November 4, 2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent,
V.M.H., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF A.M., a Minor.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 8, 2013
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FG-16-67-11.
Joseph E. Krakora, Public Defender, attorney for appellant (Landry Belizaire, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Toni Lynn Imperiale, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (David Valentin, Assistant Deputy Public Defender, on the brief).
Before Judges Sabatino and Rothstadt.
Defendant V.M.H. ("Vincent"),  appeals from a judgment terminating his parental rights to his daughter, A.M. In this appeal, Vincent contends that the Division of Youth and Family Services ("Division") did not prove by clear and convincing evidence the four statutory prerequisites (the "four prongs") to a court's termination of a parent's rights to their child. The Division and A.M.'s Law Guardian argue that the Division met its burden under the statute.
The statute permits a court to terminate a parent's rights only when:
(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.
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 Vincent parental rights. See, e.g., N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (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.
The Division originally filed this guardianship action against both Vincent and against A.M.'s mother, A.M. ("Alice"). Before the trial, Alice relinquished her parental rights via a voluntary, identified surrender to C.C. ("Carol"), a friend of her and Vincent. At the beginning of the trial, Vincent resided in New Jersey as an undocumented immigrant. We understand that Vincent is now living in Mexico as a result of being deported by Federal officials.
A.M. was born on August 18, 2008. At her birth, Alice and Vincent were unmarried, but living together. According to their friend Carol, the couple was, at times, homeless during the earliest stages of A.M.'s life, and she claims to have met them during that time. A.M. is now five years old, and has been in Carol's care since the Division removed her from her parents' home in October 2008.
By all accounts, A.M. is a happy child and in good physical health. A.M. has, however, been diagnosed as developmentally delayed. She requires speech therapy, and may need special education in the future. Carol has enrolled A.M. in both speech therapy and physical therapy.
At the time of A.M.'s removal in October 2008, the family lived in a three-room apartment in Paterson, which they shared with two male friends. The home was clean and well-organized, with a dresser and a closet, though the couple could not afford a bed. However, with public assistance, they had all the basic essentials for the baby, including clothes, formula, milk, child accessories, and a bassinet.
The Division conducted an emergent "Dodd removal" of A.M. from her parents' home on October 17, 2008, following an incident of endangerment and neglect by Alice. On that night, Alice was drinking in a bar with a male friend — not Vincent. Alice left the then two-month-old A.M. alone, outside the bar, in a stroller. A.M. was dressed in only a t-shirt and diaper, in 45-50 degree weather. Her blanket smelled of beer, and there were beer caps in the stroller.
At some point, Alice's male friend emerged from the bar and, while stumbling, began to push the stroller. Two concerned women observed his actions and approached him to intervene. This caused the man to get upset, and he pushed the stroller toward the two women, telling them to take the baby. After this, the two women called the police who then arrested Alice and her friend. Alice was eventually convicted of child endangerment in the third degree, pursuant to N.J.S.A. 2C:24-4a. Meanwhile, authorities took A.M. to the emergency room at St. Joseph's Hospital in Paterson; she was unharmed.
During the incident, Vincent was at a friend's home, drinking. He later received a call from a friend who observed Alice's arrest, and then rushed to the hospital to meet his daughter. When he arrived at the hospital, his eyes were red, and he smelled of alcohol. Vincent admitted to the Division that he had had several beers earlier that night.
As a result, the Division did not permit Vincent to take A.M. home with him that night. Instead, the Division asked that he supply it with contact information for relatives or friends who would be able to look after A.M. Vincent said that he understood, and gave the Division two contacts: the numbers for Alice's sister, and Carol. The Division first tried to reach the maternal aunt, but received no response. It then succeeded in reaching Carol, who agreed to care for the child until the Division could make other arrangements. The Division then placed A.M. in Carol's care, following a background check and a home assessment.
Pursuant to an application by the Division, the Family Part conducted a hearing on October 21, 2008 at which the court determined that A.M.'s removal was proper, due to the imminent harm posed by "substance abuse, no parenting skills, [and] neglect." At that time, the court ordered Vincent and Alice to comply with substance abuse assessments, and to enter substance abuse treatment programs and parenting skills classes, as recommended by the Division; moreover, they were ordered to undergo psychological and/or psychiatric evaluations. The court also assigned the Office of the Public Defender as law guardian for A.M.
In accordance with the court's orders, Vincent enrolled in the Challenge Program, an organization which provides substance abuse treatment services, and he complied with drug screenings. As indicated by progress reports from November 2008 to September 2009, and in March and May 2010, he was compliant with the program and consistently received positive comments. By December 21, 2009, according to counselors, he was "ruled out for alcohol/drug abuse or dependency." Additionally, Vincent also enrolled in and completed a two-month parenting skills program.
In addition to finding substance abuse programs for Vincent, the Division supervised and assisted the family after A.M.'s initial removal. Case worker Alex Colon visited Vincent at his home on October 20, 2008 in order to assess the home. She found the home to be "in good living condition" with the exception that the parents did not have their own bed. Otherwise, the home had all the basic essentials for a baby.
In interviewing Vincent, Colon asked what his plans were and "he stated that he wanted his family back [and] that he was willing to comply with anything for his little girl." Colon observed that he was "very hurt and stressed about the current situation" and was "willing to comply with an alcohol assessment, psychological and parenting classes." When asked about the October 17 incident, Vincent stated that Alice would drink socially before, but stopped while she was pregnant; and that this was the first time that he had learned of her drinking after the pregnancy. He said that he had left for work at 6:00 a.m. on October 17, and afterward he attended a party where he drank about five to six beers; and it was his understanding that Alice would be taking A.M. to the doctor's office on that day. He denied any incidence of domestic violence, or having any other problems with her.
As to support, while he claimed not to have much family to rely upon, he was trying to locate an uncle whom he believed to be in the country. Still, he stated that the child was never alone: when Vincent was called on to work, his then-roommate Miguel would watch the child.
Vincent was not steadily employed during this period. At the time of the October 17 incident, he was employed by an agency, distributing newspapers two to three days per week, for only two hours; for this, he earned $50 per day. By November 6, 2008, he found a job as a laborer. However, by October 20, 2010, he stated that he was having financial issues, due to a lack of available work.
In his June 1, 2009 psychological evaluation with Dr. Manuel A. Iser, Vincent said that he was born and grew up in Mexico; that he had been physically abused as a child by his father; that he never attended school; and that he and his friends were arrested while drunk in 2006, for allegedly throwing bottles at police officers. He denied the crime, but said that he pled guilty after being threatened with additional charges.
As to substance abuse, Vincent admitted to using marijuana from the age of twelve up until just two years ago. His use was almost daily when he was younger. He also stated that he began consuming alcohol at the age of nine until he stopped six months ago, and that he would drink about once a week on weekends and sometimes got drunk. However, Vincent did not feel that he had a problem with alcohol. Additionally, Vincent sporadically attended Catholic mass, and referred to a friend, as his main support system.
When asked about the October 17 events, Vincent said that he and Alice did not spend a lot of time drinking together. He admitted that he had been drinking on that night, but said that he and Alice were trying to put alcohol behind them. When asked about what he thought of A.M. being out at night, "he replied that it is not good, because it is bad for her to be out that late, especially with [Alice] drinking."
As part of his evaluation, Vincent participated in an Adolescent-Adult Parenting Inventory (AAPI-2) evaluation which is designed to assess the parenting attitudes of adults. For his "parental expectations, " and his attitude toward "corporal punishment" and "family roles, " he received an average score, placing him within the range of attitudes shared by most of the general population. However, in "empathy" and "independence, " Vincent scored in the lower range, which generally indicates a high risk for using abusive parenting practices. However, the AAPI-2 "is not a predictor of future abusive parenting beliefs but rather an assessment of current parenting beliefs and practices." Also, under his "mental status assessment, " the report provides that Vincent appeared neatly dressed, was "cooperative and friendly, " and behaved normally. Finally, the report noted that Vincent "wants to regain custody of his daughter and feels betrayed by his [partner] in that she took their daughter to a bar at ten at night."
Based on his findings, Dr. Iser recommended parenting skills classes and substance abuse treatment for Vincent. Additionally, he recommended that the Division consider reunification for Vincent and his daughter; but that the Division would also need to provide Vincent with a caregiver to help him in the event that Alice was deemed unfit to parent.
During the course of the Title 9 ("abuse and neglect") litigation, the court entered a series of orders approving the Division's permanency plan for reunification. To this end, the court allowed Vincent unsupervised visits with A.M. in Carol's home from the start of the case. On March 3, 2009, Alice and Vincent waived their rights to a fact-finding hearing. Instead, they stipulated through counsel to the following acts of "abuse and neglect":
That on 10-17-08 [Carol] put her child at risk of harm by taking the child out in her stroller while drunk and letting someone who is drunk take care/supervise of[sic] the child . . . and agree that these acts or omissions constitute abuse or neglect pursuant to law, and, on 10-17-08 [Vincent] put his child at risk of harm when he was too intoxicated to take the child home from the hospital.
During the ensuing litigation, the Division consistently reported Vincent as having a close, affectionate relationship with his daughter. In fact, the Division described him as having a closer relationship to A.M. than that of the mother, and observed that he "took the lead interacting with [A.M.] and caring for her."
In light of the progress made, the Family Part granted the Division two three-month extensions, following Permanency Hearings held on October 20, 2009 and January 26, 2010. After a Compliance Review hearing on June 29, 2010, the parents were allowed to have unsupervised overnight weekend parenting time with A.M. During these visits, the Division arranged for aides from the Emergency Child Aid Program ("ECAP") to check-in with the parents during brief, one hour visits — the goal being to make sure that there was no drinking in the home, and that they were taking care of A.M. Their reports were always positive.
However, during an unsupervised visit on August 16, 2010, the police arrested Alice for third degree aggravated assault, and third degree possession of a weapon. Officers found her in her apartment, holding a kitchen knife and yelling "I'm going to kill you!" She was gesturing toward the bedroom door, where Vincent had locked himself inside with A.M., four other children, and a friend of his.
According to Vincent's statement to the police, Alice was intoxicated and had a history of being violent. He had asked her to leave the premises, at which point she became angry and started scratching his face and his arms. Vincent locked himself in the bedroom to protect the children, and Alice had been trying to force her way in by striking the door with her knife. The police observed punctures on the door, as well as scratches on Vincent, which corroborated his statements. In their report, the police noted that Vincent was intoxicated as well. Vincent notified the Division the next day about the incident.
Later, on October 12, 2010, the police arrested Vincent for aggravated assault and possession of a weapon. According to reports, Vincent engaged in a physical altercation with one of Alice's male friends whom Vincent struck with a metal baseball bat. After the police incarcerated Vincent, Immigration and Customs Enforcement ("ICE") further detained him pursuant to a deportation detainer.
During the February 9, 2011 permanency hearing, the Division changed its permanency plan to termination of Vincent's and Alice's parental rights, followed by adoption by Carol, who had expressed a willingness to adopt A.M. A.M.'s maternal aunt had also expressed interest in caring for A.M., but she was eventually ruled out after a background check. Ultimately, on April 5, 2011, the Division terminated the Title 9 litigation and filed a complaint for Guardianship.
Because Alice voluntarily surrendered her parental rights, the trial proceeded on January 18 and 19, 2012 as to Vincent's rights alone. At trial, the Division presented testimony from Dr. Frank J. Dyer, who conducted psychological and bonding assessments for both Vincent and Carol. Dr. Dyer's assessment of Vincent took place on December 2, 2011 at the Essex County Jail. During his clinical interview with Vincent, Vincent revealed that his father had been extremely physically abusive, which caused Vincent to leave home when he was eight years old. Vincent claimed that he arrived in the United States when he was nineteen, intending to join his uncle who was living in New Jersey.
As for substance abuse, Vincent told Dr. Dyer that he had been using alcohol since the age of eight, after leaving his parental home. He also told Dr. Dyer that his alcohol use had been the underlying cause of his criminal history, involving knocking someone down while in an intoxicated state; being in prohibited areas, or trespassing while intoxicated; and public consumption and intoxication.
When asked about his plans for A.M., Vincent told Dr. Dyer that he would raise the child jointly with Alice. Dr. Dyer noted that Vincent presented no alternative plan in the event that Alice chose not to reunite with him. Nor did he present a plan in the event that he was deported to Mexico.
In addition to the interview, Dr. Dyer administered a number of clinical tests on Vincent in order to assess his parental fitness. The results indicated that Vincent had a visual motor integration problem, meaning that he was deficient in a kind of eye/hand coordination needed to acquire basic academic skills. Dyer attributed this to Vincent's lack of formal education. Additionally, in a test designed to measure general intellectual ability, Vincent scored in the bottom third percentile — meaning that 97 percent of subjects in his age group who take the test scored higher. Finally, he determined Vincent to be functionally illiterate in both Spanish and English, displaying a third grade reading level while in an instructional setting, and a second grade reading level while reading independently.
As to the bonding assessment, Dr. Dyer's observation took place in a visitation area of the Essex County Jail, and over the course 40 minutes. According to Dr. Dyer, A.M. and Vincent engaged well with each other, and he was both appropriate and affectionate with her. However, when asked about the bonding assessment between A.M. and Carol, Dr. Dyer stated that A.M. was much more verbal with Carol than she had been with her father; she also addressed Carol as "mommy."
Finally, when asked if A.M. would suffer harm is she were separated from her foster mother, Dyer opined
It would be as though the center of this child's emotional world dropped away from under her, [A.M.] would suffer a severe short term reaction in which she would regress in terms of her development. And . . . she is already delayed. She would, also, regress behaviorally and either demonstrate aggressive behavior or withdrawing behavior, or some alternation between those styles.
Moreover, as Dr. Dyer stated, Vincent would not be able to ameliorate the harm, given his own psychological and intellectual limitations. Finally, in Dr. Dyer's opinion, a severance of A.M.'s relationship with her father — who had already been unavailable throughout most of her life — "would not have any noticeable effect on her."
Vincent testified at trial that his plans were to get an apartment upon his release, and to find a job that allowed him to go to school. He also said that his uncle would provide him support, although he could not recall his uncle's exact address. When asked what kind of work Vincent expected to find, he spoke about nearby factories where he knew he could find work, and stated that he had skills in construction work. In the event that he was deported, he could find work as a bricklayer in Mexico. Moreover, while in Mexico, he could depend on his mother to look after A.M. while he was working. Vincent, however, could not provide his mother's address.
At the conclusion of the trial, Judge George E. Sabbath found that the Division proved by clear and convincing evidence, each of the "four prongs." The judge found that the Division proved the first prong of the statutory test not only through Vincent's stipulation in the Title 9 action, but "most importantly" by his unavailability due to his incarceration and pending deportation. As to the second prong, the Division demonstrated, through Dr. Dyer's uncontroverted, comparative evaluations of Vincent and Carol, that separating A.M. from Carol would cause her serious emotional and psychological harm.
Judge Sabbath also considered the impact of termination on A.M. in light of her special needs:
The cognitive issues challenging [Vincent] are very important in terms of the welfare of the child. The reason being that the child herself is suffering from severe cognitive challenges. She is . . . a little over three years old and she is still not speaking at an age level that she should be speaking. She has several areas of delay including self help skills and motor skills. This child will require specialized care and protection. She will require affective verbal, social, emotional and cognitive stimulation by her caretaker. The current foster mother is providing all of these necessities at the present time. . . . [Vincent] is in jail. And he cannot provide any type of care or protection for his child. And as the months go by the child cannot wait for her father to get out of jail.
Therefore, Judge Sabbath found that Vincent could not provide A.M. with the stability, permanency and care to address her needs. Vincent's cognitive impairment prevented him from providing "any type of care or protections for his child." Furthermore, the judge found that while Vincent had proffered a parenting plan in the event that he was released from jail, his plans were not credible. For instance, as to possible family caregivers, Vincent did not provide any contact information for either his uncle in the U.S. or his mother in Mexico.
As to the third prong, Judge Sabbath found that the Division had provided Vincent with numerous services in its attempt to reunite the family. These services included substance abuse treatment, parenting classes, therapeutic family counseling, and overnight visits. Furthermore, the Division had applied to the court for two, three-month extensions to allow Vincent to acquire the sobriety and skills he needed in order to be able to care for A.M. However, the Division could provide no further services following Vincent's arrest and then pending deportation; and in light of Alice's identified surrender of her parental rights, the Division had no choice but to pursue termination.
Finally, Judge Sabbath found that the Division satisfied its burden as to the fourth prong, demonstrating that termination of parental rights would not do more harm than good. Again, the court relied on Dr. Dyer's uncontroverted expert testimony, wherein he opined that termination would be less harmful to A.M. than reunification, and that Vincent was incapable of ameliorating any harm to A.M. caused by being separated from Carol.
Based on his findings, Judge Sabbath entered a guardianship judgment on March 7, 2012, terminating Vincent's parental rights as to A.M. Vincent then filed this appeal.
The scope of our appellate review in these cases is limited. This court must defer to the trial judge's findings if they are supported by substantial, credible evidence, though legal conclusions are always subject to review. In re Adoption of Child by P.S., 315 N.J.Super. 91, 107 (App. Div. 1998). Because of the Family Part's "special jurisdiction and expertise in family matters, " we accord deference to the trial court's fact-finding and to the conclusions that flow logically from those findings of fact. Cesare v. Cesare, 154 N.J. 394, 413 (1998). Therefore, "[w]e will not disturb the family court's decision to terminate parental rights when there is substantial credible evidence in the record to support the court's findings, " N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008), and such findings are "binding on appeal." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). We are further obliged to defer to the trial judge's credibility determinations, based upon the opportunity of the judge to see and hear the witnesses and get a "feel of the case." N.J. Div. of Youth & Family Servs. v. A.R.G., 361 N.J.Super. 46, 78 (App. Div. 2003) (citing Cesare, supra, 154 N.J. at 411-12; Pascale v. Pascale, 113 N.J. 20, 33 (1988)).
Reversal is required only in those circumstances in which the trial court's findings are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Fagliarone v. N. Bergen, 78 N.J.Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963). Moreover, we owe no deference to credibility findings which are "clearly lacking in reasonable support." N.J. Div. of Youth & Family Servs v. F.M., 375 N.J.Super. 235, 259 (App. Div. 2005) (citing In re Guardianship of D.M.H. 161 N.J. 365, 382 (1999)).
Applying these standards, we discern more than sufficient evidence in the record to support Judge Sabbath's conclusions that A.M.'s best interests required termination of Vincent's parental rights.
Termination of parental rights is a difficult and intentionally rigorous process, subject to a heightened burden of proof. N.J. Div. of Youth & Family Servs v. I.S., 202 N.J. 145, 151 (2010). Therefore, the Division must prove by clear and convincing evidence that each of the four prongs are satisfied. M.M., supra, 189 N.J. at 280. These rigorous standards are consistent with public policy and Constitutional doctrine, In re Guardianship of J.C., 129 N.J. 1, 9 (1992), as parents have a fundamental, constitutionally-protected interest in raising their biological children. Santosky v. Kramer, 455 U.S. 745 (1982). However, these Constitutional protections are often confronted by the State's parens patriae responsibility to prevent harm to children. J.C., supra, 129 N.J. at 10. As such, the statutory "best interests" test aims to achieve an appropriate balance between parental rights and the State's duty to children.
A court must not consider the "four prongs" – the statutory requirements for termination of parental rights – separately; rather, the court must use all four prongs to form a composite picture of what is in the best interests of the child. N.J. Div. of Youth and Family Servs. v. F.M., 375 N.J.Super. 235, 258 (App. Div. 2005). "[T]he cornerstone of the inquiry is not whether the biological parents are fit but whether they can cease causing their child harm." J.C., supra, 129 N.J. at 10. Therefore, parents in such proceedings should not be presumed unfit, and "all doubts must be resolved against termination of parental rights." In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999).
The first prong of the statutory test requires the Division to prove by clear and convincing evidence that a "child's safety, health, or development has been or will be endangered by the parental relationship." N.J.S.A. 30:4C-15.1(a). Under this prong, the potential harm need not be physical, as "[s]erious emotional injury and developmental retardation should . . . be regarded as constituting an injury to the child." N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 605 (1986).
Also, a court may not impute the conduct of one parent to another merely because of their relationship, but the conduct of one parent can be relevant to the fitness of the other. M.M., supra, 189 N.J. at 288-89. In such case, the determinative issue would be whether the parental relationship has endangered, or would potentially endanger, the child. Ibid.
Finally, lack of fault is not conclusive as to the issue of termination; rather, "[t]he concern must be for the best interest of the child in the context of the environment to which they would be returned." In re Guardianship of R., 155 N.J.Super. 186, 194-95 (App. Div. 1977).
Vincent asserts that the Division failed to demonstrate by clear and convincing evidence that he had endangered his daughter in the past, and/or that he stood to harm her in the future. Further, he argues that the judge improperly relied upon Vincent's stipulation in the Title 9 action, which did not prove that Vincent ever endangered his daughter by drinking a few beers at a party while Alice was taking care of A.M. N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J.Super. 245, 265-66 (App. Div. 2002) (requiring that a stipulation contain "a factual basis from which to conclude that defendants have committed some specific act or acts which constitute abuse or neglect as defined in N.J.S.A. 9:6-8.21(c)"). By relying on the stipulation, Vincent argues that the court improperly imputed Alice's actions to him. In addition, Vincent claims that his current circumstances — for which he is not at fault — should not have been used as a basis to conclude that he would continue to harm A.M. Judge Sabbath's findings were, however, ultimately unrelated to Alice's behavior and based "most importantly" on Vincent's indefinite unavailability to care for his child and his failure to make any provision for her future needs.
Judge Sabbath did not impute Alice's actions to Vincent, nor did he find Vincent at fault for endangering the child or physically harming A.M. in any manner. While the judge referred to Vincent's "stipulation, " he ultimately based his decision on (1) the fact that A.M. had remained in Carol's custody from the time of the initial placement to present day (A.M. had effectively spent her entire infancy to date with Carol); (2) that "most importantly" Vincent was unavailable, due to his incarceration and pending deportation; and, (3) that Vincent did not make any provisions for A.M.'s care while he was unavailable. At the time of trial, Vincent stood to be incarcerated for an indefinite period. As a result, if he were to retain his parental rights, his prolonged absence would cause more harm to A.M., primarily because Vincent could not provide for A.M.'s long-term care.
We are therefore satisfied that substantial credible evidence supported Judge Sabbath's finding as to the first prong.
Under the second prong, the court had to find that Vincent was either unwilling or unable to ameliorate the harm to his child. N.J.S.A. 30:4C-15.1(a)(2). This harm includes any emotional and psychological harm caused by separating the child from her caregiver(s). Ibid. Moreover, in its analysis a court is not to look to whether the parents are "victims of social circumstances beyond their control, " but whether it is "reasonably foreseeable" that the parental relationship would continue to harm the child. N.J. Div. of Youth & Family Servs. v. A.W., supra, 103 N.J. at 607.
Vincent argues that the Division failed to demonstrate that he was unwilling or unable to eliminate the harm faced by his daughter. He argues that he has twice tried to protect A.M. from her mother Alice — the first time, in going to the hospital after Alice's arrest on October 17, 2008, and the second time during the assault on August 16, 2010. He also relies on the fact that he has resolved his issues with alcohol through participation in the Challenge Program.
However, based on the uncontroverted testimony of Dr. Dyer, the court found that it would be contrary to A.M.'s best interests to be separated from Carol. As Dr. Dyer observed during the bonding assessments, while A.M. appeared relaxed and amiable with her father, she was "profoundly attached" to Carol. Dyer opined that if the court removed A.M. removed from Carol's care, she would be devastated by the separation, and might never recover. Moreover, Judge Sabbath found that Vincent could not ameliorate the resulting harm, as he was unavailable due to his incarceration and pending deportation, and lacked the cognitive ability to help A.M. The court also took into account that A.M. had special needs, was progressing in her therapy, and that termination was needed to give the child a more permanent situation.
There is no doubt that initially Vincent made great efforts toward reunification with A.M. Those efforts are usually of "enormous significance" when determining fitness. N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J.Super. 418, 437 (App. Div. 2009). However, a child's best interests cannot be sacrificed because of a parent's inability to address potential future harm, despite his or her willingness to try. See N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J.Super. 76, 111 (App. Div.), ("New Jersey law concerning parental rights has shifted from protracted efforts for reunification with a birth parent to an expeditious, permanent placement to promote the child's well-being. A child cannot be held prisoner of the rights of others, even those of his or her parents. Children have their own rights, including the right to a permanent, safe and stable placement."), certif. denied, 180 N.J. 456 (2004).
Although Vincent clearly demonstrated a desire to overcome the obstacles to reunification, his incarceration and then deportation without making any provisions for A.M.'s care established that Vincent was unable to eliminate the harm confronting A.M. While it is true that "it is by no means settled or obvious that incarceration is so inimical to the [parental} relationship to justify its termination as a matter of law, " In re Adoption of Children by L.A.S., 134 N.J. 127, 136 (1993), Vincent's indefinite incarceration at the time of trial and his pending deportation were clearly probative of his inability to properly care for A.M.
The substantial credible evidence thus supported Judge Sabbath's determination that Vincent could not possibly ameliorate the harm of his own absence or A.M.'s separation from Carol while he remained incarcerated and then deported.
The "third prong" requires clear and convincing evidence that the Division made reasonable efforts to help the parents change the circumstances which led to removal, and that the Division considered alternatives to termination of parental rights. N.J.S.A. 30:4C-15.1(a)(3). The statute defines "reasonable efforts" as
[A]ttempts by an agency authorized by the division to assist the parents in remedying the circumstances and conditions that led to the placement of the child and in reinforcing the family structure, including, but not limited to:
(1) consultation and cooperation with the parent in developing a plan for appropriate services;
(2) providing services that have been agreed upon, to the family, in order to further the goal of family reunification;
(3) informing the parent at appropriate intervals of the child's progress, development and health; and
(4) facilitating appropriate visitation. [N.J.S.A. 30:4C-15.1(c)]
Vincent argues that the Division failed to provide adequate and reasonable services to assist him in correcting his negative circumstances. In support, he says that Division's efforts to correct his circumstances were "slow and dilatory, " because they repeatedly extended their permanency plan to reunite the family. Moreover, Vincent claims that the Division did not properly consider the option of reuniting A.M. with Vincent in Mexico if he were to be deported. We find these arguments to be without any merit.
Here, Judge Sabbath correctly found it could not "be argued that the Division did not provide adequate and reasonable services" for Vincent. The Division provided Vincent with substance abuse treatment programs; parenting skills classes; drug screenings; psychological evaluations; and therapeutic visitation sessions. Also, during permanency hearings, the Division repeatedly requested more time to effectuate the Division's plan to reunite the family.
However, the Division's ability to continue to provide services and pursue reunification were greatly impeded by Vincent's incarceration and ultimately his deportation which relieved the Division of having to do more than it did before Vincent's incarceration. See N.J. Div. of Youth & Family Servs. v. T.S., 417 N.J.Super. 228, 242 (App. Div. 2010), certif. denied, 205 N.J. 519 (2011). Under these circumstances, Judge Sabbath's findings as to the third prong were more than adequately supported by the credible evidence.
Under the fourth prong, the court was required to find by clear and convincing evidence that termination of Vincent's parental rights would not do more harm than good. N.J.S.A. 30:4C-15.1(a)(4). It mandates a determination as to "whether a child's interest will best be served by completely terminating the child's relationship with that parent." E.P., supra, 196 N.J. at 108. "The crux of the fourth statutory subpart is the child's need for a permanent and stable home, along with a defined parent-child relationship." N.J. Div. of Youth & Family Servs. v. H.R., 431 N.J.Super. 212, 226 (App. Div. 2013).
The fourth prong is meant to be a fail-safe against termination, even where all other prongs are met. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 609 (2007). The court must examine the child's bond with both the biological and foster parents, and thereby balance the harm of termination against the harm of separating the child from her foster parents. K.H.O., supra, 161 N.J. at 355. "Where it is shown that the bond with the foster parent is strong and, in comparison, the bond with the natural parent is not as strong, " termination may be appropriate. Id . at 363. "[A]fter considering and balancing the two relationships, " the question becomes whether "the child will suffer a greater harm from the termination of ties with her natural parents than from permanent disruption of her relationship with her foster parents." Id. at 355. To this end, the court should consider 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 biological and foster parents." J.C., supra, 129 N.J. at 19.
Vincent asserts that the Division failed to establish by clear and convincing evidence that termination of his parental rights would not do more harm than good. Its only evidence, he argues, is the testimony of Dr. Dyer, who "relied only upon Defendant's low economic[sic], education, past alcohol use, and intellectual level as a basis for declaring Defendant unfit." He further argues that (1) if brought to Mexico, over the long term, A.M. would develop a strong and positive bond with her father and extended family; (2) that she had been responding positively to Vincent as her caretaker; and (3) that due to her "age and resilience, " she would recover from being separated from her foster parent.
Vincent's arguments under the fourth prong have no bearing on the issue of whether termination would do more harm than good. They are merely hypotheticals, for which Vincent offered no support at trial. For example, Vincent predicts that A.M. would develop a strong bond with her extended family, but he could not even remember how to contact them. He also predicts that her "age and resilience" would help to recover from her separation from Carol, though he offered no expert testimony to contradict Dr. Dyer's opinion that Vincent could not ameliorate the substantial harm that separation would cause.
In response to Dr. Dyer's opinions, Vincent failed to demonstrate that termination of his parental rights would do more harm than good, and all of the other evidence adduced during the trial was to the contrary. For example, at the time of trial, Vincent remained homeless, unemployed, and incarcerated. Also, he could not offer any realistic plan for his care of A.M. or her care by any other person, and he offered no proof that he was able to undertake that responsibility.
A.M. required permanency and care by a qualified parent. A child's need for permanency is always of "paramount" concern to the court. K.H.O., supra, 161 N.J. at 355. Judge Sabbath's decision assured that A.M. would obtain the permanency and care which Vincent could not provide to his daughter.