NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. P.B.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4310-06T44310-06T4

A-4311-06T4

A-4367-06T4

NEW JERSEY DIVISION OF YOUTH AND

FAMILY SERVICES,

Plaintiff-Respondent,

v.

P.B.,

Defendant-Appellant.

__________________________

IN THE MATTER OF THE GUARDIANSHIP OF

K.V., a minor.

_________________________________________

NEW JERSEY DIVISION OF YOUTH AND

FAMILY SERVICES,

Plaintiff-Respondent,

v.

G.B.,

Defendant-Appellant.

___________________________

IN THE MATTER OF THE GUARDIANSHIP OF

K.B. and J.B., minors.

___________________________________________

NEW JERSEY DIVISION OF YOUTH AND

FAMILY SERVICES,

Plaintiff-Respondent,

v.

C.B.,

Defendant-Appellant.

__________________________

IN THE MATTER OF THE GUARDIANSHIP OF

K.B. and J.B. and K.V., minors.

________________________________________

 

Argued May 13, 2008 - Decided

Before Judges Fuentes and Chambers.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Sussex County,

Docket No. FG-19-17-06.

Clara S. Licata, Designated Counsel, argued the

cause for appellant P.B. in A-4310-06 (Yvonne

Smith Segars, Public Defender, attorney;

Ms. Licata, on the brief).

Thomas G. Hand, Designated Counsel, argued the

cause for appellant G.B. in A-4311-06 (Yvonne

Smith Segars, Public Defender, attorney;

Mr. Hand, on the brief).

William J. Sweeney, Designated Counsel, argued

the cause for appellant C.B. in A-4367-06

(Yvonne Smith Segars, Public Defender, attorney;

Mr. Sweeney, on the brief).

Michael Toya, Deputy Attorney General, argued the

cause for respondent Division of Youth and

Family Services (Anne Milgram, Attorney General,

attorney; Andrea M. Silkowitz, Assistant Attorney

General, of counsel; Ms. Toya, on the brief).

Melissa R. Vance, Assistant Deputy Public Defender,

argued the cause for minors K.B., J.B. and K.V.

(Yvonne Smith Segars, Public Defender, Law Guardian, attorney; Ms. Vance, on the brief).

PER CURIAM

Defendant C.B. is the biological mother of thirteen-year old K.B., ten-year old K.V., and eight-year old J.B. Defendant G.B. is the biological father of K.B. and J.B. Defendant P.B. is the biological father of K.V. All three defendants appeal from the judgment entered by the Family Part terminating their respective parental rights to these children. We consolidate these three appeals for the purpose of addressing the issues raised by the parties.

After a careful review of the evidence presented before the Family Part, we affirm. We recognize that when viewed as separate and distinct events, the acts or instances of neglect discovered by the Division of Youth and Family Services (DYFS) through its long-term involvement with this family do not appear to warrant termination of the parties' parental rights. However, when these events are considered as a whole, they paint a disturbing and consistent pattern of ineffectual parenting by defendants.

The evidence shows that these defendants have consistently neglected the children's educational needs, by failing to insure that they attend school on a regular basis. The magnitude of the intellectual harm inflicted as a consequence of this neglect cannot be overstated. The record also shows that these children were deprived of basic dental care. Although indisputably serious, the complete medical ramifications from this form of neglect remains undetermined.

Despite multiple efforts by DYFS, these three defendants have proven incapable of providing these children with a safe and secure home environment. Adoption is now the only viable option. Given their ages, it is critical that these children be afforded the opportunity to find a home with a stable and loving adoptive family as soon as possible.

I

DYFS's involvement began shortly after C.B. gave birth to K.B. on March 24, 1995. Approximately five months after the child's birth, DYFS received a referral from a home health care nurse. A DYFS representative spoke with C.B.'s family members; they alleged that C.B. gave her baby beer, did not properly care for the infant's needs, and used vulgar language toward her.

When interviewed by the DYFS representative, C.B. claimed that the child's father, (defendant G.B.) had a significant drinking problem. The DYFS representative established a case plan for the family, which included G.B. submitting to substance abuse evaluation, C.B. agreeing to limit her emotional outbursts, and addressing K.B.'s medical needs, including insurance.

Less than a year later, C.B. was incarcerated for assaulting G.B. The couple admitted that they had been drinking during this incident. K.B. was not present. C.B. was eventually convicted of this offense and sentenced to probation. As conditions to probation, C.B. was ordered to: (1) attend marriage counseling; (2) attend one Alcoholics Anonymous meeting a week; (3) abstain from the use of drugs and alcohol; and (4) not have any contact with G.B., until marriage counseling occurred.

Four months thereafter, on July 25, 1996, DYFS received another referral, this time from a friend or neighbor. The caller informed DYFS that the family was staying at a motel together, in violation of the restraining order prohibiting C.B. from having contact with G.B. A DYFS representative found the couple and their daughter at a different motel. C.B. admitted the existence of the restraining order; she told DFYS, however, that they recently moved into a motel together when she became homeless. Based on this referral, DYFS reopened a case for services due to concerns about domestic violence, homelessness, and the parties disobeying a court order. The couple signed a case plan agreeing to obey the court order and participate in evaluations.

Thereafter, efforts by DYFS to provide immunization for the child K.B. were unsuccessful for an extended period of time. From this point until November 1997, C.B. and G.B. consistently failed to take advantage of services offered by DYFS, including substance abuse counseling, housing and rental assistance, and general parenting services. At the same time, the couple was constantly existing in crisis mode. They had been evicted from their apartment, and were constantly moving from place to place.

During this time, C.B. became pregnant with K.V. (the child of P.B.). C.B. failed to avail herself of prenatal care services offered by DYFS. K.V. was born on November 18, 1997. By December, C.B. had allowed welfare benefits to lapse and lost family Medicaid coverage. For several months thereafter C.B. became unreachable for both DYFS and her probation officer.

DYFS continued to receive reports of neglect involving both children throughout 1999. The third child, J.B., was born on August 23, 1999. Almost two years later, in 2001, DYFS received referrals alleging that the children were not properly cared for, were dirty, unsupervised, and routinely disciplined using loud and vulgar language. Specifically, K.B., who was now of school age, was not consistently attending school, and wore dirty, messy clothes. The biggest concern surfacing at around this time period was K.B.'s chronic absenteeism from school.

The family continued in a heightened level of dysfunction throughout this time, living in motels, and relying primarily on odd jobs and public assistance as their primary source of income. On May 28, 2002, K.B.'s school submitted a referral to DYFS expressing concern about K.B. missing thirty-five days of school; the child also had excessive tooth decay. Three days later, a DYFS worker made an unannounced visit to the couple's residence at a local motel. C.B. indicated that K.B. saw a dentist nine months ago and that she would schedule her an appointment. She blamed K.B.'s absences on illness and lack of transportation. When the DYFS worker spoke with K.B., she noticed her front teeth appeared "brownish."

On June 1, 2002, C.B. took K.B. to a hospital emergency room because she was suffering from an abscessed tooth after her front tooth had decayed. On August 29, 2002, K.B.'s school again contacted DYFS stating that she had missed a total of ninety days of school in kindergarten. In first grade, although her attendance was improved, she had missed the last two weeks of school. DYFS again responded with offers of support services, including housing. As of October 21, 2002, K.B. had not seen a dentist, and her teeth continued to deteriorate.

On November 14, 2002, DYFS secured an order from the Family Part allowing it to provide protective and supervisory services to the family, including the three minor children K.B., K.V., and J.B. For the remainder of the year DYFS assisted the family in obtaining dental care, seeing a pediatrician, restoring Medicaid coverage, and finding stable housing. In mid-December K.B.'s school expressed concerns about her hygiene, her seventeen unexcused absences, and her coming to school without lunch.

In March 2003, DYFS investigated an incident involving the alleged molestation of K.B. by C.B.'s friend's teenage son. The teenage boy admitted to the police that he had touched K.B. DYFS arranged counseling for K.B. There is no indication that the child's parents were in any way responsible for this incident. On March 31, 2003, DYFS learned that C.B. and G.B. still had not taken K.B. to the dentist, despite a court order and case plans requiring them to do so. Based on this pattern of indifference, DYFS substantiated C.B. for medically neglecting K.B.

In April of 2003, K.B.'s school reported that it planned to take legal action against C.B. and G.B. because K.B. had eight unexcused absences since she began attending the school on February 28, 2003. Over the entire school year, K.B. had a total of fifty absences. The school also reported that K.B. might need to be in a self-contained class because she was two grades behind academically. As a second grader, she was doing work at a kindergarten level.

Both, K.B. and K.V. finally saw a dentist in April 2003; the dentist found both children needed to see a specialist, and told C.B. to call for a referral once she found a participant of her insurance plan. C.B. did not contact the office again for a referral for K.B. until five months later; she did not request a referral for K.V.

On September 3, 2003, five-year-old K.V.'s school reported that she could not begin attending kindergarten because she did not have current immunization records. K.V. did not start school until nineteen days later, on September 22, 2003. In response to this history of dysfunction, DYFS filed a compliant for the removal of the children from their parents' care. The complaint was filed on September 19, 2003, with the law guardian's support. The Family Part denied the application, but ordered that the parents undergo psychiatric evaluations as an aid in determining what additional services might help the family.

On October 3, 2003, C.B. and G.B. entered into a stipulation before the court in which they admitted that:

[T]hey have been derelict in their parental duties with the child [K.B.] specifically in that they have failed to follow through in a timely fashion with securing appropriate dental attention for her and by failing to properly attend to [K.B.'s] educational needs as evidenced by excessive absenteeism [and] by failing to promptly follow through with Child Study Team Evaluation appointments which necessitates continued court involvement [and] supervision.

C.B. took K.V. and J.B. to the dentist on October 1, 2003; because they arrived almost three hours late, the dentist rescheduled the appointment to October 16, 2003. After a dental screening, the dentist recommended that they see a specialist. On October 7, 2003, K.B. was treated by a dentist, who removed two of her teeth; she remained in need of follow up care. As of April 1, 2004, all three girls had been seen by a dental specialist; K.V. needed four teeth extracted and J.B. needed a total of six extractions. Given the extent of tooth decay, extraction was the only medically viable alternative.

As of April 2004, K.B. was classified as being two grade levels behind in language arts and math; she had missed twenty-three days of school since the beginning of the year. C.B. claimed that some of these absences were caused by K.B. having head lice, which was difficult to treat. The school also reported that K.V. was absent fourteen days during the school year. By the end of the school year, K.B. missed thirty-three days, while K.V. missed twenty-five days.

On January 7, 2005, the Family Part added P.B. as a party defendant to the pending case. On January 18, 2005, P.B. met with a DYFS worker. According to DYFS, P.B. worked at McDonalds, paid child support, and lived with his mother, grandfather, sister, and brother. The last time he had seen K.V. was several months earlier. He admitted that he had been arrested in 1997 for possession of cocaine and later in 1997 for possession of a weapon. In 2004, he violated his probation by testing positive for cocaine. He claimed that he no longer used drugs or alcohol. When asked to submit to a urine screen, P.B. claimed he was unable to do so, at that time. He agreed to return to DYFS's office after drinking some coffee. He did not return as promised.

On June 6, 2005, DYFS initiated another investigation of the family after receiving a phone call from a relative, who reported that the family was transient and living with C.B.'s heroin-addicted brother. The caller also stated that the children were "dirty and [had] rotten teeth." DYFS spoke with G.B.'s aunt, C.Y., who expressed her willingness to have the children stay with her.

According to DFYS, a staff member from the girls' school reported that the girls came to school "filthy," hungry, and had recurring head lice; school authorities had difficulty contacting the parents. K.B. had been classified as a special needs student, and J.B. was so far behind academically, that school officials believed she should also be evaluated to ascertain whether she had a possible learning disability. Despite these concerns, school officials had been unable to contact the children's parents. By the end of the school year, J.B. missed fifty-three days of school and was late twenty-three times, K.V. missed thirty-four-and-one-half days and was late twenty-three times and K.B. missed thirty-six days and was late eighteen times.

On June 23, 2005, DYFS filed an amended complaint for protective custody of K.B., K.V., and J.B. The following day, the Family Part entered an order placing the children in the custody of DYFS, and directing it to provide the parents with services. In support of its ruling, the court found that C.B. and G.B. "have lifestyle instability, lack of housing [and the] complaint reflects chronic neglect." The court further found that P.B. "has failed to comply with Division recommendations [and] court orders."

The court ordered that all three defendants submit to psychological evaluations and cooperate and comply with any recommendations. The court limited parental contact with the children to weekly supervised encounters. The children remained in the physical custody of G.B.'s aunt and her husband, the Ys, for thirty days to give them the opportunity to secure housing that met DYFS's licensing requirements.

On July 29, 2005, Frank J. Dyer, Ph.D. released a psychological report concerning C.B., G.B., and the children. As to G.B., the report concluded that he does not have any significant criminal, drug, alcohol, or psychiatric history, and he is free of mood and thought disorder. Financial difficulties and marital difficulties cause him a lot of stress and there was also a notation that he might be in denial of an alcohol problem, although DYFS had never substantiated any alcohol abuse on his part.

According to Dr. Dyer, "[t]he implications of the above psychological profile are mixed, but essentially positive with regard to parenting capacity." He recommended continuing the physical custody arrangement until G.B. "has amply demonstrated financial self-sufficiency and a willingness to comply consistently and promptly with the recommendations of DYFS and other social service resources."

With respect to C.B., Dr. Dyer also noted an absence of significant drug or alcohol abuse. He found her to have "serious unresolved psychological conflicts and personality problems relating to her chaotic early upbringing." He opined that this causes her to be "extremely suspicious and mistrustful" sometimes causing her ideas and beliefs to "stray into delusional territory." Dr. Dyer concluded that C.B.'s psychological profile had "predominantly negative [implications] in regard to parenting capacity."

He recommended individual counseling or therapy for her psychological problems, and stability in the area of housing, finances, and her marital relationship. "If [C.B.] d[id] not achieve such stability within the next six months, then [it was his] recommendation that she not be considered as a viable candidate for custody of any of the children, and that alternative permanency plans should be made for them."

Dr. Dyer also interviewed each child and observed their interaction with C.B. and G.B. He found that K.B. had the strongest ties to her parents, and most likely would be harmed by a cessation of contact with them. She expressed satisfaction with living with the Ys, but it would be "highly desirable" for her to return to her parent's care. Similarly, Dr. Dyer found that K.V. had a "strong attachment" to her mother, and emotional ties to her stepfather.

Dr. Dyer found that J.B. had a "number of emotional and developmental problems." She expressed an interest in staying with the Ys, rather than living with her parents. According to Dr. Dyer, "the combination of transience, medical neglect, and the parents' marital conflict that [J.B.] experienced during critical development phases contrasts so sharply with her present experience of stability in the home of [the Ys] that the child values the safety, security, and comfort of her current placement." He thus concluded that she would be less affected by remaining with the Ys than the other two children.

Unfortunately, the custody arrangement with the Ys proved to be short-lived. On August 5, 2005, the Ys informed the court that they could not continue to care for the children without DYFS's assistance. K.B. was placed with one family, while K.V. and J.B. were placed with a second family. On November 22, 2005, K.V. and J.B. were moved to K.B.'s foster placement, where they all currently remain. Thus, all of the siblings have been reunited, and are being considered for adoption together.

On April 21, 2006, the court approved DYFS's permanency plan of termination of parental rights. The court cited lack of progress by the parents and noted that on June 24, 2006, the children will have been in placement for one year. The court ordered DYFS to complete updated psychological evaluations of the family, and advise on the status of the Y's home within ninety days. DYFS filed for guardianship of the three children that same day.

On June 29, 2006, the Center for Evaluation and Counseling (CEC) provided a report detailing the progress of K.V.'s supervised visitation with her father, P.B., and her paternal grandmother, as well as the progress of her individual counseling. CEC reported that K.V. was resistant to visiting with her father because of his longstanding absence and lack of involvement in her life.

P.B. rarely interacted with her during visits. He believed that it was up to the child to initiate contact. When the "inappropriateness" of this position was pointed out to him, his energy and interest in K.V. "somewhat improved." By contrast, her grandmother was far more active during the visits. K.V. addressed her relationship with her father and her behavioral difficulties in counseling. CEC reported that she had adjusted well to her foster placement.

The CEC also reported the progress of C.B., G.B. and K.B., now age eleven, K.V., now age eight, and J.B., now age six. Since May, 2006, C.B.'s and G.B.'s attendance to visitation had been problematic. The children became very upset when they missed visits. When C.B. and G.B. attended visitation, they were "generally appropriate and interactive." According to CEC, C.B. and G.B. had been asked to address "lifestyle instability, poor judgment, poor planning, transportation difficulties, poor coping skills and criminal behavior" in couple's therapy, but they had made minimal progress.

Throughout the summer of 2006, C.B., G.B., and P.B. continued to attend supervised visitation at CEC; the girls continued to attend regular therapy. Based on the record before us, C.B. and G.B. attended their last in person visitation with their children on August 16, 2006. Since the start of the supervised visitations in July 2005, C.B. and G.B missed twenty-one visits and attended thirty-three.

On May 25, 2006, C.Y. informed DYFS that G.B. had been arrested three days earlier and charged with burglarizing the home of P.B.'s grandfather. C.B. also faced criminal charges because of this incident. Additionally, G.B. had a court hearing scheduled for June 6, 2006, in connection with a charge of "hit-and-run," leaving the scene of an accident, and driving without a license.

On July 18, 2006, Dr. Dyer performed a second psychological and bonding evaluation of P.B. and K.V. Intellectually, he classified P.B. as "borderline retarded"; he was "unreflective, immature, and dependent." He found P.B. related to K.V. as a peer rather than a parent. Dr. Dyer concluded that he is "clearly incapable of serving as a custodial parent to her." He recommended that DYFS not consider him "as a placement resource" for K.V. With respect to the bonding evaluation, Dr. Dyer reported that K.V. has a positive connection to P.B. and enjoys his visits and if she had no further contact with him she would suffer a "degree of loss," but she does not have a "deep attachment" and she would not suffer "severe and enduring harm."

DYFS also scheduled updated psychological and bonding evaluations for C.B. and G.B. Although G.B. participated in the bonding evaluation, he never submitted to an updated psychological evaluation. C.B. agreed to be evaluated for both psychological and bonding purposes. She acknowledged during the evaluation that she had not seen the girls in two-and-one-half months. She also revealed that she had recently pled guilty to the charges of attempted burglary and conspiracy in connection with G.B.'s attempted robbery of his uncle's home.

Dr. Dreyer found that C.B.'s intellectual functioning is low average; she has an adjustment disorder, and her thinking processes are eccentric and unrealistic. He observed that she acted appropriately toward her daughters; she was affectionate, and communicated well with them. Despite these positive traits, Dr. Dyer concluded that C.B. "lacks the personality resources to sustain the kind of positive adjustment that adequate parenting requires." He recommended that DYFS not consider her as a viable candidate for custody of the children.

Dr. Dyer performed a bonding evaluation of C.B. and G.B. with all three children. K.B. expressed an "uambivalent desire" to live with her parents; as an alternative, she would like to live with K.V.'s grandmother or the Ys. Although she would suffer a severe loss if placed for adoption, Dr. Dyer opined that the "positive effects of permanency for this child outweigh[ed] any potential benefits of a reunification with her birthparents."

K.V. was "confused about the issue of permanency." She had no reservations about returning to her parents; she would miss them if she had to stay with her foster parents permanently. If she could not live with her parents, she expressed a "slight preference" for living with her paternal grandmother over staying with her foster parents. J.B. expressed her feelings with child-like precision: living with her birth parents would be "good"; living with her foster parents would be "kind of good."

II

At trial, acting through their counsel, all three defendants agreed to an identified surrender of their parental rights to the Ys. DYFS rejected this proposal because there was a foster family willing to adopt all three children.

After considering the evidence presented, Judge Gannon granted the guardianship petition terminating defendants' parental rights. He made the following findings:

There has been a history of neglect, poor supervision, family instability, a refusal to accept Division services and treatment, all of which contributed to the children being abused and neglected in that they were subjected to a lack of parenting, causing frequent school absenteeism, poor hygiene, chronic head lice, sleeping in school, a failure to provide the basic necessity for the children. They were exposed to adults engaging in sexualized behavior in their household and in general there is a very long history of failure to attend to the basic needs of the children.

With respect to C.B., Judge Gannon emphasized her absence from the children's lives during the two-and-one-half months preceding the trial.

[T]here's a very long and sad history here recounting her inability to parent, to move up to the expectation of providing the barest minimum of parenting for these children. She's diagnosed with an adjustment disorder with mixed emotional features, personality disorder not otherwise specified with prominent schizoid and borderline features.

The implications of her psychological profile are poor and Dr. Dyer notes that she has been afforded numerous opportunities to achieve stability in her housing situation and to improve her parenting skills in order to be able to provide adequate physical care, protection, nurturance, structure, guidance, and positive role modeling to her children.

And he concludes that given the severity and chronicity (sic) of [C.B.'s] problems, it appears that she simply lacks the personality resources to sustain the kind of positive adjustment that adequate parenting requires. She is not capable of consistently exercising appropriate judgment, responsibility and personal maturity to the degree required for the adequate protection of the child. The result has been repeated disappointments of her three children, who all wish to return to her, but encounter crushing frustration when some new complication arises that prevents [C.B] from taking them back.

In the final analysis he concludes that DYFS should not consider her as a viable candidate for custody of the children.

The court also discussed how all three children have bonded with their foster placements. Specifically, with respect to P.B., Judge Gannon noted that:

[H]e could have been a contender for parenting here. He could -- he had some potential to become a parent of this child, but he really has -- has abdicated that responsibility. He's fallen far short of trying to avail himself of the services that have -- that are needed.

I think it comes really as a result of a recognition by him that he doesn't want to be a parent, hasn't been a real parent and has really deferred to [C.B.] for the parenting. And it's truly unfortunate, because I sense that his child has some potential for a relationship with him. He's involved his own mother in the child's life and that there might have been the opportunity to -- to have a real parent/child relationship here.

But the fact of the matter is that [P.B.] is a person who has his own history of drug and alcohol abuse. His various offenses include criminal offenses and motor vehicle offenses and periods of incarceration.

He seems more focused on his attempting to stay out of trouble with the law and -- and has -- and seems sincerely motivated to try to change his life in that regard, to try to avoid antisocial behavior. Yet it doesn't indicate that he -- it doesn't indicate that he has a real capacity for exercising judgment. And he doesn't really evidence any sort of parental behaviors or attitude toward the child. It's more like a friendly relationship.

He doesn't offer any type of plan for her that involves his serving as a primary caretaker and he -- he doesn't really put forward any concrete plan for his mother being a viable candidate for the care of the child.

The ultimate conclusion here is that DYFS should not consider [P.B.] as a placement resource for [K.V.]. He further concludes that [K.V.] would not suffer severe and enduring harm if he were to - if she were to have no further contact with her biological father, [P.B.].

With regard to G.B., Judge Gannon took particular notice of his inability to address personal problems affecting his capacity to parent.

He's had some issues with alcohol problems, and he presents himself as an unsophisticated, passive, ineffectual man, who has experienced severe marital difficulties and may be continuing to have those problems which interfere with his relationship with the children.

Alcohol abuse appears to be a significant aspect of his life and it seems that that, complicated with his inability to become self-sufficient and unwillingness to move forward and avail himself of services designed to alleviate those conditions, have left him in a situation where he lacks the ability and motivation to provide socially, medically, for dental and educational services on behalf of the children.

He presents himself really as somebody who has put his head in the sand and tends to try to ignore his problems, being focused only upon his immediate needs to the detriment of the children. There's a history here of failing to protect and nurture and support these children. The result of which have created, I think, a catastrophic harm to the children.

The court continued:

I've viewed each of the named defendants individually with regard to the standards I'm articulating and I'm required to evaluate, and I'm satisfied as to each of them that the State has proven that prong of the -- the required statutory test in order to establish termination of parental rights.

Furthermore, I'm satisfied that the parents are unwilling and unable to eliminate the harm facing the child and that they're unable or unwilling to provide a safe and stable home for the child and that the delay in permanent placement will only add to the harm.

I am further satisfied that the Division has established by clear and convincing evidence that it has made reasonable efforts to provide services to help the parents correct the circumstances which led to the child's placement, and the Court has considered alternatives to the termination of parental rights.

III

Against this factual backdrop, defendants now argue that DYFS failed to present sufficient evidence to satisfy the statutory criteria for termination. We disagree. We begin our discussion by reaffirming certain bedrock legal principles governing the right of the State to terminate an individual's parenting rights.

Parents have a fundamental liberty interest in raising their children. N.J. Div. of Youth & Family Services v. R.L., 388 N.J. Super. 81, 86-87 (App. Div. 2006), certif. denied, 190 N.J. 257 (2007) (citing Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394, 71 L. Ed. 2d 599, 606 (1982)). Therefore, the "[f]undamental rights and interests of parents must be heavily weighed against critical concerns of the State acting as parens patriae to protect the health and welfare of children and to keep them from abuse or neglect or other conduct with deleterious consequences." Id. at 86. Mindful of these considerations, New Jersey Courts have "consistently imposed strict standards regarding the termination of parental rights." N.J. Div. of Youth & Family Services v. S.V., 362 N.J. Super. 76, 83 (App. Div. 2003) (quoting In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999)). To terminate parental rights, the trial court must apply the four prong best interests of the child standard and make the following specific findings:

(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 [D]ivision 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. Div. of Youth & Family Services v. M.M., 189 N.J. 261, 280 (2007) (quoting 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." N.J. Div. of Youth & Family Services v. F.M., 375 N.J. Super. 235, 258 (App. Div. 2005) (citing K.H.O., supra, 161 N.J. at 348).

"Appellate review of a trial court's decision to terminate parental rights is limited, and the trial court's factual findings 'should not be disturbed unless they are so wholly unsupportable as to result in a denial of justice.'" In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002) (citing In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). "When the credibility of witnesses is an important factor, the trial court's conclusions must be given great weight and must be accepted by the appellate court unless clearly lacking in reasonable support." F.M., supra, 375 N.J. Super. at 259 (citing In re Guardianship of DMH, 161 N.J. 365, 382 (1999)).

"The burden rests on the party seeking to terminate parental rights 'to demonstrate by clear and convincing evidence' that the risk of 'serious and lasting [future] harm to the child' is sufficiently great that it requires severance of parental ties." Id. at 258 (quoting In re Guardianship of J.C., 129 N.J. 1, 10 (1992)).

The First Prong

Under the first prong of the best interests of the child standard, the court must consider whether the "child's safety, health or development has been or will continue to be endangered by the parental relationship." M.M., supra, 189 N.J. at 281 (quoting N.J.S.A. 30:4C-15.1(a)(1)). "Rather than focusing on a single or isolated harm, the standard may be triggered by an accumulation of harms over time." N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 506 (2004) (citing K.H.O., supra, 161 N.J. at 348). "The harm shown under the first prong 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.

"Courts need not wait to act until a child is actually irreparably impaired by parental inattention or neglect." DMH, supra, 161 N.J. at 383 (citing N.J. Division of Youth & Family Services v. A.W., 103 N.J. 591, 616 n.14 (1986)). In DMH, supra, DYFS successfully terminated the parental rights of the children's biological father due to his "failure to provide any care and support for his children result[ing] in harm that endangered their welfare." Id. at 377. Despite knowing about the neglect and inadequate care the children were receiving, the father in DMH did not help in "securing adequate housing or providing care for the children." Id. at 379.

Thus, the Supreme Court imposed an affirmative duty upon a parent to intervene on his child's behalf, when the circumstances reveal that the child is at risk of being placed into foster care due to their mother's neglect, drug abuse, and homelessness. Ibid. Under this approach, prongs (1) and (2) of N.J.S.A. 30:4C-15.1(a) are satisfied when a father fails to take responsibility for his child and perform any substantial parental functions which causes harm to the child, and endangers his or her health and development. Id. at 383.

When this standard of parental care is applied to P.B, it creates a rational basis for upholding the trial court's order of termination. The record shows that P.B. was conspicuously absent from K.V.'s life during critical points in her development. P.B. knew, or under these circumstances should have known, that C.B. was incapable of providing a safe and secure environment for his daughter. As the father in DMH, P.B. had an affirmative duty to intervene on behalf of his child. His failure to do so satisfies the burden of proof in prong one of this analysis.

In New Jersey Div. of Youth and Family Services v. S.V., 362 N.J. Super. 76, 84 (App. Div. 2003) the court found that prong one was met because S.V. had "been unable to maintain stable housing; failed to take steps, aided by DYFS, to solve that problem; failed to see that the school-age children attended school; failed to protect the children from witnessing domestic violence by her husband, the father of her four daughters, and failed to protect them from physical and, in the case of one child, even from sexual abuse." The court rejected defendant's claim that her limitations arose solely from poverty. Ibid.

Here, similar to the defendant in S.V., C.B. and G.B. have "been unable to maintain stable housing; failed to take steps, aided by DYFS, to solve that problem; failed to see that the school-age children attended school" and failed to take the basic steps necessary to provide their children with adequate dental care. See ibid. With respect to housing, C.B. and G.B. have consistently lived a transient lifestyle, moving from place to place, staying with various friends and relatives since 1995; despite DYFS's assistance, they have been unable to secure and maintain stable housing.

Most disturbing, these children have never regularly attended school. K.B. missed ninety days of school in kindergarten. In 2005, the final year the children were in C.B. and G.B.'s care, J.B. missed fifty-three days of school and was late twenty-three times, K.V. missed thirty-four-and-one-half days and was late twenty-three times and K.B. missed thirty-six days and was late eighteen times. This has indisputably harmed these children. Indeed, in 2003, C.B. and G.B. admitted that they had been "derelict" in meeting K.B.'s educational needs.

The Second Prong

"The second prong requires the trial court to evaluate whether the parent is `unable or unwilling to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child,' and whether a delay in permanent placement would add to the harm." M.M., supra, 189 N.J. at 283 (quoting N.J.S.A. 30:4C-15.1(a)(2)).

Only one expert, Dr. Dyer, testified in this case. He concluded that all of the defendants were unable or unwilling to provide a safe and stable home. With respect to C.B., he opined that she lacks the personality resources to sustain the kind of positive adjustment necessary to parent; he thus recommended that DYFS not consider her as a viable candidate for custody of the children. Dr. Dyer found P.B. to be intellectually "borderline retarded" and "clearly incapable of serving as a custodial parent" to K.V. As with C.B., Dr. Dyer recommended that DYFS not consider P.B. "as a placement resource" for K.V. As to G.B., Dr. Dyer testified that he has not modified the conduct nor addressed the root causes that led to the children's neglect.

The record shows that at no time have the defendants provided a safe and stable home for the children; instead, the family has moved from one temporary address to another. Finally, according to Dr. Dyer, it would be harmful, to all three children, to delay permanency under these circumstances.

The Third Prong

Under this prong, we must examine whether DYFS made "reasonable efforts to provide services to help the parent correct the circumstance which led to the child's placement." M.M., supra, 189 N.J. at 285 (quoting N.J.S.A. 30:4C-15.1(a)(3)). "'Reasonable efforts' may include consultation with the parent, developing a plan for reunification, providing services essential to the realization of the reunification plan, informing the family of the child's progress, and facilitating visitation." Id. at 281 (citing N.J.S.A. 30:4C-15.1(c)).

Here, DYFS has been involved with this family since 1995. Since that time, it has provided C.B. and G.B. with various services, including referrals for public financial assistance, housing assistance, parenting classes, counseling, and transportation services. Unfortunately, C.B. and G.B. did not always take full advantage of these services; they missed numerous appointments and failed to follow through on multiple recommendations for self-improvement.

When the children were placed in foster care, DYFS provided counseling, parenting classes and supervised visitation to both C.B. and G.B. With respect to P.B., DYFS offered him parenting classes, visitations and evaluations. He never expressed a desire to become K.V.'s primary caretaker.

The second part of the third prong analysis requires us to determine whether the trial court considered viable alternatives to termination of parental rights. Id. at 285 (quoting N.J.S.A. 30:4C-15.1(a)(3)).

"[A]n 'identified surrender' means that those exact person(s) as to whom the surrender is made shall adopt the children. If for some reason the 'identified' persons are not able to adopt the child, the surrender becomes 'void' and the parental rights of surrendering parent(s) are reinstated." N.J. Div. of Youth & Family Services v. D.M.B., 375 N.J. Super. 141, 145 (App. Div.), certif. denied, 183 N.J. 586 (2005) (citing N.J.S.A. 9:3-38(j); N.J.S.A. 9:3-41; N.J.S.A. 30:4C-23). In contrast, successful termination proceedings establish permanency since a parent's rights are "absolutely terminated forever." Id. at 146. DYFS is not required to accept an identified surrender and even if it chooses to accept a surrender it still has the right to proceed with termination proceedings. Id. at 147.

Here, all three defendants' expressed their desire to make an "identified surrender" to the Ys. DYFS rejected this placement. As a result, C.B. and G.B. argue that the court inappropriately ignored the Ys as a potential placement and therefore did not adequately consider this alternative to termination. However, even if DYFS had accepted this voluntary surrender, this would not have precluded it from seeking termination of the defendants' parental rights. See ibid. Stated differently, an identified surrender is not an alternative to termination. Moreover, Judge Gannon specifically left open the possibility of placing the children with the Ys, post-termination. He reserved his right to judicial oversight of the children's placement, leaving the Ys free "to pursue their quest to be adoptive parents."

Finally, we reject kinship legal guardianship as a viable alternative to termination. In the interests of clarity, we note that kinship legal guardianship is intended as "a more permanent option than foster care when adoption 'is neither feasible nor likely' and 'kinship legal guardianship is in the child's best interest.'" P.P., supra, 180 N.J. at 512-13 (citing N.J.S.A. 3B:12A-6d(3)-(4); S.V., supra, 362 N.J. Super. at 88). However, "when the permanency provided by adoption is available, kinship legal guardianship cannot be used as a defense to termination of parental rights under N.J.S.A. 30:4C-15.1a(3)." Id. at 513.

P.B. argues that the trial court failed to consider placing K.V. with his grandmother with a view toward kinship legal guardianship. As noted earlier, however, kinship legal guardianship is inappropriate here because adoption is both feasible and likely. See ibid.

The Fourth Prong

Under the fourth prong, the trial court must "assess whether termination of parental rights will do more harm than good." M.M., supra, 189 N.J. at 286 (citing N.J.S.A. 30:4C-15.1(a)(4)). "Inherent in the fourth factor is that a child has a `paramount need for a permanent and defined parent-child relationship.'" N.J. Div. of Youth & Family Services v. C.S., 367 N.J. Super. 76, 119 (App. Div.), certif. denied, 180 N.J. 456 (2004) (citing J.C., supra, 129 N.J. at 26).

Here, again we must look to the testimony of Dr. Dyer. After examining the parties, Dr. Dyer found that K.B. and J.B. would suffer a great loss if separated permanently from their parents. He did not find that K.V. had as strong a bond, rather he testified that she is "ambivalent about her birth mother." Notwithstanding these concerns, Dr. Dyer opined that the children's attachment to their parents is not healthy; it's a "fantasy of a successful reunification." By contrast, the foster parents had the ability to mitigate the emotional harm and loss the children would suffer.

With respect to K.V.'s connection to P.B., Dr. Dyer indicated in his report that she has a positive connection to P.B. and enjoys his visits; therefore, if she had no further contact with him she would suffer a degree of loss. However, he found that she does not have a "deep attachment" and consequently would not suffer "severe and enduring harm." Moreover, this factor requires considering the "paramount need for a permanent and defined parent-child relationship'" and Dr. Dyer opined that delaying these circumstances would be harmful to the children. See ibid. (citing J.C., supra, 129 N.J. at 26).

Conclusion

The judgment of the Family Part terminating defendants' parental rights is affirmed. We find no merit in the arguments raised by defendants. Specifically, as to P.B., his argument based on ineffective assistance of trial counsel lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

At oral argument in this appeal, C.B, through her counsel, acknowledged that she is not capable of parenting her daughters. She thus seeks for this matter to be remanded to the trial court for it to consider placing the children with family members, as an alternative to termination.

Motions to supplement the appellate record filed after these cases were argued will be considered and decided separately. The decision of this court on these motions will be reflected in standard orders.

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36

A-4310-06T4

RECORD IMPOUNDED

June 27, 2008