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

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4480-07T44480-07T4

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

T.B.,

Defendant-Appellant.

_______________________________

IN THE MATTER OF THE

GUARDIANSHIP OF R.W.B.,

a minor.

________________________________

 

Submitted March 25, 2009 - Decided

Before Judges 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 (Mark Tabakman, 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 (Patricia A. Dulinski, Designated Counsel, on the brief).

PER CURIAM

Defendant father T.B. appeals from the decision of the Family Part terminating his parental rights to his 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. T.B., who was twenty-one when his son was born, is a Jamaican citizen. R.W.B.'s mother, A.S., has not appealed the termination of her parental rights.

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.S.'s mental health. The employee cited an incident, which had occurred a few months earlier while she was pregnant, in which A.S. 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.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.S. agreed to sign a DYFS case plan. According to the case plan, A.S. was not to remove R.W.B. from the hospital until DYFS had been notified that he was ready to be discharged. A.S. agreed to allow DYFS to review her medical records and to follow DYFS's recommendations for evaluations. A.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.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.S. at all times.

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

DYFS filed for custody on February 10, 2006, basing the request on A.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 he and A.S. were supposed to get married in five days and she 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.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.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.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.

T.B. met with Dr. Lori Lessin for a psychological evaluation on May 17, 2006. T.B. told Dr. Lessin that A.S. had become ill while she was pregnant and that she was "constantly having seizures." T.B. reported that he did not graduate from high school. In her report, Dr. Lessin expressed concern about T.B.'s understanding of A.S.'s condition, which is discussed below. She stated that, "in spite of repeated hospitalization, subsequent to instances of self-injurious behavior and psychiatric disorganization, [T.B.] continues to believe that [A.S.'s] issues were related to seizures brought about by stress."

On July 7, 2006, Dr. Alexander Iofin evaluated A.S. Dr. Iofin reported that A.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."

On July 20, 2006, the Lakewood Police Department responded to A.S. and T.B.'s home for a domestic violence call. Upon his arrival, the police officer found A.S. crying and "very upset." He "observed dry blood on her hand and foot." A.S. refused to cooperate with the officer. A.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.S. would not provide him with sufficient information. A.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.S. told the police that T.B. had pushed her to the ground and kicked her in the head and ribs. A.S. also told the police that T.B. had hit her and thrown rocks at her, but missed. A.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.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 parents' home. The officer reported that large amounts of clothing had been thrown about on the ground. A.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.S.] near the stairs but denied in fact she fell down the stairs. [T.B.] stated that [A.S.] came after him aggressively and instigated the encounter." T.B. was arrested for assault. A.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.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.S. successfully completed the twelve-week, in-home parenting class offered through the St. Francis Center. T.B. and A.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.S. called Dr. Lee to inform that they were running late, but that they were en route. T.B. and A.S. arrived at Dr. Lee's office an hour late and, by that time, the appointment needed to be rescheduled.

Dr. Lee conducted a psychological evaluation of T.B. on July 30, 2007. T.B. informed Dr. Lee that he had been on probation for two years ending in 2005 for burglary and theft convictions. He reported that he was unemployed and had trouble finding a job because he was not a citizen. Dr. Lee found T.B. to be "remarkably egocentric and self-focused on his personal needs and personal interests. [T.B.] presents as characteristically much less mature and more primitive than expected for his chronological age with a strong sense of grandiosity, entitlement, and arrogance." Dr. Lee believed T.B. to be at "a very heightened risk for aggressive and explosive behaviors and attitudes with a known history of admitted domestic violence and a general sense of detachment to the same." Dr. Lee recommended a permanency plan that did not include reunification of R.W.B. with T.B.

Bonding evaluations were conducted between R.W.B. and his biological parents on July 31, 2007. Dr. Lee found that R.W.B. did not "evidence a significant psychological attachment or bond with the birthparents." He concluded that "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 this birthmother . . . and his birthfather . . . was permanently ended."

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. Jenny Hyde, a DYFS caseworker, testified that T.B. and A.S. had only missed one scheduled visit with R.W.B. Hyde stated that, after the first few visits, T.B. "interact[ed] well with the child."

Stephanie Noss, also a DYFS caseworker, testified that T.B. had been in compliance with his domestic violence perpetrator program until his incarceration in November 2007, which precluded the completion of the program. Noss testified that T.B. and A.S. had been discharged by a marriage counselor because the counselor felt that they were not making progress and that she could not help them.

T.B. testified at the termination trial. He was imprisoned in November 2007 on a terroristic-threat charge. T.B. subsequently pled guilty to simple assault for attacking his then girlfriend, M.C. At the time of the termination trial, T.B. 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. testified that he did not anticipate being married to A.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.S. As previously noted, A.S. has not filed an appeal. We granted T.B.'s motion to file his appeal as within time on June 4, 2008.

II

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).

"Parental 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).

The State's power to intervene in the best interest of R.W.B. remains unchanged despite the fact that T.B. is a foreign national. New Jersey Div. of Youth and Family Servs. v. M.Y.J.P., 360 N.J. Super. 426, 454-55 (App. Div.), certif. denied, 177 N.J. 575 (2003), cert. denied, 540 U.S. 1162, 124 S. Ct. 1176, 157 L. Ed. 2d 1207 (2004) ("New Jersey's parens patriae obligation to protect and promote the welfare of children extends to all children resident in this State, undiluted by the fact that they or their parents may be non-citizens.").

T.B. raises the following issues on appeal:

POINT I

THE TRIAL COURT ERRED IN RULING THAT DEFENDANT'S PARENTAL RIGHTS SHOULD BE TERMINATED AS THE STATE FAILED TO PROVE, BY THE REQUIRED CLEAR AND CONVINCING EVIDENCE, THAT TERMINATION OF THE PARENTAL RIGHTS WAS APPROPRIATE.

A. THE CHILD'S HEALTH AND DEVELOPMENT WAS NOT ENDANGERED BY THE PARENTAL RELATIONSHIP.

B. THE DEFENDANT WAS ABLE AND WILLING TO ELIMINATE THE HARM FACING THE CHILD AND WAS ABLE AND WILLING TO PROVIDE A SAFE AND STABLE HOME FOR R.W.B.

C. THE DIVISION DID NOT MAKE REASONABLE EFFORTS TO PROVIDE SERVICES TO CORRECT THE CIRCUMSTANCES WHICH LED TO THE CHILD'S PLACEMENT OUTSIDE THE HOME.

D. TERMINATION OF PARENTAL RIGHTS WILL DO MORE HARM THAN GOOD.

We address each point in turn.

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 . . . 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, 114 (App. Div. []) [certif. denied, 180 N.J. 456 (2004)] . . . .

The father's violence, both with the defendant mother and another female as well as his demonstrative anger were clearly harmful to the child.

T.B. argues that it is "undisputed . . . that [he] was in no way abusive or neglectful of any of the needs of R.W.B. or ever did anything abusive towards him." 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 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. See State, New Jersey Div. of Youth & Family Servs. v. S.A., 388 N.J. Super. 324, 338-39 (Ch. Div. 2005) ("The court finds [defendant parent's] ongoing patterns of physical abuse and criminal activities inconsistent with a plan that 'ensures the safety and health and serves the best interests of the child.'"); see also New Jersey Div. of Youth & Family Servs. v. I.Y.A., 400 N.J. Super. 77, 95 (App. Div. 2008) ("[I]n domestic violence cases there is a statutory presumption 'that the best interests of the [children] are served by an award of custody to the non-abusive parent,' N.J.S.A. 2C:25-29(b)(11) . . . .").

T.B.'s actions have clearly demonstrated a propensity towards violence. He has been charged with assaulting two women since DYFS began its involvement with the family. Dr. Lee's unchallenged opinion was that T.B. "continues to have a heightened risk for violence potential and appears very much detached from his significant issues." The record established that T.B.'s resort to violence was chronic, habitual, and repetitive, and would endanger the health, safety, and welfare of R.W.B. New Jersey Div. of Youth and Family Services v. A.R.G., 361 N.J. Super. 46, 80 (App. Div. 2003), aff'd in part and modified in part, remanded in part, 179 N.J. 264 (2004).

Additionally, T.B. contends that the trial court acted improperly by considering his current incarceration for immigration reasons, as well as his most recent assault charge, because neither demonstrates any danger to the child. T.B. largely relies on In the Matter of Adoption of Children by L.A.S., 134 N.J. 127 (1993), to support his position that termination cases should not focus merely on the fact the parent is incarcerated, but also on the relationship between the parent and child.

L.A.S., supra, dealt with termination under the adoption statute, N.J.S.A. 9:3-46. 134 N.J. at 137-38. In L.A.S., supra, the focus of the court was on whether incarceration alone was sufficient to constitute abandonment of parental rights under N.J.S.A. 9:3-46. 134 N.J. 137-38. The balancing test that T.B. argues is required to be followed by the trial court in determining the effect of his incarceration on his parental rights would be applicable if the trial court was terminating his rights based on his having abandoned R.W.B. Id. at 138-39. However, in the present action, termination proceeded under the best interest of the child standard found in N.J.S.A. 30:4C-15.1(a). Additionally, L.A.S. was superseded by an amendment to N.J.S.A. 9:3-46 in 1994, which altered the focus from parental rights to the best interests of the child. L. 1993, c. 345, 9; see also In re Adoption of Children by G.P.B., 161 N.J. 396, 405-06 (1999).

Despite the subsequent statutory amendments, we continue to recognize the underlying concerns articulated in L.A.S. See New Jersey Div. of Youth and Family Servs. v. S.A., 382 N.J. Super. 525, 533-34 (App. Div. 2006). In L.A.S., supra, the Supreme Court stated that "the incarceration of a parent is a relevant factor in determining whether the parent-child relationship may be terminated." 134 N.J. at 135. Further, the Supreme Court

recognized the need for children to have permanent and stable relationships with a nurturing parent figure. J.C., supra, 129 N.J. at 26. The effect of a parent's incarceration on the permanency and stability of the child's life may be substantial. A parent's imprisonment can have a disruptive and destabilizing effect on the child's life.

[Id. at 140.]

We believe that the trial judge correctly considered T.B.'s current incarceration in reviewing N.J.S.A. 30:4C-15.1(a)(1). While his imprisonment alone is not sufficient grounds on which to find the first prong of N.J.S.A. 30:4C-15.1(a) satisfied, it compounds the harm that R.W.B. is suffering by impeding any permanence and stability in his life. See L.A.S., supra, 134 N.J. at 140. Despite T.B.'s apparent optimism, there is nothing in the record to support his assertion that he will not eventually be deported.

While the trial judge's fact finding with respect to T.B. under the first prong was in no way expansive, we find sufficient evidence in the record to support the determination that DYFS proved N.J.S.A. 30:4C-15.1(a)(1) by clear and convincing evidence.

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. . . . 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 (citing B.G.S., supra, 129 N.J. Super. at 592).]

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 evidence clearly and convincingly showed that the father was unwilling and unable to stop his violent behavior and to be able to demonstrate that his involvement with the Court system and incarceration was coming to an end.

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

Additionally, the trial judge found that T.B. "is not capable of being an independent caregiver. His multiple admitted acts of domestic violence against both the defendant/mother and recently another female friend show his propensity for violence. This violence continued even after significant attempts by [DYFS] to provide therapy and services to him."

T.B. argues that the state failed to satisfy the second prong of N.J.S.A. 30:4C-15.1(a) because he had complied with many of DYFS's services and testified at trial to his commitment to being a good parent. While T.B. did regularly attend visits and completed a parenting class, he had not yet obtained stable employment and had not completed the domestic violence perpetrators program. Both of these deficiencies resulted from his current incarceration for immigration violations.

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. T.B.'s current status provides the necessary evidence that R.W.B. would not find stability if T.B.'s parental rights are not terminated. The trial judge's finding that T.B.'s propensity towards violence and involvement with the criminal justice system were not likely to come to an end was supported by the record.

Although T.B. testified that he could care for R.W.B. once he was released from prison and that he is committed to refraining from domestic violence, his assertions were severely undercut by the testimony of Dr. Lee. He testified that T.B. "can be rather reactive and perhaps even rageful, contributing to some particular concerns as to his angry and potentially explosive outbursts." Further, Dr. Lee stated that he would not recommend T.B. as an independent caregiver to a minor child because of his "impulsive, aggressive, reactive behaviors." It is apparent that the trial judge credited the testimony of Dr. Lee over that of T.B. These determinations, where reasonably made, are binding on appeal. F.M., supra, 375 N.J. Super. at 259.

Finally, T.B. also emphasizes that he was not the reason R.W.B. was placed in DYFS custody out of the hospital, but argues that the only reason R.W.B. was placed in DYFS's custody was A.S.'s mental-health issues. We do not agree with T.B.'s assertion that A.S.'s mental-health concerns were the only impetus behind DYFS's placement of R.W.B. in foster care. In DYFS's initial request for temporary custody and in the trial judge's granting DYFS custody on February 10, 2006, domestic violence was among the concerns relied upon by DYFS and the court.

Additionally, under D.M.H., T.B. can be held responsible for the plight of R.W.B. even if he was not the reason behind the initial contact with DYFS. See D.M.H., supra, 161 N.J. at 379-80. As in D.M.H., T.B. did nothing to alleviate the harm R.W.B. would suffer due to a lack of permanency. T.B. did not "assist in securing adequate housing," id. at 379, for R.W.B. once it was determined that the child could not be released into A.S.'s custody, but rather "has allowed the child[] to languish in foster care for many years without a permanent home." Id. at 383.

We find that DYFS has proven, by the required clear and convincing evidence, prong two of N.J.S.A. 30:4C-15.1(a) by showing that T.B. has not ended his violent tendencies and that he is not able to provide care for R.W.B now or at any point in the foreseeable future.

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 N.J.S.A. 30:4C-15.1(a)(3) 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.

T.B. argues that DYFS failed to satisfy N.J.S.A. 30:4C-15.1(a)(3) because it did not provide for effective and meaningful visitation while he was incarcerated. Additionally, T.B. argues that when the first referral to a domestic violence program did not work, "DYFS should have found a program more amenable to the defendant's schedule or temperament, a program that he would have felt at home in and could have thrived and then completed the program."

It is clear from the record that sufficient services were offered to T.B. including: parenting skills classes, anger management classes, perpetrators of domestic violence counseling at two programs, psychological evaluations, psychiatric evaluations, couples counseling, and visitation. The trial judge found that although T.B. "attended many of the therapy sessions or group meetings (180 Group), he failed to complete the same and then failed to finish his therapy sessions with an individual therapist." Further, T.B. "did not fully cooperate with [DYFS] by failing to complete the recommended programs for anger management." See A.W., supra, 103 N.J. at 610 ("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 . . . .'" (citation omitted)).

Additionally, Dr. Lee testified that he did not believe T.B. would benefit from services. Dr. Lee based this opinion, which differed from that of Dr. Lessin's initial evaluation, on the fact that services had already been provided to T.B. when he evaluated T.B., yet "the concerns that were evidenced from [his initial] evaluation [with Dr. Lessin] appeared still present and to that degree unabated."

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.

We find DYFS has presented clear and convincing evidence that T.B. was provided with adequate services aimed at reunification.

D

The final prong of 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 addressing the fourth prong of N.J.S.A. 30:4C-15.1(a), the trial judge stated:

[DYFS] 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).

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 expert testimony of Dr. Lee was challenged only by T.B.'s testimony. 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.

III

In conclusion, we find that DYFS has carried the burden of proving all four prongs of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence.

Affirmed.

T.B. had failed to attend his first psychological evaluation scheduled with Dr. Alan J. Lee for April 18, 2006.

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)

(continued)

29

A-4480-07T4

RECORD IMPOUNDED

April 16, 2009