November 22, 2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent,
S.L.N., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF K.A.N., a minor.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 23, 2013 
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-164-11.
Joseph E. Krakora, Public Defender, attorney for appellant (Sigrid S. Franzblau, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Melissa H. DeBartolo, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Suzanne M. Carter, Designated Counsel, on the brief).
Before Judges Grall, Waugh, and Accurso.
Defendant S.L.N. (Susan) appeals the Family Part's order terminating her parental rights to her son K.A.N. (Kevin), who was born in January 2003. We affirm.
We discern the following facts and procedural history from the record on appeal.
Susan is the mother of five children, but only Kevin is involved in this appeal. Kevin has three half-siblings: twin sisters, who were born in November 1999; and Keith, who was born in March 2004. He also has a full-sister, who was born in January 2012. At the time of trial, Susan's other children were in the custody of plaintiff Division of Child Protection and Permanency. They are the subject of a separate abuse and neglect action.
The Division became involved with the family in March 2004, when Keith tested positive for cocaine at birth. The Division substantiated neglect based on Susan's prenatal drug use.
The Division deferred removal of the children after Susan agreed to enter a residential drug-treatment program. Keith remained hospitalized, and the Division placed Susan, Kevin, and the remaining children at the Madison House shelter. Shortly thereafter, the shelter terminated Susan from the program because she violated its rules and regulations, was argumentative and rude to the staff and other residents, and was not attending the daily treatment sessions.
As a result, on March 26, the Division removed Kevin and his siblings and placed them in separate foster homes. Kevin, then approximately fourteen months old, was placed with A.S. (Andrea Stone) and her husband (collectively the Stones). He would remain in their care until he was reunified with Susan when he was three years old. The Division attempted to identify relatives or friends of Susan who could act as resources, but could not locate anyone willing to do so.
The Division offered Susan a variety of services, including parenting classes, referrals for drug treatment, parenting time, and psychological assessments. Susan complied with her substance-abuse treatment plan during April, but stopped attending her meetings shortly thereafter.
Gerard Figurelli, a psychologist, evaluated Susan in September. As of the time of the evaluation, Susan had been attending drug treatment and other services sporadically. She had worked for two weeks stocking shelves, earning $8.50 per hour. Susan told Figurelli that she and the children had lived with a friend, who asked her to leave. She was living with another friend at the time of the evaluation and had previously lived at the local YMCA.
According to Figurelli, Susan's test results indicated "narcissistic [personality] trends." He characterized the results as consistent with her use of drugs during pregnancy with Keith. Figurelli reported that Susan was unable to explain her failure to comply with the services offered by the Division.
Figurelli concluded that Susan lacked the ability to parent her children at that time and that she could not be trusted with their care until she completed her prescribed programs, secured stable and adequate housing, established a consistent source of income, and arranged for appropriate child care. Figurelli also recommended that Susan remain current with her HIV treatments.
By January 2005, Susan had tested positive for cocaine on two occasions. In March, the Family Part judge approved the Division's permanency plan of termination of parental rights and adoption by each child's respective foster parents. The Division continued to receive drug-related referrals concerning Susan and substantiated drug use on five occasions. She was still using cocaine as of mid-April.
Susan started cooperating with her drug treatment program in July, after which her service providers began to submit encouraging reports to the Division. Susan's progress continued through the fall. As a result, she was granted more frequent parenting time with the children.
In November, Leslie Williams, a psychologist, conducted an evaluation of Susan and her children. Williams also updated the psychological evaluation prepared by Figurelli. Williams reported that Susan and her children shared positive bonds and opined that reunification was viable.
[Susan] appears to be sincere about finally dealing with her substance abuse problem and has been compliant for the past six months. . . . [T]he children should be phased into her custody . . . . [Susan, ] obviously, needs to fully comply with all aspects of her treatment.
On November 14, the judge approved the Division's revised permanency plan to reunify Susan with her children at a facility that had recently provided shelter and other support services to Susan. The Division continued to monitor the family and provide services. The twins were returned to Susan's physical custody in January 2006, and Keith was returned to her physical custody in March, as part of a phased reunification. Kevin, then age three, was reunified with Susan in April.
After reunification, Susan allowed Kevin to continue his relationship with the Stones. She permitted him to stay with them over weekends, on holidays, and during the summer. Kevin began referring to the Stones as his godparents. They played such a significant role in his life that, when Kevin began exhibiting behavioral problems, Susan sought their assistance.
In October 2007, an anonymous caller alleged that Susan was not feeding or taking care of the children, was using most of her money to buy cocaine, and was exposing the children to domestic violence between herself and her girlfriend, G.P. (Gretchen). When questioned by a Division investigator, Susan admitted to fighting with Gretchen, but she claimed that they were no longer involved because Gretchen had been arrested and jailed. The Division did not substantiate the allegations against Susan, but did substantiate the allegation of physical abuse against Gretchen.
In May 2008, the Division received another referral after Kevin arrived at school with a cut on his lip. He told a school staff member that Susan had punched him in the mouth, and later told a Division investigator that she often used corporal punishment. Susan and the remaining children denied the allegations, and the Division determined the allegations of physical abuse to be unfounded.
There were at least five additional referrals between February 2009 and November 2009, including allegations that Susan was abusing her children and not providing them basic care; had resumed use of drugs and alcohol; was again exposing her children to domestic violence between herself and Gretchen; and had failed to protect Keith from physical abuse by Sam. However, the Division determined that all of the allegations were unfounded.
After Andrea Stone contacted the Division in 2009 to express concerns that Susan and Sam were neglecting and physically abusing Kevin, Susan became angry and discontinued interaction with the Stones. The visits resumed one month later, but were discontinued in January 2010 when Susan became angry with Andrea Stone again.
Susan admitted that she would occasionally "pop" Kevin's legs when he misbehaved, but denied wrongdoing in every other respect. The Division caseworker warned her that using physical punishment was inappropriate. From November 2009 through January 2010, the Division provided a parent aide to help Susan care for her children.
In March 2010, the Division received a report that emergency responders had found Kevin, then seven, alone and limping along on a public street. Kevin initially told them that he had fallen out of a tree, but later disclosed that he had injured himself jumping out of a third-floor window. He explained that Sam had whipped him the day before because he misbehaved in school and that he jumped out of the window because he feared that Sam would do so again. The Division removed Kevin from Susan for the second time.
When a Division investigator interviewed Kevin, he at first denied being hit by Sam or Susan, but later told the investigator that he was fearful at home because his parents hit him and his siblings with a belt. Kevin's siblings confirmed that Susan and Sam used corporal punishment and that Kevin was hit frequently for misbehaving at school. Kevin's doctors found two fractures in his right foot that required surgery. They also found linear abrasions on his body that were consistent with whip marks.
Susan maintained that Sam never hit Kevin. She admitted to spanking Kevin "twice with a belt on his butt" when he misbehaved, but claimed no one had told her that physical punishment was inappropriate. Susan denied seeing any marks on Kevin's chest and asserted she did not know where they came from.
The Division substantiated abuse against Sam,  but nevertheless determined that neglect allegations against Susan were unfounded. On March 29, the Division returned Kevin to the Stones, where he has remained since.
Following this second removal, the Division provided Kevin with services to address his increasing behavioral and emotional problems. In June, when Kevin met with Michelle Miller, a clinician at the Metropolitan Regional Child Abuse Diagnostic and Treatment Center (RDTC), he reported that Susan and Sam frequently hit him, sometimes with a belt and other times with a wire. Miller concluded that Kevin's "emotional and behavioral difficulties [were] likely related to his alleged history of neglect and abuse, as well as the lack of a consistent parental figure throughout his life."
Monica Weiner, M.D., RDTC's Assistant Medical Director, recommended that the Division consider alternatives to reunification:
[Kevin] needs a stable home life and it is not clear that he has received that with his biological mother. . . . It appears that Ms. [Stone] has been a long-term supportive presence for [Kevin] and [the Division] should explore whether Ms. [Stone] could be a permanent placement for [Kevin] or whether an alternate arrangement could be mediated between [Susan] and Ms. [Stone].
A psychologist from the child study team at Kevin's school attributed Kevin's behavior issues to his "perceived inability to escape from his past hostile environment and the feeling of no stability." The school psychologist believed that Kevin had the potential to function on grade level based on his cognitive assessment results, but that he had "missed the opportunity to learn the basic skills" because of his inconsistent school attendance. According to the psychologist, Kevin's underlying emotional issues and the effects of his irregular school attendance were "the main impediment[s] standing in the way of his academic success." School records showed that Andrea Stone was a vocal advocate for Kevin in addressing his problems in school.
Kevin was ultimately classified as emotionally disturbed and learning disabled. He was placed in a specialized classroom setting. At the time of trial, Kevin had significantly improved his overall behavior and performance in school.
After the second removal, the Division also continued to offer services to Susan, including domestic violence referrals, family team meetings, referrals to community assistance programs, and individual counseling. Susan's participation in those services was erratic. In addition, Susan frequently arrived late for her supervised visits with Kevin and would occasionally miss them altogether. As of October 2011, Susan had failed to attend almost half of her scheduled visits.
In May 2010, Mark Singer, a psychologist, evaluated Susan. He concluded that, although Susan showed "a significant attachment to her children, " she would need to undertake extensive lifestyle changes to make reunification feasible. Those changes included finding stable employment and housing, complying with drug screenings, and remaining current on her HIV treatment. Absent such improvements, Singer opined that returning Kevin to Susan's care would only "lead to a replay of the events that" had prompted the Division's ongoing involvement. Susan did not improve in the areas on which Singer had focused, instead remaining inconsistent in complying with the prescribed reunification services and attending her supervised parenting time with Kevin. The Division continued to receive referrals concerning the other children, who had remained with Susan.
In May 2011, the Division changed Kevin's case goal from reunification to termination followed by adoption. The judge approved that plan on May 23. In June, the Division filed the guardianship complaint concerning Kevin.
In early 2012, Eric Kirschner, a clinical psychologist, completed an updated evaluation of Susan, a bonding evaluation of Susan and her children, and a bonding evaluation of Kevin and the Stones. In his reports, Kirschner concluded that Susan did not have the psychological capacity to parent Kevin appropriately or to provide him "safety, protection, nurturance, stability and guidance." He opined that allowing Susan to regain custody of Kevin "would place [him] at a heightened risk of harm." Kirschner based his findings, in part, on Susan's test data, which indicated narcissistic personality traits that impaired her ability to acknowledge and respond empathetically to the needs of others. According to Kirschner, the results also reflected that Susan (1) was a "rigid disciplinarian"; (2) "lacked nurturing skills"; (3) had "a deficit in her ability to recognize a child's emotional state"; (4) did not understand normal child development; and (5) tended to place her needs over those of her children.
Kirschner was troubled by Susan's minimization of her role in causing the removals, her limited insight, and her continued poor judgment. He pointed to Susan's ongoing claim, despite evidence to the contrary, that Sam did not use physical discipline at home, as well as her ongoing use of drugs, even while pregnant. He recommended termination of her parental rights to Kevin.
Kirschner acknowledged Kevin's attachment to Susan and the loss that Kevin would experience if their relationship were severed. Nevertheless, based on considerations such as Kevin's strong bond with his foster parents, the Stones' ability to mitigate the adverse effects of the termination, and Kevin's overriding need for permanency, Kirschner opined that termination would not cause Kevin more harm than good.
At the Law Guardian's request, Sean Hiscox, a psychologist, completed a psychological evaluation of Susan and bonding assessments of Kevin with his birth and foster parents. Hiscox reported that Susan had elevated scores on the Child Abuse Potential Inventory test. At trial, he explained that those results demonstrated personality features and beliefs that were similar to those of known child abusers. Hiscox concluded that Susan's elevated scores were not encouraging in light of the extensive services she had received over the years. He further concluded that her failure to benefit from those services indicated that she was "unable or unwilling to parent" appropriately. Hiscox found it significant that, even though Susan continued throughout her evaluation to deny whipping Kevin with a belt, Sam reported that she had done so when he met with Hiscox.
According to Hiscox, Susan held an "unrealistic view of her ability to manage her life" that created a "dangerous situation" given her historical inability to "manage the demands of her life, [her] poor impulse control, and poor judgment." Like Kirschner, Hiscox concluded that Susan's continued drug use throughout the litigation and her unstable lifestyle suggested a poor prognosis for any meaningful change.
With respect to Susan's bonding session with Kevin, Hiscox reported that Kevin appeared comfortable with Susan, interacted positively with her, and would address her as "mommy." At the same time, he found that Kevin was also bonded with the Stones, whom he referred to as "mommy" or "mom" and "daddy" or "dad."
When Hiscox asked Kevin where he wanted to be placed, Kevin responded that he wanted to remain with the Stones because they were nice to him and he enjoyed living with his god-sister. Kevin told Hiscox that he wanted to see his siblings more, and would want to continue visiting his birth parents in the event he was placed permanently with the Stones. Nevertheless, Kevin did not think Susan "was ready, " and he was "[n]ot sure when [his birth parents would] be ready." In contrast, he told Hiscox that the Stones had "been ready for a long time."
Andrea Stone told Hiscox that Kevin sometimes expressed relief and eagerness to return to her home following parenting time with Susan and Sam. She also told him that she and her husband were committed to adopting Kevin, but would allow him to maintain contact with his birth parents as long as they behaved appropriately.
Based upon his evaluation, Hiscox had "no doubt that [Kevin] and his foster parents ha[d] a strong, positive, and psychologically healthy relationship, and that [Kevin saw] his foster mother as his primary attachment figure" because she and her husband had been a reliable and nurturing presence throughout his life. Susan, however, had neither corrected the problems that had prompted Kevin's removal nor provided a reason to believe that she would improve her circumstances in the near future. Consequently, Hiscox supported termination of Susan's parental rights followed by adoption by the Stones.
Hiscox also opined that, although the termination of Susan's rights would inflict emotional harm on Kevin because of his ties to Susan and his siblings, the harm would not be severe or enduring because of the extended time he had already spent with the Stones, their ability to mitigate the resulting harms, and the strong likelihood that they would permit Kevin to maintain contact with his biological family. In contrast, Hiscox concluded that separating Kevin from the Stones would be harmful because Andrea Stone was Kevin's central attachment figure and Susan did not have the capacity to mitigate the harm of Kevin's separation from her.
Nevertheless, Hiscox conceded that the harm resulting from Kevin's separation from his foster parents "likely would not be severe and enduring due to [Kevin's] age and his unfortunate life history, which [had] included multiple separations from attachment figures over the years." However, he opined that attempts to reunify Kevin with his birth parents a second time faced a "very high" risk of failure and that terminating Susan's rights would best serve Kevin's interests.
The termination trial took place over six days in July 2012. Nikita Shell, a Division caseworker, testified that Susan was then living at a shelter known as Isaiah House. According to Shell, Susan had been there for five months. Susan was in an area of Isaiah House reserved for individuals with HIV that allowed children. Shell testified that Susan had recently enrolled in classes to earn her GED, but had not sought any job training. Welfare remained Susan's sole source of income.
Anthony Koneh, another caseworker, testified that the Division had continued to provide Susan with reunification services after the permanency plan had been changed to termination. Those services included domestic violence referrals, substance abuse counseling, and parenting time. The Division did not provide family therapy, in part because Kevin's therapist advised against it. Koneh testified that Susan's attendance at sessions required by the services was inconsistent. For instance, even though several of the mental health professionals had highlighted domestic violence as an area Susan needed to address, she was noncompliant and insisted that her relationships were not violent.
When Koneh visited Susan's prior home in Irvington to assess whether it was an appropriate living space for her children, he found it disorderly and "not in [a] hygienic state." He also observed that the home lacked adequate furniture for the children even though the Division had previously purchased them beds and dressers. According to Koneh, Susan never proposed a long-term plan concerning how she would care for her children in the event of reunification.
Although Koneh conceded that Susan was receptive to the suggestions from her service providers, he testified that she failed to carry out their recommendations. He pointed out, for instance, that even though reunification was conditioned on Susan's remaining substance-free, she tested positive for marijuana use in May 2011, for alcohol in February 2012, and for oxycodone in April 2012.
Koneh further testified that Kevin started receiving special education services after his school district classified him as learning disabled. He had been diagnosed with Intermittent Explosive Disorder, for which the Division provided therapy, a mentor, and participation in summer programs. Koneh related that he often supervised Kevin's visits with Susan and acknowledged that she appeared to have a loving relationship with him. He testified, however, that Kevin also had a very close and loving relationship with the Stones and their biological daughter. According to Koneh, the Stones treated Kevin like their own child, and that they were fully able to meet his specialized needs.
Koneh testified that Kevin had expressed a preference to remain with the Stones, but also maintain contact with Susan. According to Koneh, the Stones were committed to adopting Kevin and would permit him to maintain contact with his biological family.
Hiscox testified in accordance with his reports. Although he acknowledged that it would be the "optimum situation" if the Stones were to allow Kevin to maintain contact with his biological family, he opposed Susan's proposal that Kevin live with the Stones but allow Susan to retain her parental rights. He explained that, in order for the Stones to provide a stable and secure placement, the placement "ha[d] to be free of [the] threat of removal." Hiscox conceded that severing Kevin's ties to his biological family would inflict harm, but maintained that the harm would not outweigh the benefits of permanency even if the Stones were to disallow the continuation of Kevin's relationship with Susan and his siblings.
Hiscox opined that Susan neither understood how the removals had impacted Kevin, nor did she appreciate the significance of her failure to provide him adequate care during his formative years. He did not believe that the Division could have provided any additional services to stabilize the family because of Susan's continuing drug use and her failure to address the other problems that limited her ability to parent.
Kirschner testified about his evaluations and his conclusions concerning Kevin. He reiterated his opinion that Susan was incapable of parenting Kevin independently. He stressed that, even if Susan ended her relationship with Sam, he would not endorse reunification. He highlighted Susan's noncompliance with the services offered by the Division, as well as her failure to undertake affirmative steps to remedy the conditions that had led to the removal of her children. Moreover, he questioned Susan's commitment to maintaining her bonds with Kevin, given her erratic attendance at supervised parenting time.
Although he conceded that Kevin was bonded to Susan, Kirschner maintained that the Stones were the child's "psychological parents." He found it significant that Kevin's preference was to remain with the Stones:
[Kevin]'s not a baby. He's old enough to . . . express his views and his sentiments and his feelings.
What's telling . . . is that in the evaluations that I do it's not uncommon for a child even in a very . . . abusive and dysfunctional . . . home environment . . . to still say that they have the desire to return back . . . [to] their parents again.
Kirschner concluded that Susan was not then fit to parent Kevin, and that she was unlikely to become a suitable caretaker of Kevin in the foreseeable future. He opined that termination of Susan's parental rights would not cause Kevin more harm than good. In addition, he opined that separating Kevin from the Stones, or delaying termination to provide Susan additional time to effect changes in her life, would only serve to deprive Kevin of the security and stability that permanency would provide.
Susan testified that she was not prepared to have Kevin return to her because she remained unemployed and had not completed her drug counseling and parenting classes. However, Susan related that she had applied for Social Security and subsidized housing. She also testified that the children could live with her at Isaiah House, although there was no guarantee that they would be placed together in the same room.
Susan's testimony was sometimes contradictory. For example, Susan testified that she never missed visits with Kevin, but she conceded that her parenting time was almost suspended because she missed two consecutive visits. She denied that there was any domestic violence in her romantic relationships, but then conceded that Gretchen had punched her. In contrast to her earlier denials, Susan testified at trial that, on the day of the second removal, she saw Sam spank Kevin and told him that he should not spank Kevin because she had an "open DYFS case" and could "get in trouble."
Susan acknowledged that she used cocaine while pregnant with Keith and conceded that when Kevin was an infant she bought drugs with funds that she could have spent on her children. With respect to the recent drug test showing the use of oxycodone, Susan testified that a friend had given her a pill after she injured herself and that she did not know it was a narcotic substance. With regard to her marijuana use in May 2011, Susan explained that she had been "stressed out" because her children had just been removed and had been "having fun with the rest of [her family members]" at "a little get together." Susan nevertheless acknowledged that she understood that remaining substance free was a condition to her reunification with Kevin.
The judge conducted an in camera interview of Kevin, who was then nine years old. Kevin recalled jumping from his third-floor bedroom window because Sam kept "on beating [him] with a wire and a belt." He asserted that he was not afraid to be with his mother, but did not believe Susan was "ready yet" for him to return.
Kevin understood adoption to mean being taken "away from your real family" and becoming a member of another family. He felt that adoption would be good for him because he enjoyed living with his foster parents. However, Kevin testified that he also enjoyed seeing his mother, that he wished to see her more frequently, and that he would feel "sad" if he could not see her anymore.
On July 31, the judge entered a preliminary order terminating Susan's parental rights, which was further memorialized in a judgment dated August 9. The judge found that, although Susan and Kevin shared a close relationship, Kevin's need for permanency warranted termination of parental rights. Relying on Susan's inability to remedy the circumstances that had resulted in the two removals and on the expert testimony from Hiscox and Kirschner, the judge found, by clear and convincing evidence, that the Division had established the four prongs pursuant to N.J.S.A. 30:4C-15.1(a).
On September 13, the trial judge placed an oral decision containing more specific findings of fact and conclusions of law on the record. They were incorporated in an amended judgment, dated January 2, 2013. This appeal followed.
On appeal, Susan argues that the trial judge erred in finding that the Division established, by clear and convincing evidence, that she had endangered Kevin's health and development, that she is unable or unwilling to eliminate harm in the future, and that termination of her parental rights would not do more harm than good.
Before addressing the specific issues raised by Susan, we outline the general legal principles that govern our review of judgments terminating parental rights.
The scope of our review of a Family Part judge's factual findings is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007). Those findings may not be disturbed unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J.Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)) (internal quotation marks omitted); see also N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004). "A reviewing court should uphold the factual findings undergirding the trial court's decision if they are supported by 'adequate, substantial and credible evidence' on the record." M.M., supra, 189 N.J. at 279 (quoting In re Guardianship of J.T., 269 N.J.Super. 172, 188 (App. Div. 1993)).
As a general rule, we should also defer to the judge's credibility determinations. Ibid. Such deference is appropriate because the trial judge has a feel for the case and "the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008); see also M.M., supra, 189 N.J. at 293. In New Jersey Division of Youth & Family Services v. M.C. III, 201 N.J. 328, 343 (2010) (alteration in original), the Supreme Court reiterated the standard first used in Cesare v. Cesare, 154 N.J. 394, 413 (1998), recognizing that "'[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding.'"
We have held that, "'where the focus of the dispute is . . . alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom, ' the traditional scope of review is expanded." J.T., supra, 269 N.J.Super. at 188-89 (quoting C.B. Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J.Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989)); see also N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). Deference is appropriate even in that circumstance "unless the trial court's findings 'went so wide of the mark that a mistake must have been made.'" M.M., supra, 189 N.J. at 279 (quoting C.B. Snyder Realty, supra, 233 N.J.Super. at 69).
Nevertheless, the trial judge's legal conclusions, and the application of those conclusions to the facts, are subject to plenary review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). We need not defer to the trial court's legal conclusions reached from the established facts. See State v. Brown, 118 N.J. 595, 604 (1990). "If the trial court acts under a misconception of the applicable law, " we need not defer to its ruling. Ibid.
Parents have a constitutionally-protected right to enjoy a relationship with their children. N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 165-66 (2010); E.P., supra, 196 N.J. at 102; In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). Strict standards have consistently been imposed in the termination of parental rights. K.H.O., supra, 161 N.J. at 347. To balance these constitutional rights against potential harm to the child, when applying for guardianship, the Division must institute "a termination proceeding when such action would be in the best interest of the child." N.J. Div. of Youth & Family Servs. v. K.M., 136 N.J. 546, 557 (1994). The burden of proof is on the Division to establish its case by clear and convincing evidence. Ibid.; see also P.P., supra, 180 N.J. at 511 ("On appeal, a reviewing court must determine whether a trial court's decision in respect of termination of parental rights was based on clear and convincing evidence supported by the record before the court.").
The Supreme Court first articulated the best interests standard in New Jersey Division of Youth & Family Services v. A.W., 103 N.J. 591, 602-11 (1986). The Legislature subsequently amended Title Thirty in 1991 to conform with the Court's holding in A.W., codifying the standard at N.J.S.A. 30:4C-15.1(a). See L. 1991, c. 275, § 7. The statute provides that the Division must prove:
(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;
(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;
(3) The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and
(4) Termination of parental rights will not do more harm than good.
These four factors are not independent of each other; rather, they "are interrelated and overlapping[, ] . . . designed to identify and assess what may be necessary to promote and protect the best interests of the child." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J.Super. 81, 88 (App. Div. 2006) (citing K.H.O., supra, 161 N.J. at 348), certif. denied, 190 N.J. 257 (2007). Application of the test is "extremely fact sensitive, " requiring "particularized evidence that addresses the specific circumstances of the individual case." Ibid. (internal quotation marks omitted).
Under the first prong of the best interests standard, the Division must prove by clear and convincing evidence that "[t]he child's safety, health or development has been or will continue to be endangered by the parental relationship." N.J.S.A. 30:4C-15.1(a)(1). "The harm shown . . . must be one that threatens the child's health and will likely have continuing deleterious effects on the child." K.H.O., supra, 161 N.J. at 352. There are situations where "[t]he potential return of a child to a parent may be so injurious that it would bar such an alternative." A.W., supra, 103 N.J. at 605. Accordingly, the "absence of physical abuse or neglect is not conclusive"; indeed, serious emotional and developmental injury should be regarded as injury to the child. Ibid. (internal quotation marks omitted). Moreover, trial courts must consider the potential psychological damage that may result from reunification with a parent. Ibid. "[T]he psychological aspect of parenthood is more important in terms of the development of the child and its mental and emotional health than the coincidence of biological or natural parenthood." Sees v. Baber, 74 N.J. 201, 222 (1977); see also In re Guardianship of K.L.F., 129 N.J. 32, 44 (1992) ("Serious and lasting emotional or psychological harm to children as the result of the action or inaction of their biological parents can constitute injury sufficient to authorize the termination of parental rights.").
Under the second prong of the best interests standard, a trial court is required to determine whether it is "reasonably foreseeable that the parents can cease to inflict harm upon" their child. A.W., supra, 103 N.J. at 607. "No more and no less is required of them than that they will not place their children in substantial jeopardy to physical or mental health." Ibid. This prong may be satisfied "by indications of parental dereliction and irresponsibility, such as the parent's continued or recurrent drug abuse, the inability to provide a stable and protective home, [and] the withholding of parental attention and care, . . . with the resultant neglect and lack of nurture for the child." K.H.O., supra, 161 N.J. at 353. This harm includes "evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child." N.J.S.A. 30:4C-15.1(a)(2). The second prong focuses on parental unfitness and its proofs overlap with the proofs supporting the first prong. In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999).
Under the third prong of the best interests standard, the Division must make "reasonable efforts to provide services to help the parent correct the circumstances" that necessitated removal and placement of the child in foster care. N.J.S.A. 30:4C-15.1(a)(3); K.H.O., supra, 161 N.J. at 354. "Reasonable efforts" may include parental consultation, plans for reunification, services to further the goal of reunification, notice to the family of the child's progress, and facilitating visitation. N.J.S.A. 30:4C-15.1(c). Those efforts depend upon the facts and circumstances of each case. D.M.H., supra, 161 N.J. at 390. The services provided to meet the child's need for permanency and the parent's right to reunification must be "coordinated" and must have a "realistic potential" to succeed. N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J.Super. 245, 267 n.10 (App. Div. 2002) (quoting N.J.A.C. 10:133-1.3).
The third prong also requires that the court consider "alternatives to termination of parental rights." N.J.S.A. 30:4C-15.1(a)(3). Where a relative caregiver agrees to raise a child to adulthood, the court may award Kinship Legal Guardianship (KLG) to that relative pursuant to N.J.S.A. 3B:12A-6. N.J. Div. of Youth & Family Servs. v. S.V., 362 N.J.Super. 76, 87 (App. Div. 2003). However, this option is not appropriate where adoption is feasible and likely. Id. at 88; see also N.J. Div. of Youth & Family Servs. v. S.F., 392 N.J.Super. 201, 213 (App. Div.), certif. denied, 192 N.J. 293 (2007).
Under the last prong of the best interests standard, the question to be addressed is "whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with her natural parents than from the permanent disruption of her relationship with her foster parents." K.H.O., supra, 161 N.J. at 355. The overriding consideration under this prong is the child's need for permanency and stability. Id. at 357. "If a child can be returned to the parental home without endangering his health and safety, the parent's right to reunification takes precedence over the permanency plan." N.J. Div. of Youth & Family Servs. v. L.J.D., 428 N.J.Super. 451, 492 (App. Div. 2012). The mere existence of a bond with the foster parent does not alone justify the termination of parental rights. N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J.Super. 235, 263-64 (App. Div. 2005); see also K.L.F., supra, 129 N.J. at 44-45.
In meeting this prong, the Division should adduce testimony from a "well qualified expert who has had full opportunity to make a comprehensive, objective, and informed evaluation of the child's relationship" with the natural parents and foster parents. In re Guardianship of J.C., 129 N.J. 1, 19 (1992). "[T]ermination of parental rights likely will not do more harm than good" where a child has been exposed to continuing harm by the parent and, in contrast, "has bonded with foster parents who have provided a nurturing and safe home." E.P., supra, 196 N.J. at 108. "[T]he Division must show 'that separating the child from his or her foster parents would cause serious and enduring emotional or psychological harm.'" Ibid. (quoting J.C., supra, 129 N.J. at 19).
Having reviewed Susan's appellate contentions in light of the applicable law as set forth above, we conclude that they are without merit and affirm substantially for the reasons expressed by Judge Craig R. Harris in his comprehensive September 13, 2012 oral decision. We add only the following.
Susan argues that there was insufficient evidence that she caused harm to Kevin, contending that the actual harm was caused only by Sam. She also argues that there was insufficient evidence that she would cause harm in the future and that she was unwilling or unable to eliminate such harm. Those contentions find no support in the record.
Susan's appellate argument largely ignores the undoubted fact that Kevin's first removal in 2004 resulted from her drug use at the time of Keith's birth and her failure to participate in the residential drug program provided by the Division in the hope that removal of the children could be avoided. Kevin remained with the Stones until March 2006, due to Susan's initial inability to remedy the problems that led to the removal. Once Susan and Kevin were reunited, she appropriately looked to the Stones for assistance in caring for him and resolving problems. However, after Andrea Stone contacted the Division to report concerns about Kevin's care, Susan discontinued the relationship, depriving Kevin of the benefit of contact with the Stones and their concerns about his wellbeing.
Susan's assertion that Kevin's second removal was not based on anything that she did or did not do simply ignores the well-established fact that she and Sam were living together when Kevin found it necessary to jump out of a third-floor window to avoid another whipping. Although there was significant credible evidence in the record that Susan also used excessive corporal punishment, the judge's primary concern was Susan's failure to protect Kevin from the harm caused by the more significant mistreatment inflicted by his father.
It matters little whether Kevin was being severely mistreated by both parents or only by one parent while the other stood by, failed to intervene, and denied that any abuse had taken place. The detrimental effect of the mistreatment is well documented in the record, as is its relationship to the events that took place while Kevin was in Susan's care. The latter was clearly established by the expert testimony, which the trial judge found to be credible and supported by the record. As we have already observed, "[s]erious 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." K.L.F., supra, 129 N.J. at 44 (emphasis added).
As to the future, the record reflects that Susan has struggled since 2004 to resolve the drug problem and the other deficits that impaired her ability to parent Kevin. As of the time of trial in 2012, she had not yet succeeded. After an initial period of failure to participate in services, Susan achieved sufficient success to warrant Kevin's return to her home. However, Susan was unable to maintain and build on her success. Instead, the same problems reappeared, leading to the second removal. These problems still existed at the time of trial.
The basic issue in a case such as this is "whether the parent can cease causing the child harm before any delay in permanent placement becomes a harm in and of itself." N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J.Super. 418, 434 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002). As a result, in addition to examining a parent's ability to eliminate harm, the second best-interest factor assesses "the potential future harm caused by a 'delay of permanent placement.'" N.J. Div. of Youth & Family Servs. v. T.S., 417 N.J.Super. 228, 244 (App. Div. 2010) (quoting N.J.S.A. 30:4C-15.1(a)(2)), certif. denied sub nom. N.J. Dep't of Children & Family v. K.G., 205 N.J. 519 (2011).
The expert testimony at trial supported the judge's finding that Kevin would be harmed in the future if he were to be reunited with Susan a second time, that Susan was unlikely to be able to parent Kevin in the foreseeable future, and that there was a need for Kevin to achieve permanency. That testimony, which the trial judge found to be credible, was well supported in the record.
Finally, Susan challenges the trial judge's finding that termination of her parental rights would not do Kevin more harm than good. Unlike many termination cases, this case involves a child who has a bond with his mother, the breaking of which would cause him some harm. However, that is not the central issue for the fourth prong. The issue is whether breaking that bond would cause more harm than breaking his undisputed bond with the Stones. E.P., supra, 196 N.J. at 108.
The trial judge had the benefit of expert testimony from two "well qualified expert[s] who [have] had full opportunity to make a comprehensive, objective, and informed evaluation of the child's relationship" with Susan and the Stones. J.C., supra, 129 N.J. at 19. Both Hiscox and Kirschner acknowledged that harm would result to Kevin if his bond with Susan were to be terminated, but both opined that the resulting harm would not be greater than the harm caused by terminating his bond with the Stones. Both experts also testified that Kevin required permanency and that he would be harmed by further delay. The experts' testimony in that regard was found credible by the trial judge and was well supported in the record.
In summary, we conclude that the Division satisfied all four prongs of the best interests standard, as codified in N.J.S.A. 30:4C-15.1(a), by clear and convincing evidence.