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

 
(NOTE: The status of this decision is .)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2029-09T1

DIVISION OF YOUTH AND

FAMILY SERVICES,

Plaintiff-Respondent,

v.

C.M.,

Defendant-Appellant.

IN THE MATTER OF THE

GUARDIANSHIP OF Y.B., a minor.

________________________________________________________________

October 28, 2010

 

Submitted October 12, 2010 - Decided

 

Before Judges Carchman and Graves.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FG-02-86-08.

 

Yvonne Smith Segars, Public Defender, attorney for appellant (Colleen A. McCarthy, Designated Counsel, of counsel and on the brief).

 

Paula T. Dow, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Lindsay Puteska, Deputy Attorney General, on the brief).

 

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minor (Jeffrey R. Jablonski, Designated Counsel, of counsel and on the brief).

 

PER CURIAM

In this appeal from an order of the Family Part granting guardianship of children, M.R., A.B. and Y.B.,1 and terminating the parental rights of defendant M.C., defendant asserts that the Division of Youth and Family Services (DYFS or the Division) failed to establish the four prongs of N.J.S.A. 30:4C-15.1(a), by clear and convincing evidence. We disagree and affirm.

These are the relevant facts adduced at trial. C.M., the biological mother of three children, M.R. (born August 21, 2003), A.B. (born November 18, 2005) and Y.B. (born September 16, 2006), first came to the attention of DYFS on April 2, 2006, when it removed two-year-old M.R. from C.M.'s care and placed the child in foster care. C.M. and M.R. were staying with another woman, Sandra M.2 C.M. and Sandra M. left the house in the middle of the night while M.R. and Sandra M's children were sleeping. Sandra M's eight-year old son woke up at approximately 12:30 a.m., realized that his mother was not home and called 911. The police responded and contacted DYFS. When C.M. and Sandra M. returned home, they told the police that they had been grocery shopping, but they carried no grocery bags or food.

Following an investigation by the Special Response Unit (SPRU), DYFS returned Sandra M's children to her home, on the condition that C.M. could no longer reside with Sandra M. M.R. would not be returned to C.M.'s custody until C.M. secured stable housing and engaged in services.

On April 4, 2006, the Division filed an Order to Show Cause and to Appoint a Law Guardian with Temporary Custody as well as a Verified Complaint, seeking care, custody, and supervision of M.R. and A.B. in the Family Part. The order provided:

Continuation of residence in the home would be contrary to the welfare of M.R. and A.B. because of the allegations that C.M. left two year old M.R. from approximately 10 p.m. to 3:30 a.m. without adequate supervision and C.M. is currently homeless and has not provided for the care and support of A.B. since February, 2006 . . . .

 

Both children where placed in DYFS' custody and M.R. was placed in various foster homes until his present placement with his paternal grandmother, A.R. A.B. remained with her paternal grandmother, Yo.B.

Following another hearing, C.M. was ordered to attend psychological evaluations and parenting skills training. Supervised visitation was also ordered.

On May 9, 2006, Dr. Michael J. Fiore, Ph.D. conducted a psychological evaluation of C.M. Dr. Fiore administered a Millon Clinical Multiaxial Inventory-III (MCMI-III) test to C.M., but the test was not scorable because she failed to respond to all test items. However, Dr. Fiore noted that a

concern is [C.M.]'s poor judgment with regard to men. [She] is likely to attach herself to men who serve her living situation without regard for her own safety or the safety of her children. She is capable of permitting herself to be abused and exploited by others in a pattern that repeats the abuse she experienced as a child.

He explained that C.M. is

a relatively young parent who is immature for her age and has no skills. She is reliant on others to provide her with housing and has had difficulty maintaining employment. . . . She has been having difficulty taking care of herself. She is not likely to be able to take care of her children.

 

Dr. Fiore further stated that, "[o]f concern is [C.M.]'s history of anger management difficulties. While she denied that rage and violence have been problematic for her in the recent past, this assessment yielded serious concerns about her emotional stability. [C.M.] is lacking in coping strategies to deal with the extensive emotional turmoil she experiences."

C.M. was thereafter ordered to attend a psychiatric evaluation, attend psychotherapy and comply with recommendations, engage in anger management services and independent living skills training, secure independent housing and be restrained from the home of Sandra M. C.M. also entered a stipulation admitting that she left her child alone, placing him at risk of harm.

DYFS then referred C.M. to parenting skills training at the American Red Cross and advised her that the class would start on July 12, 2006. DYFS also scheduled her for a psychiatric evaluation at the Integrative Recovery Group to take place on September 13, 2006, confirmed by a court order, which also provided that she attend parenting skills training, anger management services and independent living skills training.

Nine days later, on September 16, 2006, C.M. gave birth to Y.B.3 Y.B. was born premature, did not receive any pre-natal care and remained hospitalized in the neonatal intensive care unit because of respiratory problems. DYFS sought custody of Y.B. on September 21, 2006. The judge granted the petition and noted that,

removal of the child is necessary to avoid an ongoing risk to the life, safety or health of the child. Continuation of residence in the home would be contrary to the welfare of the child because of allegations that, C.M. left her son, M.R., age two at the time, without adequate adult supervision from approximately 10:00 p.m. to 3:30 a.m.[.] C.M. has been court ordered to attend psychotherapy but has yet to become engaged in such therapy. In addition, C.M. has not been visiting her children regularly.

 

Y.B. was discharged from the hospital and immediately placed in a foster home. She never resided with C.M. and remains in this foster home today.

C.M. completed psychiatric evaluation at the Integrative Recovery Group (IRG) with Dr. Raluca Radulescu, M.D. Dr. Radulescu concluded that C.M. did "not suffer from mental illness that currently would preclude her from having the ability to exercise a reasonable degree of parental care that is expected from the average adult" and that C.M. "does not pose any danger to her child that would stem from her psychiatric condition." But, Dr. Radulescu also noted that "the nature of [C.M.'s] personality and organization are as such that some decompensation in her mental condition is possible, which in turn may interfere with her ability to perform as a competent mother." The doctor recommended parenting classes, anger management therapy, continued medical treatment for seizures, random substance abuse screening, individual therapy and continued supervised visitations with her children.

Despite a compliance order compelling defendant to continue in the previously ordered services, in December 2006, C.M. stopped attending therapy at the IRG because she relocated to Philadelphia, PA. In February 2007 a Division caseworker visited C.M. at her home in Pennsylvania. C.M. produced a signed lease and a letter from her employer. After relocating to Pennsylvania, C.M. sought therapy in Philadelphia at Nueva Vida Behavioral Health Center. At this time, however, C.M. was not attending visitations with any consistency. She missed visits on September 20, 2006, October 4, 2006, December 29, 2006, January 9, 2007, January 23, 2007 and January 30, 2007.

However, in February 2007 C.M. again sought treatment at the IRG with Gustavo Mejia, a clinician. Mejia noted that C.M. "has demonstrated motivation towards goal achievement. This is presently eviden[ced] by the distance the client travels to attend appointments. . . . [C.M.] currently takes two busses [sic] and a train to her scheduled appointments." Mejia also concluded that C.M. appeared prepared to be reunited with her children and recommended that C.M. be considered for reunification with her children at a residence that is approved by DYFS. This recommendation was contingent on C.M. and her children participating in a weekly family therapy session with progress monitored by DYFS for six months. He also recommended that C.M. continue individual therapeutic counseling sessions.

At a compliance review held in March 2007, DYFS presented a permanency plan for C.M.'s reunification with M.R., A.B. and Y.B. The Judge granted the permanency order for reunification but delayed implementation for three months because "C.M. required additional time in services and both C.M. and her children required a transition period prior to reunification." During this time period, the Division remained concerned about C.M. s failure to attend visits. After the compliance review C.M. missed visits on March 12, 2007 and May 29, 2007. Further, in May 2007, C.M. s therapist at Nueva Vida informed DYFS that C.M. had not been regularly attending therapy and was arriving late to sessions. After a comprehensive biophysical evaluation, Nueva Vida recommended that C.M. continue with individual psychotherapy and if reunited with her children, utilize support services to enhance parenting skills.

In June 2007, Nueva Vida again relayed these concerns to the Division. C.M. was still noncompliant with therapy and med check appointments and needed individual therapy, family therapy and supportive services. Ultimately, the family was not reunified in June 2007 as originally planned.

Despite these apparent setbacks, the goal remained reunification with an objective of moving to unsupervised visits, then to overnight visits and then reunification. This was confirmed by yet another order describing a permanency plan of reunification.

The Division arranged for C.M. to have another psychological evaluation with Dr. Fiore in July 2007. After leaving in the middle of the session and missing the rescheduled appointment, she eventually met with him in July and September 2007. Dr. Fiore conducted a clinical interview, as well as a series of psychological tests and concluded that,

[C.M.] has not made sufficient progress to warrant a recommendation for overnight visits with her children. Her attendance to visits with her children and to required services has been problematic. Her mental status is unchanged, strongly indicating that she has not yet benefited from services. Continued psychotherapy and psychiatric services are recommended.

 

A third permanency order was accepted by the judge, approving the Division s plan of reunification with the goal of reunification by November 14, 2007. The judge also conducted a compliance review and ordered that C.M. attend counseling to address anger management, individual therapy and independent living skills training. He also ordered unsupervised visitation at the Division office, which could be expanded at the recommendation of a psychologist.

During an unsupervised visitation session, in October 2007, C.M. was observed to have hit M.R. on the leg. DYFS moved to have future visitations supervised. The judge granted the relief and entered an order modifying C.M. s visitation to once every two weeks, supervised, for two hours. Furthermore, the judge again ordered C.M. to attend counseling, individual therapy and independent living skills training. C.M. was also ordered to present proof of employment to the Division.

The subsequent compliance review hearing resulted in a change in the permanency plan. DYFS changed its permanency plan recommendation from reunification to termination of parental rights followed by adoption for all three children. The judge approved the plan, concluding that "it would not be safe to return the children home in the foreseeable future because C.M. had not been attending therapy on a consistent basis." The judge also noted that C.M. "had demonstrated poor parenting skills and anger management issues at a recent visit."

DYFS filed a complaint for guardianship in January 2008. The judge ordered that C.M. was to have supervised visitation every two weeks and attend a psychological bonding evaluation. Subsequent case management hearings resulted in similar orders.

During the ensuing months, various orders were entered regarding additional services, testing, a bonding evaluation and visitation. Visitation was continued but on a supervised basis only.

C.M. attended psychological and bonding evaluations. Dr. Fleming, concluding that defendant's intelligence fell in the high end of the low range, noted C.M. "is likely to have had difficulty controlling her feelings and respond with anger and frustration in situations that she perceives as threatening" and that she "is more likely to take risks that pose a danger to herself or others and less likely to attribute the consequences of her actions to her own behavior." Dr. Fleming also observed that C.M.

appears to be a fragile woman with emotional deficiencies that she has attempted to manage by avoiding them. She has periods where she is motivated and goal-directed. However, she has difficulty sustaining these periods for any significant length of time. She has been irresponsible and immature at different points in her life. . . . She appears to experience periods of depression and anxiety, as well as mood swings, poor self-esteem and poor coping skills.

Dr. Fleming also concluded that Y.B.'s foster parents are "both committed to encouraging [her] healthy growth and development and . . . take a team approach to parenting." They have "stable housing, employment and community supports, and there was no overt evidence to suggest that their psychological or emotional well-being would hinder their ability to serve as adoptive parents to [Y.B.]." He also noted that Y.B. "responds well to the direction of her foster parents and was not anxious or fearful in their presence." He explained that "after being separated from her foster parents [for the purposes of this interview] she readily sought them out and she was responded to in a positive and loving manner." Finally he noted that Y.B. "seems to have conformed to the structure that [her foster parents] have established and she appears to be flourishing in their environment." In Dr. Fleming's opinion,

it would be in [Y.B.'s] best interest to remain with her foster parents, where she can achieve permanency through adoption. The bond between [Y.B.] and her foster parents is clearly secure, positive, strong, healthy and mutual. [The foster parents] are clearly [Y.B.'s] psychological parents. They have cared for her for nearly her entire life and it is likely that [Y.B.] would suffer harm if removed from their care, particular [sic] if she were placed with someone who she was not bonded with.

 

In April 2009, C.M. was discharged from Nueva Vida. The discharge summary stated that she "did not keep her regular appointments and she abandoned her treatment and her aftercare planning form was not able to be done."

Following the guardianship trial, Judge Conte issued a written opinion wherein he concluded that DYFS had established each of the four factors under N.J.S.A. 30:4C-15.1 by clear and convincing evidence, which warranted the termination of C.M. s parental rights.

C.M. originally appealed as to the three children but filed an amended notice of appeal limiting her appeal to Y.B.

The scope of this court's review of a trial court's decision to terminate parental rights is "limited." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (citation omitted). "[B]ecause of the family court's special jurisdiction in family matters, appellate courts should grant deference to family court factfinding." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (citation omitted). This court "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." N.J. Div. of Youth & Fam. Servs. v. E.P., 196 N.J. 88, 104 (2008) (citation omitted).

"Parents have a constitutionally protected, fundamental liberty interest in raising their biological children." Matter of Adoption of A Child by W.P. and M.P., 308 N.J. Super. 376, 382 (App. Div. 1998) (citing Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982)), vacated on other grounds, 163 N.J. 158 (2000). But, these rights are not without limitation. "The State has a basic responsibility, as parens patriae, to protect children from serious physical and psychological harm, even from their parents." E.P., supra, 196 N.J. at 102 (citation omitted). When the safety and welfare of a child is jeopardized by parental abuse or neglect, the State may take the most extreme form of action, which is to completely sever the relationship between a parent and a child. Ibid. (citing N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986)).

Courts are to apply the "best interests of the child" standard in balancing a parent's constitutional protections against the State's parens patriae responsibility. Ibid. Pursuant to N.J.S.A. 30:4C-15.1(a), termination of parental rights is warranted when:

(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).]

"The four criteria enumerated in the best interests standard 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." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). Ultimately, the party seeking termination of parental rights must demonstrate by clear and convincing evidence that the "risk of 'serious and lasting [future] harm to the child' is sufficiently great as to require severance of parental ties." W.P. and M.P., supra, 308 N.J. Super. at 383 (citing In re Guardianship of J.C., 129 N.J. 1, 19 (1992)).

As to the first prong, the State must prove by clear and convincing evidence that a child's "safety, health or development has been or will continue to be endangered by the parental relationship." N.J.S.A. 30:4C-15.1(a)(1). The State need not "concentrate on a single or isolated harm or past harm as such. 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." K.H.O., supra, 161 N.J. at 348.

"The harm shown 'must be one that threatens the child's health and will likely have continuing deleterious effects on the child.'" New Jersey Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 610 (App. Div.) (citing K.H.O., supra, 161 N.J. at 352), certif. denied, 192 N.J. 68 (2007). The harm need not be inflicted by the parent personally but may arise by the parent's failure to provide a safe and stable home for the children. See New Jersey Div. of Youth & Family Services v. M.M., 189 N.J. 261, 282 (2007).

Judge Conte concluded that "[b]ased on an accumulation of harms over time, the state has met the burden of proof by clear and convincing evidence." He explained that,

The mother left the child unattended and her second child did not reside with her but with the paternal grandparents. She was found to be a neglectful and high risk parent and in need of psychotherapy, housing, and employment. She planned to give birth to her third child in another jurisdiction to avoid DYFS' jurisdiction. And she gave birth to [Y.B.] without receiving prenatal care. She rarely visited the children at the paternal grandmother's house. She missed visitations at the DYFS office in 2006 and 2007. She never had custody of the third child and has not had custody of the other two in the past three years.

Additionally, Judge Conte noted that the reports demonstrate that C.M. is likely to become a physically abusive parent if she is not already. Dr. Fiore's reports revealed issues of "anger management, depression, and impulsivity." Furthermore, a Division worker observed her strike M.R. during a visit. Finally, the judge noted that C.M.'s romantic relationships also were likely to pose a risk to her children because she "engages with men who abuse her."

Defendant argues that Judge Conte "erred in finding that Y.B.'s health and development have been or will be seriously impaired by the parental relationship . . . ." Defendant, citing G.L., supra, 191 N.J. at 608, asserts that N.J.S.A. 30:4C-15.1(a) is "conduct-based." Defendant suggests that even if C.M. intended to give birth out-of-state to avoid DYFS' jurisdiction, this is not conduct that harmed Y.B. Defendant also argues that the judge presumed that she would have abusive relationships with men in the future because she has had them in the past, but "presumptions have no place in a termination analysis." K.H.O., supra, 161 N.J. at 347.

Contrary to defendant's assertion that the only "harms" the judge considered were her plans to avoid DYFS and her poor decisions in her personal relationships, Judge Conte explained that C.M. has generated an "accumulation of harms over time." First, C.M. demonstrated poor judgment and disregard for her children's safety when she left her other child, M.R., unsupervised at night. Once M.R. and A.B. were removed from C.M.'s custody, C.M. consistently failed to attend the treatment and services that the court ordered. Harm to Y.B.'s health began before she was even born when C.M. failed to obtain prenatal care. Y.B. was born premature and underweight. After Y.B. was born, she never resided with C.M.. Three permanency hearings were held where the Division's stated goal was to reunite C.M. with her children, but C.M. was non-compliant with the services required to gain custody. Finally, C.M. did not attend visitations with the consistency necessary to warrant reunification with her children. At a visit that she did attend, she was observed hitting M.R.. We are satisfied that DYFS established the first prong by clear and convincing evidence.

The second prong of the analysis under N.J.S.A. 30:4C-15.1(a)(2) requires DYFS to prove by clear and convincing evidence that a

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.

Judge Conte concluded that "the various expert reports before the court are replete with examples of C.M.'s failure to remedy her situation." He explained,

For example, as early as May 24, 2006, C.M. was described by Dr. Fiore as 'immature, neglectful, high risk parent with significant traumatic background and ongoing symptoms of emotional disturbance.' And as recently as June 16, 2009 Dr. Fleming described C.M.'s attempts to parent her children as 'permissive' and 'undisciplined,' opining further that it 'appears that her [C.M.'s] lack of expertise parenting children and the extensive period away from her children has prevented her from more appropriately structuring her children's behavior or setting limits for them.' That same report went on to say 'she at times believes that she is capable . . . although she struggles to maintain constancy in their lives . . . she does not evidence the emotional stability necessary to safely parent three children . . . over the past three years she has not been able to significantly improve the quality of her life.' Dr. Fleming also detailed how C.M. has had constant difficulties complying with Division recommendations and court orders as evidenced by the mother's missed evaluation appointments, missed visitations, and missed counseling appointments.

 

Ultimately the judge found that "C.M.'s inability to visit her children, comply with court orders designed to make her a more fit parent, and her complete failure to make significant progress in her own life are ample and sufficient evidence of inability to correct the dangers resulting from the parental relationship."

Defendant asserts that she is both "willing and able to eliminate the harm." C.M. argues that she obtained housing and employment and attended parenting classes and therapy all with the goal of being reunited with her children. Defendant suggests that the judge views C.M.'s failure to complete further treatment as an unwillingness to eliminate the harm, but argues that if C.M. was not willing to do what was necessary to achieve reunification, she would not have participated in the services as frequently as she did.

We reject this argument. There is ample evidence in the record to support Judge Conte's conclusion that C.M. was unwilling or unable to eliminate the harm facing her children and make herself a more fit parent. Numerous orders compelled C.M. to attend various treatments. Defendant's attendance has been sporadic, and her absences from treatment are unexplained. Over the course of three years, the Division set a goal of reunification three times, but defendant was unable or unwilling to comply with the required treatments necessary to prove that she was fit to regain custody of the children. We agree with the judge that DYFS established the elements of the second prong.

N.J.S.A. 30:4C-15.1(a)(3), the third prong, requires that DYFS make "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." N.J.S.A. 30:4C-15.1c defines reasonable efforts as:

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, including, but not limited to:

 

(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.

 

The Court has held:

Reasonable efforts may include consultation with the parents, developing a plan for reunification, providing services essential to the realization of the reunification plan, informing the family of the child's progress and facilitating visitation.

 

[N.J. Div. of Youth and Family Servs. v. M.M., 189 N.J. 261, 281 (2007)].

 

The reasonableness of the Division's efforts are not measured by their success, but rather "against the standard of adequacy in light of all the circumstances of a given case." In re Guardianship of D.M.H., 161 N.J. 365, 393 (1999). The sufficiency of the Division's efforts must be evaluated on a case by case basis. Ibid. Efforts by the Division must be viewed under the circumstances of each case and viewed in light of the Division's efforts on behalf of the family "as a whole." Id. at 391.

Judge Conte concluded that "undisputed evidence shows that substantive efforts were made to help the defendant achieve rehabilitation and improvement." The Judge explained that the Division sent C.M. to the Center for Evaluation and Counseling twice. Dr. Fiore indicated that C.M. was in need of psychotherapy, anger management services and a psychiatric evaluation. DYFS sought a psychiatric evaluation and the psychiatrist recommended that C.M. continue parenting classes, anger management, medical treatment for seizures, substance abuse screenings and individual therapy. C.M. completed Essex County Parenting Skills, but discontinued her anger management treatment when she moved to Philadelphia. She was referred to a new behavioral Health Center in Philadelphia, but she was non-compliant with therapy. She also missed scheduled visitation with her children. Defendant requested bus tickets and a train pass from the Division but never provided DYFS the information necessary to obtain them. Defendant also never submitted to the urine screens ordered by the court.

Defendant acknowledges that DYFS provided services. However, she then argues that the Division required C.M. to obtain stable housing and employment but offered no services with respect to these issues. Defendant further argues that initially her children were removed from her custody because she was homeless, and if the Division had provided housing services at this juncture, then defendant's children never would have been removed.

The record does not support this argument. Defendant's children were originally removed from her custody primarily because she left one of them alone at night. DYFS also noted that defendant was also homeless and would need to find housing before reunification could occur. Then defendant did find appropriate housing in Philadelphia. Defendant's failure to comply with the various orders of the court and the resultant services mandated by these orders provide a basis for preventing reunification. DYFS clearly met its burden under this prong.

Finally, N.J.S.A. 30:4C-15.1(a)(4), mandates that DYFS establish that the termination of parental rights will not do more harm to the child than good. The inquiry "to be addressed under [this prong] is whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with [the] natural parents than from the permanent disruption of [the] relationship with [the] foster parents." K.H.O., supra, 161 N.J. at 355. The ultimate question under the fourth prong 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. It has been "suggested that [a] decision to terminate parental rights should not simply extinguish an unsuccessful parent-child relationship without making provision for . . . a more promising relationship . . . [in] the child's future.

 

[E.P., supra, 196 N.J. at 108.]

 

In K.H.O., the Court explained that, "in all our guardianship and adoption cases, the child's need for permanency and stability emerges as a central factor." K.H.O., supra, 161 N.J. at 357. The Court noted that, "the trend over the last thirty years has been toward foster care reforms that place limits on the amount of time a parent may have to correct the condition at home in anticipation of reunification." Id. at 358. Recent legislation permits termination of parental rights "where a child has been in placement for more than one year, and the family has failed to remedy the problems that cause the placement, despite the Division's diligent efforts." Ibid. Judge Conte, again noting all of the psychiatric evaluations and recommendations, concluded that C.M. has not improved her situation and after three years and three separate plans for reunification, is not yet fit for reunification with her children.

The judge concluded that these children have "developed strong and stable bonds with their caregivers." Judge Conte explained that a bonding evaluation was performed on Y.B. and her foster parents. Both parents were found to be committed to the child's healthy growth and development. They maintain stable housing, employment and community supports and are emotionally and psychologically able to serve. The judge noted that "[t]hey have cared for her for nearly her entire life and it is likely she would suffer harm if removed from their care. She has never been in her mother's physical custody and considers the current caretakers as her primary parental figures."

Defendant argues that the strong relationship Y.B. might have with her foster parents is not enough to warrant termination. She further argues that because Y.B. should never have been removed from her care in the first place, this removal is not appropriate and an appropriate transition plan should be established to help Y.B. develop a relationship with her mother with the goal of reunification.

The judge's analysis rests on far more than Y.B.'s strong relationship with her foster parents. Y.B.'s initial removal from C.M. was appropriate because C.M. had left her other child alone in the house at night. Despite having three reunification plans, defendant failed to demonstrate that she is capable of parenting Y.B. Her behavior, coupled with reports that Y.B. is well-adjusted and bonded with her foster parents, supports the judge's conclusion that there is a sufficient basis, by clear and convincing evidence, to conclude that termination would not cause Y.B. more harm than good.

Affirmed.

1 Defendant originally appealed as to all of the children but by an amended notice of appeal, appeals as to Y.B. only.

2 C.M.'s other child, A.B., was already residing with her paternal grandmother, Yo.B. at this time.

3 D.B. was named as Y.B.'s father on the birth certificate but a paternity test later revealed that A.P., who was imprisoned and not present during the guardianship trial, was actually Y.B.'s biological father. A.P. is not a party to this action.