October 24, 2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES,  Plaintiff-Respondent,
K.J. and E.R., Defendants-Appellants. IN THE MATTER OF THE GUARDIANSHIP OF R.J., a Minor.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 8, 2013
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-164-11.
Joseph E. Krakora, Public Defender, attorney for appellant K.J. (Michael C. Kazer, Designated Counsel, on the brief).
Joseph E. Krakora, Public Defender, attorney for appellant E.R. (Richard Sparaco, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Jason Frankiewicz, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor R.J. (Lisa M. Black, Designated Counsel, on the brief).
Before Judges Alvarez and Carroll.
Defendants E.R. and K.J., the biological parents of R.J., appeal separately from the August 1, 2012 judgment terminating their respective rights to R.J. 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. Prior to R.J's birth in July 2007, E.R. had a history of involvement with the Division dating back to incidents involving her older child, O.R., in 2002. In October 2005, the Division received another referral, indicating that a parolee who had been incarcerated for endangering the welfare of a child was seeking to change his address to E.R.'s address. In November 2006, the Division was advised that E.R. was using drugs around O.R., and that she was about to be evicted. In October 2008, following R.J.'s birth, the Division was notified that E.R.'s utilities had been shut off for non-payment.
In February 2009, E.R. entered a residential treatment program at Eva's Village. Shortly thereafter, she tested positive for marijuana and PCP. E.R. was unable to remain drug-free, and required an intensive inpatient drug treatment program. In March 2009, the Division removed R.J. from E.R.'s care.
In May 2009, E.R. completed a twenty-eight day detoxification program at Sunrise House. The next month she was reunified with R.J. in a "Mommy & Me" program. During the next ten months, R.J. remained with E.R. in a supervised setting. In November 2009, E.R. completed the Sunrise House inpatient program, and the Division then assisted her transition back to the Eva's Village outpatient program. However, Eva's Village terminated E.R. from its drug treatment program for the second time in April 2010. R.J. was returned to a foster home, as E.R. had again relapsed, and lacked appropriate housing.
Following R.J.'s removal, E.R. was ordered to attend "Project Second Chance, " an outpatient drug treatment program. However, from August 2010 through March 2011, E.R. consistently either tested positive for drug use, or submitted urine specimens that appeared to be tampered with. Also in early 2011, E.R. missed three consecutive substance abuse assessments with Preferred Children's Services.
K.J., the child's father, was similarly non-compliant during this period. In April 2009, he was ordered to submit to "Health Path" for substance abuse treatment, and to attend anger management classes. K.J. was discharged from Health Path because he failed to attend all three sessions. He was then referred to "New Pathway" for treatment, but again failed to attend all three sessions. K.J. was likewise terminated from the anger management program twice, for failing to attend any of its sessions.
When it first became involved with E.R., the Division's goal was reunification. That plan then changed to adoption after K.J. failed to complete a drug treatment program and anger management classes, and E.R., although having completed a program, continued to relapse. Also, neither defendant had stable housing.
The Division filed a guardianship complaint on April 14, 2011. Between March 2011 and early August 2011, while attending Project Second Chance, E.R. remained drug-free. However, she again relapsed, testing positive for marijuana on August 5, 2011. On March 5, 2012, approximately two months before the guardianship trial, traces of marijuana were found in her system.
K.J. again failed to attend anger management sessions, before finally completing them in July 2011. He also failed to appear for six substance abuse assessments in March, April, and May 2011, and again tested positive for marijuana on April 7, 2011, and December 5, 2011. Between December 2011 and February 2012, K.J. was discharged from the New Pathway outpatient treatment program, failed to pick up bus passes the Division purchased for him, and missed scheduled visits with R.J.
The guardianship trial took place on May 15, 2012. Two witnesses, a caseworker and a psychologist, testified for the Division. Neither defendant testified, called any witnesses, or presented any evidence.
Shannon Fields, the Division's caseworker, testified that E.R. had been compliant by participating in substance abuse programs, but had "not been compliant in the sense that she continue[d] to test positive for drugs in forms of relapse." E.R. attributed the traces of marijuana detected in her system in March 2012 to someone she had been living with who used marijuana. However, E.R.'s counselor advised that it was possible that she had used marijuana, and did not posit any other cause.
E.R. "acknowledged that being around certain people, places and things, particularly in Jersey City, had caused her to relapse." Nevertheless, she continued to return to such situations which, in Fields' view, rendered it unlikely that she would remain sober. Additionally, E.R. had yet to secure stable housing, which Fields characterized as her "biggest hurdle." E.R. had also not yet found employment.
The Division provided E.R. with domestic violence counseling, and inpatient and outpatient substance abuse services, along with extended assessments. E.R. was also provided with bus passes, and had regular supervised visitation with R.J. along with engagement therapy. Finally, the Division conducted psychological and bonding evaluations.
With respect to K.J., Fields testified that he had not completed any substance abuse treatment. While his last drug screen before trial was negative, his December 2011 drug screen had been positive. Although K.J. had updated his address in the past, since March 2012 he had not done so, and the Division was unable to contact him. His housing situation was also unstable. In addition to the substance abuse services offered but not completed, transportation, parenting skills classes, anger management counseling, supervised visitation, and engagement therapy were provided to K.J. by the Division.
The Division considered K.J.'s mother and sister as potential caregivers for R.J.; however, both were ruled out because of lack of space in their apartments. The Division also ruled out E.R.'s aunt, S.C., who was older and "could not commit to the care of a small child." S.C. had also previously expressed anger and frustration at the Division. In April 2012, shortly before trial, E.R. proffered a friend, S.J., as a potential resource. However, while she was considering allowing a reunification of E.R. and R.J. at her home, S.J. was hesitant to commit to the care of a young child.
R.J. received pre- and post-adoption counseling, and attended three bonding evaluations. She also attended visitation sessions with both parents. Fields described R.J.'s visits with E.R. as positive, and noted that R.J. referred to E.R. as "mommy." Fields explained that R.J. would be at risk with K.J. because his substance abuse was unresolved, and his housing situation uncertain. Regarding E.R., Fields was concerned with her history of relapse, unstable employment, and because she had never independently cared for R.J. outside the "Mommy & Me" program. Therefore, the Division planned to have R.J. adopted by her current foster mother, M.R., who R.J. also referred to as "mommy." At the time of trial, R.J. had lived with M.R. for a year and ten months and was doing well. She was integrated into the foster family, which included another daughter whom R.J. viewed as a sister.
Elizabeth Smith, Psy.D., performed separate psychological evaluations of E.R. and K.J. in May 2011, as well as individual bonding evaluations of E.R., K.J., and M.R. in July, November, and May 2011 respectively. She prepared a report on May 8, 2012, after having received updated information from the Division between November 2011 and May 2012.
Results of tests administered by Dr. Smith indicated that E.R.'s reading skills, which were at a first grade level, were insufficient to allow formal personality testing. E.R. reported that her substance abuse problems began around age sixteen, and that she had made many unsuccessful attempts at recovery. When she met K.J. at age twenty-seven, she was actively using drugs. E.R. reported that K.J. physically assaulted her prior to, and to some extent, during the pregnancy. She identified K.J.'s abuse as a trigger for her relapse. She intended to raise R.J. alone, and bring her to K.J.'s mother's house for visits.
E.R. denied ever physically abusing R.J., but she "expressed the appreciation that she neglected her 'emotionally by getting high.'" She stated that she wanted to return to school and did not want to lose her daughter again. When Dr. Smith asked if she would "continue to attend twelve-[s]tep meetings" E.R. responded, "No, I don't need meetings, I just want a happy family, I want my daughter. No meeting is my daughter. I just want to go back to where I was. My daughter was always with me." However, with respect to reunification, E.R. stated that the Division had instructed her to find employment and continue in a program.
Dr. Smith's report described E.R. as "an emotionally fragile woman with a long history of drug abuse and unsuccessful attempts at recovery." Her "long term pervasive problems in living . . . rose to the level of a personality disorder with dependent and depressive features." While Dr. Smith acknowledged that E.R. "appeared to be a hard worker and to have very positive aspirations, she has never been able to consistently support herself or maintain stable housing independently." "She continued to present as at high risk for relapse due to depression, anxiety, poor coping skills and general lack of adequate social supports. She could offer no real specific plan to maintain her recovery other than [R.J.]."
Dr. Smith also believed that because E.R. was "so needy for love and acceptance, " that she was "at risk to again become involved in an abusive/exploitive relationship." Dr. Smith did not view E.R. as possessing the "emotional strength or coping skills to protect [R.J.] or put her needs above her own." Dr. Smith was "[m]ost concern[ed]" that E.R. "consistently conceptualized her relationship with [R.J.] as a means of healing herself rather than of a parent caring for a child."
At trial, Dr. Smith characterized E.R. as "a very kind and caring person who really loved her daughter . . ., but who had such a history of trauma and upheaval and disruption in her own life that it was very difficult for her to stabilize her life and then take care of a child." Dr. Smith suspected that E.R. had a learning disability since childhood which caused her poor performance in school along with her behavioral issues. Dr. Smith described E.R. as "distressed" and "desperate, " and that she was "caught in this cycle of years and years and years of drug addiction, of not being able to keep a stable job, not being able to keep stable housing."
Dr. Smith concluded that these factors, including E.R.'s risk of relapse, made it "much more difficult for her" to parent properly, i.e., to "maintain stable housing and stable employment." "In some ways [E.R. has] never really been able to . . . take care of herself, much less another person." Dr. Smith did not view E.R. as able to "maintain the stability that would be important for [R.J.], " nor would she be able to "meet [R.J.'s] emotional needs right [now]." Additionally, she would not be able to help R.J. transition away from her "very stable foster home."
On cross-examination, Dr. Smith disputed that E.R.'s learning disability would have affected her ability to participate in the substance abuse treatment programs, since they did not rely on much written material. Nor would E.R.'s learning disability have prevented her from understanding the Division's instructions in filling out a Section 8 housing application.
With respect to E.R.'s bonding evaluation, Dr. Smith concluded that "[R.J.] was certainly familiar and attentive towards [E.R.]. She enjoyed being with her." However, Dr. Smith felt "very concerned about [E.R.'s] inability to control her emotions in front of [R.J.] and of her need to have [R.J.] soothe her rather than the reverse. The play theme was also reflective of [E.R.'s] strong tendency to engage in role reversal and use [R.J.] for her own gratification." Dr. Smith found "the level and intensity with which" E.R. identified herself with R.J. as "unusual."
Dr. Smith also conducted a clinical interview of K.J., and found he was of "average intelligence an[d] presented his thoughts in an organized and logical manner." He displayed "no signs of overt mental illness and . . . no unusual mannerism or behavior." He reported that he was "down" because of unemployment and housing issues.
K.J. was arrested around ten years ago for possessing drugs, to which he pled guilty. He has held approximately eight jobs, and was laid off from a paint factory job three-and-a-half years before the time of his evaluation. This was his longest stretch of unemployment. He resided with his mother, and when asked, surmised that R.J. had not been placed with him because he lacked stable housing.
K.J. had admitted to the Division that he smoked marijuana as "not a habit, [but] a hobby." He reported having attended Project Second Chance which "didn't work out" because he was "uncomfortable" with their questions, which depressed him. He stated that he complied with substance abuse treatment, but was under the impression that an evaluation determined "that he really did not need a program and he invariably produced clean urine screens."
K.J. denied any history of domestic violence, and further denied ever striking or harming E.R. He characterized his arguments with E.R. while she was using PCP as "little tussles" during which they would "push and shove" each other. K.J. would also "grab her" and "put her in the house" because she was "out of control." He viewed E.R. as a good mother, and thought she would only ever endanger R.J. when she was smoking.
Because K.J. was unemployed and not living in his own apartment, he was "feeling down." He stated that he had not visited R.J. regularly because he was overwhelmed with trying to find a job and a home and everything else the Division wanted him to accomplish. He felt frustrated that the Division would not help him find a job, but believed it might offer assistance with housing, and generally said that "[i]t feels like a waste of time."
Dr. Smith did not find K.J. to be a reliable historian. As a result of her assessment, Dr. Smith described K.J. "as an intelligent young man with narcissistic and dependent personality features that rise to the level of a personality disorder." His elevated scores "suggest that [he] is an entitled individual with limited empathy who has significant difficulty controlling and modulating his emotions. He is impulsive and acts out his aggressive impulses. He takes no responsibility for his actions and blames others." "Although he depicted himself as a competent and devoted father, he saw [R.J.] only sporadically and current reports indicated he was not around much. He minimized and denied drug use and past antisocial activity."
Additionally, K.J. "attained a very significant [a]buse [s]cale score, " which showed "that he does share personality characteristics common among individuals who have physically abused their children." Overall, his testing indicated that he was "a high risk for physical abuse." Dr. Smith testified that his results did not "mean  that he would absolutely physically abuse someone, " but rather "that he shares characteristics with people who have." She stated that "he likes the idea of being a father and would really want to be a good father"; however, she did not believe he "had the ability to make those things happen" because "he just gets caught up in his own distress and . . . can't act on it."
Dr. Smith concluded that K.J. did not "have the stability" R.J. would need, i.e., housing and stable employment, and that his risk factors and domestic violence history caused her concern. In sum, she believed that "[K.J.] . . . ha[d] the intellectual ability to benefit from treatments, " but she did not believe "he c[ould] [re]mediate these issues in a manner that's timely to [R.J.'s] needs."
With respect to her bonding evaluation of K.J. and R.J., Dr. Smith noted that "[R.J.] was much less organized in her play than she had been with her mother or foster mother." Overall, Dr. Smith observed that they "had a lovely time together" and R.J. "related to him as to any familiar adult."
Dr. Smith also interviewed R.J.'s foster mother, M.R., who reported that when R.J. initially came to live with her she would "hoard food" and "wake in the middle of the night and take food from the refrigerator." Such behavior had since abated. M.R. described R.J. "as an outgoing, affectionate child" who attended day care, enjoyed school, got along well with other children, and ate and slept well. M.R. did not observe any behavioral changes after R.J.'s weekly visits with E.R. Nonetheless, R.J. reported to M.R. that E.R. told her that M.R. was not her mother and that she should not call her "Mommy." M.R. had a ten-year-old son and another foster child residing in her home. Dr. Smith concluded that R.J. had a "secure positive attachment to" M.R., who "appeared very loving and attuned to [R.J.'s] needs."
Dr. Smith observed that R.J. had already experienced "a number of disruptive attachments." She was first placed in foster care after her initial removal, then placed with E.R. in the "Mommy & Me" program, moved to a foster home where another sibling accused the parents of abuse, then sent to another home, and finally moved to her current foster home.
Dr. Smith testified that R.J. "certainly has some level of attachment to [E.R.], " and was "very familiar with her." Nevertheless she did not view this as a "strong, secure, primary attachment." Dr. Smith did not believe that E.R. would "be able to overcome in a manner that [would be] timely to [R.J.]'s permanent needs."
Dr. Smith noted that K.J.'s bonding evaluation was "less structured" than both E.R.'s and M.R.'s. R.J. displayed "a high degree of familiarity with [K.J.]." However, with respect to R.J.'s degree of attachment, she knew him at the same level as perhaps she might her pre-school teacher. Again, while R.J. had "some level of attachment" with K.J., it was "not a very robust or strong attachment, " and she knew him as "a good playmate."
In contrast, Dr. Smith testified that R.J. was "doing very beautifully in her foster home" with M.R., who was "very nurturing." R.J. had lived with M.R. for almost two years at the time of the bonding evaluation. Dr. Smith characterized their bond as "a very warm, very secure attachment, " and advised "that to disrupt that in favor of a situation where she would be at risk for abuse or neglect or . . . to be removed and placed in foster care again . . . would place her at great risk and cause harm to her." The harm from terminating the parental rights of her biological parents would be much less than if she "were returned to either one of her biological parents." R.J. was "thriving" in her foster mother's care and viewed herself as a member of her foster family. R.J. had already experienced "a number of disruptive attachments, " and every time that happens a child is "at more risk for negative outcome as time goes on."
Dr. Smith concluded that R.J. required stability. If removed from her foster home, R.J. would experience "a traumatic loss" because she saw M.R. "as her . . . primary attachment figure, . . . the person who everyday, for the last two years, has put her to bed [, ] woke her up [, ] and [bathed] and fed her and been there when she cries." "[D]evelopmentally [R.J.] did not] have any real memory of living any place else or of being parented [on] a day to day basis by anyone [other] than [M.R.]." Dr. Smith did not "see any evidence" that either E.R. or K.J. could "change their lives . . . within the time frame that [R.J.] needs."
In an August 1, 2012, oral opinion, the judge found that the Division had satisfied the four prongs of the best interests test, as set forth in N.J.S.A. 30:4C-15.1(a)(1) to -15.1(a)(4), and determined that defendants' parental rights should be terminated. 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."). Here, both defendants argue that they never abused or physically harmed R.J. However, the fact that there is no evidence that defendants physically harmed the child 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 harm caused to R.J. by both parents, the judge found that there was "continuing drug abuse over and over and over again." Defendants maintain that the trial court erred in this determination because it failed to find any actual harm caused to R.J by their drug use, and instead improperly focused on the illegality of the drug use itself. See 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 both defendants' drug use was only one of the factors that the trial judge found contributed to R.J.'s endangerment. Rather, their continued drug use resulted in R.J. going "back and forth and back and forth with the parents, having no stable housing, having little sense of responsibility and causing [R.J.] to have . . . about five placements because they did not cooperate and they did not do what the Division had asked them to do." The trial court properly concluded that defendants' actions, and inaction, "certainly  caused harm to the child."
In similarly concluding that the second prong was met because neither defendant was capable of eliminating the harm to R.J., the court found that:
[I]t is not possible for them to do this at this time and there is no way to know when this would be possible. To this day, . . . neither one of them had stable housing. Neither one of them were in a position to take this child home and raise the child with a home, a job, substance free . . . .
E.R. argues that she should have been given more time to improve her housing, and/or prove that her illegal drug use was fully under control. However, the un-refuted proofs before the trial court amply demonstrate that, despite being afforded numerous services and opportunities by the Division, she continued to relapse, with traces of marijuana being found in her system right up to the time of trial. E.R.'s long history with the Division further established her inability to maintain stable housing.
K.J. argues that the court's finding as to prong two was erroneously based on the "unfortunate effects of poverty." However, the trial court's determination was not based strictly on K.J. being impoverished. Rather, the record amply demonstrates that K.J. was unable or unwilling to eliminate the harm to R.J. because of his refusal to attend substance abuse evaluations or treatment, parenting classes, anger management classes; his failure to avail himself of bus passes provided by the Division to visit with R.J.; and his general pattern of non-cooperation throughout this entire case.
"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-15.1(a)(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.
[Ibid. (internal citation and quotations marks omitted).]
Here, we reject as meritless defendants' argument that the Division failed to provide them with services essential to the reunification of the family. Indeed, the Division's initial goal was to foster reunification. However, the ensuing actions of the defendants, not the Division, rendered attainment of that goal impossible. Indeed, the record is replete with instances where the Division referred defendants to services for substance abuse, anger management, and parenting courses, scheduled psychiatric evaluations, and arranged for transportation when necessary. Neither defendant availed themselves of these services to become drug-free, secure stable housing, or attain "a position where they could safely and securely parent the child, " as the trial court properly found.
We similarly reject defendants' argument that the trial court failed to adequately consider alternatives to termination, or acted prematurely. Rather, the potential caregivers proffered by defendants were properly assessed and determined by the Division to be unsuitable. Additionally, the un-refuted expert testimony at trial clearly established that R.J. needed stability and permanency. Further delay was simply an untenable option.
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. Smith's un-refuted expert opinion that R.J. would experience much less harm by remaining with M.R. than if she "were returned to either one of her biological parents." Dr. Smith did not view E.R.'s bond with R.J. as a "strong, secure, primary attachment." Similarly, K.J.'s relationship with R.J. was "not a very robust or strong attachment, " and R.J. basically regarded K.J. as "a good playmate." At the time of the court's decision, R.J. had already lived with M.R. for nearly two years. Dr. Smith described M.R. as "thriving" in M.R.'s care, after having experienced "a number of disruptive attachments." Removing R.J. from M.R. would cause her to suffer a "traumatic loss" of her "primary attachment figure." This un-refuted expert testimony amply supports the trial court's finding that terminating defendants' parental rights would not cause R.J. more harm than good.