DIVISION OF YOUTH AND FAMILY SERVICES v. R.A.A.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2656-08T42656-08T4

DIVISION OF YOUTH AND

FAMILY SERVICES,

Plaintiff-Respondent,

v.

R.A.A.,

Defendant-Appellant.

_______________________________________

IN THE MATTER OF THE

GUARDIANSHIP OF R.N.A. AND R.F.A.,

MINORS.

________________________________________________________________

 

Submitted January 26, 2010 - Decided

Before Judges Carchman and Parrillo.

On appeal from the Superior Court of New

Jersey, Chancery Division, Family Part,

Camden County, Docket No. FG-14-128-08.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Anna F. Patras,

Designated Counsel, of counsel and on

the brief).

Paula T. Dow, Acting Attorney General,

attorney for respondent (Lewis A. Scheindlin,

Assistant Attorney General, of counsel;

Lisa Godfrey, Deputy Attorney General,

on the brief).

Yvonne Smith Segars, Public Defender,

Law Guardian, attorney for minors R.N.A. and R.F.A. (Caitlin McLaughlin, Designated

Counsel, on the brief).

PER CURIAM

In this termination case, defendant R.A.A. appeals from a December 3, 2008 Family Part order terminating his parental rights to his two children, R.N.A. and R.F.A, and awarding guardianship to the Division of Youth and Family Services (DYFS) with the ultimate permanent plan to be adoption by the children's maternal grandmother. We affirm.

These are the relevant facts adduced from the record. Defendant and A.R. are the biological parents of R.N.A. and R.F.A., born April 28, 2005 and October 6, 2006, respectively. A.R. voluntarily surrendered her parental rights to these children on December 2, 2008, so they could be adopted by their maternal grandmother, L.R., and neither A.R. nor her other child, C.L., are parties to this action. DYFS first became involved in this case on June 10, 2006, when A.R. was admitted to the emergency room and had her jaw wired shut. A.R. was four months pregnant at that time but refused to press charges against defendant. The case was then closed by the Division and the police.

On October 13, 2006, DYFS received another referral, this time from the Oaklyn Police Department. The police responded to a call from defendant stating he came home at around 2:45 a.m. and discovered that R.N.A. and R.F.A., who were then eighteen-months-old and one-week-old, were supervised only by C.L., who was then twelve-years-old. A.R., who was supposed to be watching the children, had abandoned the children at home to go out and purchase illegal drugs. When the police arrived at the residence, they discovered that there was dirt all over the floor and boxes stacked in the living room. The only furniture in the living room was a mattress.

Since A.R. had "gotten into altercations with the police," defendant and A.R. believed they "had to leave Oaklyn" and took the children to Philadelphia. The Philadelphia Department of Health Services (DHS) had an open case file for A.R. because A.R. and R.F.A. tested positive for cocaine and benzodiazepines at R.F.A.'s birth.

In January 2007, the Camden County Prosecutor's Office contacted DYFS because it was unable to locate the family. When a DYFS worker contacted DHS, she was informed that DHS was unable to complete the investigation because the family had moved back to New Jersey in January 2007, and DHS had lost contact with the family.

After the family moved back to Oaklyn, DYFS received another referral from the local police, who had responded to the family's home in New Jersey and were advised by defendant that the children were back in New Jersey. A DYFS worker attempted to contact A.R. in person but was unsuccessful after two attempts. The worker received a telephone call from A.R., however, which was "very verbally hostile to [the] worker." A.R. refused to meet with the caseworker or tell DYFS where the children were.

On February 7, 2007, Judge Melendez issued an order to show cause placing C.L., R.N.A. and R.F.A. under the custody, care and supervision of DYFS. N.J.S.A. 9:6-8.21 and N.J.S.A. 30:4C-12. She determined that removal of the children was necessary to avoid an ongoing risk to the life, safety or health of the children because of 1) allegations that A.R. had a child endangerment charge pending and an open case with DHS; 2) the domestic violence issues; 3) and A.R. had a substance abuse problem.

On February 13, 2007, defendant surrendered custody of R.N.A. and R.F.A., and the children were placed into foster care. Physical examinations of the children revealed that C.L. had scabies and eczema, R.F.A. had a fever, and R.N.A. had scattered lesions due to mastocytosis, scabies and an ear infection. The children were placed with their maternal grandmother, L.R., in March 2007 with DYFS retaining legal custody. DYFS arranged for visitation for defendant and the children, but defendant did not visit the children on a consistent basis and only visited them with A.R.

Beginning in March 2007, DYFS provided services to defendant as a part of a plan for treatment to assist him with reunification with his children. Defendant's living conditions were a source of concern, as defendant's home in Philadelphia did not have a working kitchen, did not have heat, and all food was prepared on a burner plugged into the bathroom. The downstairs was filled with boxes and had no living space. Some steps to defendant's and A.R.'s upstairs were missing or broken. The house remained in this condition through December 2007, and in April 2008, a DYFS worker made arrangements with A.R. to inspect the house again, but no one was home when the DYFS worker arrived. The DYFS worker called defendant, and defendant never rescheduled an appointment with DYFS. Defendant was also still living with A.R. at this time.

Defendant was referred to a substance abuse evaluation, which he completed on March 29, 2007; a psychological evaluation, performed by Dr. Larry Seidman on June 23, 2007; anger management classes; parenting class; and individual and family therapy classes. Defendant did not attend his parenting, domestic violence and anger management therapy on a consistent basis, but defendant completed the services requested.

On April 19, 2007, however, drugs and a weapon were found in defendant's home, and defendant was charged with manufacturing a controlled dangerous substance (CDS); intentional possession of a CDS; possession of drug paraphernalia; possession of a firearm with the manufacturer's number altered; possession of an instrument of crime with intent; and altering/obliterating a mark of identification. Defendant pled guilty to the manufacturing charge and was sentenced to a period of house arrest.

As noted, defendant's psychological evaluation was performed by Dr. Larry Seidman on June 23, 2007. Dr. Seidman noted that defendant did not "present as paternally motivated or involved when discussing his children." Defendant also "indicate[d] a strong propensity toward social withdrawal and a desire to avoid responsibility." Defendant's personality test noted that he "tends to relate to others in a manipulative or exploitative fashion[,]" and he "reported some behavioral problems on the Alcohol Problems subscale." Dr. Seidman further determined that defendant "would prove resistant to both parent education and counseling intervention should the burden of raising his children fall upon him." Dr. Seidman concluded, "with a reasonable degree of psychological certainty that [defendant] does not present as capable of caring for and protecting his two toddlers and that it would not be in the children's best interests to be placed in his care without significant treatment intervention." He recommended anger management classes, parenting classes, individual and family therapy.

Defendant was referred to Velez Professional Services (Velez) for anger management and domestic violence counseling, beginning November 5 and 8, 2007, respectively. As noted, defendant did not attend therapy on a consistent basis but ultimately completed the services requested.

On June 20, 2007, following a fact-finding hearing, the Family Part found that both A.R. and defendant abused or neglected their children, in that they engaged in domestic violence in the presence of the children, A.R. and R.F.A. tested positive for drugs at R.F.A.'s birth, and the children were placed at significant risk of harm when they were left home alone.

A DYFS worker discussed "alternative permanent plans" for the children with L.R. in July 2007, and L.R. stated "she would adopt the children if [A.R.] and [defendant] cannot get them back[.]" DYFS's intent, should guardianship be awarded, was to have L.R. adopt R.F.A. and R.N.A. On December 28, 2007, a DYFS worker met with L.R. and informed her that DYFS's permanent plan for R.N.A. and R.F.A. was adoption.

At both the February 1, 2008 and February 25, 2008 hearings, the trial judge found that DYFS's plan for termination of parental rights followed by adoption was appropriate and acceptable; she determined that it is not and would not be safe to return the children home in the foreseeable future because A.R. had not completed services, defendant had pending drug charges, and neither parent had stable housing. The judge further held that DYFS had provided reasonable efforts to finalize the permanent plan, including reunification where appropriate, substance abuse and psychological evaluations, parenting time, counseling and anger management classes. DYFS was ordered to terminate parental rights no later than March 25, 2008.

On March 18, 2008, DYFS filed a verified complaint for guardianship with respect to R.N.A. and R.F.A. At the time the complaint was filed, A.R. and defendant continued to live together in their home in Philadelphia. On November 7, 2008, A.R. tested positive for cocaine and morphine in an in-court urinalysis test.

At trial, Lyanna R. Torres, a caseworker assigned to R.N.A. and R.F.A. since April 2008, indicated that A.R. preferred that her mother, L.R., adopt the children. After describing DYFS's interactions with the family and the factual history of defendant's progress, or lack thereof, during the time preceding trial, Torres noted that the Child Placement Review Board agreed with DYFS's plan that R.N.A. and R.F.A. should be adopted by L.R. On cross-examination, Torres confirmed that the children are currently "doing fairly well" with, and are "very close to their grandparents."

Dr. Vivian Rodriguez-Silverstein, a psychologist, who conducted psychological evaluations with A.R. and defendant as well as bonding evaluations with defendant and the children and the children and their grandparents, was proffered by DYFS. She first stated that defendant did not think that the counseling programs, in which he was enrolled, "related to him or his life or experience at all. That he completed it, because he was asked to do it." Defendant believed that removal of the children from his care was "an abuse of power" by the Division. Defendant did not have a specific plan as to how he would care for the children, and numerous psychological tests indicated that defendant "denied any urgency or any real significance to [A.R.]'s drug use. . . . [I]t was clear that . . . he is [in] denial in terms of the severity and the consequences of the dangers that that poses to the children."

According to the witness, defendant and A.R. have a "co-dependent relationship." Upon being asked whether she would have any concerns if A.R. was "out of the picture" and defendant raised the children by himself, Dr. Rodriguez-Silverstein responded:

I would have several concerns. Again, to what extent would [A.R.] be really completely out of the picture would be one, given the nature of their relationship.

Secondly, . . . he has not been the primary caregiver of the children. So, I have concerns of whether he's ever been really in the position of primary caregiver and whether he can, in fact, do it and what -- he has not indicated of any other plans or any other support systems that would allow him to do that.

The third question that I have again has to go to credibility issues and [defendant]'s lifestyle itself. The issue of the criminal case involving the drugs and his explanation and some of the inconsistencies in his reporting raises doubt and . . . that is another source of concern and risk for the children.

In commenting on the bonding evaluation that she performed, Dr. Rodriguez-Silverstein observed that, although the children were affectionate with defendant, the children were "confus[ed] in terms of [defendant]'s role, since [one child] called him at one point by his first name and then other times [']daddy.[']" She found this "significant," because "[m]ost children don't call their parents by their first name, they usually refer to them as daddy. And in this particular situation, . . . [i]t shows a certain confusion or possible confusion in the mind of a young child about the role of this person."

Dr. Rodriguez-Silverstein concluded that the children viewed their grandparents as their "psychological parents"; the children perceive the grandparents as "the main parental figure." The children also "have a very secure bond" with their grandparents; when the children were with their grandparents, "they weren't testing the limits as much[,] . . . they knew exactly what to do, it was . . . a smoother kind of observation in terms of . . . the children not needing necessarily many instances of direction or correction or limit setting." Dr. Rodriguez-Silverstein opined that it would cause "considerable distress" and "harm" if the children's relationship with their grandparents was to be severed; "the attachment is much more secure [with their grandparents] and they are in a stable healthy situation." The grandparents were "on top of the needs of the children, . . . each one of them as individuals[.]" In contrast, she was "not sure [defendant] would be able to provide an equally or at least acceptable level of care and security for them."

Defendant was called as a witness by DYFS. He first stated that he is currently on probation and was under house arrest until February 2009. Defendant is currently self-employed as an electrician, and, according to defendant, he no longer lives with A.R. Defendant, however, recently had lunch with her, drove her home and frequently drives with her to visit the children. He denied knowing of A.R.'s drug problem prior to R.F.A.'s birth, but conceded that he knew of A.R.'s drug problem after R.F.A.'s birth.

Defendant failed to indicate that his house was suitable for the children. He also admitted leaving the children unattended with A.R., knowing that she was addicted to drugs, because he did not think she would leave the children unattended to "go off and buy drugs[,]" and she "wasn't required to go to no program at that time[.]" Finally, defendant stated that he had "no problem" with his children being with their grandparents, and he believes that they are "well taken care of over there[.]" Defendant, however, "would rather have them home with me."

Defendant offered Dr. Ange Puig, a psychologist, as an expert. Dr. Puig's "major concern" was that defendant viewed A.R. as "an adequate parent." She stated, however, that she conduced an evaluation of defendant, and "[t]here was a clear connection and positive bonding between the two children and [defendant]." Likewise, defendant's behavior during the evaluation was "appropriate," and "he was able to set limits" with the children. The children sought his attention in a "positive way," and the children sought "nurturance" from defendant. Dr. Puig concluded that there was "a positive attachment" between defendant and the children, but was unable to compare the attachment with any other adults in the children's lives.

In his decision, Judge Fratto reviewed the factors set forth in N.J.S.A. 30:4C-15.1(a). With regard to the first factor, that the children's safety, health or development having been or will continue to be endangered by the parental relationship, he concluded:

I think it is clear and I find it clear that the child -- children's health was endangered from the time of their birth -- at least the second one, [R.F.A.]'s birth, who was positive for cocaine, and in the immediate days thereafter. [Defendant] knew, at least at that time -- and I find his testimony that he was not knowledgeable of drug use by [A.R.] prior that time not to be credible. I find, in fact, that he did know of her drug use prior to the birth of [R.F.A.].

But even after [R.F.A.]'s birth, he demonstrated a lack of interest, if you will, in the children. It was never explained where he was at 2:30 in the morning, why he left his children, both of them, with a woman who was heavily into drugs, whose child tested positive at birth. That one incident at least is only the tip of the iceberg in showing that the health and safety of the children was endangered by [defendant]'s involvement or lack of involvement with them.

With regard to the second statutory factor, that defendant is unwilling or unable to eliminate the harm, the judge concluded:

Will that continue into the future? I believe that it will. . . .

We have a man who testified under oath that he manufactured and that he distributed drugs, namely cocaine, and now today or yesterday testified under oath that that was not true. The question immediately is was he lying then or is he lying now. I believe and I find that his first statement given under oath when he was under criminal investigation and indictment was a true state of the fact -- of events and that he indeed did manufacture and did distribute illegal drugs, was aware of the use of illegal drugs by his girlfriend, the mother of the children, [A.R.], and I find that the likelihood of that situation changing to be minimal, at best.

. . . .

Also, I find that there has been no effort on his behalf to show that he has a suitable home ready for these children. The testimony from the DYFS workers was detailed as to the inhabitability of the home. The lack of heat. The lack of living accommodations in certain areas. [Defendant] comes here and asks this Court to take his word that he has changed those things. I'm unwilling to do so, given the fact that I find his credibility to be less than sterling. . . .

I also find an absence of credibility in his testimony that he had broken off his relationship with [A.R.] As has been pointed out . . . , he's had lunch with her in the past few days, he admits to driving her home. He claims he doesn't know where [s]he lives and that he drives her to his house and she gets out and walks. So, presumably, even if that is so, she lives very close by to where he is and I do not find it credible that he does not know where she lives. I do not find it credible that he terminated his relationship with the mother of his children and I find it highly likely that, in the event the children were returned to him, that [A.R.] will be back in the lives of these children and would pose a threat to them, as she has in the past, and that threat would be directly attributable to and the responsibility of [defendant].

With regard to the third statutory factor, that the Division has made reasonable efforts to provide services to help the parent, the judge found:

As to the efforts made by the Division to provide services, they have, in fact, provided a plethora of services. And [defendant], by his own admission, went to those services solely for the purpose of obtaining the certificates, so he could come into this Court and say, ["]here, I did what they wanted me to do, I satisfied the requirements.["] Well, he may have satisfied the technical requirements, but he hasn't satisfied the spiritual requirements of those services.

It is a two-way street. It is the responsibility of the Division to provide services, it is also the responsibility of the recipient to make an effort to use those services, to absorb those services, and to get something out of it. Merely going through the motions and showing up is not sufficient. So, the Division has met that burden and the defendant has failed in whatever responsibility he may have with respect to that prong.

With regard to the fourth statutory factor, that termination of parental rights will not do more harm than good, the judge found:

As to the termination of parental rights not doing more harm than good, we have the clear testimony of Dr. Rodriguez-Silverstein. And Dr. Puig indicated he did not do a comparative analysis of the relationship between [defendant] and the children and the relationship of the grandparents of the children, which is a key to this case when we're trying to determine the overarching question of what is in the best interests of the children. And it was clearly testified and I find that terminating the relationship between the children and their grandparents would do more harm than good. And in the comparative analysis, terminating the relationship with [defendant] would not do more harm than good.

. . . .

I agree with Dr. Puig and am convinced, clearly convinced that [defendant's] denial was, as the doctor puts it, blatant and that he has demonstrated a lack of judgment in his ability to protect the children from incidental risk of harm due to contact with [A.R.]

. . . .

So, even the testimony from the doctor, psychologist testifying on behalf of the defense shows that the children's safety, health and development would be endangered by the parental relationship of [defendant]. Even Dr. Puig's testimony show [sic] that [defendant] is unwilling or unable to eliminate the harm. And in the final analysis, the comparative analysis done by Dr. [Rodriguez-Silverstein] shows that, when doing such a comparison, the termination of parental rights will not do more harm than good to these children.

The judge concluded that DYFS had established its proofs by clear and convincing evidence and terminated defendant's parental rights, granting guardianship to DYFS.

This appeal followed.

On appeal, defendant asserts that DYFS failed to establish the factors enumerated in N.J.S.A. 30:4C-15.1(a), by clear and convincing evidence. He asserts that DYFS ignored him and his problems, and that he is being held responsible for DYFS's failings.

We first set forth basic principles that define the rights of the parties. Parents have protected "statutory and constitutional rights," in raising their biological children. N.J. Div. of Youth & Family Servs. v. G.M., 148 N.J. 382, 397 (2009); see also 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). These rights, however, are not absolute; "[t]he constitutional protection surrounding family rights is tempered by the State's parens patriae responsibility to protect the welfare of children." N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 484, 505 (2004) (citing In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999)). 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. Id. at 506 (citing K.H.O., supra, 161 N.J. at 347). 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." P.P., supra, 180 N.J. at 506 (citing K.H.O., supra, 161 N.J. at 348). 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; see also In re Guardianship of J.C., 129 N.J. 1, 19 (1992).

Against this basic framework, we consider the statutory elements and assess the record in this matter. With regard to the first statutory factor, N.J.S.A. 30:4C-15.1(a)(1), DYFS 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 N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 282 (2007).

With regard to the second statutory factor, N.J.S.A. 30:4C-15.1(a)(2), this inquiry is aimed at determining whether "the parent has cured and overcome the initial harm that endangered the health, safety, or welfare of the child, and is able to continue a parental relationship without recurrent harm to the child." K.H.O., supra, 161 N.J. at 348 (citations omitted). Alternatively, "it may be shown that the parent is unable to provide a safe and stable home for the child, and that the delay in securing permanency continues or adds to the child's harm." Id. at 348-49.

Defendant argues that there is no evidence linking him to the domestic violence incident wherein A.R.'s jaw had to be wired shut, claiming that the DYFS report only states that the injury was caused by her "paramour." Defendant also claims that the police reports do not document any allegations of physical abuse by defendant against A.R. or the children, and "DYFS offered no expert report or testimony claiming that these children suffered any harm, physical or emotional, as a result of the alleged domestic violence."

Defendant also claims that he is able and willing to eliminate the harm facing his children, and the trial court's concern over defendant's "lack of interest" in his children is "unsupported by the record." In support, defendant notes that he called the police when he discovered the children were left unattended in the middle of the night and participated in all services to which he was referred. According to defendant, the judge improperly placed the burden on defendant by questioning where defendant was at 2:30 a.m. when his children were left unattended. Finally, defendant claims that he only accepted a plea agreement as to his drug and weapons charges, which allowed him to work and visit his children, because if he was incarcerated, DYFS would terminate his parental rights.

DYFS and the children's Law Guardian argue, in support of termination of defendant's parental rights, that "the children's heath was endangered from the time of their birth." R.F.A. tested positive for cocaine at birth as well as the days that followed, and defendant was aware of A.R.'s drug use but did not separate the children from A.R.. Furthermore, defendant has not ceased contact with A.R., and as Dr. Rodriguez-Silverstein noted, defendant does not recognize the dangers of placing the children with a drug addict.

We conclude that DYFS has proven by clear and convincing evidence that the children's safety, health or development has been endangered by their relationship with defendant and by defendant's relationship with A.R. Most significantly, R.F.A. tested positive for cocaine at the time of his birth. K.H.O., 161 N.J. at 353. The trial judge concluded that defendant's testimony that he did not know of A.R.'s drug prior to that time was not credible, and we defer to the trial judge's determinations regarding defendant's credibility. See M.M., supra, 189 N.J. at 293. Furthermore, even though defendant concedes that he knew that A.R. had a drug problem after R.F.A.'s birth, defendant left the children unattended with A.R. because he did not think A.R. would "go off and buy drugs[,]" and she "wasn't required to go to no program at that time[.]" Defendant has failed to demonstrate any valid reason for leaving his children alone with A.R. at that time. We disagree that noting the failure to present valid reasons for leaving the children with A.R. shifts the burden to defendant; the failure to explain such conduct, which creates a negative inference, leaves such conduct, standing alone, as a critical factor in assessing defendant's parenting skills.

Defendant also consistently failed to provide a habitable and sanitary environment for his children. Defendant's New Jersey residence had dirt all over the floor, boxes stacked in the living room, and the only furniture in the living room was a mattress. Defendant's Philadelphia home was similarly unsanitary; it did not have a working kitchen, did not have heat, and all food was prepared on a burner plugged into the bathroom. The downstairs was filled with boxes and had no living space, and some steps to the upstairs were either missing or broken. Although not addressed by the trial judge, the children's medical condition when removed from defendant's care reflected their unsanitary environment; one child had a fever, and the other was suffering from scattered lesions due to mastocytosis, scabies and an ear infection.

Defendant has also been unwilling or unable to eliminate the harm facing his children. The judge appropriately concluded that defendant's relationship with A.R. continues to endanger the children, and defendant's statements that he ceased his relationship with A.R. and does not know where she lives were not credible. Defendant still associates with A.R., frequently drove with her to visit their children and ate lunch with her around the time of the trial. A.R. also lives near defendant in Philadelphia.

Defendant "denied any urgency or any real significance to [A.R.]'s drug use[,]" and defendant "is [in] denial in terms of the severity and the consequences of the dangers that that poses to the children." Dr. Rodriguez-Silverstein found defendant and A.R. have a "co-dependent relationship," which allows A.R. to continue her pattern of addiction and engage in dangerous behaviors with the children. She also doubted, given the nature of defendant's and A.R.'s relationship, whether A.R. could "be really completely out of the picture." Even Dr. Puig, defendant's own witness, stated defendant viewed A.R. as "an adequate parent." The judge rightly found that it was "highly likely that, in the event the children were returned to him, that [A.R.] will be back in the lives of these children and would pose a threat to them, as she has in the past[.]"

Even if A.R. was "out of the picture," defendant has not demonstrated that he would be willing or able to eliminate the harm facing the children. Defendant offered no proof, other than his own testimony, that he has improved the living conditions in his home; considering that defendant's credibility was "less than sterling," this is insufficient.

Dr. Rodriguez-Silverstein also stated that she has "concerns of whether he's ever been really in the position of primary caregiver[,]" and defendant "has not indicated of any other plans or any other support systems that would allow him to do that."

Furthermore, separating the children from their grandparents may "cause serious and enduring emotional or psychological harm" to the children. N.J.S.A. 30:4C-15.1(a)(2). Dr. Rodriguez-Silverstein testified that the children view their grandparents as their "psychological parents," "the main parental figure." The children also "have a very secure bond" with their grandparents, and it would cause "considerable distress" and "harm" if the children's relationship with their grandparents was to be severed.

We are satisfied that DYFS demonstrated by clear and convincing evidence that the children'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), and defendant is unwilling or unable to eliminate the harm facing the children. N.J.S.A. 30:4C-15.1(a)(2).

We reach the same result regarding the two remaining prongs. The third statutory factor inquires whether DYFS "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." N.J.S.A. 30:4C-15.1(a)(3). "Reasonable attempts" under the statute include, but are 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.

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

"Whether particular services are necessary in order to comply with the diligent efforts requirement must . . . be decided with reference to the circumstances of the individual case before the court, including the parent's active participation in the reunification effort." In re Guardianship of D.M.H., 161 N.J. 365, 390 (1999) (emphasis added).

Defendant argues that the trial judge erred in finding that DYFS made reasonable efforts to provide defendant with services. He claims that DYFS did not offer any assistance in obtaining repairs to his home, and the caseworker never rescheduled an appointment to see if repairs had been made to defendant's home. Furthermore, defendant alleges that the judge overlooked the records from his treatment, which, according to defendant, "indicate that he was actively engaged in the services, motivated and could demonstrate learned skills in sessions." Defendant also argues that DYFS made no attempt to contact defendant for the eight months leading up to the trial and made no effort to find defendant's phone number.

The trial judge correctly determined that DYFS made reasonable efforts to provide services to defendant. Defendant was offered numerous services through DYFS, including a substance abuse evaluation, a psychological examination, anger management classes, parenting classes, individual therapy and group therapy. Defendant did not attend his parenting, domestic violence and anger management therapy on a consistent basis, but defendant completed the services requested. Dr. Rodriguez-Silverstein noted, however, that defendant did not believe that the counseling programs "related to him or his life or experience," and he only completed the programs "because he was asked to do it." Defendant also received visitation rights, but did not regularly attend and would only visit his children with A.R.

Defendant made no effort to contact DYFS with regard to improving his home. The case worker attempted to survey defendant's home to see if repairs were made, but no one was home. The case worker contacted defendant on his cell phone regarding this issue, but defendant never rescheduled an appointment.

As Judge Fratto correctly noted, this third statutory factor is a "two-way street." DYFS made services available to defendant "to help the [defendant] correct the circumstances which led to the child[ren]'s placement outside the home." N.J.S.A. 30:4C-15.1(a)(3). Defendant, however, did not participate on a consistent basis, and rather than "get something out of" these services, defendant was "[m]erely going through the motions." The judge correctly determined that defendant "may have satisfied the technical requirements, but he hasn't satisfied the spiritual requirements of those services."

He further claims that the trial judge erred by failing to consider the possibility of kinship legal guardianship (KLG). N.J.S.A. 3B:12A-1 to -7. According to defendant, KLG "was not suggested or recommended by DYFS, nor was it considered by the court in its decision to terminate parental rights as to" defendant's children.

KLG is not an option for defendant's children. KLG is available when "relatives, including grandparents, find themselves providing care on a long-term basis to . . . children without court approved legal guardianship status because the caregivers either are unable or unwilling to seek termination of the legal relationships between the birth parent and the child . . . ." N.J.S.A. 3B:12A-1(b). A court shall appoint a KLG if, based on clear and convincing evidence, the court finds:

(1) each parent's incapacity is of such a serious nature as to demonstrate that the parents are unable, unavailable or unwilling to perform the regular and expected functions of care and support of the child;

(2) the parents' inability to perform those functions is unlikely to change in the foreseeable future;

(3) in cases in which the division is involved with the child . . .

(a) the division exercised reasonable efforts to reunify the child with the birth parents and these reunification efforts have proven unsuccessful or unnecessary; and

(b) adoption of the child is neither feasible nor likely; and

(4) awarding kinship legal guardianship is in the child's best interests.

[N.J.S.A. 3B:12A-6(d) (emphasis added).]

Accordingly, "when the permanency provided by adoption is available, kinship legal guardianship cannot be used as a defense to termination of parental rights under N.J.S.A. 30:4C-15.1a(3)." P.P., supra, 180 N.J. at 513. Here, L.R. has been committed to adopting R.N.A. and R.F.A. and is "in agreement with the Division's plan;" for this reason, KLG is not an alternative to termination of defendant's parental rights.

Under the fourth statutory factor, DYFS must establish that the "[t]ermination of parental right will not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4). This inquiry "necessarily requires expert inquiry specifically directed to the strength of each relationship." K.H.O., 161 N.J. at 355 (citation omitted). "The question to be addressed under that prong is whether, after considering and balancing the two relationships, the child will 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. To make that determination, there are "very few scenarios in which comparative evaluations would not be required." N.J. Div. of Youth And Family Servs. v. A.R., 405 N.J. Super. 418, 440 (App. Div. 2009).

We must also, however, be "cognizant of New Jersey's strong public policy in favor of permanency. 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. When termination of parental rights is appropriate, we must not delay permanent resolution. See In re Guardianship of A.R.G., 318 N.J. Super. 323, 330 (App. Div.), certif. denied, 162 N.J. 127 (1999).

Defendant claims that DYFS has not met its burden in because DYFS has only proven that the grandparents would provide a "better" home than defendant. Defendant also asserts that "only in extreme circumstances should external relationships be taken into account," and the judge overlooked the possibility that A.R. could continue to visit the children while they were living with their grandparents.

Judge Fratto correctly determined that termination of parental rights would not do more harm than good. As we noted, Dr. Rodriguez-Silverstein, who performed a comparative evaluation of the children and the grandparents and the children and defendant, concluded that the children knew defendant but were confused with regard to defendant's role with them. The children sometimes called him by his first name, and other times the children called him "daddy." It would cause "considerable distress" and "harm" if the children's relationship with their grandparents was to be severed. The children view the grandparents as their "psychological parents," and when the children were around their grandparents, they were not testing the limits and did not require a great deal of direction or correction.

The children's attachment with their grandparents is "much more secure" than their attachment with defendant, and Dr. Rodriguez-Silverstein concluded that the children will not "suffer irreparable damage if they were not returned to [defendant]." By contrast, there would be "much more danger" if the children were separated from their grandparents because "they are in a stable, healthy situation."

As noted, defendant has not been able to provide an acceptable level of care and security for the children, and even his own witness, who did not perform a comparative analysis of the children and defendant and the children and their grandparents, concluded that there was a "major concern" that defendant viewed A.R. as "an adequate parent." Defendant also had no preparation or plan in terms of the welfare of his children or how he would provide for them in the event that his children were returned to him.

The grandparents, by contrast, were "on top of the needs of the children." The grandparents addressed the children as individuals, whereas defendant has not. Moreover, the children and their grandparents have been living together since March 2007 and have a "very loving relationship."

We are satisfied that the judge correctly concluded that terminating defendant's parental rights would not do more harm than good.

Our review of a trial court's decision to terminate parental rights is "limited." In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). We will uphold the factual findings supporting the trial judge's decision so long as they are "supported by 'adequate, substantial and credible evidence' on the record." M.M., supra, 189 N.J. at 279 (citation omitted). A trial judge has had the opportunity to "make first-hand credibility judgments" and develop a "'feel of the case' that can never be realized by a review of the cold record." G.M., supra, 198 N.J. at 396 (citations omitted). For this reason, "[w]hen the credibility of witnesses is an important factor, the trial court's conclusions must be given great weight and must be accepted by the appellate court unless clearly lacking in reasonable support." N.J. Div. of Youth and Family Servs. v. F.M., 375 N.J. Super. 235, 259 (App. Div. 2005) (citing D.M.H., supra, 161 N.J. at 382).

Ultimately, we "will not disturb the family court's decision to terminate parental rights when there is substantial credible evidence in the record to support the court's findings." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (citing J.N.H., supra, 172 N.J. at 472). We will reject such findings only when they are "so 'clearly mistaken' or 'wide of the mark'" that we must intervene "to ensure that there is not a denial of justice." Ibid. (quoting N.J. Div of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007)).

Our review of this record leads us to conclude that Judge Fratto's findings were well-supported by the record, and the conclusions that he drew therefrom were appropriate. We perceive of no basis for our intervention.

 
Affirmed.

As a result of this incident, A.R. was charged with endangering the welfare of a child, N.J.S.A. 2C:24-4(a); on October 10, 2007, she pled guilty to a charge of cruelty and neglect of a child, N.J.S.A. 9:6-1, and was sentenced to 12 months' probation. A.R. also has a prior history of charges of disorderly conduct, simple assault, resisting arrest, giving false information, shoplifting, aggravated assault and causing bodily injury to another with a deadly weapon.

Mastocytosis is a "disease of unknown cause marked by an excessive accumulation of mast cells in various tissues and organs of the body." J.E. Schmidt, Attorneys' Dictionary of Medicine M-59 (2005).

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RECORD IMPOUNDED

March 5, 2010