NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. S.T.

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1932-07T41932-07T4

A-2178-07T4

NEW JERSEY DIVISION OF YOUTH AND

FAMILY SERVICES,

Plaintiff-Respondent,

v.

S.T.,

Defendant-Appellant.

_________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF A.T., C.T., D.T., Jr., and T.T.,

minors.

________________________________________________________________

NEW JERSEY DIVISION OF YOUTH AND

FAMILY SERVICES,

Plaintiff-Respondent,

v.

D.T.,

Defendant-Appellant.

__________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF A.T., C.T., D.T., Jr., and T.T.,

minors.

________________________________________________________________

 

Submitted March 10, 2009 - Decided

Before Judges Wefing, Parker and LeWinn.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FG-15-53-07.

Yvonne Smith Segars, Public Defender, attorney for appellant S.T. (Evelyn F. Garcia, Designated Counsel, on the briefs).

Yvonne Smith Segars, Public Defender, attorney for appellant D.T. (Justin J. Walker, Designated Counsel, on the brief).

Anne Milgram, Attorney General, attorney for respondent (Lewis Scheindlin, Assistant Attorney General, of counsel; Stephanie Anatale, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minors A.T., C.T., D.T., Jr., and T.T. (Melissa R. Vance, Assistant Deputy Public Defender, on the brief).

PER CURIAM

In these consolidated appeals, defendants S.T. and D.T. appeal from an order entered on November 27, 2007 terminating their parental rights to four children. S.T. is the biological mother of C.T., A.T. and D.T., Jr., and the step-mother of T.T. D.T. is the biological father of T.T., C.T. and A.T. He was originally thought to be the biological father of D.T., Jr., because his name was on the child's birth certificate. During the course of the litigation, however, paternity tests ruled him out as the child's father.

I

We will summarize the facts most relevant to these appeals from the very extensive record before us. The New Jersey Division of Youth and Family Services (DYFS) first became involved with the family in August 2002 when a referral was made about then-four-year-old T.T. because her step-mother hit her when she would not stop singing. DYFS substantiated abuse and placed the child with her paternal grandmother. S.T. was only permitted to have supervised contact with the child. DYFS continued supervision of the family and provided assistance with housing and medical care. A case plan was developed, which required both parents to attend counseling for domestic violence and anger management.

In April 2004, DYFS became aware of domestic violence between the parents. The father was arrested and a domestic violence restraining order was entered against him. The mother was referred to a battered women's shelter, but the shelter refused her admission because she had precipitated the violence.

In May 2005, it was reported that S.T. was a "drug addict" and had left the children with other addicts while she partied. She subsequently failed to attend a drug screening. On May 12, 2005, T.T. reported that she had been beaten by S.T. At about the same time, D.T. reported - and S.T. confirmed - another incident of domestic violence between them. D.T. left the marital home and went to live at his mother's home with T.T. DYFS again substantiated abuse of T.T. by S.T.

By July 2005, DYFS completed an emergency removal of all the children from the home because of continued abuse and neglect. After hearings, an order was entered on November 7, 2005 finding that DYFS had demonstrated by a preponderance of the evidence that the children had been abused and neglected and left in the care of S.T.'s nineteen-year-old brother who was unable to manage them, particularly the child who required nebulizer treatments.

T.T. remained in the care of her paternal grandmother until February 2006, when the grandmother became too ill to care for the child. The child was then placed with her siblings, C.T. and A.T., in the care of their paternal aunt, W.T. In September 2006, however, DYFS received a referral alleging that the aunt disciplined the children by hitting them with a belt. DYFS then implemented a plan in which the aunt was prohibited from using any type of physical punishment on the children and was instructed to use "time-outs" to discipline them.

In October 2006, T.T. again reported that her step-mother abused her by burning her face and arm with a hot curling iron. This incident occurred on the first unsupervised overnight visit with the child after a lengthy period of supervised visits. DYFS substantiated these allegations. The parents were thereafter permitted only supervised visitation with the child. The supervision was provided by the children's paternal aunt, W.T.

Meanwhile, D.T.'s three children were still in the care and custody of their paternal aunt. In December 2006, the aunt reported that T.T. was out of control and had smashed her brother's head into a coffee table. During a screening interview, T.T. said that she was hearing voices and seeing things. She was subsequently admitted to the University of Medicine and Dentistry hospital (UMDNJ) for evaluation and was diagnosed with attention-deficit hyperactivity disorder (ADHD), for which Ritalin was prescribed.

In January 2007, Alan J. Lee, Psy.D., a licensed psychologist, undertook bonding evaluations on behalf of DYFS for each of the four children and their parents and paternal aunt. He reported that T.T., then eight years old, had "some degree of attachment and bonding" to her father, and that

it remains equivocal whether [T.T.] would suffer severe, enduring or irreparable psychological harm if her relationship with the birth father was permanently ended. Any emotional detriment might also be mitigated by counseling and treatment services, and [it] would appear that the issue of child welfare and child safety appears to be far more paramount and compelling. As such, assuming the birth parents and step-mother are not able to resume independent care of the minor child, other permanency planning for [T.T.] besides reunification with those adults will be supported.

With respect to T.T. and her step-mother, Dr. Lee reported that during the bonding evaluation session, there was no physical exchange or hug between S.T. and the child. Dr. Lee stated that "[w]hile the child clearly recognizes the step-mother . . . there are some concerns of the nature of the relationship. The child appeared to enjoy many of the interactions between herself and the step-mother, but the step-mother appeared to be often detached and apathetic towards . . . the child."

During T.T.'s bonding evaluation with her aunt, the two of them played "UNO." The aunt "kept teaching the child about the game and the child seemed engaged in the activity." Dr. Lee reported that the child "expressed the desire to continue living" with her aunt but that it was "equivocal" whether the child would be permanently harmed if that relationship ended.

A.T. was three years and eleven months old when the bonding evaluations between her parents and paternal aunt occurred in January 2007. Dr. Lee noted that the child had been removed from her parents' care in July 2005. With respect to her father, the child recognized him and he hugged her when he came into the room. The child referred to D.T. as "daddy" and they played together for a while. When the father left the room, however, the child "was able to separate with no acute distress." Dr. Lee concluded that "[t]here remains a low risk or likelihood of any kind of severe, enduring or irreparable psychological harm to the minor child if her relationship with the father was permanently ended."

In A.T.'s bonding evaluation with her mother, Dr. Lee reported that there was no hug, kiss or physical exchange of affection when S.T. came into or left the room. In Dr. Lee's opinion, the child "does not appear to have certain recognition of her birth mother, and has now for a protracted period not had to rely on her birth mother for primary care. She does not appear to have formed a significant or lasting attachment or relationship or psychological bond with her birth mother." In his opinion, there was a "relatively low risk of any kind of significant, enduring or irreparable psychological harm to the minor child if her relationship with her birth mother was permanently ended."

A.T. was also evaluated with respect to her paternal aunt, who had been her caregiver for about two months at the time. Dr. Lee noted that "[t]he child appeared to be responsive to [her aunt and] . . . . reached for [her aunt] and wrapped her right arm around [her aunt's] neck and kissed her on the left cheek." He observed that the child "seems to enjoy many aspects of her interactions and relationships with [her aunt]."

C.T. was five years old at the time of his bonding evaluation in January 2007 and was residing with his paternal aunt and siblings at the time. The child indicated that he enjoys living with his aunt. There was no hug or physical exchange between C.T. and his father, and Dr. Lee noted that "[w]hile the child certainly recognizes his birth father and seems to enjoy some aspects of their relationship, the strength of their relationship seems to be a bit equivocal and his attachment with his father does not appear to be remarkably strong." He further noted that "[t]he child's relationship with his father appears to be at times anxiety provoking and ambivalent. There does not appear [to be] compelling evidence of any kind of significant and positive psychological attachment or bond."

C.T. was then evaluated with his mother. Again, there was no physical hugging or affection between mother and child when she entered or left the room. During the observation, C.T. found a deck of cards and asked his mother to play "UNO" with him. While they played the game, they playfully accused each other of cheating. Dr. Lee reported that "[t]he child seems to have some recognition of his mother, although their relationship does not appear to be remarkably strong."

C.T. was also evaluated with respect to his paternal aunt. Dr. Lee noted that the aunt "was rather animated," and that "the child clearly appears to enjoy some aspects of interacting with [her]."

D.T., Jr., was two and one-half years old at the time of his bonding evaluation in March 2007. He had been in foster care under DYFS supervision for nineteen months by that time. During the first bonding session with D.T., the child fell asleep in his step-father's arms. A second session was scheduled and this time, the child became upset about fifteen minutes into the session, calling for "mommy," referring to the foster mother. The child became inconsolable and the foster mother was brought into the room to calm him down. She remained in the room and the child "clearly appeared clingy . . . towards her." When the foster mother asked the child to give the step-father a hug, he refused. Dr. Lee reported that "[t]he child does not appear to readily recognize the step-father . . . and does not appear to have formed a significant or positive relationship or attachment or bond with him." He determined that "there is a low likelihood of any kind of significant, enduring or irreparable harm that might result from termination of [the] relationship between the child . . . and the step-father."

D.T., Jr., was then evaluated with respect to his foster parents. Dr. Lee reported that the child "appears to relate very well with the foster father, and has apparently formed a significant relationship and psychological attachment and bond with [him]. At this point, to terminate or permanently end a relationship between the child . . . and foster father . . . would have a significant likelihood of resulting in severe, enduring and irreparable psychological harm to this minor child." With respect to the foster mother, Dr. Lee reported that

[t]he child has relied heavily on [her] and this household for a very protracted period of his life, totaling more than half of his life and through some very formative stages of his life. The child has formed a very positive and significant relationship, psychological attachment and psychological bond with [the foster mother]. To terminate this significant bond between [D.T., Jr.,] and [the foster mother] would have a significant likelihood of resulting in severe, enduring and irreparable psychological harm on the minor child.

Dr. Lee evaluated S.T. individually in June 2007. He found that her "overall cognitive and intellectual functioning appears to be reasonably adequate and free of severe overall deficits or disease." With respect to her personality functioning, however, his principal diagnosis was personality disorder, NOS, with narcissistic, avoidant, paranoid and antisocial features. He noted that she is "lacking in personal insight or awareness," and is "an emotionally and behaviorally reactive and potentially explosive individual who seems to have notable difficulty containing or controlling her emotional and behavioral displays." He found that she "seems to maintain a heightened level of anger and hostility that is often times manifested through her irritability and lability. She tends to be easily confused and disorganized by the presence of strong affects and emotions, and can be quite explosive and even aggressive when she feels angered." He indicated that there have been "repeated concerns . . . . surrounding inappropriate supervision of the children and her reported aggression and abuse of [T.T.], and . . . her self-admitted history of using physical and corporal punishment." Dr. Lee concluded that "[d]espite the passage of more than two years since the children's placement, and efforts for various services and rehabilitation, there remain significant concerns about [S.T.] being an independent caregiver to a minor child." He recommended that "[a]ny contact that she might have with the . . . children should be supervised and preferably in a public or professional environment."

In October 2007, S.T. was evaluated by Jesse Whitehead, Jr., Psy.D., a clinical psychologist who testified on her behalf. Dr. Whitehead found that S.T.'s overall cognitive functioning appeared to be "within normal limits," but the Child Abuse Potential Inventory was "corrupted as a result of an invalid 'Faking Good' index." Dr. Whitehead concluded, "with a reasonable degree of psychological certainty, that [S.T.] projects attitudes congruent with positive parenting." He noted, however, that S.T. was not yet ready for "assumption of the role of individual caregiver to her two children." He recommended "[c]ognitive reorientation methods geared to reframing assumptions about herself and the expectations of others [that] may be used gradually and with discretion . . . to accomplish the purpose of altering [her] dysfunctional beliefs." He further recommended continued involvement in anger management training to assist her "in controlling many of her negative thoughts and feelings which may directly influence unacceptable behavior." He recommended that visitation "be maintained in a supervisory mode until it [is] determined that her level of readiness for unsupervised and extended periods with her children is demonstrated." Moreover, Dr. Whitehead found no indication that S.T. should be reunited with her step-daughter T.T. and further indicated that DYFS should continue monitoring and supervising her.

D.T. was evaluated by David F. Bogacki, Ph.D., a board- certified clinical psychologist, who testified on his behalf. Dr. Bogacki reviewed a substantial number of documents, including all of the bonding reports done by Dr. Lee. Dr. Bogacki estimated that D.T.'s "intellectual functioning was within the Average range without evidence of a learning disability or cognitive impairment." He noted that D.T. had a history of antisocial conduct. He diagnosed D.T. as suffering from antisocial and narcissistic personality traits. He further noted that D.T.'s polysubstance abuse is "in [f]ull [s]ustained [r]emission."

Dr. Bogacki conducted an independent bonding evaluation between D.T. and his three biological children, A.T., C.T. and T.T., who were by then four, six and nine, respectively. After observing D.T. with all three children together, Dr. Bogacki noted that "[t]here is evidence of emotional attachment to all three children. If parental rights were terminated and the children were not able to see [D.T.] any longer, the children would clearly suffer from some degree of emotional harm." He suggested that this was "a good case for a Kinship Legal Guardianship."

II

After hearing all of the testimony and reviewing the extensive record in this matter, the trial court rendered a decision on the record of November 28, 2007, during which it summarized the facts and considered the statutory factors for termination of parental rights set forth in N.J.S.A. 30:4C-15.1. The court concluded

that neither of these parents are capable of taking care of their children. We have not one evaluation, whether it be an evaluation presented by defendants or by the law guardian or the Division, that recommends reunification at this time. On the other hand, [the paternal aunt] has provided a safe and stable home for three of the children and she has evidenced a willingness to provide whatever the needs are for the children; and, in addition, we have the foster caregivers who are really the only parents that young [D.T., Jr.,] has ever known.

As I stated previously, I am satisfied that the Division has proven by clear and convincing evidence that the parental rights of these parents . . . should be terminated . . . .

The court further noted that "[t]ime is of the essence," and that "there is a limit to the amount of time that DYFS can spend attempting to reunite a family." Quoting from our opinion in N.J. Div. of Youth & Family Servs. v. C.S. and J.G., 367 N.J. Super. 76, 111 (App. Div.), certif. denied, 180 N.J. 456 (2004), it noted that "[t]he emphasis has shifted from protracted efforts for reunification with a birth parent to an expeditious, permanent placement to promote the child's well-being." It commented that "when DYFS's objective is reunification and services are offered it's foolhardy for the parents not to participate, but to participate . . . in a meaningful way so that the conditions that existed which led to the removal of the children could be changed because they have learned from the services that have been provided."

III

In her brief, S.T. argues:

POINT I

THE TRIAL COURT ERRED BY ORDERING THE DIVISION TO CHANGE THE PERMANENCY PLAN FROM REUNIFICATION TO TERMINATION OF PARENTAL RIGHTS BASED ON THE FINDING OF ABUSE AND NEGLECT AFTER THE HEARING HELD ON NOVEMBER 8, 2006.

A. The Court Erred In Finding Abuse and Neglect Following The Fact-Finding Hearing Held On November 8, 2006.

B. The Division Was Not Justified In Changing The Permanency Plan To Termination Of Parental Rights.

POINT II

THE DIVISION FAILED TO PROVE THE FIRST PRONG OF THE STANDARD FOR TERMINATION OF PARENTAL RIGHTS AS SET FORTH IN N.J.S.A. 30:4C-15.1a BY CLEAR AND CONVINCING EVIDENCE BECAUSE THERE WAS NO SHOWING THAT S.T. WOULD CONTINUE TO ENDANGER THE HEALTH, SAFETY AND DEVELOPMENT OF C.T., A.T., AND D.T., JR.

POINT III

THE DIVISION FAILED TO PROVE THE SECOND PRONG OF THE STANDARD FOR TERMINATION OF PARENTAL RIGHTS AS SET FORTH IN N.J.S.A. 30:4C-15.1a BY CLEAR AND CONVINCING EVIDENCE BECAUSE THERE WAS INSUFFICIENT PROOF THAT THE CHILDREN WOULD SUFFER SERIOUS AND ENDURING HARM IF SEPARATED FROM THE FOSTER FAMILY.

POINT IV

THE DIVISION FAILED TO PROVE THE THIRD PRONG OF THE STANDARD FOR TERMINATION OF PARENTAL RIGHTS AS SET FORTH IN N.J.S.A. 30:4C-15.1a BY CLEAR AND CONVINCING EVIDENCE BECAUSE THE COURT FAILED TO CONSIDER OTHER ALTERNATIVES.

POINT V

THE DIVISION FAILED TO PROVE THE FOURTH PRONG OF THE STANDARD FOR TERMINATION OF PARENTAL RIGHTS AS SET FORTH IN N.J.S.A. 30:4C-15.1a BY CLEAR AND CONVINCING EVIDENCE BECAUSE THERE WAS NO PROOF THAT TERMINATION WOULD NOT BE HARMFUL TO THE CHILDREN.

S.T. initially contends that the trial court's finding of abuse and neglect at the November 8, 2006 fact-finding hearing "lacked a sufficient evidentiary basis." The fact-finding hearing, however, occurred during the course of the protective services litigation under docket number FN-15-3-06. That litigation was terminated on June 11, 2007. S.T. did not file a notice of appeal from that matter and is now barred from doing so. R. 2:4-1; N.J. Div. of Youth & Family Servs. v. K.M., 136 N.J. 546, 558, 562 (1994) (holding that Title 30 guardianship actions differ from Title 9 abuse and neglect actions, and consequently "[a]n appeal in one does not grant the Appellate Division jurisdiction over the other").

IV

In his appeal, D.T. argues:

POINT I

THE EVIDENTIARY FINDINGS OF THE TRIAL COURT DO NOT SUPPORT A LEGAL FINDING THAT ALL FOUR PRONGS UNDER N.J.S.A. 30:4C-15.1a WERE MET IN THIS CASE.

a. The first prong of the best interests test was not satisfied.

b. The second prong of the best interests test was not satisfied.

c. The third prong of the best interests test was not satisfied.

d. The fourth prong of the best interests test was not satisfied.

POINT II

THE TRIAL COURT MUST BE REVERSED BECAUSE IT DID NOT APPLY A CLEAR AND CONVINCING EVIDENCE STANDARD TO DYFS'S BURDEN OF PROOF REQUIRED BY CASE LAW.

Since both parties argue essentially the same issues in these points, we will address them simultaneously.

V

S.T. and D.T. both argue that DYFS failed to meet the first prong of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. Under this prong, the focus is on the harm arising from the parent-child relationship. In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). Children are entitled to a permanent, safe and stable home. Id. at 348-49. A parent's inability to provide day-to-day nurturing for his or her child over a prolonged period of time is a harm cognizable under the first prong. Ibid.

Here, DYFS presented substantial evidence that the safety, health and/or development of the children has been and will continue to be endangered by their relationships with both parents.

D.T. argues that he never physically harmed or abused the children. He was, however, involved in numerous episodes of domestic violence with S.T., many of them in the presence of the children. D.T.'s contribution to the instability of the household and his failure to protect the children satisfy the statutory standard.

All of the experts involved, including both defendants' psychologists, agreed that the children could not be returned to their parents' care in the near future. There is a limit to the amount of time DYFS can spend attempting to reunite a family. Here, the children were removed from parental custody and care in July 2005. Thereafter, the parents were given numerous opportunities for treatment and parental training, which were unsuccessful, particularly with respect to S.T.

With respect to D.T., we cannot overlook the fact that in the first unsupervised overnight visit after a lengthy period of supervised visits, S.T. inflicted injury on T.T. Although D.T. was present in the home at the time and argued with S.T. after the child was injured, he was unable to protect the child from S.T.'s outburst.

D.T. argues throughout his brief that he was compliant with DYFS services, was actively involved in taking steps to be reunited with his children, and was determined to take positive steps toward building a successful marriage. Nevertheless, his own psychologist, Dr. Bogacki, did not recommend reunification of the children with D.T. Rather, he suggested a kinship legal guardianship.

VI

Both parties argue that DYFS failed to prove by clear and convincing evidence the second statutory prong, that the parents are unwilling or unable to eliminate the harm facing the children or to provide a safe and stable home for them. N.J.S.A. 30:4C-15.1(a)(2). This prong focuses on parental unfitness and overlaps the proofs submitted on the first prong. In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999).

"While the second prong more directly focuses on conduct that equates with parental unfitness, the two components of the harm requirement, N.J.S.A. 30:4C-15.1(a)(1) and (2) are related to one another, and evidence that supports one informs and may support the other as part of the comprehensive basis for determining the best interests of the child." Ibid. (citing K.H.O., supra, 161 N.J. at 348-49, 351-52). A trial court must determine whether it is "reasonably foreseeable" that the parents are able to stop harming the children or that they will no longer place them in "substantial jeopardy to physical or mental health." N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 607 (1986).

DYFS worked toward reunification with both parents for almost two years - from July 2005, when the children were removed, through the April 2007 permanency hearing - providing evaluations, treatments, counseling, supervised and unsupervised visitation. Nevertheless, the parents were unable to eliminate the harm facing the children or to provide a safe and stable home for them. Their own experts recommended additional time and treatments to reach the goal of reunification. It is notable, however, that during her evaluation with Dr. Lee on June 13, 2007, S.T. blamed DYFS "for extending the case so long." Dr. Lee observed that she "seemed to have little if any acceptance of responsibility for how she not only began the instant matters but seemingly perpetuated the same."

Parents of children under DYFS supervision do not have unlimited time to reform their behaviors and obtain the training and skills necessary to reunite their families. The well-being of the children requires stability and permanent placement. C.S. and J.G., supra, 367 N.J. Super. at 111.

The trial court found that the parents had "participated in some of the services that ha[d] been offered, but their participation ha[d] done little or nothing to change their circumstances that led to the out-of-home placement of their children." The court noted that "[w]e have not one evaluation, whether it be an evaluation presented by defendants or by the law guardian or [DYFS], that recommends reunification at this time." The record fully supports the court's finding on the second prong.

VII

Both parents argue that DYFS failed to prove the third statutory prong, namely that it made reasonable efforts to provide services to help the parents correct the circumstances that led to the children's placement outside the home. N.J.S.A. 30:4C-15.1(a)(3).

The reasonableness of the services offered by DYFS must be gauged on a case-by-case basis. D.M.H., supra, 161 N.J. at 393. If a parent is unwilling or unable to cooperate with services offered or to eliminate the harm to the child, DYFS may determine that unification is not a viable option and seek termination of parental rights. A.W., supra, 103 N.J. at 610.

Prior to the enactment of the Federal Adoption and Safe Families Act of 1997 (ASFA), 42 U.S.C.A. 670-79, DYFS was required to meet the "more demanding standard of exerting 'diligent efforts' in attempting family reunification." N.J. Div. of Youth & Family Servs. v. A.R.G., 361 N.J. Super. 46, 63 (App. Div. 2003), aff'd in part, modified in part, remanded by, 179 N.J. 264 (2004). Since the adoption of the ASFA, however, DYFS is required to provide only "reasonable efforts." N.J.S.A. 30:4C-15.1(a)(3). "Reasonable efforts" consist of the following:

(1) consultation and cooperation with the parent in developing a plan for appropriate services;

(2) providing services that have been agreed upon, to the family, in order to further the goal of family reunification;

(3) informing the parent at appropriate intervals of the child's progress, development and health; and

(4) facilitating appropriate visitation.

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

Moreover, DYFS can be excused from providing services altogether if certain conditions are met. N.J.S.A. 30:4C-11.3. "When determining whether reasonable efforts are required to reunify the child with the parent, the health and safety of the child and the child's need for permanency shall be of paramount concern to the court." Ibid.

Here, DYFS made more than "reasonable efforts" to provide the parents with opportunities and services aimed at reunification before the permanency plan was changed to termination of parental rights in April 2007. While the parents did undertake some of the programs, their overall performance simply did not meet the necessary standard for reunification with their children.

VIII

With respect to the fourth prong under N.J.S.A. 30:4C-15.1(a), the parents argue that DYFS failed to demonstrate by clear and convincing evidence that termination of parental rights will benefit the children more than it will harm them. The law recognizes that some harm is a natural consequence of severing biological ties. K.H.O., supra, 161 N.J. at 355. "The question to be addressed under that prong is whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with her natural parents than from the permanent disruption of her relationship with her foster parents." Ibid.

"To determine whether the comparative harm is proscribed by the fourth prong in a case involving a child in foster care . . . the court must inquire into the child's relationship both with her biological parents and her foster parents. 'Weighing the potential harm that terminating [the child's] relationship with her mother against that which might come from removing her from her foster home is painfully difficult, but it is a decision that necessarily requires expert inquiry specifically directed to the strength of each relationship.'" Ibid. (quoting In re Guardianship of J.C., 129 N.J. 1, 25 (1992)).

As the trial court noted, none of the experts recommended reunification of the children with their parents. Neither of the parents presented a viable plan for reunification and neither was able to demonstrate that he or she could provide a secure and stable home for the children.

IX

We are satisfied that DYFS has proven by clear and convincing evidence that S.T.'s parental rights must be terminated finally and permanently. There is virtually no evidence in the record before us to indicate that she has made adequate progress in containing her anger and hostility or developing the necessary skills to parent young children. Dr. Lee's bonding evaluations indicated that the children had little emotional attachment to their biological mother. Even Dr. Whitehead did not recommend returning the children to her care. The children need permanency and stability in their lives and cannot wait indefinitely for their biological mother to provide it. C.S. and J.G., supra, 367 N.J. Super. at 111.

The evidence did demonstrate, however, that D.T. had made progress in organizing his life and enhancing his parenting skills. Dr. Lee's bonding evaluations indicated that the children were emotionally attached to their biological father and that he interacted well with them. Although Dr. Bogacki did not think D.T. was able to assume custody of his three children, he suggested that kinship legal guardianship would be appropriate.

Kinship legal guardianship provides a desirable alternative to termination of parental rights in cases where adoption is neither feasible nor likely or where the kinship caregiver is related to the birth parent. N.J. Div. of Youth & Family Servs. v. D.H. and J.V., 398 N.J. Super. 333, 339-40 (App. Div. 2008). Given the fact that D.T.'s three children have remained in his sister's care since July 2005 and appear to be doing well in that environment, we are remanding the matter to the trial court for consideration of a kinship legal guardianship with the children's paternal aunt, W.T.

In considering kinship legal guardianship, the trial court shall review the statutory factors:

(1) [I]f proper notice was provided to [D.T.];

(2) the best interests of the child[ren];

(3) the kinship caregiver assessment;

(4) . . . the recommendation of [DYFS], including any parenting time or visitation restrictions;

(5) the potential kinship legal guardian's ability to provide a safe and permanent home for the child[ren];

(6) the wishes of the child[ren]'s parents, if known to the court;

(7) the wishes of the child[ren] if the child[ren are] 12 years of age or older, unless unique circumstances exist that make the child[ren]'s age[s] irrelevant;

(8) the suitability of the kinship caregiver and the caregiver's family to raise the child[ren];

(9) the ability of the kinship caregiver to assume full legal responsibility for the child[ren];

(10) the commitment of the kinship caregiver and the caregiver's family to raise the child[ren] to adulthood;

(11) the results from the child abuse record check . . .; and

(12) the results from the criminal history record background check and domestic violence check[.]

[N.J.S.A. 3B:12A-6(a).]

The court shall not grant kinship legal guardianship unless it is satisfied, by clear and convincing evidence, that:

(1) [D.T.]'s incapacity is of such a serious nature as to demonstrate that [he is] unable, unavailable or unwilling to perform the regular and expected functions of care and support of the child[ren];

(2) [D.T.]'s inability to perform those functions is unlikely to change in the foreseeable future;

(3) . . . [DYFS] exercised reasonable efforts to reunify the child[ren] with [D.T.] and these reunification efforts have proven unsuccessful or unnecessary; and . . . adoption of the child[ren] is neither feasible nor likely; and

(4) awarding kinship legal guardianship is in the child[ren]'s best interests.

[N.J.S.A. 3B:12A-6(d).]

 
Affirmed as to termination of S.T.'s parental rights; remanded for consideration of kinship legal guardianship by W.T. with respect to D.T.'s parental rights.

D.T., Jr., had been placed in foster care when it was determined that he was not D.T.'s son.

The two children referred to are A.T. and C.T.

S.T.'s point headings refer to each of the four factors in N.J.S.A. 30:4C-15.1(a) but do not reflect the exact statutory language. We have addressed her arguments with respect to each of the four factors.

(continued)

(continued)

28

A-1932-07T4

RECORD IMPOUNDED

May 4, 2009