NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. C.A.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0785-11T2

A-0786-11T2

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,1

Plaintiff-Respondent,

v.

C.A. and S.H.,

Defendants-Appellants.

____________________________________

IN THE MATTER OF THE GUARDIANSHIP OF

K.A.H., T.D.A. and T.T.A., minors.

____________________________________

January 24, 2013

 

Submitted December 4, 2012 - Decided

 

Before Judges Messano, Lihotz and Ostrer.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-150-11.

 

Joseph E. Krakora, Public Defender, attorney for appellant C.A. in A-0785-11 (Albert M. Afonso, Designated Counsel, on the brief).

 

Joseph E. Krakora, Public Defender, attorney for appellant S.H. in A-0786-11 (Durrell Wachtler Ciccia, Designated Counsel, on the brief).

 

JeffreyS. Chiesa, Attorney General, attorney forrespondent (Lewis A.Scheindlin, Assistant Attorney General, of counsel; Michelle D. Perry-Thompson, Deputy Attorney General, on the brief).

 

Joseph A. Krakora, Public Defender, Law Guardian, attorney for minors K.A.H., T.D.A. and T.T.A. (Melissa R. Vance, Assistant Deputy Public Defender, on the brief).

PER CURIAM

In these consolidated appeals, S.H. appeals from an order entered August 30, 2011 terminating her parental rights to her son, K.A.H., born August 7, 2008, and her twin daughter and son, T.D.A. and T.T.A., born September 1, 2009; and C.A. appeals from the same order terminating his parental rights to the twins. K.A.H.'s father was never identified. Both S.H. and C.A. argue the Division did not satisfy the four criteria required by N.J.S.A. 30:4C-15.1(a) for termination of parental rights. We disagree and affirm substantially for the reasons set forth in Judge Octavia Melendez's cogent forty-five page opinion issued August 30, 2011 after a four-day trial in June and August 2011.

I.

A.

We begin with a brief background of the parties. S.H. was almost twenty-one years old when she gave birth to K.A.H. in Virginia. While pregnant, she absconded from parole on a 2006 New Jersey narcotics conviction. She was arrested and incarcerated in Virginia, where she remained until K.A.H.'s birth. She was extradited to New Jersey and remained incarcerated during K.A.H.'s first four months of life, while he lived with S.H.'s mother in Virginia. Upon her release in December 2008, K.A.H. was returned to S.H.

The circumstances of S.H.'s criminal conviction are significant to this matter. S.H. was convicted of third-degree possession of a controlled dangerous substance (CDS) with the intent to distribute, N.J.S.A. 2C:35-5. She was initially given a probationary sentence in March 2006. However, she was incarcerated after she was resentenced, following a court determination she violated probation. Probation alleged she failed to report, tested positive for marijuana, failed to obtain mandated drug treatment, and failed to enroll in school or obtain employment. Probation also alleged she had been charged with four separate violations of a domestic violence restraining order, which apparently was obtained by her mother. She was released to a half-way house in mid-2007. She failed to comply with parole, and fled first to Brooklyn, New York, before going to Virginia with her mother.

According to a psychological evaluation, S.H. unsuccessfully attempted to earn a G.E.D while incarcerated. She had dropped out of high school, and could not recall the highest grade she completed. She had also been involved in the juvenile justice system, and had a history of running away from home. She asserted her mother physically disciplined her as a child. S.H. had no employment experience. According to intelligence testing conducted in October 2010, S.H. functioned in the extremely low range of intellectual ability, with a full scale IQ of 63, placing her in the first percentile.2

S.H. initially believed that C.A. was the father of K.A.H., asserting that she had relations with C.A. in December 2007 and lived with him at his mother's house in 2008. It was later established in May 2010 that C.A. was not the father, nor were any of four other men S.H. would later identify.3

Turning to C.A.'s background, he had more extensive contacts with the criminal justice system than did S.H. After a jury trial in 2005, C.A., then twenty-one years old, was sentenced on July 28, 2005 to a seven-year term, with three years of parole ineligibility, for a second-degree drug offense, N.J.S.A. 2C:35-7.1, consecutive to a seven-year term for possession of a weapon during a drug offense, N.J.S.A. 2C:39-4.1, and concurrent to a four-year term for unlawful possession of a handgun, N.J.S.A. 2C:39-5b. C.A. had been incarcerated since March 2004. On two other indictments, he was sentenced to concurrent terms of four years for third-degree possession of CDS, N.J.S.A. 2C:35-10a1, and third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b. The court noted in sentencing C.A. that he had one prior adult conviction, plus an extensive juvenile record including two adjudications for aggravated assault, two for firearm possessions, and three violations of probation.

C.A. was released to a halfway house in November 2008, where he remained until September 2009. During that period of time, he fathered T.T.A. and T.D.A. In September 2009, he left the halfway house without permission, allegedly to be by his twins' side. As a result, he was returned to prison where he remained until September 2011.

B.

The court first granted the Division custody of K.A.H. and the twins on November 20, 2009. The court concluded the children should be removed after S.H. left K.A.H. with her brother on November 16, for what was supposed to be less than a day, and then failed to return. S.H. also failed to undergo training regarding the needs of the twins, who were still hospitalized with medical complications after their premature birth two months earlier.

Hospital staff had contacted the Division on October 23, 2009 to express concerns that S.H. was homeless, had not provided staff with a means to contact her, and had visited the twins only once a week. Before delivering the twins, S.H. was living in domestic violence shelters, after being victimized by her boyfriend, T.B. After birth, T.D.A. needed oxygen and T.T.A. had bleeds in his head. When S.H. did visit, she spent most of her time on her cell phone, or with friends, rather than interacting with her children. S.H. also failed to attend hospital classes to learn how to care for the babies' special medical needs after discharge.

After the referral in October, a Division worker ultimately contacted S.H., who initially refused to reveal where she was living. M.A., the paternal grandmother, allowed S.H. and her children to live in her three-bedroom home. However, M.A. reported on November 16 that S.H. left M.A.'s home with K.A.H. a week earlier after M.A. asked S.H. to contribute $200 a month toward rent. S.H. apparently could afford the rent, as the Division was informed S.H. was receiving $423 a month in cash assistance and $678 in food stamps.

The Division confirmed that J.H., the maternal grandmother, declined to care for the children because of her own unstable circumstances. M.A. reported on November 23, 2009 that she too would be unable to care for any of her grandchildren because she needed to care for her own mother. A paternal aunt in New York, C.W., offered to take the children.

On November 23, 2009, the Division found S.H. living in her godmother's home, which was unsuitable for the children because of its unsafe condition and state of disrepair. The house lacked heat, had exposed screws and wires, and an inoperable toilet. S.B., the father of the godmother's children, agreed to allow S.H. and her children to live in his home, which the Division found suitable.

The Division's goal at the time was family stabilization and reunification. On December 2, 2009, Judge John Fratto restored legal custody of the three children to S.H. K.A.H. returned to S.H. that day, and, after S.H. completed training to care for the twins, they were discharged from the hospital into her custody two days later. Though over three months old, T.D.A. weighed less than three pounds.

Soon after, S.H. required Division assistance in obtaining formula for the twins, after she called the hospital for help, with almost none left to feed her children. S.H. then took up residence again in S.C.'s home, notwithstanding the safety hazards. S.H. claimed she was bitten by bed bugs in S.B.'s home. A Division worker informed her if she remained at S.C.'s home, the Division would seek to remove the children.

On December 22, 2009, the Division received a referral that S.H. had medically neglected T.D.A. He was admitted to the hospital following a doctor's appointment because of a failure to thrive, having gained less than a quarter of a pound since his discharge. At the hospital, T.D.A. was not wearing an apnea monitor, which he was supposed to have on at all times. A hospital staffer reported that S.H. had stated she had difficulty with T.D.A.'s feeding. S.H. had also missed an ophthalmology appointment for the children four days earlier. Upon their discharge, S.H. was warned the twins faced a risk of blindness if they missed pre-scheduled ophthalmology appointments.

The Division then learned from S.B. that S.H. had not stayed at his home for the past two days. S.H. hung up on a Division worker who attempted to speak to her. That evening, workers finally located S.H. at S.C.'s home, where they observed the kitchen stove used for heat, an electric heater on the floor, roaches on the walls, and a kitchen door nailed shut. S.H. denied she neglected T.D.A.'s needs, claiming transportation problems prevented her from attending the ophthalmology appointment; she had complied with feeding directions for T.D.A.; and had removed his monitor only upon his examination at the hospital. Upon being informed of the Division worker's intent to effectuate an emergency removal of K.A.H. and T.T.A., S.H. fled the house with K.A.H., and left T.T.A. behind. The worker took custody of T.T.A. and brought her to the hospital for examination.

S.H. called the Division worker shortly before midnight, and said, "she was from the hood and was born and raised in the city of Camden and the Worker did not know who she was dealing with." Police assisted the Division in the search for S.H. and K.A.H., but their efforts were initially unsuccessful.

On December 23, 2009, the hospital released T.T.A. to the care of a special needs foster family, and the Division executed a hospital hold for T.D.A., who remained hospitalized. On December 24, 2009, Judge Deborah Silverman Katz granted the Division's request for the care, custody, and supervision of the children, and ordered S.H. to return K.A.H. to the Division's custody. The court found S.H. neglected her children, abandoned T.T.A. when she fled with K.A.H., and had unsuitable housing. The court ordered S.H. to "comply w[ith] previously ordered services, including a psychological eval[uation] and all follow up, as well as parenting classes."

A Division worker had also informed C.A. in prison that S.H. was missing with K.A.H., the children had been ordered removed, and his sister's interstate application to care for his children was completed and awaiting decision.

While S.H.'s whereabouts were unknown, Healthy Mothers Healthy Babies closed her case, and the Division requested that the Camden County Board of Social Services suspend her benefits. Division workers ultimately found S.H. in hiding with K.A.H. on January 14, 2010, after receiving an anonymous tip that alleged S.H. was moving from place to place and not feeding her child. K.A.H. and the twins have remained in Division custody thereafter.

C.

In the ensuing months, the Division pursued dual efforts to reunify the children with S.H. and to place K.A.H. and the twins with family members. The Division offered S.H. various services, while assisting her in visitation. However, by October 2010, the Division's plan became termination of parental rights, followed by foster home or relative adoption for K.A.H., and select home adoption or relative adoption for the twins. A guardianship complaint was filed in December 2010.

On January 20, 2010, Judge Melendez issued an order directing S.H. submit to a psychological evaluation, attend parenting skills training, comply with a visiting nurses program for the twins, pursue WIC benefits, and comply with the Healthy Mothers Healthy Babies program requirements. As we discuss below, her compliance with services was inconsistent.

Walter Frankel, Ph.D., performed the ordered psychological evaluation in February 2010. S.H. denied ever abusing illegal drugs, and Dr. Frankel was unable to determine, based on a substance abuse screening test, whether S.H. was being truthful (although, as we noted above, she tested positive for marijuana while on probation).

Although Dr. Frankel opined S.H. appeared to have a basic to good understanding of her children's needs, he did not believe she was prepared to care for them.

[S.H.] has a personal history of difficulty maintaining responsibility for her actions overall. Her challenge as a parent is to develop more consistent and stable responsible behavior in the care of her children. She probably needs to start by demonstrating that she can be responsible in her own individual life first, as discussed below. In the meantime, for the welfare of her children, they probably should be continued to be cared for by others who can meet their needs consistently. Hopefully, [S.H.] will be able to assume a greater role, as she pulls her own life together. As she makes progress, consideration of full return of her children to her can be re-considered. She should continue to be engaged in some form of parenting education or counseling. Should her children be returned to her at some point, she would benefit from some in-home family support/counseling re: parenting and developing needs of her children.

Dr. Frankel concluded S.H. needed intensive psychotherapy.

[I]mportant therapy related goals would be to decrease anger and blame toward others; increase her sense of responsibility for choices she makes on a day to day basis, and longer term; increase her social support network [and] develop educational and occupational goals. [S.H.] denies issues [related to] substance abuse. However, given her history of selling drugs and other factors, she may be at risk for developing a substance abuse problem. This should be monitored as part of any therapy she would be involved in.

 

Dr. Frankel stated that S.H. needed "to develop some stable structure to her everyday life." He recommended "an intensive day therapy program" followed by or concurrent with community service, possibly at a child care facility with close supervision and support, and GED classes in the hope that these "pre-vocational goals" could prepare S.H. for part-time employment. He also recommended the Division or an appropriate social services agency review her "eligibility for any form of assistance [regarding] housing, food stamps, etc[,]" because "[i]nstability regarding her basic survival needs will no doubt undermine progress in other areas[.]"

Division efforts to place the children with relatives were often frustrated. The Division pursued placement with C.W., the paternal aunt in New York State. However, in April 2010, C.W. decided she did not want to pursue placement of the twins, as she was pursuing placement of another family member's baby.

The Division pursued interstate approval to place the twins with A.H., their maternal aunt, who lived in Brooklyn, New York. After obtaining the necessary approvals, and just four days before their placement on September 24, 2010, A.H. informed the Division she planned to move to Maryland. That required the Division to begin the interstate approval process anew in Maryland. At a case management conference on March 8, 2011, the Division reported it did not expect A.H.'s interstate application to be approved because A.H.'s boyfriend, who was recently released from jail and was living with her, was refusing to cooperate.

The Division succeeded in placing K.A.H. with his maternal grandmother N.C., in Maryland, in March 2011. Approvals were apparently delayed when N.C. moved from one Maryland county to another. But little over a month after placement, K.A.H. had to return to New Jersey after N.C. was evicted from her home.

S.H.'s attendance at parenting time sessions was inconsistent, particularly with the twins. She failed to attend parenting time with the children on April 8 and 22, 2010. She was unavailable for parenting time with K.A.H. on July 28, 2010. She failed to attend, or arrived too late to participate in parenting time with the twins on June 3, June 24, July 15, and August 24. Although S.H. often responded appropriately to the children during visitation, on other occasions, she was inattentive to one or more of her children.

Between April and June 2010, Robins' Nest, Inc., provided a therapeutic visitation program, supervising S.H.'s parenting time with K.A.H. One report found S.H. "demonstrated appropriate parenting skills during the visits, attended visits as scheduled and was an open participant in the therapeutic component" of the services. Although Robins' Nest parent support services attempted to assist S.H. in finding housing, the program ended services in June 2010 "due to a lack of progress with the case plan regarding housing and emplo[y]ment." S.H.'s unstable living arrangement precluded her from receiving "in home service[s]" even though Robins' Nest noted if S.H. "ma[d]e progress and f[ound] housing," therapeutic visitation services "could be reinstated[.]"

S.C. told a Division worker in June 2010 that S.H. said she did not want the twins. On July 14, 2010, a Division worker reported "[S.H.] is okay with letting the twins go with relatives. She said, 'No I do not want to terminate my rights'." After S.H. failed to appear for her July 15, 2010 visitation, a Division worker asked S.H. about whether she intended to exercise visitation. The worker reported, "[S.H.] told worker she does not want to visit with the twins at this time because she feels there is too much to do." On August 18, 2010, S.H. told a Division worker that she recognized she did not visit the twins often enough, "but is looking forward to starting visits with them soon." A week later, after she failed to attend visitation with the twins on August 24, S.H. said she overslept, but "S.H. informed supervisor and worker that she no longer wanted visits with [T.T.A.] and [T.D.A.]."

Visits with the twins apparently resumed in the fall of 2010. But, at a family team meeting on March 2, 2011, S.H. was asked what her plan was for the twins, and a Division worker reported, "Her response was I don't care about the twins. . . . [S.H.] reported that she has not had the opportunity to bond with the twins as they went into placement." S.H. missed visits with the twins on March 16, 2011 (after calling in sick), April 13, 2011, and all of May 2011. When asked about her reasons for missing visits, S.H. stated, without explanation, that "she has been going through something."

S.H. resisted participating in drug abuse evaluations, treatment and testing, although she ultimately completed twelve of fourteen sessions in a drug program in 2011. She refused to provide urine samples on July 26, August 25, and September 1, 2010, and refused to submit to a court-ordered hair follicle test. S.C. reported to the Division in June 2010 that S.H. broke into her home and stole things, which led S.C. to suspect S.H. was stealing to support her use of drugs. Based on her prior involvement with drug distribution, and her repeated refusal to submit to urine samples, a drug evaluator recommended in September 2010 that S.H. enter a Level I outpatient program.

S.H. ultimately attended twelve of fourteen sessions of a drug treatment program between November 2010 and February 2, 2011, when she was discharged because she "fell down stairs at home and broke her leg[.]" Her discharge evaluation determined S.H. "[p]artially [a]chieved" her treatment objective. She submitted nine negative urine screens while participating in the program. She was referred to an extended drug assessment later in 2011, but failed to attend multiple appointments in May 2011 and was terminated.

S.H. completed a parenting program between May and September 2010, attending sixteen sessions, after missing two sessions. Although she initially was not engaged with the program, she ultimately responded appropriately. Her attendance at an anger management program was not as consistent, at one point missing seven sessions while attending thirteen, but she ultimately completed the program.

S.H. remained unemployed in 2010, and she failed to obtain stable housing, staying with friends and family. Division workers attempted to assist S.H. in obtaining housing, providing referrals and information. After S.H.'s intelligence test, which determined her cognitive functioning placed her in the first percentile, the Division submitted information to the Division of Developmental Disabilities in an effort to obtain assistance.

D.

In approving the Division's plan to change the goal from reunification to adoption, the court found in October 2010 that reunification with S.H. would "not be safe . . . in the foreseeable future because even after receiving services, [S.H.] has failed to obtain stable housing, complete substance abuse treatment, random urine screens and hair follicle testing. [C.A.] has been incarcerated during the pendency of this litigation." The court determined the Division provided "reasonable efforts" to attempt reunification including providing S.H. with psychological evaluations, substance abuse evaluations, Robin's Nest parenting support, parenting classes, anger management and domestic violence counseling, and bus passes for transportation. After the Division filed its guardianship complaint, the court dismissed the FN case at a status conference in January 2011.

A Division worker met with C.A. on January 14, 2011 to serve him with a copy of the guardianship complaint. The worker reported, "[C.A.] stated that he was made aware of the children being in placement and his mother is trying to get his children before they terminate his rights."

At a March 2011 status conference, C.A.'s counsel stated, in C.A.'s presence, that as C.A. expected to be incarcerated "for quite a while," and he supported S.H.'s efforts to be reunited with the children, C.A. would forego a defense psychological evaluation. The court stated, "With the understanding that . . . if [S.H.'s] parental rights are terminated, then he's forfeiting his rights." Counsel replied, "Well, he's waiving a certain defense that he has, that's true." The court reiterated that since C.A. was "forfeiting his right [in order] to have the child [go] to [S.H.]" then if she did not prevail, "then he loses also. Right?" Counsel responded, "I understand that, Your Honor, and that that's why it's in support of . . . her defense."

The court ordered S.H. and C.A. to attend psychological evaluations with the Division's expert, Linda Jeffrey, Ph.D. At a case management conference on June 2, 2011, S.H. failed to appear, and her counsel did not know why. It was reported S.H. failed to appear for her evaluation with a defense psychological expert. It was also reported she had stopped engaging in any services. The Division asked that a default be entered, but the court did not rule on the request.

At a pretrial conference on June 14, 2011, S.H. failed to appear again, without explanation, although counsel stated she was notified. The court rescheduled S.H.'s evaluation with Dr. Jeffrey for June 16, 2011, but S.H. did not attend. An evaluation of C.A. proceeded as scheduled.

Trial began on June 27, 2011. S.H. did not appear, although counsel stated S.H. did attend the defense evaluation. At trial, the Division relied on the testimony of Dr. Jeffrey and two Division caseworkers, who described the Division's involvement in the case. Neither parent testified nor called expert witnesses. S.H. also did not call any fact witnesses. C.A.'s mother testified about her willingness to care for the three children if maternal relatives were unavailable.

Based on her psychological evaluation of C.A. and her bonding evaluation of C.A. and the twins, Dr. Jeffrey opined C.A. was unprepared to serve as a parent to the twins, noting C.A. told her that he planned to co-parent with S.H. upon his release. Dr. Jeffrey's diagnosis of C.A. included a personality disorder, signs of self-absorption and narcissism, and the inability to empathize with others. Dr. Jeffrey was unable to rule out drug or alcohol dependence, because C.A.'s defensiveness scores were high and he admitted to selling drugs and being "very involved in the context in which substance abuse was taking place."

She opined C.A. had an Axis I adjustment disorder, as C.A. demonstrated difficulty with "conduct that is associated with adult maturity in terms of economic independence, housing independence, being able to follow rule-governed behaviors, [and] being able to handle relationships in a stable manner." He had a Global Assessment of Functioning on Axis V of 40, which meant "major impairment in multiple domains, including work, family relations, poor insight, poor judgment and deficits in rule governed behavior." She opined C.A. was "not prepared to parent the twins to a minimal level of safe parenting."

Dr. Jeffrey also opined there was no emotional bond between the twins and C.A. Dr. Jeffrey assessed the interactions between C.A. and the twins, who were then one-year-and-nine-months old. C.A. displayed "a pleasant and affectionate manner with the children," who showed no signs of recognizing C.A. But, C.A. "did not reflect knowledge of child development" nor the developmental challenges the twins faced as a result of their premature birth. Dr. Jeffrey concluded severing the parental relationship between C.A. and the twins was "unlikely to have serious and enduring harm."

Lisa Capone, a Division family service specialist, described the family's history with the Division, the services provided to the family, and attempts to place the children with maternal and paternal relatives. A Division adoption caseworker, Dawn Hoyle, described the Division's attempts to place the twins and K.A.H. with family members. She provided an update on efforts to place the twins with the maternal aunt, and noted M.A.'s willingness to care for the twins if A.H. could not. Hoyle stated the plan for K.A.H. was foster home adoption with his resource family. The Division witnesses testified C.A. never reached out to the Division to ascertain the status of the twins. C.A. was the father of a child with another woman and owed substantial child support arrears (although the record did not disclose whether those arrears accrued only when he was incarcerated).

M.A. testified on C.A.'s behalf, stating she wanted "to make sure the[] [twins were placed] with family." She explained she was going to fix up the basement of her home in anticipation of C.A.'s release from prison, and would be interested in adopting the twins if needed. While M.A.'s daughter and granddaughter lived in her home, M.A. stated her daughters were "willing to help out" with the care of the twins when M.A. was at work. While M.A. was previously ruled out as a placement for the twins because she was caring for her ill mother, M.A. explained her sisters were helping care for their mother, thereby lessening the burden.

The court suspended trial after a session on June 28, 2011 to provide one more opportunity for S.H. to submit to an evaluation by Dr. Jeffrey. Trial resumed August 12, 2011, when Dr. Jeffrey testified regarding the psychological and bonding evaluations she conducted with S.H. Dr. Jeffrey concluded S.H. suffered from "very serious adjustment and personality problems that very seriously decrease her parenting capacity." She believed returning the children to S.H.'s care would likely place them "at risk for harm[.]"

Dr. Jeffrey was unable to rule out drug or alcohol dependence, based on the inconsistency between S.H.'s denial of drug or alcohol dependence and S.H.'s history of selling drugs and "participating in an environment where there was substance abuse." S.H. also had an Axis I adjustment disorder, as she demonstrated difficulty with "basic adult functioning" including her inability to obtain independent housing, employment, or complete secondary education or job training. Dr. Jeffrey diagnosed S.H. as having an Axis II "narcissistic personality disorder with antisocial personality traits[,]" meaning S.H was "likely to be self-absorbed, self-centered, emotionally immature, lacking in personal insight, lacking in empathy, [and] having deficits in the ability to be attuned to the needs [of] others." Dr. Jeffrey found extensive Axis IV issues including S.H.'s support group, social environment, educational and occupational problems, housing problems, economic problems, and problems related to interaction with the legal system. Finally, Dr. Jeffrey noted S.H.'s testing results reflected "[m]ajor impairment in several areas including work, family relations, parenting judgment, [and] poor insight."

Dr. Jeffrey also conducted a bonding evaluation between S.H. and her children. Dr. Jeffrey concluded S.H. was "a familiar visitor" with the twins, but she did "not function as their secure bases or psychological mother." Dr. Jeffrey observed the twins did not react to S.H. upon seeing her and did not display spontaneous affection to her. At the end of the meeting, S.H. did not kiss the twins goodbye, and they did not protest separation from S.H. Dr. Jeffrey opined severing the parental relationship between S.H. and the twins would not cause the twins harm because "[t]here was no secure attachment."

As to K.A.H., Dr. Jeffrey observed, at the outset of the evaluation, he "displayed reluctance" to separate from his foster mother and immediately asked to leave the session room. At the end of the evaluation, as S.H. gathered her belongings, K.A.H. cried, "looked bewildered and insecure[,]" and went to his foster mother upon leaving the session room. Dr. Jeffrey concluded K.A.H. demonstrated an "insecure attachment" with S.H., which was "in and of itself, harmful[.]" While K.A.H. would suffer a loss if his relationship with S.H. were severed, Dr. Jeffrey opined severance of the relationship would benefit K.A.H. as it would enable him to form secure relationships with people he trusted.

Dr. Jeffrey contrasted K.A.H.'s bond with S.H. with the bond he formed with his foster mother, which Dr. Jeffrey also evaluated. Dr. Jeffrey concluded K.A.H.'s foster mother "functioned as his psychological mother" with whom he displayed spontaneous affection, "maintained excellent eye contact," and overall, had a secure attachment. Dr. Jeffrey opined removal of K.A.H. from his foster mother was "likely to cause him serious and enduring harm." She believed it was unlikely S.H. would be able to ameliorate the harm severance of that relationship would cause.

On August 30, 2011, the date the court scheduled to deliver its decision, the Division reported A.H. had been evicted and no longer was being considered as a placement for the twins. Instead, the Division was assessing M.A. for placement, consistent with her testimony that she wanted to be the backup placement if placement with A.H. was unsuccessful. If M.A. failed licensure, the Division planned to place the twins with K.A.H.'s foster mother who expressed an interest in adopting all three children.

E.

Based on her extensive findings of fact, Judge Melendez found the Division proved "beyond all reasonable doubt" the four prerequisites to terminating parental rights:

(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-15.1a.]

See also N.J. Div. of Youth and Family Servs. v. A.W., 103 N.J. 591, 604-10 (1986).

In support of its prong one finding, the court cited S.H.'s "extensive history of transient behavior"; her inability "to secure housing" even when faced with familial opportunities with affordable financial commitment; her abandonment of K.A.H. with her brother; the need for the Division to execute an emergency removal of the children and S.H.'s subsequent flight with K.A.H.; S.H.'s failure to "follow through with any type of services . . . facilitated by the Division"; S.H.'s lack of effective parenting skills; and the negative results of Jeffrey's evaluations.

Regarding C.A., the court found "the fact that he was constantly in and out of jail while the Division was involved with the family indicates that his behavior continued to present a risk to the safety of [the twins]." Further, C.A. "never reached out to the Division to inquire about the twins' well being[,]" while incarcerated. C.A's desire to support and co-parent the children was "unrealistic" and the court noted he faced significant child support "arrears as to another child he fathered with a different woman." The court credited Dr. Jeffrey's evaluations, and agreed with the conclusion that C.A. would be unable to safely parent the twins. Having assessed the individual factual circumstances of each parent, the court concluded both S.H. and C.A. had "been unable to meet the basic needs of their children . . . [and] that [the children]'s safety, health and development ha[s] been and will continue to be endangered by the parental relationship."

Second, the court found C.A. and S.H. were unable or unwilling to eliminate the harm facing their children. The court explained S.H. "is unable to provide a safe and stable home for all three children as she is currently unemployed and lacks suitable housing." There were "several occasions and . . . sometimes months at a time," when the Division did not know where S.H. was living. Similarly, C.A.'s "actions showed that he was unwilling to eliminate the harm facing his children when he left the halfway house he had been residing at without informing anyone." The court noted the twins "are in need [of] a parent who will be available to them which is something [C.A.] has been unable to accomplish." Further, the court found even if S.H. and C.A. were taken out of their current situations, they demonstrated they "are incapable of even being able to properly care for themselves[,]" thereby sabotaging any hope of permanency for the children.

As to prong three, Judge Melendez found the Division made reasonable efforts to provide services to the family to remediate the circumstances leading to the removal of the children. The court found the Division provided S.H. with "ongoing and continuous services" and that she was "given ample opportunity to partake in different services offered[.]" While S.H. demonstrated some participation in the services ordered, "her compliance has been minimal." S.H. never completed court ordered drug treatment, and even missed scheduled parenting time with the children. Moreover, while S.H. completed parenting and anger management classes, the court found those classes did not help "remediate her issues as she continue[d] to remain incapable of caring for her children."

As to C.A., he was "incarcerated for virtually the twins' whole life . . . [and a]s a result, the Division was unable to provide services during [C.A.]'s period of incarceration." However, the court noted C.A. "never contacted the Division in regards to inquiring about the twins' well being or to ask for the Division to provide him with services."

Further, the court found "the Division went above and beyond in its efforts to consider alternatives to termination of parental rights." In so finding, the court cited attempted interstate approval of C.W.'s home in New York, A.H.'s home in New York, and N.C.'s home in Maryland. Overall, the court concluded "there are no alternatives to the termination of parental rights."

Finally, the court found "that termination of parental rights will not do more harm than good in this case" because S.H. and C.A. "have not demonstrated an ability to improve their situations sufficiently to care for themselves, let alone their young children." The court found Dr. Jeffrey to be credible and relied on her bonding evaluations and conclusion that S.H. and C.A. were incapable of parenting the children and severance of their rights would not seriously harm the twins who had not bonded with them at all. Judge Melendez entered an order terminating S.H.'s and C.A.'s parental rights and granted the Division guardianship.

S.H. and C.A. each filed an appeal, contesting the court's finding on each of the four prongs. The Law Guardian joins the Division in asking us to the affirm the court's decision.

II.

Our scope of review is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). We defer to the trial judge's factual findings based on the judge's familiarity with the case, opportunity to make credibility judgments based on live testimony, and expertise in family and child welfare matters. See N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008); Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). We will affirm the Family Part's decision to terminate parental rights when substantial, credible evidence in the record supports the court's findings. E.P., supra, 196 N.J. at 104. Having reviewed the record at length, we are satisfied that Judge Melendez's findings are well-supported by the credible evidence, and she correctly applied the governing law. We add the following comments.

As to prongs one and two, we address S.H. and C.A. in turn. S.H. mischaracterizes Judge Melendez's opinion by asserting the court relied primarily on S.H.'s lack of housing and failure to engage in what S.H. argues was unwarranted drug treatment. As we have noted, the court based its prong one finding on the substantial evidence that S.H. abandoned K.A.H. with her brother; failed to attend to the medical needs of the twins; abandoned T.T.A. when she absconded with K.A.H.; and demonstrated a varying commitment to the twins, as evidenced by inconsistent visitation and expressions of disinterest. Nor did the court lack a basis for requiring S.H. to participate in drug treatment, given her drug-related conviction, her violation of probation for, among other things, testing positive for marijuana, and her repeated refusals to submit to drug tests, even when court-ordered. Moreover, S.H.'s lack of housing was partly the result of her own actions. The Division assisted in obtaining housing for her with M.A., and with S.B., but she ultimately decided to live elsewhere.

As to C.A., his extensive record of criminal behavior and his complete absence from his children's lives amply support the court's finding that his relationship with his children endangered their health, safety and development, and he was unable or unwilling to safely parent the children, and to avoid the harm of delayed permanency. The court was not required to find that C.A. physically abused or neglected his children. In re Guardianship of R., 155 N.J. Super. 186, 194 (App. Div. 1977).

C.A.'s incarceration was lengthy. He made no effort to develop ties to his children while incarcerated. His incarceration was probative of whether he was capable of properly caring for his children. In re Adoption of Children by L.A.S., 134 N.J. 127, 135-36 (1993). He was a complete stranger to his children for their first two years of life. See N.J. Div. of Youth & Family Servs. v. T.S., 417 N.J. Super. 228, 242-43 (App. Div. 2010) (affirming finding termination of parental rights of parent whose incarceration coincided with child's foster placement and remained a stranger to child).
"'[O]nce a parent is imprisoned, a relationship with one's children that was nonexistent prior to incarceration will not likely be fostered.'" Id. at 243 (quoting L.A.S., supra, 134 N.J. at 139). See also N.J. Div. of Youth & Family Servs. v. S.A., 382 N.J. Super. 525, 534 (App. Div. 2006) (noting that imprisonment limits a parent's ability to nurture and develop bonds with a child).4

Regarding prong three, we consider first the Division's "reasonable efforts" to provide services to C.A. and S.H., and then its consideration of alternatives to termination. C.A. concedes the Division could not provide many services to him while in custody. See N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 621 (App. Div. 2007) (discussing likely futility of providing services to a person in custody). C.A. argues the Division failed to keep him informed as to the progress of his children. However, the evidence reflected that a Division worker visited C.A. in prison to serve him with the guardianship complaint; he was represented by counsel; and Division workers testified he made no effort to communicate with them. Moreover, there is no cognizable evidence that he was unaware of the status of his children.

We also find unpersuasive S.H.'s argument that the Division failed to provide her with services to assist her in overcoming the circumstances that led to removal. The Division's efforts to provide services are not "measured by their success." In re Guardianship of D.M.H., 161 N.J. 365, 393 (1999). Judge Melendez identified the numerous services offered to S.H. In particular, we are unpersuaded by S.H.'s argument the Division failed to provide transportation and other assistance to promote visitation with the children. Rather, the record reflects that S.H. at various points expressed a lack of interest in visiting with the twins. On numerous occasions, she missed visitation for reasons personal to herself. For example, she occasionally failed to wake up on time, and, as she said in reference to her absence from visitation for several weeks in 2011, she had been "going through something."

Turning to the Division's consideration of alternatives, we also reject C.A.'s argument the court failed to consider alternatives to termination of parental rights, specifically, placement of the twins with his mother, M.A. There is no presumption in favor of placement with a relative. N.J. Div. of Youth & Family Servs. v. M.F., 357 N.J. Super. 515, 528-29 (App. Div. 2003) ("[A]lthough there are statutory provisions in Title 30 and Title 9 which refer to relative placements, the statutes do not create a presumption in favor of such placement."). A child is entitled to the Division's best efforts to be placed with a relative and any siblings and to have regular visitation with any siblings, if that is "consistent with the health, safety and physical and psychological welfare of the child and as appropriate to the individual circumstances of the child's physical or mental development[.]" N.J.S.A. 9:6B-4b, d, f.

The record reflects the Division did consider M.A., but she initially stated she would be unavailable because of her responsibilities to her own ailing mother. She then presented herself only as an alternative to maternal relatives, whom she knew the Division was pursuing. The case before us presents circumstances markedly different from those in M.F., supra, 357 N.J. Super. at 529, where the relative never refused to take a child, indicated a willingness to care for the child only three months after the child had been placed in foster care, was already caring for one of the child's biological siblings, and an expert witness testified that the child had a bond with the relative and would have little difficulty living with her. Id. at 520-25.

Nor is the case before us governed by our decision in N.J. Division of Youth & Family Services v. K.L.W., 419 N.J. Super. 568 (App. Div. 2011). In K.L.W., we reversed and remanded the termination of parental rights because the Division had violated its obligations under N.J.S.A. 30:4C-12.1 by failing to consider whether the child could be placed with maternal grandparents. In that case, the grandparents were already caring for the child's siblings. Id. at 581. At the mother's request, the Division had never contacted the maternal grandparents regarding the new-born baby. Id. at 570-71. In addition, two experts admitted that the harm the child might suffer after being removed from the foster mother with whom the child had bonded could be mitigated by an appropriate caregiver. Id. at 575.

In this case, the Division fulfilled its obligations under N.J.S.A. 30:4C-12.1 to explore placement with relatives. With respect to the twins, the Division engaged in substantial efforts involving a paternal aunt, a maternal aunt, as well as considering M.A. There is no basis to conclude here, in contrast to K.L.W., that a failure to explore relative placement deprived the court of "information relevant to the best interests of the child." Id. at 581. Moreover, the Division intended to actively explore M.A. for placement after termination of C.A.'s and S.H.'s parental rights. However, placement with M.A., if it occurred, was not an alternative to termination of C.A.'s or S.H.'s rights. As the court found, based on sufficient credible evidence in the record, neither would be able to safely parent the children in the foreseeable future.

Lastly, we discern no basis to disturb Judge Melendez's finding under prong four that termination of parental rights would not do more harm than good. N.J.S.A.30:4C-15.1(a)(4). The fourth prong "cannot require a showing that no harm will befall the child as a result of the severing of biological ties." In Re Guardianship of K.H.O., 161 N.J.337, 355 (1999). It is, concededly, a "painfully difficult" decision that is vested in the trial judge who is most familiar with the case. Ibid.(quoting In re Guardianship of J.C., 129 N.J.1, 25 (1992)). In balancing harms, the court must be mindful of New Jersey's strong public policy interest in permanency. K.H.O., supra, 161 N.J. at 357 ("In all our guardianship and adoption cases, the child's need for permanency and stability emerges as a central factor.").

There was sufficient credible evidence in the record to support the court's conclusion that terminating parental rights would not do more harm than good as to both K.A.H. and the twins. The court credited Dr. Jeffrey, whose findings supported the court's prong four analysis. K.A.H. had formed an insecure attachment to his mother, but a much more secure attachment to his foster parent. He had been in foster care continuously since January 2010. SeeN.J.S.A.30:4C-15(d) (stating Division required to seek termination of parental rights if the parent is unable for a year after placement in foster care to ameliorate the circumstances leading to child's removal). Dr. Jeffrey opined that the foster parent would be able to ameliorate K.A.H.'s sense of loss from severance of his relationship with S.H.

With respect to the twins, Dr. Jeffrey testified that they would suffer no harm from termination of their relationship with C.A., who was a stranger to them, or S.H., who was seen as a visitor. We recognize the record did not include evidence of an alternative bond between the twins and their foster parents. However, "[t]he question ultimately is not whether a biological mother or father is a worthy parent, but whether a child's interest will best be served by completely terminating the child's relationship with that parent." E.P., supra, 196 N.J. at 108.

In E.P., the Court found it was error to sever a thirteen-year-old girl's "certain and intense bond to her mother," who struggled with drug addiction, marked by multiple relapses, homelessness, and unemployment, and showed little prospect of ever being able to serve as a fit parent, where the girl had but a "slender prospect of adoption" and unabated behavioral problems including suicidal behaviors. Id. at 110. In that case, the "unlikely possibility of permanency in the future" did not outweigh the "strong and supportive relationship with a natural parent." Id. at 111.

In this case, the twins had no comparable relationship with S.H. or C.A. Nor was there any evidence that termination would render them legal orphans. Rather, termination would free them for adoption either by M.A., or by K.A.H.'s foster parent, who expressed an interest in adopting them.

In sum, there was ample credible evidence in the record to support Judge Melendez's order terminating the parental rights of S.H. and C.A.

A

ffirmed.

1 Pursuant to L. 2012, c. 16, effective June 29, 2012, the Division of Youth and Family Services is now known as the Division of Child Protection and Permanency. We will refer to the agency as the "Division."

2 In July 2010, S.H. allegedly stated she would purposefully "fail the IQ test in order to receive SSI." However, the clinical psychologist who administered the test noted S.H. "g[a]ve her best efforts on the tasks asked of her[.]"

3 S.H. identified T.B. and R.C. as potential fathers, but in April 2010 told a Division worker "those names were made up and they are not the father." She also claimed O.O. was K.A.H.'s father, but a paternity test excluded him in April 2011. In the midst of trial, S.H. proposed a fifth potential father, whose parentage was unconfirmed.

4 We recognize that incarceration is not "so inimical to [the parental] relationship" as to require termination of parental rights. L.A.S., supra, 134 N.J. at 137. A court must consider the incarceration as part of a "broad inquiry" as to the factors relevant to terminating parental rights. Id. at 143. Consequently, a court may consider the length of incarceration, the nature of the parent-child relationship preceding incarceration, the incarcerated parent's efforts while in custody to maintain or develop a parental relationship, the child's age and need for permanence, and the parent's readiness to parent upon release. However, consideration of these factors do not compel a result different from that reached by the trial court.