NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. E.G. and J.T.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4663-08T44663-08T4

A-4664-08T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

E.G. and J.T.,

Defendants-Appellants.

___________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF T.G., E.T., G.T., and S.T.,

Minors.

____________________________________

 

Submitted April 14, 2010 - Decided

Before Judges Axelrad, Fisher and

Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FG-16-77-08.

Yvonne Smith Segars, Public Defender, attorney for appellant E.G. (Carol A. Weil, Designated Counsel, on the brief).

Yvonne Smith Segars, Public Defender, attorney for appellant J.T. (William J. Sweeney, Designated Counsel, on the brief).

Paula T. Dow, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Kimberly Gunning-Marcantonio, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minors T.G., E.T., G.T., and S.T. (Christopher A. Huling, Assistant Deputy Public Defender, of counsel and on the brief).

PER CURIAM

In these consolidated matters, E.G. and J.T. appeal from the Family Part order terminating their rights to their children. We affirm Judge George E. Sabbath's April 9, 2009 written opinion.

E.G. and J.T. are the biological parents of E.T., born September 14, 2004; G.T., born August 6, 2006; and S.T., born August 5, 2007. Although E.G. testified that she and J.T. married, that testimony was disputed at trial. E.G.'s oldest child is T.G., born July 30, 2002, whose father's identity is apparently unknown. The Division of Youth and Family Services (Division) first became involved with the family in June 2006 based upon a charge of abuse stemming from an allegation that J.T. had a scar on his right leg that appeared to have been the result of being struck with a belt buckle. Although initially the allegation was determined to be "unfounded" by the Division, E.G. subsequently admitted causing the bruise. The Division provided services that included placing a homemaker in the home on a daily basis and referring the parents to parenting classes, psychological and substance abuse evaluations. The Division also conducted home visits and was in communication with a pediatrician who had contacted the Division and reported concerns about the children's well-being, based upon an examination that found the children "remarkably underweight," and that they were "behind in their immunizations, dirty, and smelled." During this time, E.G. and J.T. were living in an apartment, but because they fell behind in the rent, they were ultimately evicted in January 2007.

On December 28, 2006, during a home visit, a caseworker observed that T.G.'s lip was swollen and bloody. Both E.G. and J.T. were at home and both indicated that T.G. bit his lip. T.G., when asked what happened, told the worker that J.T. hit him and that E.G. bumped her head onto his head. The worker effectuated an emergency Dodd removal of the children and subsequently filed an order to show cause and verified complaint, seeking custody and care of the children. The court granted the Division's application by order dated January 3, 2007.

In its findings in support of the issuance of the order, the court noted that defendants denied having struck T.G. and asserted that the child had bitten his lip, but that "considering the testimony, one can . . . hardly believe that or even begin to attribute any truth to that whatsoever." The court explained that J.T. had "hustled the child into the bathroom, where he stayed for an extensive period of time." The court concluded that "[t]he parents were apparently hiding the child because they knew what they had done was wrong and that this would create a problem[,]" particularly considering there was another "act of excessive corporal punishment back in the early part of '06 when the child was disciplined by a beating with a belt and left scars that were still evident four months later." The court noted that E.G. actually committed the act, but that J.T. was also responsible because he, in addition to E.G., lied about that incident.

Further, the court found that T.G. had no history of problems with biting his lip, but when the Division worker saw his bleeding lip, both parents "screamed at the child that he should stop biting his lip[,]" thus, in the court's view, trying to cover up their wrongdoing. Because of the cover-up attempt, the court did not consider this incident insignificant and found that the parents' behavior in this regard caused all of the children in the household to be at risk, although "especially this young boy" who "seems to be a target for physical abuse."

The court's findings additionally noted that the family had not had "stable housing" and had an issue of unsanitary conditions that led the parents to explain one injury to E.T. as being caused either by a mouse or by J.T. trying to pull E.T. away from a mouse. The court also referenced a doctor's report, which stated that the children wore clothes that were soiled and foul-smelling.

Responding to a question of counsel regarding the standard of proof the court had found present, the court stated:

That type of punishment on December 28th I find to be excessive corporal punishment and not by a mere preponderance of the evidence but clearly and convincingly --

. . . .

-- that child was smacked or punched in the mouth. Okay? That child had a big swollen lip and he was bleeding from the mouth and that was not from a bite by the child, and these are the same parents that belted and buckled the child. So it seems to be a way of life for these two to a certain extent. I'm not saying that they have a long history of it, but they resort to corporal punishment and they did on that day, and if that child wasn't removed that day I don't know what else the Division would have had to see in order to remove the child.

The January 3 order directed E.G. and J.T. to undergo psychological and substance abuse evaluations and to comply with any recommendations, as well as attend parenting classes. Over the next several months, the Division attempted to work with both E.G. and J.T. as well as explore resource placements for the children with relatives. This latter effort proved unsuccessful. The Division also had the children examined and they had reportedly gained weight. During this time period, E.G. and J.T. continued to have housing problems stemming from non-payment of rent despite receiving assistance from the Passaic County Board of Social Services.

On August 9, 2007, four days following her birth, the Division conducted an emergency removal of S.T. because her parents' home was not suitable for the newborn. E.G.'s and J.T.'s living arrangements had not improved. Both parents were unemployed, had no means of paying their rent, and they had been without electricity since mid-July due to nonpayment of their utility bill. Throughout 2007, both E.G. and J.T. participated in supervised visitation with their children, which, for the most part, went well.

The court conducted a fact finding and a permanency hearing on December 19. The court was satisfied, by clear and convincing evidence, that E.G. and J.T. had physically abused T.G. and had placed E.T., G.T. and S.T. at risk of abuse and neglect. The court accepted the Division's permanency plan that called for termination of E.G.'s and J.T.'s parental rights because both parents had failed to comply with the recommended services that had been provided to them and also failed to maintain stable housing and employment. The following month, the children were placed with their maternal grandparents. The Division filed for guardianship of T.G., E.T., and G.T. and termination of E.G.'s and J.T.'s parental rights on February 21, 2008 and, on June 19, 2008, sought similar relief as to S.T.

The Division read excerpts from the December 19, 2007 fact-finding proceeding on the abuse and neglect over which Judge Sabbath also presided. In addition, it presented evidence of its efforts to assist E.G. and J.T. in eliminating the harm caused to the children that included its provision of ECAP services five days a week for one or two hours a day during which both favorable parenting and negative parenting was observed by the ECAP worker. The Division also referred both parents for substance abuse evaluations and parenting classes.

E.G. successfully completed the substance abuse programs and both parents, upon completing the parenting classes, were evaluated as "fair" in the area of parenting skills. Both parents were also referred to Family Intervention Services (FIS) for counseling, but their participation was not consistent. Although E.G. had claimed during her testimony at the December 2007 fact-finding hearing that she did not attend the counseling because of transportation problems, at trial both parents stipulated that they had been provided bus passes to attend the counseling sessions. The Division also, in accordance with the court's February 28, 2007 order, referred J.T. to anger management classes. His attendance at the program was sporadic and J.T., during his testimony at trial, indicated that he did not believe he needed the program despite being court-ordered to do so. He did not complete the program until October 2008 and was not issued a certificate of completion because, in the opinion of his counselor, J.T. continued to exhibit denial and resistance and could benefit from individual counseling. His anger management counselor testified at trial that J.T. was discharged from the program.

In addition to counseling, substance abuse, bus transportation and daily home services, the Division also approved full-time daycare services for T.G., E.T. and G.T. Further, when the children were removed from their custody, the Division arranged for supervised visitation with the children, which both parents regularly attended.

The Division's representative also testified as to the agency's efforts to place the children with relatives following their removal from E.G.'s and J.T.'s custody. The Division explored resource placements with J.T.'s grandmother, who declined to assume this responsibility due to her advanced age. Three of the children had also been placed with an aunt but were removed from her custody in 2007 and placed in foster homes. As of February 2008, the children were living with their maternal grandparents, with whom they had previously lived along with E.G.

Marcia Laky, Ph.D., a clinical psychologist, was qualified at trial as the Division's expert in clinical psychology. She prepared bonding evaluations between the three older children and E.G. and J.T. as well as between the children and their maternal grandparents with whom the children were residing at the time the bonding evaluations were completed. Dr. Laky also conducted individual psychological evaluations of E.G. and J.T. She administered a battery of standardized tests upon the parents in order to assess their personality, parenting attitudes, and child abuse potential.

Dr. Laky, in her report that was admitted into evidence without objection, found that J.T. "presents with immaturity and as an under[-]skilled, unstable, overconfident man who has little grasp of an independent permanent home and has up to this point in time exercised poor insight[,] foresight and judgment in his life choices and in his parental capacities." She concluded that J.T.'s "grasp of a stable life is in its infancy as he is just beginning another job and is not living independently." She opined that "he would be at high risk of failing to provide his children with necessary nurturing, protection, stability and guidance at this time in his life."

As to E.G., Dr. Laky opined that E.G. "presented as an immature, unrealistic 21[-]year[-]old with poor judgment, insight and planning abilities despite adequate cognitive skills and the absence of major mental illness." Although she noted E.G.'s "excellent effort with counseling" in the FIS Program, Dr. Laky opined that "a review of the written record sheds doubt on her accuracy and credibility of her intentions and follow through." She added that E.G. "has barely begun to stabilize her own life in terms of independence and employment. As of this writing, she has not functioned in a responsible, mature manner. It would be a high risk situation to entrust her with full time care of her children at this time."

Addressing the issue of bonding, Dr. Laky, in her report, described her observations of the three older children with E.G. and J.T. during a June 6, 2008 visit. She reported that T.G. had greeted E.G. with a big hug, and G.T. and E.T. ran to J.T. calling him "Daddy." She described how E.G. playfully ribbed G.T. for not saying hello to her but that G.T. seemed unaware of her meaning. Dr. Laky described various interactions throughout the visit, some of which she labeled as involving appropriate parenting responses to avoid danger and demonstrating affection, but others lacking judgment and insight into the children's needs. Dr. Laky opined that T.G. had exhibited "an ambivalent attachment pattern toward his parents[,] especially his mother[,]" alternating between seeking connection and then angry outbursts rejecting E.G., and between seeking connection and ignoring J.T. She reported that E.T. exhibited a more "avoidant" pattern of quiet play, but before the scheduled end time, she did say it was time to go home, which Dr. Laky believed suggested "much distress despite [E.T.'s] quiet demeanor." She also found that G.T. exhibited an ambivalent pattern, allowing hugs before quickly wiggling away.

In contrast, Dr. Laky's report described the children's interactions with their maternal grandparents as relaxed during an April 16, 2008 bonding evaluation session. By this time, the children had been living with their grandparents for the past four months. She noted various types of play and encouragement, and some appropriate parenting correction. Dr. Laky concluded that the three children "seemed very comfortable and securely attached to both of their grandparents" and "looked to both of their grandparents for comfort and direction." She indicated that the grandparents "seemed attuned to the children's needs and provided appropriate limits, boundaries and affection in a consistent, caring and relaxed manner." Dr. Laky, during her trial testimony, concluded that if E.G.'s and J.T.'s parental rights were terminated, the children "would [suffer] harm, but I didn't feel it would be serious and enduring" and the grandparents would be able to handle it, especially if they obtained the recommended family counseling.

In contrast, Dr. Laky testified that she had a "grave concern" about harm to the children if they were removed from their grandparents' home. She explained that the grandparents' home had been "[the children's] primary source of comfort" and they "seem to be very stable and secure there." She expressed the opinion that E.G. and J.T. would not be able to remediate the harm that the children would suffer in this instance, because having the four children while they were just beginning to develop their own stability would be "too overwhelming" for these parents and would, at a minimum, likely lead to neglect. Although Dr. Laky did not meet the infant, S.T., she believed her conclusions as to the other children would apply equally as to E.G.'s and J.T.'s ability to parent S.T. She indicated that neither parent was, at that time, "stable, secure, mature, honest."

Under cross-examination, Dr. Laky agreed that E.G. was very responsible in finishing high school and attending parenting skills classes even though she had two young children at the time. She also considered it fair to say that E.G. and J.T. had maintained a stable relationship. Additionally, Dr. Laky agreed that their regular participation in the supervised visitation program was a testament to their interest in their children.

After Dr. Laky performed her evaluations in June 2008, the record disclosed that E.G. had continued her individual counseling for six additional months, had been working, by the time of the trial, for eight months, had received a Section 8 housing voucher and was actively looking for housing, and had consistently visited with her children throughout that time. When questioned as to whether these additional facts would affect her conclusions, Dr. Laky responded: "[T]hat's a very, very good beginning effort. This is just her and her alone. But I feel she needs to become herself even more stable, independent and mature . . . before she is able to care for, perhaps at some future date, four children."

In addition to Dr. Laky's testimony, psychological reports prepared by Dr. Robert Kanen, on behalf of the Division, were also admitted into evidence over the objection of counsel for E.G. and J.T. Dr. Kanen did not testify at trial.

Dr. Kanen performed his first evaluations in 2006. He found that E.G. functioned in a "[b]orderline range of intelligence" with an "impaired" fund of information about making childcare decisions and dealing with life. He noted, however, that when he performed an updated evaluation in 2007, he found that E.G. functioned in a normal range of intelligence and suggested that this improvement may be the result of the decreased demands placed upon E.G. after the removal of the children from her custody and, consequently, not being confronted with the day-to-day responsibilities of parenting.

With respect to J.T., Dr. Kanen found that he functioned in the low average to average range of intelligence with no evidence of any cognitive impairments or mental illness. He did find that J.T. suffered from severe personality deficits that left J.T. with an unrealistic view of himself. He expressed the belief that J.T. was "so self-centered, excessively optimistic and sure of his opinions" that he might risk being insensitive to, and irresponsible in meeting, his children's needs. He did not rule out a mood disorder and noted that these personality traits would likely interfere with J.T.'s occupational functioning. When he re-evaluated J.T. in 2007, he essentially found no change in his original conclusions.

The defense presented its own expert, Dr. Fredrica G. Brown, who performed a psychological evaluation of E.G. and bonding observations of the children with E.G. and J.T. and then separately with their maternal grandparents. Based upon her evaluation and testing, Dr. Brown opined that E.G. has "the capability to care for her children." Dr. Brown elaborated that E.G. "could keep them safe" and "could learn to cook nutritious meals" and "could learn to keep a house . . . or learn more, because I think she knows some. But [E.G. should] learn more about growth and development of the children and how to bring out the best in them."

She viewed the interaction between the children and E.G. and J.T. as "a positive experience overall" with the children being very affectionate and interested in sharing with the parents, although she observed "somewhat of a void" in terms of the interaction between E.G. and T.G. Dr. Brown thought the family would have benefited from family therapy, but the interactions between E.G. and the children were within normal limits, showing affection and concern.

Under cross-examination, Dr. Brown acknowledged that during her observation of the parents with the children, she did observe inappropriate behavior on the part of T.G. with a toy gun to which neither E.G. or J.T. responded. Dr. Brown also noted that she observed E.G. putting toys in her own mouth that potentially sent mixed signals to the children. These observations raised concerns, but Dr. Brown concluded that E.G. "needs support and needs continuing education in parenting and running a household" and with that type of support, "she could become a good parent." However, when asked whether E.G. was prepared to "go forward into the world with her four children without assistance and raise them appropriately," Dr. Brown answered "No, I don't think so[,]" but she pointed out that the maternal grandparents, according to E.G., were not caring for the children without assistance.

E.G. and J.T. also testified. They both acknowledged their difficulties in obtaining stable housing during the two-year period since the children had been removed. E.G. testified that once she received a Section 8 voucher, she and J.T. actively sought housing, but she learned that the Division had put "a hold" on the voucher because it did not want to give them the voucher if the children were not going to be returned to them. Both E.G. and J.T. also acknowledged that they did not consistently attend the programs to which they had been referred by the Division.

At the conclusion of the trial, Judge Sabbath issued a written opinion in which he found that the Division had met its burden to establish, by clear and convincing evidence, that the parental rights of both E.G. and J.T. should be terminated. The present appeal followed.

On appeal E.G. contends:

POINT I

THE TRIAL COURT ERRED BY TERMINATING THE MOTHER'S PARENTAL RIGHTS BECAUSE ALTERNATIVES TO TERMINATION AND ADOPTION, INCLUDING KINSHIP LEGAL GUARDIANSHIP, WERE NOT CONSIDERED.

POINT II

THE ORDER TERMINATING THE MOTHER'S PARENTAL RIGHTS MUST BE REVERSED BECAUSE THE [DIVISION] DID NOT MAKE REASONABLE EFFORTS TO REUNITE THE CHILDREN WITH THEIR MOTHER.

POINT III

THE COURT ERRED IN FINDING THAT THE DIVISION HAD SATISFIED THE FIRST PRONG OF THE BEST INTERESTS TEST, AS JUST ONE OF THE FOUR CHILDREN WAS FOUND TO BE HARMED; THERE WAS NEVER A FINDING THAT DEFENDANT-APPELLANT HARMED THE OTHER THREE CHILDREN.

POINT IV

THE ORDER TERMINATING THE MOTHER'S PARENTAL RIGHTS MUST BE REVERSED BECAUSE THE DIVISION FAILED TO PROVE THAT TERMINATION OF PARENTAL RIGHTS WOULD NOT DO MORE HARM THAN GOOD.

J.T. raises the following points for our consideration:

POINT I

THE ELEMENTS OF N.J.S.A. 30:4[C]-15.1 WERE NOT PROVEN BY CLEAR AND CONVINCING EVIDENCE AND THE COURT ERRED IN ADMITTING EVIDENCE BY JUDICIAL NOTICE.

(A)

JUDICIAL NOTICE BY THE TRIAL JUDGE OF FINDINGS ON HARM IN THE TITLE 9 PROCEEDING INVOLVING DEFENDANTS WAS REVERSIBLE ERROR AND THE TESTIMONY IN THAT PROCEEDING WAS INADMISSIBLE HEARSAY BECAUSE THE WITNESSES WERE AVAILABLE FOR TRIAL.

(B)

A LACK OF WILLINGNESS OR ABILITY ON THE PART OF J.T. TO ELIMINATE THE HARM FACING THE CHILDREN WAS NOT PROVEN BY CLEAR AND CONVINCING EVIDENCE.

(C)

THE LEGAL CONCLUSION THAT THE DIVISION MADE "REASONABLE EFFORTS" TO PROVIDE SERVICES TO J.T. WAS ERRONEOUS AND THE TRIAL COURT FAILED TO CONSIDER ALTERNATIVES TO TERMINATION OF PARENTAL RIGHTS AS REQUIRED BY STATUTE.

. . . .

ALTERNATIVES TO TERMINATION.

1. N.J.S.A. 30:4C-15.3 (Not Raised Below).

2. KINSHIP LEGAL GUARDIANSHIP (Not Raised Below).

(D)

TERMINATION OF PARENTAL RIGHTS WILL CAUSE MORE HARM THAN GOOD AND A STRONG ATTACHMENT WITH THE FOSTER PARENTS DOES NOT CONSTITUTE PROOF UNDER THE FOURTH PRONG SUFFICIENT TO JUSTIFY TERMINATION OF PARENTAL RIGHTS.

The scope of our review of a trial judge's findings of fact is a limited one. Those findings cannot be upset unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Here, we find no error in the court's findings of fact. They are supported by adequate, substantial and credible evidence in the record and are entitled to our deference on appeal. This is especially true since these findings were made in the context of a family-type action, where we recognize the special expertise of Family Part judges in disposing of family-type actions. Cesare v. Cesare, 154 N.J. 394, 413 (1998).

Every parent has a constitutionally protected right to enjoy a relationship with his or her child. In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). However, parental rights are not absolute. "Balanced against the constitutional protection of family rights is the State's parens patriae responsibility to protect the welfare of children." In re Guardianship of J.C., 129 N.J. 1, 10 (1992). Therefore, before termination of parental rights can occur, the Division must satisfy the "best interests of the child" test by clear and convincing evidence. In re Guardianship of Jordan, 336 N.J. Super. 270, 273-74 (App. Div. 2001). Pursuant to N.J.S.A. 30:4C-15.1(a), when petitioning to terminate parental rights under the "best interests of the child" standard, the Division must prove:

(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.

These four criteria "are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." K.H.O., supra, 161 N.J. at 348. Parental fitness is the key to determining the best interests of the child and the considerations involved in determinations of parental fitness are "extremely fact sensitive." Ibid. (citing In re the Adoption of Children by L.A.S., 134 N.J. 127, 139 (1993)).

A.

In order to satisfy the first prong of the "best interests of the child" test, the harm "must be one 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 the Division referenced the court's findings in the abuse and neglect fact-finding proceeding to establish the first prong, separate and apart from the court's findings in those proceedings, it is undisputed that T.G. sustained significant injuries to his lip. What was disputed was how those injuries were caused. Judge Sabbath found that the injuries were caused by E.G. striking him and that both parents then attempted to cover up the incident. The court also concluded that this conduct in attempting to cover up the abuse not only harmed T.G. but also exposed the other children present to a risk of harm. We defer to those findings and conclude the court properly found that the harm to T.G. and the attempted cover-up also demonstrated, by clear and convincing evidence, the risk of harm to the other children. Div. of Youth & Family Servs. v. Robert M. 347 N.J. Super. 44, 68 (App. Div.), certif. denied, 174 N.J. 39 (2002) (finding that the treatment of one child "could be a dangerous harbinger to one or more of the others.").

B.

As to the second prong, there was clear and convincing evidence of E.G.'s and J.T.'s inability or unwillingness to eliminate the harm to the children or to provide a safe and stable environment. The court accorded considerable weight to the testimony of Dr. Brown, E.G.'s expert, who opined that "E.G. was not ready to parent the children" despite the services provided by the Division:

The court finds that there is insufficient evidence to conclude that [E.G.] has the ability or the inclination to further participate in services such that she could be deemed ready for parenting within a reasonable period of time sufficient to avoid harm to the children. Her participation in services was not without problems (although she completed the parenting program she failed to complete the counseling program) relating to regular attendance and thus led to a less than satisfactory result (as evidenced by Dr. Brown's testimony).

The court added: "Considering the tender years of these children they can no longer [a]wait the indeterminate time that it may take for the defendants, or either of them, to attain sufficient maturity and the psychological ability to parent them."

The court acknowledged that E.G. had been working part-time since March 2008 and had been offered full-time employment, but found significant the "unsuccessful 'efforts' made to secure housing since removal and failure to complete the counseling program which this court finds so vital to the excessive corporal punishment issue." The court found that "[t]he efforts by the defendants to secure Section 8 housing have been unsatisfactory and not pursued with diligence" and their "explanations and excuses" offered at trial were "inherently not believable by virtue of 'poor' recollection, and especially not credible in light of the contradictory and more credible testimony offered by the [D]ivision and the housing authority witnesses." The court considered the housing issue "especially significant" in view of the unstable housing circumstances prior to the children's removal. The court noted that E.G. had not been "forced" to move out of her parents' residence, but did so "to satisfy herself and [J.T.]" while exposing the children "to great risk of harm." After describing the pre-removal facts, the court further explained its reasoning for doubting E.G.'s and J.T.'s credibility, including discrediting testimony or explanations each had made regarding the Section 8 housing, the status of eviction and utility issues at their Oak Street apartment, the "bed rest" reasons given for E.G.'s counseling absences, and the nature and extent of J.T.'s employment. The court further highlighted J.T.'s "dysfunctional attitude" regarding his need for, and therefore his attendance at, the anger management training. The court concluded that defendants "have failed to address their basic issues relating to their parenting issues and cannot be trusted with the safety of the children."

The court also referenced additional opinions expressed by Dr. Brown in her report. Specifically, that T.G. "'seemed less nurtured . . . and he seemed to react perceptively to this[,]'" that he "'did not look happy during the evaluation with his mother[,]'" and exhibited frustration by holding a toy gun to his head. The court found that this was consistent with Dr. Laky's report describing T.G. as displaying an "'ambivalent attachment pattern towards his parents . . . especially his mother . . . .'"

The court also noted that J.T. offered no expert testimony to support his position or to rebut the Division's proofs regarding his inadequacies and inability to safely parent the children. Concluding that the opinions expressed by Drs. Laky and Kanen were supported by the facts in the record, the court adopted their findings and opinions.

We note here that it is clear from the court's findings that it did not confine its decision to the findings it made in the abuse and neglect fact-finding proceedings. Rather, the court reviewed the testimony and expert reports, as well as E.G.'s and J.T.'s actions going forward from the children's removal from their care and custody. We are satisfied that the court's conclusion that the children would continue to be at risk if returned to live with E.G. and J.T. because the couple had neither established appropriate living arrangements nor completed sufficient personal training to ensure that the type of harms present in December 2006 would not be repeated, is fully supported by the record. We are therefore satisfied the court properly considered the entire record in reaching its conclusions as to the second prong and that in doing so, there was no error in its consideration of its earlier factual findings in the prior proceeding.

C.

As to the third prong, the record supports the court's finding, by clear and convincing evidence, that the Division provided numerous services to E.G. and J.T. The court listed the services the Division provided, including the ECAP housekeeping services (prior to the children's removal), psychological evaluations, supervised visitation services, substance abuse assessment, parenting skills and anger management training, counseling, a "comprehensive health evaluation of the children, assistance with section 8 housing applications and referral to the Paterson Housing Coalition, bus passes, and providing of furniture and financial assistance." Despite these efforts, the record supports the conclusion that the goal of reunification could not be achieved. An essential part of what was needed for reunification here was for E.G. and J.T., or either of them, to establish a household that would be appropriate for the children's return. The Division offered training and referrals that could advance this objective. That its efforts did not prove successful is not the test for determining the reasonableness of its efforts. In re Guardianship of D.M.H., 161 N.J. 365, 386-90 (1999).

Likewise, we find no merit to E.G.'s contention that their assigned Division caseworker never attended any of the supervised visitation. The drawback against reunification was not the parents' interaction with the children, other than perhaps as to T.G. Instead, the court's findings focused significantly upon the parents' inability to plan and carry through with obtaining adequate housing, including obtaining adequate income to pay for that housing. In our view, their shortcomings regarding these issues could not have been remedied by having the Division's assigned worker attend visitation sessions.

Next, both E.G. and J.T. argue that the court erred in its failure to consider alternatives, with both particularly emphasizing the Division's failure to investigate the option of kinship legal guardianship (KLG) or J.T.'s paternal grandmother's availability to assist them in parenting their children. Apart from the fact that this contention was not raised before the trial court, we find no merit in the argument.

KLG is appropriate only where the court has found that "adoption of the child[ren] is neither feasible nor likely." N.J.S.A. 3B:12A-6(d)(3). Because the children's maternal grandparents are willing to adopt all four children, KLG is not a viable option. Further, J.T.'s paternal grandmother was eighty-six years old in 2007 when S.T. was born and advised the Division that she could not serve as a relative care provider for the children due to her advanced age, and the record did not disclose that she offered to provide any other assistance to the family.

D.

Finally, there was clear and convincing evidence that termination of E.G.'s and J.T.'s parental rights would not do more harm than good, thus satisfying the fourth prong, N.J.S.A. 30:4C-15.1(a)(4). The trial court concluded that the Division had proven that termination would not do more harm than good, relying upon Dr. Laky's bonding evaluations. Dr. Laky found secure bonding between the children and their grandparents, concluding that the grandparents would be able to ameliorate any harm suffered by the children as a result of the termination of parental rights. The court found that "the fact that neither defendant has been found to be capable of nurturing or protecting the children requires that they be permanently placed with the maternal grandparents. There is no other alternative that will protect their best interests." The court pointed to reports in which T.G. and E.T. had "ambivalent" and "avoidant" behavior patterns with E.G., respectively, and noted the relative amounts of time that the children had lived with their grandparents.

The trial court discussed Dr. Brown's bonding observations in some detail, giving little weight to her observation that the children became upset on one occasion when the parents departed from a visit, in view of the numerous supervised visitation reports that conveyed a very favorable impression of the children's relationship with their grandparents. The court found Dr. Brown's bonding assessment and recommendation "contrary to the factual evidence, inherently contradictory and unreliable in the conclusions." The court criticized and counted as undermining Dr. Brown's credibility, her "explanation" that E.G.'s beating T.G. with a belt occurred because E.G. did not understand that this was an improper means of discipline. Likewise, given Dr. Brown's admission that E.G. was not yet able to parent the children on her own, the court found as inconsistent the recommendation that E.G. would have the ability to ameliorate the harm caused by separating the children from their grandparents.

The trial court's determination on this issue is well supported by the record. Although E.G. and J.T. demonstrated a continued commitment to their children in attending the supervised visitation sessions, and neither expert doubted that the children bonded with E.G. and J.T., we agree that on balance, the evidence disclosed that the children were bonding well with their maternal grandparents. Because the grandparents provided both affectionate bonding and a stable home environment, and the parents were unable to do so, the trial court properly concluded that the "more harm than good" consideration weighed in favor of terminating parental rights.

Affirmed.

 

A "Dodd removal" refers to the emergency removal of a child from the home without a court order, pursuant to N.J.S.A. 9:6-8.29.

Emergency Child Abuse Program.

(continued)

(continued)

30

A-4663-08T4

RECORD IMPOUNDED

June 11, 2010