DIVISION OF YOUTH AND FAMILY SERVICES v. C.C. and M.W IN THE MATTER OF THE GUARDIANSHIP OF T.C and M.C

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1572-10T1

A-1573-10T1

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

C.C. and M.W.,

Defendants-Appellants.

___________________________________

IN THE MATTER OF THE

GUARDIANSHIP OF T.C. and M.C.,

Minors.

________________________________________________________________

February 27, 2012

 

Submitted January 10, 2012 - Decided

 

Before Judges Carchman and Baxter.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FG-19-11-10.

 

Joseph E. Krakora, Public Defender, attorney for appellant C.C. (Cheryl Gammone, Designated Counsel, on the brief).

 

Joseph E. Krakora, Public Defender, attorney for appellant M.W. (Brian W. Donnelly, Designated Counsel, on the brief).

 

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel and on the brief).

 

Joseph E. Krakora, Public Defendant, Law Guardian, attorney for minors (Nancy P. Fratz, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant C.C., the mother of M.C. (hereinafter, Max, a fictitious name)1 and T.C. (hereinafter, Tara, a fictitious name) and defendant M.W., the father of Max, appeal from a judgment of the Family Part terminating C.C.'s parental rights to Max and Tara, and in M.W.'s case, to Max.2 Both defendants contend the court erred because plaintiff New Jersey Division of Youth and Family Services (DYFS or the Division) did not present sufficient evidence at trial to satisfy the best-interests standard, set forth at N.J.S.A. 30:4C-15.1(a).

Despite receiving many DYFS-provided services over numerous years to assist her in overcoming substance abuse issues, C.C. had recently experienced multiple relapses. Although C.C. claimed that she was currently sober, the trial court concluded that she was unlikely able to maintain sobriety in the foreseeable future. M.W. was incarcerated3 a few months after Max's birth, and he will not be released until 2041. The court concluded that neither parent was able to parent the children. We agree and affirm.

We briefly set forth the relevant facts. C.C., now forty, and M.W., now forty-five, are the parents of Max, born on November 14, 2000. Tara, C.C.'s daughter, was born on August 30, 2002. Her birth-father is deceased. C.C. is the mother of two other children, one of whom died in January 2007 in an automobile accident, and a second, now twenty, who is in the custody of his foster parents pursuant to a Kinship Legal Guardianship agreement.

DYFS first became involved with C.C. in 1992, when she gave birth to a cocaine-positive child. Since that time, her children were removed from her custody as C.C. was using cocaine, heroin and other illegal substances. She was, from time to time, admitted to detoxification programs. C.C. had successful results from such programs and maintained sobriety for substantial periods of time, during which her children were returned to her.

While C.C's children were in her care, however, other problems arose. DYFS received referrals indicating that both Max and Tara had engaged in inappropriate sexual behavior, suggesting sexual abuse, and D.H., a former paramour of C.C., was identified as a possible perpetrator. DYFS provided both C.C. and the children counseling services to deal with these issues, but the services were terminated after the parties failed to attend. In 2007, there were allegations that C.C. was again using drugs.

On December 12, 2007, DYFS received a referral alleging that C.C.'s oldest child had been left alone when C.C. traveled to Connecticut. According to the anonymous referral, later substantiated, Max and Tara had been left with their maternal great-grandmother in Newark, who was not provided with C.C.'s contact information. Additionally, DYFS concluded that C.C. gave conflicting details about her whereabouts. While C.C. claimed she was unable to make contact during her absence, she admitted she had made outgoing calls on her cellular phone.

As a result, the Division effectuated a Dodd4 removal of Max, Tara and a third child not a subject of this litigation, pursuant to N.J.S.A. 9:6-8.29, on December 12, 2007. On December 14, the Division received custody of the three children and temporarily placed them with their maternal great-grandmother.

Danielle Cuoco, the DYFS caseworker assigned to the family from February 1, 2008, to February 26, 2009, went to C.C.'s home on several occasions and attempted to contact her, to no avail. Meanwhile, C.C. was referred for a psychological evaluation at the Center for Evaluation and Counseling (CEC); however, she failed to attend two scheduled appointments. CEC conducted psychological evaluations of the children and concluded that Max was "an undersocialized[,] defiant, sexualized[,] aggressive youngster whose needs for structure and discipline have been neglected." CEC recommended that he receive a "psychiatric evaluation to determine whether . . . medication can assist him in controlling his behavior and whether . . . residential treatment is needed." With respect to Tara, she "presented as a speech[-]delayed, neglected child who is confused about her current placement," and needed speech therapy.

On February 19, 2008, C.C. tested positive for cocaine. On her own initiative, C.C. contacted the Division on March 18, 2008, submitted to a drug test, and again tested positive for cocaine. She admitted she had used illegal drugs during the preceding thirty days. As a result, she was admitted to an inpatient program at St. Clare's Hospital on March 26, 2008. C.C. stipulated that she harmed her children by testing positive for cocaine in November 2007. The court ordered her to continue substance abuse treatment and supervised visitation. She subsequently began an intensive outpatient program at St. Clare's Center for Prevention and Counseling, which she successfully completed in August 2008. During her time in treatment, C.C. consistently attended one hour weekly supervised visits with her children.

During a CEC evaluation of C.C., she admitted she had relapsed in November 2007:

I relapsed. Um, I um, lost a son,5 but that's not the reason I used. I used because, I don't know, I guess I was . . . I really don't know why. I can't really even blame it on losing my child, because I didn't use until a year after he died.

 

She also admitted she had relapsed again after her children were removed in December 2007. The evaluator concluded that C.C. was "a chronic drug addict who present[ed] a risk for relapse and neglectful parenting. She exhibited narcissistic and histrionic personality traits and has limited insight into the negative impact of her addiction on her children." It was recommended for her to continue substance abuse treatment, participate in psychotherapy and parenting skills training, and demonstrate sobriety for at least six months before reunification with her children. DYFS referred her to Dr. Jessica Platt for psychotherapy.

On May 29, 2008, the children were removed from their maternal great-grandmother's care because other adults living in the great-grandmother's residence had not complied with the home study process. C.C. wanted the children placed with J.T.C., but J.T.C. also had not completed the home study process. Two other relatives of C.C. volunteered to care for the children, but both later withdrew their names from consideration. In the absence of viable relative placements, DYFS placed the children with foster families.

On June 13, 2008, CEC conducted a psychological evaluation of C.C.'s then-paramour, R.M. The conclusion of the evaluation was that he was "an immature, guarded adult who was initially not forthcoming about his criminal history." The evaluator suspected that R.M. was currently using illegal substances, even though he reported having been sober for nine years. Substance abuse treatment and psychotherapy were recommended in the event R.M. planned to reunify with C.C.'s children.

On June 21, 2008, Max's foster family contacted DYFS, stating that Max had threatened his foster mother with a knife, and requested his immediate removal. Upon investigation, DYFS substantiated the allegations, and further discovered that Max had threatened to harm himself. He was subsequently placed with another family.

On August 1, 2008, DYFS received another report from Max's foster mother, this time alleging Tara had performed oral sex on Max while they were watching a pornographic movie prior to their removal from C.C.'s care. Upon investigation, Max stated that Tara performed oral sex on him "many times," and C.C. had seen it once and sent them to their rooms. At trial, C.C. denied that she had seen Max and Tara engaged in oral sex but admitted that she saw them kissing "once."

The referrals continued in August 2008, when Tara's foster mother reported to DYFS that Tara had been touching another foster child's genitals and requested her immediate removal. Tara was removed and placed with Ms. H. She remained there through the trial. Maritiza Francois, the DYFS caseworker assigned to the family in July 2009, noted that Ms. H. consistently expressed a desire to adopt Tara. When asked in 2010 if she would like to live with Ms. H. forever, Tara nodded yes.

In late August 2008, DYFS received an update on C.C.'s progress in psychotherapy. The psychotherapist, Dr. Platt, stated that C.C. was "compliant with all appointments" but "appear[ed] vulnerable to relapse and problems in parenting." Following a case management and compliance review hearing on September 9, 2008, the court ordered C.C. "to commence unsupervised visitation" with the children, and, "barring an unforeseen clinical therapeutic or substance abuse related issue(s), the Division plan is to reunify the children with [C.C.] within 3-4 months." Thereafter, C.C. began unsupervised visits with Tara.

CEC conducted additional psychological evaluations of the children, focusing on Max's and Tara's sexualized behaviors and allegations that C.C. had physically punished them. Max admitted that Tara had performed oral sex on him, and he also expressed a desire to remain with his foster family. Tara stated that C.C. spanked her on occasion and denied inappropriately touching Max. It was concluded that:

[T]he [C] children have been subjected to severe neglect and physical abuse by their biological mother. [Max] and [Tara] have apparently watched pornography, and [Max] apparently engaged [Tara] in sexual activity. . . . [B]oth [Max] and [Tara] alleged a history of physical abuse by their mother. [Max's] and [Tara's] needs for supervision have clearly been neglected, resulting in the development of behavioral difficulties. . . . [Max] presents a risk to other children and should not be unsupervised. [Tara] appears to be less disturbed than [Max]. . . .

 

[Max] is in need of a structured environment with constant supervision and ongoing psychiatric care. [Tara is] in need of individual psychotherapy. . . . The team is concerned about the length of time the [C] children have been in out-of-home placement. They are in need of permanency. An updated assessment of [C.C.] is recommended to assess whether or not she is successfully working toward reunification with her children.

 

Platt telephoned Cuoco in "September or October of 2008," informing her that C.C. had disclosed in a therapy session that D.H., the alleged perpetrator of sexual abuse, had accompanied C.C. on an unsupervised visit with Tara in September 2008, despite C.C.'s promise in 2006 not to have the children visit him.

In October 2008, DYFS received a referral from Max's foster mother that he tried to commit suicide by choking himself and flipping his eyelids up. Max was admitted to St. Clare's Hospital and thereafter was placed at the Holley Child Care and Development Center (the Holley Center) in Hackensack, a residential treatment facility. According to Francois, during Max's treatment, J.T.C. visited him and "had him on the weekends for most of that time." Max told Francois that he would like to reside with J.T.C. or his foster family upon release, while the foster family wanted Max removed from its home upon his release from the Holley Center. J.T.C. expressed to Francois that she wished to adopt Max. Francois testified that J.T.C. and Max "have a very strong bond."

In mid-October 2008, an Individualized Education Program (IEP) report concluded that Max was "presenting a very severe case of emotional disturbance" and required special educational assistance. Max remained at the Holley Center until mid-August 2010, and thereafter he was placed with J.T.C. Although J.T.C. had a criminal record for drug-related offenses, receipt of stolen property, and disorderly behavior, all committed in the early 1990s, she completed a waiver, which allowed her to become a DYFS-approved foster parent.

DYFS determined in November 2008 that M.W. was Max's biological father. Cuoco visited M.W. in prison on December 18, at which time M.W. informed her that his two sisters could care for Max. In 2009, M.W. provided Francois with the contact information for one of his sisters, P.Y. Francois contacted P.Y., advising her that J.T.C. was being considered as a placement option, but "[P.Y.] could . . . become a resource parent [and] . . . contact . . . the DYFS Resource Office in her area. And if for any reason [the] plan with [J.T.C.] did not work out, then . . . they would then be able to consider her and she would already be a licensed foster parent." Francois admitted at trial that she made it clear to P.Y. that she was not the primary choice for Max's placement, but in no way did Francois attempt to dissuade P.Y. from "putting herself forward as a placement option." P.Y. failed to further pursue the process to become a licensed foster home.

DYFS also investigated whether services could be provided to M.W. in prison but concluded that the only services available were those offered by the prison, which he "could initiate himself."

In November 2008, St. Clare's Hospital conducted a psychiatric evaluation of Tara. The conclusion of the evaluation was that Tara "is conflicted between the stability, attention and nurturing provided by her foster mother and with her natural allegiance to and desire to be reunited with her biological mother, despite the mother's shortcomings. She does meet the criteria for post-traumatic stress disorder and conduct disorder." She was recommended to "continue in individual play psychotherapy."

Following a hearing in December 2008, the permanency plan was to reunify C.C. with her children within three months. In the interim, CEC planned to complete additional psychological evaluations.

CEC conducted psychological evaluations of C.C. and R.M. to assess their progress toward reunification with the children. During her clinical interview, C.C. admitted she had seen Max and Tara "kissing" and that she "could have hit them a few times with a belt, but never until they was bruised." CEC concluded that C.C. had "made a small measure of progress toward reunification with her children," having successfully completed substance abuse treatment and maintaining stable housing. However, C.C. "reported having been aware of [Max's] and [Tara]'s sexualized behavior and took minimal steps to address this concern. She did not follow through with the recommendation that [Tara] receive individual psychotherapy and did not previously disclose that she found [Max] and [Tara] engaging in sexualized behaviors." CEC recommended that reunification be delayed, especially since a CEC psychologist, who supervised therapeutic visits with the children, concluded that C.C. "remain[ed] unable to manage . . . [their] behavior and anger, which result[ed] in chaotic, turbulent visits."

By letter dated December 19, 2008, Platt indicated to DYFS that she disagreed with CEC's conclusions that C.C. had failed to: develop insight regarding her children's feelings about reunification, address parenting skills issues, and address her role in her children's difficulties. DYFS had two conflicting recommendations regarding reunification: CEC opposed it, and CPC favored it.

CEC notified DYFS that, in connection with C.C.'s involvement in the therapeutic supervised visitation program ("TSVP"), C.C. and her child "engaged in a highly volatile and emotionally d[i]scontrolled argument regarding the death of [C.C.]'s oldest child," during which C.C. restrained herself from physically assaulting her older child, R.6 "Due to [C.C.]'s unpredictable and physically threatening demeanor, the moderator was forced to stand between [C.C.] and [R.] for the remainder of the visit." CEC recommended that C.C.'s "two[-]hour unsupervised visits" each week "be suspended until further notice."

Cuoco met with representatives from CEC and St. Clare's Hospital regarding reunification. DYFS concluded that reunification should remain the permanency plan, but only unsupervised visitation between C.C. and Tara would be allowed, C.C.'s visits with Max at the Holley Center would remain onsite. Platt informed the Division by letter dated April 13, 2009, that C.C. "has remained sober for over one year[] and has complied with all services that have been requested by DYFS." Moreover, Platt reported that C.C. was "actively utilizing parenting work in therapy," and Tara spoke "positively about both her supervised and unsupervised contact." It was recommended that DYFS implement "in-home therapeutic supervised visitation when there is a determination that expanded weekend visitation is appropriate."

On April 25, 2009, C.C. was arrested and incarcerated for a brief time for unpaid traffic tickets, and on May 14 and 15, 2009, C.C. tested positive for cocaine. C.C. testified that the relapse occurred after a mediation session, in which she allegedly was told her parental rights would be terminated. By letter dated May 26, 2009, Platt notified the Division that C.C. had missed nearly half of her scheduled therapy sessions during the months of April and May and expressed concern about her recent relapse.

On June 1, 2009, C.C. again tested positive for cocaine and opiates. Thereafter, the court-approved permanency plan was changed to termination of C.C.'s parental rights followed by adoption for Max and Tara.

C.C. received substance abuse treatment at Newton Memorial Hospital in June 2009, and successfully completed the program sometime in August 2010. However, her attendance at visitation was noted as "relatively inconsistent." Moreover, C.C. continued "to have difficulty managing [Tara]'s resistant, angry, aggressive, verbally combative, manipulative, defiant and attention-seeking behaviors." "During therapeutic sessions, [C.C.] . . . continued to make no therapeutic progress toward strengthening her parenting skills, methods of reducing child physical abuse and neglect risk factors, [Tara]'s emotional difficulties, and stress management."

During late January and mid-February 2010, C.C. visited Africa. C.C. had notified the Division that her departure was scheduled after a court hearing on January 26, but she left before January 25 and missed visits with Max and Tara as well as the court hearing. Although the Division had explained the importance of C.C.'s attendance at all provided services, Francois testified that C.C. said the trip was necessary "for herself."

While in Africa, C.C. married. At the time of the trial, her husband resided in Africa and was seeking U.S. citizenship. C.C. indicated that he was "willing to do whatever it takes to be with [her] and . . . [her] family." However, the Division was concerned about a living arrangement that involved C.C.'s husband because it did "not know anything about" him, and C.C. conceded the children had not met him.

In April and May, C.C. tested positive for opiates. Additionally, in May 2010, C.C.'s psychotherapy treatment with Platt was terminated "due to non-attendance."

In June 2010, C.C. visited Africa again for her honeymoon. She did not notify the Division of her trip prior to her departure because it "was a surprise," and she "didn't know exactly what day [she] was going to be leaving." She testified that her husband's brother informed the Division that she had left, while Francois testified that R.M. informed her of C.C.'s departure via a voicemail message on June 28, 2010.

At trial, C.C. denied being arrested on June 23, 2010, for prostitution, stating she had been in Africa on that date. However, after DYFS produced records of the arrest, and C.C.'s counsel stipulated to it.

CEC notified the Division that since December 14, 2009, C.C. had attended only eighteen of her forty scheduled visitations with Tara, and C.C. continued to struggle with managing Tara's behavior.

At trial, C.C. admitted that she had chronic and severe substance abuse issues and could not care for her children because she "needed to go to long-term treatment and get more help . . . and get [her] life back in order the way it used to be." She believed she needed "[l]ong-term" inpatient care.

Two psychological experts were produced at trial - Dr. Mark Singer for DYFS, and Dr. Frank Dyer for the Law Guardian. It appeared to Singer that C.C. "had made some progress," as evidenced by her interaction with her children in visitation and successful completion of substance abuse treatment programs. Nevertheless, C.C.'s personality testing indicated she had "obsessive-compulsive personality disorder" and "tended to minimize things." Singer concluded that the data did not support termination of parental rights, but did not support immediate reunification either. He made twenty-five recommendations for the Division to consider, including supervised visitation with Tara, because C.C. had told the child that they would be reunited (which could prove to be false), family therapy, gainful employment of C.C. and R.M., bonding evaluations of C.C. and R.M. with the children, and continued participation in individual therapy.

Singer opined that "the prognosis for a successful reunification involving . . . [Max] is poor" because he has "been damaged by [his] experiences with [his] mother and [is] not likely to be able to be maintained by [his] mother in the foreseeable future." Regarding Tara, Singer concluded that "the prognosis for a successful reunification is a bit more positive" because she "has been less impacted by her mother's behavior." Singer recommended a further examination of the case in two to four months so that C.C. and R.M. could "comply with[] and benefit from all recommendations." However, Singer's opinion changed after a follow-up evaluation.

During the follow-up evaluation in September 2009, C.C. reported she was no longer in a relationship with R.M. and stated that substance abuse treatment programs "don't work." At trial, C.C. denied telling Singer that treatment programs were ineffective, stating she had "told him that going back to Sunrise House would not help [her]." After the follow-up evaluation, Singer concluded:

it appears that [C.C.] is in no better of a position to care for her children. In actuality, the data suggest that her ability to parent has been further compromised by her recent relapse into drugs. This behavior is consistent with the CEC report indicating that [C.C.] has not made therapeutic progress with respect to parenting. In addition, despite having participated in therapeutic services, and despite having apparently been serviced well by the Division, [C.C.] continues to not fully accept responsibility for her situation.

 

It is also of concern that [C.C.] attributed her recent relapse to mediation. Such behavior suggests that, despite therapy, she continues to have limited coping skills. It appears that [C.C.] continues to use drugs as a coping skill[] and, should this occur with a child/children in her care, such behavior may place a child at significant risk.

 

While [C.C.], for her own sake, should be encouraged to address her substance abuse and mental health issues, the prognosis for success is clearly summarized by her own statement that, "sending me to rehab won't work."

 

. . . .

 

As previously noted, all [three] of these children have clearly had different experiences with their mother. . . . [Max] appears to desire to live with another maternal figure and not his mother. [Tara] expressed a desire to live with her mother. The differing views of these children clearly reflect their respective experiences with their mother, as well as with other individuals in their lives that may have cared for these children.

 

It appears that both [Max has] been more damaged by [his] mother than [Tara] [sic]. At the same time, it would be important to conduct bonding evaluations in order to assess the quality of attachments within this family, as well as the quality of attachments these children may have with other adults in their lives.

 

. . . .

 

[T]he available data clearly suggest that, within a reasonable degree of psychological certainty, [C.C.] cannot be considered as a parenting option for any of her children at this point in time and is not likely to become capable of parenting any of her children in the foreseeable future. As such, the available data [do] support DYFS pursuing termination of parental rights so that these children may achieve the permanency and consistency that they clearly require.

 

At trial, Singer succinctly explained the basis for his recommendation of termination of C.C.'s parental rights:

[C.C.] becomes overwhelmed. She just can't handle the parental responsibility. When that happens -- when her stress level increases it seems that she goes back to drug use. And it seems that when her stress level increases -- I think [C.C.] says it the best. She went back to using drugs because of mediation. You know, she -- she has difficulty functioning because DYFS throws her roadblocks.

 

[C.C.] is not a bad person. She just doesn't have the emotional resources to maintain -- based upon the data -- maintain sobriety over time, and to fully attend to the needs of the children over time. She has good periods in her life and -- and she should be commended for that, but in terms of parenting over time, the data [do] not suggest that she is likely to be able to do that in the foreseeable future consistently.

 

Singer also opined that the children had been psychologically harmed by C.C.'s parenting style. He noted that C.C. experienced relapses, and the more relapses one has, the less likely a favorable prognosis for successful treatment. He viewed her prospects for her successfully achieving and maintaining sobriety to be poor.

In addition, after evaluating M.W. in May 2010, Singer concluded that no meaningful attachment had developed between M.W. and Max because "M.W. has been incarcerated for most of [Max]'s life." Moreover, opined Singer, M.W. "is likely to engage in oppositional behavior, he acknowledged having a varied criminal history and will be incarcerated until 204[1] as he was apparently involved in killing another individual. As such, [M.W.] is clearly not available to parent any child."

With respect to the bonding evaluations, Singer concluded that the relationship between Max and C.C. was "not consistent with the type of relationship one commonly observes between a securely attached child and a healthy parental figure." Regarding Tara, Singer concluded that while she "has been very consistent over time that she wants to live with her mom," the parental attachment was not healthy.

According to Singer, Tara would suffer a "deeper" negative reaction to severance from her mother than Max would because she was more bonded to C.C. Nevertheless, Singer opined that neither child would likely experience a significant and enduring reaction should their relationship with their mother be severed. Moreover, when asked whether Tara would be harmed more by the termination of her relationship with her mother or by a relapse subsequent to reunification, Singer concluded that a failed reunification would be more harmful because Tara "has held out hope that she comes home to mom."

In May 2010, Dyer conducted an individual psychological examination of C.C., bonding assessments of the children with C.C. and interviews with C.C.'s third child and his foster parents.

Dyer found that C.C. had "a chronic and severe drug problem," and "remain[ed] at significant risk for relapse." The implications of her psychological profile were "extremely negative with respect to parenting capacity." She was "unable to appreciate the needs of a young child or to place the needs of her children above her own needs." For example, her plan for reunification was to raise the children with her new husband, whom the children had never met.

Based upon his bonding assessments, Dyer concluded that Max and Tara needed permanency and would face a significant risk for harm if reunified with C.C. If the children were reunited with C.C. and she relapsed, Dyer opined that the effect would be "catastrophic" for them because "[b]oth . . . had previous experiences of disruption in the continuity of their care, [b]oth have intense, unresolved, infantile dependency needs, needs for nurturance, needs for structure[, and] [b]oth have severe emotional and behavioral problems, particularly [Max]." Dyer further opined that any harm the children would incur from severance of their relationship with their mother could be mitigated by permanent placements with qualified caregivers. Max expressed his desire to live with J.T.C., and Dyer concluded that that placement was the best option for him.

On appeal, defendants argue the court erred by terminating their parental rights because DYFS did not prove the required statutory elements of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. Specifically, C.C. contends DYFS did not prove prongs two, three and four, and M.W. contends prongs three and four were not proven.

"Parents have a constitutionally protected right to maintain a relationship with their children." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (citations omitted). However, that right is not absolute, and "must be balanced against the State's parens patriae responsibility to protect the welfare of children." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (citation and internal quotation marks omitted).

When seeking to terminate parental rights, the State must prove by clear and convincing evidence each of the following four standards or prongs:

(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) [D.Y.F.S.] 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). Application of the four-factor test requires a fact-sensitive approach, and the factors 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 (quotations and citations omitted).

"Termination of parental rights permanently cuts off the relationship between children and their biological parents." In re Guardianship of J.C., 129 N.J. 1, 10 (1992). Accordingly, "the cornerstone of the inquiry is not whether the biological parents are fit but whether they can cease causing their child[ren] harm." Ibid. "Presumptions of parental unfitness may not be used in [termination] proceedings . . . and all doubts must be resolved against termination of parental rights." K.H.O., supra, 161 N.J. at 347 (citations omitted).

The court concluded that all four statutory factors had been proven by clear and convincing evidence. Regarding the first factor, the court found that defendants had endangered Max and Tara and would likely continue to do so. Citing evidence such as C.C.'s admitted drug use during her pregnancies with Max and Tara, her numerous relapses, and evaluations conducted by Singer, Dyer, and CEC, the court found that C.C. had "been abusive in the past and presents a significant risk of continued endangerment to the children." Moreover, the court concluded that M.W. remained unavailable to parent Max since he would be incarcerated "well past" Max's eighteenth birthday.

Regarding the second factor, the court found that defendants showed an unwillingness or inability to eliminate the harm facing the children. In support of its finding, the court cited evidence of C.C.'s continuing drug use, concluding that her "problems have directly impacted in a negative way both [Max] and [Tara]." Although not stating that C.C.'s behavior during the trial related to the second factor, the court found it significant that C.C. lied at trial about being arrested in June 2010, "which raised significant questions about her ability to reform and to become the parent that she testified that she would like to become." M.W. was unable to provide a safe and stable home for Max since he was incarcerated, and would be for the foreseeable future.

With respect to the third factor, the court found that DYFS had made reasonable efforts to provide services to help defendants correct the circumstances that led to placement of the children with foster parents, and the Division had considered alternatives to termination of parental rights. DYFS provided a variety of services to C.C., including "substance abuse evaluations," "treatment referrals," "supervised and unsupervised parenting time," "therapeutic parenting time and counseling" and "psychological evaluations." The Division also explored the alternative placements offered by defendants. The court noted that Singer's and Dyer's "undisputed testimony" supported placement of Max with J.T.C. and Tara with her foster family.

Finally, regarding the fourth factor, the court found DYFS had proven that termination of parental rights would not do more harm than good. Both Singer and Dyer supported termination of parental rights, concluding that the children "needed stability, security, and permanency," and defendants were unable to meet those needs. The court found the psychologists' conclusions were "supported by overwhelming data." Max had expressed his desire to reside with J.T.C. Although Tara expressed a desire for reunification with her mother, both psychologists concluded that reunification followed by a relapse would adversely affect her.

"[T]he family court's decision to terminate parental rights" should not be disturbed "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 will "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." E.P., supra, 196 N.J. at 104 (quoting M.M., supra, 189 N.J. at 293). "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, (quoting G.L., supra, 191 N.J. at 605).

We have carefully reviewed the record and conclude, as did the trial judge, that DYFS established the four statutory prongs by clear and convincing evidence. Accordingly, we affirm substantially for the reasons set forth in Judge Gilson's thorough and thoughtful oral opinion of October 13, 2010. The judge properly entered an order terminating the parental rights of C.C. and M.W. and granting guardianship to DYFS.

Affirmed.

1 For the sake of consistency, we use the fictitious names that C.C. assigned to the children in her brief.

2 For the purposes of this opinion, we consolidate the separate appeals of C.C. and M.W.

3 M.W. was convicted of aggravated manslaughter, robbery and kidnapping.

4 "A 'Dodd removal' refers to the emergency removal of a child from the home without a court order, pursuant to the Dodd Act . . . N.J.S.A. 9:6-8.21 to -8.82." N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 26 n.11 (2011) (quoting N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 609 n.2 (App. Div. 2010)).

5 A child, not the subject of this appeal, unexpectedly died in a car accident on January 21, 2007.

6 R. is not a party to this appeal.