NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. A.R.S.

(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NOT FOR PUBLICATION WITHOUT THE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-3775-08T43775-08T4

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

A.R.S.,

Defendant-Appellant.

_______________________________

IN THE MATTER OF THE

GUARDIANSHIP OF R.W.B.,

a minor.

_______________________________

 

Submitted May 28, 2009 - Decided

Before Judges Stern, Payne and Waugh.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FG-15-37-07.

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

PER CURIAM

Defendant mother A.R.S. appeals from the decision of the family part terminating her parental rights to her son R.W.B. We affirm.

I

R.W.B. was born prematurely on January 26, 2006, at the Mount Kimball Medical Center in Ocean County. A.R.S. was twenty-one at the time of her son's birth.

On January 27, 2006, while R.W.B. was still receiving medical care at Mount Kimball, the Division of Youth and Family Services (DYFS) received a referral from an employee at the hospital who was concerned about A.R.S.'s mental health. The employee cited an incident, which had occurred a few months earlier, in which A.R.S., while pregnant, tried to commit suicide by walking in front of a bus.

A Special Response Unit worker for DYFS, who was assigned to follow up on the referral, went to Mount Kimball to speak with A.R.S. She told the DYFS worker that she had suffered from mental-health issues in the past. The two most recent events, occurring in October and November 2005, resulted in her being hospitalized for seven and three days, respectively. A.R.S. agreed to sign a DYFS case plan, pursuant to which A.R.S. was not to remove R.W.B. from the hospital until DYFS had been notified that he was ready to be discharged. A.R.S. agreed to allow DYFS to review her medical records and to follow DYFS's recommendations for evaluations. A.R.S. indicated that, at the time, both she and T.B. were unemployed. Although not yet married, the parents were living together.

DYFS assessed the parents' home on January 31, 2006. The worker found the kitchen, bedroom, and bathroom were clean, but the living room and dining room were "somewhat messy." All the utilities in the apartment were working and the parents had a crib and clothes for the baby. A.R.S. told the caseworker that she intended to return to her job at Wal-Mart in the next few months and T.B. said he had been working regularly at a family restaurant. The caseworker informed them that the baby could not be released to them unless DYFS approved a friend or family member to stay in the house with A.R.S. at all times.

During the investigation, DYFS discovered that police had been called to the parents' residence in September 2005, during A.R.S.'s pregnancy, because of a domestic violence dispute. The police had reported that A.R.S.'s mouth was bleeding and that there was noticeable swelling on her head. A.R.S. did not press charges against T.B.

DYFS filed for custody on February 10, 2006, basing the request on A.R.S.'s psychiatric problems and the history of domestic violence. DYFS was granted temporary custody of R.W.B. on February 10, 2006. In the order, the trial judge noted that "reasonable efforts to prevent placement prior to removal were not required because: the removal of the child was required due to imminent danger to the child's life, safety, or health." The trial judge based this decision on, among other things, "mental health concerns; . . . threats to unborn child; [and] domestic violence."

R.W.B. was released from the hospital into the custody of DYFS. He was placed in a foster home and has remained in the same foster home since his release from the hospital. The foster parents want to adopt R.W.B.

On February 25, 2006, the Lakewood Police Department responded to a domestic violence call at the parents' residence. T.B. told the officers that he was upset because A.R.S., who he was supposed to marry in five days, had been out with her friends and had come home late. Both parties told the police that no physical altercation had taken place. T.B. was listed as the "victim" because he was the one who had placed the call.

A.R.S. and T.B. were married on March 2, 2006.

At a hearing on March 7, 2006, the trial judge ordered both parents to attend psychological evaluations and parenting classes. Additionally, A.R.S. was ordered to attend both individual and group counseling. T.B. was ordered to attend domestic violence perpetrators classes at 180 Turnaround. The parents were granted weekly supervised visitation with R.W.B. DYFS was ordered to evaluate specified family members for possible placement.

On May 15, 2006, A.R.S. and T.B. entered into a stipulation that DYFS's "involvement was necessary to protect the child's health, safety, and welfare due to mother's psychiatric history and state of mind and prior domestic violence pursuant to N.J.S.A. 30:4C-12 et seq." Both parents were ordered to attend psychiatric evaluations and domestic violence counseling. Weekly supervised visitation was continued.

On July 7, 2006, Dr. Alexander Iofin evaluated A.R.S. Dr. Iofin reported that A.R.S. was "an individual who has a trans-generational history [of] mental health problems, with a documented history of suicide by her mother. She has a history of behavior that is indicative of either some seizure problems, or pseudo seizures, which is indicative of an underlying psychiatric pathology." He concluded that "[s]he clearly has a significant psychiatric component, with the necessity to be hospitalized in the psychiatric inpatient unit, once on an involuntary basis." However, at that time, Dr. Iofin did not have A.R.S.'s complete prior medical records available to him and he believed that this information would be "very important in [the] determination of the Seizures v. pseudo-Seizures in the present case."

On July 20, 2006, the Lakewood Police Department responded to A.R.S. and T.B.'s home for a domestic violence call. Upon his arrival, the officer found A.R.S. crying and "very upset." He "observed dry blood on her hand and foot." A.R.S. refused to cooperate with the officer. A.R.S. stated: "If he thinks I called the police he is going to kill me." The officer could not conclude with absolute certainty that T.B. was the man involved because A.R.S. would not provide him with sufficient information. A.R.S. refused to seek a temporary restraining order.

On the following day, July 21, 2006, the police were again called to the parents' home. A.R.S. told the responding officer that T.B. had pushed her to the ground and kicked her in the head and ribs. A.R.S. also told the officer that T.B. had hit her and thrown rocks at her, but missed. A.R.S. was taken to the hospital for treatment of her injuries. She again refused to seek a temporary restraining order.

After their weekly visit with R.W.B. on December 22, 2006, A.R.S. and T.B. were observed arguing in the parking lot as they left the center. A staff member at the center reported that the argument was "loud enough that [he] felt he needed to lock the front door. [He] was not actually sure what the argument was about, but thought he overheard them disagreeing about visiting at the program."

Later that same day, the Lakewood Police Department responded to a domestic violence call at the home of A.R.S. and T.B. The responding officer reported that large amounts of clothing had been thrown about on the ground. A.R.S. told the officer that T.B. had pushed her down the steps. She showed him bruises on her right knee. T.B. "admitted to [] pushing [A.R.S.] near the stairs but denied in fact she fell down the stairs. [T.B.] stated that [A.R.S.] came after him aggressively and instigated the encounter." T.B. was arrested for assault. A.R.S. was uncooperative with the police after T.B. was arrested.

A permanency hearing was held on January 22, 2007. Termination of parental rights followed by foster-home adoption was set as the appropriate and acceptable plan for R.W.B. The court cited the continued domestic violence between the parents and A.R.S.'s mental-health problems as the reasons for the plan. DYFS filed for custody of R.W.B. on March 2, 2007.

In March 2007, T.B. and A.R.S. successfully completed the twelve-week, in-home parenting class offered through the St. Francis Center. T.B. and A.R.S. both failed to attend psychological evaluations on April 26, 2007, and bonding evaluations on May 1, 2007, with Dr. Alan J. Lee.

On May 1, 2007, a bonding evaluation was conducted between R.W.B. and his foster parents. Dr. Lee concluded that R.W.B. has a "positive psychological attachment and bond with" both foster parents. "To end this significant psychological bond that [R.W.B.] has with the current caregivers would have a significant likelihood of resulting in severe, enduring, and irreparable psychological harm to the minor child." Dr. Lee recommended that the child remain with the foster parents.

The parents' bonding evaluations were rescheduled for June 6, 2007. On this date, T.B. and A.R.S. called Dr. Lee to inform him that they were running late, but that they were en route. T.B. and A.R.S. arrived at Dr. Lee's office an hour late and, by that time, the appointment needed to be rescheduled.

On July 30, 2007, Dr. Lee conducted a psychological assessment of A.R.S. She informed Dr. Lee that "her current goals and wishes for her son [are for him] to be returned to her. . . . She indicated a willingness to leave her husband to protect the child . . . ." When Dr. Lee questioned A.R.S. about her walking in front of the bus, A.R.S. "denied this being a suicide attempt. . . . [S]he explained that she was crossing a street and that the bus did not see her." Dr. Lee concluded:

[A.R.S.] generally presents as an adult woman who is psychologically much more primitive and underdeveloped than would be expected for her chronological age with some striking paucity of age-expected psychological and emotional resources. She appears prone to some rather labile behaviors and moods and there have been concerns raised about possible organized etiology such as seizure activity. . . .

There are concerns that [A.R.S.] may have some early or emerging schizophrenia-spectrum or psychotic disorder. She has some inconsistencies in her level of abstraction and difficulties taking appropriate distance and boundaries from thinking and perception. There has been some significant impairment in her reality testing and reality sense that raise concerns about the possibility of a psychotic condition. . . .

. . . .

Regarding [A.R.S.]'s overall parenting and care taking capacity, there remain some deep concerns against her being an independent caregiver to a minor child at this time. She is the birthmother of one child from her current and ongoing relationship with [T.B.], the latter whom has been collaterally indicated and she has indicated has been violent towards her on multiple and repeated instances. She has difficulty in consistently and appropriately sustaining herself, even so far as failing to attend appointments in a consistent fashion. There have been concerns about her psychiatric hospitalizations and mental status impairments, as well as her ongoing involvement in domestic violence relationship with [T.B.] She presents with some areas of significant cognitive and intellectual liabilities and various lacunae that seem to reflect and contribute to impairment in her functioning. She is not supported as an independent caregiver to a minor child at this time or within the foreseeable future.

Dr. Lee recommended A.R.S. "for an evaluation by a board-certified neurologist and psychiatrist to conduct a neuro-psychiatric evaluation to help determine and pinpoint, if possible, the etiology of her apparent disturbances." At the time of trial, A.R.S. had not received such an evaluation.

A bonding evaluation of R.W.B. and his birth parents was conducted on July 31, 2007, by Dr. Lee. He concluded that:

[D]espite offering supervised visitation with the birthparents the child [R.W.B.] has not ever lived with the birthparents and has not had to rely on them for any significant period of time for primary nurturance, support, structure, or consistence, and he does not evidence a significant psychological attachment or bond with the birthparents. Related to this, there would appear a relatively low risk of any kind of severe, enduring, or irreparable psychological harm to [R.W.B.] if his relationship with the birthmother, [A.R.S.], and the birthfather, [T.B.], was permanently ended.

Madeline Skalitza, LCSW, A.R.S.'s therapist through Preferred Behavior Health of New Jersey, prepared a report on October 2, 2007. Skalitza had met with A.R.S. and T.B. three times and A.R.S. individually five times. She opined:

My prognosis for [A.R.S.] is very poor. I do not see where therapy services are going to make improvements in her functioning. It is hard to tell if she has gained any insight into her situation. She has done all the therapy that our program can offer her. Her last session was on 10/2/07. She has been discharged from the Family Support Program. I will not be able to give any recommendations regarding visitation or reunification.

The guardianship trial commenced on January 23, 2008, and lasted three days. At the trial, Dr. Lee testified, primarily recounting the findings and opinions contained in his reports. He did add:

I had been provided information both from [A.R.S.] as well as collateral sources that a number of different services had been implemented. And she participated in and, in some instances, completed some of these programs. And, yet, at this point in July, late-July of 2007, there were still these significant concerns against her being an independent caregiver.

. . . .

Because of the chronicity and . . . the severity of many of the symptoms and issues that were described, the prognosis is at best guarded and more likely poor.

Jenny Hyde, a DYFS caseworker, testified to the services provided to A.R.S. and T.B including domestic violence counseling, parenting classes, and visitation. She also stated that A.R.S. was compliant with signing all the necessary releases so that her medical records could be obtained from different hospitals.

Officers Christopher Dibiase, Sherry Jones, and Ralph Hatt testified at trial to the domestic violence incidents previously recounted.

A.R.S. testified at the guardianship trial. With respect to the incident in which she was almost struck by a bus, A.R.S. stated that she "just lost consciousness." Subsequent to the event, "it was a couple of days where [she] couldn't see, [she] couldn't [use her] motor skills, [she] couldn't function properly."

A.R.S. testified that she had separated from T.B. in October 2007 and moved to New York. She stated that if her son where returned to her, she would raise him by herself. However, she later testified that she was not ready to divorce T.B. She was unemployed at the time of trial. She had started, but not finished, online coursework towards an associates degree in business. A.R.S. could not remember through which program she was taking classes.

T.B. also testified at the termination trial. He admitted to being incarcerated in November 2007 on a terroristic threat charge. That charge was dropped because T.B. pled guilty to simple assault for attacking his then girlfriend M.C. At the time of the termination trial, T.B., a Jamaican citizen, was being held by immigration officials for overstaying his visa. He stated at trial that he had three possible defenses to deportation proceedings: change of status (married to a U.S. citizen); asylum; and Convention Against Torture. T.B. did testify that he did not anticipate being married to A.R.S. for much longer, but that they would most likely remain friends.

On February 14, 2008, the trial judge found that DYFS had proven all four prongs of the best interest standard, N.J.S.A. 30:4C-15.1(a), by clear and convincing evidence and terminated the parental rights of T.B. and A.R.S. A.R.S. now appeals that decision. As already noted, we previously affirmed the termination of T.B.'s parental rights.

II

A.R.S. raises the following issues on appeal:

POINT I - THE JUDGMENT OF GUARDIANSHIP SHOULD BE REVERSED BECAUSE THE DIVISION FAILED TO PROVE EACH PRONG OF THE "BEST INTERESTS" TEST.

(A) DEFENDANT DID NOT "HARM" R.W.B. UNDER THE FIRST PRONG AND THE DIVISION'S DECISION TO REMOVE R.W.B. FROM THE DEFENDANT'S CUSTODY WAS UNRELATED TO THE BEST INTERESTS CRITERIA.

(B) THE DEFENDANT WAS PARENTALLY FIT UNDER N.J.S.A. 30:4C-15.1 CRITERIA.

(C) THE DIVISION FAILED TO MAKE "REASONABLE EFFORTS" UNDER THE THIRD PRONG BECAUSE IT WAS NOT COMMITTED TO THE SUCCESS OF ITS REUNIFICATION EFFORT.

(D) TERMINATION OF PARENTAL RIGHTS WILL DO MORE HARM THAN GOOD BECAUSE THE TRIAL COURT APPLIED AN IMPROPER "BETTER INTERESTS" ANALYSIS AND BECAUSE THERE WERE NO COMPELLING REASONS TO SEVER R.W.B.'S RELATIONSHIP WITH THE DEFENDANT AND TO DEPRIVE HIM OF THE INHERENT BENEFITS OF "A MOTHER'S LOVE."

Parents have a constitutionally protected right to maintain a relationship with their children. In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999) (citing Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212, 31 L. Ed. 2d 551, 558-59 (1972)). "Parental rights are not absolute, however. The State has a responsibility to protect the welfare of children and may terminate parental rights if the child is at risk of serious physical or emotional harm." New Jersey Div. of Youth and Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (citation omitted).

It is well established that when seeking the termination of parental rights under N.J.S.A. 30:4C-15.1(a), DYFS has the burden of establishing, by clear and convincing evidence, the following criteria:

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

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

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

See also New Jersey Div. of Youth and Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986) (reciting the four controlling standards later codified in Title 30).

The decision to terminate parental rights is very fact specific.

"Trial Court findings are ordinarily not disturbed unless they are so wholly unsupportable as to result in a denial of justice, and are upheld wherever they are supported by adequate, substantial and credible evidence." When the credibility of witnesses is an important factor, the trial court's conclusions must be given great weight and must be accepted by the appellate court unless clearly lacking in reasonable support.

[New Jersey Div. of Youth and Family Servs. v. F.M., 375 N.J. Super. 235, 259 (App. Div. 2005) (quoting Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 475 (1988)).]

Further, because of the particularized expertise of family court judges in family matters, we accord enhanced deference to family court factfinding. Cesare v. Cesare, 154 N.J. 394, 413 (1998). Finally, "[p]arental rights are individual in nature and due process requires that fitness be evaluated on an individual basis. That said, the conduct of one parent can be relevant to an evaluation of the parental fitness of another parent." M.M., supra, 189 N.J. at 288-89 (citations omitted).

A

Under N.J.S.A. 30:4C-15.1(a)(1), DYFS must prove by clear and convincing evidence that a danger to the child's health and development exists resulting from the parental relationship. K.H.O., supra, 161 N.J. at 348. The focus of the first prong is "the effect of harms arising from the parent-child relationship over time on the child's health and development." Ibid. The first prong does not just focus on past events, but also requires consideration of "whether the parent . . . may harm the child in the foreseeable future." A.W., supra, 103 N.J. at 607.

"[H]arms attributable to a biological parent include the prolonged inattention to a child's needs, which encourages the development of a stronger, 'bonding relationship' to foster parents, 'the severing of which would cause profound harm.'" New Jersey Div. of Youth and Family Servs. v. B.G.S., 291 N.J. Super. 582, 592 (App. Div. 1996) (quoting In re Guardianship of J.C., 129 N.J. 1, 18 (1992)).

In finding the first prong of N.J.S.A. 30:4C-15.1(a) satisfied, the trial judge stated:

The State proved that as a result of the inability of the parents to initially care for the child at birth (because of physical, emotional and mental issues), [DYFS] appropriately took custody at birth. Subsequently, because of the actions of the parents in not cooperating with [DYFS] and specifically by the defendant/mother showing an inability to remove herself from a dangerous domestic violence cycle and her actions in not following through with psychological and/or neurological help demonstrated that her actions were a "derogation of her responsibilities as a parent." New Jersey Div. of Youth and Family Servs. v. C.S. and J.G., 367 N.J. Super. 76, 113 (App. Div. 2004). Her inability to overcome her shortcomings as a parent required the child to be kept in a foster home placement and adversely affected the child's development.

A.R.S. argues on appeal that DYFS was unable to show any actual harm that R.W.B. suffered because of either her mental health or the domestic violence perpetrated by T.B. However, "[c]ourts need not wait to act until a child is actually irreparably impaired by parental inattention or neglect." In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999). "The absence of physical abuse or neglect is not conclusive on the issue of custody. The trial judge must consider the potential for serious psychological damage to the child inferential from the proofs." In re Guardianship of R.G. and F., 155 N.J. Super. 186, 194 (App. Div. 1977) (citing Sorentino v. Family & Children's Soc'y of Elizabeth, 72 N.J. 127, 131-32 (1976)).

There are significant concerns about R.W.B.'s well being resulting from A.R.S.'s continuing mental-health problems. While there has been no physical harm to R.W.B., although the very real potential for it occurred when A.R.S. walked in front of a bus while pregnant, A.R.S. is unable to parent sufficiently because of her mental illness. Although there is an "absence of any moral culpability or fault on [her] part," R.G., supra, 155 N.J. Super. at 194, moral culpability is not a prerequisite to the State exercising its parens patriae authority to protect the child. Id. at 194-95; see also New Jersey Div. of Youth and Family Servs. v. A.G., 344 N.J. Super. 418, 438-39 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002).

In In re Guardianship of A.A.M., 268 N.J. Super. 533, 544 (App. Div. 1993), the mother had a "troubled history and . . . emotional, psychological and behavioral problems." We concluded there were sufficient grounds to terminate parental rights even though the mother "never had a real opportunity to exercise a parental role, and there is no proof that she inflicted the type of harm contemplated [in some other cases]," since the child was removed at four days old. Id. at 549-550. Our conclusion was dominated by the mother's history of being "unstable, violent, self-centered, undisciplined and lacking in insight." Id. at 550. In A.A.M., we found that the mother's "uncontrollable behavior harmed the relationship with [the child] by preventing it from progressing further." Id. at 547.

We are presented with a similar factual scenario. A.R.S. has never had an opportunity to parent R.W.B. because after his birth, he was released from the hospital directly into foster care. A.R.S. has never caused actual physical harm to R.W.B., but we recognize that serious harm could have resulted from the incident in which A.R.S. walked in front of a bus while pregnant with R.W.B. The analyses of both Dr. Iofin and Dr. Lee strongly support the trial judge's finding that the first prong of N.J.S.A. 30:4C-15.1(a) was proven by clear and convincing evidence. In particular, we note Dr. Lee's statement that A.R.S. "appears prone to some rather labile behaviors and moods and there have been concerns raised about possible organized etiology such as seizure activity." Further, A.R.S. "has difficulty in consistently and appropriately sustaining herself" and was not recommended as an independent caregiver to her son nor was it likely that she could at any point in the foreseeable future take on that responsibility. As was the case in A.A.M., supra, 268 N.J. Super. at 547, A.R.S.'s mental-health concerns have "harmed the relationship with [the child] by preventing it from progressing further."

Additionally, at the time of removal, there was a very real threat of physical harm to R.W.B. at the hands of T.B. The subsequent domestic violence calls and charges against T.B. demonstrate that this was a legitimate concern. Even if T.B. did not physically harm R.W.B., the Legislature has found that "children, even when they are not themselves physically assaulted, suffer deep and lasting emotional effects from exposure to domestic violence." N.J.S.A. 2C:25-18.

The harm that R.W.B. would have suffered as a result of the exposure to domestic violence is also attributable to A.R.S. because she failed to remove herself from the situation and provide a safe and nurturing environment for her son.

The harm caused by circumstances attendant to the parent-child relationship is as pertinent as any harm caused directly by a parent. That is, the harms need not be inflicted by the parent personally. See [New Jersey Div. of Youth and Family Servs. v.] S.V., [] 362 N.J. Super. [76,] 80, 87 [(App. Div. 2003)] (terminating mother's rights because, among other things, she failed to protect children from abuse by her boyfriend and failed to protect them from witnessing domestic violence against her).

[M.M., supra, 189 N.J. at 289 (citation omitted) (emphasis added).]

There is clear and convincing evidence in the record to support the trial judge's finding that the first prong of the best interest standard had been met because of both serious concerns arising from A.R.S.'s mental health and ongoing domestic violence.

B

The second prong of N.J.S.A. 30:4C-15.1(a) focuses on parental unfitness. K.H.O., supra, 161 N.J. at 353. Parental unfitness can be demonstrated by the failure of the parent to provide a stable home resulting in a delay in the permanent placement of the child. Ibid.

[T]he second element of the best interests standard must focus on the measures taken by the parent after the child's birth to maintain the parent-child relationship and to foster an environment leading to normal child development. The Appellate Division in B.G.S., supra, 129 N.J. Super. at 592, observed that "harms attributable to the biological parent include 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.]

In looking at parental fitness, we "should only determine whether it is reasonably foreseeable that the parents can cease to inflict harm upon the children entrusted to their care." A.W., supra, 103 N.J. at 608. "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." D.M.H., supra, 161 N.J. at 379. Additionally, as we stated in J. and E. v. M. and F., 157 N.J. Super. 478, 493 (App. Div. 1978): "All any court can rely upon in determining whether to sever parental rights is the parent['s] past course of conduct, whether to the child in question or to other children in their care. Predictions as to probable future conduct can only be based upon past performance."

In finding the second prong of N.J.S.A. 30:4C-15.1(a) satisfied, the trial judge stated:

The State also proved by clear and convincing evidence that the defendant/mother was at the very least unable to eliminate the harm to the child. The experts agreed that the programs for the defendant/mother did not seem to change her ability to care for the child nor did the defendant/mother clearly commit to completely end the cycle of domestic violence with the father.

. . . .

The State also showed that separating the child from his foster parents would cause serious emotional or psychological harm to the child.

On appeal, A.R.S. makes two arguments: (1) "that she can become parentally fit in time to meet the needs of R.W.B."; and (2) the trial judge improperly relied on the bond between R.W.B. and his foster parents in finding the second prong satisfied. In response to A.R.S.'s second argument, we note that the Supreme Court stated "that if there is clear and convincing evidence that the child will suffer substantially from a lack of stability and a permanent placement and from the disruption of [the] bond with foster parents, this will satisfy N.J.S.A. 30:4C-15.1(a)(2)." K.H.O., supra, 16 N.J. at 363. See also New Jersey Div. of Youth and Family Servs. v. A.R., 405 N.J. Super. 418, 436-37 (App. Div. 2009). K.H.O. makes it clear that the trial judge can rely on the bond between the child and the foster parents when determining whether N.J.S.A. 30:4C-15.1(a)(2) is satisfied. We conclude that there was clear and convincing evidence presented through the testimony of Dr. Lee that R.W.B. would "suffer substantially from . . . the disruption of [the] bond with [his] foster parents" thus satisfying the second prong of the best interest standard.

In the interest of completeness, we address the first argument raised by A.R.S. To support her first argument, that she can become parentally fit, A.R.S. points to the fact that neither Dr. Lee nor Dr. Iofin conclusively diagnosed her with "any type of mental disease or personality disorder." While it is true that neither doctor offered a final diagnosis for A.R.S's mental-health condition, this was not because they did not feel a condition existed, but because neither felt they had all the necessary information to make a complete diagnoses. Dr. Iofin stated that A.R.S. "clearly has a significant psychiatric component," but because he did not have A.R.S's complete prior medical records available to him, he was unwilling to make a final diagnoses. Similarly, Dr. Lee stated "[t]here are concerns that [A.R.S.] may have some early or emerging schizophrenia-spectrum or psychotic disorder." Dr. Lee recommended that she be evaluated by a "board-certified neurologist and psychiatrist . . . to help determine and pinpoint . . . the etiology of her apparent disturbances." Even without an exact diagnoses, Dr. Lee still concluded that A.R.S. could not be "supported as an independent caregiver to a minor child at this time or within the foreseeable future."

Secondly, A.R.S. argues that by terminating her relationship with T.B. she has demonstrated her ability to remove herself from the cycle of domestic violence and thus become parentally fit. However, at the time of the guardianship trial, A.R.S. stated that she was not yet ready to divorce T.B. She did testify that she and T.B. were no longer living together and she planned to raise R.W.B. on her own. Even if A.R.S. has permanently removed herself from the violent relationship, that does not eliminate all of the concerns surrounding her ability to become parentally fit. There still remain, as stated above, significant mental-health concerns.

Finally, A.R.S. argues that her "attendance at all scheduled visitations demonstrates that she has a deep commitment to parent R.W.B." The record shows that A.R.S. did regularly attend her scheduled visits with R.W.B., however A.R.S. failed to attend two scheduled bonding evaluations with R.W.B. Further, the issue in this case is not whether A.R.S. has demonstrated a commitment to parenting R.W.B., but whether she has the ability to do so and whether it is in R.W.B.'s best interest to be placed in his mother's care.

Dr. Lee testified at trial that despite being offered numerous services which A.R.S. "participated in and, in some instances, completed some of these programs . . . . there was still these significant concerns against her being an independent caregiver." Additionally, A.R.S.'s individual therapist, Madeline Skalitza, stated: "My prognosis for [A.R.S.] is very poor. I do not see where therapy services are going to make improvements in her functioning." There is ample evidence in the record to support the trial judge's conclusion that A.R.S. would be unable to eliminate the harm to R.W.B. caused by her mental-health problems.

We conclude that the trial judge properly found, by the required clear and convincing evidence, that N.J.S.A. 30:4C-15.1(a)(2) was satisfied both because R.W.B. would suffer substantial harm if the bond with his foster parents was broken and because A.R.S. has been unable to eliminate the potential harm to R.W.B. emanating from her mental-health problems.

C

Under N.J.S.A. 30:4C-15.1(a)(3), DYFS is required to make reasonable efforts to provide the parent with services to correct the problems that led to the removal of the child from their care. What is reasonable in a situation needs to be determined on an individualized basis.

DYFS must encourage, foster and maintain the bond between parent and child as a basis for the reunification of the family. DYFS must promote and assist in visitation and must keep the parent informed of the child's progress in foster care. DYFS should also inform the parent of the necessary or appropriate measures he or she should pursue in order to continue and strengthen that relationship and, eventually become an effective caretaker and regain custody of his or her children.

[D.M.H., supra, 161 N.J. at 390.]

It is the public and judicial policy of the State to do all that is practicable to maintain the biological family unit. A.W., supra, 103 N.J. at 608.

In finding the third prong of N.J.S.A. 30:4C-15.1(a) satisfied, the trial judge stated:

[DYFS] showed they had fulfilled their obligation to provide services for both parents including anger management, parenting classes, transportation to programs and evaluations. [DYFS] also explored other relatives and other sources for placement of the child. They, therefore, fulfilled their obligations under Prong III.

The third prong of N.J.S.A. 30:4C-15.1(a) requires a fact specific inquiry into the reasonableness of the services provided to the family as a whole. We are bound by the factual findings of the family court, "unless they are so wholly unsupportable as to result in a denial of justice, and are upheld wherever they are supported by adequate, substantial and credible evidence." F.M., supra, 375 N.J. Super. at 259. In fact, the trial judge's findings are fully supported by the record.

On appeal, A.R.S. argues that DYFS failed to meet its burden under the third prong by not following through with Dr. Lee's recommendation that A.R.S. be referred to a "more protracted [DYFS] approved domestic violence program" and "for an evaluation by a board-certified neurologist and psychiatrist to conduct a neuro-psychiatric evaluation."

While Dr. Lee did recommend further services for A.R.S., such services would have gone beyond those reasonably required. "Some factors that suggest that efforts to reunite the family 'are no longer reasonable' include 'parents [who] refuse to engage in therapy or other services . . . [and] parents [who] cannot benefit from therapy or instruction due to mental retardation or psychosis . . . .'" A.W., supra, 103 N.J. at 610 (citation omitted). A.R.S.'s individual therapist, Madeline Skalitza, stated that that A.R.S. had a "very poor" prognosis and that she "did not see where therapy services are going to make improvements in [A.R.S.'s] functioning." Additionally, Dr. Lee testified that despite A.R.S. being provided different services, which she participated in and, in some cases, completed, "there were still these significant concerns against her being an independent caregiver." Dr. Lee stated that A.R.S.'s prognosis "is at best guarded and more likely poor." The statements of Dr. Lee and Skalitza strongly suggest that any further services offered to A.R.S. would have been unreasonable because she had not benefited from past services offered, nor was there a likelihood that she would benefit from additional services.

Our review of the record finds ample support for the trial judge's determination that N.J.S.A. 30:4C-15.1(a)(3) was satisfied. There exists adequate, substantial, and credible evidence that A.R.S. was provided with sufficient services aimed at eliminating the initial causes of removal of R.W.B. from her care. Therefore, we will not disturb the trial judge's factual determination. F.M., supra, 375 N.J. Super. at 259. We find the third prong satisfied.

D

The final prong, N.J.S.A. 30:4C-15.1(a)(4), requires the determination of whether the termination of parental rights will not do more harm than good to the child at issue. In cases where the child has been placed in foster care, the necessary inquiry is "whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with [the] natural parents than from the permanent disruption of [the] relationship with [the] foster parents." K.H.O., supra, 161 N.J. at 355. This inquiry requires expert opinion testifying to the strength of the relationship between the child and the biological and foster parents. Ibid.

In finding the final prong of N.J.S.A. 30:4C-15.1(a) satisfied, the trial judge stated:

The evidence also demonstrated by clear and convincing evidence that by terminating the rights of both parents that it would not do the child more harm than good. Dr. Lee's testimony pointed out the need for permanency in a child's life and the fact that removing the child from a safe and loving environment and placing the child with either unstable parent would harm the child. See In re Guardianship of D.M.H., 161 N.J. 365, 385 (1999).

On appeal, A.R.S. argues that the trial judge improperly relied on a "'better interests' analysis that was premised on the court's belief that R.W.B. would be better off adopted by his foster parents than by being reunified with the defendant." However, we find that Dr. Lee's testimony as to the best interest of R.W.B., relied upon by the trial judge, clearly supports the conclusion that the best interests of R.W.B. would be served by the termination of A.R.S.'s parental rights.

At trial Dr. Lee testified that:

In terms of the psychological bonding evaluation of this child with the current caregivers, there did appear to be a significant psychological attachment and bond between [R.W.B.] with these caregivers to the extent that [] I believe if his relationship with these caregivers was ended, . . . [R.W.B.] would have a significant likelihood of experiencing psychological and emotional sequelae.

Next in viewing the psychological bonding evaluations of the child with the biological parents there did not appear to be a significant psychological bond or attachment. And related to that, if . . . that [] relationship between [R.W.B.] and the biological parents was permanently ended, there would appear a low likelihood, low risk of any type of severe, enduring or irreparable harm to [R.W.B.]

The trial judge afforded great weight to Dr. Lee's testimony and because there is nothing in the record to challenge the reasonableness of the trial judge's decision to give credence to Dr. Lee's testimony, we are bound by that determination. F.M., supra, 375 N.J. Super. at 259. We are satisfied that DYFS presented clear and convincing evidence that termination of T.B.'s parental rights will not cause more harm than good satisfying the fourth prong of N.J.S.A. 30:4C-15.1(a).

III

In conclusion we find that the trial judge correctly considered each of the four prongs of N.J.S.A. 30:4C-15.1(a) in determining that R.W.B.'s best interest would be served by the termination of A.R.S.'s parental rights, and that his conclusions are fully supported by the facts in the record.

 
Affirmed.

The defendant father T.B.'s parental rights were also terminated by the trial court. We previously affirmed the termination of his parental rights. New Jersey Div. of Youth and Family Servs. v. T.B., No. A-4480-07T4 (App. Div. Apr. 16, 2009). T.B. filed a petition for certification with the Supreme Court on April 22, 2009.

The trial judge stated that:

[T]he Court wishes to emphasize that it has considered each parent's rights separately and individually and notes that recently, Justice Zazzali reiterated that "termination of one parent's rights is not appropriate merely because the other parent is unfit." New Jersey Div. of Youth and Family Servs. v. M.M., 189 N.J. 261, 288 (2007).

Also under N.J.S.A. 30:4C-15.1(a)(3), the court is required to have "considered alternatives to termination of parental rights." Defendant does not appear to be challenging the courts finding that alternatives were adequately considered prior to termination of rights.

(continued)

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32

A-3775-08T4

RECORD IMPOUNDED

June 15, 2009