NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. J.A.H.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5215-07T45215-07T4

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

J.A.H.,

Defendant-Appellant,

IN THE MATTER OF THE GUARDIANSHIP

OF D.L.G.,

A Minor.

________________________________________________________________

 

Submitted May 26, 2009 - Decided

Before Judges Carchman, Sabatino

and Simonelli.

On appeal from the Superior Court

of New Jersey, Chancery Division,

Family Part, Essex County, Docket No.

FG-07-223-07.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Christine B.

Mowry, Designated Counsel, on the brief).

Anne Milgram, Attorney General,

attorney for respondent (Andrea M.

Silkowitz, Assistant Attorney

General, of counsel; Cissy M.

Rebich, Deputy Attorney General,

on the brief).

Yvonne Smith Segars, Public

Defender, attorney for the minor

(Melissa R. Vance, Assistant

Deputy Public Defender, on the

brief).

PER CURIAM

Defendant J.A.H. (fictitiously renamed "Jane Howard") appeals from a judgment of guardianship terminating her parental rights to her child, D.L.G. (fictitiously renamed "David Graham"). David's biological father, D.F., does not appeal the termination of his parental rights. We affirm.

These are the relevant facts adduced at trial. Defendant Jane Howard was born on May 23, 1988. She currently has four children, David, D.F.'s son, born August 9, 2005, G.G., Jr. (fictitiously renamed "Grant, Jr."), the son of her paramour, G.G. (fictitiously renamed "Grant Graham"), born August 9, 2006, R.G. (fictitiously renamed "Ray Graham"), also Grant's son, born June 20, 2007, and a fourth child, born August 14, 2008. All four children are in State custody.

Plaintiff, Division of Youth and Family Services (DYFS or the Division) became involved with defendant's family in December 2004, when her mother, E.J., was referred to DYFS for substance abuse that "pose[d] an imminent risk of harm to" defendant, who was sixteen years old at the time. In January 2005, DYFS enrolled defendant, who was not attending school at this time, in the Challenge Youth Program but she "failed to pass the enrollment test." At this time, defendant also learned she was pregnant with David.

DYFS became aware of defendant's pregnancy in March 2005. On August 9, 2005, defendant gave birth to David Graham. She gave the baby the same last name as Grant Graham, her boyfriend and an adult male eight years her senior, because Grant wanted to "be the baby's father." On August 18, 2005, a DYFS caseworker conducted a visit of defendant's mother's apartment to assess the living arrangements. The worker noticed that the apartment was not furnished and David was sleeping in a bassinet in defendant's room. The Division provided defendant with a crib. On September 12, 2005, defendant contacted DYFS and advised it that she was now living with Grant.

An investigation of Grant's home revealed that there was no furniture, refrigerator or stove. Defendant, Grant and the baby were sleeping on a mattress on the floor and defendant kept some formula in a cooler. A DYFS worker also reported smelling "sewer gas and cat urine throughout the house." DYFS found that the allegations of neglect were substantiated; and as the result of an emergency removal, N.J.S.A. 9:6-8.29 and -8.30, DYFS took custody of David and placed David in a foster home. DYFS filed a complaint for protective services and was awarded custody.

DYFS's reunification plan was to have defendant live with her mother, complete her education and maintain employment. Despite being directed to live with her mother, defendant did not comply and continued living with Grant.

The court proceedings prompted a psychological examination of defendant. Dr. Mark Singer found that since defendant was "a young, immature individual, [she] is likely to have significant difficulty meeting the needs of [David]." He recommended a variety of classes, therapy and for her to live with David in a residential program that would "assist [defendant] in developing the skills needed to care for her son while living with him under supervision."

At a fact finding hearing, Judge Rothschild found that defendant had abused or neglected David in that "the child's safety was at risk because there was no furniture in the home (no crib), no refrigerator, no stove [and defendant] left her mother's home and brought the infant to live with an inappropriate caretaker [Grant]."

Pursuant to the judge's order, DYFS placed defendant and David in the Union Industrial Home (Union), a residential program. On January 9, 2006, DYFS learned that defendant again was pregnant. Contrary to its established practice, Union agreed to allow defendant and David to remain in its program and offered parenting skills classes, individual and group counseling, and group sessions on how to care for a child. According to Union's rules, Grant was not allowed to visit defendant at Union "because of his age" and defendant was required to give notice a week in advance so that a visitation could be set up at with a program called "Fathers Parenthood."

Defendant failed to comply with Union's regulations as on February 7, 2006, DYFS learned that two days earlier, defendant left the building with Grant without permission. When she did not return by Union's curfew time, Union notified DYFS and the police of her disappearance. DYFS was able to locate David when defendant's mother informed them that defendant had left the baby with her sister. The child was again removed and placed in his previous foster home, where he remains to this date.

After she left Union, DYFS instituted services for defendant at Reunity House. On March 23, 2006, Reunity House notified DYFS that defendant "ha[d] not had any visits or group sessions because [Reunity had] not been able to contact her." Services were re-instituted for defendant and Grant on March 29, 2006. Defendant reported attending the Adult High School and transferring to the Alternative High School. On April 27, 2006, defendant notified DYFS that she and her mother had been evicted from the apartment and were living with her uncle.

On May 23, 2006, defendant reached the age of eighteen years old and was legally free to live with Grant. She stated that she would go to the welfare agency to obtain temporary rental assistance and housing, but she claimed "she could no longer attend [school] because she is pregnant and considered a liability." When the caseworker noted that she had never heard of this rule and actually knew "several girls that attended school while pregnant[,]" defendant stated that she was planning on getting a GED.

On June 6, 2006, DYFS received a progress report from Reunity House, which stated that defendant and Grant had "only missed one visit [with David and] attended all but two parenting classes." Reunity House also reported defendant and Grant's positive progress and that they "appear motivated for treatment." Reunity House recommended that defendant and Grant "continue participating in the . . . supervised visitation program to address their parenting skills [and that s]table housing, employment and education [were] all concrete areas that [also needed to] be addressed prior to reunification."

Although reportedly motivated, the implementation proved otherwise. On July 14, 2006, two DYFS caseworkers visited defendant and Grant's home. They noted that "the outside of the home [was] dirty and unkempt . . . [and that it] look[ed] abandoned." The workers also observed that there were "no shades on the windows on the first floor [but i]nstead, there [were] black plastic bags covering the living room window." There was no furniture in the living room except for a stereo in the corner, the kitchen had a working microwave and a non-working one, and the back porch had "a lot of clothes in plastic bags and some in suitcases." The refrigerator was also outside in the back porch. The bedroom had a bed, television and a bassinet. Another bedroom contained "a crib leaning on the wall that needed to be assembled, a couch, a coffee table[,] . . . another television [and] a broken piece of [a] mirror with scratches on it, lying on the table." The bathroom had a working sink, toilet and bathtub/shower. The smoke detector had "a blinking light," and the carbon monoxide detector was not connected. Despite DYFS's request to have all documentation ready prior to the visit, defendant and Grant did not have a copy of the lease or copies of utility bills. Defendant reported attending the GED program but "want[ed] to stop because she [was] not learning anything."

On July 25, 2006, Dr. Singer conducted another psychological evaluation of defendant and one for Grant. With regards to defendant, Dr. Singer reported that defendant had an IQ composite of seventy-seven. Dr. Singer found defendant to be "a secretive individual . . . [who] has difficulty acknowledging and responding to the needs of others." Test results suggested a "Histrionic Personality Disorder with narcissistic and obsessive-compulsive personality features."

As to Grant, Dr. Singer noted that Grant "presented as an angry, agitated individual [who] minimizes personal faults [since he] appears to blame DYFS for not having [David] home and for not having weekend visits with the child." Grant informed Dr. Singer of a 1995 arrest and sentence for possession of CDCs, that he left school after tenth grade, that he had last used marijuana three to six months ago and was not "participating in drug treatment, as previously recommended[.]"

In an opinion that became thematic of the issues in the guardianship proceeding, Dr. Singer opined that both defendant and Grant "clearly love[ David]" and that they had "taken steps towards [the] goal [of reunification but that] both adults have not fully complied with previously made recommendations and continue to lack the emotional resources needed to care for [David] as they also face the birth of their [next] child [Grant, Jr.]" Dr. Singer recommended that both adults complete parenting skills classes, receive therapy, obtain "appropriate employment and maintain appropriate housing." He also recommended that Grant participate in an outpatient drug treatment program and that defendant should obtain her GED. Dr. Singer concluded that with the recommendation of the treating professionals, after the family became situated with the newborn, weekend visits with David could take place leading to a full reunification.

On August 1, 2006, a DYFS caseworker called the Waris Cultural Center to confirm that defendant was enrolled in their GED program and was informed that they did not have a student matching defendant's name.

Defendant gave birth to Grant Jr. on August 9, 2006. Defendant claimed receiving pre-natal care at Beth Israel Hospital but the hospital social worker was unable to find any documentation confirming this fact. DYFS conducted a home assessment on August 10, 2006, and found the home to be "clean and organized" with a queen-sized bed, a bassinet for Grant, Jr., and a crib for David. There was also appropriate bedding, clothing and toys for Grant, Jr.

On September 6, 2006, DYFS received an updated progress report from Reunity House stating that defendant had only missed one scheduled visit, the day she gave birth to Grant, Jr. They noted that Grant's visits were "inconsistent" due to work schedule conflicts but became "more consistent" after they addressed the issue. However, both defendant and Grant had not attended parenting classes since July 5, 2006. Reunity House noted progress for both individuals and recommended increased visitation to twice a week and a supervised overnight visit.

On September 13, 2006, Judge Rothschild signed a permanency order approving reunification with David within four months because "services have been complied with" but ordered further services, psychological evaluations, parenting skills and counseling.

During a meeting with Reunity House that DYFS and defendant held on October 4, 2006, defendant was advised that she must seek and maintain steady employment, complete her GED and fully comply with all the services, such as parenting skills courses, in order to gain physical custody of David and Grant, Jr. DYFS also informed Grant that he should receive individual therapy.

By December 19, 2006, although defendant and Grant attended all the scheduled supervised visits, they failed to attend all the parenting skills classes. The Reunity House manager noted that both adults "struggle[d] working and complying with outside service systems." The manager also recommended a supervised overnight visit to assess the parents' abilities to care for David and Grant Jr. At a compliance hearing held on January 3, 2007, Judge Rothschild signed an order stating that reunification was not appropriate because the "parents have not fully complied with services."

The overnight visit was held on January 19 to January 20, 2007, and proved relatively successful. The parents "demonstrated an improvement as the overnight visit progressed" and successfully cared for both children until the morning. The parents also gave David his scheduled asthma medications without needing a reminder from the observing clinicians. In a follow-up conversation between a DYFS caseworker and the Reunity House manager on January 22, 2007, the manager informed the caseworker that defendant wanted to sleep with David in her bed. When the manager told defendant that it was inappropriate, defendant "was very defensive . . . and stated that [David] likes to sleep like that." The caseworker also noted that he had sent Grant, Jr. with a can of baby formula, a new box of cereal and six bottles of water and that they had all been returned after the visit unopened. On that same day Grant, Jr.'s foster parents called DYFS and reported that Grant, Jr. suffered from "bad" diarrhea and came back "very hungry." David's foster parents only stated that he "picked over his lunch and was very cranky but after he took his nap and ate dinner he was better."

A second overnight visit was less successful as the parents failed to administer David's asthma medication despite the clinician's reminder to do so. The Reunity House manager noted that this failure may present a risk if defendant and Grant were to care independently for both children. Defendant again wanted to sleep with David in the bed and was again told that David should sleep in a crib. David's foster parents reported that after the overnight visit, his medicine was returned unopened, that "he threw tantrums all weekend," "seemed frightened," was "clingy" and "very hungry."

The Reunity House manager expressed concerns over the parents' failure to administer David's asthma medication during the second overnight visits; the parent's resistance to attending parenting classes, which demonstrate an inability to attend recommended services were they to receive physical custody of the children; and the parent's failure to provide secure and stable housing and income.

Another compliance hearing was held on February 21, 2007, and Judge Rothschild ordered the parents to complete all services "IN FULL," "address housing deficiencies noted by CASA," and provide DYFS with "current and updated employment and lease information." It appears that this information was never provided.

Within two weeks, during a telephone conversation with Reunity House, DYFS learned that defendant was again pregnant. The Reunity House manager expressed concern over what would become the dominant issue in this litigation defendant's ability to care for three young children when she was only nineteen years old.

On March 8, 2006, Judge Rothschild issued an opinion and signed an order approving DYFS's plan to terminate defendant's parental rights as to David. The judge noted defendant's parenting progress and spotty compliance. Another concern that the judge expressed was DYFS's reports of the presence of a woman in defendant's apartment who "appeared to be drug involved." Ultimately, the judge concluded:

1. [Defendant] is becoming more mature and is complying, albeit erratically, with DYFS's services.

2. [Grant] is a generally reliable, stabilizing co-parent whose presence is helpful to [defendant].

3. It is far from clear that DYFS will meet the clear and convincing standard of the K.H.O. and A.W. cases.

Nevertheless, at the time, DYFS must be allowed to file a termination complaint because of its valid concerns about [defendant's] ability to provide a safe home for [David], who is, after all, a young child with an asthmatic condition.

[(Footnote omitted).]

During this period, defendant gave birth to her third child and was terminated from the GED program for failure to attend classes. Although defendant and Grant had shown progress in their parenting skills, Grant was terminated from that program because he threatened a staff member during parenting group and refused to leave the premises, prompting a police response. Reunity House noted that although defendant was eligible to continue attending the program, "due to [their] intact relationship it [was] recommended that they attend a program in which they could participate together." Reunity House, thereafter, informed DYFS that it was also discharging defendant from the program. Defendant's choice to raise the children with Grant meant that "they [were] either going to be successful or not [in reunification with David and Grant Jr.] as a couple and as a family[]," and Reunity House could not provide successful services to defendant alone.

The Reunity House incident prompted DYFS to deny Grant visitation with David since he was not that child's biological father. At this point, defendant was no longer enrolled in the GED program, no longer enrolled in parenting classes, was unemployed and collecting welfare.

DYFS found an agency called Final Stop which would supervise defendant's visitations with David. At this same time, the judge indicated Grant was "not to be a part of the case any longer because he's not [David's] father." During a scheduled visit with David at Final Stop, Grant appeared at the Final Stop office "threaten[ed] the staff and yell[ed] and scream[ed] that he want[ed] to see his son." Grant was reminded that he cannot be at the visits since he is not David's biological father and was escorted out of the building by the police.

The Final Stop program proved unsuccessful. Defendant was habitually late for visitations, on one occasion appeared with an odor of alcohol and her visitations were terminated. A DYFS caseworker met with defendant and informed her that reunification with David was dependant on defendant obtaining steady employment, obtaining her GED and completing her parenting skills classes. The caseworker also informed defendant that DYFS would attempt to find another agency to supervise visitation but that this was her final chance.

DYFS scheduled visitation with Tri-Cities in September 2007. When Grant was informed that he could not participate in the visitations, he began cursing at the caseworker. Grant continued cursing and yelling at DYFS workers whenever they came to transport defendant to her scheduled visitations or during home visits. Although defendant eventually completed her parenting classes, the pattern of failing to access services continued. Defendant did not attend a substance abuse evaluation at Catholic Charities scheduled for November 29, 2007, and on December 20, 2007, during a home visit, DYFS caseworker noticed the smell of alcohol on defendant's breath.

On September 18, 2007, Dr. Singer, DYFS's expert, conducted an updated psychological evaluation of defendant and bonding evaluations as to David, of defendant and the foster parents. Dr. Singer noted that there was little change from his July 2006 evaluation; defendant "remain[ed] a defensive, secretive individual . . . [who] has a significant need for attention and approval, has difficultly acknowledging and responding to the needs of others[.]" Dr. Singer opined that defendant was "likely to be limited in meeting the needs of others, including her children."

The bonding evaluation was equivocal. Dr. Singer noted that "[w]hile ... [David] recognizes his mother, the child's behavior suggests that he has not come to view [defendant] as being a consistent attachment figure in his life." If the relationship between David and defendant was severed, "[David] would likely experience a reaction to this loss . . . [but] this reaction is not likely to be significant as the child has not come to view [defendant] as being a consistent attachment figure in his life."

On the other hand, regarding the foster parents, Dr. Singer opined that David "ha[d] come to view his foster parents as being [the] central parental figures in his life" and that he "ha[d] come to view his foster parents as being his psychological parents." Dr. Singer also opined, "should [the] relationship [between David and his foster parent] be severed, [David] would likely have a significant and adverse reaction to the loss of these parental figures."

Finally, Dr. Singer concluded,

This case is highly complex from a psychological perspective as it involves a child who has a clear and secure bond to his caregivers and a parent who, in general, appears to have basic parenting abilities as she parents along with her partner, although these abilities, as indicated in the test data, are clearly limited and the available emotional resources for parenting appear to be easily strained. While [defendant] has had the opportunity to engage in services, the data, as previously noted, . . . raises concerns regarding [her] ability to benefit from treatment. As such, the totality of the available data suggest[,] that, at present, [David] would best be served by being provided with the permanency afforded by his current caretakers. While [defendant] must be commended for attempting to make improvements in her life, and should be commended for caring for her 2 children along with her partner, [David's] need for permanency and [defendant's] apparent lack of true personality change supports DYFS' case goal of termination in order to provide [David] with the opportunity to achieve permanency.

Dr. Gerard A. Figurelli, defendant's expert, conducted a psychological and bonding evaluation of defendant. He opined that defendant did not "experience clinically significant symptoms of any diagnosable . . . psychological disorder or clinical syndrome." He also noted that the evaluation did not reveal "evidences of [defendant's] attitudes toward parenting, parenting practice, expectation that she maintains for her children, perception of her role as parent, approach to parenting, and/or her perception of her parenting strengths/weaknesses that are likely to adversely impact her capacity to parent adequately." Dr. Figurelli also found that defendant did not seem to have a "history of a diagnosable drug or alcohol abuse/dependence problem." Dr. Figurelli concluded, "[i]t is the opinion of this examiner that [defendant] has the capacity to act adequately in a parenting role."

At the guardianship hearing, Dr. Figurelli admitted that he did not "review any background information prior to the preparation of [his] report" but relied on the information provided by defendant. His final conclusion would "depend[] in part on the veracity of the client during the interview[.]" Dr. Figurelli opined that defendant had "the intellectual capacity to parent . . . [, to] make adequate parenting decisions[,] . . . the capacity to understand the needs that children present and to respond to them consistently, adequately and appropriately [and] . . . the capacity to benefit from training to address [any deficits] and remediate them and eliminate them." He also noted that as long as a parent was showing "significant progress in addressing the issues that resulted in the removal of their child or children," the court should refrain from terminating the parent's rights for "however long it takes because it remains in the best interest of the child for the Court to do so."

With regard to the bonding evaluation, Dr. Figurelli was unable to conclude that a reciprocal bond existed between defendant and David. However, he found that "the capacity for the development of such a relationship appear[s] to exist . . . [and] with continued visitation [David and defendant] would have the opportunity to further enhance the nature and scope of the attachment in their relationship." Dr. Figurelli did not recommend immediate reunification but suggested continued visitation to further enhance the relationship between defendant and David. He opined that if the relationship between defendant and David was severed, this would "likely have a significant and enduring adverse impact on [David's] development during later childhood and adolescence -specifically, by preventing him from having the opportunity to cultivate a relationship (with his mother) that would contribute to his capacity to develop an adequate and independent sense of personal identity." He could not offer an opinion whether separation from defendant would cause more harm than good to David because Dr. Figurelli had not conducted a bonding evaluation with the foster parents.

In January 2008, an incident was reported that significantly changed the custody relationship of defendant and her children. Allegedly, Grant kidnapped Grant, Jr. because defendant told Grant that "she was planning on leaving him and relocating the children." He also made "terroristic threats to [defendant] and told her that if she ever left he would cut her with a machete, and if [he] could not have her, no one else could." Grant, Jr. was found and taken to Newark Beth Israel Medical Center while Grant was arrested and held in jail. Grant, Jr. was examined and the doctor noted that Grant, Jr. weighed eighteen pounds when he should have weighed twenty-five pounds. DYFS was ordered to take custody of both Grant, Jr. and defendant's most recently born third child, Ray.

On February 8, 2008, the court held a fact finding hearing and heard from the children's pediatrician who testified that she had seen Grant, Jr. on June 5, 2007, where he "weighed 21 pounds, putting him in the 50th percentile for his age." Although the children should have been brought in for "well visits" on a regular basis, she did not see Grant, Jr. again until January 7, 2008, when he was brought in by the police. Grant, Jr. was diagnosed with "severe anemia and malnutrition". Following the hearing, the judge concluded that "DYFS met its burden by clear and convincing evidence" that defendant had neglected Grant, Jr.

At the guardianship trial for termination of parental rights as to David, defendant indicated that she was employed at Genesis Day Care Center, and was being paid "off the books" but would soon be put on the books. She also stated that her residence was not permanent at the moment. She was awaiting Temporary Rental Assistance, she intended to begin GED classes in thirty days, and if David was returned to her, she would place him in daycare and support him financially with her earnings from the Day Care Center.

At the conclusion of the trial, the judge, in a fifty-five page written opinion, made extensive findings regarding the multi-prong analysis required by N.J.S.A. 30:4C-15.1 and A.W., supra, 103 N.J. at 591. With regard to the first prong, the judge found that defendant had harmed David by living in a home that "was not fit for a baby to live in," and even if the home was safe, defendant "who was [seventeen years old] and somewhat immature" could not care for David on her own.

He found that DYFS satisfied the second prong as well, concluding: 1) Dr. Singer found David to have bonded with his foster parents and viewed them as central parental figures so that separation from the foster parents would cause serious harm; 2) both experts agreed that defendant did not have a strong bond with David; 3) the expert literature supported Dr. Singer's opinion that David, who by then had spent two years with his foster parents, would suffer severely if separated from them; 4) the court previously found that defendant had neglected Grant, Jr. by causing him to be malnourished and failing to provide medical care; and 5) defendant had still not obtained her GED or high school diploma, stable housing or consistent employment, and "did not cooperate with the bulk of the services" provided DYFS.

Judge Rothschild also listed all the services provided by DYFS which made it "absolutely clear that DYFS met its burden under the third prong . . . [.]"

Finally, as to the fourth prong, Judge Rothschild reiterated defendant's extensive history with DYFS, her inability to complete the services offered to her, her age, her lack of judgment with her relationship with Grant, her immaturity and her current life situation. The judge noted that, although she did not have a problem with drug use or psychological problems and she had "the potential to parent at some time," he "could not overlook" the fact that David was strongly attached to his foster parents and that defendant still needed much more time to become a competent parent.

The judge concluded that DYFS had met its burden "by clear and convincing evidence[,]" and he ordered the termination of defendant's parental rights. This appeal followed.

On appeal, defendant argues that DYFS failed to prove the elements necessary to sustain its burden in a guardianship proceeding, specifically that it failed to prove that she harmed David, was unable or unwilling to eliminate the harm, and that terminating her rights would do more good than harm to David. Defendant does not appeal the finding that DYFS offered adequate services. We are satisfied that DYFS has met its burden as to all four statutory prongs, and we affirm.

The Supreme Court has noted that "'[b]ecause of the family courts' special . . . expertise in family matters, appellate courts should accord deference to family court factfinding.'" N.J. Div. of Youth & Family Servs. v. G.M. (In re K.M.), 198 N.J. 382, 397 (2009) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)). See also N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (noting that we should give deference to the factual findings of the trial court because it had the opportunity to "make first-hand credibility judgments" and it also had a "'feel of the case' that can never be realized by a review of the cold record") (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007)); N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 433-434 (App. Div. 2009) (same). We "will not disturb the family court's decision to terminate parental rights when there is substantial credible evidence in the record to support the court's findings." E.P., supra, 196 N.J. at 104 (citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). "Only when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark' should an appellate court intervene and make its own findings to ensure that there is not a denial of justice." Ibid. (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007)).

Defendant argues that the Division did not prove the first, second and fourth prong of N.J.S.A. 30:4C-15.1(a), by clear and convincing evidence, but rather defendant "was expected to be a perfect parent, not just a fit parent."

We have noted that "a parent's right to raise a child and maintain a relationship with that child is constitutionally protected under the federal and state Constitutions." A.R., supra, 405 N.J. Super. at 434 (internal quotations and citations omitted). See also K.H.O., supra, 161 N.J. at 346. "The constitutional protection surrounding family rights is tempered by the State's parens patriae responsibility to protect the welfare of children." K.H.O., supra, 161 N.J. at 347 (citing In re Guardianship of J.C., 129 N.J. 1, 10 (1992)). In order to balance parental rights and the State's interest in protecting the welfare of children, courts are to apply the "best interests of the child standard." Ibid. Under N.J.S.A. 30:4C-15.1(a), parental rights may be terminated when the following standards are met:

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

These four prongs are not "discrete, but rather relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." A.R., supra, 405 N.J. Super. at 434 (quoting E.P., supra, 196 N.J. at 103 (internal quotations omitted)). The burden in termination of parental rights cases is upon DYFS to prove by clear and convincing evidence that the parental rights should be terminated. In re Guardianship of J.N.H., 172 N.J. 440, 464 (2002); E.P., supra, 196 N.J. at 104; A.R., supra, 405 N.J. Super. at 434; N.J. Div. of Youth & Family Servs. v. M.W., 398 N.J. Super. 266, 276 (App. Div.), certif. denied, 196 N.J. 347 (2008).

Defendant argues that the Division did not prove that David was harmed because: 1) "[a]lthough the home would likely not meet middle-class standards or expectations, there is no report that the home was dirty or rodent infested or unsafe;" 2) the Division "should have been held accountable for failing its duty to make every effort to prevent removal by" providing defendant with adequate furnishing; and 3) at the time David was removed, he was not asthmatic and Grant had not shown to be violent.

Prong one of the best interests test requires a finding that "[t]he child's safety, health or development has been or will continue to be endangered by the parental relationship." N.J.S.A. 30:4C-15.1(a)(1). "Harm, in this context, involves the endangerment of the child's health and development resulting from the parental relationship." K.H.O., supra, 161 N.J. at 348. "'[T]he harm shown . . . must be one that threatens the child's health and will likely have continuing deleterious effects on the child.'" M.M., supra, 189 N.J. at 281 (quoting K.H.O., supra, 161 N.J. at 352). Courts need not wait until the child is injured before acting on behalf of the child. A.W., supra, 103 N.J. at 616.

Defendant's arguments are without merit. Defendant harmed David by not providing him with a suitable, livable home. Defendant, a minor at the time, was staying in an unfurnished home, sleeping on a mattress on the floor with David and her adult boyfriend eight years her senior, with no refrigerator, crib or stove, keeping formula in a cooler. The Division caseworkers reported smelling sewer gas and cat urine throughout the house. Defendant failed to provide a suitable home for an infant child. In addition, as a minor still in the care of her mother, defendant was required to live at her mother's apartment, which had been provided by the Division with suitable furnishing, including a crib. Instead, defendant chose to live with Grant and continued to pursue inappropriate interactions with him. The judge correctly concluded that DYFS had established the first prong.

Defendant argues that the Division did not prove that defendant would not be a fit parent because: 1) the judge ignored Dr. Figurelli's opinion that David would suffer harm if separated from defendant; 2) the judge "did not articulate" "how the services [defendant] did not fully comply with actually affected her ability to parent[,]" or "how lack of a GED or a high school diploma made her an unfit parent"; 3) and "thousands of parents" in New Jersey do not have a high school diploma, have temporary housing from losing their homes due to foreclosure and are out of work, which does not make them unfit to care for their child.

Prong two of the best interests test requires a finding that

[t]he 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[.]

[N.J.S.A. 30:4C-15.1(a)(2).]

"'[T]he focus of the inquiry is not only whether the parent is fit, but also whether he or she can become fit within time to assume the parental role necessary to meet the child's needs.'" A.R., supra, 405 N.J. Super. at 434-35 (quoting N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 87 (App. Div. 2006), certif. denied, 190 N.J. 257 (2007)). We have held that a mother's inability or unwillingness to "comply with the offers of assistance and services by the Division together with her total lack of responsibility to provide for her children and inability to recognize the harm she caused, was testament to the fact that she would continue to endanger the health and safety of her children if permitted to do so" and satisfied the second prong of the statutory test. M.W., supra, 398 N.J. Super. at 286. We have also found that "'[p]roof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child of, or the responsibility of, the parent or guardian. . . .'" N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 609 (App. Div.), (quoting N.J.S.A. 9:6-8.46), certif. denied, 192 N.J. 68 (2007).

Defendant's arguments are without merit. Unlike the "thousands of parents in New Jersey" she references, defendant is not a parent who is an unfortunate victim of difficult financial times. Here, defendant was provided a myriad of services and opportunities to educate herself, find permanent employment, find a suitable home, and improve her parenting skills. In the three years since the Division began offering services, defendant had still not obtained her G.E.D., stable housing, consistent employment or fully complied with the various services provided by the Division. Critically important, the record demonstrates that she has limited parenting skills. The record describes a mother who failed to administer medication as to one child or sustenance to avoid malnutrition to another. These examples support the judge's conclusion that defendant does not have adequate parenting skills needed to care for one asthmatic child, let alone one asthmatic and three young children.

In addition, the judge did not "ignore" Dr. Figurelli's opinion that David would suffer harm from separation from defendant. Rather, Judge Rothschild considered that
Dr. Figurelli had not conducted a bonding evaluation with the foster parents while Dr. Singer conducted such an evaluation, and concluded that such separation would be harmful to David. In addition, both experts agreed that David's bond to defendant was not very strong. Most important, David has been with the same foster parents since 2006 and, according to Dr. Singer, views them as his psychological parents.

Finally, defendant argues that "[t]he reasons given by [Judge Rothschild] for terminating [her] parental rights do not rise to any level near 'serious and lasting' harm."

The fourth prong "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 question ultimately is not whether a biological mother or father is a worthy parent, but whether a child's interest will best be served by completely terminating the child's relationship with that parent." E.P., supra, 196 N.J. at 108. The Court has noted that it "is widely understood that a 'child deeply needs association with a nurturing adult' and that 'permanence in itself is an important part of that nurture.'" Ibid. (quoting A.W., supra, 103 N.J. at 610).

"The strong public policy of New Jersey favors permanency of child placement." N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 116 (App. Div.), certif. denied, 180 N.J. 456 (2004); See, e.g., N.J.S.A. 30:4C-11.1. We have previously found that

[c]hildren must not languish indefinitely in foster care while a birth parent attempts to correct the conditions that resulted in an out-of-home placement. In response to the reforms resulting from the Federal Adoption and Safe Families Act of 1997, the emphasis has shifted from protracted efforts for reunification with a birth parent to an expeditious, permanent placement to promote the child's well-being. A child cannot be held prisoner of the rights of others, even those of his or her parents. Children have their own rights, including the right to a permanent, safe and stable placement.

 
[N.J. Div. of Youth & Family Servs. v. S.F., 392 N.J. Super. 201, 209-210 (App. Div.) (internal quotations, editing marks and footnote omitted) (quoting C.S., supra, 367 N.J. Super. at 111), certif. denied, 192 N.J. 293 (2007).]

Defendant's arguments are without merit. Separation from defendant would do more good for David than harm. Defendant is neither ready nor able to provide David with stable housing or financial support, and it is unclear when or if she will ever be ready. Even defendant's expert admits that reunification would not be appropriate at this time but suggests that the court should refrain from terminating the parent's rights for "however long it takes because it remains in the best interest of the child for the Court to do so." This ignores strong public policy of New Jersey that we alluded to earlier a policy that favors permanency of child placement. C.S., supra, 367 N.J. Super. at 116. David has been with the same foster parents since his removal, has a strong bond with them and they wish to adopt him. David's need for permanency support a finding that terminating defendant's rights would do more good than harm.

We agree with Judge Rothschild that DYFS met its burden here by clear and convincing evidence.

Affirmed.

 

The child's last name or the identity of her father are not on the record.

Grant was born on August 20, 1980.

David's biological father, D.F., was joined as a defendant but failed to participate in any court proceedings. A default was entered against him on August 16, 2007.

In re Guardianship of K.H.O., 161 N.J. 337 (1999).

N.J. Div. of Youth and Family Servs. v. A.W., 103 N.J. 591 (1986).

(continued)

(continued)

33

A-5215-07T4

RECORD IMPOUNDED

June 25, 2009