NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. N.C.S.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6236-08T3

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

N.C.S.,

Defendant-Appellant.

__________________________________

IN THE MATTER OF THE

GUARDIANSHIP OF N.S.W. Jr.,

A Minor.

__________________________________

December 23, 2010

 

Submitted: December 1, 2010 - Decided:

 

Before Judges Axelrad, R. B. Coleman and Lihotz.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-14-09.

 

Yvonne Smith Segars, Public Defender, attorney for appellant (Theresa A. Nitti, Designated Counsel, on the brief).

 

Paula T. Dow, Attorney General, attorney for respondent (Andrea M. Silkowtiz, Assistant Attorney General, of counsel; Cristina E. Ramundo, Deputy Attorney General, on the brief).

 

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

PER CURIAM

N.C.S., the mother, appeals from a Family Part judgment of June 30, 2009, terminating her parental rights and awarding guardianship of her then almost twelve-year-old son, N.S.W., Jr. (Junior) to the Division of Youth and Family Services (DYFS) following a contested trial. On appeal, N.C.S. argues DYFS did not prove by clear and convincing evidence the third and fourth statutory prongs to establish that the best interests of her son required severance of her parental ties, i.e., DYFS failed to make reasonable efforts to provide N.C.S. with appropriate services and failed to prove that termination of parental rights would not do more harm than good. We note the Law Guardian initially challenged the court's legal analysis as to the fourth prong, specifically contending there was a paucity of evidence presented that DYFS would be able to find an adoptive home for the pre-teen, but appears to have altered its position as a result of the post-termination placement of Junior in an adoptive home, to be discussed in greater detail later in this opinion.

After considering the record and briefs in light of the applicable law, including the Law Guardian's initial challenge, 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., N.J. Div. of Youth & Family Servs. v. A.R.G., 361 N.J. Super. 46, 78 (App. Div. 2003), aff d in part, modified in part and remanded, 179 N.J. 264 (2004), certif. denied, 186 N.J. 603 (2006). We affirm.

I.

We need not describe in detail the many facts the trial court considered, particularly with regard to the first two statutory factors not challenged by N.C.S. We instead provide a brief summary of the cogent facts we considered in concluding that the judge's findings were well-supported by the evidence.

The following testimony and evidence were presented at the multi-day trial in June 2009, concluding with Judge David Katz's June 30, 2009 oral opinion and supplemented by his July 15, 2009 written opinion. DYFS presented the expert testimony of Mark Singer, Ed. D., who performed a psychological evaluation of N.C.S. and a bonding evaluation of N.C.S. and Junior. It also provided the factual testimony of two employees in its adoption unit, Howard Frazier, the CPR coordinator for the Adoption Office, and Eloise McDonald, a Family Service Specialist in the Adoption Unit. N.C.S. testified, and also presented the testimony of her then twenty-four-year-old daughter, A.S., regarding the limited issue of her attempt to obtain visitation with her sibling.1 The court also conducted an in camera interview of Junior, who was entering seventh grade that September.

DYFS initially became involved with the family in 1990 with regard to substantiated claims of N.C.S.' abuse and neglect of A.S. Junior was born on July 29, 1997. On September 19, 2002, DYFS filed an order to show cause against N.C.S. and N.W.2 in response to N.C.S.' twelve-hour delay in bringing her son to the emergency room after he became unresponsive as a result of ingesting an unknown illegal substance. DYFS was granted the care, custody and supervision of Junior, then five-years old. By order of November 8, 2002, custody of Junior was returned to "his parents," and DYFS retained "care and supervision only" of the child. At various times before and after this date, N.C.S. was hospitalized for anxiety, depression, schizophrenia, bi-polar disorder, and auditory hallucinations.

On October 28, 2004, DYFS retained custody of Junior after N.W. tested positive for drugs. However, six weeks later, a court order returned the child to N.W.'s custody while DYFS retained care and supervision, with a condition that N.W. not allow N.C.S. unsupervised contact with Junior. In July 2005, Junior was removed from N.W.'s custody because N.W. failed to take a court-ordered drug screen, and was placed for about three months with N.W.'s sister. However, on October 28, 2005, Junior was placed with another foster family after DYFS determined the paternal aunt was allowing N.W. unsupervised visitation with the child.

Several court orders were issued in 2006 and 2007, finding DYFS' plan of long-term specialized care for Junior to be appropriate and acceptable. On May 28, 2008, the court issued a permanency order finding DYFS' plan for the termination of N.C.S.' and N.W.'s parental rights, followed by adoption, to be appropriate. On July 10, 2008, DYFS filed a complaint against N.C.S. and N.W. for guardianship of Junior.3

Psychological testing of N.C.S. in January 2003 revealed that she functioned in the "retarded range of general ability with potential that is low to average"; however, she had "sufficient ability to learn parenting." The psychologist also found N.C.S. had a verified, substantial substance abuse history, remaining untreated for at least the past decade. His primary diagnosis was Adjustment Disorder with Anxiety (including Alcohol and Cocaine Abuse). In 2007, N.C.S. was diagnosed with "Panic Disorder with Agoraphobia Alcohol Dependency and Cocaine Abuse, Depressive Disorder, and Post-Traumatic Stress Disorder."

Dr. Singer related in his testimony and report that during his evaluation of N.C.S. on September 25, 2007, she reported having an extensive history of substance abuse without treatment, was arrested on five occasions, and was previously diagnosed with schizophrenia. N.C.S. further reported that for about fourteen years through April 2007, she heard voices telling her to hurt someone.

The compliance review order of December 12, 2007 reflects N.C.S. acknowledged that, if she took a drug test that day, she would test positive for cocaine. N.C.S. was incarcerated on drug charges in October 2007.

During Dr. Singer's April 3, 2009 evaluation of N.C.S., two months before trial, N.C.S. admitted having heard voices a few weeks prior, resulting in treatment at a psychiatric ward of a hospital. N.C.S. claimed the voices came and went, and music made them go away. She also acknowledged she was bi-polar and suffered from depression and anxiety. N.C.S. conceded she had been incarcerated from November 2008 to February 2009, and had been sentenced to one year of probation following her arrest for stabbing someone, which she claimed was a "reflex" action.

That same day, Dr. Singer performed a bonding evaluation between N.C.S. and Junior. The clinical psychologist testified that his observations of the interaction between N.C.S. and her son during the bonding evaluation revealed "[t]he session was void of any verbal, physical intimacy . . . [or] eye contact." Furthermore, "the totality of the behavior did not suggest that . . . [Junior] had come to see mom as a consistent figure, but also equally of concern, unfortunately [N.C.S.] seemed to distance herself from her child." Accordingly, Dr. Singer concluded N.C.S. was not capable of parenting the eleven year old at that time nor, "considering the totality of the data, including the length of time [N.C.S.] has had to make significant, longstanding changes in her life," and failed to do so, she was not likely to become capable of parenting Junior in the foreseeable future.

Dr. Singer further explained that, although Junior "intellectually" knew N.C.S. was his mother, the data did not suggest he saw his mother as "a consistent, nurturing parental figure in his life." The expert concluded Junior was not "firmly bonded" to his mother. Although he anticipated Junior would have "an adverse reaction" should his relationship with his mother be severed, the expert did not "anticipate that the reaction would be significant and . . . enduring in degree," because "the relationship ha[d] already been distanced." Dr. Singer also expressed the opinion that any such harm could be largely mitigated by Junior's placement in a safe, stable home environment.

Additionally, Dr. Singer related that Junior had informed him he would like to live with N.W. because he felt the person he viewed as his father was "the only one he really has." As stated by Judge Katz in his decision, Junior's expressed wishes to him during the in camera interview were, in priority order, to live with N.W., N.C.S., or his foster parents. The court elaborated:

In terms of adoption, [Junior] stated that if he were to be adopted he would be upset because that would mean that he could not live with his parents, but would be happy because adoption would mean that he would not have to move around anymore. With regard to his mother, [Junior] stated that he did have some contact with his mother and would like more, but did not know her cell number. [Junior] indicated that the last time he saw his mother was some time in 2008, but stated that when he does see her they talk and play basketball. When asked to describe his mother, [Junior] stated that she was energetic, respectful, playful and sometimes responsible. When prompted to explain what "sometimes responsible" meant, [Junior] stated that his mother does not come to visitation.

Junior was placed in a total of nine foster homes following his initial removal from N.W. and N.C.S. At the time of trial, he had been in a therapeutic foster home since February 2007, and had a good relationship with his foster parents and was treated as a member of the family. Unfortunately, however, his foster mother had retired and was not interested in adopting and permanently raising a young child, but his foster parents were willing to have Junior remain with them until he was placed in a permanent adoptive home.

DYFS' goal for Junior was to seek a permanent adoptive home while he stayed in the foster placement. Frazier explained that the "selected home adoption" process could not begin until N.C.S.' parental rights to Junior were terminated. At that time, Junior would be evaluated, placed in a national database, and an adoptive match attempted. If a match were found, the child and potential adoptive parents would have daily visits, followed by overnights, and then weekly visits with permanent adoption the ultimate goal. Frazier noted that DYFS had found permanent foster homes for twelve-year-old boys like Junior but conceded that some children had not been placed even after their parents' rights were terminated.

Based on this record and after observing the demeanor and impartially assessing the testimony of the lay and expert witnesses, examining the exhibits entered into evidence, and hearing arguments of counsel, and having interviewed Junior, Judge Katz concluded the best interests of Junior required severance of N.C.S.' parental ties. In a comprehensive bench decision and supplemental written opinion, the judge recited the factual and procedural history of the case, made findings of fact and credibility assessments in favor of DYFS' witnesses, noted the applicable law, and found DYFS had established by clear and convincing evidence the four-prong test for termination of parental rights as set forth in New Jersey Division of Youth & Family Services v. A.W., 103 N.J. 591, 604-10 (1986), and as codified in N.J.S.A. 30:4C-15.1. The determination was memorialized in a judgment of guardianship, and this appeal ensued.

II.

We begin by noting some 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). We also have a limited scope of review of the Family Part's factual findings. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J.261, 279 (2007). In reviewing the factual findings and conclusions of a trial court, 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); Pascale v. Pascale, 113 N.J.20, 33 (1988)). "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." N.J. Div. 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 testimony and the court's fact-findings based thereon, as it is in a better position to evaluate the witness' credibility, qualifications, and the weight to be accorded to the expert's testimony. Ibid.; see alsoIn re Guardianship of J.C., 129 N.J.1, 22 (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 courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding and the conclusions which flow logically from those findings of fact. Cesare, supra, 154 N.J.at 412-13; M.M., supra, 189 N.J.at 279. 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 Junior's best interests require termination of N.C.S.' parental rights.

The applicable principles are well settled. "Parents have a constitutionally protected, fundamental liberty interest in raising their biological children." In re Adoption of a Child by W.P. & M.P., 308 N.J. Super.376, 382 (App. Div. l998) (citing Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394-95, 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. & 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 parenspatriae, may sever the parent-child relationship to protect the child from serious physical and emotional injury. W.P. & 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 become fit to assume the parental role in time to meet the child's needs. Ibid. (citing A.W., supra, 103 N.J.at 607). "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 (alteration in original) (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(c) 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. SeeA.W., supra, 103 N.J.at 612; In re Guardianship of Jordan, 336 N.J. Super. 270, 274 (App. Div. 2001). Specifically, the four-prong test set forth in N.J.S.A.30:4C-15.1(a) requires DYFS 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.

These standards are neither discrete nor separate. In re Guardianship of K.H.O., 161 N.J.337, 348 (1999). They overlap to provide a composite picture of what may be necessary to advance the best interests of the child. Ibid. "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)).

III.

Our examination of the record discloses that all four prongs of the statutory test have been met by clear and convincing evidence. N.C.S. does not challenge the trial court's findings on the first prong of endangerment to the child's safety, health or development by the parental relationship, or the second prong of continued parental unfitness. Thus, we need not address the facts and law pertaining to those two prongs, other than to note N.C.S.' undisputed, longstanding substance abuse and psychiatric history.

N.C.S.' assertion that DYFS failed to make reasonable efforts to provide her with appropriate services and related challenge to the third prong is not supported by the record. The evaluation of the reasonableness of DYFS' efforts must be done on an individualized case by case basis. See In re Guardianship of D.M.H., 161 N.J. 365, 393 (1999) (holding that the reasonableness of DYFS' efforts are not measured by their success, but rather "against the standard of adequacy in light of all the circumstances of a given case[]"). One factor suggesting that such efforts are no longer reasonable is that the parent refused or failed to engage in all the services offered. A.W., supra, 103 N.J. at 610.

As noted by Judge Katz, DYFS arranged for numerous psychological and psychiatric evaluations, parenting skills classes, substance abuse treatment, therapy, visitation, and transportation for N.C.S., as well as the assessment of relatives as potential caregivers. While the judge accepted N.C.S.' testimony that she arranged for the drug treatment programs she attended, he also found DYFS would have arranged for those services had N.C.S. not done so herself. The fact remains, however, that in April 2008, N.C.S. acknowledged failing to complete any of the multiple referrals for rehabilitation and detoxification. Additionally, contrary to N.C.S.' testimony, the record reflects that on June 9, 2009, N.C.S. was terminated from a mental health counseling program for non-compliance resulting from poor attendance and appearing at the program with elevated blood alcohol levels. N.C.S. was also incarcerated on several occasions, including a three-month period from November 2008 until February 2009, which created an additional obstacle and "likely futility" of providing services to her. See N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 621 (App. Div.), certif. denied, 192 N.J. 68 (2007); N.J. Div. of Youth & Family Servs. v. S.A., 382 N.J. Super. 525, 534 (App. Div. 2004).

Contrary to N.C.S.' assertion, the record is devoid of evidence that DYFS did not routinely inform N.C.S. of the services in which she needed to participate, and offered psychological, psychiatric and bonding evaluations that provided recommendations to N.C.S. to allow her to improve to the point where a reunification might be possible.

N.C.S. cannot lay at DYFS' feet that its case workers were inconsistent in requesting paystubs to verify jobs she claimed to have held. N.C.S. has the burden of demonstrating she was working. She failed to present competent evidence of that fact during trial.

As to visitation, the evidence overwhelmingly demonstrates that DYFS arranged, encouraged, and transported N.C.S. to visitations. N.C.S., however, admitted at trial that she had not visited with her son since June 2008, claiming she found the visits to be too painful for her and Junior. N.C.S. also acknowledged she rarely called her son.

The fact DYFS may not have made sufficient efforts to put Junior in contact with his sister, A.S., has very little bearing on N.C.S.' challenge to the third statutory prong. The fact of the matter is that DYFS provided a variety of therapeutic services to Junior, as well as a myriad of services to assist N.C.S. in reunifying with her son.

The fourth prong of the best interests of the children standard requires a determination that termination of parental rights will not do more harm than good to the child. N.J.S.A. 30:4C-15.1(a)(4). This prong mandates a determination as to "whether a child's interests will best be served by completely terminating the child's relationship with that parent." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 108 (2008). We view this as the only close issue and the one upon which this case turns.

Judge Katz found DYFS met the forth prong through clear and convincing evidence. The judge insightfully balanced "the harm from severing [N.C.S.'] parental rights with the good that would result from [Junior] being able to obtain permanency." In his analysis, the judge considered Junior's wishes to live with his mother rather than being adopted and the fact there was currently no permanent adoptive home for him, as well as the "nature, strength and circumstances of [Junior's] relationship and bond with his mother." Judge Katz expressly referenced Dr. Singer's findings that the bond between Junior and his mother was "not firm or healthy" and their relationship appeared to be void of intimacy. Thus, as the expert opined, severing Junior's relationship with N.C.S. would "not cause significant or enduring harm to [Junior]." The judge also afforded significant weight to the expert's opinion that N.C.S.' inability or unwillingness to deal with her mental and medical conditions were detrimental to any relationship with her son and made her a poor candidate to raise him.

N.C.S. argues that termination of her parental rights will do more harm than good, leaving Junior, in essence, with a status as a legal orphan because of the difficulty of DYFS locating an adoptive placement for an older child. At the time the briefs were filed, the Law Guardian expressed similar opposition to the termination judgment.

In contrast, DYFS maintains that reversing Judge Katz's termination of N.C.S.' parental rights would deny Junior the opportunity of ever having a permanent family relationship in an adoptive home and would keep Junior "in limbo . . . for a long-term reunification plan" and not grant the pre-teen the permanency he needs. See N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 438 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002). DYFS emphasizes that it is clear N.C.S. will never be a viable placement for her son in view of her longstanding mental illness and substance abuse, as well as failure to remain compliant or drug-free despite the multitude of rehabilitative psychiatric and psychological services rendered and treatment offered to her. In considering this prong, DYFS urges that N.C.S.' "own responsibility for creating the situation in the first place cannot be ignored" and, as a result of N.C.S.' significant, ongoing problems, Junior's life should "not be put on hold." See In re Adoption of a Child by P.S. and J.S., 315 N.J. Super. 91, 118 (App. Div. 1998).

DYFS further emphasizes that, as testified to at trial, once Junior is freed for adoption, the agency will be better able to place him in an adoptive home. It distinguishes the E.P. case, where the Court found a failure of proof on prong four as to a thirteen-year old, psychologically fragile girl who had been bounced around between seven foster homes, with no permanent placement in sight, and had been separated from her mother, a heroin addict, for more than nine years. Supra, 196 N.J. at 92, 109. DYFS argues that, in contrast with the present case, the E.P. Court was able to conclude that the pre-teen's "only enduring emotional bond [wa]s with her mother[,]" based on the expert testimony. Id. at l09. The defense psychologist, who conducted a bonding evaluation and found the girl "had a 'very strong attachment' to her mother, whom she saw as 'the person capable of providing for her physical and emotional needs[,]'" concluded the girl's reunification with her mother would be in the child's best interests. Id. at 97. Moreover, although DYFS' psychologist concluded that the mother did "not possess adequate parenting capacity to be able to care for" her daughter because, in part, the mother had not sufficiently progressed in her drug recovery, he did find the mother was the only person with whom the girl had a "positive emotional connection." Id. at 98.

DYFS accurately notes that, here, in contrast, N.C.S. presented no expert testimony regarding the bond between her and Junior. Moreover, DYFS' expert, Dr. Singer, found N.C.S. had distanced herself from the child, and while Junior intellectually understood N.C.S. was his mother, and expressed a desire to live with her and N.W., the relationship between Junior and N.C.S. was inconsistent with one commonly observed between a securely attached child and a consistent, significant parental figure. Additionally, in further contrast to E.P., N.C.S. voluntarily chose not to maintain a loving relationship with her son through periodic visits and telephone conversations, see id. at 92, and had not, in fact, had contact with him for a year before trial.

Additionally, in the present case, at the time of trial, Junior was living in a foster home where he was healthy, happy and improving, and was welcome to remain until an adoptive family could be located by DYFS. Based on the experience of the CPR coordinator for the adoption office, it was likely, though certainly not definite, that DYFS would eventually find a permanent, stable foster home for the pre-teen. While this was not an ideal situation, the judge recognized that N.C.S. was simply incapable of parenting Junior, and thus concluded that maintaining the relationship would do more harm than good, notwithstanding the lack of a permanent home for Junior at the time of trial. Judge Katz stated:

In balancing Prong Four, the test is not whether [Junior] will suffer any harm or a loss if [N.C.S.'] rights are terminated. The test is whether that harm outweighs the good that will result from the severance of the relationship. Here, the uncontraverted testimony is that the harm to [Junior] will not be enduring, while the good is a realistic chance of permanency. [Junior] deserves that chance, especially in light of the fact that the relationship with his mother is not healthy and that [Junior] and his mother have already distanced themselves from each other.

 

The Court concludes that the harm does not outweigh the good. As such, the Division has satisfied Prong Four clearly and convincingly.

We are satisfied there is sufficient support in the record for the conclusion that DYFS proved by clear and convincing evidence termination would not do more harm than good to Junior. We consider, in part, the uncontroverted expert and factual testimony about N.C.S.' harmful conduct that has not abated and, in fact, has continued to traumatize Junior, her absolute inability to parent or even understand how to parent, her unwillingness to sacrifice her own desires and modify her behavior to address her son's needs, her voluntary decision to stop visiting with her son in June 2008, and her failure to even contact him by phone. N.C.S. continued to hear voices up to a few months before trial, contemplated suicide after a court session, and was incarcerated for a three-month period shortly before trial began. Moreover, N.C.S. did not attend or complete the treatment and rehabilitative programs necessary for her improvement so that reunification could be a viable solution.

That the twelve-year-old boy was still calmed by thoughts of his mother and harbored the fantasy of reunification with his family after having spent five years in foster care does not translate into a bond with his mother sufficient to overcome the need for the severing of her parental ties. It is only natural the pre-teen would have those feelings and want to hang onto a thread of something familiar and tangible, even if it is the antithesis of what is in his best interests, particularly in view of his unknown future. Based on the totality of the evidence, we are convinced Judge Katz appropriately concluded that termination of parental rights will not do more harm than good for Junior, as it will free him for potential adoption by a family who can provide permanency and stability.

Even considering the Law Guardian's opposition to termination expressed in the initial brief, we are also satisfied severing N.C.S.' parental rights was appropriate under the circumstances of this case. Notwithstanding those lingering questions at the time of trial, our jurisprudence and strong public policy favors permanency of child placement. N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 116 (App. Div.), certif. denied, 180 N.J. 456 (2004). We are convinced that, although N.C.S. may love her son in an abstract way, she is unable and unwilling to provide a safe, stable and permanent home that he so desperately 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 termination of parental rights was a necessary step to enable Junior to move forward with his life.

Although we render our decision based on the record before the trial court, at which time there was no readily apparent permanent placement for Junior, our decision is reinforced by subsequent events. Pursuant to our September 16, 2010 order granting DYFS' motion to supplement the record, we were informed that on November 4, 2009, about five months post-trial, Junior was placed with a new foster family who, by letter of April 8, 2010, expressed a desire to adopt him. We were provided with a copy of the letter, as well as the May 5, 2010 post-termination summary hearing order in the FC case confirming that fact and continuing Junior's placement with the pre-adoptive family. We were also provided with a copy of the August 5, 2010 order in that case, stating the following:

P-1 Letter of intent to adopt from current caretaker dated April 8, 2010, admitted into evidence. P-2 Adoption House reports from June and July 2010, admitted into evidence. Caseworker testified that child has been in his current placement since November, 2009, he is doing well in the current home and he wants to be adopted. Caretaker is committed to adoption. Caseworker has spoken to child about what it means to be adopted. He received adoption therapy through PAX. He is also receiving therapy through Family Connections. . . . The Law Guardian indicated that if [Junior] cannot reside with [N.W.], he would like to be adopted by current caretaker. . . .4

It thus appeared the Law Guardian had changed its position from the challenge to the fourth prong based primarily on the uncertainty of Junior's placement in an adoptive home as of the trial date. In response to our inquiry, the Appellate Law Guardian responded with a letter of December 7, 2010, stating, in part:

[Junior] had been contacted and indicated that, at this point due to the length of time that has past, he is indifferent regarding his relationship with [N.C.S.] as he continues to assume that he will be unable to see her in the future. The guardianship order was entered on June 30, 2009, approximately eighteen months ago and did not contain a provision providing visitation between [N.C.S.] and [Junior] pending appeal.

We are pleased to learn that termination of N.C.S.' parental rights resulted in a permanent placement of Junior and freed him up for adoption as the DYFS Adoption Unit representatives had contemplated at the time of the hearing.

Affirmed.

1 A.S. was initially named in the abuse and neglect litigation but by order of March 21, 2007, she was dismissed from the case because she had "aged out" of DYFS and was no longer eligible for DYFS care and supervision.

2 At that time, N.C.S. and Junior lived with N.W., the child's putative biological father. A December 15, 2008 paternity test revealed N.W. was not Junior's biological father. See infra. The record reflects that Junior's father is unknown.

3 Following a paternity test, on January 13, 2009, N.W. was dismissed from the litigation. At a subsequent case management conference, the court concluded that N.W. had no standing to participate in the litigation because he was not Junior's biological father. However, the court agreed to subsequently conduct a hearing to determine if Junior's placement with N.W. would be in the child's "best interests" in the event N.C.S.' parental rights were terminated. Thus the matter proceeded as to N.C.S.' parental rights only. On January 8, 2010, Judge Bernstein issued an order following a best interests hearing, denying N.W.'s application for custody based on the finding N.W. was not an appropriate caretaker for Junior. N.W. has not appealed that determination.

4 There are different Law Guardians in the FC case, the termination proceeding and the appeal.