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

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6037-07T46037-07T4

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

K.H.,

Defendant-Appellant.

_________________________________

IN THE MATTER OF THE

GUARDIANSHIP OF M.S.B.H.,

Minor.

_________________________________

 

Argued December 1, 2009 - Decided

Before Judges Carchman, Lihotz and Ashrafi.

 
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-184-08.

Cheryl Gammone, Designated Counsel, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Ms. Gammone, on the brief).

George M. Macchia, Deputy Attorney General, argued the cause for respondent (Anne Milgram, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Mal'ee L. Wing, Deputy Attorney General, on the brief).

Noel C. Devlin, Assistant Deputy Public Defender, argued the cause for the minor (Yvonne Smith Segars, Public Defender, Law Guardian, attorney; Mr. Devlin, on the brief).

PER CURIAM

K.H. appeals from a June 4, 2008 Family Part judgment terminating her parental rights to M.H., her twelve-year-old autistic child, and awarding guardianship of M.H. to the Division of Youth and Family Services (DYFS or Division) for the purpose of securing the child's adoption. The Law Guardian supports termination of K.H.'s parental rights.

On appeal, K.H. presents these issues for our review:

I. K.H.'s PARENTAL RIGHTS SHOULD NOT HAVE BEEN TERMINATED BECAUSE DYFS FAILED TO ESTABLISH, BY CLEAR AND CONVINCING EVIDENCE, EACH OF THE FOUR PRONGS OF THE TERMINATION OF PARENTAL RIGHTS STATUTORY TEST.

A. BECAUSE HARM TO THE CHILD'S HEALTH WAS NOT SHOWN, DYFS FAILED TO ESTABLISH THAT PRONG ONE OF THE TEST WAS MET (NOT RAISED BELOW)

B. THE STATE DID NOT PROVE PRONG TWO OF THE STATUTE BECAUSE THE STATE DID NOT ESTABLISH THAT MOTHER WAS UNABLE TO REMEDY HER MENTAL ILLNESS OR THAT DELAY OF PERMANENT PLACEMENT WOULD ADD TO THE CHILD'S HARM.

C. THE STATE FAILED TO PROVIDE MOTHER WITH ANY SERVICES. THEREFORE, THE STATE FAILED TO SATISFY PRONG THREE OF THE STATUTE.

D. DYFS CANNOT SATISFY THE FOURTH PRONG OF THE STATUTE SINCE THEIR OWN MISCONDUCT UNFAIRLY IMPACTED THE BEST INTERESTS ANALYSIS (NOT RAISED BELOW).

After considering the record and briefs in light of the applicable law, we are satisfied the trial judge's findings and conclusions are firmly supported by substantial, credible evidence in the record as a whole. See, e.g., Division of Youth and Family Servs. v. A.R.G., 361 N.J. Super. 46, 78 (App. Div. 2003), aff'd in part, modified in part, 179 N.J. 264 (2004).

DYFS became involved with the family on January 16, 2006, when it received a referral after Newark Police Officer Zaghloul observed a fire in a seemingly abandoned building where K.H. and M.H. were living. K.H. had set fire to cloth to warm the apartment. Officer Zaghloul found M.H. covered by blankets lying in the bath tub, and described K.H. as "bipolar and incoherent." Defendant and M.H. were brought to the University of Medicine and Dentistry of New Jersey (UMDNJ) for examination, and DYFS was contacted.

K.H., who had a history of bi-polar disorder and schizophrenia, was admitted to UMDNJ's psychiatric unit for treatment. K.H. remained in the hospital for more than one week, where she was stabilized. Following examination, M.H. was discharged to DYFS's care. The Division described M.H. as "dirty, smelly and her hair was unke[m]pt." "[D]ue to inadequate shelter of the family and [K.H.'s] inability to parent due to her mental health issues," and because K.H. had no relatives who could care for M.H. while she received psychological care, the Division sought an order granting the emergency removal of the child, along with an order granting the Division care and custody. N.J.S.A. 9:6-8.29 to -8.31.

M.H.'s initial foster placement lasted only one night. The child was then taken to the New Jersey Regional Day School (NJ Regional), where she had been enrolled but absent since January 10, 2006. The familiarity of the school calmed M.H. A second placement attempt also proved unworkable due to M.H.'s behavior and needs. DYFS temporarily placed M.H. at the Woodbridge Child Diagnostics Treatment Center (Woodbridge Diagnostics).

On January 19, 2006, M.H. was taken for a medical check-up, where M.H. "became physically abusive to [hospital staff and the caseworker]," and ran across the street, without looking, into a convenience store where she stole a bag of potato chips. On January 20, 2006, M.H. was rejected by a third foster parent after she exhibited similar erratic behavior. DYFS returned M.H. to Woodbridge Diagnostics, where she spent the weekend. M.H. became aggressive, tried to push staff, and acted "as though she was going to bite them."

On January 23, 2006, M.H. was placed with R.F., an experienced caregiver for autistic children who was also serving as a foster parent for another autistic child. Aided by health care providers, she assisted in the children's daily living needs. M.H. remains in R.F.'s care, and R.F. has expressed a desire to adopt the child.

On January 26, 2006, K.H. attended a treatment planning meeting with DYFS. She was "lucid and coherent and spoke rationally of her concern for and separation from [M.H.]" and her desire "to be reunited" with her child. The Division's report noted, K.H. "should call [M.H.] as soon as she is able and . . . visiting [the child] should wait until after being discharged from the hospital and taking the necessary steps to assure that [K.H.'s] basic needs are met." K.H. was discharged in February 2006, and placed in a boarding house, where she remained throughout the litigation. K.H. attended a daily treatment program at UMDNJ from 9 a.m. to 3 p.m.

On February 7, 2006, Ronald Wei, M.D., evaluated K.H. K.H. first suffered a "breakdown" in 1989, resulting in hospitalization after jumping out a window. Dr. Wei learned K.H.'s mental illness had been controlled by medication for years. Unfortunately, K.H.'s treating psychiatrist moved around August 2005, and K.H. ceased her medication. Dr. Wei also noted K.H.'s symptoms of "paranoia, bizarre ideation, [and] feelings of persecution" worsened.

As of August 29, 2006, K.H. had not visited with M.H. because DYFS "ha[d] not been able to ascertain the full extent of [K.H.'s] psychiatric problems" and was "unable to determine the appropriate setting to [e]nsure a safe and secure location for visitation to occur between mother and child."

A review hearing was held on November 15, 2006. M.H. was progressing favorably, and the Division reported "there ha[s] been an overall improvement in [] appearance and behavior." R.F. told DYFS "this is the best year [M.H.] has had since being at the school." The Division reported its goal for M.H. was "Long Term Specialized Care." K.H. requested visitation, which was granted upon receipt of "a favorable report from [K.H.'s] treating psychiatrist."

On January 30, 2007, Samiris Sostre, M.D., a psychiatrist, evaluated K.H. Dr. Sostre noted K.H. was alert and oriented to person, place and time, and her remote and recall memory were good, as was her concentration. However, K.H.'s insight into her current problems was reported as "only fair." With regard to K.H.'s mental health, Dr. Sostre concluded:

[K.H.] has a flat affect, concrete thinking, poor insight and difficulty picking up social clues. Her ability to relate to others is also limited. These are symptoms that are . . . unlikely to improve with time or more treatment. [K.H.] does not represent a danger to herself or others.

With regard to custody and visitation, Dr. Sostre concluded K.H. would not "be able to handle the demands a disabled child presents in terms of continuous care taking" but should be able to visit the child "with no problem." Supervised visitation between K.H. and M.H. commenced on May 23, 2007, and continued bi-weekly thereafter. With the exception of two unexplained absences, K.H. attended all visits.

Dr. Sostre reevaluated K.H. in September 2007. His findings with respect to K.H.'s mental health had not changed. Dr. Sostre noted K.H. "appear[ed] more informed . . . about [M.H.'s] disability and limitations[;]" nevertheless, Dr. Sostre recommended against allowing K.H. to engage in unsupervised visits.

In January 2008, R.F. relocated to Georgia with M.H. and her other foster child. DYFS continued to facilitate monthly visits between parent and child by flying K.H. to Georgia accompanied by two DYFS workers.

In addition to this historical information, the Division presented the expert testimony of Alice S. Nadelman, Ph.D. regarding her psychological evaluations of K.H. and M.H. and the bonding assessments she conducted between M.H. and K.H. and M.H. and R.F. Dr. Nadelman administered the Millon Clinical Multiaxial Inventory-III (Millon) to K.H., a test designed to make "assessments and treatment decisions about persons with emotional and interpersonal difficulties." The test showed, K.H.'s "envy and hostility rarely subside. [K.H.] is touchy and irritable, ready to humiliate and deprecate anyone whose merits she questions and whose attitudes and demeanor evoke her ire or contempt." Dr. Nadelman opined K.H.'s "responses [to the Millon] indicated a significant delusional disorder with paranoid features . . . . She also showed and met the diagnostic criteria for narcissistic personality disorder with self-defeating personality features."

As part of her evaluation, Dr. Nadelman also administered the Adult-Adolescent Parenting Inventory, "designed to assess the parenting and child rearing attitudes of adult and adolescent parent . . . populations." Although K.H.'s responses placed her in the average range, her "responses were in the risk range for reversing parent-child roles (expecting children to meet their parents' needs) . . . . In view of [M.H.]'s autism, it would be virtually impossible for her to meet her mother's needs . . . ." Dr. Nadelman further concluded K.H. "did not show the psychological capacity to provide even minimally adequate parental care for any child[,] but particularly not for a child with serious special needs such as her daughter."

Dr. Nadelman observed the relationship and interactions between M.H. and R.F., concluding:

[T]here is a developing secure attachment to the foster mother, that she has clearly become [M.H.]'s psychological parent as well as her actual day-to-day parental figure, and that [M.H.] has made excellent progress in the two years that she's been in [R.F.]'s care. And that if this attachment were broken, that [M.H.] would be likely to experience serious and enduring harm, that this relationship has enabled her to make the progress and that it's essential for it to be continued.

Dr. Nadelman also testified regarding her assessment of the relationship between K.H. and M.H. Initially, Dr. Nadelman asked that K.H. engage M.H. in "reciprocal activity, where they would interact[] with each other," but the two did not interact "other than through conversation." M.H. became aggressive and started to bark when defendant suggested they color on the same page, rather than separately. Dr. Nadelman opined that K.H.'s expectation of M.H.'s linguistic skills was too high for a child with autism and that defendant "had expectations that [M.H.] could answer open-ended questions that would require a sentence" even though M.H. lacked such capacity. Moreover, Dr. Nadelman noted K.H. became suspicious when M.H. failed to answer her questions, even though M.H. was not able to do so. Dr. Nadelman found "there was minimal attachment" between parent and child. She stated M.H. related to K.H. "not particularly any differently than [the child] related to me, who[m] she had only met once before. If anything, she smiled more at me than [K.H.]."

As a result of her assessment, Dr. Nadelman concluded there was a "minimal attachment" between K.H. and M.H. and "[M.H.] showed fewer indications of attachment to her mother than she did to her foster mother." K.H. was neither soothing nor comforting to the child but rather "angry and stern," and "showed fewer and less effective skills in dealing with [M.H.] than did [R.F.]." Dr. Nadelman further opined, "[i]n view of [K.H.'s] paranoid ideation, which encompasses most people in her life including her older children, [M.H.] would be at-risk to become another target of [her] suspicions and paranoia without any ability to defend herself. This could place [M.H.] in danger of both psychological and physical harm."

Relying upon her observations during the clinical interview, the results of the administered tests and the bonding assessments, Dr. Nadelman summarized her findings:

It is the essential conclusion of these evaluations, based on integration of the findings discussed above that [K.H.] has not remediated the problems that caused harm to [M.H.] and required that [M.H.] be removed from her 2 years ago and cannot function as a safe or appropriate parent for [M.H.] at this time or in the foreseeable future.

. . . .

The combination of [K.H.'s] significant psychiatric disturbance, her own narcissistic preoccupation with herself and her own needs and her own feelings would make it impossible to adequately and safely parent the child with [M.H.]'s degree of disability.

Dr. Nadelman concluded that there would be "virtually no harm" to M.H. if K.H.'s parental rights were terminated.

The Division also presented the testimony of Latoya Nannan, a caseworker who described M.H.'s living situation in Georgia, where the child resides with R.F., another autistic child, R.F.'s oldest daughter and two year-old granddaughter. A home health aide assists M.H. and the other autistic foster child with their daily living needs about twenty hours each week. Nannan described the parent child interactions during K.H.'s supervised visits with M.H. in Georgia. She observed the two conversing little, often sitting on opposite sides of the couch in a TV room. When K.H. tried to kiss M.H., the child ran into the kitchen and rubbed her face where K.H. had kissed her. M.H. would hug Nannan and her DYFS coworker but refused to hug defendant.

Defendant did not testify, called no witnesses and presented no evidence.

In an oral opinion rendered on May 19, 2008, Judge Lombardi made the following findings with regard to the Division's satisfaction of the first two statutory prongs of N.J.S.A. 30:4C-15.1:

So, the first prong being that the child's hea[l]th and development was endangered by the parental relationship, I think the record's clear on January 16th, 2006 it was. And I think even [K.H.'s] admission to talking to the psychiatrist and psychologist that -- and even to caseworkers at the time that she felt she was having some sort of a breakdown and she wasn't able to deal with the demands up on [sic] her and her child at the time.

. . . .

[I]t's this Court's determination that since [K.H.] has been diagnosed and has been . . . in a half-way house where somebody else medicates her, gives her her medicine every day and makes sure she takes it, and [goes] to a five-day a week program for mental health treatment, and [has] continu[ed] to do so now for over two years [] with no prognosis of her being able to do better, I do accept [that] . . . she does not have the ability . . . to have more than supervised contact with [M.H.] and Dr. Nadelman's opinion that she could not in her present psychological state and psychiatric state . . . provide minimal parenting.

. . . .

[The] Court would find that prong two has been met in that a delay in permanent placement will add to [M.H.]'s harm.

. . . .

So, I find that prong two is met because any further delay clearly there would not be permanence and there would be a question of whether [R.F.] would want to . . . continue to care for [M.H.] and if not, then certainly the child would endure more harm by changing placements and at this time, after . . . more than two years, there's no record that a change in placement could be [with] [K.H.].

With respect to prong three, the court first noted that DYFS never "offer[ed] services to train or treat [defendant] with her present mental condition to be able to appropriately care for [M.H.], and since she did it in the past, you would believe that she should be capable on the medication of doing it in the future." The court further noted DYFS would "follow up on any recommendations from [K.H.'s] psychiatrist," but her psychiatrists had not made recommendations as to what kinds of services would benefit her, and she had not requested any specific services be provided. The trial court held that DYFS met its burden to prove prong three, stating:

[I]t was in the contact notes that [DYFS] would follow the recommendation of the psychiatrist for any additional services. They followed the recommendation as far as visitation. And I believe what occurred is until they had a psychiatric report, visitation was not implemented. So, they had a report that visitation be supervised and they had a report that visitation once a week supervised would be fine, but there was nothing recommended by an expert that there was other things to do to make [K.H.] more capable or . . . increase her capability in being able to care for [M.H.]

So, I do find [DYFS] did make diligent efforts to help the parent correct the circumstances. They had her psychiatrically evaluated and were willing to follow any recommendations. There was never any recommendation that there was other things that could be done.

 
. . . .

So on a blank record, I don't find [DYFS] fell down. They did provide visitation as recommended by the psychiatrist and there w[ere] no recommendations to improve, other than her continuing on her present program . . . . Although, I absolutely agree with [defense counsel] that [DYFS] should have had a case plan and provided such a case plan, but I don't see anything would have changed if they did. There's no separate reports by the defendant from any professionals that would suggest there are ways to increase her parental rights. . . .

Finally, the judge determined DYFS satisfied the fourth statutory prong, stating:

On the present record, I do have that [M.H.] is doing well. I have [the] psychological opinion by Dr. Nadelman that the security and permanency she needs as an autistic child will be best with her present foster mother in which she's developed this attachment and trust and she doesn't experience that with her mother during the bonding [assessment].

The one . . . that does also concern this [c]ourt is that I have no evaluation of [M.H.] I have no evaluation of how her needs and her problems were dealt with when she was first taken from [K.H.], and I have no evaluation other than the bonding evaluations Dr. Nadelman did as to how [M.H.] would react if she no longer had any contact with her mother.

. . . .

I don't find anything in the record . . . that if this [c]ourt did terminate parental rights it would do more harm than good. I do find that [M.H.] [is] stable and having an attachment to [R.F.] who wants to adopt her, that that will be good for her and elimination of the visitation which has been four hours a month, . . . I have no record that that would create an enduring or lasting harm.

Therefore, the court concluded it was "in the best interests of [M.H.] now after two years and four months that she receive the permanence by terminating parental rights and allowing the adoption to go through for [R.F.]" K.H. appealed.

In our review we are guided by certain basic principles. The scope of our review of a trial court's decision to terminate parental rights is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002); see also In re Guardianship of Jordan, 336 N.J. Super. 270, 273 (App. Div. 2001). We also have a limited scope of review of the Family Part's factual findings. We are obliged to accord deference to the trial judge's credibility determinations and the judge's "feel of the case" based upon the opportunity of the judge to see and hear the witnesses. A.R.G., supra, 361 N.J. Super. at 78 (citing Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)). "When the credibility of witnesses is an important factor, the trial court's conclusions must be given great weight and must be accepted by the appellate court unless clearly lacking in reasonable support." Division of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 259 (App. Div. 2005) (citing In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999)). We rely upon the trial court's acceptance of the credibility of the expert's testimony and the court's fact-findings based thereon, as it is in a better position to evaluate the witness's credibility, qualifications, and the weight to be accorded to the expert's testimony. Ibid.; see also In re Guardianship of J.C., 129 N.J. 1, 19 (1992).

We are not to disturb the factual findings and legal conclusions of the trial judge 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) (citation omitted). Additionally, because of the family court's special jurisdiction and expertise in family matters, appellate courts should accord deference to family court fact-finding and the conclusions, which flow logically from those findings of fact. Cesare, supra, 154 N.J. at 412-13; Division of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007). Reversal is required only in those circumstances in which the trial court's findings were "so wide of the mark that a mistake must have been made." M.M., supra, 189 N.J. at 279 (citations omitted). Applying this standard, we discern ample evidence in the record supporting the judge's conclusion that the best interests of the child require termination of K.H.'s parental rights.

"Parents have a constitutionally protected, fundamental liberty interest in raising their biological children." In re Adoption of a Child by W.P. and M.P., 308 N.J. Super. 376, 382 (App. Div. l998) (citing Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394, 71 L. Ed. 2d 599, 606 (1982)), vacated on other grounds, 163 N.J. 158 (2000). "The Federal and State Constitutions protect the inviolability of the family unit." W.P. and M.P., supra, 308 N.J. Super. at 382 (citing Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212-13, 31 L. Ed. 2d 551, 558-59 (1972)). However, government "is not without constitutional control over parental discretion in dealing with children when their physical or mental health is jeopardized." Parham v. J.R., 442 U.S. 584, 603, 99 S. Ct. 2493, 2504, 61 L. Ed. 2d 101, 119 (1979) (citing Wisconsin v. Yoder, 406 U.S. 205, 230, 92 S. Ct. 1526, 1540, 32 L. Ed. 2d 15, 33 (1972)). The State, as parens patriae, may sever the parent-child relationship to protect the child from serious physical and emotional injury. W.P. and M.P., supra, 308 N.J. Super. at 382.

When the child's biological parent resists termination of parental rights, it is the court's function to decide whether the parent can raise the child without causing harm. J.C., supra, 129 N.J. at 10. The cornerstone of our inquiry is not whether the parent is fit, but whether the parent can "cease causing their child harm" and become fit to assume the parental role within time to meet the child's needs. Ibid. (citing Division of Youth & Family Servs. v. A.W., 103 N.J. 591, 607 (1986)). "The analysis . . . entails strict standards to protect the statutory and constitutional rights of the natural parents." J.C., supra, 129 N.J. at 10. "The burden rests on the party seeking to terminate parental rights 'to demonstrate by clear and convincing evidence' that risk of 'serious and lasting [future] harm to the child' is sufficiently great as to require severance of the parental ties." W.P. & M.P., supra, 308 N.J. Super. at 383 (quoting J.C., supra, 129 N.J. at 10).

The question for the court "focuses upon what course serves the 'best interests' of the child." W.P. & M.P., supra, 308 N.J. Super. at 383. The State Constitution and N.J.S.A. 30:4C-15 and 15.1(a) require satisfaction of the "best interests of the child" test by clear and convincing evidence before termination of parental rights can occur. See A.W., supra, 103 N.J. at 612; Jordan, supra, 336 N.J. Super. at 274. Specifically, the four-prong test set forth in N.J.S.A. 30:4C-15.1(a) requires the Division to 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 [formerly referred to as "foster"] parents would cause serious and enduring emotional or psychological harm to the child;

(3) The [D]ivision 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.

See In re Guardianship of K.H.O., 161 N.J. 337, 347-48 (1999). These standards are neither discrete nor separate; they overlap to provide a composite picture of what may be necessary to advance the best interests of the children. Id. at 348. "The considerations involved in determinations of parental fitness are 'extremely fact sensitive' and require particularized evidence that address the specific circumstances in the given case." Ibid. (quoting In re Adoption of Children by L.A.S., 134 N.J. 127, 139 (1993)).

Our examination of this record discloses all four prongs of the test as they pertain to K.H. have been met by clear and convincing evidence. The first prong involves inquiry into whether there has been "endanger[ing] of the child's health and development resulting from the parental relationship," and whether there will be future harm to the child's safety, health or development if the parental relationship is not terminated. Ibid. The focus of the inquiry is not necessarily on a "single or isolated harm, or past harm," but rather on "the effect of harms arising from the parent-child relationship over time on the child's health and development." Ibid.

The second prong contemplates parental unfitness and, for termination to occur, requires the conclusion that the parent is "unwilling or unable to eliminate the harm" that had initially endangered the child's health, safety and development. N.J.S.A. 30:4C-15.1(a)(2). The question is whether the parent can become fit in time to meet the needs of the child. J.C., supra, 129 N.J. at 10. The potential further harm caused by a "delay of permanent placement" is also a consideration. N.J.S.A. 30:4C-15.1(a)(2). DYFS must prove "the harm is likely to continue" as a direct result of the parent's inability or unwillingness to eliminate the harm. K.H.O., supra, 161 N.J. at 348.

The third prong requires DYFS to make "reasonable efforts" to assist the parents in correcting or eliminating the circumstances that caused the harm and consider alternatives to termination. N.J.S.A. 30:4C-15.1(a)(3). The reasonableness of the Division's efforts for reunification "is not measured by their success." D.M.H., supra, 161 N.J. at 393.

Lastly, the statute's fourth prong mandates a determination as to "whether a child's interest will best be served by completely terminating the child's relationship with that parent." Division of Youth & Family Servs. v. E.P., 196 N.J. 88, 108 (2008). The court must inquire into the child's bond with both biological and foster parents. "[A]fter considering and balancing the two relationships," the determinative issue is whether "the child will suffer a greater harm from the termination of ties with her natural parents than from the permanent disruption of [the] relationship with the foster parents." K.H.O., supra, 161 N.J. at 355. Answering that question "necessarily requires expert inquiry specifically directed to the strength of each relationship." Ibid. (quotations and citations omitted). This prong does not and "cannot require a showing that no harm will befall the child as a result of the severing of biological ties." Ibid.

In attacking the Court's findings as against the weight of the evidence, K.H. maintains the trial court erred in stating the applicable legal standard. She argues the judge "relied upon a comprehensive, best interest approach in deciding the case, without also ensuring that each of the four prongs of the statute were satisfied." We reject this suggestion. Here, Judge Lombardi made discrete findings on each of the statutory four prongs while understanding "[t]he four criteria enumerated in the best interests standard are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." Id. at 348.

We also disagree with K.H.'s suggestion that the Division failed to provide clear and convincing evidence to satisfy the first, second and fourth statutory prong. R. 2:11-3(e)(1)(E). We determine there is "adequate, substantial, and credible evidence" in the record to support the trial court's findings. Cesare, supra, 154 N.J. at 412. We briefly address these issues.

K.H.'s deteriorated mental health condition, which resulted when she stopped consulting a psychiatrist and taking her medication, posed physical, developmental, and emotional dangers to her special needs child. While we agree K.H. did not physically abuse the child and is blameless for the existence of her psychiatric condition, her mental illness caused the family to be homeless with limited food and clothing, led K.H. to start an open fire inside a building to provide warmth, and resulted in M.H. not attending school and being deprived of daily structure and medical care. These harms sufficiently support the finding that M.H.'s "safety, health or development" were endangered by K.H., as required by N.J.S.A. 30:4C-15.1(a)(1). See Division of Youth and Family Servs. v. I.Y.A., 400 N.J. Super. 77, 94 (App. Div. 2008) (stating the Division must present medical evidence of mental issues along with evidence to support parental unfitness to support a finding of neglect or abuse, not mere hospitalization records).

Although K.H. cared for her child for twelve years, she stopped her medication in 2005, prompting the Division's intervention in January 2006. K.H. remained in-patient under hospital care until February 2006, clearly unable to care for M.H. Upon discharge, K.H. remained unable to independently provide for herself and resided in a monitored, structured environment. Dr. Nadelman's expert opinion, which was credited by the trial court, supported the finding that K.H.'s mental illness, although treated, precluded her ability to provide for the increased demands of the special needs of M.H. Dr. Nadelman concluded K.H. "did not show the psychological capacity to provide even minimally adequate parental care for any child but particularly not for a child with serious special needs such as her daughter." Acknowledging K.H.'s desire to continue treatment, the expert opinion properly relied upon by the trial court evidenced that K.H.'s condition made her unable to appreciate M.H.'s special needs or to provide a safe and stable home for the child. Moreover, the delay of permanent placement for M.H. would increase her attachment to R.F. such that future separation would add to the harm. N.J.S.A. 30:4C-15.1(a)(2). See Division of Youth and Family Servs. v. P.P., 180 N.J. 494, 507 (2004) (concluding that when a child has significantly bonded to his or her foster parents separation from them would in itself "cause serious and enduring emotional or psychological harm to the child" as required by the statute).

We do not agree with K.H.'s analysis that "DYFS' incompetent and insensitive handling of this case severely interfered with the relationship between her and [M.H.] and severely prejudiced [her] ability to have the child returned[.]" K.H. argues DYFS should not be permitted to "destroy a family and then fault a mother for the weakened relationship." We reject these arguments as Dr. Nadelman's uncontroverted findings, after considering and balancing the two relationships, supported her conclusion that harm would inure to M.H. from the permanent disruption of her relationship with R.F., yet similar harm would not occur if parental rights were terminated. N.J.S.A. 30:4C-15.1(a)(4). "[W]here it is shown that the bond with foster parents is strong and, in comparison, the bond with the natural parent is not as strong, that evidence will satisfy the requirement of N.J.S.A. 30:4C-15.1(a)(4)." K.H.O. supra, 161 N.J. at 363.

The question necessitating a more detailed analysis is whether the Division properly met its burden to "make reasonable efforts" to help K.H. correct the circumstances that led to M.H.'s placement outside the home. N.J.S.A. 30:4C-15.1(a)(3). K.H. asserts DYFS failed to take action to "reunify the family or preserve the familial bonds during the separation period." Specifically, she argues M.H. was traumatized immediately following her removal; therefore, the lack of visitation for the first fifteen months was "extremely problematic." Additionally, the Division failed to offer "parenting skills classes or other training to help [K.H.] learn to effectively parent an autistic child," to assist her to "obtain permanent housing" and vocational training. In contrast, defendant contends, the Division offered R.F. "special skills training, a financial stipend and a home health aide, for up to twenty-four hours per day, seven days per week, devoted to the child's care."

"Whether particular services are necessary in order to comply with the [reasonable] efforts requirement must therefore be decided with reference to the circumstances of the individual case before the court, including the parent's active participation in the reunification effort." D.M.H, supra, 161 N.J. at 390-91. Statutory examples of "reasonable efforts" include:

(1) consultation and cooperation with the parent in developing a plan for appropriate services;

(2) providing services that have been agreed upon, to the family, in order to further the goal of family reunification;

(3) informing the parent at appropriate intervals of the child's progress, development and health; and

(4) facilitating appropriate visitation.

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

The record shows the Division's poor performance in monitoring K.H.'s progress. The fact that K.H. may have had appointed counsel, who should have been advocating for her needs, does not relieve the Division from extending additional available services to aid K.H.'s recovery. We are told K.H. attended a daily six-hour treatment program during this time making it not unreasonable to conclude that further training or programs would have been overwhelming. Based upon the expert evidence, we conclude no additional treatment or services, even if extended to K.H., would have altered the outcome.

DYFS provided K.H.'s initial psychiatric placement at UMDNJ and, upon discharge, was aware K.H. attended a day program to address her psychological needs. The record does not clearly explain the almost fifteen-month gap between removal and the first supervised visit. At the time of Dr. Sostre's January 2007 evaluation and after a year of treatment, he found that K.H., due to her continued psychological problems, was unable to handle the continuous caretaking demands a disabled child presents. He opined K.H.'s psychiatric condition was "unlikely to improve with time or more treatment." One year later, Dr. Nadelman evaluated K.H. and concluded she lacked "the psychological capacity to provide even minimally adequate parental care for any child but particularly not for a child with serious special needs such as her daughter."

This record makes clear that the depth of K.H.'s illness precluded her ability to commence reunification with M.H. Housing assistance or vocational training would not improve K.H.'s status. She was not able to live independently or provide for her own care. Unfortunately, no relative placements were available. The special needs implications of M.H.'s autism, something K.H. never fully grasped, added an additional hurdle that K.H. was not psychologically able to overcome.

We note the Division heeded Dr. Sostre's recommendation and facilitated her supervised visitation, albeit after a five-month delay. Once started, the Division was unwavering in the effort to retain the contact between parent and child to the extent of accompanying K.H., who likely could not travel independently, to visit M.H. each month in Georgia. We conclude the Division's efforts, in light of K.H.'s shortcomings, was reasonable under the unique facts of this case. D.M.H., supra, 161 N.J. at 390. We concur with the trial court's determination that N.J.S.A. 30:4C-15(a)(3) was satisfied.

We are convinced, as was the Family Part judge, although K.H. loves her child, she is unable to provide a safe, stable and permanent home necessary for the security and well-being of M.H., which she needs. As we concluded in In re Guardianship of A.R.G., 318 N.J. Super. 323, 330 (App. Div.), certif. denied, 162 N.J. 127 (1999), where there is substantial credible evidence in the record to support termination of parental rights, there is no reason to delay permanent resolution. The findings and conclusions of the trial court are supported by substantial, credible evidence in the record. See Rova Farms, supra, 65 N.J. 483-84. The evidence clearly and convincingly supported the termination of K.H.'s parental rights.

 
Affirmed.

(continued)

(continued)

22

A-6037-07T4

RECORD IMPOUNDED

January 25, 2010