NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. I.M.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6254-04T46254-04T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

I.M.,

Defendant-Appellant,

and

E.C.,

Defendant,

IN THE MATTER OF THE

GUARDIANSHIP OF J.M.,

A Minor.

 

Submitted: January 25, 2006 - Decided February 28, 2006

Before Judges Stern and Fall.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket Number FG-16-06-05.

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

Nancy Kaplen, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Eva M. Serruto, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian for the minor J.M. (Olivia Belfatto Crisp, Assistant Deputy Public Defender, on the brief).

PER CURIAM

In this guardianship matter, I.M. appeals from a judgment entered in the Family Part on June 27, 2005, terminating her parental rights to her son J.M., and placing J.M. in the care and guardianship of the New Jersey Division of Youth and Family Services (DYFS or Division) for all purposes including placement for adoption. The following factual and procedural history is relevant to our consideration of the arguments advanced on appeal.

I.M. gave birth to J.M. on March 5, 2003 in Barnert Hospital in Paterson. E.C., I.M.'s paramour, is the natural father of J.M. I.M. and E.C. have a long history of involvement with DYFS, and their parental rights have been terminated as to their four other children. I.M. and E.C. voluntarily surrendered their parental rights to their daughters K.C. (born on December 26, 1994), V.C. (born on July 31, 1996) and C.M. (born on April 8, 1998) after a guardianship complaint was filed against them on or about November 9, 1998, and those children have been adopted by their foster parents. On November 28, 2000, their parental rights were involuntarily terminated to their son, E.J.C. (born on June 24, 1999), and E.J.C. has also been adopted by his foster parents.

DYFS became involved with the family on June 7, 1988, when it received a referral that I.M. had abandoned her oldest child A.V. (born on June 30, 1984). A.V. was subsequently sent to Puerto Rico to reside with his father, and the case was closed. On August 28, 1991, DYFS received a referral from a social worker at St. Joseph's Hospital in Paterson, who reported that I.M. had given birth to her son J.N. on August 24, 1991, and that the child had been exposed prenatally to drugs and was experiencing respiratory problems. An investigation determined that I.M. had used drugs until her eighth month of pregnancy, and had been negatively terminated from an inpatient drug rehabilitation program.

DYFS provided services for I.M. after J.N.'s release from the hospital, including drug treatment and foster care for J.N. during the period of I.M.'s inpatient treatment. However, I.M.'s drug and alcohol abuse continued. DYFS received a referral from a social worker at Paterson Counseling Center on August 17, 1994, reporting that I.M. had physically abused J.N., who appeared not to have been properly fed. DYFS provided services, and the case was closed.

On April 10, 1995, the case was re-opened when DYFS received a referral that E.C. had threatened to kill the children, and that there was domestic violence in the household; a DYFS investigation determined that the allegations were unfounded. Similar referrals were received by DYFS in May 1995. During an investigation, I.M. admitted to abusing J.N., and bruises were found on the child's body. The child K.C. also had a bruise on her temple that I.M. attributed to a fall. Two cases of beer were found in the residence. On May 22, 1995, I.M. signed a Foster Home Placement Agreement, and J.N. and K.C. were placed in foster care, as relative placement was not available.

Reasonable efforts designed to reunify the family were unsuccessful. On July 1, 1996, I.M. gave birth to V.C., who was discharged to I.M.'s care. However, on August 12, 1996, DYFS received a referral from the Paterson Police Department stating that E.C. had beaten I.M. DYFS continued to provide services. On January 25, 1997, DYFS received a referral from the Paterson Police Department. Officers responding to I.M.'s apartment on reports of a baby crying found V.C. alone in the apartment and crying in the middle of the night. DYFS effected an emergency removal of V.C. from I.M.'s care, and I.M. was arrested and criminally charged with endangering the welfare of V.C. A Title 9 child abuse and neglect complaint was filed against I.M. and E.C. on January 27, 1997, docket number FN-16-61-97, and the Family Part granted DYFS custody of K.C. and V.C.

Efforts by the Division to effect a reunification plan were unsuccessful after I.M. and E.C. failed to follow through with various treatment referrals and court orders, including failure to submit to random drug screenings and psychological evaluations. On April 8, 1998, I.M. gave birth to C.M., who was born with holoprosencephaly, a congenital defect causing a deficiency in the forebrain. After a course of medical treatment, C.M. was placed in a Special Home Service Provider foster home.

A guardianship complaint under docket number FG-16-25-99 was filed by DYFS against I.M. and E.C. on or about November 9, 1998, seeking termination of their parental rights as to K.C., V.C. and C.M. On June 24, 1999, I.M. gave birth to her son E.J.C. at Barnert Hospital, and he was released into I.M.'s care on June 26, 1999, directly from the hospital. E.C. is the natural father of E.J.C. However, on or about June 29, 1999, DYFS filed an amended guardianship complaint, also seeking termination of the parental rights of I.M. and E.C. as to E.J.C. On June 29, 1999, DYFS also filed a Title 9 child abuse and neglect complaint against I.M. and E.C. under docket number FN-16-24-00, seeking custody of E.J.C. An order entered on that date vested custody of E.J.C. with DYFS.

The parental rights of I.M. and E.C. were terminated with respect to their children K.C., V.C. and C.M. by order issued by the Family Part on February 10, 2000, after their surrender of their parental rights with respect to those children. The guardianship case continued with respect to E.J.C. After a hearing held on December 20, 2000, an order of guardianship was issued on January 16, 2001, terminating their parental rights as to E.J.C.

J.M. was born on March 5, 2003. On September 20, 2003, DYFS received a referral that I.M. had been in a restaurant for two hours consuming alcohol and had J.M. with her, the child being inappropriately dressed considering the weather conditions. I.M. was taken home, where it was discovered she had no crib for the child, whereupon she and the child were taken to the home of relatives. I.M. agreed to attend Options for substance abuse treatment. A Title 9 complaint filed by DYFS seeking supervision of the family was dismissed by the court. DYFS closed its file on December 18, 2003. I.M. and J.M. were then residing at Eva's Family Shelter.

On January 7, 2004, DYFS was notified by Eva's Shelter that on January 4, 2004, I.M. had returned to the facility under the influence of alcohol. I.M.'s urine sample had tested positive for cocaine the week before this incident. When asked to give a urine sample on January 7, I.M. became enraged, attacked a shelter worker, and had to be removed by the police; she was then discharged from Eva's Shelter. On January 7, 2004, DYFS effected an emergent removal of J.M. from I.M.'s care pursuant to N.J.S.A. 9:6-8.29 to -30, and placed the child in an approved foster home, where he has resided since that time.

On January 8, 2004, DYFS filed a Title 9 child abuse and neglect complaint in the Family Part against I.M. and E.C. under docket number FN-16-111-04, seeking custody of J.M. An order was entered on that date vesting temporary custody of J.M. with DYFS, and scheduled a hearing for January 22, 2004.

I.M. failed to attend a supervised visitation session with J.M. scheduled for January 12, 2004. DYFS determined that I.M. had not seen her drug counselor at the Options program since December 30, 2003, and that she had tested positive for an illegal substance on January 21, 2004. On January 24, 2004, the Family Part issued an order based on the January 22 court hearing, continuing custody of J.M. with DYFS and continuing the hearing to January 28, 2004. At that continued hearing, neither I.M. nor E.C. appeared. The court took testimony from the shelter worker who had been attacked by I.M. The court issued an order continuing custody of J.M. with DYFS; directing a psychological evaluation of I.M.; requiring I.M. to submit to a substance abuse evaluation; and continuing the supervised visitation sessions.

On February 23, 2004, the court entered an order continuing custody of J.M. with DYFS, and permitting the foster parents to take J.M. with them on a planned vacation to Florida. Upon informing I.M. of the vacation, she visited the offices of DYFS and verbally attacked and threatened DYFS workers.

A contact letter from DYFS to M.T., the maternal grandmother, dated March 8, 2004, confirmed that she would not be able to care for J.M. The letter informed M.T. that DYFS might move for termination of parental rights if J.M. remained in foster for more than six months. A letter of that same date was directed to E.C., who was apparently living in the Bronx, New York, informing him of J.M.'s status and requesting he contact DYFS. In response, E.C. telephoned DYFS and denied knowing I.M.

On March 11, 2004, DYFS learned that I.M. had returned to the Options program on March 10, 2004. However, a urine sample taken from I.M. on March 12, 2004, tested positive for cocaine.

I.M. failed to appear in the Family Part for a scheduled review on March 15, 2004. The court issued an order continuing custody of J.M. with DYFS, directing I.M. engage in substance abuse counseling, and continuing the supervised visitation sessions. In a separate order entered on that date, the court relieved DYFS of its statutory obligation to exert reasonable efforts to reunify the family, based upon the prior termination of I.M.'s parental rights to her other children.

On March 19, 2004, I.M. failed to appear for a scheduled supervised visitation session. On March 23, 2004, DYFS learned that I.M. had not attended the Options outpatient program since March 12, 2004. On March 26, 2004, I.M. failed to attend another scheduled supervised visitation session. However, on April 8, 2004, I.M. attended a supervised session with J.M.

A fact-finding hearing was conducted by the court on April 19, 2004. I.M. failed to appear. The court issued an order on that date notwithstanding its March 15, 2004 order finding that DYFS had exercised reasonable efforts to prevent placement, but they had been unsuccessful, and determining that I.M. had subjected J.M. to abuse or neglect. The order scheduled a review hearing for July 19, 2004. A permanency order entered on April 19, 2004, approved the DYFS permanency plan of termination of parental rights and foster parent adoption, and DYFS was directed to file a guardianship complaint. A third order issued on that date continued custody of J.M. with DYFS and directed that the supervised visitation sessions continue.

Two attempts in May 2004 to meet with I.M. concerning her attending a drug treatment program were unsuccessful when she failed to attend scheduled meetings in the offices of DYFS.

On or about July 9, 2004, DYFS filed a verified complaint against I.M. and E.C., seeking the termination of their parental rights as to J.M. I.M. failed to attend a scheduled supervised visitation session with J.M. on August 10, 2004.

On October 12, 2004, I.M. was admitted into the Alpha II Straight and Narrow, Inc. substance abuse treatment program. A report issued to the court by Straight and Narrow dated January 18, 2005, stated that she had been in the program for approximately three months and was making good progress. The report recommended that the supervised visitation sessions continue.

A psychological evaluation of I.M., and bonding evaluation was conducted by Dr. Charles S. Hassan, a psychologist, on January 31, 2005. In his report dated February 15, 2005, Dr. Hassan diagnosed I.M. as suffering from alcohol and cocaine abuse on Axis I, and a personality disorder on Axis II. Dr. Hassan stated that the prognosis for I.M.'s recovery was not good, noting she "is not a reflective type of person who will listen to others[,]" "is apt to act out problems rather than attempting to understand or solve problems[,]" and that I.M. "has a serious character disorder which would make her a poor bet to be able to raise her son." Dr. Hassan reported that "[e]ven if she engages in treatment, her life, once she is released from Straight and Narrow, is likely to be filled with one crisis after another[,]" and that she "is a very unstable person."

With respect to bonding, Dr. Hassan found that I.M. was unable to engage J.M., and she was unable to effectively manage the hyperactivity of the child. In contrast, Dr. Hassan found positive interaction between the foster parents and J.M.

Dr. Paul F. Fulford conducted a psychological evaluation of I.M. on March 18, 2005. In his report dated March 25, 2005, Dr. Fulford found there was no clinical reason that would prevent I.M. from maintaining a visitation relationship with J.M. In a supplemental report dated May 30, 2005, Dr. Fulford provided his conclusions concerning bonding evaluations he had conducted of I.M., J.M., and the foster parents. Dr. Fulford reported that good interaction was observed between the child and I.M. He also found that J.M. "appears to be bonded to the foster parents, as psychological parents, and they appear to be bonded to him, and are responsive to and understanding of his limitations." Dr. Fulford stated that due to the fact that J.M. was apparently suffering from fetal alcohol syndrome, he "is a difficult child for any parent to care for." He stated that I.M. "does appear capable of providing care for this child[.]"

The guardianship trial commenced in the Family Part before Judge Garry S. Rothstadt on March 30, 2005, with DYFS presenting the testimony of Ellen Tomlinson and Rymel White, both employed by DYFS as Family Service Specialists, and who had served as case workers in this matter. Both outlined the history of the involvement of DYFS with this family.

On April 20, 2005, Dr. Hassan testified essentially consistent with his report. Dr. Hassan emphasized that J.M. "needs consistency, stability, someone who has patience and tolerance." He stated that I.M. was unable to provide for these needs of J.M. Dr. Hassan also testified that removing J.M. from the care of the foster parents, with whom he is bonded, would do more harm than good.

On May 6, 2005, Dr. Fulford testified. He stated that based upon her attendance at the Straight and Narrow program, I.M. has the capacity to make positive changes in her life, noting that she was "not suffering from a thought or mood disorder[,] and she is motivated." Dr. Fulford concluded that I.M. has the ability to properly parent J.M. After completing his bonding evaluation, Dr. Fulford testified again on June 2, 2005, consistent with his supplemental report.

I.M. testified to her progress through the Straight and Narrow program, stating she feels like "totally a whole new person." She explained that the next step in her treatment program was to move into Project Home in Jersey City, which would consist of moving into an apartment, governed by a curfew, random urine testing, and where she would receive parenting training and obtain her GED.

Joan Stansfield, the Director of Community Living for Straight and Narrow, testified concerning the progress of I.M. at the program, stating that I.M. was making good progress and "is where she's supposed to be right now in treatment." Stansfield stated that I.M. would be eligible for the "Mother and Me" program if accepted into the Jersey City facility. Stansfield explained, however, that if I.M. is accepted into Project Home, it takes about two months to be commence residence there. A progress report for I.M. from Straight and Narrow dated June 1, 2005, was admitted in evidence.

On June 27, 2005, the Judge Rothstadt entered an order terminating the parental rights of I.M. to J.M., supported by a detailed written opinion. On appeal, I.M. presents the following arguments for our consideration:

POINT I

DR. HASSAN'S TESTIMONY THAT THE DEFENDANT "WILL REVERT BACK TO DRUG USE" WAS IMPROPER AND DEPRIVED THE DEFENDANT OF HER RIGHT TO A FAIRLY CONDUCTED GUARDIANSHIP TRIAL (NOT RAISED BELOW).

POINT II

THE JUDGMENT OF GUARDIANSHIP SHOULD BE REVERSED BECAUSE THE DIVISION FAILED TO PROVE THE SECOND AND FOURTH PRONGS OF THE "BEST INTERESTS" TEST BY CLEAR AND CONVINCING EVIDENCE.

A. UNDER THE SECOND PRONG THE DEFENDANT WAS ABLE TO BECOME PARENTALLY FIT IN TIME TO MEET THE NEEDS OF J.M.

B. THE TRIAL COURT APPLIED AN IMPROPER "BETTER INTERESTS" DETERMINATION IN FINDING THAT TERMINATION OF PARENTAL RIGHTS WOULD NOT DO MORE HARM THAN GOOD.

We begin our inquiry by restating applicable legal principles. These principles bear replication in light of the remedy ordered by the Family Part judge.

The rights of parents to enjoy a relationship with their children is of constitutional dimension. In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999) (citing Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972)); In re Adoption of Children by G.P.B., Jr., 161 N.J. 396, 403-04 (1999); New Jersey Div. of Youth and Family Servs. v. A.W., 103 N.J. 591 (1986)). Parents have a constitutionally protected, fundamental liberty interest in raising their biological children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394, 71 L. Ed. 2d 599, 606 (1982). The Federal and State Constitutions protect the inviolability of the family unit. Stanley, supra, 405 U.S. at 651, 92 S. Ct. at 121-13, 31 L. Ed. 2d at 558-59; A.W., supra, 103 N.J. at 599.

"The law's concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life's difficult decisions." Parham v. J.R., 442 U.S. 584, 602, 99 S. Ct. 2493, 2504, 61 L. Ed. 2d 101, 118 (1979). As is true of so many other legal presumptions, "experience and reality may rebut what the law accepts as a starting point. . . ." Id. at 602, 99 S. Ct. at 2504, 61 L. Ed. 2d at 119. The incidence of child abuse and neglect cases attests to the fact that some parents may act against the interests of their children. Ibid.

Government "is not without constitutional control over parental discretion in dealing with children when their physical or mental health is jeopardized." Id. at 603, 99 S. Ct. at 2504, 61 L. Ed. 2d at 119 (citing Wisconsin v. Yoder, 406 U.S. 205, 230, 92 S. Ct. 1526, 1540, 32 L. Ed. 2d 15, 33 (1972)). The State as parens patriae may act to protect children from serious physical and emotional harm. This may require a partial or complete severance of the parent-child relationship. However, "[f]ew forms of state action are both so severe and so irreversible." Santosky, supra, 455 U.S. at 759, 102 S. Ct. at 1398, 71 L. Ed. 2d at 610.

When the child's biological parents resist termination of parental rights, our function is to decide whether the parent can raise the child without causing harm. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). The cornerstone of our inquiry is not whether the parents are fit, but whether they can become fit to assume the parental role within time to meet the child's needs. Ibid. "The . . . analysis entails strict standards to protect the statutory and constitutional rights of the natural parents." Ibid. The burden rests on the party seeking to terminate parental rights "to demonstrate by clear and convincing evidence" that risk of "serious and lasting [future] harm to the child" is sufficiently great as to require severance of parental ties. Ibid. The balance between fundamental parental rights and the State's parens patriae responsibility is achieved through the best interests of the child standard. K.H.O., supra, 161 N.J. at 347. Under that standard, parental rights may be severed when:

(1) The child's health and development have

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 foster 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.

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

These standards are neither discrete nor separate. They overlap to provide a composite picture of what may be necessary to advance the best interests of the children. K.H.O., supra, 161 N.J. at 348. The considerations involved in determining parental unfitness are "'extremely fact sensitive'" and require particularized evidence that addresses the specific circumstances of the specific case. Ibid. (quoting In re Adoption of Children by L.A.S., 134 N.J. 127, 139 (1993)).

In reviewing the factual findings and conclusions of a trial judge, we are obliged to accord deference to the trial court's credibility determinations and its "feel of the case" based upon the opportunity of the judge to see and hear the witnesses. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); Pascale v. Pascale, 113 N.J. 20, 33 (1988). We are not to disturb the judge's findings 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).

Applying these principles to this record, we conclude that the trial judge properly found that DYFS had proven by clear and convincing evidence that the termination of I.M.'s parental rights was in the best interests of J.M., and we affirm substantially for the reasons articulated by Judge Rothstadt in his written opinion dated June 27, 2005. We add the following.

I.M. argues that her right to a fair guardianship trial was violated because Dr. Hasson's testimony constituted an improper "net opinion." She also argues that her prior drug history should not have been considered by either Dr. Hasson or the Court when making the determination as to whether she could parent J.M. These arguments are raised for the first time on appeal. See R. 2:10-2 (requiring us to apply the plain error standard of review to any error not brought to the attention of the trial court, and determine whether such error "is of such a nature as to have been clearly capable of producing an unjust result[.]")

In Rosenberg v. Tavorath, 352 N.J. Super. 385, 401 (App. Div. 2002), we stated that "N.J.R.E. 703 requires that an expert's opinion be based on facts, data or another expert's opinion, either perceived by or made known to the expert, at or before the trial." A "net opinion" is inadmissible because it is lacking in foundation and consists of bare conclusions that are unsupported by a factual basis. Id. at 401. Moreover, an expert must provide the reasoning supporting his or her opinion, rather than just a mere conclusion. Ibid. (citing Jiminez v. GNOC Corp., 286 N.J. Super. 533, 540 (App. Div.), certif. denied, 145 N.J. 374 (1996)).

Dr. Hasson's psychological evaluation of I.M. consisted of a clinical interview, the MMPI-2 and TONI tests, and a bonding evaluation between her and J.M. In addition, Dr. Hasson had the opportunity to review I.M.'s other records, as supplied by the Division. His opinions of I.M.'s ability to parent were based on the clinical interview, the review of the Division's records, the results of the tests he conducted, and the bonding evaluation he performed. Because Dr. Hasson had a foundation both in his clinical evaluation of I.M. and from the records he reviewed as supplied by the Division, his opinion did not constitute a "net opinion."

I.M. also argues that her prior drug history should not have been considered by Dr. Hasson and the court in determining whether should could properly parent J.M. We disagree.

N.J.S.A. 9:6-8.46(a) states that the Division may present "proof of abuse or neglect of one child" as evidence of abuse and neglect of any other child of that same parent. Additionally, given the substantive criteria in N.J.S.A. 30:4C-15.1a that must be considered, I.M.'s history of substance abuse was clearly relevant to the guardianship issues presented.

In his opinion, Judge Rothstadt properly noted that Dr. Hasson and Dr. Fulford ultimately agreed that I.M. cannot presently parent J.M. Both psychologists stated that J.M.'s fetal alcohol syndrome condition would make it difficult for I.M. to parent him successfully, especially with I.M.'s history of substance abuse and emotional difficulties.

I.M.'s contention that the trial judge focused solely or primarily on her past drug use when terminating her parental rights is unfounded. Judge Rothstadt noted that I.M. could not provide for the psychological, mental or physical needs of J.M.; that she did not have the patience to parent J.M. due to her anger management issues; and that her personality was not the type that would respond well to J.M.'s special needs.

We also note that Dr. Hasson's testimony did not differ substantially from Dr. Fulford's testimony. The only substantial difference in their testimony was Dr. Fulford's opinion that if I.M. was able to remain drug-free for one year following the completion of her drug-treatment program, J.M. might gradually be able to be returned to her care. Even if Dr. Fulford's opinion had been accepted by the trial judge, J.M. would continue to reside with his foster family for approximately an additional year. J.M., who is already bonded to his foster family the only stable family he has ever known would therefore be denied permanency based upon the speculative and questionable ability of I.M. to remain substance free and to acquire the skills needed to meet J.M.'s special needs. J.M. has been in the sole care and physical custody of his foster family since January 7, 2004, when he was ten months old.

We disagree with I.M.'s contention that the Division failed to prove by clear and convincing evidence the second and fourth prongs of the "best interests" test.

Dr. Hasson's credited testimony was that J.M.'s physical and mental development would be negatively affected by I.M.'s anger management issues, her impatience, inability to deal with his special needs, and her possible drug issues. Indeed, he stated that even if J.M. was not a special needs child, placing him back in I.M.'s care would still harm him because of her psychological difficulties.

In addition, the Division's record of I.M.'s living conditions and the care she accorded J.M. demonstrates that her history is replete with alcohol abuse, physical abuse, and substance abuse. The neglect continued with J.M., especially given the conditions in which the Division found the family when he was removed. I.M.'s ongoing substance abuse and emotional issues, the fact that J.M. suffers from fetal alcohol syndrome, and the prior involuntary termination of her parental rights as to E.J.C. in close proximity to this case, established by clear and convincing evidence that I.M. was unable to eliminate the harm facing J.M., was unable to provide a safe and stable home for J.M., and that further delaying permanent placement for J.M. would add to that harm. The record fully supports the conclusion that it was not reasonably foreseeable that I.M. would be able to cease to inflict harm upon J.M. See A.W., supra, 103 N.J. at 607.

In K.H.O., supra, the Court held that the focus of analysis under the second prong is whether the parent has cured and overcome the initial harm that endangered the child, and whether the parent is able to prevent recurrent harm to the child. 161 N.J. at 348 (emphasis added). In addition, courts should look to "the measures taken by the parent after the child's birth to . . . foster an environment leading to normal development." Id. at 349. A showing of parental irresponsibility may include the inability to "provide a stable and protective home." Id. at 353-54.

In A.W., supra, the Court cautioned that

to the extent that adults and when we speak of adults we mean courts, social workers, and therapists delay the permanent decision [of whether to terminate parental rights], they lose sight of the child's concept of time. See J. Goldstein, A. Freud, and A. Solnit, Beyond the Best Interests of the Child 43 (1973) ("Three months may not be a long time for an adult decisionmaker. For a young child it may be forever").

[103 N.J. at 607.]

Since 1988, I.M. has failed to rectify the behavior that caused her five older children, along with J.M., to be either forcibly or voluntarily removed from her care. While she was pregnant with J.M., I.M. consumed alcohol during the first four months of her pregnancy. I.M. also has a documented drug abuse problem, a history of family violence, no income, no housing, and suffers from impulsivity, lack of frustration tolerance and has been prone to temper tantrums.

Dr. Fulford, I.M.'s own expert, stated that I.M. could not care for J.M. today, and that forcing J.M. to wait an unlimited amount of time for I.M. to be able to care for him would be harmful to J.M. The evidence further demonstrated that even if I.M. satisfactorily completed the Straight and Narrow program, there would be a delay in qualifying and gaining entry into the Mother and Me program.

The fourth prong of the best interests test stands for the proposition that "a decision to terminate parental rights should not simply extinguish an unsuccessful parent-child relationship without making provision for a more promising relationship in the child's future." A.W., 103 N.J. at 610 (internal citations omitted). Children deeply need an association with a nurturing adult. Ibid. Because permanence has been seen as an important aspect of nurturing, it must be evaluated carefully by the court. Ibid.

Dr. Hasson performed a bonding assessment between J.M. and I.M., and J.M. and his foster parents. That evaluation revealed that J.M. is bonded to his foster parents. In contrast, Dr. Hasson noted that I.M. was unable to deal with J.M.'s hyperactive behavior and would "rock him violently" rather than calm him in another fashion. J.M.'s behavior throughout the evaluation with I.M. was wild and uncontrolled.

In contrast, the bonding evaluation Dr. Hasson performed between the foster parents and J.M. was one which revealed that the foster parents were attuned to J.M.'s special needs. In order to calm J.M. down, they spoke with him in a calm manner and were extremely patient with him.

Dr. Hasson stressed J.M.'s need for an extremely stable home that will foster an environment where his social, cognitive and emotional skills can develop. The evidence clearly and convincingly established that the foster parents can provide this type of home, whereas I.M. cannot. J.M. is a special needs child who requires stability in his life. The trial judge's conclusion that I.M. cannot provide that stability is supported by clear and convincing evidence in the record.

According to Dr. Hasson, the two sources of harm that would affect J.M. if he was placed with I.M. are the break of the emotional bond that J.M. has forged with his foster parents, and the removal of J.M. from a safe, stable environment where his needs are being met.

In In re Adoption of a Child by P.S. and J.S., 315 N.J. Super. 91, 117-18 (App. Div. 1998), we noted:

A parent whose serious substance abuse problem has caused her to neglect her child may at some later time in her life be rehabilitated to a point where she can be "a fit parent." But that does not necessarily make her a fit parent to a previously neglected child whose future is now[.]

Here, it is not reasonably foreseeable that I.M. would be able to provide the kind of stability, security and permanency that J.M. needs now.

 
Affirmed.

(continued)

(continued)

26

A-6254-04T4

RECORD IMPOUNDED

February 28, 2006