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

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5234-07T45234-07T4

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

S.A.R.,

Defendant-Appellant.

___________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF Ju.R., N.R., M.R., AND Jo.R.,

Minors-Respondents.

___________________________________

 

Submitted March 30, 2009 - Decided

Before Judges R. B. Coleman, Sabatino and Simonelli.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-118-07.

Yvonne Smith Segars, Public Defender, attorney for appellant, S.A.R. (Amy M. Williams, Designated Counsel, of counsel and on the brief).

Anne Milgram, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Lisa J. Godfrey, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minors-respondents, (Noel C. Devlin, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Plaintiff Division of Youth and Family Services (Division) brought this action, seeking the termination of the parental rights of defendant S.A.R. to her children, Ju.R. (Jesse), born December 2, 1999, N.R. (Nick), born on October 16, 2000, M.R. (Mara), born June 25, 2004, and Jo.R. (John), born hours later on June 26, 2004. The children's biological father, L.R., is deceased. Defendant also has a fifth child, who is not in her custody and is not involved in this case. Following a non-jury trial, the Family Part judge rendered a written opinion and entered judgment in favor of the Division.

On appeal, defendant contends that the judge erred in finding that the Division proved all four prongs of N.J.S.A. 30:4C-15.1 by clear and convincing evidence and failed to make adequate findings of fact contrary to Rule 1:7-4(a). Defendant also contends that the law guardian had a conflict of interest in representing all four children. We reject these contentions and affirm.

We summarize the facts from the record. On November 8, 1996, defendant was convicted of possession of a controlled dangerous substance and sentenced to two years of probation. On July 24, 1998, defendant was convicted of violating probation and received a two-year extension of probation. On or about June 4, 1999, defendant was again convicted of violating probation and received a one-year extension of probation.

The Division first became involved with defendant in December 1999, after receiving a referral that she was abusing drugs and that she and L.R. were neglecting their newborn child, Jesse. At that time, defendant was still on probation and was engaged in drug treatment. Although finding no neglect, the Division monitored the family and offered services.

On or about August 29, 2000, defendant was again convicted of violating probation, this time for failing to remain drug-free, failing to cooperate in substance abuse treatment and failing to complete Drug Court and aftercare. She was sentenced to a three-year term of imprisonment. Jesse was placed in L.R.'s care, as was Nick, who was born on October 16, 2000. One month later, L.R. was arrested for burglary and theft. Having no one to care for the children, L.R. signed an informed consent to place the children into foster care. The Division returned the children to L.R. in December 2000.

Defendant was released from prison sometime in early 2001, and engaged in drug treatment as part of her parole conditions. However, she again violated parole and was incarcerated. She was released from prison in July 2002, and completed outpatient drug treatment as part of her parole conditions. She also obtained employment.

The Division continued monitoring the family in 2002 and 2003, and provided services, including assistance in purchasing a youth bed for Jesse, bus passes for defendant to attend drug treatment and a referral for rental assistance. The family was stable and the home was neat and clean.

The incident forming the basis of the guardianship action occurred on December 18, 2003. The Division received a referral that a three-year-old boy was found alone in a stroller at a transportation center in Camden. L.R. contacted the police after concluding that Jesse was the boy shown on a television news broadcast about the incident. L.R. reported that defendant had taken Jesse to the hospital at approximately 9:00 p.m. the previous night because the child had a high fever. L.R. assumed that defendant had returned with the child later that night and had left early the next morning for a pre-natal appointment. However, L.R. discovered that the hospital had discharged Jesse at 11:45 p.m. on December 18. L.R. had not heard from defendant and believed that she had relapsed.

Defendant was arrested as a result of this incident. She admitted that she took Jesse with her to Camden, where she engaged in prostitution to purchase crack cocaine, which she smoked. Defendant was charged with and convicted of endangering the welfare of a child. She received a seven-year term of imprisonment. The Division obtained custody of Jesse, placed him with L.R. and continued supervising the family.

Defendant was released from prison on June 24, 2004. She entered the Intensive Supervision Program (ISP), which required her to attend drug treatment programs and to "check-in three times a day, . . . report once per week, maintain a job and participate in any additional requirements [ISP] may present." The twins were born the next day and placed with L.R. The Division permitted defendant to return to the home because L.R. would be the children's primary caretaker, and he agreed not to leave the children alone with defendant.

On November 23, 2004, defendant and the twins were placed in the Seabrook House inpatient drug treatment program (Seabrook), where defendant received court-ordered drug treatment, counseling, and parenting skills classes. Seabrook provided updates on defendant's progress to the Division. Defendant was discharged from Seabrook on July 28, 2005, referred to an outpatient drug treatment program, and directed to attend Narcotics Anonymous (NA). She was also provided a counselor, whom she visited monthly.

Defendant enrolled in an outpatient drug treatment program through Kennedy Hospital. She attended that program regularly, but missed several days due to L.R.'s deteriorating health. The Division continued providing in-home services for the children. In the meantime, Nick began exhibiting behavioral problems. For example, he killed and dismembered a pet iguana, set L.R.'s bed on fire, struck L.R. with a shovel, stabbed L.R. on the eye with a pencil, smashed L.R.'s toe with a hammer and caused Jesse to get stitches.

Nick had a psychological evaluation on April 1, 2005. He was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD), Adjustment Disorder, Bipolar Disorder and possibly Post-Traumatic Stress Disorder. Despite treatment, Nick's behavioral problems continued. For example, he killed the family fish by pouring detergent into a make-shift pond and took a knife, heated it on the stove and burned Jesse on his arm. Jesse retaliated by spraying Nick with a fire extinguisher, causing chemical burns on Nick's face.

Jesse also began exhibiting behavioral problems. He treated Nick cruelly and had kicked defendant in the mouth. A September 6, 2005 psychological evaluation revealed that his "behaviors are a result of [defendant's] abuse and neglect, adjustment issues from [defendant's] return to the home and possible separation anxiety and problems with attachment."

Defendant relapsed fifteen days before completing her ISP requirements. As a result, she was incarcerated in November 2005 for violating parole. L.R. agreed not to allow defendant back into the home. He, the Division and ISP implemented a safety action plan for the children. Defendant was released from prison and placed at Epiphany House on January 31, 2006, where she received drug treatment, individual and group counseling, and classes in budgeting, job readiness, computer skills and parenting.

Subsequently, L.R.'s deteriorating health prevented him from properly caring for the children. As a result, on February 10, 2006, the Division obtained custody of all four children. It placed Jesse and the twins in foster homes, and eventually placed Nick in the Bridgeton Hospital Crisis Center for long-term care and treatment. Nick was discharged from Bridgeton on February 27, 2006, and placed at the Cedarbrook Psychiatric Group Home for long-term intensive therapy and care.

On February 22, 2006, the Division placed the twins with defendant at Epiphany House. Unfortunately, this placement was short-lived. In July 2006, Epiphany House advised defendant that "she was being discharged from the program due to her continued struggle with the responsibility of parenting and recovery treatment." Although defendant was initially permitted to stay until a halfway house became available, due to her "inappropriate interaction with another resident[,]" she was asked to leave "as soon as possible" "in order to keep the rest of the community safe." Epiphany House reported that:

At times [defendant] made progress and appeared to be achieving her treatment goals. However, she was unable to sustain the significant gains she made, especially without constant staff intervention. [Defendant] was placed on three behavioral contracts due to her pattern of isolation and the identified verbal abuse of her children. Although at times [defendant] appeared to be in the preparation phase of the change process, at this time she is assessed as being in contemplation. Although she fully recognizes that she has a drug and alcohol problem, she is not willing or able to implement the coping skills taught to change her behavior.

Epiphany House also reported that "[i]solation, relationships, being overwhelmed, and guilt and shame present as significant relapse factors for [defendant]" and that:

[defendant] struggled with her parenting skills and the responsibility of caring for two children and obtaining addiction treatment. At times she became verbally and physically abusive [to the children] and a complaint was made to the Division . . . due to concerns reported by other residents.

Epiphany House concluded that defendant was "at high risk for relapse if she does not integrate the coping skills she has learned into daily living." It recommended that defendant enter a halfway house without the children.

On August 3, 2006, the Division obtained custody of the twins. L.R. died on August 17, 2006. Thereafter, defendant was placed at the Apostle's House Emergency Shelter (Apostle's House). As part of her admission, defendant signed contracts agreeing to cooperate with Apostle House's efforts to help her obtain permanent housing and employment and to abide by its rules. While there, defendant received parenting courses. She was also referred to the Exodus Program at St. Michael's Medical Center, Behavioral Health Services (St. Michael's), which she entered on August 14, 2006. At St. Michael's, defendant received group and individual counseling, anger management courses, and education services. She also obtained employment. The court ordered defendant to attend drug treatment and counseling and to submit to urine screens. The Division facilitated visitation with the children.

Defendant completed the Exodus Program on January 3, 2007. St. Michael's reported that she was now "eligible for the [a]ftercare program if she desires to attend the Division of Vocational and Rehabilitation [(DVR)] training." St. Michael's explained that "[a]ftercare includes group therapy, individual counseling, behavioral groups and preparation of . . . (DVR) Job training/school/college."

On January 2, 2007, Apostle's House notified the Division that defendant had violated the rules and was asked to leave. Defendant then began living with her boyfriend in West Orange and was no longer employed. The Division instructed defendant to return to the Exodus Program or another aftercare program. Defendant did not comply.

At a permanency hearing on February 5, 2007, the court determined that reunification was "inappropriate and unacceptable" and that it was "not safe to return the child[ren] home in the foreseeable future." The court found that the Division had provided reasonable efforts, including "substance abuse treatment program, Epiphany House & St. Michaels, parenting skills and individual counseling." The court ordered the Division to formulate a new permanent plan.

Pursuant to an interstate evaluation, on February 8, 2007, the Division placed all of the children in New York with their paternal aunt and her husband. These relatives advised the Division that they "will give [defendant] a chance to get herself together" but would adopt the children if that did not occur. The Division agreed to a supervised visitation plan established by defendant and the paternal aunt.

Sometime in March 2007, defendant moved out of her boyfriend's home and began living at Project Solution, a homeless shelter in Newark, where she lived at the time of trial. On March 5, 2007, the court approved the Division's plan to terminate parental rights followed by adoption, finding that although defendant completed drug treatment, the children had been in placement more than twelve months and defendant did not have appropriate housing. The court also found that the Division provided reasonable efforts to finalize a permanent plan, including reunification, substance abuse treatment at Epiphany House and St. Michael's, parenting skills and individual counseling.

Unfortunately, the paternal relatives began experiencing problems caring for all of the children. In May 2007, Nick was suspended from school for five days and hospitalized for behavioral problems. Nick was eventually admitted to the Stony Lodge Hospital for long-term care. Jesse was displaying sexually inappropriate behavior with the paternal relatives' eldest daughter and was stealing from them. Jesse was subsequently diagnosed with ADHD.

The paternal relatives declined to adopt the children or to enter Kinship Legal Guardianship (KLG). Before deciding whether to approve a plan to terminate defendant's parental rights, the trial court ordered psychological and bonding evaluations of defendant and the children.

On January 15, 2008, defendant's expert, Kenneth Goldberg, Ph.D., conducted a psychological evaluation to determine if reunification should occur. Defendant admitted to the doctor that she had a longstanding drug problem, that she supported her drug habit through prostitution, and that she had no stable housing. The doctor acknowledged in his report that defendant "has consistently endangered the welfare of her children over the years[]" and that she "has been afforded good opportunities to rectify her situation and have her children back [but a]cting out fueled by drug cravings (and early childhood trauma) undermined these plans." The doctor noted that recently, defendant "appears to have made her first true strides at overcoming her addiction" and that she "has potential to take care of her children [but p]otential does not mean she could handle her children today." The doctor concluded, in relevant part, that:

[I]t's a daunting task for [defendant] to take different steps needed to establish herself with her children. She is wise to approach this in a stepwise fashion, which may not coincide with the [Adoption and Safe Family Act] requirements. Rushing ahead to beat the clock, would not serve the children's best interests. Consequently, I am not taking a position on whether the children should be returned to their mother.

[(Italics original).]

At trial, Dr. Goldberg opined that defendant was not ready to assume the role of a caretaker or parent and that "[i]n theory there does not exist a way to proceed that could reunite the children with [defendant]."

Dr. Goldberg also acknowledged the Division's efforts to reunify the family. He said in his report that "[the Division] has made considerable efforts at trying to keep the children with their family[]" and that "interventions to date appear to reflect a serious attempt by [the Division] to keep this family together." He blamed defendant for "things [falling] apart in the past."

Dr. Golberg also conducted a bonding evaluation between defendant and all four children. He concluded in his report that although "[t]he children exuded a general sense of connection to [defendant,]" they "most likely had an insecure attachment" with her. The doctor did not opine that termination would do the children more harm than good.

On January 23, 2008, the Division's expert, Linda R. Jeffrey, Ph.D., conducted a psychological evaluation to assess defendant's mental health status and parenting capacity. Dr. Jeffrey diagnosed defendant with substance dependence disorder NOS; personality disorder NOS with narcissistic, antisocial, histrionic and paranoid features; and problems with primary support group, educational problems, occupational problems, housing problems, economic problems, and problems related to the legal system. Dr. Jeffrey opined in her report that:

[defendant] has significant adjustment, personality, emotional and substance dependence problems that seriously decrease her parenting capacity. She is not prepared to provide reliable, consistent, safe care for her children. She is likely to lack personal insight and empathy, to display interpersonal alienation and difficulties with social relations, to display ineffective conflict resolution and management of emotions, to underestimate her problems with alcohol, to display poor judgment and impulsivity. She is unlikely to be able to establish a safe parenting context for stability, protection, and guidance of her children. She is unlikely to display effective limit setting and role modeling of coping techniques. She is unlike[ly] to be able to sustain sufficient parental involvement so that her children's physical and emotional needs are met. She is not prepared to enforce rules and demands consistently with appropriate vigilance and monitoring. She is not prepared to differentiate her children's needs from those of her own. She is not prepared to teach her children to tolerate anxiety and frustration. She is not prepared to promote interpersonal skills in her children.

Dr. Jeffrey did not recommend reunification, concluding that "[defendant's] mental health and substance dependence problems seriously decrease her parenting capacity. She is not prepared to provide a minimal level of safe parenting to her children. They are likely to be at risk of harm in her care."

At trial, Dr. Jeffrey opined that defendant was at risk for relapse and that there would be greater risk of harm to Jesse and Nick, who require special care. The doctor explained that special needs children, such as Jesse and Nick, are "more difficult to manage and more complex in terms of their needs and calls upon the caretakers to exert more skill, patience and emotional maturity." The doctor noted that because defendant was already lacking in those areas, a special needs child would create "significant problems."

Dr. Jeffrey also conducted a bonding evaluation between defendant, Jesse and the twins. The doctor opined in her report that although there was an affectionate tie between defendant and the children, the children had an "insecure attachment" to her. The doctor emphasized that defendant

does not, . . . function as a secure base or psychological parent with the children, and does not demonstrate elementary parenting skills. [The children] did not display respect for her as an authority figure. This is in spite of the fact that [defendant] reported spending extended periods of time with the children in their relative care placement.

At trial, Dr. Jeffrey explained that although severance of an insecure attachment can create harm, it does not create the serious and enduring harm children suffer from severance of a secure attachment. The doctor also explained that an insecure attachment "is in and of itself harmful." She concluded that termination should occur.

A permanency hearing was held on February 27, 2008. The Division presented a plan to terminate parental rights and to place the children in select home adoption because defendant presented no alternatives. The Division also indicated that it would make all possible efforts to keep the children together but that this may not be possible due to Nick's special needs.

Defendant testified at the permanency hearing that she qualified for temporary housing assistance. However, she said that she was taking the welfare agency into court

because [the welfare agency] gave me temporary rental assistance, but it seems like every time I got to hand in my papers for an apartment they take too long to put it through to Trenton to get it approved and somebody winds up putting cash up for that apartment, so, I lose the apartment.

She also stated that she was receiving assistance from the county Legal Aid Services to resolve her housing problem.

Based on the testimony presented at the permanency hearing and on the psychological and bonding evaluations, the trial court accepted the Division's plan to terminate parental rights followed by select home adoption. On March 17, 2008, Jesse and the twins were placed with foster parents "committed to adopting them." Nick was placed in a psychiatric hospital. Upon discharge, the Division would place Nick in a therapeutic foster home to stabilize him, and then place him in select foster home adoption.

Defendant testified at trial that she was living at the homeless shelter since March 2007, and that she worked part-time at the shelter earning about $300 a month. Defendant planned to have the children live with her at the shelter until she resolved her problems with welfare for temporary rental assistance. When asked if she was seeking Nick's return to her, she replied, "[i]t doesn't make a difference who gets returned to me. It don't matter. They can give me [Nick]. They can give me [Jesse]. They can give me the twins."

In a written opinion, the trial judge reviewed the extensive factual history and the expert evidence. Relying primarily on the expert evidence, the judge concluded as follows:

It's obvious that the safety of the children, their health or development, has been or will continue to be endangered by the relationship between [defendant] and the children. I have explored those facts in great detail. The experts have agreed that it is the safety, health and development of the child that is the major problem. Obviously, [defendant] is unable to eliminate the harm facing the child[ren] under these present circumstances. The risk of a relapse to drugs is there, and, both experts indicate to me that, at present, she does not have the ability to properly parent these children. The delay of permanent placement will do more harm than imaginable. These children have had enough difficulty during the past few years. The Division has made huge efforts to provide services to help [defendant] correct the circumstances which have been leading to the placement of the children outside the home. Certainly, I have considered alternatives to termination of parental rights, but, I'm concluding that these children will be in a much better situation with foster parents, family other than [defendant], etc. Termination of the parental rights of [defendant] will not do more harm than good. Obviously, I believe the termination of parental rights is the best result for these children. Enough time has gone by, they need permanency and stability.

The judge rejected defendant's claim that the Division failed to help her, finding that "[m]ore than reasonable help has been offered and given." The judge also found that defendant "has no serious plan other than to live with the children in a shelter." He concluded that defendant's "parental rights be terminated in order to give these children a reasonable chance at life."

We must afford great deference to the Family Part's findings of fact and conclusions of law based on those findings. N.J. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007); NJ.. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007); N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (noting that we shall 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 M.M., supra, 189 N.J. at 293). Thus, [w]e "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." Ibid. 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 [we] intervene and make [our] own findings to ensure that there is not a denial of justice." Ibid. (quoting G.L., supra, 191 N.J. at 605). With these standards in mind, we proceed with our analysis.

"Parents have a fundamental constitutional right to raise their children." N.J. Div. of Youth and Family Servs. v. J.Y., 352 N.J. Super. 245, 261 (App. Div. 2002). However, this right is not absolute. In re Adoption of Children by G.P.B. Jr., 161 N.J. 396, 404 (1999); In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). Rather, "[t]he 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 (italics original) (citing In re Guardianship of J.C., 129 N.J. 1, 10 (1992)). See also 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); N.J.S.A. 9:6-8.8a. 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. See also N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 506 (2004); N.J.S.A. 30:4C-15.1(a). The best interests standard requires the State to establish each of the following standards by clear and convincing evidence before parental rights may be severed:

(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.

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

These "four criteria . . . are not discrete and separate; they 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. See also E.P., supra, 196 N.J. at 103.

Termination of parental rights is a severe state action in that it permanently severs "the relationship between children and their biological parents." J.C., supra, 129 N.J. at 10. Thus, when biological parents oppose the termination of parental rights, "the court's function will ordinarily be to decide whether the parents can raise their children without causing them further harm." Ibid. The considerations involved in this inquiry are "'extremely fact sensitive' and require[] articularized evidence that address the specific circumstances in the given case." K.H.O., supra, 161 N.J. at 348.

Notably, the best interests standard is applied in light of "New Jersey's strong public policy in favor of permanency." Id. at 357. Accordingly, "[i]n all . . . guardianship and adoption cases, the child's need for permanency and stability emerges as a central factor." Ibid. In other words, "[t]he Division must demonstrate that the parent is 'unable to eliminate the harm facing the child or is unable . . . to provide a safe and stable home for the child,' . . . before any delay in permanent placement becomes a harm in and of itself." N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 434 (App. Div. 2001) (citing N.J.S.A. 30:4C-15.1(a)(2); J.C., supra, 129 N.J. at 10).

The first prong of the best interests test requires the court to consider the harm that arises from the child-parent relationship. K.H.O., supra, 161 N.J. at 348. "The harm shown under the first prong must be one that threatens the child's health and will likely have continuing deleterious effects on the child." Id. at 352. It may constitute one egregious harm or "the effect of harms" over time. Id. at 348.

Defendant concedes that she harmed Jesse; however, she contends that there is no clear and convincing evidence of harm to the other children. This contention lacks merit. Defendant's expert conceded that she engaged in drug abuse and prostitution during the brief period she lived with the children and that she "consistently endangered the welfare of her children over the years." Also, there is no doubt that defendant's long-standing drug addiction, engagement in prostitution, failed rehabilitations, repeated incarcerations, unemployment, lack of appropriate housing and failure to care or provide for her children endangered their safety, health and development. We are satisfied that the first prong has been met by clear and convincing evidence.

The second prong of the best interests test "relates to parental unfitness," which "may be established in several ways," including: (1) "the parent is 'unwilling or unable to eliminate the harm' that has endangered the child's health and development in the first place" or (2) "the parent has failed to provide 'a safe and stable home for the child' and a 'delay in permanent placement' will further harm the child." K.H.O., supra, 161 N.J. at 352. This prong "may be met by indications of parental dereliction and irresponsibility, such as the parent's . . . inability to provide a stable and protective home[.]" Id. at 353. Accordingly, "[a] delay caused by [the parent]'s failure to assume a responsible parental role in securing permanent placement" for the children is a harm in itself. Id. at 354. "[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." 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) (citing J.C., supra, 129 N.J. at 10).

Defendant contends that she has eliminated the harm facing the children because since November 2005, she has remained drug-free and has not been incarcerated. Defendant also contends that the delay in permanent placement will not add to the harm because the children have no adoption prospects. She posits that all she needs to do to reunify with her children is "simply . . . obtain housing that was sufficient to accommodate the children . . . that she could afford to maintain[,]" which can be done "in a six month to one year period." We disagree.

Although we commend defendant for remaining drug free, she is unable to eliminate the harm facing her children. She has no housing, stable employment or realistic plan for the children, and she is unable to care for herself, let alone four children, two of whom have serious psychological problems and special needs. Compounding the harm are defendant's risk of relapse and significant psychological problems. There can be no doubt that a delay in permanent placement will add to that harm. We are satisfied that the second prong has been met by clear and convincing evidence.

The third prong of the best interests test "contemplates efforts that focus on reunification of the parent with the child and assistance to the parent to correct and overcome those circumstances that necessitated the placement of the child." K.H.O., supra, 161 N.J. at 354. Such efforts must include, "'so far as practicable . . . welfare services to support and maintain the integrity of the family as a living unit.'" N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 608 (1986) (citation omitted). As part of this inquiry, "the court must consider the alternatives to termination of parental rights and whether the Division acted reasonably." A.G., supra, 344 N.J. Super. at 434-35 (citing N.J.S.A. 30:4C-15.1a(3)).

The Division is required to make reasonable efforts to assist the parent. There must be reasonable "attempts by an agency authorized by the [D]ivision to assist the parents in remedying the circumstances and conditions that led to the placement of the child and in reinforcing the family structure." N.J.S.A. 30:4C-15.1(c). Such "reasonable attempts" include:

(1) consultation and cooperation with the parent in developing a plan for appropriate services;

(2) providing services that have been agreed upon, to the family, in order to further the goal of family reunification;

(3) informing the parent at appropriate intervals of the child's progress, development and health; and

(4) facilitating appropriate visitation.

[Ibid.]

Defendant contends that the Division did not offer her any services and "cannot hang its hat" on services provided to her through ISP and the various shelters. She also points to a six-month gap in services where the Division allegedly failed to contact her. Defendant also contends that the judge failed to consider alternatives to termination. These contentions lack merit.

The Division provided visitation and psychological and bonding evaluations. It also placed the twins with defendant at Seabrook and Epiphany House. Although the Division did not directly provide other services, it monitored the numerous uninterrupted and comprehensive services defendant received through ISP, all of which were aimed at helping her reunify with her children. She also received housing assistance through welfare, and assistance from Legal Aid Services to resolve her housing problems. Defendant never sought the Division's assistance for any services other than those she was already receiving. She cites no authority requiring the Division to duplicate the numerous services she received.

Further, during the Division's involvement with defendant, it kept in contact with her and the various agencies providing services to her, except for a six month period in 2007. However, that brief gap caused defendant no prejudice. She continued receiving services, including visitation with the children.

Finally, alternatives to termination were considered. The Division placed the children with paternal relatives who, unfortunately, reneged on their commitment to adopt. Defendant presented no other alternatives except reunification, which was not possible. We are satisfied that the third prong has been met by clear and convincing evidence.

The fourth prong of the best interests test seeks to determine whether "[t]ermination of parental rights will not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4). This prong "'serves as a fail-safe against termination even where the remaining standards have been met.'" E.P., supra, 196 N.J. at 108 (quoting G.L., supra, 191 N.J. at 609). "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." Ibid.

"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

Children 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, 209-10 (App. Div.) (internal quotations and editing marks omitted) (citing C.S., supra, 367 N.J. Super. at 111 (App. Div.), certif. denied, 192 N.J. 293 (2007).]

"The question to be addressed . . . is whether . . . the child will suffer greater harm from the termination of ties with [his or] her natural parents than from the permanent disruption of [his or] her relationship with [his or] her foster parents." K.H.O., supra, 161 N.J. at 355. Because of the inherent risk to children stemming from termination of parental rights, "the fourth prong of the best interests standard cannot require a showing that no harm will befall the child as a result of the severing of biological ties." Ibid. Rather, the court's inquiry is one of comparative harm, for which the court must consider expert evaluations of the strength of the child's relationship to the biological parents and the foster parents. Ibid. (citing J.C., supra, 129 N.J. at 25). Thus, to satisfy this prong, the Division should, as it did here, "offer testimony of a 'well qualified expert who has had full opportunity to make a comprehensive, objective and informed evaluation' of the child's relationship with both the natural parents and the foster parents." M.M., supra, 189 N.J. at 281 (quoting J.C., supra, 129 N.J. at 19).

Here, both experts opined that the children have no more than an "insecure attachment" to defendant and that reunification cannot occur. Defendant is unable to parent the children. S.F., supra, 392 N.J. Super. at 209. The children cannot "languish indefinitely in foster care." Ibid. They need permanency and stability, which can only be accomplished through termination. The fourth prong has been satisfied by clear and convincing evidence.

We now address defendant's contention that the trial violated Rule 1:7-4 by issuing a "paltry five page written opinion" that does not contain "a single finding of fact [] but a lone paragraph of legal conclusions to all four prongs of the best interest standard without any correlation between those legal conclusions and the facts from which those conclusions were made." Defendant also points to some factual inaccuracies stated by the judge and his failure to refer to statutory or case law.

Rule 1:7-4 states, in pertinent part, that:

The court shall, by an opinion or memorandum decision, either written or oral, find the facts and state its conclusions of law thereon in all actions tried without a jury, on every motion decided by a written order that is appealable as of right, and also as required by [Rule] 3:29. The court shall thereupon enter or direct the entry of the appropriate judgment.

Rule 1:7-4 requires trial judges to make factual findings that are sufficiently clear and complete to permit review. Failure to do so "constitutes a disservice to the litigants, the attorneys and the appellate court." Kenwood Assocs. v. Bd. of Adj. Englewood, 141 N.J. Super. 1, 4 (App. Div. 1976). See also Salch v. Salch, 240 N.J. Super. 441, 443 (App. Div. 1990). Thus, "[n]aked conclusions do not satisfy the purpose of [Rule] 1:7-4. Rather, the trial court must state clearly its factual findings and correlate them with the relevant legal conclusions." Curtis v. Finneran, 83 N.J. 563, 570 (1980). This is particularly true in the context of termination of parental rights where "severing of that relationship is among the most 'severe and . . . irreversible' forms of state action." E.P., supra, 196 N.J. at 102 (quoting Santosky v. Kramer, 455 U.S. 745, 759, 102 S. Ct. 1388, 1398, 71 L. Ed. 2d 599, 610 (1992)).

Although the judge could have conceivably written a more comprehensive opinion, we are satisfied from our careful review, that his conclusions are amply supported by sufficient credible evidence, and that his decision complies with Rule 1:7-4. Further, the factual inaccuracies cited by defendant in her merits brief are harmless errors. There is no dispute that defendant engaged in drug treatment in the late 1990's, she was involved with ISP, and that she was incarcerated for endangering the welfare of a child. The dispute concerns whether defendant is currently fit to parent or will become fit to parent in a reasonably short period of time. The answer to this question is "no."

Defendant's final contention, not raised below, is that the law guardian had a conflict of interest due to Nick's and Jesse's divergent needs. We will "decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available 'unless the questions so raised on appeal go to the jurisdiction of the trial court or concerns matters of great public interest.'" Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (quoting Reynolds Offset Co., Inc. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959), certif. denied, 31 N.J. 554 (1960)). Also, we may not consider claims raised outside the record. Ibid.; R. 2:5-4. Nevertheless, we address defendant's contention.

Our Supreme Court has noted that "children involved in parental termination cases are statutorily entitled to an attorney to represent their interests [i.e. a law guardian]." E.P., supra, 196 N.J. at 113 (citing N.J.S.A. 30:4C-15.4(b)). A law guardian "actively represents and speaks for the child, . . . has to advocate for the best interests of the child . . . and represents neither adversary in this case." N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 433 (App. Div. 2009. If there is a factually based conflict of interest demonstrated between or among the law guardian's clients, the court must appoint separate counsel for each child. See N.J. Div. of Youth & Family Servs. v. Robert M., 347 N.J. Super. 44, 61-62, 69, certif. denied, 174 N.J. 39 (2002) (appointing four guardians in termination of parental rights case).

We discern no conflict here. This is not a case where defendant could care for Jesse and the twins but not Nick. Defendant is unfit to parent any of the children and she has no bond with them. The children all have the same interest: permanency, parental care and a stable home, which the law guardian amply addressed on their behalf.

 
Finally, we decline the law guardian's request to modify the termination order to contain "a provision obligati[ng] the Division to at least make a bona fide effort to keep the sibling group intact when selecting a future home." It is well-established that, where possible, courts in New Jersey prefer to keep siblings together. S.M. v. A.W., 281 N.J. Super. 63, 71 (App. Div. 1995). However, the Division's regulations already provide that "all efforts [be] made to place siblings in the same resource (including foster, pre-adoptive or adoptive) home of the sibling, if appropriate." II Field Operations Casework Policy and Procedures Manual 1502 (Dec. 30, 2004) (emphasis added). We agree with the Division that it is not appropriate to place Nick with Jesse and the twins, who are in the same pre-adoptive home. Such placement would jeopardize the pre-adoptive home placement, as it did the paternal relative placement.

Affirmed.

The children's names are fictitious to protect their privacy.

We sometimes collectively refer to Mara and John as "the twins."

Defendant was pregnant with the twins at the time.

Dr. Jeffrey could not conduct a bonding evaluation with Nick because he was admitted into Cornwall St. Luke's Hospital January 17, 2008, after the paternal relatives refused to allow him back into the home due to his outburst at school.

(continued)

(continued)

33

A-5234-07T4

RECORD IMPOUNDED

May 8, 2009