OF YOUTH AND FAMILY SERVICES v. D.M IN THE MATTER OF THE GUARDIANSHIP OF D.A.M. and T.A.M Minors

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4604-10T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

 

D.M.,

 

Defendant-Appellant.

____________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF D.A.M. and T.A.M.,

Minors.

_____________________________________

March 2, 2012

 

Submitted February 1, 2012 - Decided

 

Before Judges Cuff, Waugh and St. John.

 

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-0162-09.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, 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 Defender, Law Guardian, attorney for the minors (Hector Ruiz, Designated Counsel, on the brief).

 

PER CURIAM

Defendant D.M. (Don)1 appeals from a April 5, 2011 order terminating his parental rights to his two biological children, now ages five and three.2 Don argues the judge erred by terminating his rights because the New Jersey Division of Youth and Family Services (DYFS) failed to establish by clear and convincing evidence each prong of the best interests of the child standard, N.J.S.A. 30:4C-15.1(a). We disagree and affirm.

On appeal, the record discloses the following facts and procedural history.

On March 12, 2008, DYFS received a referral from the Bayonne Police Department, stating detectives had executed a search warrant at Don and Tonya's residence and, while arresting them for certain drug offenses, police discovered one-year-old Danny, who was unsupervised at the scene. Don and Tonya were each charged with second-degree possession of a controlled dangerous substance with intent to distribute, and second-degree endangering the welfare of a child. Bayonne police arranged for Danny's maternal aunt to supervise him after both Don and Tonya were arrested.

Upon interviewing Danny's aunt, the DYFS caseworker was informed that she had a prior criminal history, previous involvement with DYFS, past history of substance abuse, and mental health issues. DYFS ruled out Danny's aunt as a potential caregiver. DYFS executed a "Dodd removal"3 on March 13, 2008, and removed Danny from his aunt's home. DYFS filed a verified complaint for custody of Danny on March 17, 2008, and, on that same day, the court issued an order to show cause granting DYFS temporary custody.

On March 21, 2008, while still incarcerated on the criminal charges, Tonya gave birth to Tommy. Three days later, Danny was placed with a resource family. Shortly thereafter, DYFS amended the verified complaint to include Tommy, and the court granted DYFS legal custody of Tommy. On April 7, 2008, Tommy was placed with a separate resource family. Both children have remained with their respective resource families since their initial placement in 2008.

DYFS was unsuccessful in finding suitable placement for the children with relatives while Don and Tonya remained incarcerated. The court ordered supervised visits for Don and Tonya with their children at the jail.

On November 21, 2008, Don pled guilty to second-degree possession of a controlled dangerous substance with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1), and second-degree endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4a. On January 23, 2009, he was sentenced to an aggregate custodial sentence of five years imprisonment with one year of parole ineligibility. Tonya also pled guilty to drug possession and child endangerment charges and was sentenced to three years probation. Tonya was ordered to enroll in a substance abuse program.

On February 5, 2009, the court issued an order approving DYFS's permanency plan of termination of Don and Tonya's parental rights followed by foster parent adoption of the children. On March 18, 2009, DYFS filed a verified complaint for guardianship of the minors. On March 20, 2009, the court issued an order to show cause why Don and Tonya's parental rights should not be terminated.

Dr. Frank Dyer, a psychologist chosen by DYFS, conducted an in-person psychological assessment of Don on June 29, 2009, prior to his release from the Jones Farms Correctional Facility. A bonding assessment between Don and his children was also conducted that day. Don admitted to a twenty-year history of crystal methamphetamine use. He was arrested four years prior to his 2008 arrest for possession of that drug and was granted pre-trial intervention. Dr. Dyer found that Don's "psychological profile is predominately negative with respect to parenting capacity." Dr. Dyer also found that Don's plan to work two jobs and send his children to daycare upon his release from prison was not feasible for providing adequate care for them. After bonding evaluations between Don and the children, as well as evaluations between the foster parents and the children, Dr. Dyer recommended the children remain with the foster parents based on their attachment to them.

While in prison, Don completed a parenting skills class, a substance abuse program, and a forklift safety program. Weekly visits were scheduled so that Don could see his children. He was released from prison on September 15, 2009, and paroled to a half-way house in Newark. On January 15, 2010, Don moved into the Sanford Bates House, a boarding house which provides a transitional housing program.

Dr. Dyer completed his evaluation of Don on April 26, 2010. He also determined that the children's attachment to their foster families was growing stronger, and that they exhibited anxious behavior following visits with their biological parents. He opined that Don does not appear to have "any type of viable support system to assist him in child care tasks." Dr. Dyer also noted that Don "is egregiously lacking insight with respect to the impact of his drug-related behavior on his older son, and on his unborn son at the time of his arrest." Ultimately, Dr. Dyer's report indicated he did not recommend that DYFS consider Don as a viable candidate for custody of Danny and Tommy.

On January 22, 2010, a family relative informed DYFS that Don had created and possessed child pornography. The referral to DYFS involved an allegation that Don created computer-generated pornographic images, some of which appeared to be teens engaged in sexual acts, with the faces of his adolescent, female cousins superimposed on the bodies. These images also included explicit captions written in Tagalog (the indigenous language of the Philippines), describing the acts via commentary or crude summaries. DYFS conducted an investigation and confirmed that the victims, now adults, were Don's cousins. They believed that Don created the images ten to fifteen years earlier. During the course of the investigation, his cousins alleged that Don used to steal their underwear, and that he created a videotape of his cousins in which he can be seen masturbating. Based on these allegations and the new information, on July 9, 2010, DYFS again referred Don to Dr. Dyer for further evaluation.

When questioned about the photographs and the other allegations, Don explained that during the time the images and video were created, he was under the influence of drugs. Dr. Dyer concluded that Don has a sexual interest in pre-pubescent girls, but that he does not pose a threat to his own male children, and there have never been any allegations of inappropriate touching during his visits with them. However, Dr. Dyer found that Don represents a danger to pre-pubescent females.

Don was also evaluated on December 3, 2010, by Dr. Brett Biller, a psychologist for DYFS. Dr. Biller diagnosed Don with methamphetamine abuse, early full remission, and pedophilia limited to incest. Don was also diagnosed as having a personality disorder not otherwise specified, with narcissistic and antisocial features. Dr. Biller noted that Don tried to present himself as forthcoming and responsible. However, he did not reveal his full criminal history, the pornographic images, or the impact of his actions on others, until he was specifically questioned about them. Dr. Biller recommended that Don be referred to sex offender treatment and that he not be reunited with his children.

Don sought the opinion of his own psychologist, Dr. James Reynolds, who conducted a psychological evaluation of Don, as well as bonding evaluations between Don and his children and between the children and their respective foster parents. A January 6, 2011 report encapsulated four evaluations over the course of 2010. Dr. Reynolds found that Don "developed safe and secure attachment relationships with each of his sons, and [his] overall parenting skills and abilities are adequate." He noted, however, Don's "lack of understanding of the children's developmental needs, which is a deficiency that may be remedied through education interventions." Dr. Reynolds opined that while Don is an "appropriate candidate for eventual reunification with his children[,] . . . [he] is not able to provide his sons with the requisite stability they require in terms of their housing needs . . . [and he] is still in the process of stabilizing his own life." With regard to Don's personal characteristics, Dr. Reynolds found that there are "no indicators that [he] is impaired by either mental illness or substance abuse . . . [and] also does not present with characteristics that are commonly associated with persons who commit sexual offenses." The evaluation concluded by stating "unification with his sons, should it occur, will require an extended process of increased visits . . . [and if reunification does not occur, then Don's] parental rights should be terminated and the children be made free for adoption." Finally, Dr. Reynolds noted that "[i]n either event, the boys will likely experience severe and enduring harm as a result of having their safe and secure parental [foster] relationship[s] terminated, and appropriate intervention services for the boys will be required."

On December 19, 2010, Don tested negative for substance abuse at the New Brunswick Counseling Center, and the caseworker declined to recommend further treatment for substance abuse.

On January 14, 2011, the court again approved DYFS's permanency plan of terminating Don's parental rights followed by adoption by Danny and Tommy's respective foster parents.

The Family Part held a guardianship trial on February 14 and 16, 2011. On March 21, 2011, Judge Margaret M. Foti issued a written opinion, finding that DYFS proved by clear and convincing evidence that terminating Don's parental rights was in the best interest of Danny and Tommy. The judge entered an order to that effect that same day. Don filed a timely notice of appeal from the order terminating his parental rights.

In his appeal, Don raises the following issues:

POINT I

 

THE JUDGMENT OF GUARDIANSHIP SHOULD BE REVERSED BECAUSE THE DIVISION VIOLATED THE DEFENDANT'S DUE PROCESS CONSTITUTIONAL RIGHT TO "REASONABLE EFFORTS."

 

POINT II

 

THE TRIAL COURT MISAPPLIED ITS DISCRETION IN FINDING THAT THE DIVISION PROVED THE THIRD PRONG OF THE BEST INTERESTS TEST BY CLEAR AND CONVINCING EVIDENCE.

 

POINT III

 

THE JUDGMENT OF GUARDIANSHIP SHOULD BE REVERSED BECAUSE THE TRIAL COURT'S FINDINGS WERE BASED ON AN IMPROPER "BETTER INTERESTS" STANDARD AND NOT ON THE STATUTORILY AUTHORIZED "BEST INTERESTS" TEST.

 

A. THE "HARM"IDENTIFIED BY THE TRIAL COURT WAS NOT COMPELLING ENOUGH TO JUSTIFY TERMINATION OF PARENTAL RIGHTS.

 

B. THE DIVISION FAILED TO PRESENT CLEAR AND CONVINCING EVIDENCE OF PARENTAL "UNFITNESS."

 

C. TERMINATION OF DEFENDANT'S PARENTAL RIGHTS WILL DO MORE HARM THAT GOOD.

 

Before addressing these points, we set forth the principles that govern our review of judgments terminating parental rights.

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 competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (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 decision if they are supported by 'adequate, substantial and credible 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 appropriate 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), 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 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." 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 subject 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 standard in New Jersey Division of Youth & Family Services v. A.W., 103 N.J. 591, 602-11 (1986). The Legislature subsequently 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 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 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. Moreover, trial courts must consider the potential psychological damage that may result from reunification with a parent. Ibid. "[T]he psychological aspect of parenthood is more important in terms of the development of the child and its mental and emotional health than the coincidence of biological or natural parenthood." 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 protective 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 permanency 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 parents would cause serious and enduring emotional or psychological harm.'" Ibid. (quoting J.C., supra, 129 N.J. at 19).

We conclude, based upon our review of the record in light of the applicable law, that the record supports Judge Foti'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 Don and the children.

DYFS called five witnesses: Lydia Orbe, the assigned DYFS caseworker; Gabriella Escobar-Garcia, the DYFS case manager for Don's family; Dr. Dyer, DYFS's psychologist who conducted psychological evaluations and bonding evaluations with Don and his children; Dr. Biller, DYFS's expert in psychology and issues related to child sexual abuse; and Dr. Anthony D'Urso, an expert in psychology, who supervised Dr. Biller and approved his report. Don called Dr. James Reynolds as his expert witness. He testified with regard to his psychological evaluations with Don and his bonding evaluations with Don and his children.

As to the first prong, involving the endangerment of the child's health, safety, and development, the judge found that "[t]he harm suffered by [Danny], a one year old in [Don's] care while he possessed, used and distributed crystal methamphetamine and the harm suffered by [Tommy], yet to be born, was obvious." Specifically, the judge determined that the harm occurred when Don was arrested and charged with the second-degree crimes of possession of controlled dangerous substances with intent to distribute and endangering the welfare of a child. Accordingly, we are satisfied that the first prong was fulfilled as to Danny and Tommy by clear and convincing evidence.

The judge then addressed the first part of the second prong, involving "the inquiry . . . aimed at determining whether the parent has cured and overcome the initial harm that endangered the health, safety or welfare of the child and is able to continue a parental relationship without recurrent harm to the child." K.H.O., supra, 161 N.J. at 348. "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, 205 N.J. 519 (2011).

The court found Dr. Dyer's testimony, regarding the issue of Don's ability to parent his children, to be more credible than Dr. Reynolds's. The judge noted Dr. Reynolds testified that notwithstanding Don's inability to currently care for his children adequately, he "has the potential to fully remediate the reasons for the removal of his children from his custody within a reasonable period of time." Conversely, Dr. Dyer found that given Don's "personality disorders, and . . . that [he] had already received parenting skills classes, no amount of additional training would assure the safety of his children, should they be returned to his care." The judge concluded on the issue of child care that, "[g]iven [Don's] history, [she] was not convinced by Dr. Reynolds's opinion that a few parenting classes will place [Don] in a position where he can parent his children." Accordingly, "given Dr. Dyer's diagnosis of [Don], the risk of harm to the children continues to this day."

On the issue of child pornography, the judge found Dr. Dyer's testimony credible. The judge summarized Dr. Dyer's findings that Don "tended to deny and minimize the seriousness of the behavior reported by his relatives," and that he should seek sex offender treatment and not be reunified with his children. On the same issue, the judge also found Dr. Biller's testimony to be credible that Don "recognizes the impact of his behavior on himself, but fails to recognize the impact of his actions on his children and the child victims, his cousins." The judge also relied on Dr. D'Urso's testimony, which she found to be credible, that Don should seek continuous sex offender treatment for his pedophilia, and if "the behavior is untreated and unmitigated, [Don] remains a danger to children."

Based on the differences between Dr. Reynolds's testimony, which stated that the material did not constitute child pornography, and Drs. Biller and D'Urso's testimony, which stated that the material was certainly child pornography, the judge found Dr. Reynolds's testimony to lack credibility.

After weighing all of the testimony, the judge concluded:

Based upon Dr. Dyer's testimony that [Don] remains at risk for relapse and recidivism, and lacks a viable parenting plan, the court finds that [Don] is unable to eliminate the harm and unable to provide a safe and stable home for [Danny] and [Tommy]. Dr. Reynolds acknowledged that [Don] is not now in a position to parent his children and is still in the process of stabilizing his own life. This testimony alone convinces this court that the harm posed to the children continues to this day. The added diagnosis of pedophilia limited to incest is further cause for concern but even without this latest development, the court finds that [Don] is not in a position to parent his children now or in the foreseeable future.

 

[(Emphasis added).]

 

The judge then addressed the second part of the second prong, which requires the court to consider whether delay in permanent placement will add to the harm suffered by the child. The judge determined that all of the experts agreed that "the children cannot be returned to their father at this time," noting that even Don's expert, Dr. Reynolds, opined that "from a strict 'best' interest perspective, terminating [Don's] parental rights and free[ing] the children for adoption appears appropriate." Additionally, the judge relied on the experts' testimony that the children would suffer severe and enduring harm if they were removed from their foster parents, in whose care they have remained since 2008. The judge held that under the second prong, it is in the best interests of the children that they achieve permanency without further delay. Accordingly, we are satisfied that the second prong was fulfilled as to Danny and Tommy by clear and convincing evidence.

Analyzing the third prong, involving whether DYFS made "reasonable efforts" to provide services to help Don correct the circumstances to avoid termination of his parental rights, the judge found DYFS proved by clear and convincing evidence that notwithstanding its reasonable efforts, Don was still unable to parent his children. "The reasonableness of the Division's efforts depends on the facts in each case." N.J. Div. of Youth and Family Servs. v. A.G, 344 N.J. Super. 418, 435 (2001) (citing D.M.H., supra, 161 N.J. at 390), certif. denied, 171 N.J. 44 (2002). The judge noted that the "services" provided were through DYFS and the Department of Corrections, which included outpatient substance abuse treatment, parenting skills classes, forklift safety training courses, and counseling in behavioral management. The judge acknowledged that Don successfully completed these programs, and that he also argues he is in full drug abuse remission and that DYFS has failed to refer him to sex offender treatment. DYFS asserted that it was in the process of referring Don but had not completed the referral successfully because of "contract problems."

Notwithstanding the unsuccessful placement of Don in sex offender treatment, the judge concluded that "even before these most recent allegations surfaced, [DYFS's] plan for the children was termination of parental rights followed by adoption." Further, "Dr. Dyer's recommendation against reunification was rendered prior to the time the most recent allegations were referred to [DYFS]." The court found DYFS's failure to place Don in sex offender treatment irrelevant as to whether DYFS satisfied the third prong, stating:

Dr. Dyer testified credibly that even apart from the allegations arising from the pornographic materials, [Don], despite completing services for his parenting deficiencies, cannot parent his children based upon his concerns of substance abuse relapse, recidivism, and the lack of a viable parenting plan. [Don's] own expert agreed that [Don] was not able to parent his children today because of parenting issues and a lack of adequate housing and is in fact still in the process of stabilizing his own life. The failure of [DYFS] to make a timely referral for [Don] to obtain sex offender treatment, while of concern to the court, does not support a finding that [DYFS] failed to make reasonable efforts.

[(Emphasis added).]

 

Accordingly, we are satisfied that the third prong was fulfilled as to Danny and Tommy by clear and convincing evidence.

With regard to the fourth prong, whether termination of parental rights will not do more harm than good, Judge Foti acknowledged that harm to the child is inevitable, but observed that she must evaluate whether the child will suffer a greater harm from termination of ties with the biological parent than from the permanent disruption of the relationship with the foster parents. "[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).

The judge referred to the bonding evaluations conducted by Drs. Dyer and Reynolds, which concluded that the children would suffer "severe and enduring harm if they were separated from their foster parents." Dr. Dyer disagreed with Dr. Reynolds's conclusion that the children formed a safe and secure attachment with their father. Dr. Dyer found their attachment to Don as being more closely aligned with that of a school teacher. Nevertheless, the judge pointed to Dr. Reynolds's acknowledgement that, "any harm suffered by separation from their father would result in a lesser degree of harm to the children than the harm they would suffer if they were to be separated from their current foster parents."

The judge concluded that she was satisfied that "based upon Dr. Dyer's credible testimony, . . . the children are securely attached to their foster parents and that removal of the children from their foster parents would cause severe and enduring harm." Therefore, DYFS met its burden under the fourth prong. Accordingly, we are satisfied that the fourth prong was fulfilled as to Danny and Tommy by clear and convincing evidence.

Judge Foti determined that DYFS had met its burden of proof, by clear and convincing evidence, in satisfying the four prongs of the best interests test. N.J.S.A. 30:4C-15.1a. We see no reason to disturb her decision.

Affirmed.

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

2 Don's son, D.A.M. (Danny), was born on September 2, 2006; and his other son, T.A.M. (Tommy), on March 21, 2008. On September 17, 2010, Danny and Tommy's mother, T.A. (Tonya), voluntarily surrendered her parental rights to both children. Tonya is not involved in this appeal.

3 "A 'Dodd removal' refers to the emergency removal of a child from the home without a court order, pursuant to the Dodd Act, which, as amended, is found at N.J.S.A. 9:6-8.21 to -8.82. The Act was authored by former Senate President Frank J. 'Pat' Dodd in 1974." N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 609 n.2 (App. Div. 2010).