NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. M.A.W., Sr.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. 0A-6298-11T1

A-6301-11T1

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,1

Plaintiff-Respondent,

v.

M.A.W., Sr., and K.M.J.,

Defendants-Appellants.

__________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF D.M.W., S.A.W., J.L.W.,

A.L.W., and M.A.W., Jr.,

Minors.

__________________________________

February 4, 2014

 

Submitted December 11, 2013 Decided

 

Before Judges Sapp-Peterson, Lihotz and Hoffman.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FG-14-81-11.

 

Joseph E. Krakora, Public Defender, attorney for appellant M.A.W., Sr. (Mary Potter, Designated Counsel, on the brief).

 

Joseph E. Krakora, Public Defender, attorney for appellant K.M.J. (Jennifer M. Kurtz, Designated Counsel, on the brief).

 

John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Elizabeth Sherwood, Deputy Attorney General, on the brief).

 

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Todd Wilson, Designated Counsel, on the brief).

PER CURIAM

These are consolidated appeals by K.M.J. (Kim)2, the mother of five children and M.A.W. (Martin) the father of Kim's three youngest children. Kim and Martin are the biological parents of Jane, born November 2, 2006; Amy, born March 16, 2008; and Junior, born August 21, 2011. Kim and T.M.W.3 (Tom) are the biological parents of David, born February 2, 2000, and Susan, born December 4, 2000. Kim and Martin appeal from the Family Part order terminating their parental rights to their children and granting guardianship to the Division of Child Protection and Permanency (Division). They argue the Division failed to satisfy the statutory prerequisites for terminating parental rights and amended its initial guardianship complaint to add their youngest child to the action too soon after that child's birth. They additionally argue the court failed to notify Tom of his right to counsel before he voluntarily surrendered his parental rights. As it did before the trial court, the Law Guardian supports the Division's position seeking termination.

Based on our review of the record and applicable law, we are satisfied the evidence in favor of the guardianship petition overwhelmingly supports the termination of Kim's and Martin's parental rights. See, e.g., N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (holding a reviewing court should uphold the factual findings respecting the termination of parental rights if they are supported by substantial credible evidence in the record as a whole). Accordingly, we affirm.

The following facts and evidence were adduced during the six-day trial before Judge Mary Gibbons Whipple that took place on non-consecutive days in April and May 2012. The Division presented the testimony of its caseworkers assigned to the family, Sherry Grobarz and Amanda Worley; J.A.J. (Jennifer), Kim's sister; and its expert, Elizabeth Smith, a psychologist. The Law Guardian presented Frank Dyer, a psychologist, as its expert and Jennifer Rosencrantz, M.A., L.P.C., David's therapist. Both defendants testified.

The Division first became involved with the family in 2000 when it received a referral following Susan's birth that the baby had tested positive for marijuana. Kim acknowledged she used marijuana two weeks before Susan's birth. Kim and Tom separated early in 2000, while Kim was pregnant with Susan. At the time of Susan's birth, Kim and David were living with her parents. After a number of visits with Kim, the Division closed its file. It was not until 2004 that the Division became involved with the family again. At that time, it received a referral that Kim's boyfriend had hung David upside down on the bathroom door as punishment. By the time the Division conducted its investigation the boyfriend had moved. Although Susan and David confirmed the incident, Kim denied the allegation. Kim, however, agreed to a case plan allowing her parents to continue physical custody of Susan and David, who had been living with them since the incident with the boyfriend.

Kim met Martin in 2005 and they commenced living together. In October 2005, the Division received a referral from David's school. The school stated that during a telephone conversation with Kim, in which they reminded her of a missed appointment, they overheard Kim's boyfriend in the background threatening to kill her if she left him. When police arrived in response to the referral, an unidentified man fled out the back door and police saw Kim walking out of the woods. She discounted the incident explaining to the Division that she had thrown a vase and the argument was not about the school.

Beginning in March 2007 and continuing until the children were removed on May 11, 2010, the Division received several referrals. The referrals included reports of inappropriate sexual behavior on the part of Martin with Susan, Martin's excessive drinking, domestic violence, and assaultive behavior on the part of David at school. The Division determined that the allegations were unfounded, but opened a case file for services. Both Kim and Martin agreed that he would not have unsupervised contact with David or Susan until the family underwent psychological evaluations through the Family Enrichment Program.

Notwithstanding the agreement reached with Kim and Martin, the Division entered additional safety plans during this time period after responding to additional referrals alleging domestic violence. Further, the police responded to an altercation between Martin and an intoxicated male in the home; the children were present, but were upstairs during the incident. David ran to a neighbor's house and called police. Police responded, but no arrests were made.

On October 22, 2009, the court entered an order granting the Division's application for care and supervision of, by that point, the four children, with Kim remaining the parent with physical custody. The court order restrained Martin from the home. This same provision was included in five subsequent orders issued through May 4, 2010. The last two of such orders, dated April 22 and May 4, 2010, stated that all of the children would be removed from Kim's custody if she allowed Martin back into the home.

Also during this time period, Martin completed an alcohol abuse evaluation, attended a substance abuse program, and he, Kim, and Susan underwent psychological evaluations through the Center for Evaluation and Counseling. In March 2010, the Division arranged for in-home individual therapy for Kim, Susan, and David.

Notwithstanding numerous court orders prohibiting Martin's presence in the home and Kim's home and safety plan agreements assuring that Kim would comply with this condition, on March 16, 2010, police responded to another domestic dispute at Kim's home and found Martin hiding in the closet. Police made no arrests and Kim did not seek a temporary restraining order, although she informed police that Martin was not supposed to be in the home. Kim signed another safety plan with the Division agreeing that Martin would not be allowed in the home and that she would immediately contact police.

On May 11, 2010, the Division executed an emergency removal of the children from Kim's custody after substantiating that Kim and Martin violated the court order prohibiting his presence in the home. Police, responded to a fire at the home, which they learned had been set by David who had been burning leaves. They found Martin hiding under Kim's bed. The children were placed with their maternal grandparents, with whom they continued to reside.

Junior was born on August 21, 2011. At the time, Kim and Martin were living together and expected to maintain physical custody of Junior. However, the Division filed an abuse and neglect action seeking custody, care and supervision of Junior. The court granted the application, stating:

Continuation of residence in the home would be contrary to the welfare of the child because of allegations that, due to the pending guardianship litigation and the Division's assessment that the parents are unable or unwilling to provide a safe and stable environment for [the other four children], placing a newborn with the parents would expose the child to an unacceptable and substantial risk of harm based on the significant and well-documented history of abuse and/or neglect of the children.

 

During their testimony, both case workers acknowledged the Division's concerns about the children's placement with their grandparents, but expressed that those concerns had been allayed because the grandparents had made great progress in caring for the children and wanted to adopt them. Kim's sister testified that she enjoyed a close relationship with the children and was committed to supporting her parents in raising the children.

Dr. Smith testified that she performed psychological and bonding evaluations of the family in 2011 and early 2012. Based upon those evaluations, she found that Kim had strengths as a parent and loved her children but that her biggest impediment to reunification was that she appeared unable to acknowledge the extent and significance of the domestic violence that permeated her relationship with Martin and the impact the domestic violence had upon the children. Dr. Smith confirmed her assessment through testing she administered to Kim. The test results revealed that Kim "presented as an extremely passive and dependent individual," who minimized and dismissed Martin's behavior as well as the impact of his behavior upon her children. Dr. Smith concluded that Kim would not be able or was unwilling to protect herself and her children from Martin or some other abusive partner, and, therefore, living with Kim should not be considered as a permanency plan for the children. She agreed that the children's placement with the grandparents was not perfect, but believed the alternatives would be worse.

Dr. Dyer conducted psychological evaluations of the grandparents and David, and also conducted a bonding assessment of the grandparents with the four older children. Junior was not involved in these evaluations. Based upon his evaluations and test results, Dr. Dyer recommended that the four older children remain with their grandparents. He concluded that the grandmother appeared "to be very heavily emotionally invested in the welfare of all four grandchildren," and that she was a loving and committed caregiver for them. He found no indication "that her age in any way limits her capacity to care" for the children, despite reports from the family's therapist, Rosencrantz, that the grandmother was "somewhat overwhelmed by the behavior problem of the two older children," and that she "has been unable to intervene successfully to prevent the older children from picking on [Jane]."4

Nevertheless, Dr. Dyer found no basis for depriving the grandmother of the opportunity to continue to care for the children. In his report, he indicated the grandmother "may not have realized at the outset what the full extent of the children's problems [were], she does not appear to be deterred from caring for them now that she has been exposed to the full impact of their psychopathology." Furthermore, he opined that "[w]hatever deficiencies may exist in her parenting style . . . are very likely to be resolved through training, counseling, and psycho-education."

Similarly, Dr. Dyer's evaluation revealed the grandfather was invested in the children and had actively sought to be their caretaker. However, he found the grandfather "display[ed] a mild visual-motor integration problem and a significant impairment in short-term visual recall," reading only at a sixth grade level, and displayed "a lack of sensitivity with respect to his remarks toward the children," by jokingly directing insults toward them. Also, Dr. Dyer opined that although it was "clear" the grandfather "loves all four of the children," David was his obvious favorite. He concluded, however, the grandfather should not be disqualified from being the children's caretaker. He explained that although the grandfather's "cognitive limitations do present something of a problem with respect to his profiting sufficiently from counseling or parenting training or coaching," the grandfather "is so invested in all of these children and has actively sought to be their caretaker." Additionally, he opined the children's ongoing relationship with their grandfather "makes him an invaluable resource for them."

As part of his bonding evaluation, Dr. Dyer assessed the interaction between the four older children and the grandparents. He observed that the children were respectful towards their grandparents, emotionally responsive to them, and appeared to be relaxed, secure and happy while interacting with them. In his opinion, there was every indication that the children were in an environment where they were having their needs met by caretakers with whom they had formed a profound emotional tie.

Focusing upon David, Dr. Dyer specifically noted that David was reading below his grade level, and had "a significant visual-motor integration problem," often seen in children with Attention Deficit Hyperactivity Disorder. He found that David had "a very high anxiety level, and is emotionally volatile," and displayed "rather severe problems" despite taking medication prescribed by his therapist to address his problems. He opined that David would "clearly be a very challenging child to care for on a permanent basis, and these challenges are going to increase exponentially as he enters adolescence." Nevertheless, he recommended that David remain with his grandparents, "where he is receiving appropriate structure nurturance, guidance, and positive role modeling." Dr. Dyer explained that removing David from the care of his grandparents and placing him with any other caretaker was highly likely to result in David experiencing "a severe regression in his emotional and behavioral functioning."

Dr. Dyer testified that he had concerns for Susan, whose problems, in his opinion, appeared "to be more internalized." He characterized her as a "parentified child," meaning that she continued to look after her younger sisters even at the grandparents' home. Also, although she reported to him during the evaluation that David often attacked her, she "seemed to be protective" of him and "to be resigned to his abusive behavior toward her." He did not find that Susan demonstrated a positive emotional connection with Kim and responded with indifference when he asked her how she felt about returning to Kim's care. Thus, he opined that exposing Susan to another disruption would have destructive effects on her, and would very likely undo most of the progress that she had made since her removal.

Dr. Dyer further concluded that Jane appeared to have formed a genuine attachment to her grandparents. The grandparents told him that since her placement, Jane had stopped "bedwetting and nightly masturbation," and "stand[ing] still as if in a daze." He explained that Jane "experiences stability, security, structure and nurturance" in her placement with the grandparents, and he noted that they were committed to obtaining therapeutic services for her. Thus, he opined that Jane "should not be subjected to the loss of her attachment figures," and that if she were to be removed from her grandparents' care, "it is very highly likely that the excellent progress that she has made, both in terms of her adjustment to the home and her work with her therapist, would be undone."

Finally, Dr. Dyer opined that, even though she did "not seem to have been as affected by experiences in the parental home as were her older siblings," Amy had "very clearly formed a deep attachment to her grandparents." He opined that there was "a high likelihood" that the grandparents were Amy's "psychological parents," and that there was "a very high likelihood that she would be harmed psychologically as a result of being disrupted [or severed] from this placement" with her grandparents.

Thus, "to a reasonable degree of psychological certainty," Dr. Dyer concluded that the best interests of David, Susan, Jane, and Amy would be served by achieving permanency. He opined that this permanency would best be achieved through adoption by the children's grandparents.

In January 2012, Dr. Dyer completed a psychological evaluation of Kim and Martin. He also conducted bonding evaluations with Kim and her five children and with Martin and his three children. In his report, he stated that during Kim's interview, she presented as "childish, dependent, passive, and unassertive." Kim told him that her parents did not like Martin, and that she has not spoken to either of them or her sister since a few weeks after the children's removal in 2011. She relayed that her mother "once encountered [Martin] at [her] new apartment," and "'made a scene about it.'" She accused her sister of "'start[ing] a little bit of problems and sa[ying] [Martin] molested [Susan].'"

Kim also told Dr. Dyer that her children were removed because Martin got "physical" in front of them, and because David started a fire. She believed that she was being persecuted and that her interests as to her children were being undermined by others. Nonetheless, she admitted to him that Martin was "explosive" when he drank, and "that the usual pattern was that [Martin] would drink and that she would have physical fights with [him] in front of [David]." Kim said Martin had not been living with her since the last incident, which occurred just before Christmas in 2011, when he returned home intoxicated and began to behave in a menacing manner. She acknowledged, however, that he still came to her house to get picked up for visits with the children.

During Martin's interview, Dr. Dyer observed that he "appeared to be choosing his answers very carefully." At times, Martin provided answers to questions that contained information that differed from that which had been provided by Kim. For example, he failed to voluntarily disclose that he had been arrested in December 2011, even though he was questioned about his arrest history. Martin also complained that the Division never acknowledged any progress he made, and that he drinks "'a beer or two' if he feels too much pressure from [the Division]."

Martin told Dr. Dyer he intended to raise the children with Kim and that he planned to get a job when he became free of his obligation to participate in the Division's services. He recounted that he had "cared for all five of the children" when Kim "was in jail," and that "the school commended him for caring for the children for a month on his own." Dr. Dyer found Martin to be "a glib, personable individual who was firmly entrenched in a position of crude denial with respect to any and all problems involving [the Division] and the children."

Dr. Dyer additionally observed the interaction between Kim and her children, and Martin and his children. Based on those observations and his prior assessments, he concluded that Kim "was firmly entrenched in an attitude of minimization with regard to the domestic violence problems and physical abuse of her children that characterized her relationship with [Martin]." He pointed to the documented incidents in which she had allowed Martin to enter her home despite court orders restraining him from the home. He additionally noted the times when Kim reunited with Martin romantically after incidents in which he had inflicted physical injury or verbal abuse upon her.

Dr. Dyer further expressed concern that Kim had a "pattern" of forming passive-dependent relationships, and that her failure to make appreciable progress in gaining insight into this pattern would place "any child in her care" at "risk of harm." He opined that she "display[ed] a remarkable capacity for denial and minimization of problems," and that she "fails to appreciate the impact of the chaotic conditions in her home . . . on all of the older children." Thus, he expressed that Kim's minimization and denial of problems prevented her from profiting to a meaningful extent from counseling and therapy, and that she would not be an appropriate caregiver for her children now nor in the foreseeable future.

Dr. Dyer also opined that Martin would not be an appropriate caregiver for his children now or in the foreseeable future, and that "any child" in his care "would be exposed to a risk of either witnessing domestic violence, or a risk of actual physical injury, which is not uncommon in children living in a domestic violence household." He explained that Martin had not made a satisfactory start toward recovery from alcohol abuse, and that Martin's attitude was one of "dismissiveness, minimization, and denial of problems." In fact, Martin "denie[d] committing any acts of violence upon [Kim]," and he gave no indication of his understanding the impact that his behavior had on any of the children. Dr. Dyer opined that Martin's "extremely guarded approach to responding to questions relating to alcohol and its effects on his behavior indicate[d] that he continues to protect himself psychologically from any threat to his use of alcohol," which would have to be "adequately addressed in order for [Martin] to be considered as presenting an acceptable risk as a caretaker for any child." Consequently, based on these latest evaluations, Dr. Dyer recommended a case goal of adoption of David, Susan, Jane, and Amy by their grandparents. He also recommended that Junior remain in resource family care, with permanency to be determined at a later date, as Junior was too young to have formed a selective attachment that, if disrupted, would have significant negative consequences for his future psychological health and personality development. He opined that neither Kim nor Martin was able to parent Junior either separately or conjointly.

Kim testified on her own behalf, asserting that she was living alone in a smaller apartment, and that she and Martin had not been a couple since December 2011, when she called the police after a "heated argument." She stated that she permitted him to keep his motorcycle at her house. She acknowledged that while she and Martin were living together, he administered unrealistic punishments to the children.

Martin also testified on his own behalf. He stated he was homeless, unemployed, in debt, and supported himself with the help of friends and unemployment benefits. He acknowledged that he had just purchased a motorcycle, even though he had no license for it and his automobile license had been suspended. He denied living with Kim, and testified they were "friends right now, at this point in time." He also explained that he did not know why the Division ever got involved with his family, but speculated that it was due to domestic violence allegations. He admitted that he and Kim verbally abused each other, but denied any physical abuse or sexual abuse to the children. He also acknowledged that the children were removed because he was in the home and not supposed to be there.

Martin also stated that since the Division's involvement, he has participated in services, including alcohol treatment, anger management, and individual and couples therapy, but admitted he missed many appointments. He explained: "My goal is to try and help myself out, through any of these programs, get the most out of them, I can."

Martin denied ever striking David or Susan, expressing that he "love[d] them," even though they were not his children and, in his opinion, "troubled." He testified that when he first met David and Susan, he "knew" they would be "a handful," because they "were a little off the wall." Finally, he declared: "I'm testifying because I do not want to lose my children. My children need me as a father." Notwithstanding this declaration, he stated that if reunited with the children, he wanted all of the children to reside with Kim and he would visit them.

Subsequent to the trial, Judge Whipple issued a lengthy opinion in which she found the Division proved, by clear and convincing evidence that termination of defendants' parental rights was in the best interests of the children. The judge entered an order terminating their parental rights and granting guardianship to the Division. The present appeal followed.

On appeal, both Kim and Martin urge that (1) the judgment of guardianship cannot be upheld because the court urged Tom, who is an uneducated lay person, to waive his right to counsel, when such counsel could have assisted him in making an informed decision regarding his parental rights; (2) the court improperly added Junior to the guardianship action prior to the statutory time frames mandated before a guardianship action may be initiated; and (3) the Division failed to prove the statutory prongs for terminating her parental rights with clear and convincing evidence. We are not persuaded by these arguments and affirm substantially for the reasons articulated by Judge Whipple in her comprehensive written decision.

I.

We first dispense with defendants' contention, raised for the first time in this appeal, that the entire guardianship judgment was tainted when the court erred by urging Tom to voluntarily surrender his parental rights without properly advising him of his right to counsel. Although we need not consider issues raised on the appeal for the first time when there was an opportunity to do so before the trial court, Nieder v. Royal Indemnity Insurance Company, 62 N.J. 229, 234 (1973), we elect to do so here, and conclude this contention is not supported by the record. A litigant "does not have standing to assert the rights of third parties." Abbott v. Burke, 206 N.J. 332, 371 (2011) (holding "plaintiffs do not have standing . . . to seek vindication of the rights of children outside of the plaintiff class").

On April 10, 2012, the judge held a telephone conference with Tom while he was incarcerated at the Bucks County Correctional Facility in Pennsylvania. Tom stated that he spoke, wrote, and understood English, and attended school until seventh grade in school. He declined pre-surrender counseling from the Division, and voluntarily surrendered his parental rights to his natural children, David and Susan, so long as they were adopted by their maternal grandparents. He agreed that he had had sufficient time to think about his decision, and that his making an identified surrender of his parental rights to David and Susan to the children's maternal grandparents was in his children's best interests. He stated: "[T]hey've been in the care of their grandparents for a while now, and I can't take care of them because I'm in jail, and the mother [Kim], I believe, is not very capable of taking care of them."

Thereafter, the following colloquy occurred between Judge Whipple and Tom:

 

[JUDGE]: And have you ever come

to Court in New Jersey in this case?

 

[TOM]: No.

 

[JUDGE]: Okay. So, you didn't have an opportunity to have a lawyer advise you, and I wanted you to understand that you have -- you would have had an opportunity to have a lawyer represent you in this case if you filled out a 5A form, more than likely, a defender would have been appointed to represent you. If you want that, I can still order that, but it sounds as if you are comfortable with the decision that you've made.

 

[TOM]: Yeah, I'm comfortable with the decision.

 

Based on Tom's testimony, the judge was "satisfied that he's making a knowing, willing and voluntary surrender." On the judgment of guardianship, the court recorded the "identified surrender" of Tom's parental rights to David and Susan for adoption by the maternal grandparents.

A court must provide parents with notice of the rights to retain and consult with legal counsel in Title 30 proceedings, and to appoint counsel if the parents are indigent. 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); N.J. Div. of Youth & Family Servs. v. D.C., 118 N.J. 388, 394 95 (1990); In re Guardianship of Dotson, 72 N.J. 112, 123 (1976); Crist v. N.J. Div. of Youth & Family Servs., 135 N.J. Super. 573, 575 (App. Div. 1975).

The record completely demonstrates the court's compliance with the notice requirements to which Tom was entitled. Moreover, as the Division and Law Guardian urge, the court's acceptance of Tom's identified surrender had no effect upon the guardianship trial as it related to termination of Kim's and Martin's parental rights.

II.

Defendants next urge the Division improperly added Junior to the guardianship petition prior to the statutory timeframes and without employing any reasonable efforts to prevent termination. More specifically, citing New Jersey Division of Youth and Family Services v. S.A., 382 N.J. Super. 525 (App. Div. 2006), certif. denied, 192 N.J. 68 (2007), they argue that courts cannot rush to terminate parental rights to infants.

In S.A., a drug-addicted mother gave birth while serving a four-year prison term, for which she was expected to serve less than one year. Id. at 528, 533. The trial court terminated her parental rights and on appeal we stated that we were "troubled" by

the speed at which the termination of S.A.'s rights was accomplished; the excessive reliance upon her relatively short period of incarceration as a justification for that termination; the failure to assess the strength and potential impact of S.A.'s recognition of a need for treatment and resolve to remain drug-free; and the absence of any testimony with respect to the suitability of [the child's] foster mother as an adoptive parent, the extent of bonding that had occurred, or the nature of any harm that [the child] would sustain if that bond were severed.

 

[Id. at 533.]

 

We specifically found that the termination proceedings, which occurred only six months after the child was born, were "unjustifiably rushed." Id. at 538. Additionally, we noted that "[n]o psychological evaluations were conducted of S.A. prior to the termination hearing, no bonding evaluations occurred, and no evidence was presented with respect to the suitability of [the Division]'s plan that [the child] be adopted by her foster mother[.]" Id. at 531. Finally, we noted the incarcerated mother had not been provided with any visitation time with her daughter. Id. at 529 30. We reversed and remanded the matter for additional proceedings, to include psychological and bonding evaluations, as well as expert testimony. Id. at 540.

In the present matter, by the time Junior was born, his siblings had been in resource family care for over a year as a result of defendants' continued domestic discourse and dysfunctional relationship with their children. Moreover, although defendants were attending classes, receiving services provided by the Division and having positive visits with Junior, every professional and expert opined that they still did not understand or accept the harm they had inflicted upon their other children, and that Kim would be unable to protect any child, including Junior, from her abusive relationships with men, including Martin.

It is well-settled that "'[e]vidence of parents' fitness or unfitness can be gleaned not only from their past treatment of the child in question but also from the quality of care to other children in their custody.'" N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 616 (App. Div.), certif. denied, 192 N.J. 68 (2007) (quoting J. & E. v. M. & F., 157 N.J. Super. 478, 493 (App. Div.) certif. denied, 77 N.J. 490 (1978)). Our courts "need not wait to act until a child is actually irreparably impaired by parental inattention or neglect," as courts can focus not only on the actual harm suffered by a child, but also the risk of future harm. In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999); see also N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 607 (1986). Moreover, mistreatment of one child is "a dangerous harbinger" to other children. N.J. Div. of Youth & Family Servs. v. Robert M., 347 N.J. Super. 44, 68 (App. Div.), certif. denied, 174 N.J. 39 (2002); see also, N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 557 (App. Div. 2010) (concluding "that evidence of prior domestic violence committed by defendant-father against his ex-wife and the two children of a prior marriage was admissible . . . to prove the risk of harm to these children"). Therefore, we reject defendants' argument that their parental rights to Junior were improperly terminated because the Division added him to the guardianship action too soon after his birth.

III.

The law governing our analysis is well-known. Parents have a fundamental constitutional right to raise their children. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 102 (2008) (citing Stanley v. Illinois, 405 U.S. 645, 651 52, 92 S. Ct. 1208, 1212, 31 L. Ed. 2d 551, 558 59 (1972)). However, the constitutional protection surrounding family rights is not absolute and may be tempered by the State's parens patriae responsibility to protect the welfare of children. In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). In some cases, severance of the parent-child relationship may be required to protect the child. E.P., supra, 196 N.J. at 102.

"The burden rests on the party seeking to terminate parental rights 'to demonstrate by clear and convincing evidence' that risk of 'serious and lasting [future] harm to the child' is sufficiently great as to require severance of parental ties." In re Adoption of a Child by W.P. & M.P., 308 N.J. Super. 376, 383 (App. Div. l998) (alteration in original) (quoting In re Guardianship of J.C., 129 N.J. 1, 10 (1992)), vacated on other grounds, 163 N.J. 158 (2000). The question for the court "focuses upon what course serves the 'best interests' of the child." W.P. & M.P., supra, 308 N.J. Super. at 383.

In evaluating the best interests of the child, courts follow a four-prong standard, codified in N.J.S.A. 30:4C 15.1(a). This standard allows for termination when the Division proves, by clear and convincing evidence, that:

(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;

 

(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;

 

(3) The [D]ivision has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and

 

(4) Termination of parental rights will not do more harm than good.

 

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

"These standards are neither discrete nor separate. They overlap to provide a composite picture of what may be necessary to advance the best interests of the children." N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 258 (App. Div. 2005) (citing K.H.O., supra, 161 N.J. at 348). The considerations involved in determining parental fitness are "extremely fact sensitive and require particularized evidence that address[es] the specific circumstances in the given case." K.H.O., supra, 161 N.J. at 348 (internal quotation marks omitted).

The first statutory prong involves an inquiry into whether there has been an "endanger[ing] of the child's health and development resulting from the parental relationship[,]" and whether there will be future harm to the child's safety, health, or development if the parental relationship is not terminated. K.H.O., supra, 161 N.J. at 348. The harm "must be one that threatens the child's health and will likely have continuing deleterious effects on the child." Id. at 352. This standard may be triggered by a single or isolated harm, or by an accumulation of harms over time. Id. at 348.

In addressing the first prong, Judge Whipple found that the record clearly and convincingly established that defendants created a home environment "wrought with domestic violence and substance abuse" and that this environment to routinely be "responsible for protecting themselves and their mother." The court stated the evidence also established that

Both [Martin] and [Kim] were repeatedly told prior to the children's removal that the children would be removed if [Martin] were found in the home. Nevertheless, [Martin] and [Kim] repeatedly refused to comply with directives and court orders that were implemented in order to protect the children. Both [Kim] and [Martin] willingly chose to place their own needs over those of the children, which ultimately led to the children's removals and placements info foster care.

 

Additionally, while the children resided with [Kim] and [Martin], they were observed to be dirty and inappropriately clothed, and periodically resided in an environment with inadequate food. Substantial and credible evidence was also offered which indicated that some of the children were inadequately supervised and exposed to inappropriate sexual activity. Indeed, [Jane] and [Susan] exhibited significant sexualized behaviors upon their removal from the home. Moreover, the children suffered from untreated lice. However, the record clearly demonstrates that the head lice problem continued while the children have been in Division placement. Taken in the aggregate, it is evident that these children were harmed by the parental relationship.

The judge additionally found that since the children's removal in May 2011, neither Kim nor Martin had taken steps to "remediate or even acknowledge the problems that led to the removal of the children." Moreover, the judge did not find defendants' testimony that they no longer lived together credible, and concluded that Kim was unable and unwilling to comply with court orders restricting Martin's presence in the home. The judge concluded that defendants' actions resulted in the children being in foster care over two years and that Junior, in particular, had been "deprived of the opportunity to reside with his family since his birth."

Closely related to the first prong, the second statutory prong requires the Division to show a parent is unable or unwilling to eliminate the harm facing the child. N.J.S.A. 30:4C 15.1(a)(2). The focus of this inquiry is to determine "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. Alternatively, the State may show "that the parent 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." Id. at 348 49. The withdrawal of nurture and care for an extended period of time is itself a harm that endangers the health and development of the child. D.M.H., supra, 161 N.J. at 379. "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), certif. denied, 205 N.J. 519 (2011). See also N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div.) (reiterating that as public policy increasingly focuses on a child's need for permanency, "[t]he emphasis has shifted from protracted efforts for reunification with a birth parent to an expeditious, permanent placement to promote the child's well-being"), certif. denied, 180 N.J. 456 (2004).

Judge Whipple was satisfied that "[e]extensive documentary and testimonial evidence . . . proves both parents failed to fully acknowledge the problems that led to the Division's involvement" and "both parents failed to remediate the harm that led to the children's removal." Judge Whipple found neither parent presented any plan as to how they would care for their children and noted Martin's homeless and unemployed status. The judge additionally concluded that Kim's repeated disregard of court orders prohibiting Martin in the home, as well as her decision to continue to permit Martin access to her home, and her inability or unwillingness to provide a safe environment for her children in the foreseeable future, evidenced her contempt for the court orders.

The judge concluded this unwillingness or inability to provide a safe environment was further substantiated by the testimony from the expert witnesses whose testimony the judge credited:

Finally, at trial, both Dr. Smith and Dr. Dyer credibly addressed [Kim] and [Martin's] inability to timely overcome their domestic violence and [Martin's] substance abuse, which demonstrates these parents are unable to provide a safe and stable home for their children now or in the foreseeable future. These experts opined that [David], [Susan], [Jane], and [Amy] are bonded to their grandparents, who are meeting their needs, and that [Junior's], foster parents are committed to adopting him. These expert opinions were credible, compelling, and uncontroverted. They were also corroborated over the many contact sheets, which detailed the Division and service providers' contacts with these parents.

 

. . . .

 

After weighing the rights and best interests of the children against the rights of the biological parents, the [c]ourt finds that these children have the right to a safe and permanent home now and will not risk the children's well-being, especially when a positive outcome for reunification appears unlikely. Further, based on the expert testimonies, the [c]ourt finds that removal of any of these children from their foster parents will cause the children emotional or psychological harm because neither [Martin] nor [Kim] is in a position to adequately parent. As such, the Division has established the second prong by clear and convincing evidence.

 

The third statutory prong requires the Division to make reasonable efforts to provide services to assist a parent to correct his or her circumstances, and to consider alternatives to parental termination. N.J.S.A. 30:4C 15.1(a)(3). A court evaluates the Division's efforts to reunite a family on an individual basis, and considers the encouragement of an ongoing parent-child relationship and regular visitation. D.M.H., supra, 161 N.J. at 390.

Judge Whipple detailed the services the Division provided to defendants, which included case plans, family team meetings, referrals for substance abuse treatment, counseling services and parenting skills training. The judge found that the services provided were "voluminous" and that "no credible evidence [had] been offered that demonstrates the services were inconvenient or irrelevant." She acknowledged that both parents complied with services but that they also both failed to benefit from these services "because they have chosen not do so, which has precluded their ability to safely parent the children."

Judge Whipple considered alternatives to termination and concluded there were no alternatives and that if such alternatives existed the children would be exposed to "further uncertainty," which "would be in stark contrast with the State's policy to ensure permanency in a timely manner for children." Nor did the judge find kinship legal guardianship a viable option given the grandparents' expressed desire to adopt the children.

The fourth statutory prong requires the court to determine whether termination of parental rights will not do more harm than good to the child. N.J.S.A. 30:4C 15.1(a)(4). The question is "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. The ultimate determination to be made "is whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with [the] natural parents than from the permanent disruption of [the] relationship with [the] foster parents." K.H.O., supra, 161 N.J. at 355.

Judge Whipple answered the question whether termination of defendants' parental rights would do more harm than good in the negative, finding that the four older children had been in placement with their maternal grandparents for more than two years and that prior to this formal placement the grandparents had already been providing care for the children. She credited Drs. Smith's and Dyer's testimony that the children had bonded with their grandparents and that they would suffer enduring harm if separated from them. Likewise, Judge Whipple found that Junior was "thriving with foster parents who have expressed a desire to adopt him." Finally, the judge credited the testimony from both experts that neither parent had the ability to parent the children at that time or in the foreseeable future. These credibility determinations are entitled to our deference. Cesare v. Cesare 154 N.J. 394, 413 (1998).

The scope of our review of a trial court's decision to terminate parental rights is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). "Because of the family courts' special jurisdiction and expertise in family matters," we accord deference to the trial court's fact-finding and the conclusions that flow logically from those findings of fact. Cesare, supra, 154 N.J. at 413. We are further obliged to defer to the trial judge's credibility determinations and the judge's "'feel of the case' based upon the opportunity of the judge to see and hear the witnesses." N.J. Div. of Youth & Family Servs. v. A.R.G., 361 N.J. Super. 46, 78 (App. Div. 2003) (citing Cesare, supra, 154 N.J. at 411 12; Pascale v. Pascale, 113 N.J. 20, 33 (l988)), aff'd in part and modified in part, 179 N.J. 264 (2004). "When the credibility of witnesses is an important factor, the trial court's conclusions must be given great weight and must be accepted by the appellate court unless clearly lacking in reasonable support." F.M., supra, 375 N.J. Super. at 259 (citing D.M.H., supra, 161 N.J. at 382).

When the trial court's findings of fact are supported by adequate, substantial and credible evidence, they are binding on appeal. See Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (l974) (holding an appellate court is not to disturb the factual findings and legal conclusions of the trial judge unless "they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice"). Reversal is required only in those circumstances in which the trial court's findings are "so wide of the mark that a mistake must have been made." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007). Applying this standard, we discern ample evidence in the record to support the trial judge's conclusion that David's, Susan's, Jane's, Amy's, and Junior's best interests require termination of Kim's and Martin's parental rights.

Affirmed.

1 A reorganization of the Department of Children and Families under L. 2012, c. 16, effective June 29, 2012, changed the name of the Division of Youth and Family Services to the Division of Child Protection and Permanency.

2 We use pseudonyms to protect the parties' privacy and for ease of reference.

3 On April 10, 2012, Tom, who was incarcerated in Pennsylvania, appeared telephonically. He waived his right to trial and agreed to a voluntary identified surrender of his parental rights to David and Susan.

4 At trial, however, Rosencrantz testified she had no concerns about the care David was receiving in the grandparents' home.