NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. M.S. IN THE MATTER OF THE GUARDIANSHIP OF K.S., O.S., AND A.S Minors
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-1534-09T4
NEW JERSEY DIVISION OF YOUTH
AND FAMILY SERVICES,
IN THE MATTER OF THE GUARDIANSHIP
OF K.S., O.S., AND A.S.,
January 14, 2011
Argued December 6, 2010 - Decided
Before Judges Lisa, Sabatino and Alvarez.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-76-08.
Clara S. Licata, Designated Counsel, argued the cause for appellant(Yvonne Smith Segars, Public Defender, attorney; Ms. Licata, on the brief).
Ann Avram Huber, Deputy Attorney General, argued the cause for respondent Division of Youth and Family Services (Paula T. Dow, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel, Ms. Huber, on the brief).
Christopher A. Huling, Assistant Deputy Public Defender, argued the cause for minors K.S., O.S., and A.S. (Yvonne Smith Segars, Public Defender, Law Guardian, attorney; Mr. Huling, on the brief).
M.S. appeals the Family Part's termination of his parental rights to three children, K.S. born February 8, 1999, O.S. born June 24, 2001, and A.S. born November 24, 2003. For the reasons set forth below, we affirm.
We first reviewed the matter in 2008, as to both M.S. and the children's mother, M.M. We affirmed the termination of M.M.'s parental rights; however, the termination as to M.S. was reversed and the case remanded because we found that the State failed to prove by clear and convincing evidence the second, third, and fourth prongs of the statutory test found in N.J.S.A. 30:4C-15.1(a). N.J. Div. of Youth & Family Servs. v. M.S., No. A-5291-07 (App. Div. Apr. 23, 2009) (slip op. at 40). On remand, the trial court conducted additional proceedings in October 2009 and issued a written decision terminating M.S.'s rights on October 20, 2009.
To briefly explain the factual circumstances leading to this appeal, Florida's Department of Children and Families (DCF) became involved with this family in 2005 after receiving reports of domestic violence. These included an incident in which M.S., while wielding a crowbar, choked M.M., attempted to assault her grandfather, and then smashed her grandfather's car windows. M.S.'s criminal record commences in 1992, and includes two grand theft convictions, possession and delivery of cocaine, battery, multiple burglaries, trespass, obstructive arrests, petty theft, possession of an open container, and driving with a cancelled license. After being convicted of aggravated battery with a deadly weapon in 2006, M.S. was incarcerated. During this time DCF removed the children from their mother's custody.
In March 2006, the children and M.M. moved to New Jersey. The following month, the Division of Youth and Family Services (the Division) removed the children from M.M.'s care when she stabbed her former husband in their presence. The two-bedroom apartment in which M.M. and the children had been living at the time had five other occupants. The children slept on a mattress in the dining room.
When the Division filed an order to show cause seeking protective custody on April 20, 2006, it was unaware of M.S.'s whereabouts. He was finally located in Florida, and a week prior to the return date of the order to show cause, was noticed of the Division's application. The letter indicated that even though M.S. "was currently between residences," it was "very important" that he remain in contact with the Division. On May 24, 2006, M.S. confirmed receipt of the pleadings and advised the Division that he had been in jail when the children were removed. He had not talked to his children for nine months and asked for a conference call to be arranged; it was not until fourteen months later before the Division responded.
In August 2006, M.M. moved back to Florida. The children were returned to her care in February 2007. Thereafter, M.S. saw the children on weekends until July 2007, when domestic violence involving M.M.'s new boyfriend, as well as the level of care M.M. was providing the children, resulted in DCF requesting that the children be returned to New Jersey. By order dated July 18, 2007, the court ordered the Division to evaluate M.S. and provide him with services. A home study was requested in Florida.
M.S. has been evaluated on numerous occasions. It is undisputed that his full-scale I.Q. is between 62 and 66. He has been diagnosed as suffering from schizophrenia, which has resulted in significant episodes of disturbances over his life. M.S. is currently under the care of a psychiatrist and is intermittently compliant with a regimen of medication. He works in manufacturing, and had been steadily employed for four years at the time of the remand. He has lived with his now-wife, T.S., and her teenage son, for at least that same period of time. On his own and at his own expense, he completed a parenting skills class and obtained mental health treatment.
Prior to the first trial, Robert James Miller, a psychologist, evaluated M.S. at the Division's request. Dr. Miller found that M.S. would not be a suitable caretaker for the children because he demonstrated a lack of insight, externalized blame, and has a long history of psychological disturbances. In Dr. Miller's opinion, these disturbances would "likely compromise his ability to provide parental care and emotional nurturance for his children."
In February 2008, Hany H. Botros, M.S.'s treating psychiatrist in Florida, diagnosed him as suffering from schizoaffective disorder, but reported that M.S. had not experienced any psychotic, depressive, or manic symptoms since his separation from M.M. After the first trial, in June 2008, however, M.S. complained of a "short temper and poor frustration tolerance, feeling edgy, irritable with mood swings, racing thoughts and difficulty sleeping at night." He told Dr. Botros that he had "difficulty dealing with people at work and feels that people are trying to harm him." At M.S.'s request, Dr. Botros prescribed psychotropic medication, specifically, Risperdal and Depakote. Dr. Botros's records through June 2009 indicated that M.S. was compliant with his medication and was doing well.
Frank Dyer, a psychologist retained by the Division, testified at both trials. He conducted psychological testing of M.S., T.S., the children, and bonding evaluations. Dr. Dyer did not obtain M.S.'s psychiatric records until after the first trial. As he testified in the second trial, however, his review of those records merely confirmed his earlier opinion regarding the difficulty M.S. would face if the Division returned the children to his care. Dr. Dyer opined at both trials that M.S. could not provide a safe and stable home for the children given his criminal history, acts of domestic violence against the children's mother, and significant psychiatric disorder. In formulating his opinion he relied, among other things, upon two of M.S.'s episodes: in November 2004, when M.S. became acutely psychotic and required hospitalization; and in 2002, when M.S. asked a police officer to shoot him to stop his thoughts. Dr. Dyer noted that although T.S. was a very significant, "quasi-parental figure" to M.S., that she said that if he began to "act crazy," he would be "gone." In Dr. Dyer's opinion, separation from T.S. would be "catastrophic" to M.S.'s ability to function.
These three children, in Dr. Dyer's opinion, would be "extraordinarily taxing even to the most mature, psychologically stable, and committed caretaker." No services exist that would enable M.S. to successfully parent these very difficult children.
Dr. Dyer conducted bonding evaluations both prior to the first trial as well as after the remand. He found that overall M.S. and T.S. had "good," "appropriate," and "affectionate" interaction with the children.
K.S. has a "positive emotional tie" with M.S., but she did not consider him an attachment figure. K.S. saw her foster parents as stable, reliable, and protective. Dr. Dyer's opinion was that K.S. would not suffer any severe or long-lasting harm if her father's parental rights were terminated.
O.S. was not attached to her father, wanted to stay with her foster mother, and refused visitation with M.S. after the remand. Dr. Dyer opined she would suffer no harm if M.S.'s parental rights were terminated.
A.S. had a "positive emotional tie" to M.S. but not a deep attachment. In Dr. Dyer's opinion, A.S. would suffer some loss if M.S.'s parental rights were terminated, but not "significant harm." A.S. suffers from the most serious emotional and behavioral problems of all the children, and any disruption to his placement would be detrimental. If A.S. were returned to M.S., Dr. Dyer anticipated an exacerbation of "defiant, destructive, disorganized and hyperactive behavior." He strongly cautioned against placing A.S. with M.S.
Sonia Oquendo, a psychiatrist, also interviewed M.S. on behalf of the Division. She reviewed, among other things, Dr. Botros's psychiatric evaluations and progress notes and Dr. Dyer's first psychological reports. M.S. disclosed only two psychiatric episodes to Dr. Oquendo, the first occurring after the death of his mother, and the second after the death of a close friend. Nevertheless, Dr. Oquendo believed that M.S.'s mental illness was "well compensated with present medication" and that mental illness alone is not a sufficient basis for termination of parental rights. In her view, a final determination should be made only after the completion of bonding evaluations between M.S. and the children, and the children and their foster parents. Dr. Oquendo thought that M.S. "deserved a chance" to parent his children, "but that [the] children should not be exposed to unnecessary risk because of his impulsivity and poor management of his anger in the past."
M.S.'s own psychiatric expert was Arnaldo Apolito, who evaluated him in August 2009. Dr. Apolito opined that despite his cognitive impairments, M.S. had a solid working relationship with T.S. and her son and was fit to parent his children. T.S.'s son is an emotionally healthy, stable, and respectful sixteen-year-old. Dr. Apolito believed that separation from their biological father would cause the children "severe and permanent psychological harm." He did not meet with the children, and was unaware that M.S. had declined the opportunity to care for the children in May 2006, or that O.S. refused to see her father. Significantly, Dr. Apolito never saw M.S.'s psychiatric hospitalization records prior to the preparation of his report or his testimony. He assumed M.S. had been stable for five years, which he considered significant. When told of M.S.'s psychiatric struggles in 2008, his opinion did not change. Dr. Apolito characterized M.S.'s failure to comply with his medication regimen as positive because M.S. was nonetheless able to remain stable and function.
Kenneth Goldberg, a psychologist, also testified on M.S.'s behalf. It was Dr. Goldberg's view that M.S. was functioning "at or beyond his intellectual level" with an IQ of 66 and that T.S. had the capacity to compensate for defendant's cognitive limitations. In Dr. Goldberg's opinion, defendant showed no signs or symptoms of being mentally ill. He did not see M.S.'s failure to take his medication regularly as a problem. Dr. Goldberg opined that the Division places an "overemphasis on compliance, at the expense of cooperative work, and respect for the individual doctor-patient relationship." He questioned the diagnosis of schizophrenia given that defendant had not taken his medication for two years, had been able to maintain employment, and showed no recurrence of symptoms.
Even if the diagnosis of schizophrenia was accurate, Dr. Goldberg believed that mental illness should be treated the same as any other medical illness such as heart disease. Dr. Goldberg saw "no reason" why M.S. could not adequately parent his children. On cross-examination, he acknowledged that he had not reviewed defendant's psychiatric hospital records. He was unaware of the December 2002 incident involving police, a second hospitalization that year in which defendant displayed symptoms of psychosis, or the 2004 incident in which the police found M.S. rambling while suffering from persecutory delusions.
Dr. Goldberg considered M.S. and T.S. appropriate in their interactions with the children. He acknowledged, however, that both K.S. and O.S. want to remain with their foster families. In his opinion, if K.S. was reunited with her father, the separation from her foster family would not have a significant impact. He did not believe, however, that K.S.'s "adamant" wish not to return home with M.S. should be discounted. He had no qualms about the children being adopted by their respective foster parents if placement with M.S. was found to be harmful.
All three children suffer from behavioral issues. K.S. and A.S. are special needs children. They have an "insatiable need for attention" and compete with one another for attention.
K.S. has been diagnosed with attention deficit hyperactivity disorder (ADHD), oppositional defiance disorder, and anxiety disorder. She takes medication daily for the treatment of these conditions. She has acted out sexually with her brother, made inappropriate sexual comments to boys and men, and on one occasion, slapped a foster mother. She struggles with poor impulse control, sees a therapist weekly, and has supplemental biweekly counseling sessions. She is "classified" in school. In October 2008, after placements in five or six foster homes, K.S. was moved to her present home. That family wishes to adopt her.
O.S. does not have special needs, but requires counseling to treat behavioral issues that may have resulted from her exposure to domestic violence. She too may have acted out sexually with her brother. O.S. was placed in four different foster homes, but by the second trial, was living with a foster mother who wished to adopt her. O.S. is happy in her current home and wants to remain there.
A.S. also suffers from ADHD, reactive attachment disorder, and vision problems. He takes medication for his ADHD. A.S. has been described, despite his young age, as "aggressive," "impulsive," and "destructive." Although he was in special education initially, at the time of the remand trial, he had been mainstreamed into kindergarten with a one-on-one aide. Because of his significant behavioral issues, A.S. has been in five placements, including two specialized treatment homes. At the time of the first trial, his foster family wanted to adopt him. Thereafter, the foster mother developed a serious medical condition, which caused the couple to rethink adoption. After the decision on remand and A.S.'s removal to another potential adoptive home, he was returned to the foster parents interested in him because they recommitted to adopting him. According to his Division worker, A.S. is well adjusted in the home and his behavior has stabilized.
In his seventeen-page final decision dated October 20, 2009, the trial judge acknowledged M.S.'s genuine belief that it would be in the children's best interests if they were to be returned to him. As the judge put it, however, the fact that M.S. is a "nice, likeable, polite and respectful man . . . is not the test for termination of parental rights."
The trial judge principally relied on Dr. Dyer's opinions. He did so in part because Dr. Apolito and Dr. Goldberg both rendered their opinions without important information regarding M.S.'s psychiatric history. When presented with that significant history, both still asserted they would not change their opinion. Dr. Apolito was also under the mistaken impression that M.S. had been asymptomatic for some five years prior to their respective evaluations. Dr. Goldberg testified that M.S. had in fact been stable for a number of years, and that he considered any mental health issues that may have existed in the past to be "moot." Given that the trial judge gave credence to Dr. Botros's reports about her ongoing treatment of M.S., and the problems M.S. experienced prior to resuming his medication, the court attributed greater weight to Dr. Dyer's opinion. As the judge articulated it, he considered Dr. Apolito and Dr. Goldberg's opinions "to be somewhat suspect" because of their lack of familiarity with M.S.'s full psychiatric history. In contrast, Dr. Dyer's opinion relied upon the records of M.S.'s treating psychiatrist. Moreover, the trial judge accepted Dr. Dyer's opinion that no intervention existed which would enable M.S. to be a reliable caretaker for his special needs children. They have significant needs and would suffer severe emotional harm if removed from their current homes. This factor was key in his analysis. Although M.S. has made significant advances in the four years preceding the trial and has a genuine desire to offer a home to his family, the children would be in jeopardy if placed with their father. He therefore determined that the State had met the relevant last three prongs of the statutory test by clear and convincing evidence.
The Law Guardian, unlike in the first appeal, now supports the trial court's conclusion. We limit our discussion to the following statutory factors as we previously found the Division had met the first prong:
(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;
(3) The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and
(4) Termination of parental rights will not do more harm than good.
"The  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." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999).
"Termination of parental rights permanently cuts off the relationship between children and their biological parents." In re Guardianship of J.C., 129 N.J. 1, 10 (1992). "When the  biological parents resist the termination of their parental rights," the court's function is "to decide whether the parents can raise their children without causing them further harm." Ibid. "The burden falls on the State to demonstrate by clear and convincing evidence that the natural parent has not cured the initial cause of harm and will continue to cause serious and lasting harm to the child." Ibid.
The Supreme Court has recognized, however, that children have a "paramount need . . . for permanent and defined parent-child relationships." Id. at 26. There are "strong policy considerations that underscore the need to secure permanency and stability for the child without undue delay." In re Guardianship of D.M.H., 161 N.J. 365, 385 (1999) (citation omitted).
The scope of an appellate court's review of a trial court's fact-finding in a termination case is limited:
"Trial court findings are ordinarily not disturbed unless 'they are so wholly unsupportable as to result in a denial of justice,' and are upheld whenever they are 'supported by adequate, substantial and credible evidence.'" Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 475 (1988), quoting Rova Farms Resort[, Inc. v.] Investors Ins. Co., 65 N.J. 474, 483-84 (1974). An appellate court "may make new and independent findings of fact in cases tried without a jury, [citations omitted] but . . . 'when the result of the contest must turn on the truthfulness of witnesses, the superior advantage of the trial judge in seeing and hearing and appraising the disputants must ordinarily be regarded as the fulcrum on which the issue should be resolved.'" Rubel & Jensen Corp. v. Rubel, 85 N.J. Super. 27, 39-40 (App. Div. 1964), quoting Abeles v. Adams Engineering Co., Inc., 35 N.J. 411, 423-24 (1961).
[N.J. Div. of Youth & Family Servs. v. V.K., 236 N.J. Super. 243, 255 (App. Div. 1989), certif. denied, 121 N.J. 614, cert. denied, 495 U.S. 934, 110 S. Ct. 2178, 109 L. Ed.2d 507 (1990).]
The second prong of the statute requires the State to establish that a parent is unwilling or unable to eliminate the harm facing the child, or is unable to provide a safe and stable home, and that delay in permanent placement will only add to the harm. N.J.S.A. 30:4C-15.1(a)(2). Consideration of this prong can include determining whether "separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child . . . ." Ibid.
Generally, we rely on the trial court's "acceptance of the credibility of the expert's testimony and the court's fact-findings based thereon . . . [because] the trial court is better positioned to evaluate the witness'[s] credibility, qualifications, and the weight to be accorded [his or her] testimony." D.M.H., supra, 161 N.J. at 382. Expert testimony should not be given greater weight than other evidence and should be scrutinized in light of "common sense and ordinary experience." In re Yaccarino, 117 N.J. 175, 196 (1989). An expert's opinion should be given no more weight than the facts and reasoning upon which it is predicated. State v. Jenewicz, 193 N.J. 440, 466 (2008). A fact finder is entitled to accept some of an expert's testimony and reject the rest. J.C., supra, 129 N.J. at 24. The trial judge's reliance on Dr. Dyer's testimony was a reasonable exercise of discretion.
Neither Dr. Apolito nor Dr. Goldberg, M.S.'s experts, seemed to have a sufficient grasp of M.S.'s psychiatric history and the children's circumstances. Dr. Goldberg's supplemental opinion acknowledging that defendant's problems were of longer standing than he was previously aware stated that nonetheless M.S.'s psychiatric functioning was sufficiently stable to warrant the return of his children. The court rejected this opinion in light of M.S.'s problems in 2008 and because his psychiatric problems predated his relationship with the children's mother. Furthermore, Dr. Goldberg held negative beliefs regarding the Division that may have biased his assessment of M.S. Dr. Apolito did not have defendant's psychiatric hospitalization records, his childhood records, or any information regarding the June 2008 episode. He was unaware of the children's status with relation to their father.
The trial judge did not specifically address Dr. Oquendo's favorable report; however, that opinion hinged upon his compliance with medication. Dr. Oquendo also appeared to be unaware that M.S. did not always take his medication. Similarly, she did not address how the children's individual needs would affect or place demands on M.S.'s psychiatric functioning, as she would not make a recommendation as to placement until bonding evaluations had been completed.
The court's rejection of the testimony of experts other than Dr. Dyer was reasonable. Only Dr. Dyer familiarized himself with the full factual picture of both M.S.'s psychiatric history and functioning, as well as the children's status. Thus, the trial judge's conclusion, based principally on Dr. Dyer's expert opinion and M.S.'s history, that defendant was unable, despite his good intentions, to eliminate the risk of harm he posed to the children is supported by clear and convincing evidence. It is also important that K.S. and O.S. wanted to remain with their foster families, and that Dr. Dyer was certain that separating A.S. from his foster family would trigger very destructive behavior.
M.S. also asserts that the Division's efforts at providing him with reunification services were inadequate, and that therefore the third statutory prong has not been met. It "contemplates efforts that focus on reunification of the parent with the child and assistance to the parent to correct and overcome those circumstances that necessitated the placement of the child into foster care." K.H.O., supra, 161 N.J. at 354. "Reasonable efforts" are defined in N.J.S.A. 30:4C-15.1(c) as including but not limited to: (1) consulting and cooperating with the parent in developing a plan for appropriate services; (2) providing services to the family that have been agreed upon, 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. "[A]n evaluation of efforts undertaken by [the Division] to reunite a particular family must be done on an individualized basis." D.M.H., supra, 161 N.J. at 390. "Whether particular services are necessary in order to comply with the diligent 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." Ibid. The Division's efforts are not measured by their success. Id. at 393.
In this case, geography played a significant role in the level of access M.S. had to his children. He continues to live in Florida where he has achieved an important measure of stability while his children live in New Jersey. The Division actually paid for M.S. to be flown to New Jersey on five occasions through October. Because of work commitments, he was unable to visit the children in the months of July and September. Although weekend visitation was requested, the Division was unable to accommodate M.S. because of the demand such a visitation arrangement would place on agency resources. As it was, due to M.S.'s illiteracy, upon arrival, he would have to be escorted through the airport, driven to a motel, and then driven to the visits. The process would be reversed to get him back to Florida.
Since the visits were infrequent, M.S. claims the Division has failed to provide him with reasonable services that would have enabled him to be reunited with his children. Certainly, five visits over so many months is not desirable. But the Division was not alone in being responsible for visitation. It is understandable that M.S. would want to continue the life in Florida he has struggled to achieve, including employment. He chose to skip two month's visits, however. The Division is only responsible to facilitate visitation not guarantee that it happens regardless of a parent's conduct.
Furthermore, as the judge concluded, no level of services would enable defendant to parent his children. M.S.'s chronic critical mental health problems and lack of insight pose a significant risk to these vulnerable children. He is doing the best that he can with the minimum of stressors in his life, but even under those circumstances, he struggles. If his relationship with T.S. ended, the results would be, as Dr. Dyer put it, "catastrophic." And even when managing his mental health issues, it is questionable whether he has the ability necessary to deal with these children's special needs.
The State must fulfill its "parens patriae" responsibility of achieving a stable and permanent home for children. N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super 418, 434, 442 (App. Div. 2009) (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 102 (2008)). This means, however, that there are limits on the amount of time in which children are expected to wait. These are difficult children for any parent to nurture, impossible for someone in M.S.'s situation. "The potential return of a child to a parent may be so injurious that it would bar such an alternative." N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 605 (1986). Such is the case here.
As to the last prong, M.S. asserts that the Division did not prove by clear and convincing evidence that termination of his parental rights would not do more harm than good. The question is "whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with her natural parents than from the permanent disruption of her relationship with her foster parents." K.H.O., supra, 161 N.J. at 355. "[W]here it is shown that the bond with [the] foster parents is strong and, in comparison, the bond with the natural parents is not as strong, that evidence will satisfy the requirement of N.J.S.A. 30:4C-15.1(a)(4) . . . ." Id. at 363. "Inherent in the fourth factor is that a child has a 'paramount need for a permanent and defined parent-child relationship' . . . as well as a deep need for a nurturing adult, commonly termed the 'psychological parent.'" N.J. Div of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 119 (App. Div.) (quoting J.C., supra, 129 N.J. at 26), certif. denied, 180 N.J. 456 (2004)).
The trial judge discounted Dr. Apolito's opinion that the children would be harmed if parental rights were terminated. He was the only expert who even expressed that opinion. But Dr. Apolito did not have defendant's psychiatric records before issuing his first report, had little familiarity with the real extent of his psychiatric condition and history, lacked familiarity with the children's special needs, and with their feelings about their respective foster families.
Dr. Goldberg limited his opinion about the children to reporting that that K.S. was "comfortable" with her foster parents and that if she were successfully reunited with her father, the separation from the foster family would not cause a major impact on her. He made no findings about the harm that might be experienced by O.S. or A.S. if M.S.'s parental rights were terminated, of if their relationship with their respective foster families ended. He did not draw any conclusion as to the effect that termination of parental rights would have on the children. The judge therefore gave little weight to his bonding evaluation.
Dr. Dyer certainly agreed that K.S. and A.S. had a "positive emotional tie" with their father, but saw no deep attachment that would make termination of parental rights a greater harm than termination of the children's relationship with their foster parents. Neither child perceives M.S. as a stable and reliable figure. K.S. saw her foster parents as the adults capable of protecting her. A.S. would certainly suffer some loss if M.S.'s parental rights were terminated, but that loss would be, in Dr. Dyer's opinion, "completely overshadowed" by A.S.'s emotional problems if returned to his father's care. Such a return would exacerbate A.S.'s defiant, destructive, disorganized, and hyperactive behavior. He did not perform a bonding evaluation per se with A.S.'s foster parents, but opined that A.S., given his special needs, would have a difficult time adjusting to any new placement and would suffer "some loss" from the disruption of being moved from his foster parents to M.S. O.S. had no attachment to her father and refused to visit him. She insisted that she be adopted by her foster mother.
Under these circumstances, where the nature of the attachment between children and father is tenuous at best, the children are in foster placements where they are progressing, and where the foster parent or parents wish to adopt, termination would not do more harm than good.
The statutory standard has been met by clear and convincing evidence.