NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. J.M.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6700-04T46700-04T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

J.M.,

Defendant-Appellant,

____________________________________________

IN THE MATTER OF THE GUARDIANSHIP OF

A.S.,

A Minor.

________________________________________________________________

 

Submitted April 26, 2006 - Decided June 2, 2006

Before Judges Conley, Weissbard and Sapp-Peterson.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Monmouth County,

FG-13-121-01.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel,

on the brief).

Zulima V. Farber, Attorney General, attorney for

respondent Division of Youth and Family Services

(Michael J. Haas, Assistant Attorney General,

of counsel; Ann Marie Seaton, Senior Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, attorney for the minor child (Christopher A. Huling, Assistant Deputy

Public Defender, on the brief).

PER CURIAM

For the second time, J.M. appeals from an order terminating his parental rights to A.S., a daughter born on July 16, 2000. In an earlier appeal, we reversed the order terminating J.M.'s parental rights to A.S. primarily based on our conclusion that the efforts by the Division of Youth and Family Services (DYFS or the Division) failed to satisfy the statutory requirement that it make reasonable efforts to provide services to assist the parent in correcting the circumstances which led to the child's placement, and that the trial court failed to adequately consider alternatives to termination of parental rights. We remanded with the following instruction:

[O]n remand the Family Court should enter an appropriate order for reasonable and liberal visitation that should be progressively increased if and when the bond between A.S. and J.M. develops. As we have said, while we see no need for constant supervision, the visitation process can be periodically monitored so that reports can be made to the court. Supervision should not, however, intrude upon or limit the visitation.

Among other issues, J.M. contends once again that, on remand, he was not provided with a reasonable opportunity to establish a bond with A.S. and thereby avoid termination of his parental rights.

Although we agree with J.M. that the Family Part judge disregarded the essential mandate of our prior opinion, thereby frustrating any reasonable chance of reunification between J.M. and A.S., we are constrained to nevertheless affirm the termination order. We conclude that the bonding between A.S. and her foster parents has now reached such a point that the child would likely be severely and irreparably harmed if that tie were severed. Regrettably, it is the actions of DYFS and the judge charged with implementing our remand order that are directly responsible for the present outcome.

The chronology of events leading up to the first appeal was set out as follows in our earlier decision:

Twelve days after she was born, A.S. was removed from her mother's care and placed with a foster family. Currently, A.S. still lives with the same foster family, and they wish to adopt her if she is freed for adoption. At the time of trial, there were six adopted and foster children in the foster family, five of whom were four years old or younger.

Defendant, J.M., was twenty-five years old when he became involved with L.S., who was fifteen years old at the time. L.S. became pregnant with A.S. one month before her sixteenth birthday and ended the relationship without ever informing J.M. that she was pregnant. On April 3, 2001, J.M. learned of A.S.'s existence when she was approximately ten months old. However, J.M.'s paternity was not established until A.S. was approximately thirteen and one half months old. J.M. has fathered three other children and has an active role in raising all three. There is no record of abuse or neglect on the part of J.M. towards of any of his children.

J.M. is one of ten children and currently lives with his parents and two of his siblings in a three-bedroom apartment. He works full time at a Texaco station in Shrewsbury. On the weekends, his three sons sleep over and J.M. sleeps on the sofa. J.M. testified that he has planned for the arrival of A.S. into the family and has decided that he will raise her with the assistance of his parents. While he works, from 6:00 a.m. until 2:00 p.m., his mother will care for A.S. Additionally, J.M. plans to enroll A.S. in daycare after she has become acclimated to her new family. J.M. will care for A.S. from 2:00 p.m. on.

On April 3, 2001, J.M. was informed by Dawn Schleicher, a Family Services Specialist II, that he might be A.S.'s father. At that point, A.S. was eight and one half months old. At first, J.M. denied the assertion. However, after being informed that A.S. bore a strong resemblance to him, J.M. agreed to obtain a paternity test and stated immediately that if he was the father he wanted custody of A.S. In the termination proceeding, DYFS contended that J.M. delayed the bonding process with A.S. because he repeatedly missed paternity testing appointments. However, J.M. asserted that he informed DYFS he could only go to the lab to undergo paternity testing on Tuesdays, which was his day off. DYFS worker, Donna Weinbel, testified that she provided J.M. with LabCorp's telephone number so he could set a date for paternity testing that would accommodate his schedule. The first scheduled test was to be on May 2, 2001. Nevertheless, due to J.M. missing several scheduled testing dates, the test actually took place on September 4, 2001, four months after the first scheduled appointment. Once paternity was established, J.M. was granted supervised visitation with A.S. for one hour every two weeks. It was noted that during these visits it took A.S. about an hour to warm up to J.M. and his family. Given that the visits only lasted an hour, by the time A.S. warmed up to her father, the visit ended. At the last visit before the end of the trial, A.S. showed a positive reaction to J.M. by going to him and laughing with him.

On October 12, 2001, Dr. Amy Aho, a licensed psychologist, performed a psychological evaluation of J.M. Although she stated that J.M. "did not have any psychological problem of such magnitude that would prevent him from being able to adequately parent [A.S.]," she did find that A.S. should remain with her foster family. Dr. Aho expressed concern over J.M.'s pattern of fathering children with women who appeared to be unstable. Additionally, Dr. Aho stated that despite the support that J.M.'s parents give him, his capacity to care for all of his children is questionable. Further, she noted that J.M. admitted to having financial problems and that J.M. has not considered all of the ramifications of bringing A.S. into his home.

On October 26, 2001, Dr. Aho performed a bonding evaluation of A.S. and her foster mother. Dr. Aho found that A.S. was alert and happy and that she played comfortably and explored the room. Finally, Dr. Aho concluded that removing A.S. from her foster home "would have a high probability of causing serious harm to the child and probably cause a delay or regression in her development."

On June 28, 2002, at the request of J.M.'s counsel, Dr. Jeffrey B. Allen, a licensed psychologist, conducted a psychological evaluation of J.M. Dr. Allen found that J.M. is not presently able to act as sole provider for A.S. However, Dr. Allen also concluded that J.M. has "extensive knowledge of the daily lives of his three sons, suggesting concern and involvement in their lives." Further, J.M. expressed fair knowledge of parenting topics and common sense, at times, in applying parenting principles. Since A.S. has already experienced visitations with J.M., Dr. Allen felt that A.S. may retain his memory. Therefore, Dr. Allen found that removing J.M. from A.S.'s life could cause emotional problems in the future. As such, Dr. Allen recommended that A.S.'s best interests would be served by creating an arrangement that allows J.M. to remain in A.S.'s life as long as he continues to behave responsibly.

In July 2002, a bonding evaluation was conducted between A.S. and J.M. during a visit. A.S. was picked up from her foster home by two DYFS workers that she had never seen before. A.S. cried from the moment she was picked up and through most of the visit. This behavior had never occurred during any of the visits. The psychiatrist who performed the bonding evaluation concluded that A.S. was sensitive to separation. However, this visit contrasted with other visits presented at trial. For example, the following is an excerpt from a visit on February 5, 2002, documented by Sonia Aponte, Child Visitation Supervisor:

I arrived at the Burger King on time. [J.M.] met me outside and carried [A.S.] inside. He gave her a hug and kiss. He took her coat off and sat her in a child's seat.

. . . .

[J.M.] began to color with [A.S.]. He then continued to color with her and tried to explain the colors to her. She wasn't saying very much. [J.M.] then purchased a small snack for her. He sat with her and helped her eat.

. . . .

He then began to try and get her to smile. He clean [sic] her up after she ate and began to color and get her to smile some more. Soon she was laughing and smiling at [J.M.]. They interacted very well.

There were also several other visits where Aponte documented what appeared to be successful encounters between J.M. and A.S.

Given that A.S. has lived with her foster parents since she was twelve days old and she is now over three years old, J.M. recognized that an abrupt change in custody would not be in her best interests. Therefore, he would prefer a slow transition from the foster parents to him.

Several individuals testified as to J.M.'s parenting abilities. First, his cousin testified that J.M. is good with children, supervises them well and does not leave them unattended. Additionally, it was established that J.M. has never had a problem with drugs or alcohol. Finally, two of J.M.'s brothers testified that he is always with his children and provides for their needs.

An evaluation of J.M.'s parents' home was conducted by DYFS. However, soon after the evaluation, the family was evicted from the home. The family then found the three-bedroom apartment where J.M., his parents, his brother and sister currently reside. DYFS never performed a follow-up evaluation of the present home.

In our opinion, filed March 10, 2004, we found that the Division satisfied the first prong of the best interests test, N.J.S.A. 30:4C-15.1a, because J.M. delayed commencement of the bonding process - both by failing to maintain a relationship with L.S. and thus not discovering her pregnancy, and by delaying a paternity test. As for the second prong, we found that the trial judge made findings duplicative of the first prong and relevant to the fourth prong. We concluded that the second prong could not be properly analyzed because of the Division's failure to properly provide services:

While J.M. has not been able to eliminate the harm to the child caused by his absence from her life for one year and his limited role in her life thereafter, we cannot fully evaluate his ability to do so given our findings with respect to DYFS's role (the third prong). We therefore cannot conclude that J.M. has been unable or unwilling to eliminate the ensuing harm since then. Indeed, the record is to the contrary. J.M. has undertaken the limited visitation allowed and has formulated a plan to care for A.S. when and if he obtains her custody.

We found that J.M. provided a plan for caring for A.S. and noted our disagreement with the trial judge that J.M.'s intention to rely on family assistance reflected poorly on J.M.'s future plans. Additionally, we found that J.M. was sincere in his desire to maintain a relationship with A.S. and took care of his other children's financial needs.

Most importantly, we found that the Division's efforts at finding alternatives to termination were "appallingly insufficient." Notably, we found that the one hour per week visitation, which was then decreased to one hour every two weeks, provided to J.M. was unjustified, particularly in light of the positive steps that father and daughter were making. As a result, we saw no need to address the fourth prong.

We cautioned that our reversal did not necessarily mean that J.M. would receive custody of A.S. However, we instructed that the Family Part should order "reasonable and liberal visitation that should be progressively increased if and when the bond between A.S. and J.M. develops," finding "no need for constant supervision." We did, however, find that periodic monitoring was appropriate. We recognized that "it will take an extraordinary effort on the part of J.M., with the assistance of the court and the cooperation of DYFS and the foster parents, to establish that he can eliminate past harm," but the constitutionally protected parent-child relationship necessitated the reversal and remand.

As a result of the remand, a case management conference was held on April 21, 2004. In the interim, J.M.'s father, who played a critical role in J.M.'s plans as caretaker, had passed away. J.M. had also fathered a fifth child with another woman who he represented as his girlfriend. Additionally, J.M. had not seen A.S. since the first trial began, as the judge had denied his motion to continue visitation. Both the law guardian and the Division recommended therapeutic visitation, which would not begin until a psychologist evaluated A.S. and her foster parents and determined their level of attachment. They recommended that the psychologist be responsible for determining A.S.'s progress and when visitation should be increased or modified. Additionally, they recommended that J.M.'s housing be evaluated and J.M. submit information about his current living and employment situation and a plan for reunification with A.S. J.M.'s request that visitation begin immediately was denied. The judge followed the recommendations of the law guardian and Division. Thus, visitation was not immediately scheduled.

Visitation between J.M. and A.S. began on June 7, 2004, and was supervised by Margaret S. Beekman, Ph.D., a neutral psychologist agreed upon by the parties. During their first session, A.S. seemed pensive. J.M. "slowly and gently approached" A.S. in an attempt to get her to play. A.S. did warm up to J.M., and they played with blocks, pretended to cook and played with the dollhouse together. A.S. did attempt to leave the room and find her caseworker a few times. The second visit, on June 15, 2004, mirrored the first. A.S. seemed "sullen" and "subdued" throughout the visit, but J.M. was, after time, successful in engaging A.S. in some games. A.S. again sought out the caseworker. From those two visits, Dr. Beekman concluded that A.S. did begin to show some attachment.

A second case management conference was held on June 16, 2004. J.M. indicated that he began working in May on a full-time basis through an employment agency. J.M. provided employment verification but still had not provided a written plan for reunification. The judge reviewed Dr. Beekman's initial report, which recommended that reunification should not occur, but if attempts were made, only supervised visitation was appropriate. She concluded that A.S. saw her foster parents as her psychological parents and did not display recognition of J.M. Thus, she concluded that a transition to J.M.'s care would be highly traumatic to A.S. Dr. Beekman also opined that one visit each week is preferred, which she should supervise, and she recommended that if a second visitation was ordered, it should be supervised as well. She also recommended that the foster parents meet with J.M. Defense counsel again noted that by providing only for supervised visitation, the court was not following our remand order. Nevertheless, the judge ordered supervised visitation as recommended by Dr. Beekman.

Visitations were held two times per week for one hour sessions, except in November, when because of the holidays, they were scheduled once per week for two hours. Initially, the visits occurred in Dr. Beekman's office; on July 20, 2004, they transitioned into once per week at a local mall. A.S. indicated that she enjoyed going to the mall. One visit also occurred at a local park. All of the visits between father and daughter were supervised.

The Division caseworker testified that J.M. acted appropriately and exercised good judgment in his visits with A.S. J.M. would often bring gifts for A.S., including sunglasses and new outfits. When they were at the mall, he would buy her food and take her on the carousel. J.M. and A.S. would often hold hands while walking through the mall and would sometimes begin and end the visits with a hug or kiss.

Dr. Beekman conducted multiple reevaluations with J.M. and A.S. in order to monitor their bonding progress. She noted that A.S. became engaged with J.M. and did not ask to leave the room anymore. She noted that A.S. no longer looked sad and did not shy away from J.M. Dr. Beekman mentioned numerous times that J.M. played appropriately. She found that J.M. was very nurturing and accepting, even when A.S. made comments that she wanted to go home to her foster parents. After two months of visitation, Dr. Beekman noted that A.S. had developed a tentative bond with J.M. She became less anxious as the visits progressed and J.M. "continued to impress" Dr. Beekman "with how well he could engage her in interactions, redirect her, reassure her, praise her."

Dr. Beekman also met with A.S. alone after each session. A.S. continued to comment that she wanted to live with her foster parents. At the November 2004 meeting, A.S. told Dr. Beekman that she would feel good if she no longer saw J.M. Dr. Beekman opined that A.S. saw these visits as a disruption from her family's activities.

J.M. cancelled a number of the visits because of illness or transportation difficulties. Also, the Division and the foster parents each had to cancel one visit. Additionally, on occasion, the foster parents were late in arriving home for A.S. to be picked up, resulting in missed time. The Division did attempt to reschedule the visits or provide for extended time due to these interruptions. The Division altered the visitation location in January 2005 to the Target near J.M.'s home because he had lost his license and was having difficulty getting to the mall.

A.S.'s behavior during her transportation to and from visits with J.M. also caused concern for some Division workers. On multiple occasions, a caseworker or transportation aide noted that A.S. refused to speak with them on the drive to the visit, but would engage in conversation on the way home. Additionally, A.S. would not speak with the caseworker or transportation aide once she was back in the foster parents' presence. The transportation aide noted that he felt "a little apprehension from [A.S.] until the [foster parents] are not around." On one occasion, the caseworker noted that A.S. told her that "daddy told me not to talk to you."

This comment was not in isolation. At the June 15, 2004, visit, A.S. commented that her foster parents told her "not to play with toys" and when A.S. returned home, she proudly told her foster father that she did not, in fact, play with any toys. Dr. Beekman noted that at the June 22, 2004, visit, A.S. told her that her foster father instructed her not to read books at the sessions. At the June 28, 2004, visit, A.S. told Dr. Beekman that her foster father told her "[n]ot to play" before she left for the visit. Additionally, A.S. reported that her foster mother threw out the gifts that J.M. had given her. Those comments were brought to the attention of the foster parents, who denied attempting to influence A.S., but admitted feeling anxious about the remand process. The foster mother indicated that she was very angry and emotional about the situation. The foster mother again stated that she did not want to meet with J.M. Dr. Beekman recommended family counseling.

A.S.'s foster parents did meet with Catholic Charities for therapy in August 2004, wherein A.S. and the foster parents were evaluated for two months. The foster parents determined that they wanted to discontinue these services. They were also reluctant to tell A.S. that J.M. was her biological father, feeling that it would hurt their chances at adoption and that J.M. would have the "upper edge."

It was reported that A.S. was not responding well to visitations; however, after A.S. was told that J.M. was her father, A.S.'s behavior settled down and she reported that she no longer wanted visitation with J.M. A.S. indicated to the caseworker in November 2004 that she did not want to go on any more "meetings" with J.M.

The Family Part held eight days of hearings between November 17, 2004, and March 21, 2005. J.M. testified on his own behalf that he had been working for Depot America in the shipping and receiving department for nine months, forty-five hours per week. He testified that he has four other children and is not the primary caretaker for any of them. He sees three of his children every day, as his mother brings them to his house every morning so he can drive them to school. He also sees them after he gets home from work, helping them with their homework. He stated that he tries to see the fourth child, who was eight-months old at the time of the trial, every other day or so.

J.M. testified that his plan for reunification with A.S. was to have her live with him at his mother's house. A.S. would share a bedroom with his sister. He stated that he would enroll her in a free preschool program in his town until she was ready for full-time school. He testified that he had already spoken with the preschool program about her enrollment and that his mother would pick her up from school, as she did with his other children. He recognized that a transition period was necessary for A.S., and testified that the foster parents could visit whenever they wanted once he obtained full custody. This plan had been consistently stated throughout the entire termination proceeding.

Also testifying for J.M. was David F. Bogacki, Ph.D., who evaluated J.M. and conducted a bonding evaluation between J.M. and A.S. on November 8, 2004. Dr. Bogacki found that J.M. "has adequate knowledge of parenting skills," but was unaware of a healthy person's body temperature. He recommended that J.M. participate in a parenting skills class. He testified that he was not concerned with J.M.'s relationship with the biological mother because he found J.M.'s statement that he was unaware that she was underage to be credible. Regardless, Dr. Bogacki testified that the relationship did not reflect on J.M's ability to parent. He found that J.M. could provide a home for A.S. to live in and that none of the results from intellect and psychological tests administered would preclude him from parenting.

During the bonding evaluation, Dr. Bogacki noted that A.S. called J.M. by his first name, but did know that he was her father. She gave him a hug when she arrived. He noted that A.S. was "completely comfortable" with J.M. and explored the room using him as a safe base. No physical affection was shown, and A.S. did not have difficulty leaving him. A.S. did, however, seem comfortable and did not appear anxious from being with J.M. Dr. Bogacki concluded that "there was a beginning attachment, but this attachment cannot be described as

secure. . . . This is to be expected based upon the amount of contact that he has had with the child. Having visitation twice per week is not sufficient to form a secure emotional attachment of a child of this age to another person." Dr. Bogacki opined that two hours per week of visitation between the two was sufficient initially, but it should have been increased to unsupervised and perhaps overnight visits because A.S. did not show any adverse reaction. He found that A.S. and J.M. formed as much of a bond as could be expected, given the infrequent contact between them. He stated that it would be impossible to develop a secure attachment with limited visitation.

Dr. Bogacki's findings were contrary to the findings of Dr. Beekman, who concluded that A.S. is "strongly attached" to her foster parents. She opined that, despite J.M.'s "really very wonderfully appropriate behavior," there only existed a tentative bond between him and A.S. She concluded that it would be traumatic to disrupt A.S.'s bond with her caretakers, even if the transition were gradual. Dr. Beekman testified that no matter the amount of positive behavior that J.M. demonstrated during visitation, it would be insufficient to change A.S.'s attachment to her foster parents. She stated that the bond formed with her foster parents in her first year was too much for J.M. to overcome.

On June 20, 2005, the judge again terminated the parental rights of J.M., finding that the Division established all four prongs of the statutory test by clear and convincing evidence, specifically focusing on the final three prongs. With respect to the second prong, the judge found that J.M. was unable to eliminate the harm to A.S. because of his sporadic employment history and the fact that his "reported income cannot possibly support his five children and his lifestyle." Further, J.M.'s living arrangement was "not an appropriate independent living situation for a father," and A.S. would suffer further harm if she were separated from her foster family, with whom she had bonded. With respect to the third prong, the trial court found that the Division arranged for regular supervised visitation between J.M. and A.S. and that a bond had not yet developed between the two. Finally, with respect to the fourth prong, the court found that A.S. had a strong bond with her foster family, and her removal from their care would be highly traumatic.

On appeal, J.M. argues that (1) the trial judge should have recused himself on remand; (2) he was denied his right to procedural due process; and (3) DYFS failed to establish the four prongs of the best interests test.

J.M.'s due process claim is based on his contention that the Family Part failed to follow our remand instructions. However, that is not a procedural due process violation. See Doe v. Poritz, 142 N.J. 1, 99 (1995) (procedural due process requires, inter alia, that the procedures for challenging interference with a constitutionally protected interest are sufficient). Any deficiency in the court's failure to follow our dictates is fully remedial on appeal. Thus, we reject J.M.'s due process argument.

Concerning J.M.'s argument that the same Family Part judge who heard the first trial and ruled against him should not have presided at the trial on remand, in hindsight we are inclined to agree. Indeed, if this matter were to be remanded again, we would direct that it be heard by a different judge. However, in light of our ultimate conclusion that the order of termination be affirmed, we have no need to address this issue further.

Finally, we turn to J.M.'s most significant argument: that DYFS once again failed to prove all four parts of the best interests test, which provides as follows:

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

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

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

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

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

The test, adapted from the Court's opinion in Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986), recognizes that while a parent's right to a relationship with his or her child is constitutionally protected, id. at 599; Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212-13, 31 L. Ed. 2d 551, 558-59 (1972), it is not absolute. In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). The State has a parens patriae responsibility to protect the welfare of the child. Ibid.

"Few forms of state action are both so severe and so irreversible" as termination of parental rights. Santosky v. Kramer, 455 U.S. 745, 759, 102 S. Ct. 1388, 1398, 71 L. Ed. 2d 599, 610 (1982). Because termination completely severs the relationship between the biological parent and child, the Division has the burden to prove, by clear and convincing evidence, that it has satisfied all four prongs of the statutory test. In re Guardianship of J.C., 129 N.J. 1, 9 (1992).

A termination of parental rights case is "'extremely fact sensitive' and require[s] particularized evidence that address[es] the specific circumstances of the individual case." K.H.O., supra, 161 N.J. at 348 (quoting L.A.S., supra, 134 N.J. at 139.) A trial court's factual findings "should not be disturbed unless 'they are so wholly insupportable as to result in a denial of justice.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)). Thus, we must defer to the trial court's findings of fact so long as "they are supported by substantial, credible evidence." In re Adoption of a Child by P.S., 315 N.J. Super. 91, 107 (App. Div. 1998) (citing Rova Farms, supra, 65 N.J. at 484). However, the trial court's "interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty v. Twp. Comm. of the Twp. of Manalapan, 140 N.J. 366, 378 (1995).

In our 2004 opinion, we found as to the first prong that J.M. harmed his child as a result of his absence for the first year of her life. On the present appeal, J.M. does not dispute that conclusion. However, J.M. argues that the trial judge erred in finding that the Division satisfied the second prong because of the judge's improper focus on A.S.'s attachment to her foster parents.

The second prong of this test requires a determination of whether a parent has removed the harm facing the child. The biological parent must have "cured and overcome" the initial harm that endangered the health, safety, or welfare of the child. K.H.O., supra, 161 N.J. at 348. The failure to provide a "safe and stable home" satisfies this prong. Id. at 352. "[T]he second element of the best interests standard must focus on the measures taken by the parent after the child's birth to maintain the parent-child relationship and to foster an environment leading to normal child development." Ibid.; see also Div. of Youth & Family Servs. v. B.G.S., 291 N.J. Super. 582, 592 (App. Div. 1996) (finding that "harms attributable to the biological parent include the prolonged inattention to a child's needs, which encourages the development of a stronger, 'bonding relationship' to foster parents") (quoting J.C., supra, 129 N.J. at 18).

The Supreme Court has explained that when analyzing the second prong, a court:

should not look at the parents to determine whether they are themselves unfit or whether they are the victims of social circumstances beyond their control; it should only determine whether it is reasonably foreseeable that the parents can cease to inflict harm upon the children entrusted to their care. No more and no less is required of them than that they will not place their children in substantial jeopardy to physical or mental health.

[Div. of Youth & Family Servs. v. A.W., supra, 103 N.J. at 607 (emphasis added).]

The amount of time the Division should wait for a parent to cure the harm depends in part on the age of the child. Ibid.

In this case, the initial harm that J.M. caused was his lack of emotional and physical support from the time of A.S.'s birth through her first year of life, which we earlier concluded satisfied the first prong. The question becomes whether he has "cured and overcome" the initial harm. Regrettably, J.M. has been unable to ameliorate the harm to A.S. caused by his absence in the first year of her life, despite his very strong efforts at reunification. While the beginnings of a tentative bond do exist, that bond is not secure, as A.S. sees J.M. only as a "friendly visitor," according to Dr. Beekman.

Unfortunately, as was the case at the time of our earlier decision, the absence of a bond with J.M., and the presence of the very strong bond with the foster parents, is not entirely J.M.'s fault. The fault originally lay with the inadequate efforts by DYFS to provide visitation between A.S. and J.M. On remand, the fault lay with both DYFS and the trial judge for continuing those inadequate efforts in direct contradiction of our remand. Once again, the chance that J.M. could forge any type of secure bond with A.S. was doomed from the outset. While we recognized in our first decision the harsh possibility "that a bond will never develop and J.M. will have to face that difficult outcome," we intended that a realistic effort be made and certainly did not anticipate that our intention would be undermined in the way that occurred.

To the extent that the trial judge based his conclusion that DYFS established the second prong upon the bonding between A.S. and her foster parents, we are unable to agree, for the reasons we have outlined. However, the judge also found that J.M. could not provide a stable home environment for A.S. due to his sporadic employment history and the fact that his reported income cannot possibly support his five children and his lifestyle. Additionally, J.M. currently resides with his mother and two siblings in a three-bedroom home. A.S. would supposedly have a bed in the room of J.M.'s nineteen year-old sister, while J.M. would be sleeping on the couch in the living room. Inasmuch as J.M. claims that his other four children frequently spend time with him at his mother's residence, there are simply not enough beds for these children in the house. Dr. Beekman testified that J.M.'s housing was not an appropriate living situation for a father. In addition, at the time of our earlier opinion J.M.'s father was anticipated to provide assistance to J.M. in caring for A.S. Regrettably, J.M.'s father passed away since the prior appeal. As a result, there is a basis, apart from the foster parent bonding, on which to sustain the judge's finding as to the second prong.

Nevertheless, we once again conclude, as we have already said, that DYFS failed to satisfy the third prong. The statutory definition of diligent efforts is "reasonable 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." In re Guardianship of D.M.H., 161 N.J. 365, 386 (1999) (quoting N.J.S.A. 30:4C-15.1c). The Division's goal, initially, is to protect the family unit. A.W., supra, 103 N.J. at 608. However, the Division is also responsible for determining when reuniting the family is "no longer reasonable." Id. at 609-10 (including factors such as parents who refuse to engage in services, parents who threaten Division workers and other children in the home who are taken into care).

According to the statute, these attempts at reunification can include developing a plan with the biological parent for services, providing the agreed-upon services and facilitating visitation. N.J.S.A. 30:4C-15.1c. The diligence of DYFS' efforts cannot be measured by the success or failure of the biological parent to be reunited with his or her child. D.M.H., supra, 161 N.J. at 393. Rather, the court must look at the adequacy of the efforts "in light of all the circumstances of a given case." Ibid.

In this case, we found that the Division's visitation schedule, which was limited to one hour every two weeks, was "appallingly insufficient" and unjustified, given J.M.'s lack of Division history and the attachment that was beginning to develop between him and his daughter. We remanded, instructing the lower court to order "reasonable and liberal visitation that should be progressively increased if and when the bond between A.S. and J.M. develops." We also did not find a need for "constant supervision" but allowed for periodic monitoring.

The visitation schedule between J.M. and A.S. did not begin until nearly three months after our remand. At the initial case management conference, the trial judge delayed visits until after bonding and psychological evaluations were conducted and J.M.'s plan for reunification was established. J.M. was also required to submit to a housing evaluation before visitation began. Understandably, visitation, which was offered two times per week for an hour session, began under the supervision of Dr. Beekman, to ensure that A.S. would suffer no harm from these visits. As instructed, once A.S. became more comfortable, one visit each week was conducted outside of Dr. Beekman's office. However, as Dr. Beekman found, and the foster parents confirmed no harm, the amount of time that J.M. and A.S. were able to spend together was never increased, contrary to the thrust of our remand. See Jersey City Redevelopment Agency v. Mack Props. Co. #3, 280 N.J. Super. 553, 562 (App. Div. 1995) (trial judge has responsibility of compliance with instructions from appellate division remand). Nor were any of the visits unsupervised. Finally, J.M. was not able to bring family members - whom he proposed as assistants in caregiving - to meet with A.S. In sum, particularly in light of the circumstances of this case, where the Division was acting on an appellate remand that scolded it for the lack of services, the Division offered meager services to the biological father.

To be sure, J.M. was not completely blameless. He did miss visits with his daughter because of illness, a child's illness and problems with his drivers' license, thus compounding his lack of a bond with A.S. that initially resulted from his failure to be part of A.S.'s life for more than one year. The Division did attempt flexibility in rearranging the visitation schedule when J.M. missed or cancelled these visits. However, that flexibility should not justify the Division's failure to provide adequate and increasing visitation between father and daughter. Additionally, the trial court's three-month delay in establishing a visitation schedule after remand further disadvantaged J.M. in creating a bond with his child.

That said, we find ourselves with no realistic alternative but to affirm the termination order. A.S. has now been in the custody of her foster parents for five years and has strongly bonded with them, a not surprising result since she has been out of her biological mother's care since she was twelve days old. There can be no denial that removal from the foster family which seeks to adopt her would be traumatic, if not catastrophic. Generally, the harm which results to the child due to bonding with the foster parents is deemed attributable to the parent whose conduct caused the placement in the first instance. See K.H.O., supra, 161 N.J. at 352-53; D.M.H., supra, 161 N.J. at 379-80. In this case it was defendant who caused the initial harm.

Nevertheless, even though the third prong has not been satisfied, we conclude that overwhelming evidence on the fourth prong - that termination of parental rights will not do more harm than good - N.J.S.A. 30:4C-15.1a(4), can and does permit termination even in the face of the Division's inability to satisfy the third prong. To that extent the requirement that DYFS establish all four prongs of the best interests test may be, and in this case is, somewhat illusory. That is not a satisfying conclusion and neither DYFS nor the trial judge should take satisfaction in it.

Affirmed.

 

The Division conducted an evaluation of J.M.'s home on April 28, 2004. J.M. resides in his mother's three-bedroom home with three other siblings. The residence is Section 8 housing, but the Division never received the requested information that A.S. would be approved to live in that home. The Division was concerned that there were more people living in the house than there were beds. A formal report was not made available in the record.

Dr. Beekman opined that it's "certainly possible" that the foster parents could be either consciously or unconsciously trying to alienate A.S., but she did not believe that the foster parents were trying to "brainwash" her.

Dr. Beekman, in her initial evaluation of J.M., also recommended that J.M. attend a parenting skills class, but the Division never provided a referral.

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(continued)

30

A-6700-04T4

RECORD IMPOUNDED

June 2, 2006