NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. F.H.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5915-08T45915-08T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

vs.

F.H.,

Defendant-Appellant.

________________

IN THE MATTER OF THE GUARDIANSHIP

OF V.M. and D.H.,

Minors.

__________________________________

 

Submitted: March 24, 2010 - Decided:

Before Judges Cuff, Payne and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Chancery Division-Family Part, Hudson County, Docket No. FG-09-129-09.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).

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

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minors V.M. and D.H. (Olivia Belfatto Crisp, Assistant Deputy Public Defender, on the brief).

PER CURIAM

In this appeal, we review an order terminating the parental rights of F.H. to her two daughters, V.M. and D.H. The youngest child, D.H., initially reported that she had been physically abused by her mother's boyfriend in March 2006. The girls were removed from their mother's care in November 2006, and placed with V.M.'s paternal great-grandmother. The removal was occasioned by F.H.'s failure to abide by an order not to allow her children to be in the presence of her abusive boyfriend and by her unstable housing and non-existent employment situation. In January 2008, D.H. revealed that she had been sexually abused by her maternal fifteen-year old uncle. Later, both girls revealed that their mother's boyfriend had sexually abused both of them.

The judge found that plaintiff Division of Youth and Family Services (DYFS) satisfied its burden of proof. She found that F.H. failed to protect her daughters from the abuse when it occurred, failed to recognize the harm caused to them by these acts, and failed to recognize the need to protect them in the future from similar abuse. F.H. argues that DYFS satisfied none of the four statutory prongs by clear and convincing evidence. We affirm.

V.M. was born on December 29, 1996; D.H. was born on September 3, 2001. The girls have different fathers. V.M.'s father, D.M., and D.H.'s father, J.C., voluntarily surrendered their parental rights in an identified surrender to D.C., D.M.'s grandmother. D.C. has had custody of both girls since November 2006.

DYFS first became involved with F.H.'s children on February 15, 2005, when it received a referral from V.M.'s school. The school reported that V.M. had a red swollen mark on the inside of her elbow and had stated that her mother, F.H., had struck her with a broom. DYFS investigated the incident and was unable to substantiate the abuse. On October 26, 2005, DYFS received a second referral. A caller reported that F.H. left her children home alone for twenty minutes when she went to the liquor store. DYFS could not substantiate this allegation.

On March 20, 2006, DYFS received another referral regarding F.H.'s family from D.H.'s daycare center. The daycare center staff reported that D.H., then four years old, complained of pain, and staff observed bruises on her arms and legs. Daycare staff reported that D.H. stated her mother's boyfriend, A.W., beat her with a hanger. DYFS substantiated physical abuse and advised F.H. that the children were not to have contact with A.W. F.H. and A.W. were referred for counseling services. A.W. was also the subject of a criminal investigation relating to the substantiated abuse of D.H.

In July of 2006, DYFS received the first of many referrals from A.W. alleging that F.H. had either brought the children to his home or invited him over while the children were at her home in violation of the no-contact order against him, and that F.H. was drunk and/or high when doing so. DYFS was unable to substantiate these referrals. However, in investigating those referrals, DYFS discovered that A.W. had been harassing F.H. and the children with threats against their lives. As a result, DYFS temporarily removed the family from their residence at Harmony House, a transitional living facility for families, which was located across the street from A.W.'s residence, and placed them in a battered women's shelter for the weekend of July 8, 2006.

In a July 9, 2006 statement, A.W. reported that D.H. had been sexually assaulted by a twelve-year old boy who attempted to force her to perform oral sex on him when she was playing outside unsupervised. D.H. confirmed that a boy had unzipped his pants and tried to push her head down towards his "private area" and that she ran away. F.H. was aware of this incident and reported it to the police, but she never brought D.H. to the police for an interview. Because of these incidents, DYFS required F.H. to sign a case plan stating that she would supervise the children at all times, not use corporal punishment, and provide adequate shelter, food and educational and medical necessities.

On August 1, 2006, DYFS received a referral from a man stating that F.H. was selling drugs and smoking "weed" inside the house. The caller also said that because the children did not have any food, he had brought food to the house, and whenever anyone knocked on the door, F.H. hid a man in the bathroom. On August 6, 2006, DYFS received another referral from a caller who expressed concern that F.H.'s daughters were currently home alone and had been for at least three hours. On August 7, 2006, a DYFS worker spoke to a social worker at Harmony House, who had spoken to F.H. in the past about not supervising her children. F.H. was advised that her children should be supervised at all times and that she needed to keep her apartment clean, but DYFS took no further action on the matter.

On September 12, 2006, a DYFS worker went to Harmony House to visit with F.H. and her daughters, but was informed that F.H. was officially terminated from the facility on August 3, 2006, and vacated Harmony House as of August 10, 2006. The Harmony House social worker was not aware that F.H. had left until she made her rounds on that date. Harmony House did not have any contact information for F.H. When DYFS contacted F.H.'s parent aide, she refused to provide any contact information for F.H., informed the worker that the family was residing with a friend, and they did not want anyone to know where the friend lived.

Later that day, F.H. contacted the DYFS worker, provided contact information, and agreed to allow the worker to visit her and the children, after being told that DYFS would contact the police if she did not provide her address. On September 14, 2006, a welfare worker called and informed DYFS that F.H.'s welfare benefits had been terminated because she requested placement in a domestic violence shelter and then left. Then, on September 15, 2006, the DYFS caseworker met with F.H. at the East Orange home of her "godmother," who was actually A.W.'s mother, and F.H. advised that she and her daughters would be residing there.

On October 18, 2006, DYFS received another referral stating that F.H. and her boyfriend, A.W., were yelling at each other in loud voices. The referrent stated he overheard them saying that D.H. had been molested by her maternal uncle the Friday before in Jersey City. The referrent reported that F.H. broke a window and threatened to leave and take the children. The caller stated that he had seen F.H. and A.W. drinking alcohol earlier in the evening, but was not aware if either was intoxicated. The following day, on October 19, 2006, a DYFS worker met with A.W. regarding the referral.

A.W. stated that F.H. and her daughters had been living with him for about two or three months. He told the worker that he had called DYFS approximately two weeks earlier to report that D.H. told him she was molested by her uncle on two separate weekends. A.W. said he and F.H. were arguing because he said he was going to call the police, and she responded she was leaving and returning with the children to her grandmother's house in Jersey City, where the uncle lived. He reported that D.H. said V.M. ran away, that her uncle told her that he liked V.M. as a girlfriend, and that D.H. was in bed at the time and "[her uncle] got in the bed with her and pulled her legs open and started to hump her." A.W. alleged that F.H. was aware of the abuse, but did nothing about it. The DYFS worker observed that A.W. was under the influence of alcohol at the time of the interview. A.W. said that he was aware of the no-contact order against him, but F.H. came to him after she and the children left the shelter and he did not want to see them on the street.

In response to A.W.'s report of sexual abuse of F.H.'s youngest daughter, a DYFS worker interviewed F.H. and D.H. Both denied the event. Nevertheless, on October 24, 2006, DYFS met with F.H. at her grandmother's house. F.H. admitted that she had been living with A.W., that she had asked him to pick the children up from school on a few occasions, and that she only left them alone with him once when she went to her grandmother's house to help care for her sick mother. The worker instructed F.H. to enroll the children in school in Jersey City. While at the grandmother's house in Jersey City, the worker was informed that D.H.'s father, J.C., was also moving in so he could be with his daughter. Both F.H. and J.C. signed a case plan that stated the children had to be enrolled in school by October 26.

On October 31, 2006, F.H. called DYFS to report that she was no longer staying with her grandmother and that she was staying with J.C.'s mother. She stated that her grandmother kicked her out because they got into an argument over care for F.H.'s extremely ill mother. F.H., J.C., and J.C.'s mother all went to the DYFS office to discuss the situation. When the caseworker's supervisor informed the family that she would be contacting an attorney to see if DYFS could have the case litigated, J.C.'s mother offered to let both children live with her. She said she did not want to see her granddaughter or V.M. end up in the "system."

At that meeting, F.H. and J.C. also admitted that they were aware that the maternal uncle had molested D.H. F.H. said that her family was mad at her because she beat her brother for what he did to D.H.; J.C. said he did not want to lie anymore and he is not good at lying.

That same day, DYFS tried to reach F.H. at her grandmother's house, but F.H.'s uncle informed the caseworker that he had kicked F.H. out because she was disrespectful to his mother. He expressed concern about the way F.H. cared for her daughters. He said the girls ate dinner around 11 p.m., went to bed around 2 a.m., and were not attending school.

On November 1, 2006, the DYFS worker went to J.C.'s mother's home to conduct an inspection and spoke to F.H. about the allegations of sexual abuse by D.H.'s uncle. F.H. acknowledged that D.H. told her of the incident, emphasized that both were clothed at the time, and explained that she lied to avoid loss of her children. The worker also spoke to V.M. and D.H. V.M. denied seeing the encounter; D.H. acknowledged it. She said that she told her mother and her mother beat the uncle.

On November 15, 2006, J.C. reported to DYFS that his mother had "kicked" F.H. out the day before because she was not helping with any bills and stayed out all day and night. He also said that he believed F.H. was back with A.W. because A.W. had picked her up at the house over the weekend. That same day, F.H. contacted DYFS and reported that she had to leave J.C.'s mother's house because the landlord said they were not on the lease. F.H. advised that she was staying at her aunt's best friend's home in Jersey City and gave the worker the phone number and address, but could not provide the apartment number. When DYFS attempted to contact F.H. at that same phone number, the woman who answered stated that she was a friend of F.H.'s aunt and F.H. and the aunt left about an hour prior. She could not provide any information about their whereabouts and did not know the aunt's phone number.

On November 16, 2006, DYFS conducted an emergency removal of V.M. and D.H. from their mother's custody because of her protracted history with DYFS and on-going concerns about F.H.'s ability to protect her children. Those concerns included F.H.'s knowledge of the sexual abuse of D.H. and her refusal to report it, and her failure to keep her daughters from A.W., who had physically abused D.H. Further, F.H.'s unstable housing situation caused the girls to move from house to house, town to town, and school to school. The day following their removal, the girls were placed in the care of V.M.'s paternal great-grandmother, D.C., where they remain.

On November 20, 2006, DYFS filed a complaint and Order to Show Cause seeking care, custody, and supervision of V.M. and D.H., who were nine years old and five years old, respectively, at the time.

Following entry of the requested order, D.H. and V.M. attended medical evaluations at the Metro-Regional Diagnostic and Treatment Center. During these examinations, V.M. reported that she had witnessed the March 2006 incident when A.W. beat D.H. with a hanger. The examiner recommended that both girls attend psychosocial examinations.

Saint Barnabas Hospital's Regional Abuse Diagnostic and Treatment Center (RDTC) conducted a psychosocial evaluation of D.H. on January 11, 2007. D.H. was five years old at the time, and the evaluator considered her to act appropriately for her age. During the interview, D.H. discussed being beaten with the hanger by A.W., the sexual assault by her uncle, and a sexual assault by a twelve-year old boy at Harmony House. D.H. also reported that she witnessed physical altercations between her mother and A.W. Additionally, she stated that her mother spanks her with her hand or belt when she misbehaves. D.H. could not identify any positive self-attributes, and referred to herself as a "bad girl." The examiner was also aware of behavior such as exotic dancing by the child. The evaluator recommended that D.H. receive individual therapy to process her physical and sexual abuse experiences.

At the January 24, 2007 fact-finding hearing, the judge found by clear and convincing evidence that F.H. "abused or neglected the children in that [she] failed to properly supervise the children by allowing the children to have contact with [A.W.] pursuant to [N.J.S.A.] 9:8.21(c)(4)(b) and failed to provide appropriate shelter while having the means to do so pursuant to [N.J.S.A.] 9:6-8.21(c)(4)(a)."

Reports that A.W. had sexually abused both girls first arose several months after the removal of the girls. On March 13, 2007, D.C. phoned DYFS and reported that she discovered D.H. "humping" her bed. When D.C. asked D.H. what she was doing, the child responded she was having sex, and A.W. told her it was good to have sex before bed because it makes you sleep better. D.C. stated that D.H. also said that A.W. had performed oral sex on her and made her perform oral sex on him, and D.H. demonstrated on a doll what A.W. did. D.C. also stated that V.M. told her that A.W. licked her breast.

When the DYFS worker visited the girls at D.C.'s home, D.H. told her that A.W. touched her in her "privates, her breasts, and her butt" and that this happened when the girls were living with A.W. and their mother was not home. V.M. stated that A.W. penetrated her vagina and licked her breasts. Both girls said that the last time this happened was about two years prior and they did not tell anyone, including their mother, because A.W. threatened to kill them if they told anyone.

A criminal investigation of A.W. ensued. During an April 5, 2007 videotaped interview of the children, the girls provided statements that were substantially similar but contained more detail of the events related to the DYFS worker. During the interview, V.M. stated that A.W. had penetrated her vagina halfway on two separate occasions, and she had witnessed him perform oral sex on D.H.

When informed, F.H. offered her opinion that the abuse did not occur. She did, however, admit that she left the girls home alone with A.W. on several occasions. F.H. denied she was at a "club" as reported by her daughters. She insisted that she only left them with A.W. when she went to the store and always returned promptly.

As of February 5, 2007, the goal was family reunification, and F.H. was informed that she needed to cooperate with the services offered. F.H. was informed of the timeframe in which she needed to stabilize herself as a caregiver in order to regain custody of her children. On February 13, 2007, F.H. was provided with a list of five facilities to contact for assistance with housing and stabilization.

At a Family Team Meeting on March 6, 2007, the case worker emphasized the importance of F.H.'s attendance at a psychological evaluation. By the end of this meeting, F.H. knew that the children could not be returned until she underwent a psychological evaluation, secured her own housing and maintained employment.

On March 23, 2007, F.H. underwent a psychological evaluation. Leslie J. Williams, Ph.D., found that F.H. suffers from a moderately-severe mental disorder and that based on her test responses, there is a diagnostic probability that F.H. suffers from Delusional (Paranoid) Disorder and Paranoid Personality Disorder with Avoidant and Schizoid Features. The doctor concluded that F.H. had mental dysfunctions and was not fit to adequately parent her children at the time. On April 1, 2007, F.H. moved into an apartment of her own in Jersey City.

On May 14, 2007, D.H. completed treatment in the Children's Socialization and Abuse Training Group at the RDTC. The final treatment summary indicated that D.H. had disruptive behavioral issues and trouble forming appropriate peer relationships. Her treatment provider recommended that D.H. continue in individual therapy to address her behavioral problems and to treat any trauma associated with the sexual abuse she experienced and that she undergo a psychiatric evaluation to determine if she required medication to treat her behavior.

D.H. continued individual therapy through September 19, 2007. On termination, the therapist reported that D.H. was exhibiting better self-regulation and was refraining from acting out. The therapist reported that D.H. continued to struggle with emotions arising from her separation from her mother, but that she was equipped with effective coping skills. The report indicated that if D.H.'s behavioral symptoms resumed, she should be re-enrolled in therapy.

On June 26, 2007, the Hudson County Child Abuse Prevention Center referred F.H. for parenting classes. She enrolled in classes on August 6, 2007, and completed the parenting course on September 10, 2007.

On June 27, 2007, DYFS received an update from the RDTC on V.M.'s progress in individual psychotherapy, which she had been attending since her evaluation in January 2007. The therapist reported that V.M. discussed her history of physical and sexual abuse freely and the therapy was directed at coping with that abuse. The therapist also conveyed that V.M. was angry at her mother for refusing to support her disclosure of the sexual abuse by A.W. and that V.M. was also being treated for self-esteem and trust issues.

On October 8, 2007, DYFS received another treatment update from the RDTC on V.M. The update informed DYFS that V.M. had made great progress in therapy and her treatment would terminate as of October 15, 2007. The report, however, expressed concern at the prospect of V.M. being reunited with her mother because F.H. had been "unsupportive of [V.M.'s] disclosure of her physical and sexual abuse, and has not complied with visitation with her daughters of late." It also indicated that V.M. was extremely resistant to the prospect of reunification. In the treatment summary, the therapist recommended that reunification not occur unless F.H. "complete[d] a parenting evaluation and complie[d] with the recommendations arising from that evaluation" and that prior to reunification F.H. and V.M. undergo joint therapy sessions to address V.M.'s anger with F.H. for her failure to support V.M.'s disclosure of abuse.

On November 5, 2007, V.M.'s RDTC therapist recommended that DYFS not pursue reunification and that supervised visits between F.H. and V.M. not occur until F.H. underwent psychotherapy to address her lack of support for V.M.'s disclosures. The therapist stated that V.M. could experience additional harm if F.H. was permitted visitation prior to undergoing therapy.

On November 7, 2007, F.H. underwent a psychosocial evaluation at the Family Life Education Center (FLEC) in Newark Beth Israel Hospital. The evaluator recommended that F.H. participate in weekly parenting skills classes and individual counseling at the FLEC.

On November 15, 2007, F.H. and the children began Family Engagement and Child/Parent Visitation services with Catholic Charities. In a December 19, 2007 report summarizing the last thirty days of therapy, the case manager observed that V.M. had continuing trust issues with her mother and conflicting feelings about returning home. The case manager also observed that D.H. had a pre-occupation with sex and continually brought it up and acted out in sexually inappropriate ways. The case manager recommended that D.H. return to therapy. The ultimate conclusions of the case manager were that F.H. could learn to address the negative behaviors of her children with proper support and guidance and that "intensive in-home services, such as individual and family counseling and mentor services for the children," would be necessary if reunification occurred within the following three months.

Two months later, in a February 11, 2008 report, the case manager found that V.M. was making progress on her trust issues with her mother, but she still did not want to reunite with her mother because of the sexual abuse history. V.M. also expressed concern that a DYFS worker told her that her uncle would watch her overnight while her mother worked if she returned home. V.M. said that she did not want men babysitting her. The case manager also observed that D.H.'s negative behavior had decreased during the visits, although she was still acting out sexually. Ultimately, the case manager concluded that F.H. was "open to receiving guidance from the [c]ase [m]anager and has followed up with advice that has been given to her" and that she appeared "committed to doing what she needs in order to provide for and maintain a safe nurturing environment for herself and her children."

On November 7, 2007, F.H. enrolled in parenting classes at FLEC. In a February 4, 2008 report, FLEC reported that F.H. had missed two of her eleven scheduled appointments due to other obligations and was prompt and cooperative during the sessions she attended. The report stated that F.H. appeared to want the best for her children and recommended continued parenting classes with FLEC and family therapy.

F.H. also enrolled in individual therapy. In a February 8, 2008 report, F.H.'s therapist reported that she had only missed one of eight scheduled sessions but consistently showed up ten to fifteen minutes late.

Notwithstanding a February 2008 report that unsupervised and overnight visits between F.H. and her daughter were appropriate at that time, a judge ordered that the children's custody arrangement remain the same. Shortly thereafter, V.M.'s and D.H.'s therapist at Urban Care strongly advised against reunification.

In March 2008, F.H. became less compliant with DYFS and began exhibiting behaviors that concerned the therapists involved with the family. F.H. failed to show up at a March 18 Compliance Rev.ew. As of April 18, 2008, she had not responded to her DYFS caseworker's repeated attempts to contact her since March 6, 2008. F.H. did complete her FLEC parenting classes on
April 14, 2008, but on May 7, 2008, the Hudson County Child Abuse Prevention Center reported that F.H. had stopped attending her individual therapy sessions in March 2008, and it was unable to reach her after April 3, 2008. Her therapist could not confirm that F.H. was ready to be reunited with her children and expressed two major concerns: "her new contact number [was] that of an unidentified male and [F.H.] ha[d] not made any attempts to keep her scheduled appointments."

On June 2, 2008, Catholic Charities brought the children to F.H.'s home for a visit, but she was not there. F.H.'s male companion was present in the home. The children were tremendously upset. When F.H. arrived home, she asked the male to leave and discussed her relationship with the man with her children. The case manager expressed concern that the man had free access to F.H.'s home; F.H. was adamant that it would not occur when the girls were home.

On June 19, 2008, the Catholic Charities case manager advised that she did not believe reunification at that time would be in the best interest of the children because of the "recently escalated trust and safety issues the children have expressed." On July 28, 2008, Catholic Charities reported that F.H. missed three visits in the last month, recently lost her job, and feared losing her apartment. They referred her to several agencies for assistance with her needs.

On August 4, 2008, Judge Lourdes Santiago approved a permanency plan of termination of F.H.'s parental rights. DYFS arranged weekly two hour visits between F.H. and her daughters at an agency office beginning on August 18 through September 4, 2008. F.H. missed several of those visits due to misdirected mail. Yet, even with notice, F.H. subsequently missed a scheduled visit on September 30, 2008.

On October 7, 2008, DYFS filed a complaint against F.H. to terminate parental rights to her daughters. The trial commenced on April 6, 2009. When F.H. failed to attend the first three days of trial, Judge Santiago entered a default judgment but vacated the judgment when F.H. appeared on the fourth day of trial.

At trial, the DYFS caseworker related the history of referrals of physical and sexual abuse, the results of the various investigations, and the services offered to the family since November 2006. The caseworker reported that F.H. had been largely noncompliant with supervised visits since November 2008, a month after the complaint to terminate F.H.'s parental rights had been filed. F.H. had attended only three or four of the scheduled visits and only D.H. attended the visits. V.M., now twelve years old, refused to visit her mother.

The caseworker testified that the agency learned in December 2008 that F.H. was living with a new boyfriend and his child. The caseworker testified that the agency knew nothing about this man because he would not allow himself to be interviewed.

The caseworker also testified that another incident of sexual abuse was reported to DYFS in December 2008. According to the report, unsubstantiated at the time of trial, the boyfriend of D.H.'s grandmother sexually molested V.M. and her cousin.

The caseworker further testified that she had few concerns about D.C., the current custodian of the children and anticipated an adoptive parent. D.C. readily accepted parenting responsibility not only for her great-granddaughter V.M., but also V.M.'s half-sister D.H. Although D.C. was almost eighty years old at the time of trial, she was in good health and had involved two of her children in the lives of D.H. and V.M. in anticipation of the time when she could not care for them. At trial, D.C. confirmed her interest and ability to care for the girls and provide for their future care. G.S., one of D.C.'s daughters, also testified about her present involvement in the care of V.M. and D.H. and her interest in their well-being.

Dr. Karen Wells, a psychologist, also testified at trial on behalf of DYFS. She conducted a psychological evaluation of F.H. on January 29, 2009, and bonding evaluations between mother and daughters and the paternal great-grandmother and the girls.

Dr. Wells' ultimate conclusion with respect to F.H.'s psychological examination was that she could not "support that [F.H.] could provide [her daughters] with a safe and stable home and family life." Her main concerns were (1) F.H. expressed apprehension about separating her daughters, yet supported V.M.'s decision not to be reunited with her; (2) F.H. did not visit consistently; (3) F.H. expressed concerns about her ability to take care of the children's needs; (4) reports that F.H. prematurely stopped individual therapy; and (5) the reported trust issues the children have with their mother.

On the subject of bonding, Dr. Wells found that D.H. was more welcoming and inviting to her mother and consistently looked for attention. V.M., on the other hand, was initially detached, rude, and angry towards her mother, but eventually softened towards F.H. Dr. Wells observed that F.H. failed to set limits for the children's behavior and V.M. reprimanded D.H. prior to F.H. doing so. In those situations, V.M. was taking more of an adult role than her mother.

Dr. Wells reported D.H. views her mother as a psychological parent, someone who a child looks to with an emotional attachment and trust; V.M. does not. She determined that D.H. looks to F.H. for attention and affection, but does not look to her mother for her day-to-day needs because F.H. has not been in that role. Dr. Wells opined that the bond between D.H. and F.H. was intact, and D.H. could feel securely attached to her again if F.H. responded in a consistent manner and fulfilled D.H.'s everyday needs. V.M., however, does not view her mother as trustworthy and, "in some respects. . . doesn't even really value her role as an adult figure in her life."

Dr. Wells ultimately opined that the children would suffer no permanent harm if they were separated from F.H. V.M. would suffer no harm because she already began to emotionally sever from F.H., and as long as D.H. continued to feel safe, she would suffer no harm because safety was the major factor for her.

Dr. Wells found that both girls were securely attached to D.C. V.M. was not rude or reserved when she interacted with D.C. D.C. was easily amused by the children and both children were delightful, well mannered, and related appropriately to her. Dr. Wells reported that their conversations were very natural and pleasant. They spoke of school, the fun things they did at home, and how they should act in the community.

Dr. Wells opined that it would be "traumatic and devastating" to both girls, if the relationship between them and D.C. was severed. She said that D.H. would not feel safe, would be untrusting, and would blame herself and assume that she was a bad person who caused her caregivers to consistently cease caring for her. The doctor felt that V.M. would start acting out, would become physically and verbally aggressive, and would show further educational deterioration.

Dr. Wells also testified "[g]reat harm would befall both children" if they were ever separated from each other. She stated that they have always been together and have come to depend on one another. The doctor explained that the children rely on each other for support and "to make sense of what's going on in their world."

In her June 16, 2009 opinion, Judge Santiago found that "years of transience have resulted in exposing [F.H.'s] children to both physical and sexual abuse." She further found that F.H. abandoned her initial efforts to achieve reunification by missing appointments, skipping visits with her children, and moving from place to place. Thus, F.H. demonstrated that her conduct had caused harm to her children and continues to expose her children to harm. In particular, the judge found that F.H. discounted the reports of abuse, seemed incapable of acknowledging the harm caused to her daughters by the men with whom she lived, and further demonstrated her unwillingness to give priority to the needs of her daughters. In short, F.H. failed to appreciate the needs of her daughters and failed to protect them.

Judge Santiago found that DYFS made reasonable efforts to reunify the family and considered alternatives to termination of parental rights. She cited the various services provided to F.H., including family team meetings, supervised visits, individual psychological counseling, parenting skills classes, and housing and employment support.

Judge Santiago also found that termination will not cause more harm than good to the girls. Here, the judge found that the children were well-cared for and content with D.H.'s paternal great-grandmother. Their caregiver provided the emotional stability and protection from physical harm that their mother failed to provide. While the judge recognized a bond between F.H. and her daughters, she ultimately concluded that severance of the girls' relationship with D.C. due to reunification with their mother would cause great harm to the children. In particular, the judge found that F.H. "failed to avail herself of the opportunity to visit and to parent her children and failed to provide her children with the necessary nurturing, care and protection the children have needed and continue to need." In contrast, the paternal great-grandmother provided "a stable and nurturing home. To remove the children would disrupt the stable relationships they have . . . and would cause them great harm."

On appeal, F.H. argues that her "inadequate parenting" is not a harm to her children that supports termination of her parental rights. She also argues that her relationship with a new boyfriend unknown to the children does not make her an unfit parent. F.H. contends that DYFS failed to provide reasonable services to her and her family and that the trial judge applied a "better interests" standard.

Our review of a trial judge's decision to terminate parental rights is extremely limited. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007). The governing standard of review is as follows:

A reviewing court should uphold the factual findings undergirding the trial court's decision if they are supported by adequate, substantial and credible evidence on the record. Additionally, as a general rule, [the court] must grant deference to the trial court's credibility determinations. However, where the focus of the dispute is . . . alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom, the traditional scope of review is expanded. Still, even in those circumstances [the court should] accord deference unless the trial court's findings went so wide of the mark that a mistake must have been made.

[Id. at 279 (internal quotations and citations omitted).]

A parent has a fundamental right to raise his/her child and maintain a relationship with that child. E.g., N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 102 (2008); In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). There is strong public interest in preserving and strengthening family life. K.H.O., supra, 161 N.J. at 347. Therefore, there are strict standards that must be met in order to terminate those rights, and any doubts must be resolved in favor of upholding parental rights. Ibid.

Parental rights, however, are not absolute. Ibid. "The constitutional protection surrounding family rights is tempered by the State's parens patriae responsibility to protect the welfare of children." Ibid; See also Fawzy v. Fawzy, 199 N.J. 456, 474 (2009); E.P., supra, 196 N.J. at 102. Parental rights may only be terminated under the best interest of the child standard. K.H.O., supra, 161 N.J. at 347. The standard consists of four prongs that must be satisfied by clear and convincing evidence. E.P., supra, 196 N.J. at 103. The standard was originally announced in New Jersey Division of Youth & Family Services v. A.W., 103 N.J. 591 (1986), and codified at N.J.S.A. 30:4C-15.1:

The child's safety, health or development has been or will continue to be endangered by the parental relationship;

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 [foster] parents would cause serious and enduring emotional or psychological harm to the child;

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

Termination of parental rights will do no more harm than good.

The four prongs "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. "[T]he cornerstone of the inquiry is not whether the biological parents are fit but whether they can cease causing their child harm." In re Guardianship of J.C., 129 N.J. 1, 10 (1991) (citing A.W., supra, 103 N.J. at 607).

Our review of this record demonstrates that the findings of fact are well supported by the record and that Judge Santiago properly applied the governing legal standard to those facts. Quite simply, this record demonstrates that both girls were sexually molested by one of their mother's boyfriends, and the youngest child was sexually molested by an uncle. Although F.H. knew of the assaults, she discounted the reports and failed to seek any redress of these violations of her daughters. She was oblivious to the harm caused by these assaults. As such, she demonstrated that she could not protect them from further physical or emotional harm.

In addition, due to the instability of her various relationships--romantic, employment, and familial--F.H. was unable to maintain a stable place to live. She and her daughters traipsed back and forth between residences in Essex and Hudson counties, interfering with the girls' education and certainly precluding any educational continuity.

F.H. also proved incapable of applying the various skills and lessons provided to her through the multitude of services in which she participated. Knowing her parental rights were at risk, she ceased to visit her children, and formed new romantic relationships with no regard to the physical and emotional well-being of her daughters.

 
Finally, F.H.'s inability to realize that her daughters had been harmed and her inability to protect them from further harm allowed the girls to be separated from her and to form an emotional bond with D.C. The record clearly supports the finding that the children should not be removed from the only stable and consistent source of physical safety and emotional support that they know.

Affirmed.

The record suggests that F.H. and her daughters returned to Harmony House after a brief stay at a battered women's shelter.

(continued)

(continued)

30

A-5915-08T4

RECORD IMPOUNDED

April 26, 2010