DIVISION OF YOUTH AND FAMILY SERVICES v. S.L.C.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1964-10T4

DIVISION OF YOUTH AND

FAMILY SERVICES,

Plaintiff-Respondent,

v.

S.L.C.,

Defendant-Appellant.

__________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF K.C.R. and Z.C.,

Minors.

___________________________________

October 14, 2011

 

Submitted: September 14, 2011 - Decided:

 

Before Judges Axelrad, Sapp-Peterson and Ostrer.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-51-10.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Mark Tabakman, Designated Counsel, on the brief).

 

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

 

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (David R. Giles, Designated Counsel, on the brief).

PER CURIAM

S.L.C. appeals from an October 28, 2010 order of the Family Part terminating her parental rights to her sons, K.C.R., then two, and Z.C., then almost one, and awarding guardianship to the Division of Youth and Family Services (DYFS) for the purposes of effectuating the children's adoption.1 On appeal, S.L.C. argues DYFS did not prove by clear and convincing evidence the four statutory prongs required to establish that her sons' best interests require severance of her parental ties. We note the Law Guardian supports termination of S.L.C.'s parental rights to K.C.R. and Z.C.

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., 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 in its determination. We instead provide a brief summary of the cogent facts we considered in concluding the judge's findings were well supported by the record.

The following testimony and evidence were presented during the three-day trial commencing on September 17, 2010, and concluding on October 18, 2010. DYFS presented the factual testimony of its caseworkers, Lula Green and Deridre Carter, and the expert testimony of Donna LoBiondo, Ph.D., who performed a psychological evaluation of S.L.C. and bonding evaluations of K.C.R. with both S.L.C. and with his current caregiver, T.C., a maternal aunt who wished to adopt him. S.L.C. presented the testimony of T.C. that she would adopt K.C.R. but her preference was for kinship legal guardianship (KLG) over adoption. S.L.C. did not testify on her own behalf and presented no expert testimony.

S.L.C. is the biological mother of K.C.R., born August 7, 2008, and Z.C., born November 14, 2009. Both of the children were removed and placed in DYFS' custody following their births. At the time of trial, the older child resided with his maternal aunt and Z.C. resided with a family friend, L.C. Both of the caregivers were committed to adopting the respective child if and when S.L.C.'s parental rights were terminated.

DYFS initially received a referral in February 2008 that twenty-year-old S.L.C., who was incarcerated at the Juvenile Justice Commission-Hayes Unit (JJC), was three months pregnant. When S.L.C. was seventeen years of age, she committed aggravated sexual assault and related charges against her female cousins, five and six years old, by penetrating them digitally, grinding on them, and watching pornography with them. She was sentenced to two consecutive two-year sentences, released on parole in November 2007, and re-incarcerated on a parole violation in January 2008 for failing to report, violating the terms of her house arrest, and failing to submit to a drug test. S.L.C. was also classified as a Tier II registered sex offender under N.J.S.A. 2C:7-8.

The day after S.L.C.'s discharge from the hospital on August 10, 2008, DYFS took custody of K.C.R. pursuant to an emergency removal. DYFS promptly filed an order to show cause and a complaint for temporary custody of K.C.R. under an "FN" (abuse and neglect) docket, and was granted care, custody and supervision of him. After a fact-finding hearing on November 7, 2008, the court directed supervised weekly visitation.

Following an interim foster placement, K.C.R. was moved to his aunt's on September 4, 2008, where he has remained. T.C. is licensed by DYFS for placement. T.C. testified, consistent with her statements to DYFS, that she would adopt K.C.R. if his mother's parental rights were terminated, but she would prefer to be granted KLG of him.

DYFS subsequently changed its goal to adoption for K.C.R. because S.L.C. was not compliant with services, including individual sex offender therapy, which goal was approved by the court following a permanency hearing on August 13, 2009. Accordingly, on October 1, 2009, DYFS filed an order to show cause and complaint for guardianship of K.C.R.

On November 18, 2009, four days after Z.C. was born, DYFS filed an order to show cause and a complaint for temporary custody of him under an "FN" (abuse and neglect) docket and was granted custody, care and supervision of him when he was discharged from the hospital. S.L.C. was granted weekly supervised visitation. Initially, DYFS' goal was to reunify Z.C. with his mother, but following a fact-finding hearing on February 17, 2010, the court concluded S.L.C. had abused and neglected Z.C., as she was a convicted sex offender and failed to comply with court-ordered services. The court additionally noted S.L.C. appeared that day in court, but failed to stay for the fact-finding portion of the hearing.

At the permanency hearing on March 25, 2010, the court determined that although S.L.C. was compliant with parenting classes, she continued to be noncompliant with the court-ordered psychotherapy for sex offenders and thus DYFS' plan for termination of her parental rights followed by adoption was an appropriate plan. DYFS was directed to file an amended complaint for guardianship of Z.C. Accordingly, on May 5, 2010, DYFS filed an amended Order to Show Cause and Complaint for Guardianship of K.C.R and Z.C.

DYFS explored a variety of placements for Z.C., who spent about four months in an interim agency-approved home. DYFS initially contacted T.C. about serving as a possible placement for Z.C.; however, because she was already caring for K.C.R. and her own son, she was unable to take on another child. DYFS had also assessed S.L.C.'s mother as a possible placement for both of the children. The mother, however, was found to be unfit for placement because of her prior involvement with DYFS when S.L.C. was a juvenile, as she was substantiated as a perpetrator. Because S.L.C. and her mother lived in the same house, it also adversely affected S.L.C.'s ability to regain custody of the children. Although DYFS referred S.L.C. to Newark Emergency Housing for housing services, she failed to appear on two occasions.

On March 30, 2010, Z.C. was moved to the home of L.C., a family friend of S.L.C., where he has remained. As of trial, L.C. was licensed by DYFS and her home was found suitable. L.C. expressed an intention to adopt Z.C.

The day before trial began in September 2010, S.L.C. offered her brother as a possible adoptive caretaker for Z.C. Although DYFS requested S.L.C. have her brother come to court during trial to start the process of evaluating him, he did not show up to court.

Dr. LoBiondo testified about the evaluation she performed in 2008, noting it primarily focused on S.L.C.'s risk of harm to K.C.R., as opposed to her ability or capacity to parent. Based on the evaluation, Dr. LoBiondo concluded S.L.C. was an "untreated sex offender in need of sex offender treatment." In support of this conclusion, Dr. LoBiondo noted that S.L.C. denied her offense notwithstanding her conviction, manipulated her way through treatment, was found to have cognitive distortions indicating distorted beliefs, and admitted her current treatment was not addressing her sex offender issues. Dr. LoBiondo recommended S.L.C. participate in sex offender treatment, she seek employment so she could become independent, and she have supervised visitation with K.C.R. The psychologist explained that S.L.C.'s evaluation as being a sex offender of moderate risk was not based on a finding of pedophilic arousal but the evaluation created a concern that any children in her care would be negatively affected if she reoffended, sexually or not, after making a reattachment with her.

Caseworker Carter testified that, pursuant to Dr. LoBiondo's 2008 assessment, DYFS referred S.L.C. to multiple therapists, Dr. Carlin, Dr. Silikovitz, and Dr. Johnson. However, S.L.C. cancelled appointments, missed appointments, attended sessions sporadically, and was otherwise uncooperative.

Dr. LoBiondo discussed the maturation she observed in S.L.C. during her clinical evaluation on January 28, and February 24, 2010. S.L.C. was more willing to discuss her sexuality, admitted committing the acts underlying her conviction, and recognized her actions were wrong. However, Dr. LoBiondo noted S.L.C. still had not told her family she actually committed the crimes, and she also made defensive statements that tended to exhibit "cognitive distortions that helped her to keep herself from the terribleness of what had happened." Based on the interview, testing, and review of S.L.C.'s background information, Dr. LoBiondo concluded that S.L.C. still had not finished treatment. According to the psychologist, S.L.C. "was not ready to parent in terms of where she was in her life." Dr. LoBiondo considered various factors, including: S.L.C. had not finished treatment, she continued to struggle with childhood issues, she had not yet worked or tried to find a job, she was living at home, and she was not independent. Dr. LoBiondo recommended S.L.C. engage in sex offender treatment with a specialist.

Pursuant to Dr. LoBiondo's recommendations, DYFS identified services that S.L.C. needed, i.e., parenting skills, a psychological evaluation, a psycho-sexual evaluation and sex offender therapy. Caseworker Green referred S.L.C. to parenting skills classes at Family Connections, but S.L.C. did not comply. S.L.C. also missed parenting classes at Final Stop and had to be readmitted into the program. S.L.C. did complete the parenting skills classes on April 24, 2010.

Dr. LoBiondo also testified about the bonding evaluations she performed between K.C.R. and S.L.C., and K.C.R. and his caregiver T.C. During the February 24, 2010 bonding evaluation between S.L.C. and K.C.R., Dr. LoBiondo observed "very little evidence of attachment" between them and found it significant that K.C.R. did not have any reaction to S.L.C. leaving the room to go to the bathroom. The psychologist was not surprised, though, because S.L.C. was "very self involved," "not particularly attentive to the child's needs," harsh in addressing him, ignored him, and was "disdainful of him at times." Dr. LoBiondo related that the eighteen-month-old child played and amused himself and S.L.C. continued to eat her fast food meal, occasionally asking him what he was saying when he spoke in a "babble," but making little effort to try to understand him. Dr. LoBiondo also opined S.L.C. overestimated the child's ability to understand her verbalizations, expected him to verbalize with her at a level above what was reasonable for his age, and "demonstrated gross parenting deficiencies" when, for example, she encouraged him to play with Legos that were much too small for a child of his age.

In contrast, during the June 11, 2010 bonding evaluation between K.C.R. and T.C., Dr. LoBiondo observed a "very solid attachment between them" and noted the caregiver occupied "the position of primary centrality in [K.C.R.'s] life." If K.C.R. thought T.C. was going to leave the room, he would scream and when she left the room, he became "very distressed." The psychologist related that T.C. was "attentive and sensitive" to K.C.R.'s needs, was "very involved with him," and she made "very good attempts to understand him and to speak at his level." Moreover, the caregiver "helped him when he needed help" and was positive in her interactions with the toddler. In comparing the parenting styles of S.L.C. and T.C., based on the bonding evaluations, Dr. LoBiondo stated, "[t]he caregiver was was selfless in her approach to the child, and was very focused on the child's needs. And [S.L.C.] was very focused on her own needs."

Based on the bonding evaluations, Dr. LoBiondo concluded "there would be minimal, if any, negative repercussions from severing her parental rights [to K.C.R.]. And any possible negative effects would be clearly mitigated by the close and warm relationship [K.C.R.] has with his caregiver." On the other hand, the toddler was extremely close to T.C., considered her his "parent" and was at an age where he was busy building a personality and developing. Dr. LoBiondo testified that, at this point, K.C.R. needed close and sound attachment to create a "cohesive personality structure." She opined that if K.C.R. were removed from his current caregiver, it would be a "disaster emotionally" for him and he would be at risk for many negative repercussions psychologically. The psychologist did not believe any service could effectively mitigate the harm of removing K.C.R. from the caregiver. She explained that the benefit of having K.C.R. remain with and be adopted by the current caregiver was to give the toddler permanency and stability, and to allow the him to "remain in a supportive place where there's [a] competent and reliable caregiver who has a stable life."

Dr. LoBiondo did not perform any bonding evaluations for Z.C. She testified generally that, for a child who has been in the custody of a caregiver since birth, and has never known another parent, maintaining the relationship with the caregiver best serves the child. Even though Z.C. had been in a different placement for the first four months of his life, Dr. LoBiondo explained that starting around the age of six months, a child begins attaching to his parents, and the longer the child has with a caregiver once he starts attaching, the more harm will result in severing that relationship. Even without performing a bonding evaluation, Dr. LoBiondo supported termination of S.L.C.'s parental rights to Z.C. as being within his best interest.

Based on this record and after observing the lay and expert witnesses, examining the exhibits entered into evidence, and hearing arguments of counsel, Judge Stephen Bernstein concluded the best interests of K.C.R. and Z.C. required severance of S.L.C.'s parental ties. In a detailed oral decision of October 26, 2010, the judge recited the factual and procedural history of the case, made findings of fact and credibility assessments, 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 codified in N.J.S.A. 30:4C-15.1(a). The determination was memorialized in a judgment of guardianship. 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) and 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 and quotation marks omitted). Additionally, because of the family courts' 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; 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 (citation and quotation marks omitted). Applying this standard, we discern ample evidence in the record supporting the judge's conclusion that K.C.R.'s and Z.C.'s best interests required termination of S.L.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, the 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 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 criteria 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 all four prongs of the statutory test have been met by clear and convincing evidence. The first prong involves an inquiry into whether there has been an "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. K.H.O., supra, 161 N.J. at 348. 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 facts, as found by the trial judge from credible evidence, reveal by clear and convincing evidence that S.L.C. placed her children at risk by the fact at the time of their birth she was a convicted Tier II sex offender who violated parole and never really addressed or completed "the psychological counseling required or the therapy required for her to eliminate this harm or to deal with the sexual assault treatment." Judge Bernstein found Dr. LoBiondo's testimony "extremely credible and straightforward." As the psychologist related, S.L.C. initially denied any culpability for her sexual offenses, and while incarcerated, refused to discuss her sexual offenses in treatment. Dr. LoBiondo reported in her November 2008 evaluation that S.L.C. did not complete therapy in good faith while incarcerated, claiming to "have manipulated her way through sex offender treatment with a positive outcome, by telling her therapist what she thought the therapist wanted to hear rather than presenting herself genuinely and forthrightly during treatment," and that S.L.C. was in denial when she met with Dr. LoBiondo in 2008. Notes from the JJC also stated that S.L.C. had a history of anger and impulse control problems. Further, although S.L.C. showed improvement in the second evaluation with Dr. LoBiondo in 2010, despite the myriad of services offered by DYFS, she only attended five therapy sessions since the evaluation, and was still "in need of extensive psychological treatment."

There is no merit to S.L.C.'s argument that the fact neither child was involved in or witnessed the incident that led to S.L.C.'s incarceration, which predated their birth, meant they were not "endangered" or "harmed" by their mother's conviction. Nor was S.L.C. penalized solely because she had been incarcerated.

There does not need to be actual physical harm to a child to endanger his or her health and development; the potential for harm is sufficient. See A.W., supra, 103 N.J. at 616; W.P. & M.P., supra, 308 N.J. Super. at 386. "[T]he mental health of the child and its best interest psychologically must always be considered." A.W., supra, 103 N.J. at 605 (quoting In re Guardianship of R., 155 N.J. Super. 186, 194 (App. Div. 1977)). The expert assessed S.L.C. and concluded she had significant personality deficiencies that adversely affected her ability to parent her children if not addressed in the recommended treatment, the bulk of which related to the sexual offense committed by S.L.C. Because S.L.C. had demonstrated no progress since K.C.R. was removed from her care more than one year earlier, and continued to be noncompliant with the necessary therapy, it is clear the children remained at substantial risk of harm or injury. Even without a fear that S.L.C. would molest her own children, Dr. LoBiondo had significant basis for concern that any children in S.L.C.'s care would be negatively affected if she re-offended, sexually or otherwise, after the children became reattached to her. Moreover, the psychologist opined that re-offense would be more likely considering S.L.C.'s unfinished treatment and outstanding issues.

The second prong contemplates the determination of parental unfitness. It considers the parent's failure to provide even minimal parenting to his or her children. D.M.H., supra, 161 N.J. at 378-79. DYFS must prove the harm is likely to continue as a direct result of the parent's unwillingness or inability to eliminate the harm that had endangered the child's health and development, or the parent has failed to provide a "safe and stable home for the child" and a "delay in securing permanency" will further harm the child. K.H.O., supra, 161 N.J. at 348-49.

Judge Bernstein found by clear and convincing evidence that S.L.C. had made "little" effort to eliminate the harm facing the children, referring to her unresolved parenting issues, her noncompliant treatment, and her inability to provide a safe and stable home. The judge specifically noted her being uncooperative with therapy, by refusing the first three referrals, as failing to eliminate the risk of harm to the children. S.L.C. also continued to live with her mother, though she knew the arrangements were inappropriate as her mother had been a perpetrator herself. The judge further noted S.L.C. claimed to have moved out of that home, but provided the agency with no other housing information, and also failed to provide DYFS with any evidence that she was working or had any income to support the children. Additionally, the expert testimony clearly demonstrated S.L.C. had not significantly participated in sexual offender treatment and therapy at the time of trial and was at risk of re-offense.

There is no merit to S.L.C.'s claim of bias by Dr. LoBiondo and improper reliance on her testimony by the trial judge for the second prong. The trial judge's credibility findings are entitled to substantial deference, and nothing in the record provides a scintilla of any such bias by the psychologist. In fact, Dr. LoBiondo candidly reported in her 2010 evaluation that S.L.C. had made substantial improvement in the intervening fourteen months. Nonetheless, as of the time of trial, even though S.L.C. had finally completed parenting skills classes, she had not developed a long-term plan for reunification with her sons and clearly had not made sufficient strides towards providing a safe, stable and nurturing environment for them.

DYFS may also establish the second prong by showing "that the child will suffer substantially from a lack of stability and a permanent placement and from the disruption of [his or] her bond with foster parents." K.H.O., supra, 161 N.J. at 363. The Court has also recognized that the first and second prongs are "related to one another, and evidence that supports one informs and may support the other as part of the comprehensive basis for determining the best interests of the child." D.M.H., supra, 161 N.J. at 379.

There was clear, convincing expert evidence in the record to support Judge Bernstein's conclusion that K.C.R. had significantly bonded with his maternal aunt, with whom he had lived since virtually after his birth two years before trial, and who provided him with the permanency and stability he had not received from his mother. As Dr. LoBiondo noted, S.L.C. seemed disinterested and did not focus on K.C.R.'s needs, and exhibited "gross parenting deficiencies" during her interaction with her toddler. In contrast, K.C.R.'s caregiver was attentive to the child's needs, was positive, and supported the child. Moreover, K.C.R. viewed T.C. as his psychological parent. The expert testimony was clear that K.C.R. would suffer serious and enduring psychological harm if he were separated from his current caregiver.

The third element of the statutory test "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: (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.

An evaluation of efforts undertaken by DYFS to reunite a particular family must be done on an individualized basis "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. DYFS' efforts are not measured by their success. Id. at 393.

Judge Bernstein found DYFS made "reasonable efforts and attempts to provide services," noting the agency provided suitable placements for the children, visitation for S.L.C., and promptly had S.L.C. assessed by Dr. LoBiondo and referred her to a variety of counseling and treatment services. S.L.C. challenges these findings, claiming therapy sessions were inconvenient and far from her home, leading to transportation issues, and DYFS failed to provide immediate visitation with regard to K.C.R.

We disagree with S.L.C. DYFS referred S.L.C. for individual therapy four times, and only on the fourth referral, to one of the previous three therapists, did S.L.C. start complying with services. DYFS also set up a transportation service for her to attend her therapy sessions, which, at times, appears to have failed to take her to therapy. However, nothing about DYFS' efforts, on that front, is unreasonable, and the agency's overall efforts cannot be measured by the success of the transportation service as S.L.C. missed an equal, if not greater, number of her sessions, not because of transportation issues, but because of her own non-compliance.

DYFS also made reasonable efforts regarding S.L.C.'s visitation with K.C.R. Upon K.C.R.'s birth and removal, visitation was suspended. DYFS knew S.L.C. was a convicted sex offender, and reasonably, once it removed the child, the agency had a risk assessment performed the same month. Promptly after Dr. LoBiondo issued her report, the court set up supervised visitation by order of November 2008. Considering the totality of the circumstances, DYFS appropriately suspended visitation for three months and promptly provided an assessment and services for S.L.C.

The court must also consider alternatives to terminating parental rights under the third prong. Judge Bernstein found DYFS made reasonable efforts to explore alternatives to termination of S.L.C.'s parental rights. He noted DYFS assessed S.L.C.'s mother, and ruled her out. He also found DYFS placed K.C.R. with a maternal aunt who was the caregiver at the time of trial.

"[T]he Legislature has authorized kinship legal guardianship as an alternative to termination of parental rights in cases where adoption is neither feasible nor likely because the child is in the care of a relative." N.J. Div. of Youth & Family Servs. v. K.L.W., 419 N.J. Super. 568, 579 (App. Div. 2011) (citing N.J.S.A. 3B:12A-1(b), -6(d)(3)). However, "kinship legal guardianship is not an option when relatives are willing to adopt." Id. at 580 (citing N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 512 (2004)).

With regard to the possibility of KLG as an alternative to terminating S.L.C.'s parental rights, the court stated:

[K.C.R.] has been with this caregiver for the last two years. It's the only caregiver that he really knows and has lived with. And it comes down to the issue is whether or not there is an alternative to termination of parental rights. I know [the Law Guardian] fought talked very diligently about the effort of perhaps KLG and that [S.L.C.'s] sister was willing and interested in doing KLG. But the fact of the matter, [K.C.R.]'s been at a placement for over two years, is entitled to a permanency that can be afforded only by adoption.

 

The judge found adoption was reasonable and feasible, and there was no other alternative to terminating parental rights in the case. He was convinced S.L.C. was not likely to improve her current situation in the foreseeable future, and K.C.R., at the age of two, had developed a close bond with his caregiver and saw her as his psychological parent. The judge also found as an immediate concern that the children needed and deserved permanency and stability.

S.L.C. argues there was a suitable alternative to terminating her parental rights to K.C.R., specifically a KLG with his current caregiver. She points to T.C.'s testimony and contends the court improperly disregarded that K.C.R.'s caregiver preferred a KLG over adoption.

It is true that T.C. preferred a KLG to adoption, as she did not want to feel responsible for removing K.C.R. from her sister's care. However, T.C. testified that if S.L.C.'s parental rights were terminated, she was both willing to and preferred to adopt her nephew, rather than have strangers raise him. Judge Bernstein determined that to provide the permanency and stability that K.C.R. needed and deserved, he would be best served by adoption, and that KLG in this case was not a viable alternative. Based upon our review of the record, we discern no error in the trial judge's conclusion on the third statutory prong.

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." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 108 (2008). DYFS must show that the termination of parental rights will not do more harm than good. The question under this prong 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 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)." Id. at 363.

There is ample basis in the record for the judge's finding that the evidence strongly pointed towards termination rather than reunification. On the fourth prong, the trial judge relied on Dr. LoBiondo's bonding assessment as being "extremely critical." He noted that a comparison of the bonding evaluations showed a "night and day" difference in K.C.R.'s relationship between S.L.C. and his current caregiver. There was no indication of "any extensive bond" between K.C.R. and his mother. In contrast, the bonding evaluation between K.C.R. and his current caregiver showed the child viewed T.C. as his psychological parent. The toddler became upset when the caregiver left the room and she was attentive to the child's needs. The judge also relied on Dr. LoBiondo's testimony to find that if S.L.C.'s parental rights to K.C.R. were terminated, any harm would be offset by the parenting of the foster parent; on the other hand, there would be long-lasting and permanent harm to K.C.R. if he were removed from his foster placement.

For Z.C., the court found his caregiver, a family friend, was committed to adopting him, and the court could not "imagine that there would not be the appropriate bonding forming . . . based on the time that [Z.C.] has been with the foster mother." The court also found Dr. LoBiondo's opinion persuasive, even in the absence of bonding evaluations, that in accordance with normal child development, Z.C. had begun developing bonds with L.C. at about six months, and concluded their bond would be stronger than any relationship between the child and S.L.C., and termination of S.L.C.'s rights to Z.C. would not do more harm than good.

S.L.C.'s first challenge to the fourth prong is that the court improperly gave termination and adoption an "exalted status" to the detriment of the possibility of KLG. We have already rejected this argument in our discussion of the third statutory prong.

For Z.C., she argues the matter should not have gone to termination proceedings without more effort by DYFS in support of reunification. S.L.C. also contends that due to Z.C.'s young age, he had not completely bonded with his foster caregiver, and thus, the harm of removing him from L.C.'s custody would not have been great.

S.L.C.'s argument is not persuasive. Both children had been in their placements since virtually their births K.C.R. for two years and Z.C. for almost one year. As of trial in September and October 2010, S.L.C. was still not in a position to care for them, not having availed herself of the recommended sex offender and other psychological treatment, obtained employment, found suitable housing, or proposed a viable plan for reunification. It is unclear when, if ever, S.L.C. would be able to care for her sons. See K.H.O., supra, 161 N.J. at 358 (noting there are "limits on the amount of time a parent may have to correct conditions at home in anticipation of reunification"). The children have clearly bonded with their respective caregivers, who were the only mothers either has known. As Judge Bernstein appropriately found after hearing the lay and expert testimony, separating K.C.R. and Z.C. from their current caregivers would cause serious and enduring emotional and psychological harm, while adoption by their caregivers would provide these young children with permanency in stable, loving and nurturing homes.

It is not fatal to DYFS' satisfaction of the fourth prong that no bonding evaluation was performed of Z.C. with either S.L.C. or his current caregiver based on the fact he was under one year of age at the time of trial and had been with his current caregiver, who desired to adopt him, since he was four months old. Cf. N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 440 (App. Div. 2009) ("[W]e can envision very few scenarios in which comparative evaluations would not be required.").

We have no doubt S.L.C. loves her sons and honestly believes she is ready to care for them. However, we are convinced the record supports the trial judge's finding that S.L.C. is unable to provide a safe, stable and permanent home that her young sons so desperately need at this point in their lives. 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. A child cannot afford to wait until such time as his parent might possibly be able to provide a safe, secure and nurturing environment for him. The trial court properly concluded that termination of parental rights will not do more harm than good to K.C.R. and Z.C. as it will free them for adoption by their current caregivers, who have served as their psychological parents virtually from their births and who can provide permanency and stability to each of them.

Affirmed.

1 The order also terminated the parental rights of K.C.R.'s father and the unidentified father of Z.C., neither of whom has appealed. An amended order was entered on November 9, 2010 to correct the FC docket number for K.C.R.