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

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3097-08T43097-08T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

D.M.

Defendant-Appellant.

________________________________

IN THE MATTER OF THE

GUARDIANSHIP OF A.M.M.,

A Minor.

_________________________________________________

 

Submitted November 12, 2009 - Decided

Before Judges Payne, Miniman and Waugh.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Ocean County, Docket No. FG-15-44-08.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Michael C. Kazer,

Designated Counsel, on the brief).

Anne Milgram, Attorney General, attorney

for respondent (Lewis A. Scheindlin,

Assistant Attorney General, of counsel;

Stephanie Anatale, Deputy Attorney General,

on the brief).

Yvonne Smith Segars, Public Defender,

Law Guardian, attorney for minor child (Damen J. Thiel, Designated Counsel, on

the brief).

PER CURIAM

D.M., the father of A.M.M., has appealed from a Family Part order terminating his parental rights to his son, who was four years of age at the time of the termination hearing. L.M., the mother of the child and a severe alcoholic who often engages in acts of domestic violence when intoxicated, has agreed to an identified surrender of A.M.M. to her mother and her mother's husband (maternal grandparents) on the condition that they adopt the child. The maternal grandparents have expressed a willingness to adopt A.M.M.

In some respects, the present matter resembles New Jersey Div. of Youth & Fam. Servs v. M.M., 189 N.J. 261 (2007), in that the father has demonstrated a better capacity for caring for his son than has the mother, but the continued presence of the mother in the home renders reunification dangerous to the child. However, in this matter, D.M.'s mental condition and his noncompliance, or selective compliance, with psychological and other offered services provides a further basis for affirming the termination of his parental rights. The facts follow.

I.

D.M. and L.M. met while in substance abuse treatment and later were married. Their son, A.M.M., was born in the Spring of 2003. D.M. suffers from stage four small cell carcinoma of the lung, presently in remission. He is a heroin addict, and at the time of trial, was taking methadone as treatment for his addiction and for pain management. The methadone causes him to nod off, which creates a fire hazard if he is smoking at the time. An episode of domestic abuse occurred when L.M., observing D.M.'s conduct, reacted violently when she realized that D.M. had caused the carpet of the couple's home to smolder. D.M. has spent six years in jail on assault and drug charges, but has been offense-free since the birth of his son. He has a general education degree and attended four years of vocational technical school studying refrigeration. D.M. is presently employed.

L.M. has a history of severe alcohol abuse as well as heroin addiction and has served an eighteen-month prison sentence for drug possession. The couple has been involved in multiple domestic violence incidents, in large measure provoked by L.M.'s intoxication. However, D.M. has on several occasions escalated the confrontation between the two, and has caused physical harm to L.M. A.M.M. has observed the domestic violence and been frightened by it. Although, at the time of trial, the couple was nominally separated, they spent considerable time together. Fighting has continued. Although D.M. has stated that he would separate from L.M. if that meant he could retain his parental rights, his actions have belied his words. Moreover, on several occasions, he has claimed to be separated from L.M. when he in fact was not.

The family came to the attention of the Division of Youth and Family Services (DYFS) on June 26, 2006 as the result of an episode of domestic violence. Nevertheless, because A.M.M. was visiting his maternal grandparents in South Carolina and thus was not present when the violence occurred, neglect was not substantiated. At that time, however, D.M. and L.M. signed a case plan that required them to take the child to a babysitter during the day until day care could be put in place. The DYFS case worker recommended substance abuse evaluations for both parents, a psychological or psychiatric evaluation for L.M. as the result of symptoms of depression or bipolar disorder, and counseling for the family.

Shortly thereafter, in July 2006, D.M. reported to DYFS that his wife had gone to Philadelphia to purchase drugs and was missing for three days. A few days later, L.M. reported domestic abuse to DYFS, but when a caseworker responded, L.M. recanted. A second case plan was signed, in which L.M. agreed to participate in out-patient substance abuse treatment, to submit to random urine screenings, and to comply with all recommendations of DYFS. If L.M. were found to have a single dirty urine, she was to enroll in in-patient substance abuse treatment. D.M. agreed not to allow L.M. to care for their son. An October 9, 2006 DYFS record indicated that the family was compliant with plans. L.M. was participating in a substance abuse treatment program and in-home family counseling was initiated. At the time, supervision of L.M.'s care of her child was discontinued.

However, on November 21, 2006, DYFS received a further referral for domestic violence. The police report of the incident indicated that, upon responding, the police officers found L.M. bleeding from the head, allegedly as the result of being pushed down the front steps. D.M., who had visible injuries to his face, stated to the police that he had been attacked by L.M. while he was "on the nod" because his cigarette had burned the carpet. Upon a determination by the police that L.M. was the initial aggressor, but that D.M. had responded with greater force than necessary in pushing L.M., both were arrested and charged with assault. A.M.M. was found roaming the house clad in only a diaper among shards of broken glass caused by the altercation. Neglect was substantiated. On November 22, 2006, D.M. and L.M. signed another case plan in which they agreed to live apart from each other and to be supervised by named friends at all times when caring for their son. In lieu of that plan, the couple entrusted their child to the care of his maternal grandparents in South Carolina.

Matters did not proceed smoothly. On November 29, 2006, D.M. contacted DYFS stating that he refused to comply with its recommendation that he undergo a psychological evaluation, and he refused to provide medical releases to permit DYFS to obtain records of his methadone treatment. Upon threatening to take his son back, D.M. was informed that he could not do so until completion of services had occurred.

During this period, both D.M. and L.M. began telephoning the maternal grandmother, threatening to have her arrested for allegedly kidnapping their son. On December 12, 2006, D.M. and L.M. followed through on their threats by contacting the police. However, the police declined to act upon learning that the grandparents had written authorization to keep the child in their custody.

On December 20, 2006, L.M. signed a further DYFS case plan in which she agreed not to regain custody of her child until the couple had complied with services, which included substance abuse evaluations, random drug screenings, in-home counseling, and parenting classes. However, D.M., who was not home at the time, later refused to comply with DYFS's recommended substance abuse evaluation.

The couple returned their son to their care in New Jersey on December 23, 2006. Upon learning of this fact, on January 8, 2007, DYFS moved for and obtained an order granting it care and supervision of the child. In a February 7, 2007 order, legal custody of the child by his parents was continued. L.M., having been noncompliant, was again ordered to undergo substance abuse treatment, and D.M. was ordered to undergo a substance abuse evaluation. Both were ordered to cooperate with Children, Adolescent and Family Support Services (CAFS) in order to address their domestic violence issues. A home study/interstate referral pertaining to the maternal grandparents was also ordered. Further intensive out-patient treatment of L.M. by Agape Counseling Services was arranged.

On February 21, 2007, DYFS was informed that D.M. had failed for the second time to attend a scheduled substance abuse evaluation. However, he did submit to an evaluation on March 8, 2007, at which time it was determined that he needed to participate in an extended assessment as the result of his high levels of methadone consumption.

On March 16, 2007, the parties agreed to another case plan which temporarily placed A.M.M. with his maternal grandparents. During March and April, 2007, L.M. continued to drink heavily, and she was terminated from a treatment program offered by the Refuge House Ministry of Women in Pennsylvania as the result of her negative attitude. On April 23, 2007, the CAFS therapist assigned to L.M. and D.M. reported her inability to contact the family. Because of these facts, and because DYFS needed an order of custody in order to monitor A.M.M.'s placement outside the home, on April 30, 2007, DYFS obtained temporary custody of the couple's child by consent. He remained with his grandparents in South Carolina.

At a compliance review hearing, conducted on May 30, 2007, physical custody of A.M.M. was continued with his maternal grandparents. L.M. was ordered to undergo intensive out-patient substance abuse treatment. D.M. was ordered to attend the previously required extended assessment. Both were ordered to attend individual and couple's counseling and parenting skills training. DYFS was ordered to work out a budget for reimbursement of the cost of the parents' visits to South Carolina to see their son.

On August 10, 2007, L.M. claimed that she was assaulted by a paramour, and in retaliation, threw paint on his vehicle and smashed the front and rear windows. L.M., who was severely intoxicated, was arrested and charged with criminal mischief. On August 13, D.M. contacted the police to report that L.M. was intoxicated, and on August 15, L.M. was found to have been wandering in the woods in an intoxicated state. She was found in a WaWa parking lot on August 18, similarly intoxicated. The police report described her as "irrational" and as exhibiting "dramatic mood swings." For that reason, she was transported to a hospital for further evaluation. On August 21, D.M. reported L.M. as missing, but she was found on the following day with her paramour.

Neither parent appeared at a further hearing conducted by the court on August 22, 2007. At this time, the grandparents' physical custody of A.M.M was continued. Both parents were ordered to undergo psychological evaluations, to submit to random urine screenings, and to attend parenting and anger management training. Police reports indicate that both L.M. and D.M. were found to be intoxicated on August 27, 2007. Additional reports of L.M.'s intoxication also appear.

On October 29, 2007, an additional hearing occurred in the presence of both parents. The order issued following that hearing indicates that A.M.M. remained with his grandparents. L.M. was ordered to undergo psychological evaluation, and it was noted that D.M. had refused such an evaluation, stating that he could not attend because of his work schedule.

A permanency hearing took place on December 20, 2007 in the presence of both parents. At that time, DYFS presented its plan for termination of parental rights as the result of non-compliance with services and adoption of A.M.M. by his grandparents. The agency was ordered to file for guardianship within sixty days, but to provide services in the interim.

In February 2008, L.M. and D.M. made their first joint visit to A.M.M. in South Carolina. Although the visit "was ok," while at the airport waiting for their return flight, L.M. became intoxicated and started to act out. She was eventually arrested, charged with simple assault, disorderly conduct, and resisting an officer serving papers, and she was jailed. The grandmother requested that DYFS not arrange any further visitation between A.M.M. and his parents, and those visits were later suspended by court order. At the termination trial, the grandmother testified to two instances in which she had received calls from A.M.M.'s parents while a verbal altercation between the two was underway.

On February 15, 2008, DYFS filed an order to show cause and verified complaint seeking termination of the rights of L.M. and D.M. to their son A.M.M. On March 5, 2008, the return date of the order to show cause, both parents were ordered to attend bonding evaluations. L.M. was ordered to undergo inpatient substance abuse treatment and to attend domestic violence counseling. Both parents were ordered to attend parenting skills and anger management classes.

On April 2 and 9, 2008, D.M. was evaluated on behalf of DYFS by psychologist Alan J. Lee. In his report, Dr. Lee noted that D.M. wished to regain custody of his child, but that D.M. had stated that he would only be ready to care for A.M.M. in six months, "after stabilizing his situation." Despite D.M.'s stated wishes, Dr. Lee did not recommend that he be given custody at that time, stating:

[D.M.] presents with a number of deeply ingrained and maladaptive personality and character traits that adversely impact his overall functioning in different areas of his life, especially in terms of his hedonistic behaviors, negative and at times hostile attitude and demeanor, self-absorption, and also some rather poor and flawed relationships. He continues to present with a heightened risk of substance abuse relapse, criminal recidivism, and generally poor functioning across different areas of his life. He has not been fully compliant with the various Division recommendations since the placement of his child, and seems to at times enable his wife's substance abuse issues but also generally exercise some rather poor and flawed judgment and decision-making. He is not supported at this time to be an independent caregiver to any minor child, and other permanency planning besides reunification of the child . . . to his birthfather appears supported.

Dr. Lee's diagnostic impressions included impulse control disorder, NOS [not otherwise specified]; dysthymic disorder; anxiety disorder, NOS, rule out intermittent explosive disorder; and personality disorder, NOS, with avoidant, borderline and antisocial traits and narcissistic features. At trial, Dr. Lee testified that his conclusion that D.H. should not be awarded custody of A.M.M. was based in part upon D.H.'s lack of empathy, which impaired his ability to understand A.M.M.'s needs and respond proactively to them. Dr. Lee also noted evidence of the continuing relationship between L.M. and D.M. as compromising D.M. abilities as a caretaker. However, he stated that even if that relationship were terminated a circumstance that did not appear likely concerns regarding D.M.'s ability to parent would still remain.

D.M. was additionally evaluated by defense psychologist Thomas J. PlaHovinsak. In his report, the doctor described the deterioration of the marriage between L.M. and D.M. commencing at the time of D.M.'s diagnosis of cancer in December 2004, at which time the family experienced stress not only because of D.M.'s illness but also because of his absence from work. In 2005, L.M. began again to abuse alcohol and to engage in acts of domestic violence. In 2006, she took up with a boyfriend and for some months lived with that boyfriend, leaving D.M. to care for A.M.M. Although D.M. reported that the couple reconciled, L.M.'s domestic violence and drinking continued. During this year, L.M. obtained a different boyfriend and for periods of time, left the residence. The doctor noted that as a result of family dysfunction, custody of A.M.M. was given to L.M.'s mother and her husband in August through December 2006, and commencing again in March 2007.

According to Dr. PlaHovinsak, at the time of his evaluation of D.M. in June 2008, D.M. was being given 80 m.g. of methadone weekly. The doctor noted that D.M. "had been referred for treatment/evaluations by DYFS but was inconsistent in attending the appointments. He related that several were missed because he opted to work instead."

At the conclusion of the evaluation, Dr. PlaHovinsak found as clinical impressions, bipolar disorder I and personality disorder, NOS. He stated:

The results of this psychological evaluation suggest that [D.M.] has a bipolar disorder which to date has gone untreated. His impulsivity, irritability, substance abuse, poor judgment, legal problems, inattentiveness, and general presentation that are described in the records and were in part demonstrated during this evaluation are consistent with this diagnosis. Accordingly, it is strongly recommended that [D.M.] be referred to a psychiatrist who can prescribe him medication to help treat the symptoms. He would also benefit from supportive therapy that should focus on helping him to make better decisions in his life. Foremost among these decisions is his need to end his relationship with [L.M.] because according to the record she continues to abuse alcohol and to act in a self-destructive manner.

In discussing D.M.'s relationship with his son A.M.M., the doctor noted that the child had to be removed from the home because of family fighting. "However," he noted,

the records also indicate that [D.M.] did not directly harm his son and was not abusing any type of alcohol and drugs himself. He was however guilty of exercising extremely poor judgment in believing that his wife would change, thereby placing his son at risk to witnessing the fights that ensued.

In summary, Dr. PlaHovinsak concluded that D.M. should not have his parental rights denied if he showed diligence in following the treatment recommendations contained in the doctor's report. However, the doctor continued, "if he is noncompliant with his treatment or persists in pursuing a relationship with [L.M.], then he will have demonstrated that he continues to act with poor judgment with regards to his son and should not be the custodial parent of him." The record does not contain any evidence of compliance with the doctor's recommendations.

As a final matter, both Dr. Lee and Dr. PlaHovinsak conducted bonding evaluations between D.M. and A.M.M., and Dr. Lee conducted a bonding evaluation between the maternal grandparents and A.M.M. Dr. Lee noted that when D.M. entered the observation room, A.M.M. ran to him, exclaiming "Daddy" and embracing him. Further, Dr. Lee found that D.M. "tried to have good affect and intonation with the child" while playing on the floor. Nonetheless, he found that the child showed no distress and appeared unfazed when D.M. left the room and did not approach him when he returned. When questioned whether he wished to return to D.M., the child responded that it would not be "fair" to his grandparents. According to Dr. Lee, A.M.M. appeared to be "frustrated and upset by this discussion." The doctor concluded:

[A.M.M.] appears to have certain recognition of his birthfather, [D.M.], although his history of residing with [D.M.] seems to have reflected some degree of chaos and instability . . . . While [A.M.M.] certainly appears to have recognized and recalled his birthfather and enjoys some interactions with him, his attachment and relationship with his birthfather appears ambivalent and insecure. There does not appear to be compelling evidence of a significant psychological attachment or bond between [A.M.M.] and his birthfather, and related to this it appears equivocal whether the child would suffer severe, enduring, or irreparable psychological harm if his relationship with his birthfather was permanently ended.

In contrast, Dr. Lee found A.M.M. had a "very positive and stable relationship and attachment" to his grandmother and grandfather, and that "there would be a significant likelihood of severe, enduring, and irreparable psychological harm to [A.M.M.] if his relationship with [his grandparents] was permanently ended."

Unlike Dr. Lee, Dr. PlaHovinsak conducted a bonding evaluation only between A.M.M. and his natural father, and that evaluation was done in a far less formal manner that relied on overheard responses to interactions occurring in the waiting room, not observed responses in a specially equipped room. Although Dr. PlaHovinsak found the bond between A.M.M. and D.M. to be strong, he had no basis for comparing it with any bond formed with the grandparents.

Testimony was divided as to whether D.M. had maintained contact with A.M.M. while he was residing with his grandparents in South Carolina. It was uncontested that D.M. had visited the child only once. However, he stated that he attempted to call his son multiple times per week, but had often been unsuccessful, either reaching an answering machine or being told that the child did not wish to speak to him. The maternal grandmother testified at trial that D.M. had only called once, independently, since A.M.M. had been placed with her, but that D.M. had participated in calls placed by L.M.

The record reflects that A.M.M. has thrived since his placement with his grandparents, who have taken over almost all the expenses of his care. While with them, the child has undergone surgery to correct a "lazy-eye" condition. DYFS visits to the grandparent's home, conducted every three months, resulted in positive reports of A.M.M.'s living conditions and of A.M.M.'s temperament. In an in camera interview with the Family Part judge, A.M.M. expressed a desire to remain with his grandparents. The judge recounted A.M.M.'s comments in the interview as follows:

[A.M.M.] stated that he is four years old and lives in South Carolina with his "grandma and grandpa." He stated that he does not talk to his father much and has not seen him in a long time. He remembers that when he lived with his parents there was a lot of "hitting and punching." The child then became very animated and demonstrated to the court what he observed during these confrontations, forcefully moving both hands in a pushing motion. He said these incidents made him scared and, in order to escape, he had to go into his room to watch cartoons. He unequivocally told the court that he wants to stay with his grandma and grandpa.

When the maternal grandmother was asked if she observed any effects of the tumultuous relationship between L.M. and D.M. on A.M.M., she responded:

Number one, every time he saw a police car go by, he would say mommy and daddy got taken away in a police car. The first couple of weeks he was [in South Carolina] he had night sweats. He'd wake up just ringing wet at night. That passed as time went on. Other than when we brought him back that time to stay, I mean, he reeked so badly of cigarette smoke that we had to take him in and give him a bath immediately, wash his clothes, and I never even brought the suitcase in the house.

After recounting this evidence in a lengthy, thorough and well-considered opinion, Judge Guadagno ordered that D.M.'s parental rights to A.M.M. be terminated.

II.

We are satisfied, following our independent review of the record, that the decision of the Family Part judge was soundly based upon clear and convincing proof in the record and that the four prongs of the "best interests of the child" test set forth in New Jersey Div. of Youth & Fam. Servs v. A.W., 103 N.J. 591, 602-11 (1986) and codified in N.J.S.A. 30:4C-15.1(a) were met in this case.

The relevant standards provide that parental rights may be terminated upon a showing that:

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

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

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

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

[Ibid.]

The standards that we have just set forth are to be judged as an integral whole. In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999), and their application is extremely fact sensitive. Ibid. (citing Matter of L.A.S., 134 N.J. 127, 139 (1993)). Parental fitness is the key to determining the best interests of the child. Ibid.

In his written opinion following trial of this matter, the Family Part judge found that "[t]he history of domestic violence, the unaddressed mental health issues, [D.M.'s] refusal to separate from [L.M.] and his unaddressed anger management issues all establish the first prong by clear and convincing evidence." On appeal, D.M. contends that first-prong harm to a child must be "conduct-based." New Jersey Div. of Youth & Fam. Servs v. G.L., 191 N.J. 596, 608 (2007). Although D.M. concedes that a parent's relationship with another may be an appropriate consideration in a best interests analysis, he asserts that a parent's rights remain individual in nature. Thus, he argues that it is contrary to best interests criteria for a trial court to terminate parental rights merely because the other parent is unfit or has surrendered her parental rights to the child in question.

We do not read the record as D.M. construes it, and therefore reject his position. First of all, it is clear from the record that although L.M. initiated most of the domestic violence occurring in the home, D.M.'s often-recognized anger management difficulties contributed to its escalation. Thus, the judge's finding was not based simply upon L.M.'s conduct, but also upon potentially dangerous personality traits that D.M. has failed to address. We note further in this regard that D.M.'s own psychological expert diagnosed D.M. as suffering from an untreated bi-polar disorder (similarly recognized by Dr. Lee as a dysthymic disorder) and that he conditioned a recommendation for return of custody upon treatment of that condition, yet such treatment was not undertaken.

Moreover, by refusing to sever his relationship with L.M., D.M. perpetuated the atmosphere of violence to which A.M.M. was exposed. Thus, although it is true that D.M. caused no harm to A.M.M. at times when the child was in his sole custody and while L.M. was out of the house, no evidence exists to demonstrate that D.M. could, in the future, assure L.M.'s continuing absence, effective treatment of L.M.'s alcoholism, or a diminution in domestic violence. Contrary to D.M.'s arguments, the Family Part judge did not conclude that D.M.'s marriage constituted a per se harm. Rather, he carefully and explicitly delineated aspects of D.M.'s relationship with L.M. that harmed A.M.M. and was likely to harm him in the future.

We find additionally that the evidence of harm to A.M.M. was sufficient in this case. In one episode of domestic violence, he was found wandering through the house, clothed only in a diaper, among shards of glass resulting from his parents' violence. Further, while A.M.M. never sustained physical injury as the result of his parents' conduct, the evidence provided by the grandmother's testimony and the Family Part judge's interview demonstrates that A.M.M. both remembered the violence occurring in his parents' home and was deleteriously affected by it. In this fashion, the present case can be distinguished from New Jersey Div. of Youth & Fam. Servs v. S.S., 373 N.J. Super. 13, 22-23 (App. Div. 2004) (finding no evidence in the record of harm to an infant resulting from acts of domestic violence upon the wife), certif. denied, 182 N.J. 426 (2005).

As the Court stated in M.M., supra, in a similar context:

Parental rights are individual in nature and due process requires that fitness be evaluated on an individual basis. . . . That said, the conduct of the parent can be relevant to an evaluation of the parental fitness of another parent. The determinative issue is whether the circumstances surrounding the parental relationship, including any relationships with third-parties, cause harm to the child. See In re J.C., 129 N.J. [1,] 10 [(1992)] (holding that relevant inquiry is not whether parent is fit but whether parent can cease causing harm to the child).

[189 N.J. at 288-89 (citation omitted).]

We likewise concur in the Family Part judge's conclusion that the second prong of the best interest test, requiring a consideration of whether D.M. is unable or unwilling to eliminate the harm facing A.M.M. and whether a delay in permanent placement will add to the harm, was satisfied by substantially the same evidence that was relevant to the first prong. In that regard, we note in particular that, despite the recommendations of both Dr. Lee and Dr. PlaHovinsak that D.M. sever his relationship with L.M., he has not done so. Although at the time of trial they were nominally "separated," evidence demonstrated that D.M. provided economic support to L.M. and they still spent considerable time together. Further, we note D.M.'s noncompliance with the recommendations of Dr. PlaHovinsak, and his admitted failure to fully comply with the recommendations of DYFS representatives that he complete parenting classes, anger management, domestic violence classes, and individual and couples counseling. Additionally, while D.M. has been found to have "clean" urines, the evidence suggests that he still is maintained on a dose of methadone sufficient to cause behavioral effects.

As a final matter, we note that A.M.M. now has been placed continuously with his grandparents since April 2007 and that the only psychologist to conduct a bonding evaluation between A.M.M. and his grandparents has found a substantial bond between the three to exist. Moreover, we note that even by his own admission to Dr. Lee, D.M. was not, at the time of his evaluation, in a position to care for A.M.M. The evidence at trial suggests strongly that circumstances had not changed. As the Supreme Court has recognized, strong policy considerations underscore the need to secure permanency and stability for a child without undue delay. In re Guardianship of D.M.H., 161 N.J. 365, 385 (1999); see also K.H.O., supra, 161 N.J. at 363. In a case such as this in which a strong bond has developed between a child and his caregivers, the child (albeit young) has expressed a desire to remain in his present living situation, and the natural parent cannot reliably forecast when reunification can be safely achieved, we find the Family Part judge's determination that a delay in permanent placement will add to the harm to have been amply supported.

D.M. argues in connection with the third prong that DYFS was obligated to consider kinship legal guardianship as an alternative to adoption in this case. However, the kinship legal guardianship statute, N.J.S.A. 3B:12A-6(d) provides, as a condition for such a remedy, proof that "adoption of the child is neither feasible nor likely." In construing this statutory language, the Supreme Court has held: "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)." New Jersey Div. of Youth and Fam. Servs v. P.P., 180 N.J. 494, 513 (2004). As the Family Part judge recognized, at trial the maternal grandmother recognized kinship legal guardianship as a possibility but indicated her preference to adopt A.M.M. The preference for the latter course supplants any consideration of the former. The fourth prong of the best interest test requires a determination whether the termination of D.M.'s parental rights will do no more harm than good. In this regard, after considering expert and other evidence adduced at trial, the Family Part judge concluded that any harm suffered by A.M.M. as the result of the severance of his father's parental rights was clearly outweighed by the good that would be done to continue him in the safe, stable and nurturing home provided by his grandparents.

 
Nonetheless, D.M. argues that the judge applied a "better interests" test rather than the required "best interests" one, and that because the other three prongs of the best interests standard were unmet, the judge's conclusion as to the fourth prong was erroneous. However, we find the judge's conclusions as set forth in his opinion to have been factually supported throughout. We thus reject D.M.'s argument. While we recognize that the Family Part judge's determination rested in part on his understanding of the desires of a young child, and we question whether substantial weight should be accorded to such evidence, we do not find the evidence wholly irrelevant to a consideration of the degree of bonding that has occurred between A.M.M. and his grandparents. Moreover, we find the result reached in this matter to be amply supported by other evidence in the record.

Affirmed.

The husband is not related by blood to A.M.M.

The record discloses that L.M. had several extramarital relationships in the years in question.

(continued)

(continued)

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A-3097-08T4

RECORD IMPOUNDED

December 9, 2009