DIVISION OF YOUTH AND FAMILY SERVICES v. K.A.J. and J.R.B IN THE MATTER OF THE GUARDIANSHIP OF T.J.B. AND J.N.B Minors

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3943-09T1

A-3944-09T1

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

K.A.J. and J.R.B.,

Defendants-Appellants.

___________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF T.J.B. AND J.N.B., Minors.

__________________________________

November 3, 2011

 

Submitted October 19, 2011 - Decided

 

Before Judges Cuff, Lihotz, and Waugh.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-241-08.

 

Joseph E. Krakora, Public Defender, attorney for appellant K.A.J. (Kevin G. Byrnes, Designated Counsel, on the brief).

 

 

Joseph E. Krakora, Public Defender, attorney for appellant J.R.B. (Robert W. Ratish, Designated Counsel, on the brief).

 

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

 

Joseph E. Krakora, Public Defenender, attorney for the minors (Melissa R. Vance, Assistant Deputy Public Defender, on the brief).

 

PER CURIAM

Defendants K.A.J. (Karen)1 and J.R.B. (James) appeal from judgments of the Family Part terminating their parental rights to their two children: T.J.B. (Tyler), who was born in February 2004; and J.N.B. (Jane), who was born in June 2006. We affirm as to both parents.

I.

We discern the following facts and procedural history from the record on appeal.

 

 

Karen, age thirty, and James, age fifty-three, met in the mid-1990s, and began living together in 2003.2 In addition to Tyler and Jane, Karen had three other children with James: a daughter, born in March 2005, who is deceased; a daughter born in October 2007, who is in the custody of Pennsylvania's children's services agency; and a daughter, born in March 2009, who is in the custody of New York's Office of Children and Family Services (CFS).

In 2005, Karen and James were living with Tyler and his now deceased sister in a one-bedroom basement apartment in Queens, New York. At some point prior to August 4, 2005, Karen sought treatment from Creedmore Psychiatric Center because she was experiencing auditory and visual hallucinations. On August 4, CFS received a telephone referral from a sergeant in the New York City Police Department. The sergeant reported that he had gone to defendants' home with two psychiatrists from Creedmore to complete a mental health assessment of Karen. The sergeant described the condition of the home as "deplorable," because it was dirty, cluttered, and there was exposed wiring in the ceiling.

Karen was found to be actively psychotic, and was taken to Queens Hospital Center for a psychiatric evaluation. She was diagnosed with schizophrenia, paranoid type, and hospitalized. The children were also taken to the hospital for medical evaluations. The daughter had a diaper rash, and Tyler had scabies, likely caused by insect bites. The children were given medicine for their conditions and placed in a respite home because Karen's sister, who had initiated the police contact, was unable to care for them.

CFS contacted James, who had not been home at the time the police and psychiatrists visited the home. James denied that Karen had any serious mental health issues. However, he agreed to have the children placed in a respite home while he made arrangements for them to live with other relatives.

CFS opened a file on the family, investigated the initial referral, and assessed the home of Karen's sister with the goal of placing the children there. On August 15, the children were released to James, who had moved in with Karen's sister. Upon Karen's subsequent release from the hospital, she also moved in with her sister. However, the caseworker stressed that Karen could not be left alone with the children.

CFS monitored the family and provided services. James continued to deny that Karen was mentally ill or that she needed medication. He was uncooperative with CFS's unannounced visit to the home on August 30.

In late September, the family moved to New Jersey without notifying CFS authorities and without leaving any contact information. James eventually advised the CFS caseworker that they had moved to Newark.

The CFS caseworker contacted the New Jersey Division of Youth and Family Services (DYFS) on October 3. She told DYFS about the family's move to New Jersey and that the parents had been non-compliant with supervision. She requested that DYFS visit the family and open a case for supervision. DYFS made several attempts to visit defendants' apartment, but was not able to meet with the family until October 25.

The DYFS caseworker determined that the children were safe in the home, and developed a case plan with the parents. DYFS provided them with homemaker services, offered parenting skills training, and sought welfare and healthcare for Karen and the children. The DYFS caseworker took Karen's psychiatric condition into account in developing the case plan, which provided that James was not to leave the children alone with her.

The caseworker concluded that James did not understand the seriousness of Karen's condition. He was reluctant to divulge financial information necessary to obtain certain services, and was hesitant to accept assistance, including advice from the homemaker.

On January 5, 2006, Karen went to Newark Beth Israel Hospital for a prenatal examination. She reported that she was homeless because James would not allow her to return to their home. She also reported that, at the time, she had no children living with her or in her care. The hospital made a referral to DYFS.

On January 16, the homemaker found the children home alone with Karen. She characterized the apartment as "in worse shape than before." When questioned at trial about the incident, James responded that "as far as I can recall, I never left her alone."

In a January 20 letter to DYFS, a psychologist and psychiatrist from Creedmore stressed the importance of Karen continuing to receive outpatient psychiatric services. They noted her history of violence, her history of visual and auditory hallucinations, including violent thoughts and images regarding her children, and her history of parasuicidal acts and suicidal gestures. They expressed concern that those psychiatric symptoms would reemerge because she was no longer taking her medications due to her pregnancy.

On March 17, the caseworker made a home visit, but was unable to locate the family. Neighbors stated that they had moved back to New York. They had not notified DYFS of the move, nor had they provided any forwarding information. On March 22, DYFS initiated a search for the family.

On April 6, DYFS was advised by the New York City Police that Karen and James's infant daughter had died at Queens Central Hospital. The cause of death was respiratory failure resulting from dehydration. The investigation revealed that James had brought the daughter to the hospital in New York, leaving Karen alone in Newark with Tyler.3 DYFS substantiated a claim of medical neglect.

Karen was taken to Queens for questioning, and Tyler was temporarily placed in a New York shelter. He was subsequently moved to a foster home in New Jersey. Medical screenings found him to be developmentally delayed and in only the tenth percentile for weight.

By the time of trial, in February 2010, Tyler remained in foster care. Tyler had had a total of five foster home placements: two in New York, two in New Jersey, and a final one in Pennsylvania. He required special education and therapy for his behavior issues. Nevertheless, the record reflects that he is a friendly, resilient child, who is doing well in his most recent placement.

On April 22, 2006, James contacted DYFS and reported that he could not find Karen. On July 9, the East Orange Police notified DYFS that Karen and Jane, who was a newborn at the time, had been removed from a friend's residence. The friend had given shelter to Karen and the baby when Karen was either kicked out or voluntarily left the apartment she shared with James. Neither Karen nor James had reported Jane's birth to DYFS.

The police transported Karen and Jane to University Hospital in Newark. DYFS then placed Jane in a foster home pursuant to an emergent order of removal. Jane was moved to another foster home when she was about five months old. She was still in that home at the time of trial. Her foster mother expressed an interest in adoption. Jane appears to have no significant health issues.

After the children's removals, DYFS provided the family with services intended to facilitate reunification. They included parent/child and sibling visitation, parenting skills classes, psychological and psychiatric evaluations to assess the parents' needs, outpatient mental health services for the parents, medical evaluations and interventions for the children, transportation to evaluations and visitation, bus cards, and the consideration of relative resources as placements for the children.

Karen and James complied with their first set of psychological and psychiatric evaluations in 2006. They had completed parenting skills classes by early 2007. However, Karen was unavailable for services for long periods of time due to frequent hospitalizations.

In April 2007, DYFS learned that Karen had been seen at University Hospital in Newark for her mental illness. At that time, she was sixteen weeks pregnant with her fourth child. She reported that she was moving to Allentown, Pennsylvania with James. She gave birth to the child in Pennsylvania in October 2007. By November 2007, she was residing at a shelter in Harrisburg.

Karen was hospitalized at Queens Medical Center in Brooklyn between February and April 2008. She was hospitalized at Bellevue Hospital in New York between October 2008 and April 2009. She was pregnant with her fifth child at that time. From Bellevue, she was transferred to Rockland Psychiatric Center, where she remained until August 2009. According to the DYFS caseworker, Karen was briefly hospitalized in East Orange General Hospital in the later part of 2009.

By December 8, 2009, Karen's whereabouts were again unknown. She did not appear for a court conference that day. She also did not appear at a pretrial conference on February 2, 2010, or a case management conference on February 4. She did not appear for trial. Neither DYFS nor Karen's attorney had contact with her during the month prior to the trial. Her attorney only knew that she might be living in a shelter.

The record reflects that James has led a generally transient and unstable life. At trial, he testified that he had been working through a temporary agency since September 2009. However, DYFS checked his employment status with the agency, which had no record of current employment. In January 2010, DYFS also requested that James provide proof of his employment, but he did not comply. The only documentary proof of James's employment was from June 2009 and November 2009.

James's living situation was also unstable. In April 2007, he moved to Allentown with Karen. Between approximately the summer or early fall of 2007 and February 2008, he was incarcerated in the Bergen County jail. After his incarceration, he began living with his new girlfriend in East Orange. He continued to live with her through September 2008.

From September 2008 to May 2009, he was incarcerated in New York State for driving with a suspended driver's license. During that period of incarceration, he missed several court hearings, although he had regularly attended earlier court hearings.

James testified at trial that he lived with his sister in Brooklyn from May to September 2009. However, in July 2009, he told the caseworker that he was living with his girlfriend in Highland Park. He suggested the girlfriend as someone who might provide a home for his children.

During a psychological evaluation conducted in September 2009, James told Mark Singer, Ed.D., a psychologist, that his then current girlfriend was willing to marry him and care for his children and that the two were "planning on having a future together."

At trial, James testified that he had been residing with another female friend in Orange since September 2009. DYFS verified that address as his then current home.

According to the caseworker, Karen and James visited the children "sporadically." They missed some scheduled visits, and were late for others. However, make-up visits were provided when necessary. When they were not institutionalized, their attendance tended to be fairly regular.

Both parents generally interacted appropriately with the children during the visitations. James was characterized as having a particularly good relationship with Tyler. His visits with Jane were sometimes awkward. For example, during visits held on May 27, July 22, August 15, August 29, September 2, September 12, and September 23, 2008, Jane rejected James's attempts to interact with her. He chose to leave the September 12 visit rather than continue the visit with Tyler only. On occasions in September and October 2009, Jane referred to her foster family as her family, but James responded that her real family was in the visitation room and her foster parents were just strangers.

Alexander Iofin, M.D., a psychiatrist, examined Karen and James in August 2006. He issued supplemental reports in February 2007, after reviewing assessments issued by Charles S. Hasson, Ph.D., a psychologist.

Iofin concluded that Karen suffered from schizophrenia, paranoid type, which he described as a chronic neurodegenerative disease of the brain. The disease rendered her prone to psychotic episodes, even when fully compliant with a medication regime. Iofin opined that, when the episodes occur, Karen could present a significant danger to herself and those around her, particularly given the violent themes of her past hallucinations. She also suffered from mild mental retardation, which Iofin concluded led to a "pretty grim" prognosis.

Iofin recommended that Karen not be considered for the role of parent in an unsupervised setting at that time or at any point in the future. He recommended supervised visitation, but only if she were fully compliant with her medication regime.

Iofin concluded that James did not suffer from any identifiable psychiatric pathology that would require medication. He diagnosed him as suffering from a personality disorder with paranoid, schizoid, and avoidant personality traits, for which he recommended therapy. Iofin recommended that James have only supervised visitation with the children. Although he believed James presented no direct danger to the children, Iofin concluded that he "may not be considered as a reasonable care giver" for them because of his significant difficulty in relating to others and his "deeply ingrained personality features."

On October 6, 2006, Hasson reported the findings of his evaluation of Karen's and James's fitness to parent their children. At the evaluation, James denied knowing why DYFS should have any concerns about his or Karen's parental fitness. That assertion led Hasson to conclude that James "has little appreciation of the fact that [Karen] suffers from a serious mental illness." Hasson further found James to be "very guarded" and "willing to mislead by omitting information." He was "rigid in his thinking" and displayed "some schizoid and suspicious personality traits," his insight was "slight," and his judgment was "poor to fair."

Hasson found Karen to be "a mildly mentally retarded female who suffers from paranoid schizophrenia . . . presently controlled with antipsychotic medication." He also noted that "her limitations a[re] very significant. She is not capable of functioning as an independent adult. She needs someone to take care of her and manage her life."

Further, Hasson found that both Karen and James "have very impaired judgment." Noting that DYFS had once hoped to delegate responsibilities to James in light of Karen's illness, Hasson concluded that James "is not the type of person to be responsible." He further noted, "[a]s a general personality characteristic, [James] is oriented towards blaming others and not accepting responsibility for his actions. Such a stance does not augur well for someone being asked to parent a child."

Hasson concluded that Tyler and Jane should remain in foster care. He recommended that DYFS pursue termination of parental rights because neither Karen nor James would ever be able to provide the children with a nurturing and safe environment.

James was referred to Final Stop Family Services in November 2007 and again in July 2008. Final Stop concluded that he needed more in-depth services than they were able to provide, so he was referred to Family Connections. He did not attend his appointments on his first referral to Family Connections, but he complied after the second referral in September 2009. He was attending therapy at the time of trial.

In March 2008, Leslie Trott, Ed.D., a psychologist, evaluated James for purposes of assessing his psychological functioning and parenting potential. She found that James suffers from a personality disorder. Although she thought he was cognitively capable of parenting, Trott found that his socio-emotional functioning was so "maladaptive" that his ability to parent was "at best questionable." She concluded that James was not competent to parent. She recommended that he attend weekly counseling and have only supervised visitation with the children.

In September 2008, Iofin re-examined James to determine his overall psychiatric functioning and assess what further services he required. He also assessed James's ability to parent. Iofin reiterated his prior diagnosis of personality disorder NOS (not otherwise specified), and continued to recommend therapy. Nevertheless, because there were no effective treatments for such personality disorders, he anticipated that "the effectiveness of treatment will be minimal at best." Iofin concluded that James would not be even a minimally adequate caregiver for the children, at present or in the foreseeable future.

Singer evaluated James on two occasions, in September 2008 and in September 2009. He also conducted bonding evaluations between the children and their foster mothers in October 2008, between Jane and her foster mother in June 2009, and between the children and James in September 2009.

Singer concluded that James was not capable of parenting his children, and was "not likely to gain that capacity in the foreseeable future." He found that James demonstrated an inability to benefit from the services DYFS had provided over the course of many years. He had unstable relationships and living arrangements, with frequent changes in paramours; he maintained a high level of secrecy; he was defensive, rigid, and moralistic; and he minimized his flaws and did not take responsibility for his behavior. These personality characteristics, combined with his social history, led Singer to conclude that James would be unable to provide the children with a safe, consistent environment. Singer also concluded that James did not have the capacity to organize himself effectively enough to care for the children.

Based upon his bonding evaluation, Singer found that Tyler viewed James as a significant parental figure. Consequently, Singer concluded that Tyler would experience significant feelings of sadness and loss if he were to lose his relationship with his father. Nevertheless, Singer maintained his opinion that James was not a viable parenting option. Singer also expressed concern that a failed attempt to place Tyler with James would re-traumatize the child, especially in light of the numerous unsuccessful foster care placements Tyler had experienced, as well as his special needs.

Singer found that any attempt to remove Jane from her foster family would cause significant and enduring harm, resulting in emotional and behavioral regression. He characterized Jane as a very anxious and needy child. She perceived her foster mother as her psychological parent, looking to her for nurture and guidance.4 In contrast, Singer concluded that Jane did not perceive James as a central parental figure. Singer found that Jane would not experience significant or enduring harm if her relationship with James were terminated.

In January 2010, Singer evaluated Karen and performed a bonding evaluation between Karen and the children. Because of Karen's mental health issues, Singer concluded that she was incapable of parenting the children. He reported that Karen acknowledged as much during his interview of her. In addition, Singer concluded that the children did not consider Karen as a significant, consistent parental figure in their lives, as a result of which there was no secure attachment between them.

Antonio Burr, Ph.D., a psychologist, evaluated James in September 2009. His impression was that James was not a bad person, that he meant well, and that he had a sincere affection for his children. Nevertheless, Burr concluded that James was unable to parent the children because he lived an unstable life, including several incarcerations and frequent changes in living and work arrangements.

Burr found that James also showed poor judgment in his relationship with Karen. Testing revealed significant psychological problems, which caused James to become so internally focused that he would be unable to care for the children. Burr concluded that there was "a very significant risk of neglect" because James was not "capable of managing the daily demands that parenting children, one or more, would place on him." Burr also concluded that James was not capable of providing the children with permanency or a predictable, stable home in which to develop.

In July 2009, Burr performed a bonding evaluation between Jane and her foster mother. In September 2009, he performed a bonding evaluation involving James and the children. He found that James felt "quite attached to his children; he wants to please them, and he somewhat urgently seeks for them to show attachment and loyalty to him as a parental figure." However, Burr concluded that the children did not reciprocate those feelings.

Burr's "sense of [Jane] in the presence of [James] was that she was rather alarmed." James insisted on feeding her when she did not want to eat. Additionally, "[t]here was no real interaction between them in the sense that she was not allowed to respond to the questions that he posed to her. He posed questions to her and he answered them himself[,]" which "is a very schizoid feature in communication." Jane "expressed a wish to leave the room."

By contrast, Burr found that the foster mother was "perfectly reasonable, appropriate, attentive, affectionate, limit-setting, cooperative with [Jane]." He concluded that Jane had bonded with her foster mother. It was apparent to Burr that "there had developed a very reasonable and appropriate relationship that would advance [Jane's] developmental needs." Burr opined that if Jane were removed from her foster home, she would experience a "loss." Moreover, Jane was "less resilient" than her brother; she was "a little anxious" and "emotionally reactive." Thus, she was at greater risk for negative consequences should she become upset and not have an alternate parent to meet her needs.

Although the risk would be lessened if Jane were placed with Tyler in an environment with a nurturing parent, Burr did not believe it necessary to place the children in the same home. While the two recognized each other as siblings, they had been in different placements for a long period of time and were not "overly-reliant on each other to survive . . . emotionally." Burr noted that both Tyler's and Jane's foster mothers had expressed an interest in maintaining sibling contact should they remain in separate homes.

Burr found that "the picture was a little bit different" with Tyler. Tyler recognized James as his father and was affectionate with him, perceiving him as a "benign" force in his life. However, neither Tyler nor Jane showed "the kind of attachment or bonding which would suggest that they are focused on [James] as a primary parental figure, or that they expect him to provide exclusively for their physical or emotional needs."

Burr further remarked that James interacted inappropriately with Tyler, showing the same type of schizoid patterns as he had with Jane. For example, in an apparent attempt to demonstrate fairness towards the children, James compelled Tyler to give Jane a toy that she had shown absolutely no interest in, and his communications with Tyler were "not about advancing the communication, or the knowledge, or the interest of [Tyler]."

DYFS's permanency plan for both children was termination of parental rights followed by adoption, with Jane to be adopted by the foster mother with whom she had lived since she was an infant and Tyler to be adopted by the foster mother with whom he had been placed during the course of the trial. Both parents objected to that plan. Although Karen presented no alternative, James sought reunification. He testified that he was capable of parenting the children if they were returned to him. He offered the "close friend" with whom he was living as a co-parent.

James had previously identified several other individuals as possible placements for the children. Two, his sister and a female friend, were rejected by DYFS because they did not comply with the home study process. A third was rejected because there was insufficient living space for the children.

In February 2009, James had offered a friend, H.W. (Helen), whom he had known since 1999 and whom he described as his "church sister." Helen resided in Philadelphia. She was assessed and approved as a placement in the summer of 2009. Tyler was placed with her in February 2010.

In February 2010, Burr performed a psychological evaluation of Helen, as well as a bonding evaluation between Helen and the children. During the evaluations, Helen expressed interest in adoption. Burr found her to be "a perfectly reasonable, and probably, quite a good parent." Consequently, he had no objection to Tyler's being placed with her. Although neither child had established a bond with Helen, Burr concluded that "the affectionate, and tender manner she displayed with the children bode[d] quite well for [such] attachment and bonding to develop in the . . . future." Burr found Tyler to be a delightful, resilient child, who "was perfectly happy to go with [Helen] and excited about it."

DYFS filed its guardianship complaint on May 1, 2008. Trial was held on three days, February 9, March 2, and March 5, 2010. Karen did not appear, and James only appeared for the first two days. Both were represented by counsel. The DYFS caseworker testified at the trial, as did James. DYFS also presented testimony by Singer and Burr. On March 9, 2010, the trial judge put an oral decision on the record, finding that DYFS had met its burden of proof as to both parents and both children by clear and convincing evidence. Implementing judgments were filed on March 17, 2010.

James and Karen's filed separate appeals, which we consolidated by order dated May 24, 2010.

II.

Karen raises the following issues on appeal:

THE TRIAL COURT'S RULING TERMINATING PARENTAL RIGHTS WAS ERRONEOUS AND SHOULD BE REVERSED.

 

A. THE CHILD'S HEALTH AND DEVELOPMENT HAVE NOT BEEN AND WILL NOT BE SERIOUSLY IMPAIRED BY THE PARENTAL RELATIONSHIP.

 

B. THE PARENT IS WILLING AND ABLE TO ELIMINATE THE HARM AND DELAYING PERMANENT PLACEMENT WILL NOT ADD TO THE HARM.

 

C. D.Y.F.S. HAS NOT MADE DILIGENT EFFORTS, AND THE COURT HAS NOT CONSIDERED ALTERNATIVES TO TERMINATION.

 

D. THE TERMINATION OF PARENTAL RIGHTS WILL DO MORE HARM THAN GOOD.

 

In his appeal, James raises the following issues:

POINT I: THE JUDGMENT FOR GUARDIANSHIP SHOULD BE REVERSED BECAUSE THERE WAS NO SHOWING OF CLEAR AND CONVINCING EVIDENCE UNDER THE BEST INTERESTS TEST.

 

A. THE STATE FAILED TO PRODUCE EVIDENCE

OF HARM TO THE CHILD AS A RESULT OF THE PARENTAL RELATIONSHIP BETWEEN THE FATHER AND CHILD.

 

B. THE STATE FAILED TO SHOW BY CLEAR AND CONVINCING EVIDENCE THAT THE FATHER IS UNWILLING OR UNABLE TO PROVIDE A SAFE AND STABLE HOME FOR THE CHILD.

 

C. THE TRIAL COURT ERRED IN CONCLUDING THAT DYFS HAD DEMONSTRATED, BY CLEAR AND CONVINCING EVIDENCE, THAT THE TERMINATION OF THE FATHER'S PARENTAL RIGHTS WOULD NOT DO MORE HARM THAN GOOD.

 

Before addressing those issues, we outline the general legal principles that govern our review of judgments terminating parental rights.

A.

The scope of our review of a Family Part judge's factual findings is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278-79 (2007) (citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). Those findings may not be disturbed unless they are "'so manifestly unsupported by or inconsistent with the com petent, 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) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)); see also N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004). "A reviewing court should uphold the factual findings undergirding the trial court's deci sion if they are supported by 'adequate, substantial and credi ble evidence' on the record." M.M., supra, 189 N.J. at 279 (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)).

As a general rule, we should also defer to the judge's credibility determinations. Ibid. Such deference is appropri-ate because the trial judge has a feel for the case and "the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008); see also M.M., supra, 189 N.J. at 293.

In New Jersey Division of Youth & Family Services v. M.C. III, 201 N.J. 328, 343 (2010) (alteration in original), the Supreme Court reiterated the standard first used in Cesare v. Cesare, 154 N.J. 394, 413 (1998), recognizing that "'[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding.'"

We have held that, "'where thefocus of thedispute is . . . alleged error in the trial judge's evalua tion of the underlying facts and the implications to be drawn therefrom,' the tradi tional scope of review is expanded." J.T., supra, 269 N.J. Super. at 188-89 (quoting C.B. Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989)); see also, N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). Deference is still appropriate even in that circumstance "unless the trial court's findings 'went so wide of the mark that a mistake must have been made.'" M.M., supra, 189 N.J. at 279 (quoting C.B. Snyder Realty, supra, 233 N.J. Super. at 69).

Nevertheless, the trial judge's legal conclusions, and the application of those conclusions to the facts, are sub ject to plenary review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). We need not defer to the trial court's legal conclusions reached from the established facts. See State v. Brown, 118 N.J. 595, 604 (1990). "If the trial court acts under a misconception of the applicable law," we need not defer to its ruling. Ibid.

Parents have a constitutionally-protected right to enjoy a relationship with their children. N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 165-66 (2010); E.P., supra, 196 N.J. at 102; In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). Strict standards have consistently been imposed in the termination of parental rights. K.H.O., supra, 161 N.J. at 347. To balance these constitutional rights against potential harm to the child, when applying for guardianship, DYFS must institute "a termination proceeding when such action would be in the best interest of the child." N.J. Div. of Youth & Family Servs. v. K.M., 136 N.J. 546, 557 (1994). The burden of proof is on DYFS to establish its case by clear and convincing evidence. Ibid.; J.N.H., supra, 172 N.J. at 464; see also P.P., supra, 180 N.J. at 511 ("On appeal, a reviewing court must determine whether a trial court's decision in respect of termination of parental rights was based on clear and convincing evidence supported by the record before the court.").

The Supreme Court first articulated the best interests stan dard in New Jersey Division of Youth & Family Services v. A.W., 103 N.J. 591, 602-11 (1986). The Legislature subse quently amended Title 30 in 1991 to conform with the court's holding in A.W., codifying the standard at N.J.S.A. 30:4C-15.1(a). See L. 1991, c. 275, 7. The statute provides that DYFS must prove:

(1) The child's safety, health or devel opment 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 par ents 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.

 

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

These four factors are not independent of each other; rather, they are "interrelated and overlapping[,] . . . designed to identify and assess what may be necessary to promote and protect the best interests of the child." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006) (citing K.H.O., supra, 161 N.J. at 348), certif. denied, 190 N.J. 257 (2007). Application of the test is "extremely fact sensitive," requiring "particularized evidence that addresses the specific circumstances of the individual case." Ibid. (citation and internal quotation marks omitted).

Under the first prong of the best interests standard, DYFS must prove by clear and convincing evidence that "[t]he child's safety, health or development has been or will continue to be endangered by the parental relationship." N.J.S.A. 30:4C-15.1(a)(1). "The harm shown . . . must be one that threatens the child's health and will likely have continuing deleterious effects on the child." K.H.O., supra, 161 N.J. at 352. There are situations where "[t]he potential return of a child to a parent may be so injurious that it would bar such an alternative." A.W., supra, 103 N.J. at 605. Accordingly, the absence of physical abuse or neglect is not conclusive; indeed, serious emotional and developmental injury should be regarded as injury to the child. Ibid. More over, trial courts must consider the potential psychological damage that may result from reunification with a parent. Ibid. "[T]he psychologi cal aspect of parenthood is more important in terms of the development of the child and its mental and emo tional health than the coincidence of biological or natural par enthood." Sees v. Baber, 74 N.J. 201, 222 (1977); see also In re Guardianship of K.L.F., 129 N.J. 32, 44 (1992) ("Serious and lasting emotional or psychological harm to children as the result of the action or inaction of their biological parents can constitute injury sufficient to authorize the termination of parental rights.").

Under the second prong of the best interests standard, a trial court is required to determine whether it is "reasonably foreseeable that the parents can cease to inflict harm upon" the child. A.W., supra, 103 N.J. at 607. "No more and no less is required of them than that they will not place their children in substantial jeopardy to physical or mental health." Ibid. This prong may be satisfied "by indications of parental dereliction and irresponsibility, such as the parent's continued or recurrent drug abuse, the inability to provide a stable and protec tive home, [and] the withholding of parental attention and care, . . . with the resultant neglect and lack of nurture for the child." K.H.O., supra, 161 N.J. at 353. This harm includes "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-15.1(a)(2). The second prong focuses on parental unfitness and overlaps with the proofs supporting the first prong. In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999).

Under the third prong of the best interests standard, DYFS must make "reasonable efforts to provide services to help the parent correct the circumstances" that necessitated removal and placement of the child in foster case. N.J.S.A. 30:4C-15.1(a)(3); K.H.O., supra, 161 N.J. at 354. "Reasonable efforts" may include parental consultation, plans for reunification, services essential to achieving reunification, notice to the family of the child's progress, and visitation facilitation. N.J.S.A. 30:4C-15.1(c). Those efforts depend upon the facts and circumstances of each case. D.M.H., supra, 161 N.J. at 390. The services provided to meet the child's need for permanency and the parent's right to reunification must be "'coordinated'" and must have a "'realistic potential'" to succeed. N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 267 n.10 (App. Div. 2002) (quoting N.J.A.C. 10:133-1.3).

Under the last prong of the best interests standard, the question to be addressed 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. The overriding consideration under this prong is the child's need for perma nency and stability. Id. at 357. If a child can be returned to the parental home without endangering the child's health and safety, the parent's right to reunification takes precedence over the permanency plan. A.W., supra, 103 N.J. at 607-09. The mere existence of a bond with the foster parent does not alone justify the termination of parental rights. K.L.F., supra, 129 N.J. at 44-45; N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 263-64 (App. Div. 2005).

In meeting this prong, DYFS should adduce testimony from a "well qualified expert who has had full opportunity to make a comprehensive, objective, and informed evaluation" of the child's relationship with the natural and foster parents. In re Guardianship of J.C., 129 N.J. 1, 19 (1992). "[T]ermination of parental rights likely will not do more harm than good" where the child has bonded with foster parents in a nurturing and safe home. E.P., supra, 196 N.J. at 108 (citations omitted). Yet, DYFS "must show 'that separating the child from his or her foster par ents would cause serious and enduring emotional or psychological harm.'" Ibid. (quoting J.C., supra, 129 N.J. at 19).

B.

Based upon our review of the record in light of the applicable law, we conclude that the record supports the trial judge's conclusion that all four prongs of the statutory test were proven by clear and convincing evidence. We review each of the prongs with regard to each of the parents.

i.

The first prong requires DYFS to establish that the children's safety, health or development has been and will continue to be endangered by the parental relationship.

Karen suffers from a severe mental illness that causes her to suffer psychotic episodes during which she experiences auditory and visual hallucinations, sometimes of a violent nature. She has a history of periodic non-compliance with medicines and treatment, and has been hospitalized for lengthy periods of time for her psychiatric condition. One of her children died as a result of medical neglect. For those reasons, she presents a danger to her remaining children and is unable to provide a safe home for them. That assessment was fully supported by the evaluations and testimony of the mental health professionals.

We recognize that Karen is morally blameless for the mental illness. N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 438 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002); In re Guardianship of R.G. & F., 155 N.J. Super. 186, 194-95 (App. Div. 1977). However, the practical result of that illness is that she cannot act as an effective or safe parent.

The record supports the view that James is not a bad person, and that he loves his children. Nevertheless, the record also supports the trial judge's finding that he is unable to provide a safe and stable home for them. At the time of the first removal in New York, when James was living with Karen, living conditions were described as "deplorable." Just a few months later, defendants medically neglected Tyler's oldest sister resulting in her death from dehydration. Parental fitness can appropriately be determined based upon past treatment of not only the child in question, but also quality of care given to other children in the parents' custody. N.J. Div. of Youth & Family Servs. v. Robert M., 347 N.J. Super. 44, 68 (App. Div.) (citing J. & E. v. M. & F., 157 N.J. Super. 478, 493 (App. Div.), certif. denied, 77 N.J. 490 (1978)), certif. denied, 174 N.J. 39 (2002).

Following the death of Tyler's sister, James continued to ignore the seriousness of Karen's condition and her inability to care for her children. Despite James's denials, which the trial judge rejected, the record reflects that he endangered the children by leaving them alone in Karen's care. See M.M., supra, 189 N.J. at 281-83 (first prong met where, by leaving child alone with his mother, father failed to provide home in which son was not in constant danger). James also failed to provide stable housing or support. His relocations, without notice to CFS or DYFS, put the children at risk and cut them off from oversight by the responsible agencies.

Consequently, we are satisfied that the first prong was satisfied as to Karen and James by clear and convincing evidence.

ii.

The second prong requires a finding that a parent is unwilling or unable to eliminate the harm to the child, and that a delay in permanent placement will add to the harm. K.H.O., supra, 161 N.J. at 352. "The question is whether the parent can become fit in time to meet the needs of the child." N.J. Div. of Youth & Family Servs. v. T.S., 417 N.J. Super. 228, 244 (App. Div. 2010) (citing J.C., supra, 129 N.J. at 10), certif. denied, N.J. Div. of Youth & Family Servs v. K.G., 205 N.J. 519 (2011).

Because of her inability to overcome the problems created by her mental illness, Karen remains unable to care for the children. The mental health professionals who examined her all concluded that the nature of her illness and her inability to provide safe parenting would continue for the foreseeable future.

James's transient lifestyle, with unstable employment and housing arrangements, as well as periodic incarcerations, also renders him an unsuitable parenting option. K.H.O., supra, 161 N.J. at 353 (second prong may be met with proof of parents' inability to provide a stable and protective home). None of the mental health professionals concluded that James would be able to act as a suitable and safe parent in the foreseeable future. That he may have been making progress does not override that conclusion, especially in light of Tyler's urgent need for permanency.

The record supports the conclusion that delay in permanent placements will harm both children. Jane is bonded with her foster mother, and separating her from her foster mother would cause severe and permanent damage. See, e.g., M.M., supra, 189 N.J. at 267, 283-85. Tyler has found a foster home in which the foster mother, who was recommended by James, is willing to adopt. In addition, Singer opined that any failed attempt to place Tyler with James would re-traumatize Tyler.

Consequently, we are satisfied that the second prong was satisfied as to Karen and James by clear and convincing evidence.

iii.

The third prong requires DYFS to make reasonable efforts to help the parent correct the circumstances that led to the child's placement outside the home and that the court consider alternatives to the termination of parental rights. "The reasonableness of the Division's efforts depends on the facts in each case." A.G., supra, 344 N.J. Super. at 435 (citing D.M.H., supra, 161 N.J. at 390).

Where, as here, one or both of the parents suffer from mental disabilities, "[t]he Division's efforts in providing classes and parenting programs must by their very nature take into consideration the abilities and mental conditions of the parents." Id. at 442. In any event, "[t]he diligence of DYFS's efforts on behalf of a parent is not measured by their success. Thus, the parent's failure to become a caretaker for his children is not determinative of the sufficiency of DYFS's efforts at family reunification." D.M.H., supra, 161 N.J. at 393.

DYFS provided both parents with services. Karen and James completed parenting classes and attended visitations with the children, although they were sometimes absent and at other times unavailable due to institutionalization. Karen was frequently unavailable for services because she moved out of state and had lengthy hospitalizations for her mental illness. See, e.g., T.S., supra, 417 N.J. Super. at 242 (noting futility of providing services to person in custody). James also was periodically incarcerated and thus unavailable for services. Ibid.

Prior to the removals, Karen was provided with parent aide and homemaker services, and DYFS assisted with respect to support and medical services. James was resistant to facilitating applications for some assistance.

Karen received referrals for mental health services. The record reflects that the mental health professionals concluded that Karen's condition was not amenable to sufficient improvement to enable her to undertake direct care of Tyler and Jane. Karen offered no alternate caregivers for DYFS's consideration.

James's psychological assessments reflected that he was not benefiting from the services offered. None of the mental health professionals recommended that he be given an opportunity to parent either child. Although James suggested alternate caregivers, DYFS found most of them to be ineligible. DYFS did, however, accept James's suggestion that Helen, who was not a relative, be considered as a caregiver. In fact, DYFS determined that she was appropriate to serve as a foster parent, with a goal of adoption.

Consequently, we are satisfied that the third prong was satisfied as to Karen and James by clear and convincing evidence.

iv.

Finally, the fourth prong requires a finding that termination of parental rights will not do more harm than good. "[T]o satisfy the fourth prong, the State should offer testimony of a 'well qualified expert who has had full opportunity to make a comprehensive, objective, and informed evaluation' of the child's relationship with both the natural parents and the foster parents." M.M., supra, 189 N.J. at 281 (quoting J.C., supra, 129 N.J. at 19). "A child's need for permanency is an important consideration under the fourth prong." Ibid. (citing K.H.O., supra, 161 N.J. at 357-58).

By the time of the trial, neither child had a significant relationship with Karen. The mental health professionals concluded that termination of her parental rights would not cause more harm than good to either child, and that permanency was in their best interests.

Jane had a limited relationship with James, but was strongly bonded to her foster mother. There is compelling evidence in the record that severing the relationship with the foster mother would cause her severe and enduring harm, while termination of James's parental rights would not.

The most difficult issue before the trial judge was termination of James's parental rights to Tyler. The mental health professionals reported that Tyler had a clear affection for James, which was reciprocated. Singer concluded that termination of James's parental rights to Tyler would cause harm.

Following the removal, Tyler went through the misfortune of multiple foster care placements in homes unable or unwilling to adopt. His present foster care placement was only made in February 2010, and the record reflects that there was not yet a strong bond between Tyler and Helen at the time of trial. Nevertheless, Helen has expressed an interest in adoption and they appeared to Burr to be well suited to each other. Additionally, Singer believed that the potential bonding between Tyler and Helen might mitigate the potential harm caused by termination of James's rights.

"A court should hesitate to terminate parental rights in the absence of a permanent plan that will satisfy the child's needs." N.J. Div. of Youth & Family Servs. v. B.G.S., 291 N.J. Super. 582, 593 (App. Div. 1996) (citing A.W., supra, 103 N.J. at 610-11). Nevertheless, "there will be circumstances when the termination of parental rights must precede the permanency plan." A.W., supra, 103 N.J. at 611.

James is unable to provide a safe and stable home for his son, and will not be able to do so in the foreseeable future. Although a resilient child, Tyler has a clear need for permanency and would be significantly harmed by an unsuccessful attempt to return him to the custody of James. Even when adoption by a foster parent is not the predicate of a termination, the child's "need for permanency" and the parent's "inability to care for him in the foreseeable future" can support a finding that "greater harm is likely to befall" the child by "perpetuating" the parental relationship. B.G.S., supra, 291 N.J. Super. at 593.

We conclude that there is substantial evidence in the record to support the trial judge's conclusion that the fourth prong has been satisfied as to James and Tyler, and that Tyler's best interests are most clearly advanced by the termination of James's parental rights so that a permanent home can be found for him. The termination of James's parental rights to Tyler would not cause more harm than good.

Consequently, we are satisfied that the fourth prong was satisfied as to Karen and James by clear and convincing evidence.

Affirmed.

 

1 For the sake of clarity, we refer to the parties and their children by pseudonyms.

2 At trial in February 2010, James testified that he no longer had any relationship with Karen.

3 James claimed at trial that he left Karen with a friend.

4 Singer's findings in 2009, and his trial testimony regarding Jane's attachment to her foster mother, were inconsistent with his initial findings in October 2008. He explained that their relationship appeared to have matured in the interim.