NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. K.F.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4889-05T44889-05T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

K.F.,

Defendant-Appellant,

________________________

In the Matter of the

Guardianship of:

K.P. and C.P.

Minors.

_________________________________________________

 

Submitted November 8, 2006 - Decided November 28, 2006

Before Judges Payne and Lihotz.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Sussex

County, FG-19-21-05.

Yvonne Smith Segars, Public Defender,

attorney for appellant (William J. Sweeney,

Designated Counsel and on the brief).

Stuart Rabner, Attorney General, attorney

for respondent (Andrea M. Silkowitz,

Assistant Attorney General, of counsel,

Victoria DeAlmeida, Deputy Attorney General,

on the brief).

Yvonne Smith Segars, Public Defender,

Law Guardian for the minor children (Nancy

E. Scott, Assistant Deputy Public Defender,

on the brief).

PER CURIAM

Defendant K.F. appeals from an order of a judge of the Family Part that terminated her parental rights to two of her children, K.P. (fictitiously, Kimberly), presently age seven, and C.P. (fictitiously, Charles), age four. On appeal, K.F. claims that the State failed to establish by clear and convincing evidence each of the four interrelated elements of the statutory standard for termination of parental rights established first by the Court in New Jersey Div. of Youth & Fam. Servs. v. A.W., 103 N.J. 591 (1986) and then codified in N.J.S.A. 30:4C-15.1(a). We disagree, and affirm.

I.

We commence our review of the facts with defendant's first child, M.B. (fictitiously, Matthew), the half-brother of Kimberly and Charles, who was born in early April 1997. Although Matthew is not a subject of this appeal, the circumstances leading to his removal from the care of K.F. are nonetheless relevant. On April 28, 1997, reports were forwarded to DYFS claiming that K.F. and her mother were intoxicated while caring for Matthew, and a case file was opened. Following police intervention, arrangements were made for Matthew to spend the weekend with his paternal grandmother. Neglect was not substantiated. However, on May 8, 1997, another referral was made to DYFS as the result of the fracture of Matthew's femur by his biological father that remained undetected for ten days. Thereafter, DYFS attempted to assist K.F. by offering a home assessment, recommending counseling and participation in Alcoholics Anonymous (AA), and arranging a psychiatric evaluation.

An unannounced visit to K.F.'s home followed on September 23, 1997, and revealed that Matthew had been left in the care of a different violent and abusive male. K.F., charged with Matthew's care, was apparently intoxicated and incoherent. A caseworker examined Matthew and discovered that he was ill, had a fever, and was vomiting. A prescription had apparently been obtained for him, but neither K.F. nor her mother had filled it. Matthew was taken to the hospital where it was determined that he had a stomach virus. He was admitted overnight, and then released to a relative of K.F.'s, with K.F.'s consent. The relative remains Matthew's caregiver.

Following this incident, K.F. entered an inpatient alcohol treatment program at Sunrise House, where she remained from September 28 through October 26, 1997. DYFS assisted K.F. in developing a post-treatment plan, which consisted of outpatient treatment at Mountainside Hospital and attendance at AA meetings. K.F. was to reside with Matthew and his relative-caregiver while receiving treatment. However, the plan was never fully executed. Although K.F. did complete the inpatient portion of her treatment, she refused to attend the outpatient program or AA, and, instead, returned to her mother's home in Sussex County. On December 30, 1997, Matthew's caregiver petitioned the court for custody of Matthew. The petition was unopposed, and DYFS's case was closed.

On March 22, 1999, DYFS reopened K.F.'s case following notification that she was six months pregnant. At the time, K.F. was receiving treatment for alcohol abuse at Sunrise House. The father of the child, J.P., was also known to DYFS as having a history of alcohol and drug abuse, as well as an alleged history of domestic violence that had resulted at some point in the entry of a restraining order against him. Case plans were signed by K.F. and J.P on April 20 and May 19, 1999 that required them to cooperate with alcohol treatment and to complete evaluations by the Center for Evaluation and Counseling (CEC).

On June 25, 1999, K.F. gave birth to a second child, Kimberly. On July 9, 1999, K.F. signed another case plan that specified that Kimberly would not be left in the care of either K.F.'s mother, who was also an alcoholic, or J.P. Neither K.F. nor J.P attended their CEC evaluations, and on August 15, 1999, Sunrise House notified DFYS that K.F. had stopped attending treatment on August 9, 1999.

During an unannounced visit to K.F.'s home on August 24, 1999, the DYFS caseworker determined that Kimberly had been left in the care of K.F.'s mother, in violation of the case plan signed by K.F. K.F.'s mother informed the caseworker that there had been a violent altercation between J.P. and K.F. the previous evening. While the caseworker remained in the home, J.P. arrived, he became verbally abusive, and police intervention was required. Upon their arrival, the police were informed by J.P. that K.F. had been drinking the night before. The police eventually located K.F. at a friend's apartment and observed evidence that indicated that she had been consuming alcohol. K.F. was returned to her apartment, where she became abusive towards J.P. and the police, exhibited outward signs of intoxication, and refused to sign a voluntary placement agreement for Kimberly, tearing up the paperwork offered to her. Kimberly was removed from K.F.'s care and a hearing was set for the following day.

On August 25, 1999, an order was issued by a Family Part judge, placing Kimberly into the Division's custody and ordering K.F. and J.P. to show cause why Kimberly should not be made a ward of the court.

Over the next several months, K.F. sought to treat her condition. With the assistance of DYFS, she enrolled in an inpatient treatment program at St. Clare's Hospital in Boonton, participated in an acute partial hospitalization program at Newton Mental Health Center, followed by outpatient treatment at that facility, and attended AA meetings. Over the course of the next eighteen months, while Kimberly remained in placement with the relative who was caring for Matthew, K.F. received approximately 30 urine screenings, all of which were negative for alcohol and drugs. J.P. likewise successfully completed substance abuse treatment.

On February 26, 2001, Kimberly was returned to her parents' care over the objections of DYFS. The Family Part judge's order required K.F. to continue to attend at least two AA meetings per week, to abstain from alcohol, and to submit to random urinalysis. DYFS continued to provide support services after Kimberly's return, including family preservation and family intervention services.

K.F.'s case was closed on April 17, 2002, but was re-opened on July 11, 2002, after a referral indicated that K.F. was once again pregnant and abusing alcohol. After a brief investigation revealed no foundation for this claim, the case was closed on July 15, 2002.

On January 5, 2003, K.F. gave birth to a son, Charles, fathered by J.P. Although the child's early months were uneventful, on August 11, 2003, State Trooper Todd MacGlashan responded to J.P and K.F.'s apartment following a report of a domestic disturbance, and he was informed by K.F. that J.P. had "trashed" the premises in a drunken rage. Although K.F. declined to pursue matters, K.F. informed MacGlashan that she no longer wanted J.P. in the apartment, and she placed his personal belonging on the front steps.

After an absence of a few days, on August 19, 2003, J.P. returned to the apartment, and a verbal dispute prompted another visit from the State Police, requiring the presence of four State troopers. This time it was K.F. who had damaged the apartment while intoxicated, prompting J.P. to call the police. J.P. told the troopers that K.F. was a recovering alcoholic and had not consumed alcohol in four years, but had relapsed, becoming physically and verbally abusive to him. While admitting to some of the destruction of the apartment, K.F. claimed it was J.P. who had been abusive towards her, and not the reverse. Neither party would sign a complaint.

On September 6, 2003, two State Troopers responded to another domestic disturbance at K.F.'s apartment. K.F. claimed that J.P. had been intoxicated when he returned home from work, was verbally abusive towards her, pushed her against a wall, and choked her. Once again, no complaint was signed. It appears that both Kimberly and Charles were present in the apartment for all three of the recent incidents.

On September 15, 2003, another referral was made to DYFS, prompting a re-opening of K.F.'s case. The referral indicated that K.F. and J.P. taken the two children to a bar, where the parents were drinking. K.F. denied the allegations, but stated that J.P. had begun drinking again seven months earlier, shortly after Charles was born. Kimberly, now four years old, told the caseworker that K.F. had brought Kimberly and Charles to the bar, apparently in an attempt to locate J.P., but the children were not allowed inside and were eventually brought to a neighbor's house. Kimberly stated that this was not the first time that K.F., suspecting that J.P. was drinking, had attempted to locate him. Additionally, she described seeing her mother unable to walk by herself, being carried to bed, and passed out. Kimberly also stated that she had seen J.P. push and choke K.F. on a prior occasion.

K.F. eventually admitted that she had brought the children to the bar, but they were not allowed inside, "so they weren't at the bar." K.F. continued to insist she was not presently drinking, but she would not provide a urine sample to permit an alcohol test to be performed. The caseworker determined that neglect was substantiated, that the children were taken to the bar, and that Kimberly had observed her mother in an intoxicated condition.

DYFS received another referral on September 28, 2003. The referent stated that K.F. and J.P. both had been drinking for approximately three months and that J.P. had quit the family home the week before, leaving an intoxicated K.F. alone with the children. K.F. had left the children in the referent's care while she sought out J.P., promising to return in fifteen minutes, but failing to do so.

A caseworker responded to K.F.'s home and interviewed the family. J.P. informed the worker that he had left the home a week before because of relationship problems with K.F.. He denied drinking heavily, but admitted to "an occasional beer." K.F. also denied the allegations of drinking and claimed she had not consumed alcohol since November 5, 1999, the date on which she entered the rehabilitation center in Boonton.

K.F. admitted to leaving the children in referent's care, and claimed that she did not return on time because she got caught in a sudden downpour. K.F. claimed she attempted to call referent, but there was no answer. When questioned, K.F. also denied any recent incidents of domestic violence, and stated that J.P. had never physically assaulted her. Both parents were at home when the worker visited the residence, both appeared sober, and the children appeared to be healthy and safe. Accordingly, the worker determined that allegations of neglect were unsubstantiated at the time.

DYFS received another referral on November 10, 2003. K.F., apparently intoxicated, was seen pushing the children in a stroller, a local drinking establishment her apparent destination. A caseworker was dispatched to K.F.'s residence. Upon arrival, K.F. admitted to consuming three beers, but did not appear intoxicated. No alcohol was found in the home, though the worker did notice the smell of alcohol. When questioned, K.F. denied being at a bar, and stated that she had been at a neighbor's house, a story that Kimberly corroborated. The worker nevertheless concluded that K.F.'s drinking had resumed, was increasing, and would lead to further problems.

On November 21, 2003, another referral was made to DYFS, once again prompted by K.F.'s drinking. The referent reported that K.F. had been consuming alcohol throughout the day, and she was presently passed out on the floor of her apartment. Both children were apparently alone in the apartment with K.F. The State Police were dispatched to K.F.'s home, where they discovered K.F. in a highly intoxicated state that required the emergency medical assistance. K.F. stated that she had been drinking for almost twenty-four hours, portions of which time she was alone with the children. K.F. then became belligerent and verbally abusive, blaming her troubles on DYFS and the caseworker. The worker, seeking temporary care for the children, was unable to reach the relative who had previously cared for Kimberly by calling her home phone number. At the time, K.F. was so highly intoxicated that she had difficulty completing a phone call to obtain the number of the relative's cell phone. Eventually, however, she was successful, and the caseworker was able to arrange placement for the children. Kimberly was placed with her previous caregiver; Charles was placed with the caregiver's nearby daughter.

Despite urging from the caseworker and her neighbors, K.F. refused to check into Newton Mental Health Center that evening, but claimed she would report the next day. At some point, K.F. became hostile, screaming at J.P., cursing, and tearing up paperwork offered to her by the case worker.

On November 24, 2003, a Family Part judge issued an order to show cause and appointed a law guardian to represent the interests of Charles and Kimberly.

Over the course of the next few months, it appears that K.F. attempted to stay sober and sought proper treatment for her alcoholism. She attended a two-week inpatient detoxification program at Saint Clare's Hospital commencing on December 4, 2003, and after completing that program on December 17, she began outpatient treatment at Saint Clare's on December 22, 2003. Because of lack of transportation, it appears that K.F. missed some scheduled appointments.

On January 9, 2004, DYFS requested a forensic evaluation of K.F. and J.P. from the CEC. On January 20, 2004, Dr. Jalan, a psychiatrist attached to Saint Clare's, performed a psychiatric evaluation of K.F. and prescribed Effexor XR, an anti-depressant. At some point, Jalan diagnosed K.F. with Depressive Disorder, Not Otherwise Specified (NOS), with Social Anxiety, and he prescribed Paxil, another anti-depressant used in the treatment of depression and anxiety disorders. It appears that, although K.F. found the anti-depressants to be helpful, she eventually stopped taking them for financial reasons.

Transportation was arranged, and K.F. was scheduled to begin Saint Clare's Intensive Outpatient Program (IOP) on February 3, 2004. It was planned that K.F. would attend IOP meetings three times a week for six weeks, after which time she would be re-evaluated. A CEC evaluation was also scheduled for February 23, 2004. A risk assessment issued by the CEC on May 17, 2004 noted that K.F. was currently participating in the intensive outpatient program. Nonetheless, the report concluded that:

[K.F.] is a neglectful, unstable, irresponsible, high risk parent. She is prone to alcoholism relapses and is currently not secure in her recovery. [K.F.] is codependent in her relationship with [J.P.] She is focused on [J.P.] to such an extent that she cannot protect herself and her children, or prioritize her children's needs over her own.

J.P. was found to be "a narcissistic, unprotective, irresponsible parent" who minimized family risk issues, took no responsibility for destabilizing the family, and minimized domestic violence issues. He was found to be in need of anger management and individual therapy.

In April 2004, K.F. tested positive for alcohol. Nevertheless, by May 2004, it was determined that K.F. was ready to step down to a weekly evening outpatient group. Transportation remained a concern. Arrangements were made to provide K.F. with transportation to the evening program beginning on June 2, 2004, but multiple attempts to contact her by telephone were unsuccessful. A letter sent to K.F. by K.F.'s caseworker apparently did reach K.F., but K.F. cancelled her transportation when it arrived on the evening of June 2.

By June 9, 2004, it had become apparent that K.F. was no longer attending any program and was in danger of being sanctioned by her caseworker for noncompliance. K.F. had not attended any program at Saint Clare's since April 29, 2004, and had not responded to efforts by the staff at Saint Clare's to contact her. On August 3, 2004, the CEC terminated K.F.'s individual therapy as the result of lack of communication.

K.F. had a relapse in August 2004, but tried to return to treatment the following month. However, because of a backlog at Saint Clare's and some scheduling conflicts, K.F. was not able to return to treatment until November 10, 2004. At this time, a second intake was scheduled for the programs at Saint Clare's, and K.F. began co-dependency and relapse prevention programs, but had not completed them at the time of trial.

K.F.'s attendance remained inconsistent through March 2005. Despite these failings, K.F.'s counselor wrote at that time that K.F. had progressed from a "depressed, hopeless victim to a woman ready to accept responsibility for her own life and willing to make the changes she needs to make." In a letter dated June 2, 2005, the counselor noted that K.F. continued to make steady progress, was now attending co-dependency sessions on a consistent basis, had gotten a job, and had even begun to save some money. K.F.'s treatment was scheduled to be complete on June 15, at which time it was recommended that K.F. seek supportive counseling closer to her place of residence.

On June 20, 2005, K.F. was arrested in Franklin Borough for driving while intoxicated (DWI). At approximately 9:30 a.m., a borough police officer had observed K.F., traveling south, swerve into the northbound lane. After being stopped, K.F. appeared visibly intoxicated. She was unable to complete the standard psychophysical tests administered by the arresting officer, refused to sign a Miranda card, and refused to provide a breath sample. K.F. also refused to sign a notice to appear in municipal court.

At the time of the custody trial, K.F. was not in treatment and was living in a small apartment with her mother, and possibly with her brother, as well. At this time, Kimberly had been with her relative-caregiver for over two years. Charles, after a short initial stay with the caregiver's daughter, had been placed in foster care from November 2003 until November 2004 because of the daughter's illness. Charles was then returned to the daughter's care, where he remains at the present time.

II.

A bench trial was held, commencing on January 23, 2006. Testimony was heard on that date from two psychologists. Frank J. Dyer, Ph.D., testified on behalf of the State, and Paul J. Fulford, Ph.D., appeared for K.F.. Judith Rivera, a caseworker for plaintiff, testified next, and recounted the history of the involvement of DYFS in K.F.'s life. K.F. and J.P. testified on their own behalf; Dr. Fulford followed to rebut certain testimony of Dr. Dyer; and the State concluded the trial with a rebuttal witness, Julia Hallberg, whose testimony was limited to the effect of various treatment programs on substance abusers and was offered solely to rebut Dr. Fulford's testimony regarding the effectiveness of AA as compared to intensive outpatient programs.

Dr. Dyer testified that K.F. was not fit to parent the children, basing this opinion on her unsuccessful reunification attempt with Kimberly, K.F.'s history of alcohol abuse and repeated relapses, her depression, the voluntary surrender of Matthew, and her recent DWI arrest. Noting that K.F. was raised by two alcoholic parents and was witness as a child to incidents of domestic violence, Dyer stated that it would be a significant achievement for K.F. to achieve a "stable, socially appropriate adjustment to life." He found that K.F. could not be expected to accomplish this goal while also caring for two small children; such an achievement was "well beyond" her capabilities.

Dr. Fulford disagreed with Dr. Dyer's analysis and conclusions. He noted that although K.F. had significant problems with alcohol, she had been clean for seven months by the time of trial. He testified that relapses are not unusual in the alcoholic recovery process, but K.F. was regularly attending AA meetings, was in counseling at Saint Clare's, and was making significant progress. Dr. Fulford gave the opinion that K.F. could parent the children, but that she needed to be free from alcohol in order to do so. Additionally, K.F. would need certain support services, including housing and job placement assistance.

Dr. Dyer, noting the high risk of relapse in recovering alcoholics, disagreed that K.F., at the present time, could care for Kimberly and Charles, stating he would not entrust a child to a person at a stage of recovery similar to K.F.'s. K.F., he testified, was "light years away from any state of recovery that would inspire confidence in her ability to care for the children."

The doctors disagreed on K.F.'s mental condition as well. Dr. Fulford stated that, aside from her history of alcoholism, K.F. had no mental health issues, and he specifically denied that K.F. suffered from depression, while conceding on cross-examination that depression was a trigger for K.F.'s relapses. Dr. Fulford also stated that K.F. was co-dependent with J.P., and her termination of that relationship was a positive indicator of her future prognosis. Through the administration of the Parenting Stress Index, Dr. Fulford found K.F.'s stress level to be in the normal range. However, the test was administered at a time when Kimberly and Charles were not in K.F.'s custody.

Dr. Dyer administered the Personality Assessment Inventory, a self-reporting personality measure, to K.F. He testified that the test disclosed severe post-traumatic symptoms and psychological stress when applied to K.F. The Inventory also revealed "severe cognitive symptoms of depression," demonstrated that K.F. viewed herself as being persecuted by others, and indicated that K.F. might suffer from Personality Disorder, NOS. Dr. Dyer testified that further testing would be needed to fully diagnose K.F., but concluded that she "definitively" suffered from Personality Disorder, NOS and possibly suffered from major depressive disorder.

Although the two doctors viewed K.F.'s relapses differently in terms of their effect on K.F.'s recovery and their significance in the present matter, both agreed that relapses were part of the alcoholic recovery process, and that K.F. was at considerable risk for relapse. Both Dr. Fulford and Dr. Dyer agreed that K.F. could not be a capable or effective parent if she were drinking. Both doctors concluded that K.F. needed to be alcohol-free to provide the children with a safe and stable environment and eliminate the risk of continuing harm occurring to them.

Both doctors evaluated K.F.'s relationship with Kimberly and Charles, as well as the children's relationships with each other. Bonding with the caregivers was also evaluated by Dr. Dyer. Both doctors noted that Kimberly, approximately five years old by this time, had a stronger relationship with her mother than Charles did.

Dr. Fulford observed K.F. to be affectionate with her children, and the children, in turn, to be responsive to K.F. The children looked to K.F. for support and guidance and appeared "genuinely content" in K.F.'s presence. Dr. Fulford concluded that K.F. and the children were bonded with each other.

Dr. Dyer observed that Kimberly had a strong attachment to K.F., but also saw her caregivers in a positive light. He evaluated Kimberly and Charles with K.F., and observed that Kimberly appeared to be very glad to see K.F., was very talkative, and addressed K.F. as "Mommy." Dr. Dyer noted that Kimberly "nurture[d] the fantasy of a successful reunification."

Charles, however, was not very attentive to K.F., although he did interact with her somewhat and did not display any negative reaction to K.F.'s presence. Dr. Dyer concluded that, if Charles were kept in his present placement, "there would be no experience of painful loss associated with the termination of his birthmother's parental rights." Charles, according to Dr. Dyer, was "profoundly attached" to his caregivers and they were the central figures in his inner emotional world, whereas K.F. occupied only a peripheral position.

Kimberly, however, presented a more complicated situation in that she was older, understood who her birth parents were, and had memories of living with them. Kimberly's feelings for her mother conflicted with her feelings for her caregivers, and she responded to attachment-related questions in a neutral fashion. Despite the harm caused by the failed prior reunification attempt and Kimberly's past observations of her mother in an intoxicated state, Dr. Dyer determined, within a reasonable degree of psychological certainty, that a complete cessation of contact with K.F. would inflict a significant loss upon Kimberly. He could not state with certainty, however, that this loss would be "traumatic" or have a "disorganizing effect" on her. His expressed recommendation was permanent placement of Kimberly with her relative caregivers, coupled with continued visitation by K.F., although he recognized that his solution might not be judicially enforceable.

The Family Part judge, while not explicitly making any findings regarding credibility, accorded greater weight to Dr. Dyer's testimony in reaching his conclusions in the matter. He found that DYFS had established each of the four elements of the statutory termination standard by clear and convincing evidence, if not beyond a reasonable doubt. Specifically, the judge found that K.F.'s past problems with alcohol and history of domestic violence, coupled with her failure to adequately address those issues or her depression, warranted a conclusion that she posed a high risk of relapse and continued harm to the children. Accordingly, K.F.'s parental rights were terminated in an order dated May 5, 2006. The order did provide for continued visitation between K.F. and Kimberly pending appeal, but J.P. was afforded only one final visit before his rights were completely terminated.

III.

On appeal, K.F. challenges the trial court's finding on each prong of the statutory test, arguing that none of the prongs was established by clear and convincing evidence. We have previously indicated that we disagree with K.F.'s position.

Although the right of a parent to enjoy a relationship with her biological child is a fundamental one, this right is not absolute. N.J. Div. of Youth & Fam. Servs. v. C.S., 367 N.J. Super. 76, 109-110 (App. Div.), certif. denied, 180 N.J. 456 (2004). It has long been recognized under the doctrine of parens patriae that the State has a "responsibility to protect children from the probability of serious physical, emotional or psychological harm resulting from the action or inaction of their parents." Id. at 110.

By statute, termination of parental rights on grounds that such termination will serve the best interests of the child requires DYFS to establish each element of an interrelated (In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999)), four-part test:

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

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

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

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

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

The burden is on the State to show each of the four statutory elements by clear and convincing evidence. C.S., supra, 367 N.J. Super. at 111.

In reviewing the findings of the Family Part judge, we are mindful of our limited role, and thus we will decline to disturb those findings unless they are wholly unsupported by the record and result in a denial of justice. Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974); In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div 1993). Furthermore, where the evidence presented below is largely testimonial in nature, and the factual determinations made by the trial court rest on determinations of credibility, we are especially cautious. C.S., supra, 367 N.J. Super. at 112; In re Adoption of a Child by P.F.R., 308 N.J. Super. 250, 255 (App. Div. 1998). Noting the special expertise of family courts, the Supreme Court has specifically decreed that "appellate courts should accord deference to family court factfinding." Cesare v. Cesare, 154 N.J. 394, 412-13 (1998). We are satisfied that the order of termination entered by the Family Part judge should be sustained under this standard.

Despite arguments to the contrary by K.F., we find harm to the children to have been demonstrated. The focus of the court when determining if the parental relationship has harmed the child is usually on the "effect of harms arising from the parent-child relationship over time on the child's health and development." K.H.O., 161 N.J. at 348. Indeed, "[p]arental fitness is the key to determining the best interests of the child in parental rights termination cases." In re Guardianship of B.L.A., 332 N.J. Super. 392, 402 (Ch. Div. 2000). A parent's history of alcohol abuse and failures at rehabilitation have been found to support a finding of harm to the child's development. See In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)(recognizing long-term alcoholism and failures at rehabilitation as valid factors to be considered in terminating parental rights and limiting review of trial court's termination order to procedural grounds). We have indicated that substance abuse may support a finding of harm when coupled with such factors as "indications of parental dereliction," an "inability to provide a stable and protective home," and "withholding of parental attention and care." C.S., supra, 367 N.J. Super. at 117-118 (quoting K.H.O., supra, 161 N.J. at 348).

K.F. contends that DYFS has failed to establish by clear and convincing evidence that her past conduct had harmed the children. K.F. asserts that she "has not directly harmed her child in any way." She notes that Rivera testified that the children had not been physically harmed at the time of their removal, and there was no evidence of "medical neglect, inappropriate behavior, unclean conditions, or deficiency in parenting skills." Finally, K.F. notes that no evidence of physical or emotional abuse directed towards the children was provided; both the children were born healthy and have remained so throughout their lives; and any domestic violence was not directed at the children and, according to K.F., took place outside their presence.

However, there was testimony that K.F. had been involved in more than one abusive relationship, that domestic violence had in fact occurred while the children were present, and that J.P. had anger management problems that resulted in physical violence and destruction of family property. Additionally, evidence demonstrated that K.F. is an alcoholic; that despite treatment, she remains subject to relapses; that, when drinking, she has been wholly incapable of caring for the children in her custody; and that her alcoholism has been a root case of significant disturbances in the home.

We view it to be beyond dispute that K.F.'s intoxication constituted a danger to the children's growth and development, and that the occurrence of past harms and the existence of a continuing harm to the children was established by clear and convincing evidence.

We likewise hold the second prong of the statutory test - that K.F. has been unable to eliminate the harm facing her children - has been met by evidence that despite her laudable efforts over a substantial period of time, K.F. has been unable to effect a recovery from her alcoholism. Although it is certainly possible that, in the future, K.F.'s efforts may meet with long-term success, our job is to focus on the best interests of the children and not solely on the rights or actions of the K.F. in these circumstances. C.S., supra, 367 N.J. Super. at 117. Provisions of the Federal Adoption and Safe Families Act of 1997, set forth in 42 U.S.C.A. 671(a)(15), as implemented by our Legislature in amendments to N.J.S.A. 30:4C-15, have shifted the emphasis in termination cases away from "protracted efforts for reunification with a birth parent to an expeditious, permanent placement to promote the child's well-being." Id. at 111.

Testimony that K.F. had progressed to a point where she now understood the proper course of treatment, that she knew she could not have even a small amount of alcohol, and that she was distancing herself from negative influences, were all made prior to K.F.'s recent DWI arrest and must be viewed in light of that relapse, coming as it did shortly before the termination proceedings began. See K.H.O., supra, 161 N.J. at 353 (positive drug test immediately prior to commencement of court proceedings supported conclusion that parent was currently unable to care for child). Even K.F. has conceded her present inability to provide proper care for the children. Further, the record provides no assurance that K.F. remains in treatment or that she has taken any of the other steps necessary to confront her alcoholism, remove herself permanently from the effects of abusive relationships, or address her psychological conditions.

We also concur in the conclusion that DYFS has presented clear and convincing proof that it made reasonable efforts to provide required services to K.F. It has on innumerable occasions facilitated in-patient and out-patient treatment for K.F.'s alcoholism, provided psychological evaluations and counseling, and has offered other services directed to K.F.'s propensity to involve herself in abusive relationships.

As far as the fourth prong is concerned, we regard it to be incontestable that termination of parental rights will not do Charles more harm than good. Bonding evaluations have demonstrated the strong relationship that has been established between him and his caregiver, as well as the close relationship that remains between siblings, despite their physical separation. In contrast, Charles' bond to his mother, with whom he has spent little time since birth, has been found to be weak. We find no support in the record for a claim that Charles will suffer greater harm from the termination of his relationship with his natural mother than from the cessation of his relationship with his present caregiver.

As Dr. Dyer conceded, Kimberly presents a more difficult case as the result of her age, her one-time reunification with K.F., and her attachment to her. Nevertheless, Dr. Dyer, whose opinions the Family Part judge accepted, determined that the greater harm would lie in terminating Kimberly's relationship with her relative caregivers. He based this conclusion on the history of removals of K.F.'s children, Kimberly's need for stability and permanency, and the disruptive effect that successive removals and reunifications had in the past and likely would have in the future. All these factors, he stated, had serious implications for Kimberly's continued psychological growth and development. Nonetheless, he concluded that:

I see [Kimberly], at this point, as being able to turn the corner and to overcome, more or less completely, the adverse effect of her early background, if she is granted permanency. If, on the other hand, she is denied permanency and she experiences further disruptions in the continuity of her care, then I predict rather serious adverse [e]ffects on her personality development and on her overall mental health.

* * *

[T]aking into account all aspects of this child's adjustment and the necessity of protecting her by assuring that she has adequate structure, stability, and security in her environment, the greater harm would be to sever her relationship with her current caretakers.

We have no principled basis to conclude otherwise.

Affirmed.

 

The children's father, J.P., whose rights were also terminated, has not appealed.

This is the first confirmed incident of K.F. drinking since the August 1999 incident that resulted in Kimberly's removal. The absence of prior evidence supports K.F.'s and J.P.'s contention that she remained sober for four years following that 1999 event.

It is unclear from the order if K.F.'s visitations with Charles were allowed to continue.

Under N.J.S.A. 30:4C-15.1(c) "Reasonable efforts," are defined as

attempts by an agency authorized by the division to assist the parents in remedying the circumstances and conditions that led to the placement of the child and in reinforcing the family structure, including, but not limited to:

(1) consultation and cooperation with the parent in developing a plan for appropriate services;

(2) providing services that have been agreed upon, to the family, in order to further the goal of family reunification;

(3) informing the parent at appropriate intervals of the child's progress, development and health; and

(4) facilitating appropriate visitation.

(continued)

(continued)

2

A-4889-05T4

RECORD IMPOUNDED

November 28, 2006