster mother notified the Division that she was "overwhelmed" by the girls. Emma's behavior was improving, and she was showing more respect to her foster mother, but Rhonda's behavior was getting worse. Rhonda started a physical altercation with Emma, which required the foster mother to call the crisis center for help. The foster mother intended to write a letter to the Division requesting removal of Rhonda or both girls from her home.
The Division worker spoke with the girls separately about Rhonda's potential removal. Emma said that she would be happy if she and Rhonda lived in different homes because Rhonda always got her into trouble. Rhonda, however, said that she wanted to stay with her sister and that she wanted to go home with her parents.
At trial, Division caseworker Kareema Harris testified regarding the events leading to the removals of the children, which we have described. She also identified the range of services provided to Chase and Polk, including psychological evaluations and counseling, therapy and anger management; substance abuse assessments and referrals; visitation-related services; assistance in obtaining or paying for transportation, housing, and, in Chase's case, Social Security benefits. The Division created multiple case plans for the family.
She also described the parents' compliance with services. Although Chase participated in therapy at Family Connections and regularly attended visitation, she was disqualified from substance abuse programs because she denied use and tested negative, refused individual therapy, and ultimately refused in-home aides. Polk initially participated in visitation, but his visits were sporadic even before his most recent incarceration. Harris testified that Polk did not attend "counseling or any services" since December 2010, when she was assigned to the family. However, she conceded that the parents completed numerous programs between 2005 and 2010.
Harris also described the numerous services provided to address the children's special needs, including learning disabilities and behavioral conditions. She also testified that efforts to place the children with relatives were unsuccessful.
She conceded that the children had strong ties to their parents. During a visit with Chase in October 2011, Ray and Rhonda told their mother they did not want to be adopted and wanted to return home to her.
The Division's adoption recruiter, Evelyn Gillon, expressed confidence that adoptive homes could be located for the four children. Three potential homes were already identified, and if parental rights were terminated, a national search could be undertaken. She testified that Sarah's and Ray's foster parents for fifteen months — Mr. and Mrs. Yarbow — expressed the intention to adopt them. They also expressed an interest in adopting Emma, who had participated in overnight visits, but not Rhonda, although they would permit sibling visits.
Mrs. Yarbow confirmed her and her husband's intentions at trial. The Yarbows were both in their seventies, and she said she was in good health. She testified that she and her husband could provide the children with a firm foundation. She also stated that her adult children, who were gainfully employed, were committed to assisting the Yarbows and to stepping in if they became infirm. The adult children all lived in the Caribbean, but at least three planned to move back to the United States.
Mrs. Yarbow testified that Ray's and Sarah's behavior had improved while in her home. They obtained speech and occupational therapy for Sarah, who was developmentally delayed. She was advancing in speech, dressing herself, and toileting. Ray was able to complete a full day at school without an outburst that led to his removal.
The children refer to the Yarbows as Granny and Grandfather. She stated that Ray still idolized his father and was upset when his father would not attend visitation. Sarah viewed the Yarbows' home as her home, and was not upset after missed visits. Ms. Yarbow stated that she would allow Chase and Polk to visit with the children, so long as they did not try to interfere with her relationship with the children.
According to post-termination orders entered after the trial and the court's decision, Rhonda ceased engaging in sexually inappropriate behavior as of August 2012; Emma began living with the Yarbows; a social service worker reported that the children received "excellent care" at the Yarbows'; and, in August 2012, the Yarbows took the children on a vacation to Jamaica. As of November 2012, the Yarbows were still committed to adopting Emma, Ray and Sarah, while the Division continued to seek an adoptive family for Rhonda.
Over the course of the Division's involvement, Chase and Polk were subjected to numerous psychological evaluations. Several were introduced into evidence solely to prove that services were provided. However, three psychologists testified at trial. The Division retained Dr. Eric Kirschner, the Law Guardian retained Dr. Denise Johnson, and Chase retained Dr. James Reynolds. Their evaluations were considered without limitation.
Dr. Kirschner testified in October 2011 regarding the evaluations and bonding sessions he conducted the previous March. Dr. Kirschner confirmed Chase's cognitive limitations, and found she read at a third-grade level, in the one percentile. Her reading level prevented administration of other psychological tests.
Polk's test results "suggested a defensive response style and an effort to present oneself in an overly favorable light." He showed "clinically significant elevations on the Schizoid and Narcissistic Clinical Personality Patterns, " preferred "to be alone, " and kept "emotional distance from others." He had "a general lack of understanding of normal child growth and development" and unrealistic expectations of children's abilities.
As for the bonding evaluation, Dr. Kirschner concluded the children appeared bonded to their parents. The children showed affection toward their parents and displayed no signs of emotional distress while in their care. Emma, Rhonda and Ray "expressed a preference to reside with their biological parents." Nonetheless, Dr. Kirschner did not recommend that the children be returned to their parents' care because they had not demonstrated that they were capable of parenting the children. He relied in large part on the three removals as an indication that, despite services and programming, the parents had been unable, and were unlikely to become able, to properly care for their children. He referred to Chase's lack of appreciation of the impact on her children of her repeated absences from the home; and on Polk's misplaced expectations about the children's ability to care for themselves when he left them alone in the home. Returning them to their parents "would place them at a heightened risk of harm."
Dr. Kirschner opined that the children's lack of permanency and their multiple foster placements in part contributed to the children's behavioral issues. The numerous placements underscored the children's need for permanency, especially for Rhonda and Emma, who had eight and seven placements at that point. The children needed "permanency, " which was "critical" to their development. Without this, the children were "prone to ask questions about, well, what's wrong with me that someone doesn't want to sort of, you know, commit to caring for me, maybe there's something defective or damaged about me that makes me sort of less appealing type of thing."
Dr. Kirschner rejected the suggestion that Rhonda's oppositional defiant disorder needed to be better controlled before securing a permanent placement. He suggested that permanency through adoption might contribute to efforts to control the disorder, and he concluded that Chase and Polk would be unable to provide permanency in the foreseeable future. He testified that a failed reunification with the parents followed by a fourth removal would have a significant negative impact on the children.
Dr. Kirschner recognized that the children would, in the short term, experience sadness and loss if the parental rights were terminated; it would also be harmful if sibling relationships were not maintained. He could not assess the extent to which the harm from termination would be mitigated or offset by the children's current caregivers, as he did not conduct bonding evaluations of those caregivers. However, he testified that even if there were no families then willing to adopt the children, he recommended termination of parental rights because termination would give the children a chance at obtaining permanency. "[T]ermination of parental rights gives these children a shot at permanency, whereas continuing the parental rights, as the situation is today, doesn't really afford that possibility in a realistic way."
Dr. Johnson referred at trial to her June 2011 psychological evaluations of the parents and her bonding evaluations. She concluded that neither Polk nor Chase were capable of safely parenting the children. She recognized the children's behavioral issues would be a challenge to parents without the parenting deficits that Chase and Polk had evidenced.
Throughout the separate bonding sessions, the children demanded attention from their parents, jumped from one activity to the next, "yelled" at one another, and "physically fought" over toys. Rhonda and Ray made inappropriate sexual comments, and the parents did not intervene. Neither parent disciplined the children. On the other hand, the parents were calm, patient, loving and encouraging with the children.
Dr. Johnson opined that Polk was "moderately impaired with regard to verbal acts [and] thinking." She identified seven reasons why she believed Polk could not parent: (1) the prior instances of neglect despite interventions and services; (2) his deflection of responsibility for the prior removals; (3) his refusal to participate in therapy; (4) his positive tests for drug use; (5) his past threatening behavior and anger issues; (6) his lack of stable housing; (7) and his inability to control his children's behavior during the bonding evaluation, and the "ambivalent or insecure" bond with the children.
She stated that Chase reflected a lack of appreciation of the reasons her children had been removed. Despite promises in 2008 that she would never leave the children alone again, she was unable to comply. Although Dr. Johnson did not concur in another expert's assessment that Chase was mildly retarded, Dr. Johnson believed Chase was nonetheless severely impaired in abstract thinking, which impaired her ability to benefit from parenting skills programs, and impaired her ability to evaluate her children's needs and respond to them. She also noted that Chase had a tendency to "shut down" when confronted with "emotional content" — which would impair her ability to meet her children's needs. She also lacked stable housing.
Dr. Johnson opined that Chase did not have a secure positive bond with the children. "[S]he was not consistently responsive to the children." She did not intervene when one child threatened another. She also testified that child visitation reports from November to December 2010 indicated the children had "significant disruptive, oppositional, defiant, provocative, and aggressive behavior" that she — and Polk — were unable to control.
In connection with her report, Johnson also conducted a telephone interview with the children's foster parents. The foster parent at the time for Emma and Rhonda described the girls as "'fighting with each other all the time and very defiant.'" Rhonda had "extremely severe" behavioral problems, cursed, and acted out sexually. The girls continued to say that they missed their parents and "really wanted to go home" to them. The foster mother said she had reached her limit and considered asking the Division to remove the children.
The foster parents of Ray and Sarah were not as overwhelmed, although they agreed that both children had behavioral issues including tantrums. They initially resisted the suggestion that Ray should receive medication, stating their belief that he needed more one-on-one care.
As no adoptable homes were apparently available when she prepared her report, Dr. Johnson did not recommend termination of parental rights, because she believed that doing so would leave the children "without any ongoing parent figures." Although unification with Chase and Polk remained unlikely, Dr. Johnson concluded terminating parental rights would do more harm than good.
Dr. Johnson also did not believe that the children were adoptable as a group because of their behaviors when together. She believed the children, especially Ray and Rhonda, might need "a higher level of service that might include residential" services. If Ray's and Sarah's foster parents were interested in adopting them, Dr. Johnson recommended that the Division pursue that option. As Ray and Sarah had been with them for at least a year, they likely shared a bond and adoption would provide the children a secure home. However, Dr. Johnson said that given the foster parents' age, a "back up plan" was required in case one or both became ill.
Dr. James Reynolds prepared a report in August 2011 of his recent psychological evaluation of Chase. He also conducted two bonding evaluations — one involving Chase, with Ray and Sarah, and a second involving Chase and Emma and Rhonda. Dr. Reynolds confirmed that Chase then lacked the capacity to parent her children, based on both cognitive and psychological limitations.
Test results indicate that [Chase] presents with several areas of concern that are specific to her parenting ability. She appears to have deficient knowledge with regard to children's developmental needs. [Chase] may lack appropriate empathy and perspective taking abilities, and also may engage in parent-child role reversal. She also appears to have an unrealistic, idealized concept of children who are very obedient and who always do as they are told. These areas of risk/need may be remediated through appropriate parenting skills training.
[Chase] also appears to possess many psychological characteristics that may compromise her parenting ability. Her level of intellectual functioning falls within the [range of] mild mental retardation and, as such, [Chase] may lack sufficient cognitive resources to effectively parent her children, particularly as they become older and their behaviors, needs and wishes become increasingly complex. Perhaps relatedly, [Chase] appears to have difficulty accurately perceiving persons and events realistically. This may, in turn, be related to the finding that she appears to possess empathy and perspective taking deficits. . . .
[Chase] does not currently have an appropriate residence for herself and her children, . . . which presents as another barrier to reunification at this time.
Integrating the above information, it is this writer's clinical opinion that [Chase] does not currently present as being ready for reunification with her children.
Dr. Reynolds opined that Chase conceivably could remediate her limitations with therapy and training, preferably in the home, as opposed to in a classroom setting. "However, her ability to benefit from such interventions may be impaired due to [Chase]'s level of cognitive functioning." He also could not estimate how long it would take "to demonstrate sufficient progress." In cross-examination, Dr. Reynolds was not fully aware of the extent of therapy and training, including in-home aides, that had been provided to Chase prior to the August 2011 evaluation in which he concluded she was still unprepared to parent the children. He agreed that it was possible Chase may never be able to safely and adequately parent her children, regardless of the services provided.
Nonetheless, Dr. Reynolds found a secure bond between the children and Chase. The children did not demonstrate "signs of anxiety, fearfulness, anger, or ambivalence toward their mother." Instead, they all "appeared to feel very comfortable having close, physical contact with her." Chase "demonstrated appropriate parental supervision and guidance during the sessions, " but she was often unable to redirect Rhonda and Emma, whose behavior was at times rambunctious.
Despite their numerous placements and removals, the children viewed Chase as a source of "safety, security, protection, [and] guidance, " as well as "resilience with regard to . . . instability in their life." He opined that terminating that relationship "would likely rupture the foundation on which their . . . abilities to develop close relationships in the future rests, so I believe that would be very harmful to them." In his report, he described the likely harm to be "severe and enduring." He was not prepared to offer an opinion regarding the impact of the Yarbows' adoption of Sarah, Ray, and perhaps Emma. He stated he would need to evaluate the parents, and conduct a bonding evaluation involving them and the children.
In his comprehensive oral decision, Judge Katz found credible Mrs. Yarbow and the Division witnesses, as well as the testifying expert witnesses, although he did not adopt all their conclusions. Judge Katz also referenced the reports of non-testifying experts. The judge found the Division met its burden to establish by clear and convincing evidence the four prerequisites to terminating parental rights:
(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.
See also N.J. Div. of Youth and Family Servs. v. A.W., 103 N.J. 591, 604-10 (1986).
With respect to prong one, the court relied on the fact that the parents repeatedly left the children alone. He noted also, "They were without electricity at one point, without food in the home on another and when left alone they were observed hanging out the window." He noted the facts surrounding the second removal, when the home was in deplorable condition, and the children were unbathed. Regarding the third removal, he noted evidence that Chase had left Polk and the children so she could be with another man. He found that her behavior as well threatened the children's welfare, inasmuch as it was a difficult task to supervise all four children alone. He noted the instance when the children dropped flaming window blinds from a window while Polk was in the bathroom.
The court concluded that both parents showed they are unwilling or unable to eliminate the harm that has endangered the children's health and development. Citing A.W., supra, 103 N.J. at 607, the court stated it must determine whether it is "reasonably foreseeable that the parents can cease to inflict harm upon the child." The court essentially answered that question in the negative. Both parents repeatedly left their children alone. Despite receiving numerous services over several years, "both defendants have been unable to rehabilitate themselves." "The fact that [Polk] may have completed . . . services previously is of no moment because apparently either he was unable to comprehend or benefit from those services which again resulted in the third removal for similar conduct as the second removal." He noted Polk's resistance to psychological therapy and his recent sporadic visitation.
Judge Katz relied on what he found was the experts' consensus that Chase's cognitive limitations could present insurmountable barriers to her becoming a capable parent. Judge Katz relied on In re Guardianship of R., 155 N.J.Super. 186 (App. Div. 1977) and In re Guardianship of D.N., 190 N.J.Super. 648 (J. & D.R. Ct. 1983), for the proposition that a parent's cognitive limitations can be a basis for termination, where training and other services fail to improve parenting skills.
Judge Katz also found "the parents' failure to provide a safe and stable home is delaying placement and will cause harm to . . . each of the children." He relied on Dr. Kirschner's opinion that children, particularly with special needs, require permanency, and the lack of it could cause "depression, anxiety and other emotional problems."
Turning to prong three, the court found the Division provided a "wealth of services" tailored to the parents' needs and circumstances, including drug abuse evaluations, parenting classes and counseling, anger management counseling, psychological evaluations and referrals for therapy, family preservation services and in-home aides. Judge Katz noted that the Division considered alternatives to termination, but each relative was ruled out after consideration.
Regarding prong four, the court concluded, citing A.W., supra, 103 N.J. at 611, "in some cases it may be necessary to terminate parental rights before [the Division] can identify an adoptive home. That may be particularly important when a child has significant special needs." He found, consistent with A.W., supra, 103 N.J. at 616, the Division had presented sufficient evidence that the children would be adoptable if parental rights were terminated in advance of identifying an adoptive home.
He credited Ms. Gillon's testimony in that regard, and specifically rejected Dr. Johnson's opinion that the children were not adoptable, particularly in light of the Yarbows' intention to adopt Ray and Sarah, and perhaps Emma. He found that Ms. Yarbow's age was "absolutely no bar" to her adoption of the children. Noting the Yarbows' expressed interest, Judge Katz found that a potential adoptive home had yet to be located only with respect to Rhonda.
Although no bonding evaluation was done to assess the connection between the children and the Yarbows, Judge Katz relied on Ray's and Sarah's behavioral and developmental gains while in the Yarbows' care. He also found that if the children were returned to Chase and Polk and then removed for a fourth time, the harm would be heightened.
The court credited Dr. Johnson's opinion that the children's bond with their parents was "insecure and ambivalent."
Judge Katz concluded:
The . . . benefit of permanency based on the credible evidence far outweighs any harm from terminating an insecure and ambivalent bond. The only way permanency can be achieved is by freeing the children for adoption. Otherwise, as noted by Dr. [Kirschner], without [termination of parental rights] the cycle would just be repeating itself. And there is nothing at all in the record to show the cycle has changed or altered or will change or alter in the foreseeable future.
As such, when I balance out the harms and the benefits I conclude that [termination of parental rights] will not do more harm than good in this case.
Judge Katz entered orders on January 11, 2012 terminating Chase's and Polk's parental rights to the four children and granting the Division guardianship in anticipation of the filing of a complaint for adoption.
Chase and Polk each filed an appeal. Chase raises the following points for our consideration:
I. THE DIVISION HAS FAILED TO PROVE THE FOUR PRONGS OF THE BEST INTEREST TEST BECAUSE RHONDA AND EMMA ARE NOT IN ADOPTIVE HOMES, AND BONDING EVALUATIONS HAVE NOT BEEN PERFORMED WITH RAY AND SARAH'S FOSTER PARENTS WHILE S.C. HAS REMAINED BONDED TO HER CHILDREN AND HAS NOT HARMED THEM.
A. THE DIVISION FAILED TO SATISFY THE FIRST PRONG OF THE BEST INTERESTS TEST BECAUSE S.C. DID NOT HARM HER CHILDREN OR CAUSE ANY RISK OF SERIOUS HARM.
B. S.C. HAS OVERCOME THE ISSUES WHICH LED TO THE REMOVALS BECAUSE SHE HAS ACKNOWLEDGED THE MISTAKES SHE MADE IN THE PAST AND SUCCESSFULLY COMPLETED PARENTING CLASSES.
C. THE DIVISION FAILED TO PROVIDE S.C. WITH PROPER VISITATION AND PLACED THE CHILDREN IN HARMFUL FOSTER HOMES.
D. THE TERMINATION OF PARENTAL RIGHTS CAUSES MORE HARM THAN GOOD BECAUSE THE CHILDREN ARE BONDED TO S.C. AND WISH TO BE REUNITED WITH HER WHILE EMMA AND RHONDA ARE NOT EVEN IN HOMES WHICH WILL ADOPT THEM, AND THERE IS NO EVIDENCE THAT RAY AND SARAH ARE BONDED WITH THEIR ELDERLY FOSTER PARENTS.
II. THE TRIAL COURT RELIED ON IMPROPER EVIDENCE.
Polk raises the following issues for our consideration:
THE ELEMENTS OF N.J.S.A. 30:4C-15.1 WERE NOT PROVEN BY CLEAR AND CONVICING EVIDENCE.
(A) R.M.P.'S SHORTCOMINGS DID NOT RESULT IN ANY HARM TO THE CHILD.
(B) VERY LITTLE EVIDENCE WAS PRESENTED TO SHOW A LACK OF ABILITY AND WILLINGNESS ON THE PART OF R.M.P. TO RESUME PARENTING HIS CHILD.
(C) THE LEGAL CONCLUSION THAT THE DIVISION MADE "REASONABLE EFFORTS" TO PROVIDE SERVICES TO R.M.P. WAS ERRONEOUS.
(D) TERMINATION OF PARENTAL RIGHTS WILL CAUSE MORE HARM THAN GOOD.
Our scope of review is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). We defer to the trial judge's factual findings based on the judge's familiarity with the case, opportunity to make credibility judgments based on live testimony, and expertise in family and child welfare matters. See N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008); Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). We review a trial court's decision in this area mindful that "[t]he considerations involved in determinations of parental fitness are 'extremely fact sensitive' and require particularized evidence that address the specific circumstances in the given case." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999) (quoting In re Adoption of Children by L.A.S., 134 N.J. 127, 139 (1993)). We will affirm the Family Part's decision to terminate parental rights when substantial, credible evidence in the record supports the court's findings. E.P., supra, 196 N.J. at 104.
Having reviewed the record, we are satisfied that Judge Katz's findings are well-supported by the credible evidence, and he correctly applied the governing law. We need comment only briefly on the judge's findings regarding prongs one through three.
The proofs regarding prongs one and two often overlap, In re Guardianship of DMH, 161 N.J. 365, 379 (1999), and they do here. Chase and Polk repeatedly left their special needs children home alone. They were endangered. In one case, Ray was sitting in a window. The children played with fire. At various times, the parents deprived their children of prompt medical care; a clean, safe home; electricity; proper guidance; and adequate food.
Despite receiving extensive services, they neglected their children two times after the initial removal. Their repetitive behavior was sufficient cause for the court to conclude that they were "unable or unwilling or provide a safe and stable home for the child[ren]." N.J.S.A. 30:4C-15.1a(2). As we reviewed at length, the experts opined that neither parent was capable of safely parenting the children. At the time of trial, Polk was incarcerated for the second time. Moreover, there was ample evidence — including the children's various behavioral issues and developmental problems — to conclude that "delay of permanent placement [would] add to the harm." Ibid.
The court's prong three conclusion also is supported by an extensive record of services, including those tailored to the specific needs of the parents. Dr. Reynolds suggested that given Chase's cognitive needs, a hands-on teaching of parenting skills would offer the greatest promise. Consistent with that view, the Division offered in-home aides to assist in imparting parenting skills. Eventually, Chase simply refused the help. Chase denied she had a drug problem, despite repeated positive tests for cocaine and other drugs. Polk was also offered numerous services as well, as Judge Katz detailed. "The diligence of [the Division's] efforts on behalf of a parent is not measured by their success." DMH, supra, 161 N.J. at 393. Rather, reasonableness "must be assessed against the standard of adequacy in light of all the circumstances of a given case." Ibid. The argument that the Division failed to make reasonable efforts simply lacks merit. R. 2:11-3(e)(1).
The most significant issue in this case involves prong four. The State was required to prove that termination of parental rights would not do more harm than good. N.J.S.A. 30:4C-15.1a(4). The fourth prong "cannot require a showing that no harm will befall the child as a result of the severing of biological ties." K.H.O., supra, 161 N.J. at 355. It is, concededly, a "painfully difficult" decision that is vested in the trial judge who is most familiar with the case. Ibid. (quoting In re Guardianship of J.C., 129 N.J. 1, 25 (1992)). This prong "serves as a fail-safe against termination even where the remaining standards have been met." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 609 (2007).
In balancing harms, the court must be mindful of New Jersey's strong public policy interest in permanency. See K.H.O., supra, 161 N.J. at 357 ("In all our guardianship and adoption cases, the child's need for permanency and stability emerges as a central factor."). "Ultimately, a child has a right to live in a stable, nurturing environment and to have the psychological security that his most deeply formed attachments will not be shattered." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 453 (2012). "The question ultimately is not whether a biological mother or father is a worthy parent, but whether a child's interest will best be served by completely terminating the child's relationship with that parent." E.P., supra, 196 N.J. at 108.
In E.P., the Court found it was error to sever a thirteen-year-old girl's "certain and intense bond to her mother, " who struggled with drug addiction, marked by multiple relapses, homelessness, and unemployment, and showed little prospect of ever being able to serve as a fit parent, where the girl had but a "slender prospect of adoption" because of the her age and unabated behavioral problems including suicidal behaviors. Id. at 110. In that case, the "unlikely possibility of permanency in the future" did not outweigh the "strong and supportive relationship with a natural parent." Id. at 111. "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).
However, the Court recognized in A.W., supra, that "there will be circumstances when the termination of parental rights must precede the permanency plan. A multiply-handicapped child or a young adolescent might not be adoptable at the time of the termination proceedings." 103 N.J. at 611. "Keeping the child in limbo, hoping for some long term unification plan, would be a misapplication of the law." N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J.Super. 418, 438 (App. Div. 2001) (citation omitted), certif. denied, 171 N.J. 44 (2002).
In this case, there was sufficient credible evidence to support Judge Katz's finding that termination would not cause more harm than good. Although the children expressed their interest in reunification, Judge Katz credited expert testimony that the children's bond with their parents was insecure and ambivalent. Sufficient evidence, which we have reviewed, supported his finding that neither parent would be ready to parent the children in the near future, if at all. Moreover, the children faced the real risk that if reunified, they might need to be removed a fourth time; according to Dr. Kirschner, that would result in significant psychological harm. Thus, permanency would be further delayed if termination were not ordered.
Although the record would certainly have been enhanced by a bonding evaluation involving the Yarbows and at least Ray and Sarah, that omission is not fatal to the Division's case. The record includes evidence that the two youngest children received excellent care from the Yarbows and were making substantial gains behaviorally, and developmentally.
Unlike in E.P., supra, the prospects for adoption of the four children were not "slender, " according to the testimony of the Division's adoption specialist, and the evidence of the Yarbows' interest regarding three of the children. Judge Katz made appropriate credibility determinations in rejecting Dr. Johnson's assessment the children were not adoptable, and instead crediting Ms. Gillon's assessment that they were. We also shall not disturb Judge Katz's determination that the Yarbows' age did not disqualify them as viable adoptive parents, particularly given their adult children's reported willingness to step in if necessary.
In sum we discern sufficient credible evidence in the record to support Judge Katz's order terminating Chase's and Polk's parental rights to Rhonda Emma Ray and Sarah