NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. K.D.S.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1847-07T41847-07T4

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

K.D.S.,

Defendant-Appellant.

_______________________________________________________

IN THE MATTER OF T.C.M.S., T.T.M. and S.B.S., minors.

_______________________________________________________

 

Submitted December 1, 2008 - Decided

Before Judges R. B. Coleman, Sabatino and Simonelli.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-82-07.

Yvonne Smith Segars, Public Defender, attorney for appellant (William J. Sweeney, Designated Counsel, on the brief).

Anne Milgram, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Nora P. Pearce, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for respondent minors (Nancy E. Scott, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant K.D.S. appeals from an October 12, 2007 judgment of the Chancery Division, Family Part, terminating her parental rights to three of her four children, T.C.M.S., T.T.M. and S.B.S., and awarding the guardianship of the children to the Division of Youth and Family Services (the Division or DYFS) to consent to their adoption. The order also terminated the parental rights of E.M., the putative father of T.C.M.S. and T.T.M., and the parental rights of C.G., the putative father of S.B.S. We conclude that there was enough evidence to support the trial court's decision. We affirm. Neither father has appealed the termination of his parental rights.

We start by reciting the relevant facts surrounding the involvement of the Division with K.D.S. and her children. K.D.S. has a history of heroin and other substance abuse. She was unemployed for most of the past seven years except for a few months when she worked as a waitress. At the time of trial, she resided with her paramour, M.B., in a rooming house. Little is known about M.B., except that he has a criminal history.

The Division first became involved with K.D.S. on July 24, 1998, when she gave birth to her second child T.T.M. At the time of T.T.M.'s birth, both he and K.D.S. tested positive for opiates. K.D.S. admitted to using heroin on a daily basis during her pregnancy, in addition to consuming alcohol. At the time, K.D.S. and her oldest son, T.C.M.S., were living with E.M., who was dealing drugs. The Division substantiated abuse and referred K.D.S. for multiple services. The Division closed that case on June 23, 2000.

In 2004, truancy charges were filed against K.D.S. regarding T.C.M.S.'s poor attendance in elementary school. On June 29, 2004, the Division received a referral indicating that K.D.S. had passed out after getting high, that there had been drug activity going on for a long time, that T.C.M.S. and T.T.M. are often outside unsupervised, and that K.D.S. does not open the door when they try to get into the apartment. The report was not substantiated, but the case remained open for supervision. On January 23 and February 2, 2005, the Division received referrals alleging that the children were left home alone. Both reports were determined to be unfounded.

On March 9, 2005, K.D.S. informed Division worker, Lori Saggese, that she needed financial assistance to pay her electric bill. Ms. Saggese gave K.D.S. the numbers for Energy Assistance and told K.D.S. to contact the Division if Energy Assistance was unable to help her. Ms. Saggese informed K.D.S. that the Division's investigation revealed that the children needed medical check-ups and were not up to date on their immunizations. Additional concerns included the children going to school with dirty clothes and without eating breakfast, and T.T.M. not doing his homework. Ms. Saggese offered TAFCAR services, which K.D.S. declined.

On March 11, 2005, K.D.S. informed the Division she had not yet contacted Energy Assistance. Ms. Saggese gave her the telephone numbers of Catholic Charities and UOSS, as alternative resources if Energy Assistance was unable to help her, and advised K.D.S. to contact the Division if these agencies were unable to help her.

On March 30, 2005, the Division received a referral indicating that the family was living under "nasty" conditions, K.D.S. was using drugs and was recently charged with assault for hitting another female with a baseball bat, and the caller had been watching different men go in and out of the house. During the Division's investigation, K.D.S. denied all such allegations and stated that her criminal charges were for harassment, not assault. The Division worker found the home dirty and cluttered, with a bad odor, however, K.D.S. agreed to clean the apartment. At the time, K.D.S. was receiving Welfare assistance, food stamps, child support and rent assistance. K.D.S.'s portion of the rent was $30. She was referred for a substance abuse evaluation and urine screen, which she failed to attend.

On June 12, 2005, the Division received a referral from Ms. Saggese indicating that the home remained dirty and cluttered, with rotten food on the floor, and that K.D.S. might be using drugs. During the Division's investigation, K.D.S. "denied using drugs but admitted using marijuana." Division worker Lori Holloway determined that the home was dirty but not to the level of neglect. Ms. Holloway advised K.D.S. that a dirty home is a form of neglect and having so much clutter in a small space is a fire hazard. K.D.S. agreed to receive family-preservation services through TAFCAR and to undergo a substance abuse evaluation.

On Sunday, October 9, 2005, the Division received a referral from the Camden Police, indicating that the children had been left alone since Friday, October 7, 2005 and that the home had no electricity. A neighbor reported that on Saturday, upon realizing the children were alone and without electricity, she allowed the children to spend the night at her house. Upon her return, K.D.S. requested that the children be placed at her mother's house. The police transported K.D.S. and the children to the maternal grandmother's house, and K.D.S. left.

T.C.M.S., twelve-years-old at that time, reported he had last seen K.D.S. on Friday, October 7, 2005, before he left for school. K.D.S. was not home when T.C.M.S. returned from school, and she did not return until Sunday. T.C.M.S. denied knowing where K.D.S. was for that period of time. He reported that the family had not had electricity since September. T.C.M.S. denied the use of drugs by anyone in the house but stated that K.D.S. consumes alcohol to calm herself down when she is mad. T.T.M. reported likewise concerning K.D.S.'s absence from the home since Friday and the lack of electricity. In addition, T.T.M. recalled being left alone in the past and not feeling safe because "sometimes people come to the door and we don't know who they are."

At trial, K.D.S. testified that she left the children with a neighbor on Friday, and returned that same day, then left again on Saturday, leaving the children with the same neighbor. The court rejected this testimony and found it not credible.

On October 9, 2005, two Division workers went to the family home accompanied by the police. The Division worker described the apartment as "an absolute disarray," with leftover food covered with mold within reach of a child, leftover food everywhere, "piles of clothes, dishes, barbeque grill, trash, papers and other unidentifiable objects covering the . . . floor." The home was unsafe. On that date, the Division removed the children without court order, pursuant to N.J.S.A. 9:6-8.29 to 30. Because the maternal grandmother, S.B., indicated that she was unable to care for the children, the Division placed them together at a resource home. Subsequently, T.C.M.S. and T.T.M. were moved into another foster home. The Division provided services to the children, including Robin's Nest and Total Family Solutions for T.C.M.S. and T.T.M.

On October 12, 2005, the Division filed an order to show cause and verified complaint. The trial court ordered K.D.S. to undergo substance abuse and psychological evaluations and to follow treatment recommendations.

On October 17, 2005, K.D.S. informed the Division that she was staying with her paramour, M.B., at a boarding house. She stated she was receiving food stamps and her rent was $10 a month under Section 8, but she had no income, since C.G. was incarcerated and not paying child support. Subsequently, K.D.S. lost her housing assistance because (1) she violated one of the rules by failing to maintain electricity and (2) she was considered to have abandoned the apartment.

On October 19, 2005, K.D.S. informed the Division she had recently applied for energy assistance. Two days later, K.D.S. submitted to a substance abuse evaluation by the Center for Family Services (CFS). CFS recommended that K.D.S. receive out-patient care and arranged three intake appointments at Cooper House and transportation. The Copper House program included living-life classes, parenting classes, group and individual therapy and twelve-step meetings. K.D.S. failed to attend all three intake appointments.

On October 31, 2005, K.D.S. completed a psychological evaluation with Dr. Meryl Udall, who recommended that K.D.S. attend out-patient substance abuse treatment and counseling. On December 5, 2005, K.D.S. attended an intake appointment at Cooper House and was scheduled to begin attending its out-patient program the next day, which she failed to do. She tested positive for opiates on December 6, 2005. On January 25, 2006, the Division met with K.D.S., M.B. and K.D.S.'s parents, who indicated they were unable to care for the children.

On January 26, 2006, K.D.S. stipulated that she committed acts which she agreed "constitutes abuse or neglect pursuant to law." The trial judge found by clear and convincing evidence that "[K.D.S.] abused or neglected the children in that they were placed in substantial risk of harm." On that date, the Division placed T.C.M.S. at TLC Shelter in response to behavioral problems he was presenting at his foster home, despite counseling and mentoring services. Subsequently, T.C.M.S. was placed at Vineland Residential Facility.

On March 20, 2006, K.D.S. was scheduled to attend Cooper House but failed to do so allegedly because she was working at a diner and seeking housing. The next day, the court ordered that K.D.S. attend Cooper House, seek employment and find suitable housing. In July 2006, K.D.S. obtained employment, for the first time in five years. She quit this job after approximately eight months.

On March 7, 2007, Dr. Linda R. Jeffrey completed a psychological evaluation of K.D.S. Dr. Jeffrey diagnosed K.D.S. with Dysthymia, Substance Dependence and Personality Disorder with antisocial, sadistic and histrionic personality features. She opined that K.D.S. "has serious unresolved substance abuse, emotional and personality problems that seriously decrease her parenting capacity to provide a minimum level of safe parenting for her children." Dr. Jeffrey further opined that "it is highly unlikely that [K.D.S.] would be able to enforce rules and demands consistently and with appropriate monitoring, to differentiate her children's needs from her own, and to teach her children appropriate social skills and management of emotions." She did not recommend that the children be returned to K.D.S. and opined that "[t]hey are highly likely to be at risk of harm in her care."

Dr. Jeffrey also conducted a bonding evaluation between K.D.S. and the children. She opined that the children recognize K.D.S. as their mother, "appeared to have an affectionate tie to her[,] . . . displayed insecure attachment to [her]," and were likely to experience some harm if their relationship with K.D.S. were to be severed. S.B.S. would likely experience the least amount of harm, while T.C.M.S. would likely be distressed, particularly given his age. However, Dr. Jeffrey opined that K.D.S.'s "lack of skill in managing the children's behavior is likely to be highly detrimental to [T.C.M.S.] as an adolescent."

On April 7, 2007, Dr. Jeffrey conducted a bonding assessment between T.T.M. and his foster mother, with whom T.T.M. had been living for eight months. Dr. Jeffrey opined that T.T.M. "made a positive adjustment to the foster mother, . . . responded to her parenting authority," and "is securely attached to her." Dr. Jeffrey further opined that T.T.M. "is in significant need of stability and attentive care," and that "[s]everance of this secure bond is likely to cause him serious and enduring harm." She recommended that T.T.M. remain in the care of this foster mother.

Finally, Dr. Jeffery conducted a bonding evaluation between S.B.S. and her foster parents, with whom she had been living for almost a year and a half. Dr. Jeffrey concluded that "S.B.S. is securely attached to the foster parents[,]" and severance of this secure bond "is likely to cause serious and enduring harm." She recommended that S.B.S. remain in the care of her foster parents.

On April 30, 2007, Dr. Jeffrey conducted a psychological assessment of T.C.M.S. to assess his adjustment and attitude towards the permanency plan. Dr. Jeffrey recommended that T.C.M.S. remain in his residential placement program "where his needs are being addressed and he is being appropriately supervised."

On July 12, 2007, K.D.S.'s expert, Dr. David F. Bogacki, conducted a psychological evaluation of K.D.S., to assess her capacity to parent, and he performed a bonding evaluation between K.D.S. and the children. He concluded that K.D.S. "did not demonstrate any mental disease or defect that would negate her capacity to be able to provide emotional nurturing to the children," she had adequate knowledge of parenting skills, and her "characterlogical deficits . . . are not viewed as presenting any imminent danger to the children and do not present any significant emotional risks to the children." He was unable to interpret some of the testing because "despite [his] admonition of responding to the questions in an open and honest fashion, [K.D.S.] denied even the simplest negative attribute about her feelings about herself, others or her interactions with the social environment."

Based on his bonding evaluation, Dr. Bogacki opined that "all of the children show evidence of emotional attachment to their mother. As such, if [K.D.S.]'s parental rights are terminated to any of the children they will likely suffer from some degree of emotional harm." On July 12, 2007, Dr. Bogacki also completed a bonding evaluation between S.B.S. and her foster parents and concluded that S.B.S. is attached to her foster parents, and that she would suffer some degree of emotional harm were this attachment to be broken. He noted that S.B.S. is also attached to her biological siblings and likely to her foster siblings. He concluded that "[o]verall the foster parents appeared to be in a better position to deal with any residual emotional difficulties that [S.B.S.] may have if parental rights are terminated."

In August 2007, K.D.S. obtained employment once again. She attended four N.A. meetings in September and two meetings in October, just before the guardianship trial.

On October 11 and 12, 2007, the guardianship trial was held. Dr. Jeffrey and Division worker Gwen Weber testified for the Division. K.D.S. testified on her own behalf. Neither E.M. nor C.G. were present and default was entered against them. K.D.S. was given the opportunity to submit to a urine test but was unable to produce a sample.

Dr. Linda Jeffrey, whose qualifications were not disputed, testified that because K.D.S.'s plan was to live with her children and M.B., as a co-parent, it would have been important to evaluate M.B. However, he failed to attend both of his scheduled appointments.

Regarding K.D.S.'s testing positive for opiates in December 2006 and her explanation that the she had taken someone else's Percocet, Dr. Jeffrey stated that it is "a very elementary, basic notion in drug treatment that you don't take other people's pills and you don't take Percocet if you have a history of heroin abuse because Percocet is an opiate." In addition, "a person who's had a long time heroin addiction knows usually that a Percocet in the brain is heroin." Also, Dr. Jeffrey stated that if a person reports relapse within three months, that suggests the presence of "ongoing issues in terms of sustaining abstinence." As to K.D.S.'s admitted use of marijuana, Dr. Jeffrey opined that it raises parenting concerns because marijuana impairs problem solving, concentration and the ability for mood regulation and creates a risk of criminal charges and consequent absence from the home.

Dr. Jeffrey testified that K.D.S. had claimed that the court allowed her to substitute the program at Cooper House for a twelve-step program. Dr. Jeffrey stated she found that unusual but, if that were the case, K.D.S. would need full participation in the twelve-step program, and a sponsor is "a critical element of working the twelve-step program." Dr. Jeffrey testified that although K.D.S. claimed to be actively participating and working on the steps, she was able to give only a general description of three steps and was unable to describe the two steps she claimed she was working on at the time.

As to T.C.M.S., Dr. Jeffrey opined that he needs an adult who does not have issues that are similar to his issues, "someone who is able to follow rules, who can manage emotions and who can teach him how to do that, someone who can comply with authority and can do effective problem solving and address issues." She opined that despite T.C.M.S.'s bond to K.D.S., he should not be returned to her and there would be no benefit by delaying a permanent plan. She stated T.C.M.S. needs a plan as to "how to help [him] negotiate adolescence and move into manhood with stability." She also expressed concern that testing indicated a high probability of T.C.M.S. developing a substance abuse problem as a result of him seeing alcohol as a way of dealing with difficulties.

Ms. Weber testified that a family friend of K.D.S., Ms. Lee, expressed interest in caring for T.C.M.S. At the time of trial, Ms. Lee was getting ready to move into a larger house and was factoring T.C.M.S. into her plans. She also testified that T.T.M. is emotionally needy and requires a lot of supervision, but it is T.C.M.S. with whom the Division is most concerned. She stated that T.C.M.S. has a lot of behavior issues, but he was "flourishing" at Vineland, and he would need a lot of counseling and aftercare to maintain the stability he had achieved. According to Ms. Weber, T.C.M.S. had asked her about being able to return to his foster mother with whom he had a connection. She stated that he could be placed there, if there was an opening, and if Ms. Lee was not ready to care for him at the time of his discharge from Vineland. Ms. Weber testified that all three potential adoptive parents were willing to promote sibling contact.

K.D.S. testified that about two weeks before the guardianship trial, she sought help from Welfare for a security deposit and first-month rent but was denied help because she was employed. As to attending a substance abuse program after the children were removed, K.D.S. testified that she had been attending meetings for over one year, as part of a twelve-step program. She offered into evidence proof of attendance to six meetings. She testified she does not have a sponsor, but stated she had been abstaining from using drugs. She admitted she did not complete parenting classes.

On October 12, 2007, the trial judge placed his findings on the record. The judge found that the Division had met all four prongs of the best interests test. Consequently, he ordered that the parental rights of all three parents be terminated. The court noted that according to Dr. Jeffrey, whose evaluation was an assessment after two years of court ordered services, "even if [K.D.S.] had stable housing that would not solve the problem."

Further, the court accepted Dr. Jeffrey's opinion and noted that according to Dr. Jeffrey, "recovery and abstinence are not the same." The court observed that although K.D.S. testified she participated to some extent in the 12-step program, she didn't have a sponsor and she didn't remember various steps, which the court found suspect. The court found that severing the relationship between T.T.M. and his foster mother, and S.B.S. and her foster parents would cause harm to them that K.D.S. would not be able to alleviate, especially as to S.B.S. As to T.C.M.S., the court recognized that he has special needs "stemming in large part from the years during which he lived with [K.D.S.] and [E.M.]." The court concluded that T.C.M.S. needs an adult "who is emotionally secure, that does not have the same issues [T.C.M.S.] has, . . . none of which in the expert opinion of Dr. Jeffrey can be done by the mother, [K.D.S.]." The court acknowledged that sibling visitation was expected to continue and that the prospective adoptive parents had agreed to continue sibling contact.

On appeal, K.D.S. contends:

POINT I: SUBSTANTIAL CREDIBLE EVIDENCE DID NOT EXIST SUPPORTING THE COURT'S FINDING THAT THE "BEST INTEREST" TEST WAS PROVEN BY CLEAR AND CONVINCING EVIDENCE.

A. THERE DID NOT EXIST CLEAR AND CONVINCING EVIDENCE THAT THE HEALTH AND DEVELOPMENT OF THE CHILDREN WERE AND WOULD CONTINUE TO BE ENDANGERED BY THE PARENTAL RELATIONSHIP.

B. THERE DID NOT EXIST CLEAR AND CONVINCING EVIDENCE TO SUPPORT A FINDING THAT THE APPELLANT WAS UNWILLING OR WAS UNABLE TO ELIMINATE THE HARM FACING THE CHILDREN.

C. THERE DID NOT EXIST CLEAR AND CONVINCING EVIDENCE THAT THE DIVISION MADE "REASONABLE EFFORTS" TO PROVIDE SERVICES TO K.D.S.

D. THE COURT'S FINDINGS THAT TERMINATION OF PARENTAL RIGHTS WILL NOT DO MORE HARM THAN GOOD IS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE.

Our consideration of K.D.S's contentions is guided by well established legal principles. "Parents have a fundamental constitutional right to raise their children." N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 261 (App. Div. 2002). However, such right is not absolute. In re Guardianship of K.H.O., 161 N.J. 337, 346-47 (1999). Rather, parental rights are "tempered by the State's parens partiae responsibility to protect the welfare of children." Id. at 347 (citing In re Guardianship of J.C., 129 N.J. 1, 10 (1992)). Thus, the best interests of the child ("best interests") standard governs this balance and has been codified in N.J.S.A. 30:4C-15.1. 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 347). A court can terminate parental rights when the Division shows by clear and convincing evidence that:

(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;

(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;

(3) The Division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and

(4) Termination of parental rights will not do more harm than good.

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

These "four criteria . . . 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." K.H.O., supra, 161 N.J. at 348.

Termination of parental rights is a severe state action in that it permanently severs "the relationship between children and their biological parents." J.C., supra, 129 N.J. at 10. Thus, when biological parents oppose the termination of parental rights, "the court's function will ordinarily be to decide whether the parents can raise their children without causing them further harm." Ibid. The consideration involved in this inquiry is "extremely fact sensitive and requires particularized evidence that address the specific circumstances in the given case." K.H.O., supra, 161 N.J. at 348.

Notably, the best interests standard is applied in light of "New Jersey's strong public policy in favor of permanency." Id. at 357. Accordingly, "[i]n all . . . guardianship and adoption cases, the child's need for permanency and stability emerges as a central factor." Ibid. In other words, "[t]he Division must demonstrate that the parent is 'unable to eliminate the harm facing the child or is unable . . . to provide a safe and stable home for the child,' . . . before any delay in permanent placement becomes a harm in and of itself." N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 434 (App. Div. 2001) (citing N.J.S.A. 30:4C-15.1(a)(2); J.C., supra, 129 N.J. at 10).

I

K.D.S. contends that there was "no clear and convincing evidence to support the finding that the health and development of these children were and would continue to be endangered by the parental relationship." We disagree.

First, K.D.S. argues that the testimony by the Division worker "amounted to reading Division records" and "she had no personal knowledge of the facts which she testified." We resolved a similar issue in In re Guardianship of Cope, 106 N.J. Super. 336 (App. Div. 1969). In Cope, we held that, because in DYFS matters, it would be too disruptive to the process to have everyone involved testify, the Division is permitted to submit into evidence "reports [its] personnel (or affiliated medical, psychiatric, or psychological consultants), prepared from their own first-hand knowledge of the case, at a time reasonably contemporaneous with the facts they relate, and in the usual course of their duties with the Bureau." Id. at 343. In addition, K.D.S.'s contention is factually inaccurate, since at the time of trial Ms. Weber had been the case worker assigned to this family for approximately four months and had acquired personal knowledge to such extent.

Second, K.D.S. contends that "the children were removed because K.D.S. left [them] with a neighbor who called the police when K.D.S. did not return from a trip to Philadelphia overnight." Such contention is contrary to the evidence. It is also contrary to the findings by the trial judge, who specifically rejected this version of the event. The court added:

Instead, from the other evidence presented through the case worker, through the records, I find that on that Friday evening, [K.D.S.] left the children, that T.M.C.S., nor any of the other children, knew where she was going. She did not return on that evening. She was not there on Saturday, that the neighbor was not specifically taking care of the children, that the neighbor became aware of the fact that the children were alone and that out of concern for the welfare of the children, the neighbor called DYFS, and the children were removed.

A trial court's factual findings are not disturbed on appeal 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., 65 N.J. 474, 484, (1974). We are satisfied that this finding is well supported by the record.

Further, K.D.S. argues that, because there were "secondary concerns about deplorable housing conditions and the lack of electricity in the home," but no allegation of physical abuse or emotional harm, "this was only a housing case." The trial judge rejected this argument aimed at minimizing the circumstances that continued for a substantial period of time. The judge found that the case is about the totality of the circumstances, K.D.S.'s psychological makeup "and her motivation to care for the children." We agree.

For the first prong of the best interests standard, the harm that arises from the child-parent relationship must be considered. 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." Id. at 352. It may constitute one egregious harm or "the effect of harms" over time. Id. at 348.

In October 2005, when the children were approximately twelve, seven and three years old, K.D.S. caused them to live in dangerous conditions and left them home alone on a Friday and did not return until Sunday. Their apartment was cluttered with objects and garbage, had no electricity and had moldy food within the children's reach. K.D.S. stipulated that she committed acts which she agreed constitute abuse or neglect under the law. The trial court found by clear and convincing evidence that K.D.S. abused or neglected her children by placing them in substantial risk of harm.

In addition, this was more a part of a pattern than an isolated incident. K.D.S. had already endangered T.C.M.S. as a young child by using heroin on a daily basis and living with someone who was using and selling drugs. She endangered T.T.M. by causing him to be born with heroin in his system. In 1999, professionals at Matri-Ark reported concerns regarding K.D.S.'s lack of nurturing towards T.C.M.S. and lack of attention to his needs. In 2005, there were repeated allegations of improper supervision, inadequate living conditions and continued drug use by K.D.S., which uncovered concerns regarding K.D.S.'s ability to care for her children. Notably, the Division was unsuccessful in its efforts to test K.D.S. for drugs at the time.

Thus, we are satisfied that the Division established by clear and convincing evidence that K.D.S. harmed the children such as to meet the first prong.

II

Likewise, we are satisfied that the Division established by clear and convincing evidence that K.D.S. is unable to eliminate the harm that endangered the children and is unable to provide them with a safe and stable home. This second element of the best interests standard "relates to parental unfitness," which "may be established in several ways," including: (1) "the parent is 'unwilling or unable to eliminate the harm' that has endangered the child's health and development in the first place" or (2) "the parent has failed to provide 'a safe and stable home for the child' and a 'delay in permanent placement' will further harm the child." K.H.O., supra, 161 N.J. at 352. This prong "may be met by indications of parental dereliction and irresponsibility, such as the parent's . . . inability to provide a stable and protective home . . . ." Id. at 353. One harm that is attributed to the parent under this prong is "'the prolonged inattention to a child's needs, which encourages the development of a stronger, bonding relationship to foster parents,' which if severed could cause the child profound harm." Id. at 352. Accordingly, "[a] delay caused by [the parent]'s failure to assume a responsible parental role in securing permanent placement" for the children is a harm in itself. Id. at 354.

K.D.S. contends that there was not "clear and convincing evidence to support a finding that [she] was unwilling or was unable to eliminate the harm facing [the] children." She bases her contention on a mistaken assumption that "the only open issue is housing." Unquestionably, the inability to provide safe and stable housing is a harm under prong two that exists in this case. However, K.D.S. had housing, and substantial rental assistance, at the time she placed the children at harm and caused them to be removed. As Dr. Jeffery noted, K.D.S.'s housing issue is not the main problem, but rather a symptom of K.D.S.'s problems.

The sequence of events that led to K.D.S.'s loss of rental assistance stems from her failure to assume a responsible parental role. She was unemployed and failed to pay her electric bill. As early as March 2005, the Division referred her for financial assistance. However, there is no evidence that she sought help until October 2005. Next, she left the apartment and moved in with her paramour, which was considered abandonment of the rented premises by the Housing Authority.

Moreover, despite court orders dating as early as October 2005, K.D.S. failed to attend services to facilitate reunification. She claimed that instead of attending Cooper House, she chose to attend a twelve-step program, which would have been only one component of the much more comprehensive treatment ordered by the court. Moreover, the only evidence she offered of participation in a twelve-step program was attendance at six N.A. meetings one and one-half months prior to the guardianship trial.

K.D.S. had two years from the date of removal to the guardianship trial to avail herself of services and eliminate the harm to her children. It took her almost one year to obtain employment, which she quit after eight months, and almost two years for her to attend a few N.A. meetings. At the time of trial, K.D.S.'s plan was to have her children live with her and M.B. However, K.D.S. and M.B. were still living at a boarding house, and M.B. had failed to attend two scheduled appointments for a psychological evaluation. These facts are consistent with the concept of "parental dereliction," which as the Court in K.H.O. indicated, satisfies the second prong. 161 N.J. at 353.

K.D.S. contends that she has "demonstrated her ability to provide a safe and stable home for [A.B.], her fourth child." However, there has been no factual finding as to that contention, and that child is not part of the record below. In addition, inaction by the Division with respect to A.B. is not conclusive evidence that K.D.S. had not by the time of trial harmed or placed her at risk of harm. Certainly, it is not evidence that she is capable of providing safe and stable care for four children.

III

K.D.S. contends that there was not "clear and convincing evidence that the Division made 'reasonable efforts' to provide services to K.D.S." Such contention lacks merit.

The third element of the best interests test "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." K.H.O., supra, 161 N.J. at 354. Such efforts must include, "so far as practicable . . . welfare services to support and maintain the integrity of the family as a living unit." N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 608 (1986). As part of this inquiry, "the court must consider the alternatives to termination of parental rights and whether the Division acted reasonably." A.G., supra, 344 N.J. Super. at 435 (citing N.J.S.A. 30:4C-15.1a(3)).

Contrary to K.D.S.'s contention that the Division failed to assist K.D.S. with her electricity bill, the Division referred K.D.S. to three different agencies that provide such service and advised K.D.S. to contact the Division if these agencies were unable to help her. In addition, the Division referred K.D.S. to Cooper House, where she would have received comprehensive services, including parenting and budgeting classes, individual counseling and substance abuse treatment. Additional services provided by the Division included bus passes, weekly visitation, substance abuse evaluations, psychological evaluations, and bonding evaluations. K.D.S. does not argue that the Division failed to explore alternatives to termination of parental rights.

We are satisfied that the Division met the third prong by clear and convincing evidence.

IV

The fourth prong of the best interests standard seeks to determine whether "[t]ermination of parental rights will not do more harm than good." N.J.S.A. 30:4C-15.1. This prong "'serves as a fail-safe against termination even where the remaining standards have been met.'" N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 108 (2008) (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 609 (2007)). The focus "is not whether a biological mother or father is a worthy parent, but whether a child's interest will best be served by completely terminating the child's relationship with that parent." Id. at 108.

"The question to be addressed is whether . . . the child will suffer greater harm from the termination of ties with [his or] her natural parents than from the permanent disruption of [his or] her relationship with her foster parents." K.H.O., supra, 161 N.J. at 355. Because of the inherent risk to children stemming from termination of parental rights, "the fourth prong of the best interests standard cannot require a showing that no harm will befall the child as a result of the severing of biological ties." Ibid. Rather, the court's inquiry is one of comparative harm, for which the court must consider expert evaluations of the strength of "the child's relationship both with her biological parents and her foster parents." Ibid. (citing J.C., supra, 129 N.J. at 25). Thus, to satisfy this prong, the Division should, as it did here, "offer testimony of a 'well qualified expert who has had full opportunity to make a comprehensive, objective and informed evaluation' of the child's relationship with both the natural parents and the foster parents." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 281 (2007) (quoting J.C., supra, 129 N.J. at 19).

In the case at bar, the expert for the Division, Dr. Jeffrey, completed bonding evaluations between K.D.S. and all three children and between S.B.S. and T.T.M. and their respective foster parents. She also conducted a psychological evaluation of T.C.M.S. to assess his adjustment and attitude towards the permanency plan. She testified at trial and the court accepted her testimony.

The expert for K.D.S., Dr. Bogacki, completed a bonding evaluation between K.D.S. and all three children, and between S.B.S. and her foster parents. Because he did not evaluate T.T.M. and his foster parents and because T.C.M.S. was in a residential facility, the expert's opinions regarding them has limited value within the comparative scheme of this prong. As to S.B.S., Dr. Bogacki concluded that she shows a bond with both K.D.S. and her foster parents, but that the foster parents were "in a better position to deal with any residual emotional difficulties that [S.B.S.] may have if parental rights [were] terminated." At trial, K.D.S. did not offer Dr. Bogacki's testimony.

Both experts opined that the children have some attachment to K.D.S. and are likely to experience some harm in response to termination of K.D.S.'s parental rights. As to S.B.S., Dr. Jeffrey opined that she would likely experience serious and enduring harm if her bond to her foster parents were to be broken. Both experts recommended that she remain with her foster parents. As to T.T.M., Dr. Jeffrey opined that he would likely experience serious and enduring harm if his bond to his foster mother were to be broken.

Thus, as to T.T.M. and S.B.S., K.D.S.'s reliance on E.P. is misplaced. In E.P., supra, the Court noted that it was not dealing with a case with "dueling expert opinions about whether a child is more strongly bonded to his biological parent than to his foster parent." 196 N.J. at 109. Rather, that case involved "an almost thirteen-year-old, psychologically fragile girl, who has bounced around from one foster home to another, and whose only enduring emotional bond [was] with her mother." Ibid.

Although, E.P. bears some relevance to T.C.M.S.'s situation, since the circumstances of his placement are not such that he would have formed bonds to a caretaker at the time of trial, the present case is factually distinguishable. First, in E.P., "the Division did not have any particular home in mind for adoption," and the Division's adoption specialist "recounted from her experience that it could take two to three years to find a placement for an older child through 'select home adoption' a process that includes looking for an adoptive home in New Jersey and registering the child on the national adoption exchange." Id. at 98. Second, in E.P., termination of parental rights was opposed by both expert opinion and the Law Guardian, who contended that the trial court erred by focusing more on the mother's "shortcomings than on the significant harm that would be caused to [the child] by a termination of parental rights." Id. at 97, 106. Even the trial court in E.P. "expressed some ambivalence about the fourth prong," finding that termination of parental rights might be devastating to the child, although ultimately concluding that such considerations were "outweighed by [the mother]'s lack of 'honesty' about her continued drug dependency." Id. at 101. Third, despite a recent drug relapse, the mother in E.P. had shown job and housing stability for the past five years. Id. at 94.

Finally, in E.P., the Court determined that the mother's love and emotional support was a force in that child's life that outweighed "the bleak prospect of adoption." Id. at 109. In that respect, the Court noted that although federal and state legislation and case law have established that permanency "must be the Division's goal, none has stated that the unlikely possibility of permanency in the future should outweigh a strong and supportive relationship with a natural parent." 196 N.J. at 110-11 (internal citations omitted).

The case at bar is factually distinguishable from what the Court recognized were "unique circumstances," in E.P. First, T.C.M.S. has a potential adoptive home. Second, termination of parental rights as to T.C.M.S. is recommended by expert opinion and the Law Guardian. In addition, Dr. Jeffrey opined that T.C.M.S. should not return to K.D.S.'s care because he needs an adult who does not have issues that are similar to his issues, "someone who is able to follow rules, who can manage emotions and who can teach him how to do that, someone who can comply with authority and can do effective problem solving and address issues." Dr. Jeffrey further opined that T.C.M.S. would not benefit from a delay in permanency.

As a final point, K.D.S. contends that termination of her parental rights would cut off the bond between the children. Such contention lacks evidentiary support because all three prospective adoptive parents have stated commitment to maintaining sibling contact. "Sibling rights have gained recognition in our statutory enactments and decisional law," and should be factored in the court's review of the Division's choice of foster home placements. In re C.R., 364 N.J. Super. 263, 277 (App. Div. 2003). Likewise, the Child Placement Bill of Rights Act states in relevant part that "when placed outside the home" to the extent that it is possible, the child should be "place[d] . . . in the same setting with the child's sibling if the sibling is also being placed outside his [or her] home." N.J.S.A. 9:6B-4d.

However, K.D.S. cites no case, and we are not aware of any, where the court refrained from terminating parental rights based solely on sibling rights. Notably, children also have "the right to a permanent, safe and stable placement." N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div.), certif. denied, 180 N.J 456 (2004). It is the child's need for permanency and stability that "emerges as a central factor" "[i]n all our guardianship and adoption cases." K.H.O., supra, 161 N.J. at 357.

We are satisfied that the Division established by clear and convincing evidence that the termination of K.D.S.'s parental rights will not do more harm than good and that it is in the children's best interests.

Affirmed.

K.D.S.'s fourth child A.B., is not part of this appeal.

TAFCAR services include Welfare assistance, food stamps and house cleaning services.

(continued)

(continued)

34

A-1847-07T4

RECORD IMPOUNDED

March 25, 2009