NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. R.E.C.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0629-11T4

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

 

R.E.C.,

 

Defendant-Appellant.

______________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF B.M.C., a minor.

___________________________________________________

December 24, 2012

 

Submitted October 23, 2012 - Decided

 

Before Judges Messano, Ostrer and Kennedy.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FG-15-0019-08.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Cary L. Winslow, Designated Counsel, on the brief).

 

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Stephanie Anatale, Deputy Attorney General, on the brief).

 

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor B.M.C. (Jeffrey R. Jablonski,Designated Counsel,on thebrief).

PER CURIAM

Defendant R.E.C. appeals from the Family Part order terminating parental rights to his daughter, B.M.C. (Belle).1 Defendant contends that the Division of Child Protection and Permanency (the Division)2 failed to prove by clear and convincing evidence that: 1) Belle's "safety, health or development has been or will continue to be endangered by the parental relationship"; and 2) the Division "made reasonable efforts to provide services to help . . . correct the circumstances which led to [Belle's] placement outside the home . . . ." N.J.S.A. 30:4C-15.1(a)(1) and (3). We have considered these arguments in light of the record and applicable legal standards. We affirm.

I.

This matter was previously before us. As we noted in our prior opinion, Belle was born prematurely and determined to be medically fragile. See N.J. Div. of Youth and Family Servs. v. M.D.C. and R.C., Nos. A-5579-07 and A-5655-07 (App. Div. Dec. 9, 2009) (slip op. 8-9). At the time of Belle's birth, a Title Nine action was pending against defendant's wife, M.D.C. (Marsha), regarding her older daughter, J.B.D. (Jane); defendant is not Jane's father. Defendant was known to the Division since 1985 as a result of prior substantiated abuse complaints involving his children from a prior relationship.

The Division was awarded custody of Belle within days of her birth, and she was placed in foster care in Ocean County, where she remained pending trial. During trial, Marsha executed an identified voluntary surrender of her parental rights to Jane, who was placed with Marsha's mother. On June 6, 2008, the Family Part terminated defendant's and Marsha's parental rights to Belle. At the time, Belle was less than two years old and had never lived with defendant or Marsha.

On appeal, we reversed the judgment, agreeing that "the trial court's decision contained insufficient, inaccurate and confusing factual findings with respect to the four prongs of N.J.S.A. 30:4C-15.1(a)." Id. at 32 (quotation marks omitted). We remanded the matter and provided the following guidance to the Family Part:

On remand, we direct that [the Division] obtain current fitness evaluations of both defendants and a bonding evaluation of [Belle] with her foster parents. Defendants may obtain such evaluations on their own behalf as well. The trial court shall set a schedule for the expeditious completion of all such evaluations and for a hearing to determine whether [the Division] intends to continue to pursue the termination of defendants' parental rights or, if not, what steps toward reunification should be implemented. Pending the completion of remand proceedings, [Belle] shall remain in the custody of [the Division] and her physical care shall remain with her foster parents.

 

[Ibid.]

 

The matter was assigned to a different Family Part judge.

At the time of the remand hearing, defendant and Marsha were living together in Lindenwold in Camden County. In April 2009, defendant and Marsha had another child, C.M.C. (Cora), who was born prematurely with serious health problems. Shortly after her birth, Cora required emergency surgery at Cooper Hospital, but the hospital could not locate Marsha to obtain her consent. Although Marsha was eventually located and consented to the surgery, the Division effected an emergency removal of Cora and began to provide services to defendant and Marsha in Camden County.3

Before the remand judge, the Division indicated its continued intention to pursue termination of parental rights to Belle while providing evaluations and services to defendant and Marsha. Pursuant to our directive, the judge ordered defendant's psychological evaluation by Chester E. Sigafoos, Ph.D., on March 16, 2010.4 That evaluation never occurred because defendant failed to appear. When the parties reconvened in court on April 13, the judge entered another order requiring defendant to attend the psychological evaluation and a bonding evaluation as well. The Division requested, and the judge agreed, that defendant's visitation with Belle should be suspended until he complied. Defendant failed to appear for an evaluation by Sigafoos scheduled for May 18.

At a status conference held on June 8, 2010, the judge entered another order, again requiring defendant to attend psychological and bonding evaluations. In rendering his decision, the judge stated:

The Court would just like to say for the record that this matter was decided by the Appellate Division . . . six months [ago] to the day tomorrow, December 9th of 2009. And the Court was assigned this case after that for the first time and the parties, in the Court's opinion, the Division as well as the Law Guardian, . . . and case workers have gone out of their way to attempt to try to move this case along, and the Court is trying to do the same.

 

[Defendant and Marsha], on the other hand, appear to be hurting themselves by not participating and not staying in contact with the Division and not fulfilling their obligations to attend . . . both psychological evaluations as well as bonding evaluations. And certainly, the Court can understand when they might have emergency situations and things like that, but it's also been shown that this is a . . . significant pattern and, in addition to that, it appears that they do not even call as a courtesy to advise that they're not able to make the appointments. That is frustrating to the Court and must be frustrating to the Law Guardian and to the Division.

At a case management conference on August 17, 2010, it was reported that defendant was unwilling to be examined by Sigafoos, who had evaluated defendant in the Camden County litigation involving Cora and who, as we explain below, defendant believed was biased. Defendant had also missed four appointments scheduled by the law guardian with Maureen R. Santina, Ph.D., who was to perform psychological and bonding evaluations. The judge denied defendant's request to have the Division utilize another expert, concluding it was "an attempt on the part of the defendants to sabotage the trial date and to not comply with the directives of the Court . . . ." Nonetheless, on September 23, 2010, the court entered another order requiring defendant to attend a psychological evaluation with Gregory C. Gambone, Ph.D., on September 27, 2010. Defendant complied.

On October 4, 2010, the judge began taking testimony on the remand. Case worker Charmain Bryant, who was assigned to Cora's case in Camden County since May 2010, testified that she initially had difficulty contacting defendant and Marsha, never saw them at court proceedings in Camden County because they never attended and was meeting them for the first time during the remand hearing. She also testified that the Division arranged counseling for defendant and Marsha. Larry N. Seidman, Ph.D., provided couples' therapy, since defendant and Marsha did not want to be individually counseled.

The documentary record reveals that the counseling began in July 2009, but, after a few sessions, Seidman recommended therapy be terminated because defendant and Marsha failed to attend. Seidman reinstated the therapy in January 2010, but attendance issues once again surfaced. In August 2010, Seidman reported that defendant and Marsha "harbor[ed] highly negative feelings toward . . . Sigafoos . . . which . . . would very likely impair or contaminate the quality of their presentation and performance on future evaluations . . . ." Seidman urged that someone other than Sigafoos perform the evaluation. Christine Manger, Belle's caseworker since September 2009, testified that the Division scheduled bonding and psychological evaluations with Sigafoos in January 2010, in Voorhees, to accommodate defendant and Marsha. According to Manger, Sigafoos conducted the bonding evaluation first, but, when Belle failed to engage with her parents, "and the parents became really upset," Sigafoos terminated the session early.

Several appointments were scheduled thereafter, but defendant and Marsha failed to appear. It was only in June 2010 that defendant told Manger that he and Marsha "did not feel comfortable attending any evaluation with . . . Sigafoos." Manger testified that, from December 2009 to October 2010, defendant had no visitation with Belle because he repeatedly failed to attend the court-ordered psychological evaluation.

Manger also testified that the Division provided defendant with counseling through Seidman, as well as transportation assistance for appointments. Manger further stated that because defendant did not undergo the court-ordered psychological evaluation, the Division was unable to offer any other services, as recommendations for services were generally made after a psychological evaluation.

With regard to defendant's housing situation, defendant told Manger that he and Marsha were facing eviction for "not attending the WorkFirst Program." Some time in April or May 2010, defendant and Marsha were living in a motel, having been "locked out of their apartment." In June, defendant and Marsha were back in their apartment. Manger had frequent difficulty maintaining contact with defendant and Marsha.

Manger further testified about Belle's current situation with her foster parents, who were "specialized home service provider[s]" capable of dealing with the child's "chronic medical, behavioral and developmental issues." The foster parents were not married, but the "foster mom" had adopted four other children previously and was committed to adopting Belle.

Sigafoos testified that he originally evaluated defendant in May 2009 in connection with Cora's guardianship trial. In the report of his evaluation, Sigafoos found defendant to be "inconsistent and deceptive in his description of events and [that he] minimized or purposely misrepresented descriptions of people and incidents." Sigafoos further noted that defendant presented with "[a] particular blend of psychological conditions and pathologies . . . ." Sigafoos concluded defendant had "a personality disorder that [was] characterized with a preoccupation with orderliness, perfectionism, and mental and interpersonal control . . . ." At the hearing, Sigafoos testified that defendant suffered from "cognitive dysfunction" and "a degree of mental retardation." Sigafoos opined in his report that defendant's prognosis was "guarded to poor." He reiterated at the hearing his conclusion that defendant "cannot effectively parent his children and insure their safety and well being."

As noted, Sigafoos did not complete a bonding evaluation between Belle and defendant, but he did complete a bonding evaluation between Belle and her foster parents. Sigafoos found there was a "secure attachment" between them and concluded that "[r]emoving [Belle] from this family not only will cause serious and enduring harm, but she's also developed a bond with the other children in the household."

The Division also called Gambone as an expert witness at the remand hearing. Gambone had conducted a psychological evaluation of defendant and a bonding evaluation on September 27, 2010. In Gambone's report, which was admitted into evidence, he concluded:

[Defendant] . . . exhibits possible attention deficits that may affect his current ability to parent. In addition, he has recently been struggling with sporadic employment, financial instability, residential instability, treatment noncompliance, and separation from his two youngest children. . . .

 

[Defendant] exhibits some personality deficits that may have a negative impact on his ability to parent. Specifically, [defendant] may experience significant feelings of fear and anger associated with his personal history. He may also be defensive, dependent, avoidant of emotional discomfort, resentful, suspicious, irritable, aggressive, and lacking in psychological insight. These combined characteristics would likely . . . contribute to increased confusion, anxiety, and poor decision-making that could eventually lead to inadequate parenting or child neglect.

 

[Defendant] has a superficial understanding of the physical, emotional, intellectual, and social needs of his children. He has a previous history of substantiated abuse and neglect as well [as] reported domestic violence. Moreover, [defendant] has a history of disregarding his responsibility for his children's health and safety . . . by failing to maintain regular contact with his daughter [Belle] during a critical period in which the child was designated medically fragile, and by his continued noncompliance with provided services designed specifically the [sic] help [defendant] improve his personal stability and parenting skills.

 

. . . .

 

Evidence gathered in this evaluation suggests that [defendant] has been unwilling or unable to consistently meet the parenting needs of his children. In addition, [defendant] currently appears inadequately motivated to improve his parenting skills and effectiveness through participation in recommended training and treatment services.

 

Gambone concluded that defendant "should cautiously be considered marginally capable of adequately parenting . . . [Belle] on an independent basis." Gambone recommended "short-term individual psychotherapy" and participation in "an adult literacy program . . . ."

At the remand hearing, Gambone testified that he diagnosed defendant to be suffering from "social anxiety disorder," the result of "the limitations in his verbal" and reading ability. Defendant also displayed a "dependent personality disorder with obsessive compulsive features." Gambone explained that defendant was dependent on Marsha, and "that he ha[d] probably always been attached to somebody to . . . provide supportive care for him on a daily basis." Gambone believed that defendant and his wife were "two dependent personalities that are married to each other, and . . . are going to stay together for a long time . . . . They have a value structure that works together. Sadly, it could be dysfunctional together . . . ."

Gambone reiterated that defendant's "attention function deficits . . . may affect his current ability to parent." He explained:

I think it's a combination of maybe some cognitive deficits, some personality problems that maybe impede his functioning interpersonally, and then the added stressors of life . . . . [T]he multiple overlapping stressors including the cognitive and psychological dysfunctions, all these functions are likely to be significantly impaired.

 

And those functions . . . that you make on a daily basis are absolutely essential to parenting.

 

When asked by the judge whether defendant or Marsha were "unable to provide a safe and stable home," Gambone answered, "At this point I would question their ability to do so."

Gambone concurred with Sigafoos' opinion regarding separation of Belle from her foster parents. Such separation would be

no different than if parents magically or suddenly or catastrophically disappeared from a child's life at age four. That would be devastating to any child for lots of reasons; the confusion, the possible self blame, the feelings of emotional loss, the sadness, the fear of what else might happen, the absence of places to go for security or nurturance and guidance, . . . that would be lifelong.

 

He concluded that "there [was] not a bond" between Belle and her natural parents.

The law guardian called Santina as an expert witness. Although she was retained to complete psychological evaluations of defendant and Marsha, as well as bonding evaluations, Santina was only able to conduct a bonding evaluation of Belle with her foster mother. Santina noted that defendant and Marsha failed to confirm and attend multiple appointments.

Noting the incomplete nature of her evaluation, Santina nonetheless concluded that Belle "showed a strong bond with [her] foster mother and appeared to have a strong positive attachment to her." As to defendant's fitness to parent Belle, Santina stated:

I cannot make any conclusions regarding the fitness of [defendant and Marsha] as parents because I have not completed the evaluations. The fact that multiple attempts were made, that there were Court Orders to attend these evaluations and they did not call or did not show up on multiple occasions over a period of approximately eight months raises concerns that I would certainly have in evaluating them as to their ability or willingness to meet responsibilities.

 

On October 26, 2010, the judge entered an interim order requiring a psychiatric evaluation of defendant and authorizing supervised therapeutic visitations with Belle on a bi-weekly basis. The judge ordered the Division to provide, and defendant to attend, a literacy program.

On December 21, 2010, the parties appeared in court to discuss the results of the two therapeutic visitation sessions in November. A dispute arose as to whether the foster mother's presence at the sessions impeded defendant's ability to interact with Belle. The judge took testimony from Alyson Johnson, the therapeutic counselor who supervised the visitations that took place on November 15 and 29, 2010.

Johnson stated that, at the first session, Belle was "confused and a little afraid." Johnson testified that defendant and Marsha "didn't say, hello, can I have a hug, . . . or anything comforting. They stared at [Belle]." On the other hand, the foster mother "pick[ed] up on [Belle's] discomfort," and Johnson acknowledged that the foster mother "was actually facilitating the interaction between [Belle]" and her parents.

Johnson described the second session:

[Belle] got her terminology wrong. She referred to [Marsha] once as foster mom. [Belle has] been with the foster mother since she was [sixteen] days old. So, she calls her mommy, which is pretty natural for a child.

 

And at one point, she referred to [the foster mother] as mommy and [defendant] said, no, that's not your mommy, this is your mommy, pointing to [Marsha]. And [defendant] continued to debate with the four-year-old about who's who and all it did was sort of frighten and puzzle [Belle].

 

Johnson also testified regarding defendant's "inappropriate conduct" during the visitation.

[Defendant] was saying, this is all gonna end once you come home, this is not what we wanted, different phrases like that and [Belle] was picking up on those. And . . . the resource mother said, . . . that just confuses her, and that made [defendant] angry rather than [defendant] saying, oh, you know, let's talk about that or whatever. He just got angry about that.

 

And I asked him to stop talking about that and then he started again a little later in the session. So, I asked the resource mom to . . . take [Belle] home.

 

Johnson spoke to defendant and Marsha alone, telling defendant that he needed to stop because he was confusing Belle. Defendant said, "[W]ell, this is just bullshit."

The judge cautioned defendant "to take the advice of" and "cooperate with" the therapist. He ordered the visitations to continue with the foster mother present.5

On March 15, 2011, the parties again appeared before the judge. Defendant and Marsha were not present, but their attorneys were. Belle's foster mother made a motion to intervene, which was granted by the judge. The parties then addressed several issues arising from defendant's alleged noncompliance with earlier court orders, and Manger and Johnson again testified.

Manger met with defendant and Marsha in November 2010 and advised them of an evaluation scheduled with a new doctor, closer to their home, in December. The day before the appointment, defendant contacted Manger and advised that they could not attend because "they had eaten bad Chinese food." Without notice to Manger, defendant failed to attend a rescheduled appointment in January. Efforts to schedule an appointment in February were thwarted because defendant "didn't feel comfortable" and wanted to "contact [his] attorney[]."

Manger also testified regarding her efforts to enroll defendant in a literacy program, as required by the earlier court order. She located two such programs both less than one mile from defendant's home and forwarded explicit directions for his enrollment. When she met with defendant in November 2010, he said "he doesn't need to do it, he can read just fine." Marsha told Manger she would help defendant "to read at a higher level."

Manger further testified regarding the therapeutic visitations that occurred after the December 2010 hearing. On January 4, 2011, while still in the parking lot, Belle vomited when she arrived for visitation with defendant and Marsha. She told Manger that she did not want to see them. Manger cancelled the visit.

Johnson testified that defendant's first response was to say "so, now we don't get our visit and I suppose this vomiting's going to be blamed on us." Johnson noted "there was not any concern verbalized at all about . . . how [Belle] was doing or feeling." Defendant was "angry and felt victimized by [the Division] and the Court," and Johnson concluded he and Marsha "were unable to put their feelings aside to be available for [Belle] in a way that would be appropriate for the visits."

During the visit on January 10, Belle was more active than during previous visits. Defendant and Marsha brought Christmas presents and engaged Belle, who hugged them goodbye. It was the last visit between Belle and her parents.

Defendant and Marsha called to cancel the next visit scheduled for January 18; Marsha called late on January 24 to cancel a visit because of an appointment she had with Social Security; the February 7 visit did not occur because defendant claimed he had not received prior notice, despite Manger's testimony that she provided defendant with personal notice of the date and time; defendant cancelled the February 14 visit because he and Marsha were sick; the February 22 visit never occurred because defendant failed to confirm attendance with the Division; defendant failed to confirm the next scheduled visit on March 1. On March 7, Belle, her foster mother, Johnson and Manger were all present for visitation. Defendant and Marsha never appeared or called to cancel.

Brett Kaufman, an in-home therapist who conducted several play therapy sessions with Belle, was called as a witness by the law guardian. Kaufman described her observations of Belle's play sessions and expressed concern "that [Belle] does have an unhealthy perception of her biological father."

After the hearing, the judge entered an order requiring defendant to comply with the previously-ordered evaluations, visitations and services. The order explicitly stated that "[i]f there is intentional continued non-compliance by [defendant] . . . with [the Division] and Law Guardian evaluations, all defense expert reports and testimony shall be barred at trial."

The remand hearing continued on May 10, 2011. Defendant and Marsha again did not appear. The judge noted that both were scheduled to testify, and the Division had made arrangements for transportation. The judge further indicated that the Division's caseworker was told defendant and Marsha could not appear "because they were having work done on their residence." The Division called Patti Brown, R.N., a clinical nurse coordinator for the child health program and the University of Medicine and Dentistry of New Jersey (UMDNJ), and Manger as witnesses.

Shortly after Belle's birth, Brown was assigned to assess the child's medical needs. Belle was considered to be a high-risk infant because of the prematurity, the poor/no prenatal care and the cardiac conditions that she had at that time." As a result, Brown concluded that Belle "met the qualifications for . . . medical[ly] fragile status" and recommended that she "be placed in a specialized health service provider home . . . ." Brown continued monitoring Belle's progress through March 2010.

In March 2011, the Division asked Brown to review Belle's medical records immediately surrounding her birth and furnish an assessment of the "level of prenatal care" supplied by Marsha, who had been diagnosed with "uncontrolled gestational diabetes mellitus." In her report, Brown concluded that the records demonstrated "repeated instances of actions taken by [Marsha] that were against medical advice despite serious risks involved to her own self and to [Belle]." One such instance was defendant's and Marsha's decision to leave the hospital for forty-five minutes, against medical advise, the day before Belle's birth. Brown opined that Belle "was born prematurely, with an enlarged heart and macrosomia (large for gestational age) which are related to [Marsha's] poorly controlled gestational diabetes."

Brown also cited references in the hospital records regarding defendant's verbally aggressive behavior at the hospital at the time of Belle's birth. She noted that defendant "threatened the attending physician."

Manger testified regarding defendant's noncompliance with the therapeutic visitations and his failure to attend court that day. Manger had driven to defendant's home to drive him and Marsha to the hearing. When she arrived, defendant told Manger that Marsha had been hospitalized the prior evening. However, Manger soon learned from Marsha that was untrue. Defendant then claimed that he found out at 6:00 a.m. that his apartment manager intended to perform work in the apartment and someone needed to be home. Marsha claimed she could not leave because of her diabetes, and defendant refused to leave her in the apartment with the workman. Neither would accompany Manger to the hearing. Manger also testified that the couple had recently received $4,500 from a tort settlement and spent part of that money to purchase pet sugar gliders.6

The law guardian then called M.R. (Maria), Belle's foster mother, as a witness. She testified regarding Belle's special needs:

She still has cardiomyopathy, which is a muscle disease. She was diagnosed with reflux. She has a milk and soy allergy. She has colitis. She has . . . been diagnosed with A.D.H.D. traits, but she has not been put on any medication or anything due to the cardiomyopathy. And she will be going for an autism evaluation. And, of course, she has some delays . . . .

 

Belle was enrolled in a "pre-school handicapped program," where she participated in speech, occupational, behavioral and play therapy. Belle was also seeing a cardiologist. Maria testified that Belle's behavior changed after the therapeutic visitations began; she began to wet the bed, would not go to the bathroom alone and experienced nightmares. Maria wished to adopt Belle and testified as to her continued interest in maintaining an "open relationship" with Belle's biological maternal grandmother and older sister Jane.

The remand hearing continued two days later, on May 12, 2011. Defendant and Marsha were both present, and Marsha chose to testify. Neither she nor defendant had seen Belle since their visit on January 10, 2011. Marsha admitted that neither she nor defendant had attended therapy sessions with Seidman since February 2011. Marsha acknowledged that defendant had not attended any literacy program, but "[a]t night [she] tr[ied] to study with him."

Marsha and defendant were receiving "welfare," and she was awaiting a determination of eligibility for Social Security benefits. She and defendant were receiving housing assistance and food stamps. Marsha had no knowledge of Belle's current medical conditions or needs.

Marsha acknowledged that she and defendant lost their housing assistance in the past because they asked a friend, who was a doctor, to "fill the papers out" to excuse them from attending WorkFirst classes for medical reasons. The doctor did it as a favor to defendant. Marsha also admitted that the couple kept three ferrets, four sugar gliders, two chinchillas and nine hamsters as pets, and that she and defendant took out "a loan" from a "loan officer in Philadelphia" to finance the purchase of some of these pets. The judge asked if "it looks like you were putting getting animals first as opposed to seeing your child[?]"; Marsha responded, "Yeah, it could look that way."

On June 27, 2011, the judge entered an order terminating defendant's and Marsha's parental rights to Belle. He issued a written opinion in support of the order. This appeal followed.

II.

Our review of an order terminating parental rights is limited. "We will not disturb the family court's decision . . . when there is substantial credible evidence in the record to support the court's findings." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). "We ordinarily defer to the factual findings of the trial court because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a 'feel of the case' that can never be realized by a review of the cold record." Ibid. (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007)).

We accord particular deference to the judge's factfinding because of "the family courts' special jurisdiction and expertise in family matters." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (internal quotation marks and citation omitted). "Only when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark' should an appellate court intervene and make its own findings to ensure that there is not a denial of justice." E.P., supra, 196 N.J. at 104 (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007)).

"[W]here the focus of the dispute is . . . alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom, the traditional scope of review is expanded." M.M., supra, 189 N.J. at 279 (internal quotation marks and citations omitted). Yet, "even in those circumstances[,] we will accord deference unless the trial court's findings went so wide of the mark that a mistake must have been made." Ibid. (internal quotation marks and citations omitted).

"The focus of a termination-of-parental-rights hearing is the best interests of the child[,]" and the Division must "satisfy by clear and convincing evidence four factors, known as the best-interests-of-the-child test, set forth in N.J.S.A. 30:4C-15.1(a)." N.J. Div. of Youth and Family Servs. v. F.M., 211 N.J. 420, 447 (2012) (citations omitted). Those statutory prongs are:

(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 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.

 

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

 

See also In re Guardianship of K.H.O., 161 N.J. 337, 347-48 (1999). The four prongs require a fact-sensitive analysis, and "are neither discrete nor separate. They overlap to provide a composite picture of what may be necessary to advance the best interests of the children." M.M., supra, 189 N.J. at 280 (quoting N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 258 (App. Div. 2005)) (internal quotation marks omitted).

On appeal, defendant challenges only the sufficiency of the Division's proofs regarding the first and third prongs of the statutory test.

A.

As to prong one, defendant contends the judge erred as a matter of law because his legal conclusion was "grounded on [Marsha's] conduct," not defendant's conduct. Defendant also argues that the expert opinions proffered by the Division failed to demonstrate that defendant's conduct would likely continue to expose Belle to harm. We disagree.

In his written decision, as to prong one, the judge concluded:

[A]ll of the relevant testimony demonstrates that harm occurred to the child initially because of improper care of the birth mother's diabetes. This included a failure to seek and follow through on proper medical care, failure to follow medical advice, failure to take medication and failure to provide a healthy environment during the birth mother's pregnancy. This includes living in a car, motels and various other places . . . .

The Court also finds the birth mother and father continue to live a life that is unhealthy and hostile to receiving help. Besides failing to improve their positions[,] they do not take advantage of counseling, literacy help and prioritizing the use of government subsidies.

 

The birth mother's and father's ability to parent has been found to be inadequate by the experts because of a lack of responsibility, an inability to emotionally and intellectually perform the tasks of a parent . . . .

 

"Under prong one of the best-interests test, [the Division] must show that the alleged harm 'threatens the child's health and will likely have continuing deleterious effects on the child.'" F.M., supra, 211 N.J. at 449 (quoting K.H.O., supra, 161 N.J. at 352) (citation omitted). The Division need not "wait until a child is actually irreparably impaired by parental inattention or neglect." Ibid. (internal quotation marks and citation omitted). "[H]arm caused by circumstances attendant to the parent-child relationship is as pertinent as any harm caused directly by a parent." M.M., supra, 189 N.J. at 289. As the Court recently reiterated, "[a] parent has the obligation to protect a child from harms that can be inflicted by another parent." F.M., supra, 211 N.J. at 449.

In this case, substantial evidence supported the conclusion that defendant's conduct contributed directly to the initial harm caused to Belle by Marsha's failure to avail herself of adequate pre-natal care. Defendant was not an innocent bystander; rather, he acted as a supportive and enabling teammate. Thereafter, defendant and his wife continued to frustrate attempts to ameliorate the harm, clearly supporting the judge's conclusion that Belle would be exposed to future risks because of defendant's inadequate ability to appreciate the responsibilities of parenting on a daily basis. The evidence as to prong one was clear and convincing.

B.

Defendant argues that the Division failed to satisfy prong three because it never provided housing assistance and refused to permit adequate visitation with Belle. Defendant notes that the judge suspended visitation until he complied with court orders requiring psychological evaluations, despite the fact that the Division had performed psychological evaluations in the Camden County matter involving guardianship of Cora.

In our earlier decision, we noted the inadequacy of the Division's efforts in providing services to stabilize defendant's and Marsha's housing resources. M.D.C., supra, Nos. A-5579-07 and A-5655-07, slip op. at 27-28. The remand judge specifically recognized this, and correctly noted that our conclusion was based upon "the testimony in the first case." He then considered the evidence produced on remand as to prong three.

Citing the testimony of nurse Brown and Marsha, the judge found that prior to our remand, the Division had provided transportation for visits, money for gas, counseling and parenting classes. Noting that "[w]hile housing was a significant factor," the judge concluded that "it appear[ed] there were other alternatives" available but "refused." As to reunification efforts provided after the remand, the judge concluded the Division had "performed admirably . . . even in the face of belligerent non-cooperation by the birth parents."

"The third prong requires an evaluation of whether DYFS 'made reasonable efforts to provide services to help the parent' remedy the circumstances that led to removal of the children from the home." F.M., supra, 211 N.J. at 452 (quoting N.J.S.A. 30:4C-15.1(a)(3)). N.J.S.A. 30:4C-15.1(c) defines "reasonable efforts," which consist of actions by the Division "to assist the parents in remedying the circumstances and conditions that led to the placement of the child and in reinforcing the family structure."

A court must consider whether a parent actively participated in the reunification effort. SeeIn re Guardianship of D.M.H., 161 N.J. 365, 390 (1999). The reasonableness of the Division's efforts "is not measured by their success." Id. at 393. Ultimately, "[t]he failure or lack of success of [the Division's] efforts does not foreclose a finding that the Division met its statutory burden to try to reunify the children with the family." N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 620 (App. Div.) (citing D.M.H., supra, 161 N.J.at 393), certif. denied, 192 N.J. 68 (2007). Moreover, "[e]ven if the Division ha[s] been deficient in the services offered to" a parent, reversal of the termination order is not necessarily "warranted, because the best interests of the child controls." Id. at 621.

As to the argument that the Division failed to make reasonable efforts to address defendant's housing problems, it is clear that he and Marsha failed in 2006 to participate in the Work First program, and defendant engaged a doctor friend to provide a false medical excuse. There was additional documentary evidence that demonstrated defendant and Marsha failed to provide contact information to the Division during the time they were homeless. After the remand, there is little evidence that the Division was called upon, much less failed, to assist in stabilizing defendant's housing circumstances.

As to the denial of meaningful visitation, it is true that the remand judge denied visitation until defendant complied with orders requiring his psychological evaluation. We see no error in such a requirement under the circumstances.

The evaluation performed by Sigafoos was from 2009 and predated our remand, which specifically required new evaluations be performed. Defendant's refusal to comply with the orders of the remand judge is beyond cavil. It was not until August 2010 that defendant first raised his objection to permitting Sigafoos to do a re-evaluation, and not until the end of September before he was actually evaluated by Gambone. Thus, the lack of visitation with Belle for nearly a year after our remand was attributable to defendant's conduct alone, something, as noted above, that the remand judge determined during interim court proceedings.

More importantly, the Division quickly arranged for visitation after defendant was evaluated by Gambone and the parties appeared before the judge. However, the evidence amply demonstrated that, after two rather unsuccessful visits, defendant and Marsha essentially abandoned their opportunities to maintain contact with Belle. The evidence regarding prong three was clear and convincing.

Affirmed.

1 We have fictionalized the child's first name to protect her identity.

2

On June 29, 2012, Governor Chris Christie signed into law A-3101, which reorganized the Department of Children and Families, and renamed the Division of Youth and Family Services the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.

3 Defendant's and Marsha's parental rights to Cora were terminated on March 15, 2011, while the remand was pending. We affirmed that judgment on appeal. See N.J. Div. of Youth and Family Svcs. v. M.A.D.C. and R.E.C., Nos. A-4260-10 and A-4373-10 (App. Div. Mar. 22, 2012).

4 Marsha has not appealed from the order terminating her parental rights to Belle. We focus much of our discussion upon defendant, incorporating Marsha's involvement when necessary.

5 The record does not contain any order from the December 21, 2010, proceeding.

6 Sugar gliders are part of the possum family and native to Australia. They are able to glide from tree to tree because of a special membrane that connects their front and hind legs. They are fast becoming a favorite pet in the U.S. See Joy H. Montgomery, Top 10 Peculiar Pets: Sugar Gliders, animal planet, http://animal.discovery.com/petsource/pet-guides/peculiar-pets/unique-pets-07.html (last visited Dec. 13, 2012).