NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. T.R.R.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2215-12T4

NEW JERSEY DIVISION OF

CHILD PROTECTION AND

PERMANENCY,1

Plaintiff-Respondent,

v.

T.R.R.,

Defendant-Appellant.

________________________________

IN THE MATTER OF GUARDIANSHIP

OF J.I.D., a minor.

_________________________________

December 6, 2013

 

Submitted November 4, 2013 Decided

 

Before Judges Ashrafi and St. John.

 

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Mercer

County, Docket No. FG-11-45-10.

 

Joseph E. Krakora, Public Defender, attorney

for appellant (Kevin G. Byrnes, Designated

Counsel, on the brief).

 

 

John J. Hoffman, Acting Attorney General,

attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel and on the brief; Julie B. Christensen, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law

Guardian, attorney for minor (Charles Ouslander, Designated Counsel, on the brief).

PER CURIAM

Defendant-mother, T.R.R., appeals from a judgment terminating her parental rights to her youngest child. The Division of Child Protection and Permanency (the Division) removed the child at birth because of defendant's mental illness and inability to provide an adequate home for her children. Defendant has pursued mental health treatment, but the circumstances that prompted removal of the child have not improved. The child has lived with the same foster mother since birth and views her as his only parent. After a guardianship trial, the Family Part terminated defendant's parental rights so that the child can be adopted by his foster mother.

Defendant argues that the Division's proofs did not meet the statutory criteria for termination of her parental rights. She also argues that her appointed trial attorney did not represent her effectively. We reject these arguments and affirm the judgment.

I.

Defendant and A.D. have four children together. The three older children, born from 1990 to 2000, all live with A.D. and are not part of this appeal. The child who is the subject of this appeal, J.I.D., was born in March 2009. A.D.'s parental rights are not at issue because he completed an identified surrender of the child so that he can be adopted.

The Division has been involved with defendant-mother since she was a child. In 2006, the Division substantiated that defendant neglected her two older sons. Defendant had brought her six-year-old son to the hospital after he had been vomiting for two days. The medical staff found that the child had very high levels of lead, but defendant left the hospital before a doctor could see the child. Staff described defendant as speaking "sporadically" and "not really making sense." The Division investigated and found defendant's home to be in deplorable condition and a safety and health hazard. During the home inspection, defendant acted aggressively toward the Division's caseworkers, requiring police intervention. The Family Part subsequently approved the Division's plan that the older children live with their father, where they continued to reside to the time of the guardianship trial in this case.

In October 2006, defendant demanded the return of her children, and she attempted to run a car off the road in which her two sons and their father were riding. Defendant also went to the children's school and was disruptive.

In November 2008, the Division received a new referral stating that defendant, who was now pregnant, was again living with the children and their father. According to the father, defendant tried to move in a few days earlier, but he asked her to leave because she did not "look right." Defendant later tried to force her way into the home, and the father called the police.

In March 2009, the Division removed the youngest child from defendant's care at the time of his birth because defendant was diagnosed with schizophrenia and she would be involuntarily committed after her discharge from the hospital. At defendant's request, the Division placed the child with defendant's friend, Y.S. The Family Part approved the child's removal because of defendant's hospitalization, her mental health difficulties, and her lack of a plan for the child's care.

A Division caseworker spoke with defendant later in March 2009. Defendant said she was living at a shelter in Philadelphia and asked to visit with the child. The Division scheduled and conducted supervised visitations.

On April 14, 2009, defendant appeared in court for a Child Placement Review Board meeting, but she was removed by the police after she began cursing and yelling. The police arrested her for an outstanding warrant and incarcerated her. While incarcerated, defendant became involved in several physical altercations. She remained incarcerated until June 30, 2009, when she was transferred to a mental health treatment facility. Defendant continued to be combative after being transferred. As a result of these events, the Division withdrew a referral for visitations with the child.

At a fact finding hearing in the Family Part on July 10, 2009, the court found defendant needed mental health services and assistance to obtain housing. The Division provided defendant with bus passes and reminded her she had a psychological evaluation on August 24, 2009, which had been re-scheduled after she missed a previous appointment. Defendant missed the August 24, 2009 evaluation, and she also missed her next two evaluation appointments.

In the meantime, defendant visited with the child in his foster home, but only sporadically. On July 30, 2009, defendant cancelled a visit scheduled to occur the next day because she "had things to do." Defendant then showed up the next day and demanded to visit with her child. The foster mother allowed defendant to visit, but defendant later refused to leave the house. She declared she could visit with her child anytime she wanted. As a result, the foster mother refused to supervise any more visits. The Division told defendant it would supervise future visits at a different location and ordered defendant not to contact the foster mother. Defendant did not cooperate with the Division's effort to set up visitation with the child.

Defendant continued to contact the foster mother and her family in a harassing manner. The Division then made a referral for visitation through another service agency. The foster mother later complained that the child would return home irritable after these visitations, perhaps caused by defendant's failure to change the child's diaper regularly and properly.

Meanwhile, on August 18, 2009, defendant began living at a shelter in Trenton to which the Division had referred her, but she was "very disruptive" at the shelter. She would leave after curfew, she would hear voices, and she would accuse others of taking things she simply had misplaced.

In September 2009, defendant began to participate in a recovery program. She saw a psychiatrist and was compliant with her medications. She attended most of the therapy sessions.

In November 2009 the Division provided to defendant a visitation schedule, bus passes, and notification of her upcoming psychological evaluation. On November 20, 2009, defendant attended the psychological evaluation with Dr. Alan J. Lee. She told Dr. Lee she had been living at a shelter in Trenton since July 2009. She acknowledged her recent incarcerations and said she was on probation for engaging in domestic violence towards the father. She said she was on welfare, but she did not know why she was unemployed. Defendant told Dr. Lee she was currently prescribed Abilify but had previously been prescribed a range of other medications. She reported being compliant with her current medication. However, she did not know of any mental health diagnosis. She also did not know why she had been previously hospitalized or when she had attended group therapy.

Defendant told the doctor inaccurately that she visited with the child weekly since his birth and never missed a visit. She also allegedly visited with her other children daily and without supervision. Although her goal was to reunite with her youngest child, she did not have a plan for obtaining housing.

Dr. Lee described defendant as being "somewhat disheveled" and "exud[ing] a strong odor." He also found defendant to drift off periodically, which defendant denied. Defendant also denied problems with her mood or behavior despite being aggressive and paranoid. Dr. Lee concluded that defendant's "prognosis for significant and lasting change" was "poor," in part because she denied there were any problems.

Dr. Lee also reported "significant and compelling concerns against [defendant] functioning as an independent caregiver to a minor child." Dr. Lee recommended psychiatric monitoring, a neurological evaluation, and a partial hospitalization or day program to stabilize her mental health. The doctor also recommended the Division refer defendant for anger management and parenting classes, along with vocation, housing, and disability services.

In early December 2009, the foster mother told the Division defendant had missed the two previous visits. She had not heard from defendant and did not know where she was. Defendant then contacted the Division on December 7, 2009 and said she was living with the father.

On March 11, 2010, Arnold Witte, M.D., performed a neurological evaluation of defendant, but found the examination unremarkable.

Also in March 2010, the court approved the Division's plan to terminate defendant's parental rights and have the foster mother adopt the child. A Division adoption worker then visited defendant at her treatment program in May 2010. Defendant was dirty and unkempt and exuded a strong odor.

In July 2010, the Division's caseworker learned that defendant was not attending her treatment program regularly. Defendant told the worker she did not need any services and that she was receiving therapy and had completed parenting classes. The Division then sent the August and September 2010 visitation schedules to the address defendant provided. Defendant missed many of the scheduled visits.

Defendant did attend a substance abuse evaluation during this time, which determined that defendant did not need any related treatment.

On August 20, 2010, the caseworker arrived at defendant's day program to transport her to a visit with the child. The caseworker did not go inside because the child was sleeping and she did not want to leave him alone in the car. The caseworker sent a security guard to find defendant. Defendant came outside and screamed at the caseworker for not coming in to get her. The caseworker explained the situation, but defendant did not understand why leaving a child in a hot car was a problem and continued shouting despite the sleeping child.

After the visit took place, the caseworker reminded defendant of her upcoming bonding and psychological evaluation with Dr. Alan S. Gordon. Defendant initially insisted she did not need to attend these evaluations because her lawyer had scheduled an evaluation. When the worker explained defendant needed to attend, defendant insisted she had a doctor's appointment that day and said "I'm not sharing shit with you."

On August 30, 2010, the foster mother reported that defendant showed up at her church and caused a disruption. During the service, defendant went to the front of the church and yelled that she was mentally ill but had been taking her medication. She continued to yell that she was the child's biological mother and would get her child back soon. The pastor had to stop the service and escort her out. When questioned about it at a later time, defendant minimized the incident, saying she had "caught the holy spirit."

On August 31, 2010, defendant attended her scheduled psychological and bonding evaluation with Dr. Gordon, but she refused to complete some tests because she said she had chest pain. Dr. Gordon observed that defendant "had an excuse for all her problems." One test Dr. Gordon conducted showed defendant had a heightened likelihood for abuse. Dr. Gordon concluded defendant did not understand what it meant to be a parent, had "bizarre" thought processes, and was unlikely to make significant changes. He also found defendant would not be able to care for a child because she could not provide stability. He recommended termination of defendant's parental rights.

Dr. Gordon could not conduct a bonding evaluation because the child was asleep. He rescheduled the bonding evaluation for September 5. Defendant did not attend. The doctor then rescheduled the bonding evaluation, but defendant again failed to attend although a caseworker went to pick her up.

On September 17, 2010, defendant appeared in court for a case management hearing. The court reminded her she had a bonding evaluation scheduled for September 30, 2010, and told her if she missed the evaluation because of her heart condition, she would need a doctor's note. Defendant did not attend the September 30th evaluation. On October 1, 2010, defendant again appeared in court, but she did not bring a doctor's note. The court granted the Division's application to hold defendant in default and to proceed to a proof hearing.

Dr. Gordon conducted a bonding evaluation with the foster mother on September 22, 2010. The foster mother said she was committed to adopting the child. The child responded to her directions and played with her. They were affectionate, and the child called her "Ma Ma." Dr. Gordon found the two had a very secure bond and the foster mother was his psychological parent. Dr. Gordon concluded that separating them would harm the child.

On November 20, 2010, psychiatric nurse practitioner Aaron Specter of Catholic Charities told the Division that defendant was compliant with her medication. Specter also said he had been treating defendant for "Schizo-Affective Disorder: Bipolar Type," and he believed defendant's condition had stabilized. He found her to be capable of managing her own finances, basic life functions, and "the general care of a child."

On December 8, 2010, Dr. Gordon was finally able to perform a bonding evaluation with defendant. The child acted aggressively. He knocked over toys and tried to break the leg off a table. Hampered by her obesity, defendant was unable to control him. Based on the bonding evaluation and psychological test results, Dr. Gordon determined that defendant and the child had a very insecure bond and that defendant would be unable to meet the child's psychiatric, emotional, and physical needs.

Following the proof hearing on December 10, 2010, the court entered judgment terminating defendant's parental rights. Defendant appealed. In June 2012, we reversed entry of a default judgment and remanded for a guardianship trial. N.J. Div. of Youth & Family Servs. v. T.R.R., No. A-4612-10 (App. Div. June 25, 2012).

On remand, the Family Part held a compliance review hearing on July 9, 2012. Defendant did not attend because she was hospitalized. In a written order, the court commanded defendant to attend every subsequent hearing and told her she would be detained if she failed to attend evaluations.

In August 2012, defendant reported that she was living in a room at the YMCA and requested housing assistance from the Division. She also told the Division she had an upcoming Section 8 housing meeting and asked someone to go with her. A Division caseworker attended the meeting, at which it was determined that defendant was being provided housing assistance and that larger housing would be provided in the event that defendant regained custody of one or more of her children.

Dr. Gordon performed a second bonding evaluation with the foster mother on September 1, 2012, when the child was three years old. Again, the foster mother and the child played well together and the child responded to her instructions. The child cleaned up when asked and did not act aggressively. Dr. Gordon repeated his conclusion that the child and foster mother had a strong bond, and he was of the opinion that removing the child from the foster mother would be "disastrous."

On October 1, 2012, Dr. Gordon also performed a second bonding evaluation with defendant. He found defendant to be defensive and to have an excuse for everything. Defendant provided incorrect information to Dr. Gordon that she had completed her treatment program, and she denied currently taking any medication for her psychiatric condition. Defendant said she wanted to have her child live with her and her family in Paterson, although she later said her family does not get along. She believed the child would not experience any ill-effects from being separated from his foster mother.

Additional psychological tests showed defendant did not understand that her behavior may be objectionable or irrational. Defendant also did not understand children's developmental needs and abilities. She lacked insight into herself and others, and did not appear truthful in her responses. She denied all problems. Another test showed again that defendant had an elevated likelihood for abuse.

During the bonding evaluation, the child never initiated any physical contact with defendant. He acted independently and kept his distance from her. Although defendant referred to herself as "mommy," the child did not use that word. She asked the child for a kiss, but he would only hug her. The child left without saying goodbye to defendant, although he waved slightly.

Dr. Gordon concluded the two had an insecure bond. The child did not reciprocate defendant's love. He was much more affectionate and responsive to his foster mother. According to Dr. Gordon, terminating defendant's parental rights would have "no negative results." If there were any negative effects, the foster mother could address them. Dr. Gordon also determined defendant "would not be able to parent this child now or in the future" because she would continue to struggle with her major physical problems, psychiatric difficulties, and homelessness.

The guardianship trial began on December 4, 2012. Defendant indicated she had witnesses whose testimony she wanted to present. The court told her to consult with her attorney. The Division presented the testimony of Dr. Gordon, who was qualified as an expert psychologist, and two Division caseworkers. Dr. Gordon repeated the information and conclusions contained in his reports. The caseworkers testified about defendant's interaction with the Division.

Defendant testified and denied that the Division had provided any services to her. She claimed she had engaged in services on her own. Defendant characterized her relationship with the child as loving and close, and claimed he calls her "mom." She acknowledged that the Division arranged visitation, but also claimed she saw the child "without the Division knowing." The foster mother, however, had reported that defendant showed up at her house periodically, but mainly to ask for money rather than to visit with the child.

Defendant told the court she had two witnesses that her attorney refused to call to the witness stand. The court inquired into the nature of their testimony and its potential relevance to the case. Defendant was unable to explain how either witness would affect the case other than to say that they would speak about their contacts with defendant in the past. The court then asked about defendant's desire to call someone from the Board of Social Services, but defendant could not explain what useful testimony that witness would have. The trial concluded without these witnesses testifying.

On December 14, 2012, the court issued a written decision and a judgment. The court found the Division's witnesses were credible and defendant was not credible. It placed substantial weight on the testimony and opinions of Dr. Gordon. The court analyzed the evidence in light of the applicable law and concluded that defendant's parental rights to the child would be terminated.

II.

The trial court's decision to terminate parental rights will 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); accord In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). "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." E.P., supra, 196 N.J. at 104 (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007)). The trial court had the "opportunity to make first-hand credibility judgments about the witnesses" and had a "feel of the case" that cannot be duplicated by a review of the record. Ibid. (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007) (internal quotation marks omitted)). Similarly, an appellate court defers to the trial judge's assessment of expert evaluations. In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999).

Defendant argues the evidence was insufficient to meet the requirements of N.J.S.A. 30:4C-15.1(a). The statute provides that parental rights may be terminated if the following standards are met:

(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.

 

The Division bears the burden of proving each of the statutory elements by clear and convincing evidence. G.L., supra, 191 N.J. at 606. The four prongs of the statute are not "discrete and separate," but "relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999).

With respect to the first prong, the Division "must prove harm that 'threatens the child's health and will likely have continuing deleterious effects on the child.'" N.J. Dep't of Children & Families v. A.L., 213 N.J. 1, 25 (2013) (quoting K.H.O., supra, 161 N.J. at 352). The court may consider the "harms arising from the parent-child relationship over time on the child's health and development." K.H.O., supra, 161 N.J. at 348. Actual physical harm is not required. The first statutory prong "addresses the risk of future harm to the child as well as past physical and psychological harm." N.J. Div. of Youth & Family Servs. v. H.R., 431 N.J. Super. 212, 222 (App. Div. 2013). The question is whether defendant poses such a risk. See id. at 223.

A parent's untreated mental illness may pose a risk to the child, N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 450-51 (2012), as will the failure to understand or provide for a child's needs because of the parent's emotional or psychological struggles, N.J. Div. of Youth & Family Servs. v. L.J.D., 428 N.J. Super. 451, 481-82 (App. Div. 2012). Similarly, the parent's inability to provide a safe and stable home for the child is a risk of harm that the court can consider. H.R., supra, 431 N.J. Super. at 223.

Here, the trial court found defendant suffered from schizo-affective disorder, and it accepted Dr. Gordon's testimony that the illness was life-long with a poor prognosis. The court found that defendant exhibited outrageous and irrational behavior on several occasions. The court specifically cited defendant's reaction when the caseworker would not leave the child in the car on a hot day. The facts showed defendant would be unable to protect and care for her son, either emotionally or physically. Cf. L.J.D., supra, 428 N.J. Super. at 481-82 (mother who "was not able . . . to comport her behavior to focus on son's needs" posed a danger to son's welfare).

Defendant contends the court inappropriately used the case-worker's testimony that defendant behaved outrageously as if it were a psychiatric conclusion. In fact, the court relied on the caseworker's testimony as fact evidence that supported Dr. Gordon's conclusions. It accepted Dr. Gordon's opinion that defendant lacked the ability to protect and provide for the child because of her own mental disability.

The court's determination that the Division sufficiently established the first prong of the statute is supported by substantial credible evidence.

The second prong focuses on whether the parent has "cured and overcome" the harm that threatened the child, and whether the parent "is able to continue a parental relationship without recurrent harm." K.H.O., supra, 161 N.J. at 348; accord In re Guardianship of J.C., 129 N.J. 1, 10 (1992). Relevant to the second prong, the Division may seek to prove that defendant "is unable to provide a safe and stable home for the child and that the delay in securing permanency continues or adds to the child's harm." K.H.O., supra, 161 N.J. at 348-49; accord H.R., supra, 431 N.J. Super. at 224.

Here, the court determined that defendant is unable to eliminate the risk of harm to the child. As the court found, defendant was not even aware of her irrational, aggressive behavior. In challenging these findings, defendant argues her condition had stabilized and she was compliant with her medications, citing the report of psychiatric nurse practitioner Specter. Appellate courts, however, defer to the trial court's assessment of expert evaluations. D.M.H., supra, 161 N.J. at 382. The trial judge accepted Dr. Gordon's assessment, which was based on the doctor's observations and expertise as well as defendant's statement that she was no longer undergoing psychiatric treatment or taking medication.

With respect to defendant's inability or unwillingness to provide appropriate housing for her and the child, defendant asserts that adequate housing would be provided by social services agencies if she were to regain custody of her child. But substantial credible evidence supports the court's determination that defendant would be "unable to sustain safe and stable housing." Defendant lived in a single-occupancy room at the YMCA, and in the years before the guardianship trial, she lived in several different homeless shelters and was also incarcerated at times. The court could reasonably conclude that defendant could not provide safe and stable housing because she was unable to plan for the future, as evidenced by her transiency.

Defendant asserts she showed her willingness and ability to change by engaging in a multitude of programs to improve her mental health, anger management, and parenting skills. However, defendant was not a credible witness. The testimony of Dr. Gordon and the Division caseworkers contradicted defendant's assessment of her progress. Her unsubstantiated testimony was not sufficient to persuade the trial court that she had the ability or willingness to alter her behavior and to develop healthy parenting skills. The court also had the opportunity to observe defendant's behavior firsthand. In its decision, the court wrote: "Having viewed [defendant] and her plainly psychotic demeanor, no responsible person would put a child in her care." Finally, the court was aware of defendant's frequent lack of cooperation in participating in the services provided by the Division or to which she was referred.

To satisfy the third prong of the statute, the Division must make "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 must "consider[] alternatives to termination of parental rights." N.J.S.A. 30:4C-15.1(a)(3). This prong of the statute "contemplates efforts that focus on reunification of the parent with the child." K.H.O., supra, 161 N.J. at 354. However, because the Division's "best efforts may not be sufficient to salvage a parental relationship," F.M., supra, 211 N.J. at 452, the Division need not continue services indefinitely. Rather, the Division's efforts must be reasonable.

Here, the Division's initial plan was for reunification. It arranged for substance abuse, psychological, bonding, and neurological evaluations. The Division also monitored defendant's treatment services and programs, and it arranged for and supervised visitation with the child so that defendant could develop a parental relationship. Although the Division reminded defendant of visitation times and provided transportation, defendant still missed many of the visits.

Defendant argues the Division should have taken proactive steps to find housing for her and to subsidize her housing expenses. But the Division is not required to provide subsidized housing. The Division did assist defendant in attempting to find appropriate housing. When defendant was homeless, the Division referred her to shelters. She did not fare well in shelters because of her disruptive and uncooperative behavior. When she asked for further help with housing, a Division caseworker accompanied her to apply for aid. The court reasonably concluded that the Division made reasonable efforts to provide housing assistance as part of its larger duty to attempt reunification before and after the prior appeal.

Defendant also argues the Division did not facilitate reasonable visitation opportunity, especially during the pendency of the prior appeal.2 She argues the Division's efforts fell below those deemed insufficient in In re Guardianship of K.L.F., 129 N.J. 32 (1992), and New Jersey Div. of Youth and Family Services v. I.S., 202 N.J. 145 (2010). Although the Division did not accommodate continuing visitation with the child after the prior default judgment was entered, it arranged and assisted with visitation before and after the prior appeal.

In the cases cited by defendant, the Division failed to make reasonable efforts to facilitate visitation and thus caused the forming of a stronger bond between the child and a foster parent. See I.S., supra, 202 N.J. at 181-82; K.L.F., supra, 129 N.J. at 45-46. Here, defendant had extensive visitation rights, and bonding evaluations were conducted before the prior judgment and suspension of visitation during the appeal. The evaluations showed an insecure bond between defendant and the child, and that condition was not caused by the Division. It was caused by defendant's mental illness, her passive behavior at the visitations, and her frequently missed visits. The cases cited by defendant do not show error by the trial court.

The trial court also considered alternatives to termination of defendant's parental rights. Initially, the Division agreed to place the child with a foster mother selected by defendant. The foster mother has provided good care of the child and wants to adopt him. The biological father surrendered his parental rights and is not an option. No one else has asked or is qualified for placement or a kinship legal guardianship. As the court stated, the child "is far too young to consider allowing him to age out in foster care."

The record demonstrates that the Division satisfied its obligation to provide services and that no alternatives were available for the child.

The fourth prong of the statute, which requires that termination will not do more harm than good, is intended as a final check against "an inappropriate or premature termination of parental rights." F.M., supra, 211 N.J. at 453; accord G.L., supra, 191 N.J. at 609. To determine comparative harms, the court "necessarily requires expert inquiry specifically directed to the strength of each relationship." K.H.O., supra, 161 N.J. at 355. This prong is concerned primarily with "the child's need for a permanent and stable home, along with a defined parent-child relationship." H.R., supra, 431 N.J. Super. at 226. Thus, courts should be sensitive to whether refusing termination would "expose the [child] to the dangers and instability" of the parental bond, or "disrupt any permanency" that the child may have established elsewhere. M.M., supra, 189 N.J. at 287.

Here, the Division placed the child with the foster mother soon after he was born. The court accepted Dr. Gordon's testimony that termination of defendant's parental rights would not harm the child but that termination of the child's bond with his foster mother would have disastrous consequences.

Citing case law,3 defendant argues the court is not entitled to rely on the strength of the bond between the child and his foster parent. The court may rely on that bond, however, if the biological "parent's actions or inactions substantially contributed to the forming of that bond, and . . . the harm caused to the child from severing that bond rests at the feet of the parent." D.M., supra, 414 N.J. Super. at 80.

The trial court did not err in concluding that termination of defendant's parental rights would not do more harm than good.

III.

Defendant argues that her due process rights were violated because she did not receive effective assistance of counsel at the guardianship trial. See N.J.S.A. 30:4C-15.4(a); N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 305-07 (2007).

Counsel is deemed ineffective when his or her performance is both objectively deficient and prejudicial to the defense. B.R., supra, 192 N.J. at 305-07 (adopting standard of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), applicable to criminal cases). Objectively deficient performance is such conduct of the proceedings that falls outside the broad range of professionally acceptable performance, and prejudice to the defense is shown by a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 697. Courts recognized a strong presumption that counsel's performance fell within the range of effective representation. State v. Hess, 207 N.J. 123, 147 (2011).

Here, defendant alleged her counsel was deficient because he refused to call several witnesses she wanted to be heard on her behalf. The court determined that defense counsel discussed the matter with defendant, spoke to some of the witnesses, and made a strategic decision not to call these witnesses. The court also concluded the witnesses' testimony would have been either irrelevant or redundant.

Defendant argues the trial court should have heard from the witnesses themselves before deciding they would not be helpful to defendant's case. She argues that an evidentiary hearing is required when the "facts . . . lie outside the trial record." (quoting State v. Preciose, 129 N.J. 451, 462 (1992)). However, an evidentiary hearing is required only when the facts, viewed in the light most favorable to defendant, show a prima facie claim of ineffective assistance of counsel. Id. at 462-63; cf. B.R., supra, 192 N.J. at 311 ("In many cases, the issue will be resolvable on the appeal record alone.").

Defendant has not shown a prima facie case of ineffective assistance of counsel. She was unable to explain at trial how the testimony of her proposed witnesses would affect the case, despite questioning by the court. There is no evidence showing defense counsel's performance was objectively deficient or prejudicial to the defense. Accordingly, the court was not required to hold a hearing to question the witnesses.

Affirmed.

 

1 L. 2012, c. 16, eff. June 29, 2012, reorganized the Department of Children and Families and renamed the Division of Youth and Family Services (DYFS) as the Division of Child Protection and Permanency.

2 During the prior appeal, defendant did not receive any services from the Division because the child was legally freed for adoption.

3 In re Adoption of Children by G.P.B., Jr., 161 N.J. 396, 404 (1999); N.J. Div. of Youth & Family Servs. v. D.M., 414 N.J. Super. 56, 80 (App. Div. 2010); N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 118 (App. Div.), certif. denied, 180 N.J. 456 (2004).