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

(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NOT FOR PUBLICATION WITHOUT THE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-5726-07T45726-07T4

A-5727-07T4

DIVISION OF YOUTH AND FAMILY

SERVICES,

Plaintiff-Respondent,

v.

C.M.,

Defendant-Appellant,

IN THE MATTER OF THE GUARDIANSHIP

OF De.M., T.M., D.M., M.M., A.M. and

Al.M.,

Minors.

_________________________________________

DIVISION OF YOUTH AND FAMILY

SERVICES,

Plaintiff-Respondent,

v.

B.B.,

Defendant-Appellant,

IN THE MATTER OF THE GUARDIANSHIP

OF T.M., D.M., M.M., A.M. and Al.M.,1

Minors.

________________________________________________________________

 

Submitted May 4, 2009 - Decided

Before Judges Lisa, Sapp-Peterson and Alvarez.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-164-07.

Yvonne Smith Segars, Public Defender, attorney for appellant C.M. in A-5726-07T4 (Deric Wu, Designated Counsel, on the brief).

Yvonne Smith Segars, Public Defender, attorney for appellant B.B. in A-5727-07T4 (Anna F. Patras, Designated Counsel, of counsel and on the brief).

Anne Milgram, Attorney General, attorney for respondent in A-5726-07T4 and A-5727-07T4 (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Adebukola Osuntogun, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minors De.M., T.M., D.M., M.M., A.M. and Al.M. in A-5726-07T4 and A-5727-07T4 (Phyllis G. Warren, Assistant Deputy Public Defender, on the brief).

PER CURIAM

In these consolidated appeals, C.M. (the mother) and B.B. (the father) appeal from a judgment of guardianship terminating their parental rights to six children, who are now between the ages of two and twelve. All six are the biological children of C.M. Five are the biological children of B.B. The children are: De.M. (girl), born July 15, 1996; T.M. (boy), born March 26, 1998; D.M. (boy), born July 18, 2000; A.M. (girl), born August 28, 2001; Al.M. (girl), born September 18, 2002; and M.M. (girl), born March 23, 2007. B.B. is not the biological father of De.M.

Defendants argue that the Division of Youth and Family Services (DYFS or Division) failed to present clear and convincing evidence to satisfy its burden of establishing all four prongs of the best interests of the child test. C.M. presents the additional argument that, even if the Division proved each prong as to the child who was most severely beaten (D.M.), it failed to make the required showing for all of the children. B.B. presents the additional argument that the trial judge erred in failing to consider in her written opinion an unpublished opinion of this court, which counsel for B.B. brought to the judge's attention. The law guardian supported termination in the trial court and, on appeal, joins the Division in urging us to affirm the termination order. We reject the arguments presented by C.M. and B.B. and affirm.

I

C.M. and B.B. have never been married to each other. They had an ongoing relationship for more than twenty years. C.M. has never been employed. She receives social security disability benefits, due to being blind in one eye. She has a significant substance abuse history. She was a regular user of cocaine and heroin for a number of years, including during periods of pregnancy. She was later on a methadone program. She has also abused alcohol. B.B. was employed at the time of trial, earning about $21,000 per year. He has had a history of unstable living arrangements. He did not regularly live with C.M. and the children they shared in common. Both parties have exhibited and been diagnosed with personality disorders and low levels of intellectual functioning.

B.B. has a significant criminal history. He has a history of physical abuse against C.M., who has been passive and suffered the abuse without ever filing charges against B.B. Both parents have regularly engaged in excessive corporal punishment of the children. C.M. has been the more culpable in this regard. Both parents have struck the children, sometimes using objects such as a belt, other times using a closed fist or an open hand. Some of the beatings have been severe, resulting in injuries and hospitalization.

The Division's initial involvement with the family occurred in 1991, when C.M. brought her daughter De.M. to the hospital claiming she fell down a flight of stairs. Abuse or neglect was not substantiated. When D.M. was born on July 18, 2000, he tested positive for cocaine and methadone. He remained in the hospital for about two weeks, and was released to a Division-approved foster home pursuant to a fifteen-day informed consent signed by C.M. D.M. returned to C.M.'s care in November 2004, but later returned to the same foster placement in which he was originally located and remains there at this time. When A.M. was born on August 28, 2001, she too tested positive for methadone exposure. On September 18, 2002, Al.M. was also born exposed to methadone.

In April 2003, the family was evicted from their residence for nonpayment of rent. DYFS referred the family to the Red Cross for housing assistance. Suitable housing was obtained and the Division procured assistance with furniture through the Salvation Army. The case was closed in July 2003.

The case was reopened on January 10, 2006, when the Division received an anonymous referral through school officials reporting that five-year-old D.M. had bruises on his torso. The school nurse observed the bruises from D.M.'s "mid-abdomen going around his back." D.M. stated that his mother beat him with a belt. At that time, C.M. and B.B. lived at the Starlite Motel in Jersey City with S.M., De.M., T.M., D.M., A.M., Al.M. and C.M.'s biological niece. The investigation revealed that school officials had concerns that D.M. complained of his back hurting and he often came to school hungry. When interviewed, D.M. stated that his mother "whooped" him that morning, the night before, and the night before that, all in front of his siblings. D.M. said his mother uses three different belts on him, makes him pull down his pants and lean over the bed, where she beats the back of his body, and then makes him turn around and "w[h]ack[s]" his legs. D.M. reported that his father also beat him with his belt and hit him in the face with a closed fist the previous Monday. D.M. said he was very afraid of his parents and they were always mean to him. Bruises, swelling, and other marks on D.M.'s body were consistent with the abuse he reported. He had a fever of 105 degrees. In a further interview, D.M. revealed that he gets beaten with belts, hot wires, brooms and irons. D.M. was taken by ambulance to Jersey City Medical Center, where he was admitted to the pediatric intensive care unit.

The other children corroborated D.M.'s reports of physical abuse. T.M. confirmed that he saw all three instances in which D.M. was beaten over the previous three days. T.M. also reported that his father hit him with a belt on his knees the day before. He stated that all of the siblings get beaten, but that D.M. gets beaten all the time by both parents. De.M. and C.M.'s niece also reported seeing D.M. beaten by both parents. They both said they had also been hit, although not as often as D.M. C.M.'s niece said she saw someone get hit at least once a day.

On that day, January 11, 2006, an emergency removal was effected, and C.M. was arrested on charges of second-degree endangering the welfare of a child. B.B. was not charged. He and C.M. stated that she hid the beatings from him and he had no knowledge of them. C.M. was incarcerated in default of bail and held until July 2006. In October 2006, she was convicted and sentenced to three years imprisonment. She was released to a halfway house in May 2007. While in prison, she gave birth to M.M. on March 23, 2007. M.M. was immediately removed and placed in a foster home, where she has remained ever since.

All of the other children have remained in foster placements since their removal on January 11, 2006. D.M. is living with the same foster parent with whom he was originally placed after his birth in 2000. He is bonded with his foster mother, who wishes to adopt him. A.M. and Al.M. have been in the same foster home since July 2007. They have a close attachment with their foster family, and their foster mother wishes to adopt them. De.M. has been in the care of her paternal grandmother since July 2007. The relationship is healthy, happy and wholesome, and her grandmother wishes to adopt her. M.M. has been with the same foster family since her birth, and her foster parents wish to adopt her. At the time of trial, T.M. was not in a pre-adoptive home, and select home adoption was planned for him.

The Division made numerous contacts with relatives, seeking appropriate placements. Except as we have stated, those efforts were unsuccessful.

II

On March 9, 2006, Dr. Robert Kanen performed a psychological evaluation of B.B. B.B. was then living with two friends in a small apartment. He admitted to a history of cocaine abuse which ended when he stopped using on his own ten years prior. He revealed two prior arrests, for shoplifting and domestic violence. He denied any knowledge of C.M.'s beating of the children. He admitted using mild corporal punishment on each child by hitting them on the behind once or twice. He acknowledged that C.M. had a heroin addiction and took methadone but thought her drug use did not have a negative impact on the children. He said he was not living with C.M. and the children at the time the children were removed.

Dr. Kanen concluded that B.B. demonstrated borderline intelligence and evidence of longstanding personality problems. He found B.B. extremely self-centered and felt he would be "unlikely to be able to adequately recognize physical and psychological dangers to his children and demonstrate good judgment in keeping them safe from harm." He found B.B. "chronically angry, irritable, moody, mistrustful," lacking in insight, and having "little patience with childcare demands and challenges to his authority." He concluded that B.B. could not "adequately provide a safe, secure and stable home for his children" and "returning [them] to his care would expose [them] to an unnecessary risk of harm."

On April 19, 2006, Dr. Kanen evaluated C.M. while she was incarcerated. C.M. admitted to sniffing cocaine every day for four years after her brother's death and using alcohol and heroin two to three times per week. She attended a methadone program for about five years, but was never in an inpatient program.

Dr. Kanen found that C.M. showed evidence of "severe parenting deficits," including longstanding personality problems, attention-seeking and impulsively violent behavior, lack of insight, depression, and a generalized anxiety disorder, all of which lead her to feel "overwhelmed with the demands of daily life and childcare." Noting her history of drug abuse, Dr. Kanen concluded that her "prognosis for change is poor" and she poses a "great risk of relapse back to cocaine use" after her release. He found that she had "no realistic goal to take care of her children" and was unable to care for them. He concluded that returning the children to their parents would expose them to an unnecessary risk of harm.

On May 1, 2006, B.B. contacted a DYFS caseworker. He informed her he had been living on the streets for several weeks. He expressed some willingness to surrender his parental rights to T.M. and D.M., but said he wanted to fight for the two girls, A.M. and Al.M.

At a hearing on May 3, 2006, C.M. and B.B. waived their rights to factfinding. C.M. stipulated she was unable to care for her children due to her incarceration at that time. Judge DeCastro ordered continued legal and physical custody of the children with the Division.

On July 7, 2006, Dr. Ernesto Perdomo performed psychological evaluations of De.M. and D.M. On July 26, 2006, Dr. Perdomo evaluated T.M. He found no major psychiatric or mental health disorders with the children and recommended counseling, which was arranged by the Division.

At a compliance review on July 26, 2006, Judge DeCastro ordered both parents to submit to a second psychological evaluation and to attend parenting classes. C.M.'s visitation rights were suspended because of her criminal charge. B.B.'s visitation was increased to two-hour biweekly supervised sessions. The Division provided transportation. Over the ensuing months, B.B. was required to submit to random urine screenings, all of which yielded negative results.

On September 12, 2006, B.B. completed joint parenting and anger management classes. C.M. attended some parenting/anger management classes, but missed others before her criminal sentencing on October 27, 2006. On January 3, 2007, Judge DeCastro entered a permanency order, approving the Division's plan of termination of parental rights and adoption for De.M., T.M. and D.M. As to A.M. and Al.M., the court granted B.B. a three-month extension to find a suitable apartment with the Division's assistance. (M.M. was not yet born.) The court found that the Division had offered reasonable efforts, including housing assistance, evaluations, parenting skills, random urine screenings, and visitation. The court approved termination of parental rights because "mother [was] incarcerated and unavailable for services due to child abuse. Father lacks housing and has not complied with family therapy as to [T.M. and D.M.]."

On the next day, the Division learned that C.M. was pregnant. While in prison, C.M. began parenting skills training and a drug support group. B.B. expressed to a caseworker that he could not care for the new child because of his ongoing efforts to regain custody of his other children. He also stated he found an appropriate apartment and requested that the Division evaluate it.

On January 23, 2007, the Division received a background check for B.B. which revealed a significant arrest history, including charges of possession of cocaine, shoplifting, hindering prosecution, simple assault against C.M., simple assault in a street fight, terroristic threats, and open warrants for failure to appear and contempt of court.

On March 30, 2007, the Division filed its guardianship complaint seeking to terminate parental rights as to T.M., D.M. and De.M. The court issued a case management order directing C.M. to contact the Division after her release from the halfway house to inquire about services and visitation. On April 27, 2007, further psychological evaluations and bonding evaluations were ordered. On May 21, 2007, C.M. was ordered to attend anger management, and the court requested an opinion from the Division's psychologist, Dr. Frank J. Dyer, as to whether visitation and family counseling would be appropriate for C.M. On the same day, the court entered an order approving termination of parental rights and adoption as the appropriate plan for A.M., Al.M., and M.M. At the time, C.M. lived in the halfway house, until her release on July 11, 2007. B.B. was incarcerated and lacked housing at the time.

On July 30, 2007, the Division amended its guardianship complaint to include termination of parental rights with respect to A.M., Al.M., and M.M. Bonding evaluations for the children with their biological parents and foster parents were ordered. On August 2, 2007, C.M. advised a DYFS caseworker that she and B.B. were willing to surrender their rights to D.M. and possibly De.M. if she was happy living with her grandmother. On October 25, 2007, C.M. reiterated this possibility as to D.M.

C.M. completed parenting classes on August 7, 2007 and anger management classes on October 29, 2007. She also participated in a substance abuse program during this time and consistently passed negative urine samples. She completed the program successfully on October 31, 2007.

III

On July 5, 2007, Dr. Dyer evaluated B.B. B.B. continued to deny knowledge of C.M.'s beating of the children. He said his plan was to care for the children during the day and work at night, leaving them home alone sleeping. Although he expressed his preference that C.M. be allowed to live with him and the children, he said he would take the children himself if necessary. He refused to take the Millon Clinical Multiaxial Inventory - III test.

Dr. Dyer diagnosed B.B. with an unspecified personality disorder with anti-social features. He concluded that B.B. was neither interested in nor capable of protecting the children from C.M. and termed his childcare plan as "entirely unrealistic." He found B.B.'s prognosis "extremely poor" and concluded that B.B. was not a viable caretaker.

Dyer also conducted a bonding evaluation between B.B. and T.M., D.M., A.M. and Al.M. All parties agreed that because of M.M.'s very young age, no evaluation should include her. All four children seemed happy to see B.B., were responsive to him, and sought his attention. After observing B.B. and the children together, each child was interviewed separately. They all recognized B.B. as their "daddy." T.M., A.M. and Al.M. expressed a wish to live with their birth parents. However, Al.M. stated she liked living with her foster parents, whom she referred to as "Grandma and Grandpa." Only D.M. stated it would be a "bad thing" to return to his father's care and be away from his foster mother, whom he calls his "grandma."

On July 26, 2007, Dr. Dyer evaluated C.M. She discussed her drug history and the reason for her incarceration. She described trauma and anxiety stemming from the deaths of her two brothers and her mother, and the shooting and paralysis of her oldest son, all of which increased her drug habit.

Dr. Dyer found that C.M. lacked emotional maturity, had defects in impulse control and problems with self-esteem and self-concept. He attributed her stretch of "clean time" to her fifteen-month incarceration without access to drugs. He concluded that, because C.M. possessed meager coping resources and "a good deal of poorly controlled anger," she would be predisposed to relapse and pose a danger to any child placed in her care. He concluded she was not a viable candidate for custody of the children.

Dyer also conducted a bonding evaluation between C.M., T.M., D.M., A.M. and Al.M. All of the children demonstrated affection and appeared to enjoy their time with their mother. When interviewed individually, with the exception of D.M., the children expressed a desire to live with her.

On April 30, 2007, Dr. Dyer conducted a bonding evaluation between D.M. and his foster mother, Ms. R. D.M. is the only child in the home. Ms. R.'s adult daughter lives in the downstairs portion of the house and would serve as a back-up caretaker. As we have explained, D.M. lived with Ms. R. from immediately after his birth until he was four years old, when he was returned to C.M.'s care for a year, until his removal and return to Ms. R. In his post-observation interview, D.M. told Dr. Dyer that his birth parents "weren't nice to me," which is why he went to live Ms. R., who "is nice." He said his mother "always used to give me spankings," and his father "doesn't give me spankings that much and he brings us toys and he's very nice." He reiterated his preference to stay with Ms. R.

Dr. Dyer concluded that D.M. was "flourishing developmentally and emotionally" in Ms. R.'s care, and that she "is very clearly [his] central parental love object and his primary source of nurturance, emotional security, and physical protection." He found a very strong attachment to Ms. R. and recommended that he remain permanently in her care.

Dr. Dyer found that A.M. had a "very strong attachment" with C.M. and noted her preference to return to her care. Al.M. appeared to have a "continuing attachment" to C.M. Despite these attachments and the lack of bonding information on the girls' foster parents, Dr. Dyer found that the risk of harm presented by C.M. and B.B. overshadowed such concerns. He recommended that neither birth parent be considered a viable candidate for custody. He made the same recommendation for T.M., finding that the risk of harm from C.M. and B.B. outweighed T.M.'s "very strong attachment to both of his birth parents," his "clear preference for returning to them," and his "high degree of dissatisfaction with his foster home."

Each of the defendants also engaged a psychological expert. B.B. engaged Dr. Gerard A. Figurelli, and C.M. engaged Dr. Dilip A. Shah.

Dr. Figurelli evaluated B.B. on October 5, 2007. B.B. said he was looking for apartments with C.M. and that C.M. had been sober for "going on a year." Dr. Figurelli found no diagnosable psychological disorder in B.B., and found no heightened agressivity, hostility, or defensiveness. He found no present drug or alcohol abuse problem despite B.B.'s prior history. He noted that B.B. failed to disclose his full arrest history. He found no evidence that B.B.'s approach to parenting or perception of his role as a parent would significantly adversely impact his capacity to parent adequately. He concluded:

If he remains all psychoactive substance use abstinent, abstains from involvement in any/all illegal activity, establishes an adequate living arrangement, maintains a consistent and adequate source(s) of financial support[, B.B.] has the capacity to act adequately in a supportive or even a co-parenting role (along with an adequate other caretaker) to his children.

[Emphasis added.]

On October 16, 2007, Dr. Figurelli conducted a bonding evaluation between B.B. and T.M., D.M., A.M. and Al.M. The children interacted well with their father. Dr. Figurelli found B.B. a caring, affectionate and supportive parent. The children appeared to feel safe and emotionally secure with him. Dr. Figurelli concluded that severing the children's attachment to B.B. would damage their sense of family connectedness and would not be in their best interests.

On September 11, 2007, Dr. Figurelli conducted a bonding evaluation of D.M. and Ms. R. He found that D.M. and his foster mother "appear[ed] to maintain a significantly reciprocal, positive, emotionally attached relationship." He concluded that D.M. viewed Ms. R. as a significant parental authority figure, who he respects, cares for, and feels nurtured by, and that he appeared to be "thriving" in her care.

On September 18, 2007, Dr. Figurelli conducted a bonding evaluation of A.M. and Al.M. with their foster mother, Ms. B. Also living in the household is another foster child and Ms. B.'s twenty-six-year-old biological child. Both girls interacted well with Ms. B. and referred to her as "mommy." The girls were polite, respectful and responsive to Ms. B.'s instruction. Ms. B. remained patient, attentive and caring. The girls appeared to feel safe, comfortable and nurtured in their interaction with her.

Overall, Dr. Figurelli concluded that D.M., A.M. and Al.M. could be removed from their current caretakers "without experiencing harm that is severe and enduring in nature." He found that T.M., D.M. and A.M. showed a "significant positive emotional attachment" to B.B., and that Al.M. displayed a lesser "positive emotional attachment" to her father. Dr. Figurelli concluded that severing the relationship with their biological father would do each of the children more harm than good.

On December 15, 2007, Dr. Shah evaluated C.M. C.M. expressed mixed feelings about taking care of all of her children. She presented as depressed and tearful, exhibiting guilt about her past abuse of the children. She stated that, although she wants to regain custody, she also wants the children to be placed where they would be happiest.

Dr. Shah recommended that T.M., D.M., A.M. and Al.M. continue in foster care placement under the legal custody of the Division. He recommended that C.M. continue to attend NA and AA, complete parenting classes (which she already had), undergo individual and family counseling, continue weekly visitation, obtain housing assistance, and that DYFS make a safety assessment prior to granting her custody. His bottom line conclusion was that C.M. should continue receiving services for another year, and then be further evaluated to see if she then might be ready to care for her children.

On February 6, 2008, Dr. Shah conducted a bonding evaluation between C.M. and T.M., D.M., A.M. and Al.M. All children were happy to see their mother. D.M. remained somewhat aloof and did not interact freely with his mother. The other children did interact well. Nevertheless, Dr. Shah concluded that all of the children should remain in DYFS custody and that supervised visitation for C.M. should continue.

IV

The guardianship trial took place on January 16 and 18, March 11, and April 3, 2008 before Judge DeCastro. At the time of trial, B.B. lived in a small basement apartment in Jersey City, which he shared with two friends. C.M. shared an apartment in Jersey City with her father and adult son. Neither apartment was suitable to accommodate the children, and the family had been denied emergency rental assistance, although their name came up on the waiting list and they were given a Section 8 application.

In addition to a DYFS caseworker who described the history of the case and the Division's involvement, the three psychological experts, Drs. Dyer, Figurelli, and Shah, testified.

Dr. Dyer testified that neither B.B. nor C.M. are capable of parenting their children in a responsible manner. He expressed his "great concern" over B.B.'s troubling degree of confidence in C.M.'s parenting abilities despite his awareness of her drug abuse. He highlighted the irresponsible and unfeasible nature of B.B.'s childcare strategy to care for the children during the day and either leave them alone or in the care of C.M. at night while he worked.

Dr. Dyer testified that C.M. lacks a consistent basis for adequate judgment in the discharge of parental responsibilities due to polysubstance dependence and other dependent features of her personality. He explained that C.M. must depend upon someone or something, whether an abusive partner or an illegal substance, to maintain her psychological equilibrium, and that she remains "quite vulnerable to relapse into substance abuse."

Based upon these conclusions and his bonding evaluations, Dr. Dyer recommended that the Division continue to pursue adoption for T.M., D.M., A.M. and Al.M. He recommended this course for T.M. as well, despite T.M.'s strong attachment to C.M. and B.B., and T.M.'s lack of an adoptive home. Dr. Dyer explained that this was due to his assessment that T.M. would remain at risk if placed in their care. Dr. Dyer opined that the children had already suffered the disruption of the bond with their mother during her fifteen-month incarceration and there would be no significant additional harm from permanent severance. On the other hand, Dr. Dyer testified that D.M. would suffer "enormous harm" if he was again removed from Ms. R.'s care.

Dr. Figurelli testified that B.B. proved to be normal in every phase of his testing, with no clinically significant psychological, emotional or substance related problems or disorders. He found that no aspects of B.B.'s approach to parenting would adversely impact his capacity to adequately parent his children. He found nothing in B.B.'s personal, social, or family history, or daily functioning, that would prevent him from being an appropriate caretaker, with the exception of his inability to establish an adequate living arrangement.

Dr. Figurelli reiterated his conclusion that, if B.B. continued to abstain from all psychoactive substances, refrained from illegal activity, established an adequate living arrangement, and maintained a consistent source of financial support, "he has the capacity to act adequately in a supportive or even a co-parenting role to his children." He further concluded that severance of the children's relationship with B.B. would do them more harm than good, due to their fully formed perception of him as their biological father, their sibling attachments, and their growing sense of family connectedness. He conceded that D.M. had a "fully bonded relationship" with Ms. R. and, if removed, would likely experience separation anxiety, some acting-out behaviors, and regression in overall psychological functioning.

Dr. Shah testified that he diagnosed C.M. with adjustment disorder with depressed mood, as well as severe stress. He noted that three of the children, T.M., A.M. and Al.M., interacted well and expressed a desire to reunite with their mother. He recommended continued NA meetings, family and individual therapy, and housing and financial support for C.M. Although he did not recommend termination of C.M.'s parental rights "at this point," Dr. Shah was also unwilling to recommend that any of the children return to her care. He conceded that he would not consider C.M. an adequate caregiver at the time of his testimony. He urged another year of services, followed by reevaluation to see if she might then be capable of parenting her children.

Neither defendant testified. The judge received in evidence voluminous documentary material, including the reports of the various experts, DYFS records, hospital records, and the like. The judge found Dr. Dyer's testimony more credible and persuasive than that provided by Drs. Figurelli or Shah. On April 23, 2008, the judge issued a thorough written opinion. She found that the Division had proven each of the four prongs of the best interests test by clear and convincing evidence. She entered a judgment of guardianship on the same date.

V

Parents have a fundamental right to raise their children, which presents concerns of a constitutional nature in any proceeding for termination of that right. In re Guardianship of J.N.H., 172 N.J. 440, 471 (2002); see Santosky v. Kramer, 455 U.S. 745, 759, 102 S. Ct. 1388, 1398, 71 L. Ed. 2d 599, 610 (1982). However, the constitutional protections afforded to parental rights are not absolute and are tempered by the State's parens patriae responsibility to protect the welfare of children. J.N.H., supra, 172 N.J. at 471 (citing In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999)).

The balance between parental rights and the State's protective interest over the welfare of children is achieved through the statutory "best interests of the child" standard. N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 506 (2004) (citing K.H.O., supra, 161 N.J. at 347). Specifically, the following four statutory criteria must be 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 [or her] 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-15.1a.]

The enumerated criteria are not discrete and separate, but relate to and overlap with one another to form a comprehensive standard that identifies the child's best interests. P.P., supra, 180 N.J. at 506. In order to terminate a parent's rights, the Division must satisfy each of the four prongs by a showing of clear and convincing evidence. Id. at 506 n.3 (citing Santosky, supra, 455 U.S. at 768-70, 102 S. Ct. at 1402-03, 71 L. Ed. 2d at 616-17).

Appellate courts must uphold the factual findings of a trial court when supported by "adequate, substantial, credible evidence" in the record. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). The reviewing court should defer to the trial judge in light of the judge's superior perspective from having had the opportunity to observe the witnesses as they testify. Cesare, supra, 154 N.J. at 412 (citing Pascale v. Pascale, 113 N.J. 20, 33 (1988)). Because of the Family Court's "special jurisdiction and expertise in family matters," this deference is especially appropriate in cases arising from the Family Part. Id. at 413.

In a termination of parental rights case, the reviewing court should not disturb the trial judge's decision unless it is "so wholly unsupportable as to result in a denial of justice." J.N.H., supra, 172 N.J. at 472; see Rova Farms, supra, 65 N.J. at 483-84. Barring that exception to the limited scope of review, judicial interference with the trial court's factual findings is only appropriate where "the focus of the dispute is not credibility but, rather, alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom." In re Guardianship of J.T., 269 N.J. Super. 172, 188-89 (App. Div. 1993) (citations omitted). However, a trial court's interpretation of the law and the legal consequences that flow from its factual findings are not entitled to any special deference. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

The statute first requires DYFS to show that the "child's safety, health or development has been or will continue to be endangered by the parental relationship." N.J.S.A. 30:4C-15.1a(1). The first prong does not concentrate on a single instance of isolated harm as such. K.H.O., supra, 161 N.J. at 348. "Although a particularly egregious single harm can trigger the standard, the focus is on the effect of harms arising from the parent-child relationship over time on the child's health and development." Ibid. DYFS need not present proof of physical abuse, and proof of psychological or developmental abuse may be sufficient. In re Guardianship of R.G., 155 N.J. Super. 186, 194 (App. Div. 1977).

Citing the family's long history with DYFS, Judge DeCastro found that "there is no doubt" the children suffered harm at the hands of C.M. and B.B. She found that D.M. was born testing positive for cocaine and later was severely beaten with a belt by C.M. so badly that he had bruises, marks, and a 105 degree fever necessitating his hospitalization. D.M. and T.M. reported also being beaten by B.B.

The judge also found that C.M.'s incarceration harmed the children through her unavailability. She was particularly disturbed by C.M.'s excuse that she beat D.M. because she never bonded with him after he was removed from her care at birth. The judge credited Dr. Dyer's opinion regarding B.B.'s belief that C.M. was a good mother despite his awareness of her drug use. The judge found that B.B. was unable to protect the children from their mother, and had therefore caused them harm.

In her brief, C.M. argues that the trial court erred in focusing on the harm to D.M. and ignoring the "scant evidence the Division submitted concerning harm to C.M.'s other children." She contends that, other than evidence of D.M.'s beatings, the only supporting evidence of harm to the other children arose from T.M.'s witnessing those beatings and from C.M.'s unavailability due to her incarceration.

We first note that the conduct of a parent directed at one child is evidential, although certainly not conclusive, of the conduct that might be expected from that parent toward his or her other children. Further, C.M.'s argument fails to take account of the totality of the evidence. Although T.M. at various points stated he was only beaten by his father and never his mother, the Sexual Assault Victim Assistance Unit interviews of the other siblings at the time of their removal indicate that D.M. was not the only child beaten by C.M. in the home. De.M. reported being hit, but did not specify which parent hit her. C.M.'s niece said her aunt and uncle both hit her and reported that someone got hit "at least once a day." T.M. stated that all of his siblings were hit, including his younger sisters "because they aggravate their mother." When taken together, these accounts provide adequate, substantial, credible evidence from which the court could conclude that the other children were physically abused as well, separate and apart from having to make the inference that their viewing of D.M.'s beatings negatively impacted them.

As to her absence, C.M. correctly notes that the judge could consider her incarceration, but argues that it "must assess this incarceration in relation to parental unfitness." C.M.'s argument ignores the reality that her incarceration was not for some unrelated offense, but was actually due to her unfitness in abusing her children. And, her absence was for an extensive period. As Judge DeCastro found, C.M.'s absence due to incarceration constituted real harm which was inextricably linked to her abuse. Furthermore, D.M., A.M., and Al.M. were born addicted to drugs, which has been held to constitute per se harm. See K.H.O., supra, 161 N.J. at 352-53.

In his brief, B.B. makes a similar but equally unfounded argument in asserting, "There were no findings that B.B. actually abused any of his children while in his care." First, the degree of corroboration provided in the children's SAVA interviews negates B.B.'s assertion. D.M. claimed his father punched him in the face, while T.M. claimed B.B. beat his knees with a belt. B.B. admitted to using mild corporal punishment but had a history of minimizing or failing to fully disclose facts, as evidenced by his arrest history and his characterization of C.M.'s parenting. Second, the Division was not required to show actual physical abuse on the part of B.B. in order to satisfy the harm requirement. Dr. Dyer's opinion provided evidence that B.B. failed to protect the children from C.M.

The record supports the judge's finding that the Division proved the first prong clearly and convincingly.

The second prong may be established in one of two ways: first, if the parent is unwilling or unable to eliminate the harm that has endangered the child's health or development or, second, if the parent is unwilling or unable to provide a "safe and stable home for the child and the delay of permanent placement will add to the harm." N.J.S.A. 30:4C-15.1a(2); K.H.O., supra, 161 N.J. at 352. Such added harm includes evidence that separating the child from his or her foster family would cause serious and enduring emotional or psychological harm. N.J.S.A. 30:4C-15.1a(2).

Although the second prong more directly focuses on conduct that equates with parental unfitness, the first two prongs interrelate to form the components of the harm requirement, 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." In re Guardianship of DMH, 161 N.J. 365, 379 (1999) (citing K.H.O., supra, 161 N.J. at 348-49). A parent's prolonged inability to take custody of, care for, and provide a safe and stable home for a child demonstrates parental unfitness constituting harm under the second prong. K.H.O., supra, 161 N.J. at 353-54. Delay caused by ongoing failure to assume a responsible parental role itself constitutes harm to the extent it weakens other bonds a child might form, such as a healthy bond with foster parents. Id. at 354.

In discussing the second prong, Judge DeCastro found Dr. Dyer to be "the most persuasive expert concerning the harm that would impact these children if there is any further delay to their permanency." She credited his opinion that returning the children to the custody of C.M. and B.B. would place them at risk for abuse. She concluded:

Based upon the evidence and experts' opinions, it is highly improbable that the children can be safely reunited with either parent in the foreseeable future. These children need permanency. According to C.M.'s expert[,] even if reunification were deemed the appropriate plan[,] it would require at least an additional year of service[s] and then she would need to be reassessed before the plan could be effectuated. Moreover, B.B.'s own expert stated that he can only parent in a supportive role. Any further delay in a permanent placement will only add to the harm. Thus the Division clearly established by clear and convincing evidence it has met its burden as to the first and second prongs.

These findings are supported by adequate, substantial, credible evidence in the record as a whole, and we have no occasion to interfere with them. The trial judge was well within her province in accepting Dr. Dyer's conclusions. At trial and in his reports, Dr. Dyer opined that C.M.'s psychological profile negatively affected her parenting capacity. He also testified that she was in the early stages of drug recovery and posed a strong likelihood of relapse due to the dependant features of her personality. Even Dr. Shah, C.M.'s expert, could not recommend reunification and instead recommended a year of continued services before she might be ready to adequately care for her children.

Dr. Dyer concluded that B.B. lacked insight into his parenting deficiencies and those of C.M., and that his child care plan for the children was completely unrealistic and unworkable because it relied on either leaving the children alone at night or leaving them in C.M.'s care. He said: "The dangers associated with that kind of parenting strategy are innumerable I think." The judge agreed.

The judge also noted Dr. Figurelli's opinion that, even if several other important circumstances were met, at best, B.B. could only provide an adequate "co-parenting" or "supportive" role for the children and would need the help of another adequate parent. Dr. Figurelli acknowledged: "I did not opine that and I'm not opining that [B.B.] can parent independently." Judge DeCastro noted the opinions of Drs. Dyer and Shah that, at least at this time, C.M. is not an adequate co-parent.

The judge also considered the comparative levels of attachment between the children and C.M. and B.B. as opposed to the foster parents. Finding significant attachments or bonding in the case of most of the children with their foster parents, she found that the damage to the children's bond with their foster parents would contribute to the risk of harm. N.J.S.A. 30:4C-15.1a(2) includes as added harm that separating the child from his or her foster family would cause serious and enduring emotional or psychological harm.

C.M. argues that, under the second prong, the judge and Dr. Dyer failed to explain how her negative psychological profile would affect her parenting. However, even as C.M. notes in her brief, Dr. Dyer concluded that she has poor impulse control and a strong likelihood of drug relapse. C.M. claims that, because she has completed all recommended services and remained drug free, she has eliminated the harm to her children. In a similar vein, B.B. points to the Division's acknowledgment that the only services left for him to complete were to attend family and individual counseling and find appropriate housing.

Yet, aside from the family's lack of a safe and stable home, even C.M.'s expert testified that it would take at least a year of continuing services before she might possibly be considered an adequate caretaker. The experts testified that B.B.'s failure to participate in counseling was as much an impediment to reunification with him as his lack of progress in finding an appropriate home for the children. Thus, for both parents, the Division met its burden under either of the two avenues through which the second prong can be proven.

The third prong requires DYFS to prove by clear and convincing evidence that it "made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home." N.J.S.A. 30:4C-15.1a(3). The court must also consider alternatives to termination of parental rights. Ibid. The statute defines "reasonable efforts" to mean "attempts by an agency authorized by the division 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-15.1c.

The reasonable efforts criteria requires DYFS to encourage, foster, and maintain the bond between the parent and child as the basis for reunification of the family. DMH, supra, 161 N.J. at 390 (citing In re Guardianship of K.L.F., 129 N.J. 32, 37-46 (1992)). Which particular services are necessary must be determined according to the circumstances of each individual case, including the parent's participation in the process. Ibid. The parent must make an active effort to comply with the recommended services. Ibid. (citations omitted).

Judge DeCastro found that "[t]he Division has offered an array of services aimed at family reunification in this case." She listed the services provided to each parent, including psychological evaluations, parenting and anger management classes, supervised visitation, assistance with transportation, assistance with housing, and family counseling. The Division referred C.M. to an outpatient drug treatment program, and both parents were given random urine screenings. When B.B. failed to adequately attend family counseling sessions, the Division referred him to individual counseling. He was given DNA testing to resolve the question of his paternity. The Division assisted the family with a Section 8 housing voucher and also reached out on their behalf for temporary rental assistance, which was denied because C.M. had already used her lifetime limit of emergency housing aid.

All of these services are supported by documentation in the record. While C.M. acknowledges that she received substantial services, she argues that the Division's efforts "fell short of its duty to 'encourage, foster and maintain the bond' between C.M. and her children." B.B. makes the same argument, contending that the Division "used its 'cookie-cutter' services" to further its plan of termination and adoption without ever really intending to pursue reunification. Both parents cite Dr. Kanen's failure to make any recommendations for them in his psychological evaluation. C.M. and B.B. urge this as evidence that the Division never seriously sought to assist them in correcting the circumstances that led to the children's placement outside the home.

We find these arguments unpersuasive. First, the judge noted that a no-contact order prevented certain services for C.M. involving direct contact with the children during her incarceration. We do not take issue with the judge's finding that DYFS did all it could to help C.M. get her life together while in jail. After her release, the Division facilitated appropriate visitation after Dr. Dyer concluded that it would not harm the children. Given C.M.'s history of drug use and physical abuse of her children, this was a reasonable means by which the Division could fulfill its duty to "encourage, foster and maintain the bond" with her children.

As the DYFS caseworker testified, the Division pursued concurrent case goals of termination and adoption as well as reunification. The DYFS contact sheets between June 2006 and January 2007 generally support this testimony. And, after September and October 2006, when B.B. appeared to be showing promise in his compliance with services by completing parenting and anger management classes and continuing to test negative for all substances, many of the contact sheets listed reunification with him as the primary goal. This ended after the January 3, 2007 compliance review, where Judge DeCastro noted that B.B. missed three scheduled intake appointments for family counseling.

In support of his argument, B.B. claims the Division only sought out alternative placements for the children days before filing its termination compliant, and only provided him with housing assistance at the very end of the case. This represents a distorted use of the facts. Through this argument, B.B. presumably refers to the fact that the Division ruled out four possible caretakers for M.M., three of them relatives, on March 28, 2007, just two days before filing its termination complaint on March 30, 2007. The Division did so because M.M. was born only five days earlier on March 23, 2007, and it had spent that time executing an emergency removal and finding her a foster placement.

Far from fulfilling its obligations at the last minute, the Division's contact sheets following removal of the other children in January 2006 showed that it reached out to relatives and explored alternatives where appropriate. The Division completed an Interstate Home Evaluation for and placed De.M. with her paternal grandmother. T.M. was placed with his paternal cousin, and he remained there until she decided not to adopt him.

The Division offered a wide range of services to both parents, and the court considered alternatives to termination. The evidence supports the judge's determination as to the third prong.

The fourth prong requires the trial court to find by clear and convincing evidence that "termination of parental rights will not do more harm than good." N.J.S.A. 30:4C-15.1a(4). This criterion does not require a showing that no harm will result from severing ties with the biological parent. K.H.O., supra, 161 N.J. at 355. The inherent risk of harm from such severance must be weighed against the paramount need for children to have permanent and defined parental relationships. Ibid.

The trial judge must balance the two relationships and decide whether the child would "suffer a greater harm from the termination of ties with her natural parents than from the permanent disruption of her relationship with her foster parents." Ibid. This comparative determination requires expert testimony specifically directed to the strength of each relationship. Ibid. (citing In re Guardianship of J.C., 129 N.J. 1, 25 (1992)).

Judge DeCastro concluded that the benefits of permanence and stability in the children's foster home placements outweighed any harm they might suffer as a result of terminating their parental relationships with C.M. and B.B. She found that all of the children except T.M. "are in loving and stable[] homes with caretakers who are committed to adopting them." D.M. is "deeply attached" to Ms. R., and the judge credited Dr. Dyer's opinion that he would suffer "severe harm" if removed. As to A.M. and Al.M., the judge found that, although not fully bonded, they have formed a level of connection with Ms. B. and appear to feel safe, comfortable, and nurtured.

These findings are well supported by the record. With some minor variations, all of the bonding evaluations indicated the same general findings. All experts agreed that D.M. was deeply and fully bonded to his foster mother and would experience substantial harm if removed. Dr. Dyer found that D.M. was "flourishing developmentally and emotionally," while Dr. Figurelli observed that he appeared to be "thriving" in his foster mother's care. There can be no question about the weighing of relative harms facing D.M.

Further, all of the girls are doing well in their placements. After visiting in North Carolina, the DYFS caseworker who testified noted that De.M. appeared to be doing well and getting along with her grandmother and new cousins. She did not attend visitation with C.M. or B.B., but had some contact with her mother via telephone. M.M. always lived with her current foster family and had minimal, if any, attachment to her biological parents.

To varying degrees, all experts agreed that A.M. and Al.M. maintained lasting connections and affection for their birth parents. Dr. Dyer found that A.M. had a "very strong attachment" and Al.M. had a "continuing attachment" to C.M. Dr. Figurelli observed that the girls, and A.M. in particular, appeared very emotionally attached to B.B. Contrary to the judge's finding, the two experts disagreed on whether termination of parental rights would do more harm than good. They did agree, however, that both A.M. and Al.M. had adjusted to their current foster placement and come to view Ms. B. as a legitimate and nurturing parental figure.

With regard to A.M., Al.M., and T.M, the judge credited Dr. Dyer's opinion that the risk of harm presented by C.M. and B.B. overshadowed the harm associated with the severance of the parental relationship. The fourth prong involves a weighing process through which a trial court must balance the respective harms to the children. Considering A.M. and Al.M.'s good relationship with Ms. B. and her apparent competency as a foster caretaker, we defer to the judge's weighing of the potential relative harms facing the girls.

The analysis is slightly more difficult regarding T.M. because he does not yet have a permanent foster home, disliked his placement at the time of trial, interacted well with his birth parents during visitation, and voiced a clear preference for returning to their care. The pressure on C.M. and B.B. to find housing would be lessened if only one child were returned to them. Dr. Dyer testified that never seeing his parents again would be a "significant loss" for T.M., possibly resulting in depression. On the other hand, we defer to Judge DeCastro's findings that C.M. presents a continued risk for physical abuse which B.B.'s proposed childcare plan cannot avoid. Further, T.M. previously reported being beaten by his father. Taking all of these considerations into account, the judge's decision to sever parental rights as to T.M., despite his lack of an adoptive home, is supported by the evidence.

We summarily reject B.B.'s argument that the trial judge erred in failing to consider in her written opinion an unpublished opinion of this court, which B.B.'s counsel brought to the judge's attention. See R. 1:36-3.

 
Affirmed.

Because A.M. and A.M. have the same initials, we refer to the younger of the two as Al.M.

De.M.'s biological father voluntarily surrendered his parental rights and is not a party to this appeal. C.M. has two older sons, who have reached the age of majority and are not parties to this appeal. C.M. and B.B. have another daughter, S.M., who was born on October 12, 1990. S.M. lives with her paternal grandmother in a kinship legal guardianship arrangement, and is not involved in this appeal. B.B. has another adult daughter, who is also not involved in this appeal.

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A-5726-07T4

RECORD IMPOUNDED

May 20, 2009