October 4, 2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES,  Plaintiff-Respondent,
Q.H. and A.H., Defendants-Appellants. IN THE MATTER OF THE GUARDIANSHIP OF K.C.H., a Minor.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 24, 2013
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FG-11-24-12.
Joseph E. Krakora, Public Defender, attorney for appellant Q.H. (Janet A. Allegro, Designated Counsel, on the brief).
Joseph E. Krakora, Public Defender, attorney for appellant A.H. (Celeste Dudley-Smith, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Silkowitz and Julie Bristensen, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors Q.H. and A.H. (Nancy P. Fratz, Assistant Deputy Public Defender, on the brief).
Before Judges Reisner, Ostrer and Carroll.
Defendants Q.H. and A.H., the biological parents of K.C.H., appeal separately from the July 20, 2012 judgment terminating their respective rights to K.C.H. On these appeals, which we have consolidated, defendants contend that the Division of Child Protection and Permanency (Division) did not prove by clear and convincing evidence the four prongs of the best interests test. N.J.S.A. 30:4C-15.1(a). The Law Guardian supports the termination on appeal, as it did before the trial court.
Based on our review of the record and applicable law, we are satisfied the evidence in favor of the guardianship petition adequately supports the termination of defendants' parental rights. See, e.g., N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2009) (holding that a reviewing court should uphold the factual findings respecting the termination of parental rights if they are supported by substantial and credible evidence in the record as a whole). Accordingly, we affirm.
We discern the following facts from the trial record. The family first came to the attention of the Division on April 30, 2010, approximately seven months prior to the birth of K.C.H. in November 2010. There were four referrals from April 30, 2010 through June 24, 2010, the first three of which proved unfounded. However, with respect to the June 24, 2010 referral, the Division was informed that Q.H. had left her son, Alex,  with family members for the past two weeks, had not made any contact with them, and that Q.H. was homeless. During the investigation that followed, a caseworker from the Division explained that Q.H. was unable to be properly interviewed because she "yelled, provided inconsistent information and refused to answer the caseworker's questions." As a result, Alex was temporarily placed in the custody of A.H., who at that time was believed to be Alex's biological father.
In July 2010, Q.H. missed three scheduled appointments for a substance abuse evaluation. On August 2, 2010, Q.H. told the Division that she was unable to find stable housing, and had been staying with various family members. Q.H. disclosed that she was five months pregnant and claimed that she had not smoked any marijuana for a period of two months. On August 2, 2010, the Division contacted Huchet House, a housing program for expectant mothers in need, and was told that Q.H. would not be allowed into the program due to "out of control" behavior that she had exhibited the previous time she had been in the program.
On August 4, 2010, Q.H. contacted the Division expressing concerns that she had for Alex because A.H. had been arrested. The Division sent a caseworker to A.H.'s home on August 6, 2010, and A.H. informed the caseworker that he had been arrested for a traffic warrant but had subsequently been released. During the two days of A.H.'s incarceration, Alex was taken care of by A.H.'s mother, D.H. The caseworker described the home as "cluttered and messy, " stated that D.H. was yelling and cursing in the background during her conversation with A.H. A.H. told the caseworker he did not intend to move out of D.H.'s home in the near future.
On August 9, 2010, the Division conducted a Family Team meeting, with Q.H. and A.H. both present, in order to enable the family to make decisions about Alex's future needs. The meeting established the needs of Q.H. as being housing, employment, a psychological evaluation, and anger management. A.H.'s needs were employment, finishing high school, obtaining a New Jersey identification card, paternity testing, and a psychological evaluation. Defendants signed a family agreement stating that they would take steps to make these changes.
On August 30, 2010, at the Division's request, Q.H. underwent a psychological evaluation performed by Jamie Gordon-Karp, Psy.D. Dr. Karp's report, dated September 15, 2010, contained the following recommendations:
1. [Q.H.] should be evaluated by a [p]sychiatrist in order to determine whether she is in need of medication. [Q.H.] admitted to sadness and anger. Bipolar disorder runs in the family. Medication may help stabilize her mood.
2.[Q.H.] is in need of individual therapy. The initial goal of therapy is to provide her with support and understanding. As a therapeutic relationship develops the therapist could work with [Q.H.] on ways to control her emotions. She must learn how to think before she acts and consider the consequences for her actions.
[Q.H.'s] anger has destroyed her relationships with others and if she does not learn how to control it then it is likely to affect her life once she decides to join the work force. In addition, although [Alex] has been described as a bright and well behaved child, as he ages parenting may become more challenging.
[Q.H.] must understand that if she does not control her anger it is likely to have an impact on her parenting and hence her children.
3.[Q.H.] is in need of housing in order to provide her children with stability.
4.[Q.H.] should continue to participate in parenting classes.
5. Urine screens should be performed to ensure that [Q.H.] is drug free.
6. The Division should continue to monitor [Q.H.] in order to ensure she is attending to her son's needs.
On September 1, 2010, the Division conducted a visit with Q.H. and Alex, during which Q.H. stated she was looking into finding proper housing. At this time, Q.H. signed a case plan agreeing that she and Alex would continue to live with Q.H.'s parents until the birth of K.C.H., and that she would attend the recommended treatment programs. However, on September 14, 2010, the Division was informed that Q.H. had not been attending her counseling sessions, and that neither she nor Alex were residing with Q.H.'s parents, who did not know their whereabouts. On October 12, 2010, Q.H. contacted the Division, but refused to disclose her whereabouts or meet with her caseworker to discuss the situation. The next day, the Division spoke with Q.H.'s father, W.C.M., who told the caseworker that Q.H. would not be permitted to return to his home, because Q.H. had allegedly tried to steal money from his wife's bank account.
On October 14, 2010, Q.H. contacted the Division from her parents' residence requesting "help". The caseworker advised Q.H. that she should consider entering the program that had been recommended for her previously, or possibly arrange for Alex to be placed with a relative. Q.H. refused to enter the program and told the caseworker that she did not have any relatives willing to take Alex. W.C.M. contacted the Division shortly after this call and explained that Q.H. was acting crazy and throwing things around his home, and that the police had arrived on the scene.
Two caseworkers went to the home and attempted to take custody of Alex. Q.H. refused to sign the appropriate forms for emergency removal. Following Alex's emergent removal, on October 18, 2010, the Division was awarded custody of Alex, and Q.H. was ordered to complete a substance abuse evaluation, a psychiatric evaluation, and to obtain housing through Catholic Charities.
Q.H. gave birth to K.C.H. in late November 2010. Two days later, the Division effected an emergency removal of K.C.H., since both Q.H. and A.H. lacked appropriate housing, had no plan for the child, and because Q.H. had not completed or complied with court-ordered services. That same day, Q.H. failed to attend a scheduled substance abuse evaluation. In April 2011, K.C.H. was placed in the care of her foster mother, L.T., who has cared for K.C.H. since the emergency removal and is willing to adopt her.
Dr. Alexander Iofin, a psychiatrist, examined Q.H. at the Division's request. In his January 11, 2011 report, Dr. Iofin diagnosed Q.H. as having, among other things, an impulse control disorder, and noted provisional cannabis abuse. Dr. Iofin recommended that Q.H. participate in individual and group therapy sessions, a "heavy-duty" anger management program, undergo random substance abuse testing, and that she only have supervised visitations with her children. Dr. Iofin later re-evaluated Q.H., and in a subsequent September 4, 2011 report, he diagnosed Q.H. with bipolar disorder, and recommended that she attend a dual diagnosis/MICA program and continue to undergo random drug screens. Dr. Iofin concluded that "[a]t the present time, from a psychiatric standpoint, [Q.H.] cannot be considered as a minimally adequate parent for [K.C.H.]."
In preparation for the guardianship trial, Barry Katz, Ph.D., performed a psychological and bonding evaluation on Q.H. on July 9, 2012. Dr. Katz found the following:
During the evaluation, [Q.H.] presented with extensive denial and minimization regarding her past history and current parenting deficits. [Q.H.] also displayed very low frustration tolerance and problems with anger. [Q.H.] would get agitated and angry and refuse to respond to questions that brought up information that did [not] show favorably upon her. [Q.H.]'s anger and lack of coping ability became so great that she threatened to walk out of the current evaluation if the examiner asked her any more questions about her past parenting deficits or problems.
[Q.H.] has a long history of substance abuse, emotional instability, homelessness, noncompliance with services, including noncompliance with treatment and medication. [Q.H.] has been diagnosed with bipolar disorder and continues to report that she takes her medication when she feels like it. [Q.H.] continues to display a lack of insight into her parenting problems and overall deficits. [Q.H.] asserted that the only reason her children are not in her care is because she did not have stable housing. [Q.H.] continues to assert information that is not completely accurate and is in fact distorted. She holds to these distortions as truth and reacts with anger when questioned about them.
[Q.H.] has continued to test positive for marijuana. She continues to be in need of a MICA program. However, [Q.H.] has made it clear that she will not comply with any more services despite any potential consequences. [Q.H.] presented as relating to parenting in terms of how it met her needs and not with regard to meeting the needs of the child. For example, [Q.H.] has been reported to be inconsistent with attending visits.
There is concern over [Q.H.]'s report that she currently has unsupervised daily visits with her son. The examiner made the caseworker aware of this information.
Dr. Katz concluded that Q.H. was not capable of parenting K.C.H., either at that time or in the foreseeable future. Additionally, in his bonding evaluation, Dr. Katz observed that K.C.H. responded to Q.H. as a familiar figure rather than a parental figure, and he opined that severing Q.H.'s parental relationship with K.C.H. would not cause more harm than good.
On July 13, 2012, Vivian Shnaidman, M.D., conducted a psychiatric evaluation of Q.H., at Q.H.'s request. Dr. Shnaidman concluded that the Division's expert mis-diagnosed Q.H. with bipolar disorder. Rather, Q.H. had, among other things, Attention Deficit and Hyperactivity Disorder (ADHD), for which she had never received the proper treatment. Dr. Shnaidman's prognosis for Q.H. was positive, if Q.H. engaged in the proper treatment. Ultimately Dr. Shnaidman opined that with financial and housing assistance, therapy, and appropriate medications, K.C.H. could be reunified with Q.H.
In January 2011, A.H. had also been referred to Catholic Charities for an initial case assessment. The assessment recommended that A.H. complete a compassionate parenting program, return to school in order to obtain gainful employment, and find an adequate living situation. Once he completed the program and found appropriate housing, the report suggested that A.H. be allowed unsupervised visitation with K.C.H. A.H. then attended all scheduled individual and group sessions through April 13, 2011, but failed to attend any sessions thereafter and was unable to be reached by Catholic Charities. As a result, Catholic Charities closed his case for noncompliance on May 13, 2011.
On April 27, 2011, at the Division's request, A.H. also underwent a psychiatric evaluation by Dr. Gordon-Karp. The purpose of the evaluation was to assess A.H.'s "intellectual and emotional functioning, as it pertains to his parenting ability." Dr. Karp's report noted that A.H. had poor hygiene, that there was dirt under his nails, and that he smelled as if he had not showered. However, A.H. was cooperative and forthcoming throughout the evaluation. A.H. admitted that he did not have enough money to buy diapers, but that he relied on his family members for assistance. He denied having any psychological issues or problems with substance abuse. At the time of the evaluation, A.H. was unemployed.
In her report, Dr. Gordon-Karp concluded that A.H.'s "lifestyle, lack of judgment, and lack of initiative severely compromises his ability to parent [K.C.H.] independently." Dr. Gordon-Karp characterized A.H.'s prognosis for parenting independently as "poor", as A.H. lacked "the ability to provide nurturance, guidance and support." The doctor recommended that A.H. obtain employment and housing, participate in parenting classes, and identify someone other than Q.H. who could assist him in parenting K.C.H.
As of July 2011, A.H. had not complied with the Division's referrals. He was still unemployed, and had not found housing aside from living in a one bedroom apartment with his mother. In August 2011, he was discharged from the substance abuse program he had been referred to at Mercer Street Friends due to noncompliance. As of September 2011, A.H. had still failed to attend a fatherhood program. In November 2011, A.H. was again referred for a substance abuse assessment. As of January 9, 2012, the Division had attempted to contact A.H., but did not receive any response. A.H.'s whereabouts were unknown to the Division at that time, but Q.H. informed her caseworker that he was living with his sister, E.H.
E.H. was considered as a potential caregiver for K.C.H., but was ruled out because her home did not meet the proper licensing requirements. The Division considered a number of the defendants' friends or family members for placement of K.C.H.; however all were ruled out for various reasons.
On July 10, 2012, Dr. Katz also performed a psychiatric evaluation on A.H. in preparation for trial. He concluded:
[A.H.] presents as a regressed individual who continues to be in a state of dependency and continues not to be ready or able to care for a child. [A.H.] has a history of parenting deficits and noncompliance with services. [A.H.] has continued not to comply with services despite the fact that he is not working, does not pay rent and has no responsibilities to anyone else.
[A.H.] displayed a lack of understanding of the developmental and emotional needs of a child. [A.H.] did not understand aspects of child development. [A.H.] presented with a lack of appreciation to the importance of regular visitation and in committing time to [K.C.H.] [A.H.] ignored [K.C.H.] at times during the bonding evaluation as he would play on his own. [A.H.] could not generate alternate ways to discipline a child other than talking to them. He had no idea what the normal temperature for a child would be.
[A.H.] continues to have intellectual, emotional and maturational limitations that interfere with his ability to parent a child. [A.H.] is functioning in the [b]orderline [r]ange of [i]ntellectual [f]unctioning. [A.H.] continues not to have any stable housing. He continues to be dependent upon others for his basic needs. Despite being offered services, [A.H.] has continued not to make efforts to become independent or in a position to care for [K.C.H.] When asked, [A.H.] admitted that it was his desire for [Q.H.] to reside with [K.C.H.] and to raise her and that he would continue to reside in his current residence and help out with rent, food [and] clothing while continuing to live apart from them.
Dr. Katz also conducted a bonding evaluation, in which he concluded that severing the parental relationship between K.C.H. and A.H. would not do more harm than good.
On February 20, 2012, Alan Lee, Psy.D., conducted a bonding evaluation between K.C.H. and her foster mother, L.T. At the time, K.C.H. had been living with L.T. for ten months. Dr. Lee opined that K.C.H. had formed "a significant and positive attachment and relationship with L.T." during that time. The doctor indicated that psychological bonds generally solidify in the fifteen-to-eighteen-month-old range, and that he expected that K.C.H. would "form a significant and positive psychological bond with . . . L.T. in the next one to four months." Dr. Lee concluded that K.C.H. would be at a "significant risk of suffering  enduring and irreparable psychological or emotional harm" if her relationship with L.T. was then ended.
Subsequently, on July 12, 2012, Dr. Katz conducted a second bonding evaluation between K.C.H. and L.T. He noted:
There was a difference in the bonding evaluation between [K.C.H.] and [L.T.] as compared to the other bonding evaluations in this case. [K.C.H.]'s behavior with [L.T.] showed greater intimacy and emotions as compared to her interactions with the other adults with whom she was observed to interact. During the bonding evaluation between [K.C.H.] and [L.T.], [K.C.H.] displayed that she would not completely relax and be satisfied when she was alone with the examiner. [K.C.H.] was clear in that she continued to want to be with [L.T.], even when [L.T.] was not present in the room. During the bonding evaluations with the biological parents, [K.C.H.] displayed that she was content with the examiner as long as the examiner held her or played with her.
[K.C.H.] referred to [L.T.] as  "mama." [K.C.H.] did not use any title to refer to [defendants.] [K.C.H.] was much more verbal in the presence of [L.T.] than when she was with the biological parents. The results of this bonding evaluation indicate  that [K.C.H.] does have a connection with the biological parents, but not to the point of being a secure attachment to a parental figure. [K.C.H.] enjoyed the company of the biological parents as would a child who had an aunt or uncle who would visit them. [K.C.H.] displayed a secure attachment to [L.T.] and indicated that it is [L.T.] who is her primary nurturing figure.
The results of this evaluation indicate that [K.C.H.] would not suffer harm if the biological parents' rights were terminated. Any difficulty in adjustment that [K.C.H.] may experience would be alleviated through her bond with [L.T.].
The results of this evaluation support the case goal of termination of parental rights followed by adoption by [L.T.].
At the guardianship trial, the Division presented four witnesses: the original caseworker, Kameelah Banks (nee Palmer); the adoption caseworker, Carmona Cadet; Edwidge Paul, a clinician in the Intensive Services Program at the Children's Home Society of New Jersey (CHS); and Dr. Katz. Q.H. called her father, W.C.M., and Dr. Shnaidman. Neither Q.H. nor A.H. testified.
Banks testified that the Division had investigated and ruled out multiple relatives identified by defendants, because all of them either did not meet the Division's requirements or had expressed no interest in caring for the child. Banks noted that Q.H. had at least five different addresses while she was the caseworker. Further, K.C.H. seemed to be thriving in her foster home.
Cadet described the multiple services she had prescribed for the defendants, which included parenting classes, individual counseling, and anger management classes, notwithstanding their continued non-compliance. Cadet also unsuccessfully sought to find a suitable relative placement for K.C.H. This included a discussion with W.C.M., who expressed his unwillingness to care for the child.
Paul testified that she was concerned about Q.H. during counseling sessions, stating "[t]hat [Q.H.] didn't care about the consequences. That she felt like if her anger was justified and she reacted whether or not there were any consequences she didn't worry about them."
Dr. Katz also testified at trial for the Division, stating that neither Q.H. nor A.H. were, in his opinion, fit to care for a child at any time in the foreseeable future, consistent with the reasons previously expressed in his reports.
Dr. Shnaidman testified as an expert witness for Q.H. She indicated that Q.H. met the criteria for having a history of multiple mental disorders, including ADHD, oppositional defiant disorder, depression, and post-traumatic stress disorder. In her opinion, Q.H. had not received proper treatment for any of those conditions. Dr. Shnaidman opined that, with proper treatment, Q.H.'s prognosis appeared good, and that her mental health would be improved within a short period of time. On cross-examination, Dr. Shnaidman admitted that Q.H. had a history of substance abuse, but based on what Q.H. had told her, Q.H. no longer used drugs at that time, nor had she used drugs since before her pregnancy with K.C.H. This testimony was inconsistent, however, with the fact that Q.H. had failed multiple urine screenings for marijuana use since K.C.H.'s birth in November 2010.
W.C.M., called as a defense witness, testified that he was willing to take K.C.H. into his home, and that he had told that to the caseworker. It was W.C.M.'s understanding, however, that he would only be taking care of K.C.H. "until [Q.H.] gets her life together or her life gets straightened out." W.C.M. testified that no one had told him that the plan would be seen as a permanent placement for K.C.H., or that if somebody had told him, he did not remember. Having now been told this, W.C.M. indicated that he would be willing to take K.C.H. for permanent placement. W.C.M. stated his belief that Q.H. was a "great mom, " and denied having any knowledge that she smoked marijuana. However, W.C.M. also testified that he would not permit K.C.H. to stay at the homes of either Q.H. or A.H. overnight, noting that both are young and he would not want K.C.H. getting hurt.
In his comprehensive written opinion, Judge William Anklowitz found that the Division had satisfied the four prongs of the best interests test, as set forth in N.J.S.A. 30:4C-15.1a(1) to -15.1a(4), and determined that defendants' parental rights should be terminated as to K.C.H. This appeal followed.
In an action to terminate parental rights, the Division has the burden to establish by clear and convincing evidence four elements:
(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, often overlapping elements, "provide a comprehensive standard that identifies a child's best interests." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). While a parent's right to raise his or her child is constitutionally protected, id. at 346, that right may be terminated upon a showing by clear and convincing evidence that the child is at risk of serious and lasting future harm judged by the four-prong statutory test. In re Guardianship of J.C., 129 N.J. 1, 10 (1992).
Our scope of review in a termination of parental rights case is especially limited.
In re Guardianship of J.N.H. , 172 N.J. 440, 472 (2002). Appellate courts should give deference to the Family Part's factual findings based on the trial 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. F.M., 211 N.J. 420, 448 (2012); Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). The trial court's findings should not be disturbed unless they are so clearly mistaken or unsupported that our intervention is necessary to correct injustice. F.M., supra, 211 N.J. at 448. "It is not our place to second-guess or substitute our judgment for that of the family court, provided that the record contains substantial and credible evidence to support the decision[.]" Id. at 448-49.
Here, the trial judge's conclusions regarding all four statutory factors were supported by clear and convincing evidence.
We address prongs one and two together, because "evidence that supports one informs and may support the other." See In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999). Under the first prong of the termination statute, the trial court must assess whether there is clear and convincing evidence of harm arising out of the parent-child relationship. N.J.S.A. 30:4C-15.1(a)(1); see K.H.O., supra, 161 N.J. at 348 ("Harm, in this context, involves the endangerment of the child's health and development resulting from the parental relationship."). The fact that there is no evidence that defendants physically harmed K.C.H. does not preclude a prong one finding. See N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 605 (1986) ("The absence of physical abuse or neglect is not conclusive[.]" (internal quotation and citation omitted)). It is sufficient to prove the risk or danger of harm. N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J.Super. 418, 440 (App. Div. 2001). The concern is not only with actual harm to the child but also with the risk of harm, as the court is not required to wait to intercede "until a child is irreparably impaired by parental inattention or neglect." D.M.H., supra, 161 N.J. at 383. "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."
In re Guardianship of K.L.F. , 129 N.J. 32, 44 (1992).
Here, in finding that the Division satisfied the first prong as to Q.H., the trial judge noted that she insisted on continuing to use marijuana. Q.H. argues that the trial court erred in this determination because it failed to find any actual harm caused to K.C.H. by Q.H.'s drug use, and instead improperly focused on the illegality of the drug use itself, citing N.J. Div. of Youth and Family Servs. v. V.T., 423 N.J.Super. 320 (App. Div. 2011). However, here it is clear that Q.H.'s drug use was only one of the factors that the trial judge found contributed to the child's endangerment. The court noted her unstable housing, and that she had at least five different addresses while the case proceeded. Essentially, Q.H. had multiple chances over an extended period of time to secure stable housing for herself and K.C.H. The Division repeatedly attempted to assist Q.H., but her own behavior prevented her from making progress with her housing situation. The trial court properly found that this unstable housing situation would cause continuous harm to K.C.H., and reasonably concluded that her homelessness was her own fault.
As to A.H., the trial court found that he could not take care of Alex when he had the opportunity. A.H. was "irresponsible"; he would not partake of services that could demonstrate his parenting ability, and he refused to attend substance abuse evaluations and treatment. Moreover, the household in which A.H. resided was inappropriate for a child of K.C.H.'s age.
The trial judge specifically found Dr. Katz credible, and placed "great weight" on his testimony. Dr. Katz opined that defendants were unfit to parent. His opinion was fully supported by the facts in this case.
The second prong is aimed at determining whether the parent has "cured and overcome the initial harm that endangered the health, safety, or welfare of the child, and is able to continue a parental relationship without recurrent harm to the child." K.H.O., supra, 161 N.J. at 348. Under the second prong, a trial court determines whether it was "reasonably foreseeable that the parents can cease to inflict harm upon" the 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.
As to the second prong, the trial judge found:
Time and again each parent was offered substance abuse evaluations and treatment. [Q.H.] was offered assistance with housing. [A.H.] has had the opportunity to find employment and engage in services that would help with what he needed to do to be a parent. The parents were each offered individual counseling and parenting classes. The help the Division offered was exactly appropriate to . . . each of the parent's problems.
The Division consulted with its experts. The experts confirm the court's conclusions for the needed services. The testimony by [caseworkers]  Banks and  Cadet in how they explained how they tried to help each parent leaves the clearest possible impression that they made heartfelt, imploring pleas to the parents to accept the help the Division was offering. Their efforts in this case are truly inspiring public service. The parents' unwillingness to accept such help and assistance only shows that they are more interested in things other than the child and their dedicated persistence in refusing to remediate the harm to the child or to provide a safe and stable home. They have been so persistent that the court finds that there is no foreseeable time in the future when they will change.
Q.H. argues that the Division failed to prove the second prong because its experts misdiagnosed her with bipolar disorder and, as a result, the services chosen by the Division were inappropriate and not based on Q.H.'s specific needs. Q.H.'s argument is grounded in the expert opinion of Dr. Shnaidman, who diagnosed Q.H. with ADHD rather than bipolar disorder, and indicated that the medication previously prescribed for Q.H. for bipolar disorder should not be part of her treatment plan. However, the trial court heard the conflicting expert testimony, and expressly found Dr. Katz's opinion credible, stating "[h]e made such a sensible synthesis of the inconsistent visits, irresponsible behavior, parenting techniques and the facts of this case that the court specifically accepts his testimony in its entirety and places great weight on that testimony." In contrast, the judge gave little weight to Dr. Shnaidman's report and opinion, finding them "to be unsupported by the facts and to make contradictory conclusions."
"In assessing expert psychiatric or psychological opinion testimony, the Court, as fact-finder, is enjoined to use its common sense and ordinary experience."
In re Yaccarino , 117 N.J. 175, 196 (1989). Here, the court evaluated both experts, reasonably found one to be credible based on the facts in the record, and it is not our role to second-guess this factual determination. See Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974).
A.H. argues that the court's finding as to prong two was erroneously based purely on defendants' being "impoverished, " and that poverty alone cannot form the basis for termination of parental rights. Again, as noted above, the trial court's determination was not based strictly on A.H. being impoverished. The court explained that A.H. was unable or unwilling to eliminate the harm facing K.C.H. because of his housing situation, his failure to attend substance abuse evaluations, his failure to find employment, his failure to engage in parenting classes, and his general irresponsibility throughout this entire case. The court also expressly found that defendants' "poverty is not the issue. Their dangerous dereliction of responsibility . . . is."
"The third prong requires an evaluation of whether [the Division] 'made reasonable efforts to provide services to help the parent remedy the circumstances that led to removal of the children from the home." F.M., supra, 211 N.J. 420, 452 (2012)(quoting N.J.S.A. 30:4C-15.1a(3)). The emphasis on the third prong
is on the steps taken by [the Division] toward the goal of reunification. The diligence of [the Division's] efforts on behalf of a parent is not measured by whether those efforts were successful. Reasonable efforts may include consultation with the parent, developing a plan for reunification, providing services essential to the realization of the reunification plan, informing the family of the child's progress, and facilitating visitation. Experience tells us that even [the Division's] best efforts may not be sufficient to salvage a parental relationship.
Here, we reject as meritless defendants' argument that the Division failed to provide them with services essential to the reunification of the family. Rather, the record is replete with instances where the Division conducted family meetings with defendants, referred them to services for substance abuse, psychiatric evaluations, anger management, and parenting courses, and arranged for transportation when necessary. Neither defendant actively took advantage of these services with any consistency, as the trial court properly found.
We similarly reject defendants' argument that the trial court failed to adequately consider alternatives to termination. Defendants contend that the Division did not extensively make efforts to find a family resource for placement of K.C.H., specifically W.C.M. The trial judge found that the Division "made meticulous and extensive efforts to determine if there was a family resource that was able to take care of [K.C.H.], " and that "no one has come forward." The judge made extensive and detailed credibility findings following W.C.M's testimony, and ultimately determined that "[h]e was not a credible witness." We decline to disturb these credibility findings. Cesare, supra, 154 N.J. at 411-13. The court concluded that it had "no faith that [W.C.M.] would actually follow through with providing any permanency for [K.C.H.]."
Finally, defendants argue that the Division failed to consider W.C.M. as a kinship legal guardian. A parent "may request . . . that the court consider a . . . kinship legal guardianship arrangement as an alternative disposition, " but "[o]nly the [D]ivision or the court" is permitted to ultimately decide whether to seek that alternative disposition. N.J.S.A. 30:4C-87.
The New Jersey Supreme Court has made clear that kinship legal guardianship should only be considered when adoption is not possible:
The plain language of the [Kinship] Act, as well as its legislative history, establish kinship legal guardianship as a more permanent option than foster care when adoption "is neither feasible nor likely" and "kinship legal guardianship is in the child's best interest." N.J.S.A. 3B:12A-6d(3)-(4); [N.J. Div. of Youth & Family Servs. v. S.V., 362 N.J.Super. 76, 88 (App. Div. 2003)]. Conversely, when the permanency provided by adoption is available, kinship legal guardianship cannot be used as a defense to termination of parental rights under N.J.S.A. 30:4C-15.1(a)(3).
[N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 512-13 (2004).]
Here, kinship legal guardianship was not an available option because L.T. wished to adopt [K.C.H.]. Id. at 512-13; N.J. Div. of Youth & Fam. Servs. v. T.I., 423 N.J.Super. 127, 137 (App. Div. 2011). Thus, defendants' argument that the court improperly failed to consider the concept of kinship legal guardianship is without merit.
The fourth statutory prong requires the court to determine whether termination of parental rights will not do more harm than good to the child. N.J.S.A. 30:4C-15.1(a)(4). 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). The question is "whether a child's interest will best be served by completely terminating the child's relationship with that parent." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 108 (2008).
The ultimate determination to be made under the fourth prong is "whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with [the] natural parents than from the permanent disruption of [the] relationship with [the] foster parents." K.H.O., supra, 161 N.J. at 355. Weighing the potential harm from terminating parental rights against separating the child from foster parents requires expert testimony on the strength of each relationship. Ibid. When a termination action is based on parental unfitness rather than bonding, the proper inquiry under the fourth prong focuses on the child's need for permanency and the parent's inability to care for him or her in the foreseeable future. N.J. Div. of Youth & Family Servs. v. B.G.S., 291 N.J.Super. 582, 593 (App. Div. 1996).
Here, the trial judge relied on Dr. Katz's un-rebutted expert opinion that there would be no harm in terminating the parental rights, but that removal from L.T. would cause harm to K.C.H. The court also found that defendants were unable to remediate the harm caused by separating K.C.H. from L.T. Finally, the court concluded that terminating parental rights to free K.C.H. for adoption will not do more harm than good. We find ample support in the record that prong four was met.