OF YOUTH AND FAMILY SERVICES v. S.E.B. and K.A.T., JR IN THE MATTER OF THE GUARDIANSHIP OF X.S.B., X.Z.T. and K.K.T

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2664-10T3

A-2672-10T3

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

S.E.B. and K.A.T., JR.,

Defendants-Appellants.

________________________________

IN THE MATTER OF THE

GUARDIANSHIP OF:

X.S.B., X.Z.T. and K.K.T.,

Minors.

_________________________________________________

December 14, 2011

 

Submitted November 15, 2011 - Decided

 

Before Judges Payne, Reisner and Hayden.

 

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Camden

County, FG-04-96-10.

 

Joseph E. Krakora, Public Defender,

attorney for appellant S.E.B. (Durrell Wachtler Ciccia, Designated Counsel, on the brief).

 

Joseph E. Krakora, Public Defender,

attorney for appellant K.A.T., Jr. (Andrew P.

Slowinski, Designated Counsel, on the

brief).

Paula T. Dow, Attorney General, attorney

for respondent (Lewis A. Scheindlin,

Assistant Attorney General, of counsel;

Michelle D. Perry-Thompson, Deputy Attorney

General, on the brief).

 

Joseph E. Krakora, Public Defender,

Law Guardian, attorney for minor children

(Todd Wilson, Designated Counsel, on the brief).

PER CURIAM

In these consolidated appeals, S.E.B., the mother, and K.A.T., Jr., the father of three children, X.S.B. (Girl 4),1 X.Z.T. (Girl 5) and K.K.T. (Boy 2), appeal from the December 17, 2010 order of the court terminating the mother's and father's parental rights to the three children and granting the Division of Youth and Family Services (DYFS) guardianship over them. Having reviewed the testimony and exhibits in the matter, as well as the parties' legal arguments, we affirm.

I.

The mother gave birth to Girl 4 in November 2008. The baby weighed seven pounds eight ounces at birth, was healthy, and showed no exposure to drugs. The mother was twenty-five years of age at the time of the child's birth. The child's father was incarcerated on the day of his daughter's birth as the result of an episode of domestic violence with his then-girlfriend.

Previously, the mother had given birth to a boy and three girls who survived and one child who was born prematurely and died at birth. None of the four living children was in the mother's custody when Girl 4 was born. The oldest child, a boy, had lived with his paternal grandfather since birth and was never under the custody and supervision of DYFS. The three younger girls were abandoned by the mother from February to December 2006. In December, the mother returned to her children, but shortly thereafter she attempted to commit suicide by ingesting aspirin. She was psychiatrically hospitalized for five days. Upon release, she and the children lived in a shelter until the mother was discharged on January 29, 2007 for missing curfew.

On February 7, 2007, DYFS removed the three girls from their mother's care on an emergent basis as the result of the mother's noncompliance with her mental health treatment and homelessness. A Title 9 action was instituted on February 9, 2007, and on December 7, 2007, neglect by the mother was substantiated, the court having determined that she placed her children at risk of harm as the result of the mother's homelessness and her noncompliance with the services and psychiatric treatment offered to her. The three girls remained in the custody of a woman who was initially believed to be their paternal grandmother. Although it was later determined that only one of the girls was related to her, she was awarded custody of all three by the court. The father of the other two girls, who are twins, is undisclosed.

Because of the mother's history with DYFS, a hospital hold was placed on Girl 4 on November 11, 2008. On November 12, 2008, the court ordered the baby to be placed in protective custody pursuant to N.J.S.A. 9:6-8.16. On November 13, 2008, DYFS filed a verified complaint and order to show cause seeking legal custody of the baby because of the mother's history with DYFS, the litigation concerning the older girls, the mother's failure to comply with court-ordered services, and a positive marijuana test in July 2008. Additionally, on November 13, 2008, DYFS was awarded temporary custody of Girl 4, upon the court's determination that the mother had tested positive for marijuana in court that day, had three other children in foster care, and had untreated problems with substance abuse and mental health. The court ordered that the mother be psychologically evaluated, that psychiatric therapy be offered and that a drug screen be performed.

Four days after her birth, Girl 4 was transferred to foster care, where she has remained with her foster mother, who runs a daycare center from the home. Girl 4 is developmentally delayed, but is receiving services. The foster mother previously adopted a daughter, who was four at the time of trial, and a son, who was three. She also has four other children who were either in college or working. She wishes to adopt Girl 4.

The mother was evaluated on December 4, 2008 by Roger T. Barr, Ed.D. During that evaluation the mother admitted to use of marijuana two to three times a week since the age of fourteen. She stated that she had experienced a very bad childhood. Both parents abused drugs, and her father physically abused her mother. She was raised by her great-grandmother from the age of five through thirteen, and at age fourteen her mother disappeared for eight years. After being housed with her sister at a facility in Clarksboro, the court compelled her father to accept custody, but no affection between the father and the girls existed. The mother reported that she had never formed a personal relationship with the fathers of her older children. The father of the oldest was incarcerated for statutory rape when the child was two months of age and the father of the other children was incarcerated for attempted murder. Following an interview and testing, Dr. Barr concluded that the mother

fails to appreciate the continued influence of potent risk factors revealed during her Psychological Evaluation and dramatically impacting the parenting sphere. These risk factors include: Residential instability, lack of consistent emotional supports, failed male-female relationships, a childhood characterized by abandonment, abuse, and neglect, and unresolved psychological issues. This constellation of risk factors contraindicates reunification with [Girl 4] and recommends all visits occur under supervision.

 

Dr. Barr recommended a psychiatric evaluation to assess the need for psychotropic medication, continued drug treatment, individual and couples counseling, and the provision of stable housing and emotional support.

On December 10, 2008, the court conducted a hearing on the order to show cause, at which both the mother and father appeared. Following the hearing, the court ordered that Girl 4 remain in the custody of DYFS, that the mother submit to a psychological evaluation (which, in fact, had taken place), that she obtain substance abuse treatment, and that she receive parenting skills training as recommended by DYFS. Weekly supervised visitation was ordered. Additionally, DYFS was ordered to file an amended complaint adding the father as a parent of Girl 4. The amended complaint was filed on the following day.

The mother was to commence treatment at the Maryville Outpatient Center for drug counseling on December 2, 2008. However, on December 10, 2008, she became homeless and, as a result, she did not complete the Maryville program.

The court held a fact-finding hearing in the Title 9 action on March 5, 2009. At that time, both the mother and father tested positive for marijuana and PCP. Following the hearing, the court determined by a preponderance of the evidence that both parents had abused or neglected Girl 4. The mother was found to be homeless and to have failed to cooperate with the Division by completing substance abuse counseling or engaging in individual therapy. The father was found to lack stable housing and to have repeatedly tested positive for marijuana. The court ordered that both parents attend substance abuse treatment, counseling and parenting classes.

At a compliance review hearing, conducted on May 13, 2009, the mother was ordered to undergo a psychiatric evaluation, counseling at PC Counseling, and to obtain substance abuse treatment at Maryville outpatient center. The father was ordered to obtain substance abuse treatment at the Sikora treatment center, having completed a thirty-day in-patient drug treatment program at Turning Point on May 11, 2009, and to obtain counseling as recommended by DYFS. Both were ordered to obtain parenting skills training.

On June 22, 2009, the mother was incarcerated after attacking with a knife the woman who was custodian of her three older girls. She was indicted on multiple charges and pled guilty to third-degree utterance of threats to commit violence in violation of N.J.S.A. 2C:12-3a. On August 6, 2010, she was sentenced to three years of probation. At the time, it was noted that the mother had two juvenile adjudications and four municipal court convictions. This was her first indictable offense.

A DFYS report of July 21, 2009, completed upon the departure of the caseworker supervising the case, noted that the mother had "a long history of instability. She has mental health issues. [She] usually starts treatment but then does not follow through. She is currently homeless, staying from house to house."

On August 2, 2009, the mother delivered Girl 5 prematurely into the toilet at the gestational age of twenty-five weeks. However, the circumstances of the child's birth, which apparently are not uncommon, were not deemed to constitute neglect. A fraternal twin boy, Boy 2, was delivered at the hospital six days later. Both babies were placed in neonatal intensive care. No prenatal care had been sought. The mother tested positive for marijuana at the time of Girl 5's birth. Boy 2 remained hospitalized until November 16, 2009; Girl 5 remained hospitalized until December 22, 2009. Both were placed in a specialized foster home because of their medically fragile status. In July 2010, the twins were moved to the home of a new foster family while their prior foster parents were on vacation. They have remained with the new foster parents, who seek to adopt them.

On September 21, 2009, DYFS filed a verified complaint and order to show cause seeking custody of Girl 5 and Boy 2 on the grounds of the parents' inability to maintain housing or care for the children and of the children's medically fragile condition. Temporary custody was granted to DYFS on September 24.

On the same day, the Robin's Nest Family Ties program terminated supervision of visitation between Girl 4 and her parents, which had been commenced in January 2009, because they had missed three consecutive visits on August 31, 2009, September 14, 2009 and September 21, 2009. At that point, the mother had five unexcused missed visits, and the father had six.

On October 1, 2009, the mother was psychiatrically evaluated by William Ranieri, D.O. At that time, she reported that she had been in a drug treatment program at Maryville in December 2008 but had not completed it because she lost her apartment. However, she stated that she had remained drug free until six weeks ago, when she "picked up again." The mother stated that she and the children's father were currently living in a motel. Following his evaluation, the doctor diagnosed the mother as suffering from adjustment disorder with anxiety, major depressive disorder by history, marijuana abuse, and personality disorder, not otherwise specified (NOS). He recommended completion of counseling, parenting and substance abuse programs, and stated that when a stable safe home was established, the children could begin to spend additional time with their mother, under supervision, and gradually be returned to her.

On October 13, 2009, the father was psychologically evaluated by Meryl E. Udell, Psy.D. The father reported that he was the oldest of twelve children. Both of his parents abused drugs. While living with his parents, his residence had burned down three times, and twice he had been rescued by firefighters. The family moved every year. The father stated that he was put out of his family's house at the age of thirteen and thereafter lived in the streets and spent time in a youth detention center and Integrity House. He dropped out of school in eighth grade and has never held anything but temporary employment.

At the age of eighteen, he was involved in a State Police shoot-out and was incarcerated for five years.2 He was incarcerated again in 2007 for a violation of a probationary sentence imposed in 2006 for third-degree resisting arrest/eluding in violation of N.J.S.A. 2C:29-2b. The father reported that he had completed six weeks of inpatient drug treatment at Turning Point in Secaucus after testing positive in court for marijuana and PCP. He was to enter the Sikora Center for additional drug treatment on the following day.3 The father stated that he had been diagnosed with schizophrenia a year earlier and that he was taking psychotropic medications that were helpful. Results of DNA tests to confirm that he was the father of the three younger children remained pending.

Following an interview and testing, Dr. Udell diagnosed the father as suffering from schizophrenia and bipolar disorder by report. She concluded:

Although it is impressive that [the father] wants to take care of the children if he is the father, he is in no way capable of taking on this responsibility. He is psychiatrically unstable, emotionally overwhelmed and feeling resentful that his life has been "hijacked." Parenting to him is a punishing obligation. He is in a relationship with a woman he cannot wait to get away from, yet he just applied for housing with her. He has no history of gainful employment or independent living. His thought processes are scattered and circumstantial, his memory is poor and his stress tolerance and anger management are questionable at best. He needs to put all of his resources into regaining his emotional and psychiatric stability. Parenting should not be anywhere on his radar at this time or in the foreseeable future.

 

The doctor recommended hospital or intensive outpatient drug treatment, individual therapy, continued medication, and anger management. The doctor concluded that the father needed to obtain stable housing. She did not recommend parenting classes, stating "they are not relevant at this time."

On October 16, 2009, the mother was admitted into Cooper House Women's Recovery Program for drug treatment, five days per week from 9:30 a.m. to 2:30 p.m.. Initially, she consistently attended treatment, was "an active participant" and, commencing on November 3, 2009, had negative urine drug screen results. However, she was absent from the program from January 18 to 26, 2010 "with little to no contact with program staff [and] was unresponsive to staff voice mails." As a consequence, she was discharged from the program. It was noted that at the time of her discharge, the mother was residing in a homeless shelter.

On November 9, 2009, the court entered a permanency order with respect to Girl 4, approving DYFS's plan to terminate parental rights, which would be followed by adoption. The order noted that neither parent had stable housing, and that both had just recently begun to comply with services. On the same day, the court heard argument on DYFS's order to show cause with respect to Girl 5 and Boy 2. Custody by DYFS was continued. The mother was ordered to obtain substance abuse treatment at Cooper House, and the father was ordered to obtain psychiatric and substance abuse treatment through a mental illness/chemical addiction (MICA) program. Additionally, the father was ordered to attend counseling at the Center for Family Services, and both parents were ordered to obtain parenting skills training. Supervised visitation was ordered.

On December 4, 2009, the mother had to be escorted out of Cooper Hospital, where she had gone to visit the twins, because she was intoxicated.

On December 21, 2009, DYFS filed a complaint for guardianship of Girl 4. In its verified complaint, DYFS stated that the mother had failed to support or make a permanent plan for Girl 4 since November 2008. She had led "an unstable lifestyle characterized by frequent changes of address, periods of homelessness, and substance abuse." Additionally, she had failed until October 2009 to cooperate with any attempts by DYFS to provide services. She was presently homeless and resided in a shelter. The father, similarly, had failed to support or make a plan for the child. Along with his diagnoses of schizophrenia and bipolar disorder, he suffered from clinical depression and low average intellectual ability. Additionally, he had "led an unstable lifestyle characterized by frequent changes of address, periods of homelessness, and substance abuse," and he was not deemed capable of parenting the child.

In January 2010, the mother was terminated from the Center for Family Services' parenting program for failure to call for a start date. The father was terminated from the program on February 17, 2010 as the result of his failure to attend sessions on January 20 and 27, and on February 3 and 10, 2010.

On January 28, 2010, the father attended the last of his twelve individual counseling sessions at the Center for Family Services. In a letter to DYFS at the conclusion of treatment, the father's counselors stated that "unfortunately" he "does not appear to be psychiatrically stable" and that he did not consistently take his medication. His housing remained unstable, and he admitted to relapsing a few times on drugs, but it was "unclear how often he is using and whether the instability in his moods may be influencing his use." The counselors concluded:

In order for [the father] to be capable of caring for his children, he needs to maintain sobriety and be psychiatrically stable. Until he is consistently psychiatrically stable[,] individual counseling is not likely to be any more effective. . . . An updated evaluation to determine whether he is capable of caring for his children is strongly recommended before consideration is given to returning the children to his care.

 

The father had commenced the Center's drug treatment program in November 2009, because there were no openings at Sikora. He was terminated from the program on February 10, 2010 when he dropped out of treatment.

On February 3, 2010, the father stipulated to a Title 9 finding of abuse and neglect, admitting to a history of substance abuse and unstable housing that placed the two younger children at significant risk of harm. A default was entered against the mother, who failed to appear at the fact-finding hearing.

In April 2010, the father was arrested on drug charges.

While still incarcerated, on May 5, 2010, psychologist Linda R. Jeffrey, Ph.D. conducted an extensive evaluation of the father's fitness as a parent. During an interview conducted as part of the evaluation, the father stated that PCP was his drug of choice. He reported a love/hate relationship with the mother, and stated that although he had completed the services to which he had been referred, she had not. He had last seen his children three weeks before the evaluation. In a report rendered after the evaluation, Dr. Jeffrey concluded:

Based upon a reasonable degree of psychological certainty, the results of this psychological evaluation indicate that [the father] has very serious mental health, substance dependence and adjustment problems that very significantly decrease his capacity to provide a minimal level of safe parenting for his children. It is highly unlikely that he has the parenting capacity to provide a minimal level of safe parenting for his children. His children would be likely to be at risk for harm if placed in his care. This evaluator does not recommend the placement of the children in [the father's] care.

 

On May 7, 2010, while undergoing similar psychological testing by Dr. Jeffrey at a DYFS office, the mother became agitated and left the office. She was subsequently involved in a physical altercation with her sister in the parking lot, and the police were contacted. After the police determined that there was an outstanding warrant for her arrest as the result of her failure to attend court on her pending assault charges, the mother was taken into custody. However, upon verbalizing a suicidal intent, displaying head banging and attempting to hang herself with a blanket, she was transferred to the Ann Klein Forensic Center for psychiatric treatment, where she remained until June 14, 2010. She was treated for a major depressive disorder and diagnosed as suffering from dependence on marijuana, ecstasy and amphetamines. At the time of admission, she was belligerent, hostile and agitated, her speech was pressured, and she reported auditory hallucinations in the form of hearing her own voice telling her to give up. At time of discharge to the Camden County Jail, those symptoms had abated, and her insight and judgment were considered to be good.

On May 18, 2010, an order was entered permitting DYFS to amend its complaint for guardianship to include Girl 5 and Boy 2.

The incident resulting in the mother's hospitalization interrupted an ongoing psychological evaluation by Dr. Jeffrey, which was completed on August 31, 2010. The doctor concluded:

[The mother] displays serious problems with mood and thought disorder. She has not achieved a sustained remission from substance dependence. She has significant personality disorder problems in the areas of emotional maturity, empathy, stability and relationships with others. She has significant adjustment problems related to problems with the law, housing, education and employment. She is reportedly at the beginning of a process of treatment although she indicated her children have been in placement for a significant period of time. Her mental health, substance dependence and adjustment problems seriously decrease her parenting capacity to provide a minimal level of safe parenting for her children. She is not prepared to provide nurturance, stability, security, and responsible care for her children. . . . She is unfortunately not prepared to meet the basic needs of her children for safe parenting.

 

Dr. Jeffrey did not recommend the placement of the mother's children in her care.

An evaluation of the bond between the mother and her three youngest children was conducted by Dr. Jeffrey, who concluded that Girl 4 recognized her mother as a familiar person, but that the twins did not. She stated: "None of the children related to [their mother] as a psychological mother or a secure base." Earlier, on May 5, 2010, Dr. Jeffrey had reached a similar conclusion after observing the interactions between the father and the three children. In contrast, Dr. Jeffrey found a secure bond to exist between Girl 4 and her foster mother, and she found that severance of that relationship was likely to cause the child serious and enduring harm. She recommended that the child remain in the care of the foster mother. At the time of trial, bonding evaluations had not been conducted for the two youngest children who had only been with their foster parents for four months.

In August 2010, the mother enrolled, on court order, at Unity Place, a MICA treatment facility. In a November 12, 2010 report to the court, the mother's case manager at Unity Place stated that the mother "has demonstrated dedication to her treatment and commitment to reestablishing a healthy relationship and lifestyle for her and her children." Of fifteen urine drug screen tests, the last ten had been negative.

Trial of the matter was conducted on November 15 and 16 and on December 13, 2010. Following its conclusion, on December 17, 2010, the court issued a written opinion in support of an order terminating parental rights. In that opinion, the court summarized the history of the matter, and testimony provided by Dr. Jeffrey including her opinion that neither the mother nor the father could safely parent the three youngest children. With respect to the mother, Dr. Jeffrey noted that she was currently taking her psychotropic medications. However, she noted that while the medications were capable of leveling out the mother's mood they could not teach her to act in a proficient way. Additionally, the court noted Dr. Jeffrey's opinion that Girl 4 had a secure attachment to her foster mother, and that severance of the bond would place the child at risk of serious and enduring harm. Girl 4 would not experience a fundamental psychological disruption if the relationship with her siblings or parents was severed.

The court also summarized the testimony of the DYFS workers who appeared at trial, including testimony that the mother had been attending a MICA program at Unity Place since August and appeared to be doing well. DYFS worker Roark testified that she was aware of twelve relatives who had been presented as possible placements for the three children. One woman, Y.C., had offered herself as a relative caregiver for Girl 4, but she was ruled out after Dr. Jeffrey's bonding evaluation as the result of the strong bond that had developed between Girl 4 and her foster mother. An additional relative remained under consideration as a caretaker for Girl 5 and Boy 4.

The court also noted testimony given by the mother, including her progress in drug treatment and her desire to participate in an in-patient reunification program. The court noted that the mother was currently on probation, and if she violated its terms, there was a possibility that she would be incarcerated for up to five years. She had not had custody of any of her children since November 2006. The court also noted the mother's admission that she had a history of doing well for approximately three months and then regressing into her old ways a circumstance that the mother attributed to her failure to take her prescribed medications. The father did not testify.

At the conclusion of the factual summary, the court determined that DYFS had demonstrated, by clear and convincing evidence, that termination of parental rights would be in the best interests of the three children under standards codified in N.J.S.A. 30:4C-15.1a. The court found, in connection with the statute's first prong4 that the children's health and development had and would continue to be endangered by the parental relationship. The court found:

[The mother] has a serious, ongoing substance abuse problem and mental health issues and it was only recently that she began complying with services. Likewise, [the father] has an ongoing substance abuse problem, serious mental health issues, as well as an extensive criminal history. Throughout the Division's involvement, neither parent has contributed to the care and nurture of these children. As a result of [the parents'] substance abuse and mental health issues, they have been unable to meet the basic needs of their children. Furthermore, it has been over three years since the Division has been involved with the family and neither [parent has] maintained stable housing.

 

The court additionally considered the second statutory prong:

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[.]

 

[N.J.S.A. 30:4C-15.1a(2).]

 

In this regard, the court noted that the mother had failed to properly care for her children while they were under her care. As the result of this fact and the mother's failure to participate in mental health treatment and other court-ordered services, DYFS was awarded custody of Girl 4 shortly after her birth. At that point, she was placed in foster care, where she has developed a strong bond with her foster mother, who was interested in adopting the child. In contrast, the mother had no perceived bond to the child. Not only would it be harmful to place Girl 4 with her mother, it would be harmful now for her to undergo placement with a relative she does not know. "[S]he would not have the emotional defenses necessary to handle such a change without risk of harm." The child would experience "a profound sense of dislocation and a loss of infrastructure."

Although such a bond had not been demonstrated in connection with the twins, the court noted Dr. Jeffrey's opinion that they had no bond with the mother, and that severance of the parent-child relationship would be unlikely to cause them serious and enduring harm.

Further, the court found the mother had been unable to provide a safe and stable home for the three children. Although she now appeared willing to try to eliminate the harm facing them by complying with services, the court relied on Dr. Jeffrey's opinion that she "would be unable to eliminate the harm facing her children in the near future as it would take well over a year before she would be able to safely parent, assuming she continues her compliance."

Similarly, the father had been offered numerous services, but he had failed to cooperate. The judge concluded that "[h]is continuous instability, mental health issues, and substance abuse while the Division was involved with that family" demonstrate that the father is unable to eliminate the harm facing his children. Moreover, the court noted the absence of a parental bond between the father and Girl 4. In addition, the father had demonstrated his inability to maintain residence in the same location for more than two months at a time.

In summary, the court concluded that the parents lacked the resources necessary to minimize the harm to their children "as they are incapable of even being able to properly care for themselves." Further, the court noted that the children were in need of a permanent home, and that goal could only be achieved through a termination of parental rights. In that fashion, Girl 4 could be adopted by her foster mother, and the twins would be legally free to be adopted. "According to Dr. Jeffrey's unrefuted testimony, waiting any longer will prove detrimental to the children's development and could expose the children to mental health issues." Thus, the court found the second statutory prong to have been clearly and convincingly met.

Turning to the third statutory prong, the court found that DYFS had "made reasonable efforts to provide services to help [each] 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[.]" N.J.S.A. 30:4C-15.1a(3). In this regard, the court recapitulated the multitude of services offered to both parents, noting that the mother had only recently been compliant. The father had relapsed in December 2009 and returned to treatment. However, in April 2010, he was incarcerated, and provision of further services became impossible.5

Addressing alternatives to termination of parental rights, the court found none. It noted that twelve relatives had been explored as possible placements, but the majority had been ruled out. Although in July 2010 a relative had been identified as a suitable placement for Girl 4, by then the child had bonded to her foster mother. With respect to the twins, the court found:

both children are currently in a pre-adoptive home where they have been since July of 2010. In September of 2010, [the mother] gave the Division the name of another possible placement option for [the twins] and the Division is currently investigating. If deemed to be an unsuitable placement opinion, the current foster parents of [the twins] have expressed a desire to adopt the children.

 

Accordingly, the court found the third statutory prong to have been met.

Finally, the court determined pursuant to the statute's fourth prong that "[t]ermination of parental rights will not do more harm than good[,]" N.J.S.A. 30:4C-15.1a(4), noting that the parents had no demonstrated ability to care for themselves, let alone three children. The court additionally reiterated its findings regarding Girl 4 and concluded in connection with the twins that their "dire need" for a permanent home outweighed the parents' interests, particularly in light of the length of time that would be required for them to reach a point where they could meet the children's special needs.

Accordingly, termination of parental rights was ordered, and guardianship of the three children was granted to DYFS.

II.

On appeal, both parents appear to concede that DYFS met its burden of proof with respect to the first prong of the best interests test, but they argue that DYFS failed to offer clear and convincing evidence with respect to the other three prongs of N.J.S.A. 30:4C-15.1a.

With respect to the second prong, the father claims that he is both willing and able to eliminate the harm that his children faced and to provide them with a safe and stable home. He notes evidence of successful visits with the children, the fact that he attended some parenting classes, and that he participated in both inpatient and outpatient drug treatment. Yet, he concedes that he was most recently incarcerated from April 2010 to February 2011 on drug charges. Additionally, he concedes that he continues to face challenges in remaining completely drug free and in obtaining stable housing. Nonetheless, he argues that he should be given additional time to prepare to meet the needs of his children. The mother argues that, at the time of trial, she had maintained sobriety and her medication regime for over ninety days.

However, we have held:

Although the right of a parent to enjoy a relationship with his or her child is of constitutional dimension, N.J. Div. of Youth and Family Servs. v. C.S., 367 N.J. Super. 76, 109-10 (App. Div.), certif. denied, 180 N.J. 456 (2004), parental rights are not absolute. In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). "A child is not chattel in which a parent has an untempered property right." C.S., supra, 367 N.J. Super. at 110. Children must not languish indefinitely in foster care while a birth parent attempts to correct the conditions that resulted in an out-of-home placement. Id. at 111. In response to the reforms resulting from the Federal Adoption and Safe Families Act of 1997 [42 U.S.C.A. 301, 671(a)(16), 675 (5)(A)(ii)], "[t]he emphasis has shifted from protracted efforts for reunification with a birth parent to an expeditious, permanent placement to promote the child's well-being." Ibid. "A child cannot be held prisoner of the rights of others, even those of his or her parents. Children have their own rights, including the right to a permanent, safe and stable placement." Ibid.

 

[N.J. Div. of Youth & Family Servs. v. S.F., 392 N.J. Super. 201, 209-10 (App. Div.), certif. denied, 192 N.J. 293 (2007).]

While the parents' efforts in this case to address their problems is commendable, the record offers little evidence that their efforts will ultimately permit them to provide a safe and stable home for the three children at issue, or that such a result can be achieved within a reasonable time. We thus concur with the trial court's conclusion that the second prong of the best interest test was proven by clear and convincing evidence.

We are also satisfied that DYFS offered reasonable services to the parents to help them correct the circumstances that led to the out-of-home placements, thereby meeting the third prong of the best interests test. The father contests this fact, noting that stable housing remained a problem, but that DYFS refused to provide housing assistance in the absence of evidence of compliance with other services. We see nothing unreasonable in the Division's approach, finding no basis to conclude that, if housing assistance had been provided, compliance with other necessary services would have taken place. The mother complains that psychiatric evaluation and services were delayed. However, a psychiatric evaluation occurred on October 1, 2009, and services were incontestably supplied in connection with the mother's lengthy psychiatric hospitalization in 2010. She also argues that restrictions placed on her visitation with the children thwarted the bonding process. However, she offers no evidence to suggest that if supervision over visitation had not existed, the children would have remained safe. Indeed, Dr. Barr's and Dr. Jeffrey's unrefuted opinions were to the contrary.

Both parents claim that DYFS failed to make reasonable efforts to place the children with relatives. In connection with Girl 4, they note that a suitable relative was identified who was willing to take custody of the child. However, her name was not put forward until July 2010 after a bond had been established between the child and her foster mother.6 As we have noted previously, Dr. Jeffrey advised against severing that bond. We find nothing unreasonable in the decision of DYFS to accept its expert's unrefuted advice. As far as the twins are concerned, we note that at the time of trial, relative placement remained under consideration.

As a final matter, we find that the court's determination that severance of the parental bond would not do more harm than good was amply supported by the evidence at trial. The evidence demonstrates that Girl 4 has found a safe and nurturing home with her foster mother, with whom she has resided since she was four days old. The foster mother wishes to adopt. The future for the twins is somewhat less clear. Nonetheless, evidence was presented at trial that the options of relative placement or adoption by their present foster parents remain open for consideration. Thus, this is not a case in which an unsuccessful parental relationship has been severed "without making provision for . . . a more promising relationship." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 108 (2008) (citing N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 610 (1986)). In the circumstances presented, "[k]eeping the [children] in limbo, hoping for some long term unification plan, would be a misapplication of the law." N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 438 (App. Div. 2001) (citing In re P.S., 315 N.J. Super. 91, 121 (App. Div. 1998)), certif. denied, 171 N.J. 44 (2002).

Affirmed.

1 Because the mother had multiple children, we refer to them in birth order.

2 The record reflects that the father pled guilty to two counts of third-degree aggravated assault on a police officer in violation of N.J.S.A. 2C:12-1b(6) and to one count of second-degree resisting arrest/eluding, in violation of N.J.S.A. 2C:29-2b.

3

He did not do so, apparently, because there were no openings at the time.

4 "The child's safety, health or development has been or will continue to be endangered by the parental relationship[.]" N.J.S.A. 30:4C-15.1a(1).

5 The father was released from custody in February 2011, after the trial had been concluded.

6 The father also argues that the bonding evaluations were unfair because he was required to interact with three children, not just the one with whom the foster mother interacted. However, the father overlooks the fact that, if reunification were to occur, his daily interaction with all three children would be required.