DIVISION OF YOUTH AND FAMILY SERVICES v. L.B.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4438-05T44438-05T4

DIVISION OF YOUTH AND FAMILY

SERVICES,

Plaintiff-Respondent,

vs.

L.B.,

Defendant-Appellant,

IN THE MATTER OF THE

GUARDIANSHIP OF

A.A.B. and T.A.M., minors.

______________________________________________________________

 

Submitted November 1, 2006- Decided December 22, 2006

Before Judges Stern and Messano.

On appeal from the Superior Court of New Jersey, Chancery Division-Family Part, Cape May County, Docket No. FG-05-09-05.

Yvonne Smith Segars, Public Defender, attorney for appellant (Richard Sparaco, Designated Counsel, on the brief).

Stuart Rabner, Attorney General, attorney for respondent (Michael J. Haas, Assistant Attorney General, of counsel; Cynthia A. Phillips, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian for minors, A.A.B. and T.A.M. (Janet L. Fayter, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant, L.B., appeals the trial court's order terminating her parental rights to two of her children, A.A.B. and T.A.M. She raises three points in this appeal.

POINT I

THE DECISION TO TERMINATE HER PARENTAL RIGHTS WAS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE.

POINT II

TERMINATION OF HER PARENTAL RIGHTS AS TO T.A.M. WAS BASED SOLELY UPON CONSIDERATION OF ISSUES REGARDING HIS SIBLING AND SHOULD BE REVERSED.

POINT III

TERMINATION OF HER PARENTAL RIGHTS UNDER THE CIRCUMSTANCES OF THIS CASE, WITHOUT A FAIR AND ADEQUATE CONSIDERATION OF LESS SEVERE RELIEF, WAS PUNITIVE AND UNREASONABLE.

After careful consideration of the record and appropriate legal standards, we affirm.

L.B. is the biological mother of A.A.B., born April 4, 1996 and T.A.M., born August 31, 2004. J.M is the biological father of A.A.B. and L.B. named him as the father of T.A.M.; however, he never acknowledged paternity. She has three other children, M.O.U., born March 18, 1998, T.T.N.M., born August 7, 1999, and C.D.J.B., born January 2, 2002. J.M. is the biological father of T.T.N.M. The Division of Youth and Family Services (D.Y.F.S.) first became aware of defendant in May 1999 when it received a referral indicating that L.B., in the midst of a high-risk pregnancy, had missed seven pre-natal medical appointments and was having difficulty caring for her children. Although the investigation of the home found "M.O.U. had smelly diapers," "M.O.U and A.A.B. appeared to be hungry all the time," and L.B. relied on family to provide her with assistance, D.Y.F.S. determined that there was no need to provide services. On August 10, Shore Memorial Hospital in Somers Point notified D.Y.F.S. that L.B. had given birth; hospital staff expressed concern that L.B. would be unable to care for another child.

On January 8, 2003, D.Y.F.S. received another referral that L.B. was punching, biting and kicking her children especially A.A.B. Staff interviewed A.A.B. at school and he told them that his mother, his maternal grandmother and grandfather (J.W. and S.B.) all hit him with a belt, but he could not recall the last time it occurred. Although all three adults denied this, they all admitted that they had used some form of physical discipline on the children. D.Y.F.S. provided counseling at the time, but no further official action was taken.

On March 20, the Wildwood Police Department responded when L.B. stabbed J.M. with a knife in the presence of T.T.N.M., C.D.J.B, and M.O.U. At the time, A.A.B. was residing with his aunt. Further investigation revealed the incident occurred when L.B. overheard J.M on the telephone speaking to another woman, became angry, grabbed a kitchen knife, and cut J.M. on his hand as he attempted to take the knife away. The police arrested L.B. and notified D.Y.F.S. who removed the children to the care of J.W.

Following L.B.'s release from jail, D.Y.F.S. provided her with individual counseling services, though she failed to attend the intake appointment on two occasions. On May 15, D.Y.F.S. filed a verified complaint and order to show cause for protective services with custody of A.A.B., M.O.U., T.T.N.M. and C.D.J.B. pursuant to N.J.S.A. 9:6-8.21, and N.J.S.A. 30:4C-12; Judge Connor granted the application and ordered L.B. and J.M to have no contact with the children except during supervised visitation at D.Y.F.S.'s office.

On June 4, the court continued the children in the custody, care and supervision of D.Y.F.S. and further ordered that L.B. have approved supervised visitations and participate in a substance abuse evaluation, domestic violence/anger management counseling and parenting skills training. On July 16, defendant and J.M. failed to appear in court for a fact-finding hearing; the trial judge entered civil judgments of abuse and neglect, continued the children in the legal custody of D.Y.F.S., but ordered their physical placement with J.W. and S.B.

Over the next several months, D.Y.F.S. had difficulty verifying L.B.'s residence. On repeated visits, the grandparents denied L.B.'s presence in the house despite several reports to D.Y.F.S. that she was, in fact, living there. L.B. failed to appear at a permanency hearing on September 11 at which time the trial judge found it would be unsafe to return the children to either L.B. or J.M. and D.Y.F.S.'s plan of kinship legal guardianship with the maternal grandparents was appropriate and acceptable. During this time, L.B. failed to arrange for any supervised visitation with the children through D.Y.F.S.

On February 5, 2004, M.O.U. complained to his teacher that his mother hit him in the eye that morning and slapped him in the face to wake him up. The school nurse and a D.Y.F.S. worker observed a small mark below the right eyebrow, but found no other marks on the child. T.T.N.M. also verified that L.B. was residing with the children in her parents' home. Having substantiated abuse by J.W. and S.B. for permitting L.B. to reside in the home, and abuse by L.B. for hitting M.O.U. in the face, D.Y.F.S. removed all the children from J.W. and S.B.'s home and placed them with a resource family. D.Y.F.S. again referred L.B. for individual counseling, anger management and parenting classes. She attended only one of the pre-arranged appointments and the program discharged her for failure to appear.

J.W. then filed a formal complaint seeking custody of the children. After a plenary hearing, the judge found that J.W. and S.B. had allowed L.B. to have contact with the children in violation of the court order and further that J.W. had lied about that during her testimony at the hearing. Nonetheless, since the grandparents continued to be a possible viable placement resource for the children, the court ordered J.W. and S.B. to undergo psychological and family bonding assessments.

On May 22, L.B. was incarcerated for failing to report to her probation officer and failing to follow Division directives. While in jail, L.B. disclosed to her D.Y.F.S. caseworker that she was once again pregnant, and that it was again a high-risk pregnancy. D.Y.F.S. also learned that L.B. suffered from a very serious medical condition known as anti-K that significantly jeopardized the life of her expected child. After her release from jail on June 25, D.Y.F.S. again had difficulty learning where L.B. was living. She failed to attend scheduled appointments at the prenatal clinic and was briefly jailed again for failing to report to her probation officer. On August 31, the hospital notified D.Y.F.S. that L.B. had given birth to T.A.M. He was discharged from the hospital on September 8, placed in a resource family home, and has resided there ever since.

D.Y.F.S. filed a guardianship complaint on February 9, 2005. On March 17, L.B. was again incarcerated for another violation of her probation. Upon her guilty plea to the violation, the judge vacated her original sentence and resentenced L.B. to three years imprisonment in State Prison. She was released sometime in late 2005.

On February 16, 2006, the termination trial commenced before Judge Connor. D.Y.F.S.'s first witness was Linda Jeffrey, Ph.D., who, pursuant to court order, had evaluated L.B., as well as J.W. and S.B. for possible placement of A.A.B., and conducted bonding evaluations with the children. During Jeffrey's evaluation, L.B. revealed that her longest period of employment had been for four months and her major source of income was from her parents and public assistance. Significantly, L.B. did not believe she had any weaknesses as a parent. Several psychological tests revealed that L.B. read at an eighth grade level and had an IQ of 75, in the below average range of mental ability. Jeffrey concluded that L.B. has a Global Assessment of Functioning Score of 50 reflecting a serious impairment of social functioning.

Jeffrey opined that L.B. had significant problems with anger, which she sometimes expressed outwardly, harming people or property, as reflected in her conviction for possession of a weapon for an unlawful purpose, and on other occasions she suppressed excessively. This would likely cause relationship problems because her violent or aggressive behavior could lead to intermittent explosive outbursts. Jeffrey diagnosed L.B with a personality disorder with compulsive, paranoid and schizoid features. Finally, Jeffrey concluded that L.B.'s problems with anger and her difficulties functioning socially significantly impaired her ability to parent. Her mental health problems significantly decreased her parenting capacity, and her vulnerability to explosive outburst placed her children at high risk. Jeffrey recommended the children not be returned to L.B.

Jeffrey also conducted a bonding evaluation with L.B., T.A.M. and A.A.B. She concluded that T.A.M. did not display any attachment to L.B.; in short, L.B. was not his psychological mother. While A.A.B. recognized L.B. as his mother, wished to please her, and seemed happy to see her, he displayed an insecure attachment to her and did not appear to base his sense of personal security in her. Likewise, L.B. could not establish any parenting authority with the children, and was not attuned to them. She did not converse with A.A.B. about his current activities nor did she provide guidance or encouragement to him.

Jeffrey conducted a bonding evaluation between T.A.M. and his foster parent, and concluded that T.A.M. had made an excellent adjustment to the foster home, was happy and was thriving with the foster mother. She recommended that T.A.M remain in the care of the foster mother permanently.

In order to consider alternative placement options, Jeffrey evaluated J.W. and S.B. She concluded that both displayed serious parenting deficiencies and a profound lack of personal insight, concluding that unless J.W. and S.B. cooperated with and engaged in a process of therapeutic change, A.A.B. should not be placed with them.

Pat Carter-Sage, a licensed professional counselor with a specialty in the area of adoption therapy who conducted in-home therapy with A.A.B. and his grandparents, testified as to his possible placement with them. She originally concluded that despite significant problems, D.Y.F.S. should place A.A.B. with J.W. and S.B. on a temporary/trial basis and provide additional intensive home therapy. If things did not progress, then the case plan for A.A.B. should change to select home adoption. Carter-Sage testified that the proposed trial period never came to fruition because J.W. and S.B. refused to acknowledge they previously permitted L.B. to have contact with the children in violation of the court's order. Ultimately, she determined that it was not in A.A.B.'s best interest to be placed in his grandparents' home.

Lisa Moretti, defendant's caseworker, testified that L.B.'s compliance with D.Y.F.S. service recommendations was "very minimal." She noted that L.B. attended a few parenting classes, one session of anger management counseling, and failed to attend a psychological evaluation. Moretti indicated that L.B. lacked stable housing, was in and out of jail, and did not have any employment. Whatever supervised visitation occurred resulted in chaotic sessions where none of the adults, L.B., J.W., or S.B., was able to curb the disruptive behavior of the children.

On behalf of L.B., J.W. testified she had not been truthful at the previous plenary hearing regarding L.B.'s presence in her home. Despite the fact that the children had reported that L.B. had been residing in the home, J.W. insisted that L.B. had been in the home on just one occasion and she blamed her attorney for encouraging her to testify as she did at the earlier hearing. She did not believe she or S.B. had any parenting deficiencies or problems.

The trial judge admitted into evidence at L.B.'s request the report of Dr. David F. Bogacki, Ph.D., who conducted psychological and bonding evaluations. Consistent with Jeffrey's conclusions, Bogacki opined that L.B. was narcissistic, had schizoid personality traits, a learning disorder, and borderline intellectual functioning. He found T.A.M. evidenced no emotional attachment to L.B. Bogacki noted that A.A.B. gave L.B. a "warm physical greeting and maintained constant conversation and eye contact with her." However, A.A.B. did not ask L.B. to meet any of his psychological or physical needs and his interaction with L.B. was a "somewhat aggressive" as he attempted to engage in arm wrestling with her. Like Jeffrey, Bogacki described the emotional attachment between mother and child as "insecure."

Bogacki opined that A.A.B. would suffer some degree of emotional harm if the court terminated L.B.'s parental rights, although he acknowledged that she lacked stable housing, and she would require more parenting skills before she could provide a safe home for A.A.B. Bogacki echoed Jeffrey's conclusion that T.A.M.'s relationship with his foster mother demonstrated a secure emotional attachment and that T.A.M. would suffer enduring emotional harm if the relationship was severed.

In a comprehensive oral opinion, Judge Connor concluded that D.Y.F.S. had proven by clear and convincing evidence the required standards for the termination of L.B.'s and J.M.'s parental rights as to both A.A.B. and T.A.M. Those standards are:

(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 diligent 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.

[N.J.S.A. 30:4C-15.1(a).]

As to the first and second standard, relying in large part upon Jeffrey's testimony, he concluded that D.Y.F.S.'s evidence was "essentially uncontroverted." Noting the criminal backgrounds of both L.B. and J.M., as well as the "serious and continuing mental health issues" of both parents, he determined that the parental relationship continued to endanger the children.

As to the second standard, the judge also noted that A.A.B. had been out of the home for nearly three years, and that T.A.M. had never been in L.B.'s home; yet, as expressed by the trial judge, "these parents have never bestirred themselves to do a darn thing about it." L.B.'s failure to address her "issues" and her continued lack of employment led him to conclude that she was "[un]able or [un]willing to provide a safe and stable home for either of the children." Specifically, as to T.A.M., Judge Connor noted that his separation from his foster parent would cause "serious and enduring emotional and psychological harm to the child."

As to standard three, the judge accepted the testimony of Moretti regarding the many fruitless efforts made to provide L.B. with counseling and parenting classes. In addition, he considered all of the efforts D.Y.F.S. made, particularly with respect to the grandparents, J.W. and S.B., to find alternative placements for A.A.B.

As to the fourth standard, the judge concluded that there was no likely harm to T.A.M. caused by the severing of parental rights since he had never established any relationship with L.B. As to A.A.B., relying on Jeffrey's testimony, the judge concluded that the child's bond with L.B. was "insecure," and while this might cause some harm, "[i]t would not be at a level . . . as being serious and enduring . . . ." Further, he found that whatever harm was caused by terminating L.B.'s parental rights, it could be addressed through counseling provided to A.A.B. He reasoned,

[T]aking into account the longstanding lack of application by both parents to the task at hand, . . . a recovery from a mental health and/or drug and alcohol perspective that would allow them to parent responsibly, I am clearly convinced and I find by clear and convincing evidence that termination will not do more harm than good for either one of these children.

On March 16, 2006, Judge Connor entered an order granting the Division guardianship over both children. This appeal ensued.

We commence our consideration of defendant's contentions by noting the standard of review we apply to the factual findings and conclusions of the trial judge. We are "obliged to accord deference to the trial court's credibility determination and the judge's 'feel of the case' based upon his or her opportunity to see and hear the witnesses." Div. of Youth and Family Servs. v. R.L., 388 N.J. Super. 81, 88 (2006) (quoting Cesare v. Cesare, 154 N.J. 394, 411-13, (1998)). Further, we will not disturb the judge's findings of fact unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Cesare, supra, at 412 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). "The conclusions that logically flow from those findings of fact are, likewise, entitled to deferential consideration upon appellate review." R.L., supra, 388 N.J. Super. at 89. However, we apply no such deference to the trial court's legal conclusions. "A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Ibid. (quoting Manalapan Realty v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

In Div. of Youth and Family Servs. v. A.W., 103 N.J. 591, 599 (1986), the Supreme Court discussed the singularly, significant burden placed upon a court trying to decide whether to terminate parental rights.

Termination of parental rights presents the legal system with an almost insoluble dilemma. On the one hand, we emphasize the inviolability of the family unit, noting that "[t]he rights to conceive and to raise one's children have been deemed 'essential,' . . . 'basic civil rights of man,' . . . and '[r]ights far more precious . . . than property rights' . . . ." Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212, 31 L. Ed. 2d 551, 558 (1972) (citations omitted). The interests of parents in this relationship have thus been deemed fundamental and are constitutionally protected. On the other hand, it has been recognized "that a state is not without constitutional control over parental discretion in dealing with children when their physical or mental health is jeopardized." Parham v. J.R., 442 U.S. 584, 603, 99 S. Ct. 2493, 2504, 61 L. Ed. 2d 101, 119 (1979); Wisconsin v. Yoder, 406 U.S. 205, 230, 92 S. Ct. 1526, 1540, 32 L. Ed. 2d 15, 33 (1972).

Ultimately, however, the parents' interests must yield when "the child's best interest will be substantially prejudiced" if parental rights are not terminated. Id. at 603 (quoting In Re Guardianship of Cope, 106 N.J. Super. 336, 341 (App. Div. 1969)).

The statutory standards, or prongs, contained in N.J.S.A. 30:4C-15.1(a), inform the court's decision as to what is in the child's best interest. See In Re K.H.O., 161 N.J. 337, 348 (1999). D.Y.F.S. must prove each of the statutory prongs by clear and convincing evidence before the court can terminate parental rights. Ibid. "The four criteria enumerated in the best interests standard are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." Ibid. Ultimately, in parental rights termination cases, "parental fitness is the key to determining the best interests of the child." In Re Guardianship of J.N.H., 172 N.J. 440, 471 (2002) (quoting In re Guardianship of B.L.A., 332 N.J.Super. 392, 402 (Ch.Div. 2000).

With these general principles in mind, we turn to the arguments raised by defendant in this appeal. She argues that D.Y.F.S. failed to meet its burden with respect to all four statutory standards. As to prong one, she argues that the two children were never in any danger and that whatever physical discipline was visited upon them, it did not expose them to the risk of death, serious bodily injury, or the protracted impairment of a bodily function. See N.J.S.A. 9:6-8.21 (defining "abused or neglected child"). However, prong one's focus is not upon a particular parental act, but rather upon the harm to the child's health and development caused by the entire parental relationship.

[T]he best interests standard does not concentrate on a single or isolated harm or past harm as such. Although a particularly egregious single harm can trigger the standard, the focus is on the effect of harms arising from the parent-child relationship over time on the child's health and development.

[K.H.O., supra, 161 N.J. at 348.]

Here, as both D.Y.F.S. and the children's law guardian argue and as the trial judge found, L.B. had extensive anger management problems and social functioning difficulties that significantly impaired her ability to parent. Her anger problems resulted in her criminal conviction arising out of the stabbing of the children's father as witnessed by several of the children themselves. Her incarceration and repeated absences from the children were the result of her violation of probation, violation of D.Y.F.S.'s directives, and orders of the court. She failed to provide for a safe and stable home for the children, or to provide for their basic necessities through gainful employment.

Defendant's conduct and her inability to address her myriad of problems led to A.A.B. being in and out of home placement for the past three years. As to T.A.M., L.B. has never established any relationship with him. The trial court found that the effect upon A.A.B. was significant in that he now has special educational and behavioral needs and evidenced behavioral issues centering on anger and abandonment. With respect to T.A.M., the trial court focused upon the likelihood of continued endangerment because of L.B.'s failure to participate in D.Y.F.S.'s efforts to provide services to her.

We conclude that the trial judge did not err in determining D.Y.F.S. had proven by clear and convincing evidence that the children's safety, health, and development would continue to be endangered by the parental relationship with L.B.

Defendant argues that D.Y.F.S. failed to prove the second prong because it failed to demonstrate that she "does not have the ability to change her prior situation." The second prong

[I]s aimed at determining whether the parent has cured and overcome the initial harm that endangered the health, safety, or welfare of the child, and is able to continue a parental relationship without recurrent harm to the child. Alternatively, under this second criterion, it may be shown that the parent is unable to provide a safe and stable home for the child and that the delay in securing permanency continues or adds to the child's harm.

[K.H.O.,supra, 161 N.J. at 348-49.]

To satisfy the second prong D.Y.F.S. must show that "the harm is likely to continue because the parent is unable or unwilling to overcome or remove the harm." Id. at 348-349, 352. Further, "if there is clear and convincing evidence that the child will suffer substantially from a lack of stability and a permanent placement and from the disruption of [his] bond with foster parents, this will satisfy N.J.S.A. 30:4C-15.19(a)(2)." Id. at 363.

The judge found that defendant had failed to take any steps to address her significant mental health issues and anger management problems. He also concluded that T.A.M. displayed features of secure attachment to his foster mother and would suffer substantially if separated from her. We conclude he did not err in finding the Division had met its burden of proof as to the second prong of the test.

The third prong "contemplates efforts that focus on reunification of the parent with the child and assistance to the parent to correct and overcome those circumstances that necessitated the placement of the child into foster care." K.H.O., supra, at 354. Such diligent or reasonable efforts at reunification include:

(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).]

The trial judge extensively detailed the efforts D.Y.F.S. made to assist L.B. and the entire family. This evidence was essentially uncontroverted. We conclude that he appropriately considered the proofs on this issue.

Lastly, as to prong four, the question is whether, "after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with [his] natural parents than from the permanent disruption of [his] relationship with the foster parents." K.H.O., supra, 161 N.J. at 355; see also In re Guardianship of D.M.H., 161 N.J. 365, 384 (1999). As to T.A.M., the trial judge found that because no bond existed between him and L.B., no harm would result; conversely, because of the strong bond he had formed with his foster mother, significant harm would occur if that was severed. With respect to A.A.B., the court held that if there was any bond with L.B. it was an "insecure" bond, and, while its severance might result in some harm, it would addressed by counseling services and was not as significant as the enduring emotional harm if there was reunification. The trial court did not err in finding D.Y.F.S. had met its burden of proof as to prong four.

Defendant next argues that the termination of her rights as to T.A.M. was erroneous because the judge relied upon the proofs as to T.A.M.'s siblings and D.Y.F.S. failed to demonstrate independently the requisite proofs to sustain termination as to T.A.M. She relies upon Div. of Youth and Family Servs. v. Robert M., 347 N.J. Super. 44 (App. Div.) certif. denied, 174 N.J. 39 (2002). We reject this argument.

Our holding in Robert M., supra, actually supports the position of D.Y.F.S. and the law guardian. While abuse and neglect of one child in the family may be evidence as to abuse and neglect of a sibling, N.J.S.A. 9:6-8.46, D.Y.F.S. must still establish by clear and convincing evidence the four prongs set forth in N.J.S.A. 30:4C-15.1(a). Nevertheless, as we noted in Robert M., "A child's exposure to a parent's physical abuse of a child may well be abusive to others by instilling either fear or a tolerance to violence in intra-family relationships." 347 N.J. Super. at 45. And, as we noted in J.& E. v. M.& F., 157 N.J.Super. 478, 493 (App.Div.), certif. denied, 77 N.J. 490 (1978),

Predictions as to probable future conduct can only be based upon past performance. . . . Evidence of parents' fitness or unfitness can be gleaned not only [from] their past treatment of the child in question but also from the quality of care given to other children in their custody.

Here, however, as the law guardian notes, the trial judge did not rely solely on findings made as to T.A.M.'s siblings, but rather found that T.A.M. himself was subject to continued harm by the parental relationship. T.A.M. was the product of a high-risk pregnancy during which L.B. failed to keep her pre-natal care appointments. Her serious medical condition put the child at risk even before birth. In addition, all of the failures on the part of L.B. to avail herself of services contributed to the court's independent findings as to T.A.M.

Lastly, defendant argues that a fair alternative to the termination of her parental rights would have been to delay the determination of the issue and continue with the process of placing the children with the grandparents. Defendant argues that D.Y.F.S.'s failure to do so was so severe and irreversible that the judgment of the trial court should be reversed. Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); In re Adoption by J.C.W., 175 N.J. Super. 420 (App. Div. 1980).

We view this as essentially a rehashing of defendant's argument regarding the third prong and D.Y.F.S.'s alleged inadequacies in that regard. The trial court considered all placement alternatives in sufficient detail. Defendant's argument in this regard is without sufficient merit to warrant any further discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

 

Though several paternity tests were scheduled at his request, J.M. failed to appear. Default judgment was entered against him by the trial judge based on his failure to appear, and he is not a party this appeal.

On February 20, 2004, L.B. was sentenced to three years of probation, ordered to attend anger management counseling and comply with D.Y.F.S.'s requests on her guilty plea to N.J.S.A. 2C:39-4d, possession of a weapon for an unlawful purpose, for the March 2003 incident with J.M.

D.Y.F.S. moved to amend its complaint to add T.A.M. and on September 2, the court entered an order permitting the amendment and approving the continued concurrent plan for reunification with the grandparents or termination of parental rights.

Although the original complaint sought guardianship over all five of L.B.'s children, D.Y.F.S. dismissed the action as to three children and trial proceeded as to only A.A.B. and T.A.M.; we are advised alternative custodial arrangements have been made with respect to the other three children. L.B. failed to return to court after the morning session of the first day of trial and failed to appear for the second day of trial entirely; default was entered. She reappeared on the third and final day of trial and default was vacated.

(continued)

(continued)

24

A-4438-05T4

RECORD IMPOUNDED

December 22, 2006