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

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3786-08T43786-08T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

S.R.,

Defendant-Appellant.

__________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF A.R., a minor.

__________________________________

 

Submitted December 15, 2009 - Decided

Before Judges Carchman and Parrillo.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FG-16-93-08.

Yvonne Smith Segars, Public Defender, attorney for appellant (Mary Potter, Designated Counsel, on the brief).

Anne Milgram, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Yudelka R. Felipe, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minor A.R. (Nancy E. Scott, Assistant Deputy Public Defender, on the brief).

PER CURIAM

In this parental termination case, defendant S.R., the biological mother, appeals from a judgment of guardianship terminating her parental rights to her three-year-old daughter, A.R. She contends that the New Jersey Division of Youth and Family Services (DYFS) failed to establish that termination of her parental rights was in the best interests of A.R. We disagree and affirm for the following reasons.

A.R., a medically fragile child, was born on October 26, 2006, to then nineteen-year-old, S.R., who has limited cognitive abilities, and is dependent on her own mother, A.R.'s maternal grandmother, G.V. A.R. was born with DiGeorge Syndrome, a congenital disease with serious symptoms, including trouble swallowing, which requires placement of a "G-tube" in A.R.'s stomach, heart problems that initially required A.R. to take Lasix and Digoxin, hypoplasia of the optic nerve causing ongoing visual problems, hearing difficulties in A.R.'s right ear, and immune system deficiencies. A.R. also suffers from asthma.

Because of her fragile medical condition, A.R. remained in the hospital for about five months after her birth. On December 21, 2006, less than two months after A.R.'s birth, S.R. commenced training with hospital staff to learn the specialized care methods necessary to properly treat A.R.'s medical issues. The training, however, went "terribly," due to S.R.'s limited cognitive abilities, which prevented her from being able to grasp and retain much of the information imparted to her, coupled with G.V.'s volatile temperament and constant interference with her daughter's attempts at training. For instance, it was reported that S.R. and G.V. often missed appointments and only stayed for an hour when they chose to attend. Hospital staff also requested S.R. attend several overnight sessions with A.R. so that she could better understand the child's sleep and feeding patterns; however, S.R. refused to attend some of these sessions.

Of particular concern was S.R.'s inability to administer A.R.'s medication. Digoxin is a very powerful medication that if "given incorrectly . . . can kill the baby within half an hour." S.R. was unable to check the baby's pulse or administer a proper dosage of the medication to A.R. Especially disconcerting, S.R. was supposedly unable to tell the assisting nurse whether the number twenty-three was smaller than the number forty-seven and, furthermore, to distinguish between 0.5 ml and 1.0 ml when administering A.R's medication. According to a DYFS social worker, S.R. could not "grasp simple, yet critical procedures for the care of . . . [A.R.]," such as putting clothing on the child.

Compounding the matter was G.V.'s emotional nature. She consistently obstructed S.R. from completing her training and exhibited extremely volatile behavior. On one occasion, G.V., while yelling, threw a diaper and baby clothes in the direction of a nurse at the hospital. On another occasion, when a DYFS social worker visited S.R. at G.V.'s home on February 13, 2007, G.V. became upset and started cursing in Spanish, refusing to leave S.R. alone with the social worker, and paced the room while yelling. G.V. eventually positioned herself close to the social worker's face and said she needed no help.

Two days after this incident, on February 15, 2007, G.V. arrived at the hospital "screaming and yelling," claiming that DYFS had kidnapped her daughter. G.V. was eventually banned from visiting A.R. at the hospital, and later prohibited from visiting A.R. at the foster mother's home, where the infant was placed when she was five months old. In yet another incident, G.V. went to a DYFS office and accused the agency of taking S.R. and A.R.; threatened to sue both DYFS and the hospital; and claimed that A.R.'s medical problems were minimal, insisting: "[my] granddaughter [is] perfectly fine and the Division is crazy." Moreover, according to S.R., her mother is physically and verbally abusive to her, and is also rough when handling A.R. Additionally, G.V. refused to complete a court-ordered psychological evaluation.

Two days after the last hospital incident, on February 16, 2007, DYFS filed a verified complaint for custody, care, and supervision of A.R. That same day, DYFS was awarded custody of A.R. and S.R. was ordered to undergo a psychological examination and to follow DYFS recommendations. In her March 30, 2007 evaluation report, Dr. Margaret Doherty Delong concluded that:

[S.R.] demonstrated significant problems in cognitive functioning and self-sufficiency that would interfere with her ability to parent. . . .

Regarding parenting, [S.R.] appears to be lacking in skills. However, this was difficulty [sic] to assess due to her cognitive problems. She did not appear to have a clear idea about discipline practices or what her child needs from her.

[S.R.] does not appear capable of meeting her daughter's complex medical needs. . . .

. . . Despite her acknowledgment of her limitations, [S.R.] also has narcissistic personality traits that interfere with her ability to acknowledge the negative impact of her limitations on her daughter.

[S.R.] demonstrated a disturbance in thinking. This is likely related to her low cognitive functioning. She does not appear to fully understand what is happening in her current situation. . . . She also has demonstrated paranoid and delusional thinking on the MCMI-III. . . . Regarding delusional thinking, she indicated that for years, many people have been spying into her private life, and that people are trying to make her think that she is crazy.

[S.R.] lacks social support. . . . She does not have the support of family, and her relationship with her mother is troublesome. . . .

[S.R.] does not appear to be an appropriate caregiver for her daughter, despite her desire to do so. . . . Her prognosis for improving sufficiently within the foreseeable future to be able to provide minimally adequate parenting is guarded at best. . . .

Pursuant to an April 16, 2007 court order, S.R. was also evaluated twice by Dr. James F. Battaglia. From the neuro-developmental examination administered on June 5, 2007, Dr. Battaglia concluded:

Although there was some variability, most of [S.R.'s] intellectual skills are far below expectations and within the Mentally Deficient range. . . .

. . . For example, she cannot be expected to retain information she has learned and her reasoning skills are like that of a young child. She is easily confused and cannot anticipate the consequences of her actions. She is best when she is involved in rote tasks or tasks that have been over learned. . . . It is within reasonable psychological certainty that I conclude [S.R] is a young woman with significantly compromised intellectual functioning who cannot meet the demands of caring for her daughter alone. She needs significant assistance.

As a result of this initial evaluation, Dr. Battaglia opined that S.R. "wasn't able to care for her child in the way that would keep the child safe because of her intellectual limitations." He further explained that there likely were no services that the State could provide to help S.R. overcome her intellectual limitations to the degree needed to raise a medically fragile child.

Following his October 21, 2008 psychological examination of S.R., Dr. Battaglia once again concluded that S.R. "would not be able to safely parent [A.R.]" and live independently:

[S.R.] is incapable of caring for her daughter. (She may even be incapable of taking care of herself.) Further, she does not have a healthy support system in her family to help guide her or co-parent with her. The domestic violence with her most recent paramour suggests she is unable to keep herself out of harm's way. It is not likely she will be any better at protecting her developmentally compromised daughter. Therefore, sadly, it is with reasonable psychological certainty that I conclude that [S.R.] is unable to provide [A.R.] with a minimal level of care to protect her from harm.

Thereafter, Dr. Battaglia also performed a bonding evaluation, wherein he found, to a reasonable psychological certainty, that "little bonding has developed between" S.R. and A.R. In contrast, as between A.R. and her foster mother, Dr. Battaglia found a "solid" and "healthy" bond, and that "there would be lasting psychological damage if that bond was broken or changed."

[The foster mother] provided [A.R.] with the appropriate amount of nurturing, protection, stability, and guidance required for all children. It is with reasonable psychological certainty that I conclude the attachment between [the foster mother] and [A.R] is a solid and healthy one. Given that [the foster mother] is the only consistent mother figure [A.R.] has had, it is important that this relationship be preserved. Disruption of this relationship, e.g., removing [A.R.] from [the foster mother's] care, would negatively affect [A.R.'s] emotional development and well-being.

The foster mother, C.R., had earlier been recruited and trained by DYFS on how to properly care for A.R., which consisted of four sessions of at least six hours each day. Moreover, as a foster parent for medically fragile children, C.R. has to undergo twenty-two hours a year in training and remain CPR-certified.

DYFS placed A.R. in C.R.'s care on April 3, 2007. Since then, in July 2007, A.R. underwent heart surgery. Although her heart defects have been surgically repaired, the potential for congestive heart failure remains, and A.R. requires a dose of Lasix if she presents signs of heart failure, such as unusual fatigue, edema, a cough, and subtle color changes. Additionally, A.R. still shows "global developmental delays" requiring "intensive therapy" in such areas as "gross motor, speech, swallow, developmental, [and] fine motor[] because she's delayed on all those aspects." Also, at time of the guardianship trial, A.R. could only swallow "[v]ery small amounts" of food on her own, and she needed the food to have a "honey or nectar consistency" such that it took A.R. "almost all day to take four ounces of this thickened fluid. So most of the time she has to be supplemented through the G-tube."

Explaining A.R.'s current medical condition, C.R. said that

nurses help care for A.R. during the week, one nurse for eight hours per day Monday through Friday. As for A.R.'s current medication,

[s]he's on as needed with the Lasix[,] not with the Digoxin. She doesn't need the Pepcid. Now she is on Albuterol for her lungs. It's a nebulizer treatment as needed. When she gets wheezy we have to give her nebulizer treatments every four hours around the clock.

C.R. acknowledged that A.R.'s heart condition has improved and Lasix is needed only when A.R. is showing signs of edema. Also, while A.R. can eat anything, so long as it is cut in small pieces, and can drink nectar-like formula, A.R. still requires feedings through her G-tube. According to C.R., although A.R. has improved steadily since her heart surgery,

she gets sick very easy. A normal cold for her would - - she gets sick and we have to do the continuous feeds. See she's on three feeds a day and that takes a half hour each feed. When she's sick she starts refluxing, gagging, and you have to stop the feed and do a little at a time and that's for 24/7. She has to have it even when she's sleeping, when she's awake. She does not move when she's sick. She sits on your lap or sits in the high chair and she's like a wet washcloth.

Additionally, A.R. requires "[p]hysical therapy, occupational, and speech therapy."

C.R.'s observations were largely corroborated by Nurse Practitioner Cathy Courain, the clinical nurse coordinator for the North Passaic DYFS office. Courain listed A.R.'s medical problems in some detail and addressed the nursing care provided to C.R.:

[A.R.] needed [a] one-on-one care giver at all times because of her . . . multiple problems. And she needed skilled nursing because of the GT placement. And initially because of her cardiac lesions. And the foster mother is also a foster mother to other children. So that if those other children needed to go to the doctor or there were some kind of emergency she needed more than one person in the house. [A.R.] required one-on-one care so we did that as a precautionary you know just to give her the assistance because she required skilled nursing.

At the time of A.R.'s placement in foster care, DYFS attempted to contact S.R. on April 2, 2007, but S.R.'s phone was disconnected. S.R. again went missing, not alerting DYFS or her mother of her whereabouts until April 13, 2007, when she contacted DYFS and asked about A.R.'s location. On April 16, 2007, after lying about staying at her cousin's house, S.R. admitted that she had been in Jersey City with her new boyfriend. On April 27, 2007, S.R. told DYFS that she would be staying with her aunt until she could move into an apartment with her boyfriend, that she was job hunting, and that she would like to see A.R.

On August 27, 2007, G.V. again reported S.R. missing, not having seen nor heard from her daughter in a week. When she demanded from DYFS the address of S.R.'s new boyfriend, the agency declined, citing privacy concerns. Thereafter, on November 5, 2007, S.R. advised DYFS that she had a restraining order against her current boyfriend, although DYFS later learned that she was continuing to see her abuser.

In addition to its efforts at sending S.R. to parenting skills classes, facilitating visitation with A.R. at the foster home, coordinating S.R.'s psychological, intellectual and bonding evaluations, and investigating family members to whom primary care-giving responsibilities could be entrusted, DYFS also attempted to provide S.R. with assistance from various State agencies. For instance, on October 2, 2007, DYFS contacted a welfare office to inquire about applying for general assistance for S.R., but S.R. failed to attend a scheduled meeting on October 11, 2007. After DYFS referred S.R. to the Division of Developmental Disabilities (DDD) for services, S.R. failed to attend the DDD intake appointments, and failed to respond to a letter from DDD that instructed her to contact them within thirty days if she remained interested in their services.

On January 4, 2008, S.R.'s aunt informed DYFS that S.R. and G.V.'s living arrangements were in a constant state of flux, that the pair "bounces from home to home . . . from relative to relative." According to the aunt, S.R. "still see's her ex[,]" and had been picked up by the Paterson Police the night before after her "ex" left her in the street.

On January 24, 2008, S.R. waived her right to a fact-finding hearing, and stipulated that she "was incapable of learning and retaining the education and skills necessary to care for her medically fragile child, although [S.R.] made numerous attempts to complete the training to care for [A.R.], she was unable" to successfully understand the concepts. Consequently, the Family Part judge issued a permanency order in which he found that DYFS' permanency plan (termination of S.R.'s parental rights followed by adoption) was appropriate since "[S.R] has cognitive limitations that render her unable to care for her medically fragile child." The order listed some of the "reasonable efforts" undertaken by DYFS to finalize the plan, including psychiatric evaluations, visitation, counseling, DDD referral, etc.

Moreover, on April 30, 2008, C.R., the foster mother, advised DYFS that S.R. had asked her to adopt A.R. if S.R.'s sister was unable to, and that S.R. stated to C.R. that "I know [A.R.] loves you and I feel that you would be the best one to take care of her." On June 16, 2008, prior to a scheduled court hearing, S.R. met with a DYFS case worker and acknowledged that she would be unable to properly care for A.R.

Meanwhile, on April 3, 2008, DYFS filed its complaint for guardianship, seeking termination of S.R.'s parental rights, and a commitment of A.R. to DYFS guardianship. At the close of evidence, the judge issued a written decision finding, in part, that S.R. "continues to reside with her mother as a child. Her mother makes all her decisions and controls her in all respects. [S.R.] is not able to disassociate herself from her mother's control and remains entirely dependent upon her mother." Concluding that DYFS "demonstrated by clear and convincing evidence satisfaction of the four prong test set forth in N.J.S.A. 30:4c-15.1[,]" the judge terminated S.R.'s parental rights.

Specifically, as to the first prong, the judge found:

[S.R.] has not disputed the significant medical challenges of the child, she has not disputed the cognitive deficiencies described by the experts nor has she disputed the fact that she would need a full time primary medical caretaker if the child were to be placed in her custody. Thus, she admits she is unable to protect the child from the risk of substantial harm.

As to the second prong, the judge concluded:

[S.R.'s] permanent cognitive deficiencies, which place her in the mild retarded range, when combined with the serious medical conditions faced by the child, which the defendant has been unable to address and will never be able to address, lead to the inevitable conclusion that she cannot fulfill the role of primary custodial caretaker. This conclusion is further buttressed by the fact that the defendant's life history to date has been one of child-like dependency upon her mother for all her needs.

Additionally, the judge found that S.R.'s inability to care for her daughter since the child's birth, S.R.'s irregular attendance at scheduled visitations with A.R., and G.V.'s interference with her daughter's attempts to grow closer to her child, has resulted in A.R. developing a significant attachment to her foster mother. The judge thus found that any further delay in placement would interfere with A.R.'s bonding with her foster mother, and cause the child harm.

On the third prong, the judge discussed agency efforts to assist S.R., including medical training at the hospital, psychological evaluations of S.R., attempts at involving S.R.'s mother in both training and visitation, and attempts to enroll S.R. in parenting skills classes and programs offered by DDD. Additionally, in search of an alternative to terminating S.R.'s parental rights, the judge discussed how DYFS engaged in efforts to place A.R. with S.R.'s relatives and with the child's paternal grandparents. The judge concluded that all of these reasonable efforts at assisting S.R. failed because of S.R.'s cognitive limitations, her mother's interference, and the extended family's refusal to become involved with the child. The judge therefore concluded that "[t]ermination of parental rights and placement for adoption in a home where the child would achieve permanency in a positive emotional environment where her special medical needs will be met will be in the best interests of the child."

Lastly, concerning the fourth prong, the judge relied, in part, on Dr. Battaglia's bonding report, which found that A.R.'s bond with S.R. was tenuous and that A.R. would suffer no harm from the termination of S.R.'s parental rights. The judge agreed, finding that "[t]he child has never been in the care and custody of [S.R.] and the visitation has been insufficient to develop a relationship . . . ." In contrast, the child has bonded with her foster mother.

On appeal, S.R. raises the following issues:

I. DYFS FAILED TO ESTABLISH BY CLEAR AND CONVINCING EVIDENCE THAT IT IS NECESSARY TO TERMINATE S.R.'S PARENTAL RIGHTS IN ORDER TO PROTECT HER DAUGHTER'S BEST INTERESTS.

A. A.R.'s Safety, Health and Welfare Have Not Been Endangered by Her Relationship With Her Mother, Nor Will the Continuation of the Relationship Endanger Her.

B. S.R. Is Willing and Able to Eliminate the Harm Facing Her Daughter and Is Able and Willing to Provide a Safe and Stable Home for Her.

C. DYFS Failed to Make Reasonable Efforts to Provide Services to Help S.R. Correct the Circumstances Which Led to Her Daughter's Placement Outside the Home.

D. Termination Will Do More Harm Than Good.

In balancing parental rights against the State's interest in the welfare of children, we place a heavy burden on the State to show that termination of parental rights is in the best interests of the child, which is achieved through the "best interests" standard. In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). This standard provides that parental rights may be terminated upon a showing, by clear and convincing evidence, N.J. Div. of Youth and Family Servs. v. M.M., 189 N.J. 261, 280 (2007), that:

(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;

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

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

These four factors are not "discrete," but rather "relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." K.H.O., supra, 161 N.J. at 348.

Critical in determining the child's best interests is "parental fitness." Ibid. This determination is "'extremely fact sensitive'" and requires "particularized evidence that address the specific circumstances in the given case." Ibid. (quoting In re Adoption of Children by L.A.S., 139 N.J. 127, 139 (1993)); see also M.M., supra, 189 N.J. at 280. A showing of bad faith or evil motive on the part of the parent is not required, as "'[t]he fact that the parents may be morally blameless in this unfortunate situation is not conclusive on the issue of permanent custody. . . . N.J.S.A. 30:4C-15(c) speaks to the 'best interests of any child,' not the presence or absence of culpable fault on the parents' part.'" N.J. Div. of Youth and Family Servs. v. A.G., 344 N.J. Super. 418, 439 (App. Div. 2001) (quoting In re Guardianship of R.G. & F., 155 N.J. Super. 186, 194-95 (App. Div. 1977)), certif. denied, 171 N.J. 44 (2002).

In assessing whether a parent can substantially perform customary parental functions, "[t]he mental illness of a parent which affects [his or her] ability to carry out [his or her] parental responsibilities can be a basis for termination of parental rights." In re Guardianship of D.N., 190 N.J. Super. 648, 652 (J. & D.R. Ct. 1983) (citing R.G. & F., supra, 155 N.J. Super. at 186 (where the parents' mental illnesses prevented them from being able to adequately care for and raise their children, even though no physical abuse or neglect was asserted)) (holding that where mentally disabled parents were unable to care for their child's needs without constant supervision from DYFS, sufficient grounds for termination of their parental rights were established); see A.G., supra, 344 N.J. Super. at 440-41 (holding that although the parents, who suffered from mental disorders, were well-meaning, no treatment could assist them "in becoming better parents, because they lack the necessary insight and skill").

Moreover, N.J.S.A. 30:4C-15(d) permits DYFS to seek termination of parental rights when

it appears that a parent or guardian of a child . . . has failed for a period of one year to remove the circumstances or conditions that led to the removal or placement of the child, although physically and financially able to do so, notwithstanding the division's reasonable efforts to assist the parent or guardian in remedying the conditions[.]

"Appellate 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 not disturb the family court's decision to terminate parental rights when there is substantial credible evidence in the record to support the court's findings. Ibid. Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, [we] should accord deference to family court factfinding." Cesare v. Cesare, 154 N.J. 394, 413 (1998).

Governed by these principles, we are satisfied that the trial judge properly concluded that DYFS established by clear and convincing evidence all four prongs of the "best interests" test. We therefore affirm substantially for the reasons stated by Judge Sabbath in his comprehensive written decision of February 25, 2009. We add only the following comments.

With respect to the first and second elements of the best interests standard, N.J.S.A. 30:4C-15.1a(1) and (2), the alleged injury need not be physical. In re Guardianship of K.L.F., 129 N.J. 32, 44 (1992). "Serious and lasting emotional or psychological harm to children as the result of the action or inaction of their biological parents can constitute injury sufficient to authorize the termination of parental rights." Ibid. "'[H]arms attributable to the biological parent include the prolonged inattention to a child's needs, which encourages the development of a stronger, 'bonding relationship' to foster parents,' which if severed could cause the child profound harm." K.H.O., supra, 161 N.J. at 352 (quoting N.J. Div. of Youth and Family Servs. v. B.G.S., 291 N.J. Super. 582, 592 (App. Div. 1996)). Furthermore, a parent's "inability to take custody of and care for her child and to provide a safe and stable home at any time since the child's birth . . . demonstrates parental unfitness and constitutes a continuing harm to the child under N.J.S.A. 30:4C-15.1(a)(2)." Id. at 353-54.

In assessing whether the parent is able to eliminate the harm to her child and whether a delay in permanent placement will add to that home, a court

should not look at the parents to determine whether they are themselves unfit or whether they are the victims of social circumstances beyond their control; it should only determine whether it is reasonably foreseeable that the parents can cease to inflict harm upon the children entrusted to their care. No more and no less is required of them than that they will not place their children in substantial jeopardy to physical or mental health.

[A.W., supra, 103 N.J. at 607.]

As to this element, the Court in K.H.O., supra, found that:

[the] 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. Alternatively, under this second criterion, 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.

[161 N.J. at 348-49 (internal citations omitted).]

Here, there was ample evidence that S.R.'s limited cognitive abilities and unstable home environment present a risk of harm to her medically fragile child that "threatens the child's health and will likely have continuing deleterious effects on the child." K.H.O., supra, 161 N.J. at 352. Although A.R. has improved since she first left the hospital, due in part to her successful open heart surgery, she remains a fragile child who is at risk for congestive heart failure, suffers from "global developmental delays," asthma, vision problems, severe trouble swallowing, and is required to utilize a G-tube. S.R., on the other hand, operates intellectually at the level of a seven-to-nine-year old, and herself recognizes that she cannot care for her daughter's medical needs. Moreover, S.R. has an unpredictable home environment, dominated by an emotionally volatile mother, and a long-term lack of gainful employment.

The evidence also demonstrate that these circumstances are unlikely to change and that S.R. is unable to eliminate the harm facing A.R. S.R.'s limited cognitive functioning is a permanent condition. Indeed, Dr. Battaglia found that further parental skills training and medical training would be fruitless, as S.R. is simply unable to grasp and retain even the most basic concepts. Dr. Delong concurred that S.R. would likely not benefit from additional training or services. Moreover, S.R.'s unstable domestic situation involving frequent moves between the homes of her relatives and boyfriend, her dependence on an emotionally volatile mother who was uncooperative with DYFS, and her inability to procure gainful employment persist to date and are persuasive proof that S.R. continues to be unable to provide a safe and stable home for A.R.

Furthermore, delaying A.R.'s permanent placement with her foster mother would only exacerbate the harm already suffered by the child. On this score, Dr. Battaglia found that separating A.R. from her foster mother would "negatively affect [A.R.'s] emotional development and well-being." Indeed, S.R.'s "prolonged inattention" to A.R.'s needs, evidenced through her frequent absence from training sessions, visitation, and appointments with DYFS and DDD, encouraged "the development of a stronger, 'bonding relationship'" between A.R. and her foster mother, "which if severed could cause the child profound harm." See K.H.O., supra, 161 N.J. at 352. Simply put, S.R. has not demonstrated, in the more than three years since A.R.'s birth, an ability to raise the child. Accordingly, S.R.'s "inability to take custody of and care for her child and to provide a safe and stable home at any time since the child's birth . . . demonstrates parental unfitness and constitutes a continuing harm to the child under N.J.S.A. 30:4C-15.1(a)(2)." Id. at 353-54.

"[T]he third element of the best interests standard requires DYFS to undertake diligent efforts to reunite the family." Id. at 354 (citing N.J.S.A. 30:4C-15.1a(3)). This prong contemplates efforts that focus on reunification . . . and assistance to the parent to correct and overcome those circumstances that necessitated the placement of the child into foster care." K.H.O., supra, 161 N.J. at 354. "Like considerations of parental fitness, an evaluation of the efforts undertaken by DYFS to reunite a particular family must be done on an individualized basis." D.M.H., supra, 161 N.J. at 390. Of course,

[t]he diligence of DYFS's efforts on behalf of a parent is not measured by their success. Thus, the parent's failure to become a caretaker for [his or her] children is not determinative of the sufficiency of DYFS's efforts at family reunification. These efforts must be assessed against the standard of adequacy in light of all the circumstances of a given case.

[Id. at 393.]

Here, the record reveals that DYFS frequently consulted with S.R.; offered her a variety of services, such as medical training, parenting skills classes, and DDD programs, considered essential to the realization of any plan for reunification; kept her informed of A.R.'s status; facilitated visitations with A.R.; and arranged for psychological, bonding, and other evaluations.

Despite these efforts, S.R. faults DYFS for not providing her around-the-clock, State-funded nursing care for an indefinite period of time. There is, however, no such requirement for satisfying the "reasonable efforts" prong. Moreover, the nursing care currently provided the foster parent, to which S.R. cites, is neither full-time nor the result of her caring for A.R. exclusively. To the contrary, C.R. is a foster mother to two other medically fragile children, necessitating a nurse's assistance so that C.R. can properly provide for all three children's specialized medical needs. In any event, there is no suggestion in the record that the provision of nursing assistance would ensure S.R.'s parental fitness to care for A.R. See, e.g., D.N., supra, 190 N.J. Super. at 654 (holding that where mentally disabled parents were unable to care for their child's needs without "fulltime supervision" from DYFS, such "would be an unreasonable obligation for DYFS to assume," and sufficient grounds for termination of their parental rights existed).

Also in satisfaction of the third prong, DYFS explored alternative placements for A.R. with her biological family, including S.R.'s mother, aunt, father, and A.R.'s paternal grandparents. Accordingly, there was sufficient evidence that DYFS made reasonable efforts to provide services to help S.R. correct the circumstances which led to A.R.'s placement and that no viable alternatives to termination of S.R.'s parental rights exist. N.J.S.A. 30:4C-15.1a(3).

The fourth element of the best interests standard requires a determination that terminating parental rights will not do more harm than good to the child. N.J.S.A. 30:4C-15.1a(4). In this regard, "[k]eeping the child in limbo, hoping for some long term unification plan, would be a misapplication of the law." A.G., supra, 344 N.J. Super. at 438. And, where the child's "safety and emotional well-being . . . depend upon [the child] remaining with [his or her] foster parents[,]" the fact that the biological parent "may be morally blameless is not sufficient to tip the scales in [his or her] favor." Id. at 438-39. The proper inquiry 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 her natural parent[] than from [the] permanent disruption of her relationship with her foster parent[].'" J.N.H., supra, 172 N.J. at 478 (quoting K.H.O., supra, 161 N.J. at 355). Here, the State's expert found a solid, healthy bond between A.R. and her foster parent, and no such bond with S.R.; that A.R. would not suffer emotional harm from terminating S.R.'s parental rights; and that severing the bond with the foster parent would negatively affect the child's emotional well-being. Here again, there was sufficient support for the judge's determination that terminating parental rights "will not do more harm than good" to A.R. N.J.S.A. 30:4C-15.1a(4).

In sum, in recognition of New Jersey's strong public policy in favor of permanency and stability in guardianship cases, In re Guardianship of J.C., 129 N.J. 1, 26 (1992), we conclude that the termination of parental rights here is supported by clear and convincing evidence.

Affirmed.

A.R.'s biological father, A.G., who was only fourteen years old at the time of her birth, voluntarily surrendered his parental rights at the January 24, 2008 permanency and fact-finding hearing, prior to the guardianship trial.

S.R. was missing from February 14 through March 1, 2007, during which time she did not contact the hospital or DYFS. From March 9 through March 21, 2007, S.R. only visited A.R. once in the hospital. On March 28, 2007, while accompanied by a DYFS social worker to a psychological evaluation, S.R. admitted that she had not seen A.R. in a week because she lost the bus pass that had been provided to her by DYFS.

The G-tube is a device that requires frequent maintenance and attentiveness on the part of the care-giver, as improper use

can cause under nourishment. If it's not placed properly it can be pulled out. If it's pulled out and it can't be re-inserted right away by the care taker, the surgical hole can close up within a half hour, and the child would have to go back into surgery and have it opened up again.

If too much of the formula was given though the tube you're . . . going to have stomach hyper expansion. There's actually been cases where . . . there's been permanent damage done to the stomach. . . . [T]here's a pump that pumps the formula into the stomach at times when she's sick. If that's set at the wrong amount per hour and it goes in too fast that can cause hyper expansion and you can have . . . serious consequences.

At the same time, when G.V. was reminded of her court-ordered psychological examination, she stood over the social worker, pointed her index finger towards the employee's face, and stated

"why do I have to go to see a doctor . . . I will not attend any appointments . . . [N]o, no, no! I will not go to any doctor's appointment or see any doctor! . . . [D]o whatever you want, but I won't go to any doctor."

An order of January 24, 2008, instructed DYFS to assess A.R.'s maternal aunt for purposes of adoption, but the aunt later informed DYFS that she had no interest in adopting the child. Additionally, a September 5, 2008 order instructed DYFS to review defendant's father, M.R., for potential placement of A.R. But, attempts to meet with M.R. were unsuccessful and he was eliminated from consideration. Finally, A.R.'s paternal grandmother, N.M., alerted DYFS that her schedule precluded her from being able to care for the child.

(continued)

(continued)

28

A-3786-08T4

RECORD IMPOUNDED

January 15, 2010