DIVISION OF YOUTH AND FAMILY SERVICES v. K.M.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A- 4347-07T44347-07T4

DIVISION OF YOUTH AND FAMILY

SERVICES,

Plaintiff-Respondent,

v.

K.M.,

Defendant-Appellant.

________________________________________

IN THE MATTER OF THE

GUARDIANSHIP OF J.J.,

Minor.

________________________________________

 

Argued February 4, 2009 - Decided

Before Judges Stern, Rodr guez and Waugh.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, FG-15-44-07.

Allison C. Williams argued the cause for appellant (Lomurro, Davison, Eastman & Munoz, attorneys; Ms. Williams, of counsel and on the brief).

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

Olivia Belfatto Crisp, Assistant Deputy Public Defender, argued the cause for minor J.J. (Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minor; Ms. Crisp, on the brief).

PER CURIAM

K.M., the birth mother of J.J., a girl born on September 11, 1996, appeals from the termination of her parental rights. The birth father, J.J.J., did not appear in the guardianship trial and does not appeal from the termination of his parental rights. The Law Guardian urges reversal arguing that the judge's decision "to terminate the parental rights of K.M. based on the 'best interests' of [J.J.] was incorrect and must be reversed" because: K.M. was willing and able to eliminate the harm facing J.J. and was willing to provide a safe and stable home. Moreover, in failing to return J.J. to K.M.'s care, a delay of permanency will result and more harm will be done than good.

We reverse, concluding that the record does not support the judge's findings that K.M. is unwilling or unable to eliminate the harm to J.J. We also conclude that DYFS did not meet its burden of proving that termination will not do more harm than good. In reaching this conclusion, we focus on four facts that are established by the evidence. First, as J.J. grows older, her special needs require less maternal scrutiny. Second, K.M. is making good progress. Third, J.J., who is old enough to express her views, wants to be with her mother. Fourth, J.J. was placed with her foster parents at an age when there was no significant bonding, such that termination of the relationship with the foster family would not cause more harm than good. Our conclusion is bolstered by the fact that the trial judge, although ordering termination of the parental relationship, nevertheless expressed the view that continued contact, by way of visitation with K.M., would be very beneficial to J.J.

These are the salient facts. J.J. is now twelve-years-old and was removed from K.M.'s care for the second time in February 2006 when she was nine-years-old. J.J. is a special needs child. She has been on medications for seizures and has been diagnosed with bipolar disorder with psychotic features and a sensory processing disorder. The action for termination comes after years of involvement by the Division of Youth and Family Services (DYFS) with K.M. and J.J.

Shortly after J.J.'s birth her parents separated. The father has not been involved in raising J.J. DYFS first became involved with the parties pursuant to a referral twenty-one days after J.J. was born. The referral indicated that J.J. was born premature with a low birth weight and had reflux and apnea. The referral also noted that K.M. had a mental health history and could not understand the training for the apnea monitor or the extent of J.J.'s health problems. K.M., however, received private apnea and CPR training with positive results. Nursing care was retained to supervise. J.J. was discharged to K.M. eighteen days later.

The second DYFS referral occurred when J.J. was approximately eight-months old. The referral noted that K.M. was leaving J.J. in the front of the beauty salon while she went to the back to have her nails and hair done. K.M. denied being inattentive. J.J.'s pediatrician reported that J.J. was in good health with normal growth and development.

Three referrals were received in 2001 indicating injuries sustained by J.J. while in K.M.'s care. On May 2, 2001, it was reported that J.J. had multiple bruises and scratches on her arms and legs. It was determined that the new family dog had scratched J.J. On May 25, 2001, there was a report that J.J. had suspicious bruising to her inner thighs. However, an investigation found only slight bruising to J.J.'s outer right thigh and that K.M. had not acted inappropriately. On October 10, 2001, it was reported that J.J. had a bruise on her forehead. J.J. and K.M. reported that the bruise occurred at Pizza Hut when J.J. ran into a wall. None of the referrals were substantiated. However, after the October incident, DYFS opened a case on K.M. as she reported feeling overwhelmed in caring for J.J., who was described as learning disabled with ADHD (Attention Deficit Hyperactivity Disorder) and ODD (Oppositional Defiant Disorder).

Five referrals were received in 2003, leading to J.J.'s first removal from K.M.'s care. On January 9, 2003, K.M. voluntarily sought hospitalization for herself as she was feeling overwhelmed. K.M. asked DYFS to place J.J. in a group home. Nicholas House was discussed as an option. However, when it came time for the interviews, K.M refused and J.J. remained in her care.

On April 25, 2003, J.J. left two voice mail messages for DYFS and dialed 9-1-1. It was later learned that K.M. was asleep during the telephone calls and J.J. had not been able to wake her. There was a substantiation of neglect. Approximately a week later, on May 3, 2003, the Dover Township police called in a referral that J.J. was left unsupervised in a movie theater lobby while K.M was watching a film. J.J. admitted that K.M. did not come out to check on her and that J.J. had befriended an "adult," who played video games with her. Neglect again was substantiated for lack of supervision.

On June 9, 2003, DYFS received a referral that J.J. was often outside by herself. The caller reported that J.J. was often unsupervised and would walk into people's homes without permission. The referral remained unsubstantiated. However, three days later, there was a referral that J.J. was wandering through her neighborhood alone. K.M. admitted J.J. was out of her sight for twenty minutes. Neglect was substantiated based on lack of supervision. The following day, J.J. was placed in foster care.

Six months later, J.J. was returned to K.M.'s care. J.J. complained that, while in the foster home, one of the children would touch her private parts and get on top of her and "hump" her. However, this sexual contact could not be conclusively determined.

J.J. was admitted to Trinitas CCIS Hospital on December 11, 2004, as a result of her out-of-control behavior. It was reported that J.J.: hit and kicked K.M.; tried to jump out of a car; and started to bite a fence. At the time, J.J. was not sleeping well and had rapid mood swings. J.J. also reported having nightmares and past suicidal behavior was noted.

In February 2005, J.J. was transferred to the Children's Transitional Residence (CTR) for further stabilization of behavioral and emotional difficulties, including aggressive and oppositional behavior. Medications were adjusted and initial progress was reported. K.M. insisted J.J. did not have ADHD and that Ritalin should be discontinued. Against medical advice, the Ritalin was discontinued. Thereafter, J.J. began to decompensate remarkably in the classroom.

During J.J.'s hospitalization, K.M. was provided with family therapy. It was noted that K.M. presented as limited developmentally and had an incongruent affect with visible anxiety. K.M. was unable to make decisions and had difficulty asserting herself in the parental role. Crises episodes were reported following J.J.'s visit to K.M. on overnight passes.

In September 2005, at K.M.'s request, but against CTR's recommendation, J.J. was discharged from CTR to K.M.'s care. CTR recommended that for J.J. to remain with K.M., arrangements should be made for a supervised housing situation, daily professional monitoring visits, or transition to a therapeutic foster home. Upon discharge, the Ocean County Care Management Organization (CMO) provided a parent mentor to assist K.M. with daily living and a behavior assistant for J.J.

J.J. was again hospitalized for three days in November 2005 for aggressive behaviors and suicidal ideations. Three weeks later, the behavioral assistant called DYFS to report that J.J. was at imminent risk because K.M.'s competency to deal with J.J. was questionable. J.J. had made threats to harm herself by spraying Windex in her eyes and drinking nail polish remover. J.J. also had head-butted the dog and kicked K.M. and the behavioral assistant. It was further noted that J.J. was allowed to speak with her father, against whom a statutory rape charge was pending, on the telephone. DYFS had previously ordered that J.J. should have no contact with her father. The Dover Police Department escorted J.J. to the hospital. However, K.M. opted for J.J. not to be admitted. J.J. was returned home to K.M.'s care.

The following day, a psychiatric screener at Kimball Medical Center informed DYFS that he had received a call from J.J.'s elementary school reporting that J.J. was walking around the school stating that she was going to hurt herself and her mother. There was another referral on December 1, 2005, from Bayada nurses, reporting that they had concerns for K.M.'s mental health and that K.M. had forgotten that J.J.'s medication requirements had changed.

A DYFS representative visited the family home on January 20, 2006. It appeared to the representative that K.M. had not bathed in at least a couple of days. K.M.'s CMO case manager was present and stated that she was no longer pursuing a treatment home for J.J. because she felt K.M. was showing progress with the Individual Service Plan in place and had become a much stronger advocate for J.J. When asked by DYFS whether K.M. could care for J.J. on her own without services, K.M. indicated that she could not. K.M. had not yet found a psychiatrist for J.J.'s medication monitoring.

In February 2006, the CMO case manager informed DYFS that K.M. was likely to be evicted on February 10, 2006 and that nurses were no longer coming to the home. The CMO case manager feared for J.J.'s safety and suggested that J.J. be placed elsewhere. Four days later, the CMO case manager reported that K.M. left prescription medication within the reach of J.J.

DYFS sought and was awarded protective custody of J.J. In February 2006, J.J. was placed with a Specialized Home Service Provider foster family because of her medically fragile status. At the time, J.J. was on medications for seizures and had been diagnosed with bipolar disorder with psychotic features and a sensory processing disorder. J.J. was also being treated by a pediatric endocrine group for Early Onset Central Puberty with significant advancement of bone age and a pituitary adenoma. At present, J.J. remains in the foster home.

Following J.J.'s placement, K.M. and J.J. continued to receive services. J.J.'s in-home therapist, provided by CMO, followed her to her foster home. However, the therapist was phased out after a few months in placement as J.J.'s behavior had drastically improved. CMO has since closed its case on J.J. K.M. moved to Atlantic City. CMO helped link K.M. to a Collaborative Support Programs (CSP) in Atlantic City.

On May 10, 2006, K.M. stipulated that she put J.J. at risk by leaving harmful products in J.J.'s reach, even though J.J. had previously threatened to harm herself.

In January 2007, the judge entered a permanency order finding that by a preponderance of the evidence DYFS's permanent plan for termination was appropriate. The judge required DYFS to file a termination of parental rights petition within sixty days. DYFS filed the Guardianship complaint to terminate K.M. and the birth father's parental rights.

At trial, DYFS presented the testimony of Alan J. Lee, Psy.D., a licensed psychologist. He performed three evaluations of K.M. and bonding evaluations for each foster parent and K.M. Lee testified that psychologically K.M. appeared to be less mature than a person her age. He described K.M. as indecisive, ambivalent and easily overwhelmed by life stressors. Lee further noted concerns regarding K.M.'s parenting capacity because of her history with depression and anxiety. However, Lee noted no history of aggravating factors such as substance abuse, criminal issues or recurring violence. Lee noted that as a special needs child, J.J. might add to K.M.'s level of stress as a caregiver.

Lee made numerous recommendations for the reunification of K.M. and J.J. First, ongoing psychiatric medication monitoring and individual counseling or psychotherapy were recommended to address various areas of her life, including her maladaptive personality traits, difficulty in asserting herself and her issues with depression and anxiety. Second, K.M. was to participate in a parent support group for children with ADHD and was to learn more about J.J.'s medical issues and available in-home services. Third, use of a regular visiting nurse to monitor J.J.'s condition was recommended. At the time of this evaluation (September 2003), Lee reported to have a "cautious sense of optimism" at the notion of reunification. He believed reunification to be feasible but largely contingent on K.M.'s involvement with services and the presumption that she would progress with her mental health services.

A second psychological evaluation of K.M. was performed three years later. Again, Lee found her overall personality functioning to be less mature than would be expected. She had difficulties consistently and effectively responding to life demands and the propensity to be overwhelmed fairly easily. There also continued to be signs of depression and anxiety. By this time, there were additional concerns because K.M. had lost the housing where she and J.J. had previously resided and K.M.'s employment was unstable. Lee noted concerns about K.M.'s ability to independently care for J.J. However, he did not believe K.M. to be at imminent risk of intentionally causing harm to J.J. He did have notable concerns about the "insidious and negative effects" that would arise if J.J. were in K.M.'s "current and independent care." Lee once again opined that K.M. needed continued treatment and recommended: psychiatric medication monitoring; participation in a day treatment program; and enrollment in parenting education programs.

Lee performed a third psychological evaluation in August 2007. He noted that many of the basic long-term character traits were still present. There were still signs of anxiety and depression as well as a strong sense of passivity and dependency and helplessness. Even more salient in the 2007 evaluation was K.M.'s difficulty in maintaining appropriate boundaries. Lee noted that at times K.M. was overly detached and other times she was almost enmeshed. Based on these findings, Lee did not support K.M. as an independent caregiver to a minor child. Continued treatment was still recommended. Lee opined, despite K.M.'s involvement in treatment services, that K.M.'s prognosis for change as of August 2007 was poor based on the chronicity and the recurrence of many of the concerns.

In December 2007, Lee performed a bonding evaluation of the relationship between K.M. and J.J. He noted that J.J. resided the majority of her life with K.M. and thus J.J. recognized K.M. However, there was some underlying ambivalence in terms of the relationship. Lee testified that at times there tended to be poor boundaries between the two and he had concerns that J.J. would tend to regress while in the care of K.M. According to Lee, J.J. enjoyed certain aspects of her relationship with K.M., but a degree of anxiety and ambivalence existed in the relationship, which seemed to contribute to some of J.J.'s aggression.

Lee conducted bonding evaluations of the foster parents and J.J., noting that J.J. entered the current caregiver's home in February 2006, at the age of nine. Lee testified that from all the information he received, J.J. had "done quite well in her time since joining these current caregivers." Many of the essential problems J.J. displayed while residing with K.M. were largely absent or to a much lesser degree while residing with the current caregivers. J.J. had adjusted very well to the foster parents, as Lee noted the foster parents had been quite responsive to J.J.'s needs. J.J. appeared to have formed a positive and stable relationship with both the male and female foster parents. However, he was somewhat equivocal as to whether J.J. would suffer severe, enduring or irreparable psychological harm if her relationship with the foster parents ended permanently. This stemmed mainly from the fact that J.J. began a relationship with the current caregivers late in her life. Nonetheless, Lee still found it fairly evident that J.J. derived a sense of consistency, nurturing and support from her current caregivers and had a favorable and positive attachment with both.

During the evaluation, J.J. indicated that she would prefer to reside with K.M. She also indicated her desire to stay in her current home at least until she went on a promised trip with them to Disney World.

Alexander Iofin, M.D., a child and family psychiatrist, performed two psychological evaluations of K.M. and testified for the State. In February 2002, Iofin assessed K.M. for an independent psychiatric assessment. He concluded that K.M. suffered from depression and significant anxiety. Iofin recommended an enhancement of K.M.'s psychotropic medication utilization. He continued to treat her throughout 2002.

Iofin again interviewed K.M. in September 2006. After reviewing the psychological testing performed by Lee, Iofin concluded that K.M.'s conditions were chronic with vacillating severity and would require long-term treatment with mental health professionals. Iofin noted that K.M.'s condition was severe enough that she would need medication and a five day a week intensive outpatient treatment program. Iofin opined that K.M.'s psychiatric pathology was in the moderate to severe range and found that her maladaptive personality pathology would be impossible to change. The effect on K.M.'s parenting ability in the long-run would be that she provides minimally adequate care for J.J. However, Iofin stated that it could present a different scenario if K.M. had another person living with her who would be available to support K.M. and J.J.

David F. Bogacki, PhD, a clinical child and adolescent psychologist, testified for K.M. He performed a psychological evaluation of K.M. and a bonding evaluation between K.M. and J.J. In preparing his report, Bogacki reviewed background materials as well as the evaluations of Lee and Iofin. Bogacki concluded that K.M. did not have any brain damage or visual perceptual impairment and her intellectual functioning was within the low average to average range. She had a depressive disorder with depressive symptoms in the past, but Bogacki noted that within the last few months there was nothing that would meet the criteria for a major depressive disorder. Bogacki did note that K.M. displayed compulsive personality disorder with histrionic traits, meaning that she was a perfectionist and concerned about making mistakes.

Bogacki did not find any of the typical risk factors, examples being substance abuse, domestic violence, criminal history, or antisocial conduct. Bogacki found K.M. to be stable and compliant with treatment. He testified that K.M. was currently seeing a psychiatrist and was involved with mental health treatments. She had further obtained housing by the time of the interview and was receiving disability payments. K.M. also had been receiving community support through her church and social organizations. Bogacki noted that the difficulties in parenting a special needs child decreased as the child got older and that now at age eleven, J.J.'s need for treatments of the past have decreased. However, Bogacki did find that K.M. would benefit from continued coaching and treatment with respect to care of a special needs child.

Bogacki testified about the bonding evaluation between K.M. and J.J., stating that it was "very, very positive." J.J. was happy to see K.M. and greeted her very strongly, with a big hug and kiss and, "mommy, I love you." K.M. brought a packed lunch for J.J. and they proceeded to discuss school and daily activities. Throughout the evaluation, J.J. would ask when were they going to have another visit and did not want to leave K.M. when the evaluation concluded. Bogacki testified that in the totality of his observations, it was his opinion that there was a "secure emotional attachment" and if K.M.'s parental rights were terminated, J.J. would likely suffer from some degree of emotional harm.

In Bogacki's report summary, he discussed five factors associated with parenting tasks that have been shown in psychological literature to be associated with successful parenting outcomes. For factor one, provision of nurturing and physical care, Bogacki found no impairment based on the bonding evaluation and the fact that K.M. currently had housing. For factor two, teaching and skill training in language, self-care, physical and social skills, it was noted that K.M. had no evidence of mental disease or defect dispositive of her ability to be able to teach J.J. life skills. This was of particular relevance because J.J. was eleven by this time and her needs for this type of teaching and training had lessened. For factor three, orienting the child to family, neighborhood and community, Bogacki found no deficiencies as K.M. had lived in the same area for her entire life and had positive relationships with family members. It was further noted that she would be capable of orienting her family to the neighborhood and community.

For factor four, promoting interpersonal skills, modes of feeling and behaving in relation to others, Bogacki noted a slight deficit but not dispositive of her capacity to parent so long as she continued to be treated for her emotional problems. K.M. presented no imminent risk factors with respect to the harm of J.J., physically or emotionally. The relative deficit was found in factor five, helping the child to develop future goals. Bogacki noted that K.M. was forty years old and currently in the process of rebuilding her life.

Bogacki further testified to a report he received from K.M.'s current treating source, Denise Murray, an outpatient therapist. The report found that K.M. had been very compliant with treatment and had made every effort to dispel symptoms associated with anxiety and depression. K.M. also had begun to utilize therapy interventions like coping skills, positive self-talk and appropriate decision-making, and eliminating stress factors. Bogacki testified that the report was generally a positive endorsement with respect to the time period of February 2007 to September 2007.

Heather Byers, a housing specialist for CSP, testified for K.M. regarding the housing and other services she had obtained through CSP. K.M. moved into her two-bedroom apartment on February 15, 2007, for which she had received a housing subsidy. Someone from CSP visited the home once a week and the home was reported as generally clean, tidy and very organized. K.M. also received medication monitoring, individual therapy bi-monthly and was a member of the Client Trust Account, meaning that CSP managed K.M.'s funds. At the time of trial, K.M. had just attended an informational meeting on repairing credit and on budgeting. Byers testified that CSP's services, although voluntary, were unlimited in duration. K.M. also had access to an emergency on-call system available twenty-four hours a day seven days a week.

Following the guardianship trial, judgment was entered terminating K.M.'s parental rights to J.J. The judge noted that she was in accord with the foster parents that it was in the best interest of J.J. to have regular contact with K.M. Therefore, although the court could not order them to do so, the judge requested that the foster parents continue visitation between K.M. and J.J. K.M. reports, however, that following the court's termination of her parental rights, the foster parents ceased all contact between J.J. and K.M. Furthermore, the foster parents have indicated their willingness to adopt J.J.

While the appeal was pending, we received a motion by K.M. to supplement the record with facts set forth in K.M.'s brief. M-2956-08. By way of this opinion, we grant the motion.

On appeal, K.M. contends:

THE TRIAL COURT ERRED BY FINDING THAT THE CHILD'S HEALTH AND DEVELOPMENT HAS BEEN OR WILL BE ENDANGERED BY THE PARENTAL RELATIONSHIP, INASMUCH AS THE TRIAL COURT FAILED TO ACKNOWLEDGE THAT THE CHILD'S SPECIAL NEEDS AND PROBLEMS EXISTED EXCLUSIVE OF THE MOTHER'S ACTIONS.

THE TRIAL COURT ERRED BY FINDING THAT [K.M.] IS UNABLE TO ELIMINATE THE HARM TO THE CHILD, AS SHE WAS NEVER GIVEN THE OPPORTUNITY TO DO SO.

We agree with K.M.'s contentions.

Because termination of a parent's right to raise a child is the most severe form of state action to protect the child, the Supreme Court has held that "all doubts must be resolved against termination of parental rights." In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999).

DYFS must therefore establish by clear and convincing evidence that termination is in the child's best interest. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986). The Supreme Court has set out four factors to consider when determining if terminating parental rights is in the best interests of the child. Ibid. These four factors have been codified as follows:

(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;
 
(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;
 
(3) The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights;
 
(4) Termination of parental rights will not do more harm than good.
 
[N.J.S.A. 30:4C-15.1(a).]

The factors "relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." K.H.O., supra, 161 N.J. at 348.

Moreover, "the 'best interests' of a child can never mean the better interest of the child." N.J. Div. of Youth and Family Servs. v. C.S., 367 N.J. Super. 76, 110 (App. Div.), certif. denied, 180 N.J. 456 (2004) (quoting A.W., supra, 103 N.J. at 602). Thus, termination will not be appropriate where caregivers are merely endowed with "unequal skills" or by a showing that a child would be better off with a prospective adoptive parent. Id. at 109-10. That principle is significant in this matter because it is clear that J.J.'s foster family provides better care than K.M., who has at times been overwhelmed by the responsibility.

Our analysis focuses on the lack of support for two of the statutory elements for termination. First, we address the proofs regarding K.M.'s ability and willingness to eliminate the alleged harm to J.J. This element directly focuses on parental unfitness. In re Guardianship of D.M.H., 161 N.J. 365, 378-79 (1999).

We begin by noting, as did K.M.'s counsel at oral argument, that most of the "harm" faced by J.J. is caused by her medical conditions, not the care K.M. provided. Thus, any person of average parenting abilities would have difficulty controlling J.J. or providing a safe and stable environment due to the child's inherent emotional and psychological instability.

In evaluating the second prong of the best interests of the child test, the judge found that K.M. was unable to eliminate the harm facing J.J. and unable to provide a stable home. The judge further found that a delay of permanent placement would only add to the harm. The judge then cited the opinion of Bogacki, noting the deficits reported with regard to K.M.'s parenting. The judge reviewed and accepted the opinion of Lee, that K.M. was not qualified to be an independent caregiver of a minor child, not because of any intentional risk of harm she might inflict, but because of her inability to effectively and consistently respond to J.J.'s needs. Iofin's finding that J.J.'s health and development had been and will continue to be endangered by the parental relationship was also reviewed and adopted by the judge.

In regard to the evidence that K.M. provided a stable home, the judge found that, although K.M. had obtained a stable home in a nice neighborhood, the funding was only voluntary. As the Law Guardian pointed out, this finding was inappropriate as no evidence was provided that K.M. would discontinue said services or that funding for the program would run out. The evidence shows that K.M. obtained stable housing, consisting of a two-bedroom apartment, which is reported to be clean and organized.

DYFS and the judge both conceded that the problem is not that K.M. is unwilling to eliminate the harm facing J.J. Rather, K.M. has made a strong effort in rehabilitating herself and in addressing the issues underlying J.J.'s removal. The judge in fact stated that, "this is one of the most difficult cases that I have ever had because we have a situation here that . . . there's never been any evidence that she ever intentionally harmed this child or would ever intentionally harm this child in the future."

The real issue is then not whether K.M. is willing, but whether K.M. is able to eliminate the harm facing J.J. while in her care. The evidence at trial is that, with DYFS services, K.M., although with difficulty, will be able to protect her twelve-year-old daughter from the child's challenges.

K.M. also contends that:

THE TRIAL COURT ERRED BY FINDING THAT TERMINATION OF PARENTAL RIGHTS WILL NOT DO MORE HARM THAN GOOD.

This element "serves as a fail-safe against termination even where the remaining standards have been met." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 609 (2007). The Supreme Court has noted that "[t]he risk to children stemming from the deprivation of the custody of their natural parent is one that inheres in the termination of parental rights and is based on the paramount need the children have for permanent and defined parent-child relationships." In re Guardianship of J.C., 129 N.J. 1, 26 (1992). Further instruction has been provided by this court, in that:

A final separation from a biological parent is a harm in itself . . . . Experts are increasingly concerned about the seriousness of this loss and are recognizing the need for continued contact with a biological parent, even a flawed parent . . . . Our courts have recognized that a child's relationship with a parent is of such significance that doubts are to be resolved against its destruction.

[In re Guardianship of J.E.D., 217 N.J. Super. 1, 15-16 (App. Div. 1987), certif. denied, 111 N.J. 637 (1988).]

However, the question ultimately is not whether the child will be free of harm as a result of the severing of biological ties. K.H.O., supra, 161 N.J. at 355. Rather, the fourth prong requires a balancing of the two relationships involved, with the issue then being whether the child will suffer a greater harm from the termination of ties with the natural parent or from the permanent disruption of the relationship with the foster parents. Ibid.

Moreover, termination of parental rights cannot be based solely on bonding with foster parents, without an implication of substantial fault or inability on behalf of the biological parent. N.J. Div. of Youth & Family Servs. v. T.C., 251 N.J. Super. 419, 432-33 (App. Div. 1991), certif. denied, 146 N.J. 564 (1992). The child's age, general health and development, and the realistic likelihood that the parent will be able to care for and have custody of the child in the near future are also factors to be considered. K.H.O., supra, 161 N.J. at 357.

Here, as DYFS has failed to prove that K.M. is unwilling or unable to eliminate the harm to J.J., the trial court erred in finding that termination of K.M.'s parental rights will not do more harm than good. See N.J. Div. of Youth & Family Servs. v. A.R., ___ N.J. Super. ___, ___ (2009) (slip op. at 30) (finding a mother's successful compliance with DYFS services and success recovery provided an indicator that she could provide a stable home for her children). As further evidence, Bogacki testified about the "very, very positive" relationship between J.J. and K.M., resulting from the majority of J.J.'s twelve years being spent in K.M.'s care. Furthermore, in situations where an older child voices the desire to reside with the birth mother, "a child's wishes should be but one factor" in the family court's ultimate decision regarding the best interests of the child. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 113 (2008). The Court in E.P. explained that "the family court would benefit from hearing the wishes of a child over the age of ten, who has reached a level of maturity that allows the child to form and express an intelligent opinion." Ibid. J.J. is now twelve-years-old and has stated her preference for living with K.M.

J.J.'s wishes thus enhance the existing evidence establishing that termination of K.M.'s parental rights will cause more harm than good. We, therefore, hold that DYFS has failed to establish sufficient criteria to warrant termination.

Given this holding, we need not address the remaining contentions by K.M., i.e.,

K.M. RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN THIS MATTER AND RESPECTFULLY SUBMITS THAT THE RESULT WOULD HAVE BEEN DIFFERENT HAD SHE RECEIVED MORE THOROUGH REPRESENTATION.

THE TRIAL COURT EXHIBITED BLATANT BIAS AGAINST [K.M.] DUE TO HER LACK OF WEALTH, INAPPROPRIATELY SPECULATING THAT [K.M.] COULD LOSE HER FUNDING TO SUPPORT [J.J.], THEREBY EFFECTUATING THE 'BETTER' INTERESTS OF THE CHILD INSTEAD OF THE BEST INTERESTS OF THE CHILD.

THE TRIAL COURT ERRED BY FINDING THAT [DYFS] MADE REASONABLE EFFORTS TO HELP [K.M.] REMEDY THE CIRCUMSTANCES THAT LED TO [J.J.'S] PLACEMENT.

THE TRIAL COURT ERRED BY FAILING TO CONSIDER VIABLE ALTERNATIVES TO TERMINATION OF [K.M.'S] PARENTAL RIGHTS.

 
We conclude that the judgment must be reversed. The matter is remanded for the implementation of a plan to reunite K.M. and J.J. This can include appointment of a professional to oversee and direct a prompt and appropriate reunification. See G.L. supra, 191 N.J. at 609.

The recitation of this history reflects only those facts that are in the record.

(continued)

(continued)

27

A-4347-07T4

RECORD IMPOUNDED

March 24, 2009