October 1, 2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES,  Plaintiff-Respondent,
L.C.D. and B.M.E., Defendants-Appellants. IN THE MATTER OF GUARDIANSHIP OF Z.E., A.E., M.W., and S.W., Minors.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 11, 2013
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FG-12-96-10.
Joseph E. Krakora, Public Defender, attorney for appellant L.C.D. (Anthony J. Vecchio, Designated Counsel, on the brief).
Joseph E. Krakora, Public Defender, attorney for appellant B.M.E. (Peter Neely Milligan, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Susan Brown-Peitz, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Christopher A. Huling, Designated Counsel, on the brief).
Before Judges Grall and Waugh.
In these consolidated appeals,  defendants L.D. (Lila) and B.E. (Ben) appeal judgments entered by the Family Part terminating their respective parental rights to their children: Z.E. (Zoey), born in February 2007; A.E. (Amy), born in August 2008; M.W. (Mikey), born in September 2009; and S.W. (Sally), born in January 2011. We affirm.
We discern the following facts and procedural history from the record on appeal.
Lila is the mother of ten children,  the four youngest of whom are involved in these appeals. Those four children were fathered by Ben. The Division's first involvement with Lila, however, began in July 1996 with allegations of neglect involving her two oldest children.
Lila gave birth to Zoey, her seventh child, in February 2007. Both Zoey and Lila tested positive for cocaine when she was born. Lila was interviewed by a Division caseworker in the hospital. She admitted to using cocaine during her pregnancy, attributing her conduct to stress and educational neglect. She has a history of mental illness, and in the seven months prior to Zoey's birth, she refused to accept the Division's services.
After Lila was discharged, Zoey remained at the hospital in neonatal intensive care because of respiratory problems. The Division attempted to identify relative placements for Zoey, but was initially unsuccessful. Consequently, later in February, the Division effectuated an emergency removal of Zoey and Lila's six other children, and filed a Title Nine, N.J.S.A. 9:6-8.21 to -8.73, complaint. The Family Part granted the Division custody and supervision of the children. Zoey was initially placed in foster care. In July, she was placed with Ben's cousin, R.G.
In April, Althea D. Lazzara, Psy. D., evaluated Lila and Ben to assess their psychological functioning and make recommendations to the Division for services. Lila told Lazzara that she only used cocaine once during her pregnancy with Zoey. At the time of the interview, she reported that she had been working through a temporary placement agency for less than a month.
Ben reported that he stopped using cocaine and heroin one or two years earlier. He admitted to a history of selling drugs. Ben had been working at a warehouse for less than one week at the time of the interview. Prior to that, he was receiving disability.
Lazzara recommended that Lila engage in a substance-abuse treatment program and individual mental-health counseling, and that she undergo random drug testing. Lazzara characterized Ben as uncooperative, hostile, guarded, and defensive. As a result, she could not accurately assess his functioning. She advised against unsupervised-parental visits with the children.
In fact, the Division had already arranged for substance-abuse treatment for Lila. In March, she was evaluated by a drug-and-alcohol abuse counselor at the University of Medicine and Dentistry of New Jersey (UMDNJ). The counselor reported that Lila's judgment was poor and diagnosed her with episodic-cocaine dependency. She was prescribed an anti-depressant. The counselor recommended two weekly meetings at Narcotics Anonymous (NA) and treatment. After sporadic attendance, UMDNJ suspended Lila from therapy because she required psychiatric hospitalization as a result of continued drug use along with the anti-depressant prescribed at UMDNJ.
Lila returned to UMDNJ in October for aftercare, having completed a three-week program at Bergen Regional Medical Center. Lila's therapist at UMDNJ reported that Lila had a long history of alcohol and cocaine use, having last used the substances one month prior to entering the treatment program at Bergen Regional Medical Center.
Between October 2007 and June 2008, Lila substantially complied with her treatment plan and participated in weekly individual-therapy sessions, women's group, monthly medication-management sessions, random drug screens, and self-help meetings. She completed an intensive-outpatient program on January 31, and another on June 5.
The Division referred Lila to Catholic Charities for classes on parenting skills. Lila began the classes in January 2008, and completed the program in May. Lila also participated in parenting time with Zoey. In April, the judge entered an order permitting unsupervised parenting time.
The Division arranged for a psychological evaluation of Ben at UMDNJ, where he was seen by Charles Kaska, Psy. D., in July. Ben denied past heroin use but admitted to marijuana use as a child. He denied any mental-health problems. Kaska concluded that Ben was not suffering from any mental condition that would preclude him from being an adequate parent and that he possessed the judgment, reasoning capacity, and emotional control to parent young children.
The Division subsequently obtained Ben's medical records. They revealed Ben's long history of substance abuse and mental-health problems, beginning in 1995. In fact, two weeks before his interview with Kaska, Ben had received treatment for paranoia and homicidal thoughts as an inpatient at UMDNJ. He required continuing treatment after his release. According to UMDNJ's records, Ben was unemployed, on welfare, and on probation in 2008. UMDNJ terminated Ben from its program in September, based on his lack of compliance.
Ben completed parenting skills classes at Catholic Charities in June. Ben also took advantage of supervised parenting time with Zoey on a sporadic basis.
Lila gave birth to Amy, her eighth child, in August. Both Lila and Amy tested negative for illegal substances. Lila was cooperative with her treatment program, and Amy was discharged to Lila's care. Zoey was reunified with Lila in September.
The Division referred Lila for in-home support under the Children At Risk: Resources and Interventions Program (CARRI). The CARRI staff observed that the children were achieving age-appropriate milestones but that Lila did not interact with them as needed. Lila told a Division worker that the CARRI program was not needed because she had cared for all of her children in the past.
In March 2009, the judge terminated the Title Nine litigation because the children had been returned to Lila's home. Lila and Ben, who were living together at the time, were given joint legal custody.
Between November 2008 and March 2009, Ben remained unemployed, on probation, and in and out of UMDNJ for cocaine abuse and hallucinations. Lila did not notify the Division of Ben's condition.
Lila began using drugs again at some point in 2009. In August, the Division received a referral from a worker at St. Peter's Hospital that Lila was pregnant and tested positive for cocaine and opiates. The Division again removed all the children from Lila's home, placing Zoey and Amy with R.G. The Division filed another Title Nine complaint and was awarded custody and supervision of the children. Ben tested positive for cocaine and morphine on the return date in September. Lila's drug screen was negative.
Later in September, Lila gave birth to Mikey, her ninth child. The Division amended its Title Nine complaint to include Mikey, who was placed with a family friend.
Lila participated in UMDNJ's partial-hospitalization program a month prior to Mikey's birth. Her treating psychiatrist opined that her relapse was due to conflicts with an ex-boyfriend and that she was stable and able to manage her children. Based on that evaluation, the judge ordered Mikey returned to Lila and Ben in October.
In November, however, the Division received a referral that Lila and Ben were again abusing drugs and alcohol and were unable to care for Mikey. On November 20, the judge determined that Mikey's continued residence with his parents posed an imminent danger to his life, safety, and health. He granted care and custody to the Division. In addition, the judge approved the Division's permanency plan of termination of defendants' parental rights as to Zoey and Amy.
Mikey, who had been placed in the home of a relative, was removed in January 2010 because of the relative's adverse history with the Division. Mikey was then placed with a resource family, where he remained at the time of trial. That family has indicated a desire to adopt Mikey.
Zoey and Amy, who were in the care of R.G., were removed after the Division determined that her home could not be licensed due to limited space and problems with heat. R.G. was notified that she could contact the Division if her housing situation improved.
The Division considered other relative-placement options for the children, but was unable to identify a suitable relative placement. Candidates were ruled out for reasons such as criminal history, inadequate housing, prior involvement with the Division, and inability to act as a full-time caregiver.
Subsequent to the children's removal, both Lila and Ben attended treatment programs. They regularly participated in parenting time, but were consistently late.
In February 2010, Ben was waiting for a bed in a long-term drug program required by his sentence resulting from a conviction for distribution of a controlled dangerous substance. He entered two treatment facilities between March and April, both resulted in short stays for reasons not reflected in the record. In June, he continued treatment at an inpatient facility. He was discharged upon completing the treatment plan in November. Ben returned to UMDNJ, where he was initially compliant, but relapsed into drug use in April 2011. He did not re-engage at UMDNJ until July 13, two weeks before the start of the guardianship trial.
Lila reported attendance at UMDNJ in a partial-hospitalization program, but her therapist would not release attendance information. In November 2009, Lila was participating in a partial-hospitalization program at UMDNJ, which provided substance abuse and mental-health treatment. At that time, she had no positive drug screens and complied with medication. However, Lila stopped participating in February 2010, and failed to attend her subsequent intensive-outpatient appointments. Lila re-registered for treatment at UMDNJ in May, but failed to comply with this outpatient program.
In May, the Division learned that Lila was pregnant with her tenth child, and referred her to an inpatient "Mommy and Me" program at Epiphany House. She entered the program in July. Lila admitted to drinking prior to starting the program. At Lila's request, Epiphany House discharged her with limited improvement in December. A case worker from Epiphany House reported that Lila had been dishonest about her whereabouts when leaving with emergency passes and that she was not integrating the program's values into her life. Lila was again referred to UMDNJ.
Lila gave birth to Sally, her tenth child, in January 2011, at thirty-seven weeks of gestation. Both Lila and Sally tested negative for illegal drugs. Sally was discharged from the hospital on January 19, and placed into foster care, where she remained as of the date of trial. Her foster parents have agreed to adoption. The Division considered R.G. as a placement for Sally, but determined that she was not eligible because she was providing long-term care for her sister's children at her sister's home.
In February, Lila was assessed by Elayne Weitz, Ph.D., at the Division's request. Weitz recommended that the Division give Lila a chance to parent Sally in a supervised setting. Lila was referred by UMDNJ to Sunrise House, a "Mommy and Me" program. She tested positive for cocaine on her admission to that program in March. Because of Lila's relapse, Weitz retracted her recommendation that the Division work toward reunification with Sally.
Weitz testified at trial that Lila's prognosis was too poor to expect her to recover and provide a safe home for Sally. For that reason, Weitz recommended termination of parental rights followed by select-home adoption. The Division added Sally to the guardianship litigation in June.
Lila remained at Sunrise House until her therapeutic discharge and unsuccessful completion of the program on June 16. Lila declined to accept referrals to halfway houses. She received a poor prognosis from Susan Stephens, her primary counselor, because of "difficulty applying healthy coping skills to situations outside the treatment and recovery setting."
In July, Lila returned to UMDNJ for treatment with counselor Ed Mann. He testified on her behalf at trial that she was improving, but needed three more months treatment with him toward stabilizing her substance abuse, followed by step-down treatment, and then outpatient treatment.
The termination trial began on July 26 and continued on three additional trial days. The Division sought termination of parental rights for Zoey, Amy, Mikey, and Sally, followed by adoption. Division caseworker Andrea Figueroa testified that the physical and emotional needs of all four children were being met in their respective foster homes. She also reported that the foster parents for each of the children were committed to adoption. Zoey and Amy would be placed together, while Mikey and Sally would be placed separately.
Weitz testified concerning Lila's and Ben's parenting capacity. She had conducted psychological evaluations in April 2010, bonding evaluations in October 2010, and issued an updated psychological report in February 2011.
Weitz found that Lila possessed average intelligence, but lacked insight into herself and situation. She also had impaired judgment. Weitz explained that, although Lila can learn and understand her children's needs through education, she was not able to apply what she learned. According to Weitz, Lila has dysthymia (ongoing depression). She testified that Lila's continued drug use contradicted her professed desire to reunite with her children.
Weitz explained the importance of insight and acknowledgment of a person's life history to the ability to parent and observed that Lila lacks such insight and thinks she does not have any problems in caring for her children. Because Lila cannot see what she needs, Weitz concluded that she cannot see what her children need. Weitz opined that reunification would risk neglect. Weitz concluded that termination of parental rights was in the children's best interest.
With respect to Ben, Weitz reported that he did not offer himself as a caretaker. In any event, Weitz found that he was unfit to parent his children. According to Weitz, Ben was not forthcoming in his interviews. She noted that his substance abuse and psychiatric problems began in adolescence and continued into adulthood. She also characterized him as resistant to treatment.
With respect to bonding between the children and their parents, Weitz observed that the children were at an age where establishing a stable bond is very important to their development. She found that the children lacked a bond with Lila. Although it was too soon to know whether a bond had formed with the foster parents, she opined that, for each of the children, the criteria necessary to establish a healthy bond were present. According to Weitz, although Ben was more animated with the children, he nevertheless lacked a bond with them.
Weitz testified to her opinion that adoption by Zoey's and Amy's caretakers was in their best interests. She opined that delay in the termination of the parental rights would cause great harm to Zoey, Amy, and Mikey, and potential harm to Sally if she were to continue in her placement for a year and then be removed for reunification.
At the conclusion of trial, the judge delivered an oral decision in which he found that the Division had satisfied the four prongs of the best interests test established by N.J.S.A. 30:4C-15.1(a)(1)-(4) by the required clear and convincing evidence. He concluded that Lila and Ben caused substantial and recurring harm to their children, requiring termination of their parental rights.
The judge found that both defendants have ongoing, habitual mental health and drug problems, which continue to endanger their children's health and development. He further found that, although both parents had participated in drug-rehabilitation programs in the past, they were unsuccessful because they continued to relapse and abuse substances. He characterized their rehabilitation at the time of trial as only in the very early stages. The judge also noted that Ben did not consider himself a viable option as a caretaker because of his substantial problems to resolve, but that he wanted the children placed with Lila.
The judge determined that the Division had made reasonable efforts to supply rehabilitative and other services and to explore alternative placements for the children. The potential caretakers were either unsuitable or brought forth too late in the process to be considered.
The order terminating parental rights was entered on September 21, 2011. This appeal followed.
Before addressing the specific issues raised by Lila and Ben, 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 (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 Thirty 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 facilitating visitation. 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 KLG 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; 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).
On appeal, Lila argues that the judge erred in (1) finding that she is unwilling or unable to eliminate harm to her children, (2) failing to consider KLG, and (3) finding that termination of her parental rights would not do more harm than good.
The trial judge acknowledged Lila's efforts to maintain sobriety, but noted that she was then in the early stages of recovery. He relied more heavily on the fact, well established in the record, that Lila had struggled with the issue for many years during which she suffered several relapses. He also pointed to the several reunifications followed by removals.
In New Jersey Division of Youth & Family Services v. B.G.S., 291 N.J.Super. 582, 592 (App. Div. 1996), we held 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 is against the child's best interests to prolong resolution of the child's status by indefinitely extending a foster-care placement. In A.W., supra, 103 N.J. at 610, the Supreme Court observed that "it seems generally agreed that permanence in itself is an important part" of nurturing the child.
We are satisfied that the record and the applicable law supports the judge's finding that the second prong was satisfied by clear and convincing evidence. The best interests of the children would continue to be at risk if they were required to wait for an uncertain period of time in the hope that history would not repeat itself and their mother would be able to care for them on an ongoing basis at some point in the future.
With respect to KLG, we note our disagreement with the trial judge to the extent he suggested that it is not a form of permanency. Nevertheless, we agree with the judge that it was not a viable option in this case.
KLG requires a finding that "adoption of the child is neither feasible nor likely." N.J.S.A. 3B:12A-6(d)(3)(b). "When a caretaker 'unequivocally' asserts a desire to adopt, the statutory requirement that adoption is neither feasible nor likely is not satisfied." N.J. Div. of Youth & Family Servs. v. H.R., 431 N.J.Super. 212, 230-231 (App. Div. 2013); accord N.J. Div. of Youth & Family Servs. v. T.I., 423 N.J.Super. 127, 130 (App. Div. 2011).
Here, the record reflects that the foster parents were willing to adopt at the time of trial. Consequently, we find no error in the trial judge's rejection of KLG as an alternative for the children involved in this case.
Lila's argument with respect to the fourth prong of the best interests test, which requires that the Division prove by clear and convincing evidence that termination of parental rights would not cause more harm than good, relies heavily on her position that the judge should have required the Division to pursue KLG. We reject that argument. In addition, Weitz's testimony provided significant support for the judge's decision on that issue.
Having reviewed the record in light of Lila's arguments and the applicable law, we determine that the Division satisfied its duty to prove each prong of the best interests test by clear and convincing evidence. We affirm the order on appeal, essentially for the reasons set forth in the trial judge's oral decision, as amplified above.
Ben argues on appeal (1) that the trial judge erred in finding that the Division had proven, by clear and convincing evidence, that he was unable or unwilling to eliminate the harm to his children, (2) that the judge failed to consider alternatives to termination, and (3) that his trial counsel provided constitutionally ineffective assistance of counsel in the trial court.
We note initially that Ben has not proposed himself as a caregiver for the children and that Weitz testified at trial that "he was not fit to parent his children." As was the case with Lila, the judge relied on the evidence in the record concerning Ben's recurrent drug and mental-health problems, and his continuing inability to overcome them. Weitz testified at trial concerning Ben's initial denial that they had even been long-term problems and her conclusion that their longevity makes them "more resistant to treatment."
In her report, which was prepared approximately nine months prior to trial, Weitz opined that Ben's "mental stability is tenuous" and that "one can expect that his behavior could become unpredictable, erratic, or dangerous at any given time." We are satisfied that the record supports the judge's finding that the Division satisfied the second prong by clear and convincing evidence.
With respect to alternatives to termination of parental rights, the record reflects the Division's considerable efforts to find alternative placements. They were determined to be unsuitable because they failed to meet the Division's standards, including R.G. We conclude that the record supports the Division's determinations on suitability. We have already discussed the unavailability of KLG in this case.
Finally, we turn to Ben's arguments concerning ineffective assistance of counsel. In order to establish that a defendant in a parental termination case was denied effective assistance of counsel, defendant must show that counsel's performance was "objectively deficient, " meaning that it fell "outside the broad range of professionally acceptable performance." N.J. Div. Of Youth & Family Servs. v. B.R., 192 N.J. 301, 307 (2007). Additionally, it must be shown that there is "'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Ibid. (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674, 697 (1984)).
Ben relies primarily on his attorney's failure to present the testimony of an expert witness on his behalf. However, he failed to satisfy the requirement that he present a prima facie case of ineffective assistance. Although his attorney informed the judge at the May 2011 conference that he had received an expert report and that he would discuss it with Ben, no expert was called at trial. Ben has not demonstrated that the expert who issued the report, or any other expert, was prepared to testify in his favor at trial. Consequently, we have no basis to find that counsel was deficient or that such expert testimony would have changed the result.
Having reviewed the record in light of Ben's arguments and the applicable law, we determine that the Division satisfied its obligation to prove each prong of the best interests test by clear and convincing evidence. We affirm the order on appeal, essentially for the reasons set forth in the trial judge's oral decision, as amplified above.