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

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3110-06T43110-06T4

A-3111-06T4

A-3112-06T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

J.B.B.

Defendant-Appellant,

IN THE MATTER OF THE GUARDIANSHIP OF

J.J.B. AND T.J.B., MINOR CHILDREN.

_____________________________________

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

J.B.

Defendant-Appellant,

IN THE MATTER OF THE GUARDIANSHIP OF

J.J.B. AND T.J.B., MINOR CHILDREN.

_______________________________________

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

M.W.

Defendant-Appellant,

IN THE MATTER OF THE GUARDIANSHIP OF

J.J.B. AND T.J.B., MINOR CHILDREN.

_______________________________________

 

Submitted September 17, 2007 - Deceided

Before Judges Gilroy and Baxter.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Salem County, Docket No. FG-17-35-06.

Yvonne Smith Segars, Public Defender, attorney for appellant, J.B.B. in Docket No. A-3110-06T4 (Mark Tabakman, Designated Counsel, of counsel and on the brief).

Yvonne Smith Segars, Public Defender, attorney for appellant J.B. in Docket No. A-3111-06T4 (Carol A. Weill, Designated Counsel, on the brief).

Yvonne Smith Segars, Public Defender, attorney for appellant M.W. in Docket No. A-3112-06T4 (Miles S. Lessem, Designated Counsel, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minors J.J.B. and T.J.B. (Phyllis G. Warren, Assistant Deputy Public Defender, of counsel and on the brief).

Anne Milgram, Attorney General, attorney for respondent New Jersey Division of Youth and Family Services (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Jim Harris, Deputy Attorney General, on the brief).

PER CURIAM

J.B.B. is the natural mother of baby boy J.J.B. (Jason), born April 19, 2004, and T.J.B. (Trevor), born January 4, 2006. M.W. is the biological father of Jason. J.B. is the biological father of Trevor. The three parents appeal separately from the December 21, 2006 order of the Family Part, terminating their parental rights to the children. We affirm. Because each defendant's appeal is fact sensitive, we first set forth the core facts and procedural history. We will address other facts as necessary when discussing each of the appeals.

Approximately two months after Jason's birth, M.W. was arrested and charged with sexual assault of an unrelated minor child. On December 15, 2004, M.W. was indicted for aggravated sexual assault, N.J.S.A. 2C:14-2a; sexual assault, N.J.S.A. 2C:24-2c; and endangering the welfare of a child, N.J.S.A. 2C:24-4a. On January 10, 2005, M.W. pled guilty to the endangering charge and the State dismissed the remaining charges. On May 3, 2005, M.W. was sentenced to a term of imprisonment for five years. M.W. is a registered sex offender who has neither lived with, nor supported, Jason.

Following M.W.'s arrest, J.B.B. and Jason resided in the single-family home of J.B.B.'s parents. In August 2004, the New Jersey Division of Youth and Family Services (DYFS), responding to a telephone referral, inspected the grandparents' dwelling. The caseworker found the home in a deplorable condition with roaches throughout the house, including the child's crib, refrigerator, washer and dryer. The home contained a strong odor of animal urine and excrement, with dog feces lying on the floor. An inspection of the refrigerator disclosed that it contained rotten food. The caseworker observed J.B.B. lying with a dog on a bed in a rear bedroom, both covered with fleas and gnats. At the request of the caseworker, the occupants cleaned the home by removing feces from the floor, bleaching and sanitizing the kitchen, and separating and placing food into sealed containers. However, on re-inspection the same day, the caseworker observed the basement was still infested with gnats and insects.

DYFS recommended that J.B.B. and her mother receive parenting instruction and that all residents of the household undergo psychological evaluations. In November 2004, DYFS arranged for Family Preservation Services (FPS) to provide counseling and support services for J.B.B. and her family. Generally, FPS would provide counseling and support services for a period of four to six weeks. However, FPS terminated its services after three sessions, totaling seven hours during the course of one week, because of the extreme, unsanitary conditions of the home. Because J.B.B. and her mother failed to fully respond to the health problems confronting the family, FPS recommended that Jason be removed from the home. On November 19, 2004, J.B.B. signed a fifteen-day consent, permitting DYFS to remove Jason for placement with his maternal aunt, A.P. On November 29, 2004, J.B.B. executed a six-month consent, continuing Jason's out-of-home placement with his maternal aunt. After Jason had been placed with his aunt, J.B. moved into J.B.B.'s parents' home. J.B. and J.B.B. married on November 11, 2005.

On August 24, 2005, DYFS filed a complaint against J.B.B., M.W. and J.B.B.'s parents, alleging that they had abused and neglected Jason. On September 6, 2005, DYFS added J.B. as an additional defendant because, even though he was not the biological father of Jason and Trevor had not yet been born, J.B. was viewed as a caretaker for Jason because of his relationship with J.B.B. At the permanency hearing on November 15, 2005, J.B.B. stipulated to having abused and neglected Jason, in violation of N.J.S.A. 9:6-8.21c(4), due to the unsanitary condition of the home and to having placed Jason's physical, mental, and emotional welfare in eminent danger of impairment because of her failure to exercise a minimum degree of care. On that day, an order was entered, directing that Jason continue in his current residential placement; and that DYFS provide services to the family, conduct a re-evaluation of his maternal grandparents' home and an evaluation of J.B.B.'s cousins' home, where J.B.B. was then residing. The grandparents' home was re-evaluated and was not approved. DYFS also inspected the cousins' home and found it inappropriate for Jason because of the lack of room and the number of persons living in the home.

In the interim, J.B.B.'s parents' home was inspected by the Salem County Department of Health. On June 14, 2005, the inspector noted: 1) numerous flies throughout the home; 2) evidence of roach infestation, with dead roaches and droppings noted throughout the home; 3) piles of clothes in all bedrooms; and 4) a strong dog odor, with three dogs being kept in the basement. It was the inspector's opinion that flies were "breeding in the basement due to dog feces and urine." After DYFS arranged for treatment of the home by an exterminator, the premises were re-inspected by the Salem County Department of Health on December 21, 2005. The inspector noted: 1) dog feces on the ground; 2) uncovered trash cans; and 3) evidence of rats on the property. Similar findings were made during other inspections on January 24, 2006, and April 28, 2006.

Following the birth of Trevor, DYFS applied for an order to show cause (OTSC), seeking custody of Trevor, because of J.B.B. and J.B.'s lack of stable housing and because Trevor required specialized care for breathing problems developed at birth. On January 23, 2006, an order was entered, placing Trevor in the immediate custody, care, and supervision of DYFS and directing his parents to show cause why his care and supervision should not continue in the custody of DYFS. After Trevor was discharged from the hospital following his birth, he was transferred, pursuant to the OTSC, to the Dooley House, which is a twenty-four-hour care facility, for medically fragile children. On February 7, 2006, an order was entered continuing the placement of Jason with his maternal aunt and the placement of Trevor at the Dooley House. The order also directed that J.B.B. and J.B. attend in-home parenting skills training with Famcare and that DYFS schedule a psychological evaluation for J.B. within fourteen days.

After Trevor's birth, FPS again commenced providing support services to the family. Supervised visitation was arranged for J.B.B., J.B.B.'s mother, and J.B., with both Jason and Trevor. Although initially describing the parenting classes she had attended at Rowan University as "stupid," J.B.B., J.B., and J.B.B.'s mother did complete parenting classes provided by DYFS through the Southwest Council, Inc.

On March 31, 2006, DYFS filed a complaint for guardianship of J.B., seeking to terminate the parental rights of J.B.B. and M.W. to Jason. On September 5, 2006, DYFS filed an amended complaint for guardianship, seeking also to terminate the parental rights of J.B.B. and J.B. to Trevor.

A termination trial was conducted on December 18, 2006, and December 20, 2006. Testifying at the trial on behalf of DYFS were: Michelle Peterson and Richard Exter, DYFS caseworkers; Nicole Dolbin, a DYFS adoption worker; and Dr. Joanne Schroeder, a clinical psychologist. Testifying on behalf of J.B.B. were: J.B.B.'s mother; J.B.B.'s aunt, A.P.; and Dr. Kenneth Goldberg, a psychologist. The only other witness who testified at the hearing was J.B. On December 21, 2006, Judge Vincent Segal rendered an oral opinion, terminating the parental rights of the three defendants to Jason and Trevor, concluding that DYFS had proven by clear and convincing evidence the four prongs of the "best interests of the child" standard, N.J.S.A. 30:4C-15.1a.

The court first addressed M.W. and J.B.B.'s parental rights to Jason. As to M.W., the court determined that he was not a suitable caretaker for the child because he is a convicted sex offender, in prison for a long period of time, and has an uncertain future.

As to J.B.B., the court determined that: 1) J.B.B. had endangered Jason's safety, health and development by allowing him to reside in an uninhabitable home for six months; 2) J.B.B. "is unable, due to her limited intellectual abilities, to eliminate the harm facing [Jason]. And by herself could never provide a safe and secure home for him;" 3) there is a need for Jason to have permanency in a stable and safe environment, and "separating [Jason] from his foster parents would cause serious, enduring, emotional and psychological harm"; 4) no one other than perhaps Jason's maternal aunt qualified as a caretaker, but she had eliminated herself from serving in that position when she turned Jason away at the request of her husband; 5) although DYFS had provided numerous services to J.B.B., her "limitations are such that the services in the long run will not make any difference with respect to her ability to parent her children;" and 6) "[w]ithout a doubt termination of parental rights will not do more harm than good. [Jason] has stability, security, and permanency with his foster parents. He has none of these with [J.B.B.] and cannot have them with his father." As to this last finding, the judge also stated, "[Jason] is a child with special needs, requiring added care. [J.B.B.] cannot provide that care and the adults around her simply do not comprehend the extent of her shortcomings."

As to J.B.B. and J.B.'s parental rights to Trevor, the court determined that: 1) Trevor had other issues that needed to be addressed; 2) J.B.B. cannot properly provide for the child's safety, health, and development because of her intellectual limitations; 3) J.B. is not a qualified caretaker, having lived in J.B.B.'s parents' home for approximately one year in an unsanitary home, not having supporting Trevor since birth, and not having taken any positive steps to move Trevor out of foster care during the past year; 4) if J.B. was to "ever to qualif[y] as [Trevor's] caretaker it would be in the far distant future" and Trevor cannot wait forever, having never lived with his parents; 5) "[a] bond [was] developing between Trevor and his foster mother, and unless she is replaced by a competent, caring alternative, [Trevor] may be emotionally and psychologically harmed;" 6) alternative caretakers have neither been found, nor been suggested by either parent; and 7) termination of parental rights will not do more harm than good because Trevor has not had a relationship "to speak of with his birth parents."

A confirming order was entered the same day. The three defendants appeal. Contrary to the appellants, the Law Guardian supports the decision below.

Termination of parental rights is authorized when found to be in the best interests of the child. N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 434 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002). Such actions require proof by clear and convincing evidence. Div. of Youth & Family Servs. v. L.C., 346 N.J. Super. 435, 439 (App. Div. 2002). Termination actions brought under N.J.S.A. 30:4C-15.1a are decided under a four-part "best interests of the child" standard, first enunciated by the Court in N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-611 (1986) and now codified in N.J.S.A. 30:4C-15.1a. Under that standard, parental rights may be terminated only when:

(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-15.1a.]

The four prongs of the best interests test "are neither discreet 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). The considerations are fact sensitive. N.J. Div. of Youth & Family Servs. v M.M., 189 N.J. 261, 280 (2007).

On appeal, factual findings and conclusions of the trial judge are generally given deference, especially "when the evidence is largely testimonial and involves questions of credibility." Cesare v. Cesare, 154 N.J. 394, 412 (1998) (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). "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. Accordingly, "an appellate court should not disturb the 'factual findings and legal conclusions of the trial judge unless [it is] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Cesare, supra, 154 N.J. at 412 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). "The appellate court should 'exercise its original factfinding jurisdiction sparingly and in none but a clear case where there is no doubt about the matter.'" Ibid. (quoting Rova Farms, supra, 65 N.J. at 484). However, our obligation to defer to the trial court "does not extend to issues of law." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 89 (App. Div. 2006).

J.B.B.'S APPEAL.

On appeal, J.B.B. argues:

POINT I.

THE TRIAL COURT ERRED IN RULING THAT DEFENDANT'S PARENTAL RIGHTS SHOULD BE TERMINATED AS THE STATE FAILED TO PROVE, BY THE REQUIRED CLEAR AND CONVINCING EVIDENCE, THAT TERMINATION OF THE PARENTAL RIGHTS WAS APPROPRIATE.

We have considered the argument advanced by J.B.B. in light of the record; and for the reasons stated by Judge Vincent Segal in his comprehensive, oral decision of December 21, 2006, we conclude that the evidence clearly and convincingly establishes that the children's best interests assessed under the statutory standards, N.J.S.A. 30:4C-15.1a, warrants termination of J.B.B.'s parental rights to Jason and Trevor. R. 2:11-3(e)(1)(A). Notwithstanding, we add the following comments.

J.B.B. argues that the trial judge erred in determining that DYFS had proven by clear and convincing evidence each of the four prongs of the best interests of the child standard. As to the first prong, J.B.B. contends that the trial judge had concluded "that the sole basis for . . . finding that the first prong had been satisfied was that [J.B.B.] lived in a dirty house with [Jason] and did not seem to understand the significance of that." J.B.B. contends that the judge "improperly . . . equated [her] intellectual limitations with neglect of the children and that was simply wrong." As to the second prong, J.B.B. contends that although the trial judge had concluded that she would not be able to independently parent, he failed to consider that "together with her family as support mechanism and assistors," she could be a good parent. J.B.B. asserts that she demonstrated that she had the capacity to change, noting that shortly before the trial, she and J.B. had obtained a new, clean, and appropriate apartment. We disagree.

Termination under the statute is not limited to intentional harms inflicted by the parents or to harms caused by the parents' abuse of drugs or alcohol. Although those factors are ones that may be considered by the court, the standard under the statute remains the "best interests of the child." A.G. supra, 344 N.J. Super. at 439; N.J.S.A. 39:4C-15.1a. The required harm under the first prong of the test "must be one that threatens the child's health and will likely have continuing deleterious effects on the child." In re Guardianship of K.H.O., 161 N.J. 337, 352 (1999). The primary focus under the first prong is whether the parent has harmed the child or may harm the child in the foreseeable future. A.W., supra, 103 N.J. at 607. "Although a particularly egregious single harm can trigger the standard, the focus is on the effect of harms arising from the parent-child relationship over time on the child's health and development." K.H.O., supra, 161 N.J. at 348. Harm under the first prong may be established by evidence that parents allowed their children to live in deplorable, unhealthy and unsafe conditions, and by withdrawal of the parents' solicitude, nurture and care for an extended period of time. In re Guardianship of D.M.H., 161 N.J. 365, 379-83 (1999).

Under the second prong of the best interests of the child standard, the court must "determin[e] 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. DYFS can "satisfy the second prong if it can show 'that the child will suffer substantially from a lack of stability and a permanent placement and from the disruption of [his or] her bond with foster parents.'" M.M., supra, 189, N.J. at 281 (quoting K.H.O., supra, 161 N.J. at 363).

The evidence in the record establishes that J.B.B.'s inability to properly care for her children threatened the children's health, safety, and welfare. The home in which J.B.B. was residing with Jason on August 16, 2004, when DYFS responded to a referral, was deplorable, not because of its physical structure, but because of the un-cleanliness of the home. Nor was the unsanitary condition caused by poverty of its occupants; it was caused by the actions and inactions of the occupants. Roaches and other insects were seen throughout the house, including Jason's crib and inside the refrigerator. Dog feces were on the floor, and a strong odor of animal urine permeated the home. During the inspection, the caseworker noticed J.B.B. lying on the bed in a bedroom with a dog, both covered with roaches and gnats. Because J.B.B. and her family failed to maintain the home in a clean and sanitary condition, Jason was removed pursuant to a fifteen-day voluntary placement agreement, and subsequently to a six-month agreement.

Notwithstanding DYFS providing support services for the family, J.B.B. continued to reside in the unsanitary home for almost one year. It was not until November 2006, that J.B.B. and J.B. obtained suitable housing. By that time, Jason had been placed out of his home for more than twenty-one months, and Trevor had never resided with his biological parents.

We, like the trial judge, are satisfied that J.B.B. did not intentionally endanger her children's safety, health, or welfare, nor do we determine that J.B.B. was unwilling to eliminate the harm facing the children. Rather, we conclude that J.B.B. is not able to eliminate the harm because of her limited intellectual capabilities. A.G., supra, 344 N.J. Super. at 440. "That [J.B.B.] may be morally blameless is not sufficient to tip the scales in [her] favor." Id. at 438.

The trial court's conclusion that J.B.B. is not able to eliminate the harm facing her children is amply supported by the record. Dr. Norman Schaffer, a psychologist who evaluated J.B.B. on April 22, 2005, opined that J.B.B.'s "learning problems, according to her score on the brief intelligence test, indicates that she functions in the mentally retarded range . . . . Her understanding of emotionally provocative and complex situations was too simplistic." Concerning the unkempt condition of J.B.B. parents' home, Dr. Schaffer stated "[t]he above information does not help understand how the problems in the hygiene of the home were created. It is clear from my evaluation that she was not able to change the direction in which the house was going."

Dr. Maryann F. McLaughlin, a second clinical psychologist, examined J.B.B. on March 20, 2006. Dr. McLaughlin opined:

[J.B.B.'s] cognitive and emotional functioning are such that she is not capable of parenting by herself. She does not have the ability to cope with daily responsibilities for herself, and certainly not for children. Her cognitive ability does not allow her to generalize across situations. This means that she could be taught to deal with expected stressors today, but she would not be able to deal with the same stressors at a later date. She is also not able to apply previously learned skills to new situations. [J.B.B.] lacks the ability to cope with emotional situations so she withdraws . . . . [J.B.B.] would not deliberately hurt the children. Her personality functioning does not allow her to function well enough to parent children.

It is therefore recommended that contact between [J.B.B.] and the children be supervised at all times so that she does not become overwhelmed and so the children will be safe.

The opinions of the two psychologists were supported by Dr. Joanne M. Schroeder, who not only conducted a psychological evaluation of J.B.B., but also a parenting evaluation of her with her children. Dr. Schroeder agreed that J.B.B. functions intellectually at the extreme low range or first percentile.

During the bonding assessment of J.B.B. with her two sons, Dr. Schroeder noted that as to Jason, J.B.B. "was not able to control her anger. She smacked [Jason] five times in about half an hour, twice upon first seeing him. She yelled at him and mocked him." Concerning her verbal interaction with Jason, Dr. Schroeder noted: "[J.B.B.'s] speech served a function of sabotaging the relationship with his current caregiver. [J.B.B.] yelled at [Jason] because she thought he called the foster mother 'Mommy.' She told him his foster mother was dead. She called the foster mother 'stupid' in front of him." As to termination, Dr. Schroeder opined "from a psychological standpoint, termination of this relationship will not do more harm than good. During the evaluation, [J.B.B.] psychologically mistreated [Jason]."

As to J.B.B.'s bonding evaluation with Trevor, Dr. Schroeder noted that: "[J.B.B.] was not able to accept correction of her caregiving behavior by others. She had been told the formula was measured for a four-ounce bottle but she made an eight-ounce bottle. She repeatedly voiced anger about this correction and insisted she was right." As to verbal communications with Trevor, Dr. Schroeder stated that J.B.B. "had been told her nicknames for [Trevor] were not acceptable, but she called him 'Chunky butt' and 'Mommy's little fat ass' anyway. Given her intellectual limitations, she would need help at times, but she did not accept help." As to J.B.B.'s parenting skills, Dr. Schroeder stated that she "showed" adequate emotional responsiveness, though inconsistent, for this infant. However, she made the bottle diluted to half, and angrily insisted that she was correct. There was also one instance where she slapped [Trevor's] hand away from his mouth, unnecessarily." Concerning termination, Dr. Schroeder opined that "[f]rom a psychological standpoint, termination of this relationship would not do more harm than good for [Trevor]," noting that Trevor had little reaction to separation from his mother during the evaluation.

Overall, Dr. Schroeder opined:

Taking into account the history, the observations of [J.B.B.] and her children, and the testing, the results of the current examination revealed that [J.B.B.] is not able to provide her children with adequate parenting. Because of her intellectual limitations, her reasoning and problem solving are limited. She cannot control her angry behavior. She is capable of being nurturing, but because of her limitations, she cannot nurture consistently. She should not be left alone with the children because she is unable to safely care for them.

Lastly, the court's determination that J.B.B. was not able to properly care for her children by herself was supported by the testimony of Dr. Kenneth Goldberg, who conducted a psychological evaluation of J.B.B. and a bonding evaluation of her with Jason and Trevor. The evaluations were conducted on May 23, 2006. Dr. Goldberg concluded that J.B.B.'s IQ score of 71 demonstrated she suffered from intellectual limitations, noting that J.B.B. had "significant parental flaws" and "would have difficulty controlling her emotions, at least in certain context[s]." The doctor stated that J.B.B. had mental health issues which "had crossed the levels where I would say yes, it was relevant to her capacity to take care of a child." As to J.B.B.'s capacity to parent, the doctor opined: "I certainly concluded that if she were parenting by herself, as the primary individual that supports, I would have significant questions about her competency to parent." However, with support, the doctor stated: "I did on the other hand see possibilities of her parenting competently if embedded in a larger family system . . . . But I saw information that at least would leave open the door that she could be a better parent, a much better parent, and possibly a competent parent, if the context, the family supports, were involved."

Contrary to J.B.B.'s contention, the judge did consider whether J.B.B. would receive support from her family and concluded that any such support would not overcome J.B.B.'s limitations. Dr. McLaughlin's evaluation of J.B.B.'s father reflected that he was in the borderline range of the fifth percentile and recommended that he "not be allowed unsupervised time with the children, as he will find it difficult to cope with the parenting challenges." As to J.B.B.'s mother, Dr. McLaughlin stated that she "did not demonstrate the ability to successfully parent her grandchild." As to J.B., Dr. McLaughlin stated that he "does not demonstrate the ability to successfully parent Jason." As to J.B.B.'s sister, Aunt A.P., although having cared for Jason for approximately fifteen months, she stated that she was no longer able to care for him because of the demands of her husband. As to A.P.'s son and daughter-in-law acting as caregivers, they were ruled out after DYFS had learned that A.P.'s daughter-in-law's father, living with his daughter and her husband, was a convicted sex offender.

We are satisfied that the trial judge properly considered what support, if any, J.B.B. would receive from other members of her family. We discern no mistake in the judge's conclusion that J.B.B. would not receive from her family the support required to properly care for her children.

M.W.'S APPEAL.

On appeal, M.W. argues:

POINT I.

A PARENT'S RIGHT TO HAVE A RELATIONSHIP WITH HIS OR HER CHILD IS A FUNDAMENTAL RIGHT PROTECTED BY BOTH THE CONSTITUTIONS OF THE UNITED STATES AND THE STATE OF NEW JERSEY.

POINT II.

THE COURT FAILED TO PROPERLY EVALUATE THE THIRD PRONG OF THE FOUR PRONG TEST FOR TERMINATION OF PARENTAL RIGHTS AS SET FORTH IN N.J.S.A. 30:4c-15.1(a).

POINT III.

THE APPELLATE DIVISION IS NOT REQUIRED TO GIVE DEFERENCE TO THE TRIAL JUDGE ON THE ISSUES OF THE APPEAL THAT DO NOT PRIMARILY DEAL WITH FINDINGS OF FACT.

M.W. does not challenge the trial judge's determination that DYFS proved the first, second and fourth prongs of the best interests of the child standard by clear and convincing evidence. M.W. argues that the judge erred in concluding DYFS had proven the third prong of the standard. M.W. contends that DYFS failed to make "reasonable efforts" to provide him services in order to assist and to correct the circumstances which led to Jason's placement in foster care. M.W. also asserts that DYFS failed to consider alternatives to termination as required by the statute.

While a parent's incarceration does not justify termination of his or her parental rights per se, it "is a relevant factor in determining whether the parent-child relationship may be terminated." In re Adoption of Children by L.A.S., 134 N.J. 127, 135 (1993). "Incarceration is regarded as probative of whether the parent is incapable of properly caring for the child or had abandoned the child. It is, therefore, a factor that is unquestionably relevant to [determine] whether the parental relationship should be terminated." Id. at 136-37. When determining whether to terminate an incarcerated parent's parental rights, the court should consider the parent's term of incarceration, id. at 140, "whether the attempts to maintain a parent-child relationship will be harmful to the child," id. at 139, and whether the parent had a relationship with the child prior to incarceration. Ibid. In addition, the court should consider the nature of the underlying crime, giving rise to incarceration as that factor may "bear on parental unfitness and the likelihood that future harm will result to the child." Id. at 142. "Crimes may be indicative of serious personality flaws and emotional instability that are inconsistent with being a fit parent. Some acts of criminality leave no reasonable hope for rehabilitation; thus, behavior that could endanger the children may be likely to recur." Ibid. (internal citation omitted).

Here, M.W. was convicted of endangering the welfare of a child, the charge arising out of a sexual assault of an unrelated minor child, the son of J.B.B.'s friend. There are few acts of depravity more scorned by society because of the harmful effects upon the victim than this one. Although the crime does not require the automatic termination for M.W.'s parental rights, it is a factor, along with a five-year period of incarceration, that the trial judge correctly gave great weight. Id. at 143.

That the nature of defendant's crime should weigh heavily in favor of termination, although not determinative by itself, is also indicated by N.J.S.A. 9:2-4.1b. That statute provides that a person convicted of endangering the welfare of a child "shall not be awarded the custody of or visitation rights of any minor child, except upon a showing by clear and convincing evidence, that it is in the best interests of the child for such custody and visitation rights to be awarded." N.J.S.A. 9:2-4.1b. Although section "c" of that statute provides that a denial of custody under subsection "b" "shall not by itself terminate the parental rights of the person denied visitation or custody," N.J.S.A. 9:2-4.2c, it is a factor that the trial judge may consider in determining whether defendant is unfit to act as a parent.

As to M.W.'s contention that DYFS failed to make reasonable efforts to provide him services in order to correct the circumstances which led to Jason's placement in foster care, we are satisfied that DYFS did provide reasonable services to J.B.B. in an attempt to correct the circumstances which led to Jason being removed from the home. Under the facts of this case, we conclude that was all that was necessary. J.B.B. informed Drs. Schroeder and Goldberg, as well as one of the facilitators, that Jason was conceived when she was raped by M.W., after which they parted. M.W. has never resided with Jason. M.W. has neither provided Jason with fatherly care, nor with financial support. M.W. was incarcerated when DYFS found Jason living in an unsanitary dwelling, requiring his removal from the home. M.W. did not directly contribute to the unsanitary conditions of J.B.B.'s parents' home. Under these circumstances, we determine that DYFS was not required under the second prong of the statute to provide services directly to M.W., as long as DYFS provided reasonable services to J.B.B. and her immediate family; and it did.

To require DYFS to provide services directly to M.W., who is and will be incarcerated for a number of years, having no ability to provide for Jason's safety and welfare, would be meaningless. Courts "will not construe a statute or a regulation in a manner that produces an absurd result or that renders a part of it meaningless." H.K. v. Div. of Med. Assistance and Health Servs., 379 N.J. Super. 321, 328 (App. Div.), certif. denied, 185 N.J. 393 (2005).

Moreover, M.W. does not state what services DYFS should have provided to him while incarcerated. It is not even clear whether DYFS has the ability to provide additional services to an individual while incarcerated in a State prison. Generally, services to further rehabilitation are provided by the Department of Corrections, not DYFS. However, DYFS did arrange for Dr. Schroeder to conduct an evaluation of M.W. while in prison. Dr. Schroeder opined that M.W.'s answers to a personality assessment inventory indicated that he was open and honest and did not exaggerate or minimize his problems. Nevertheless, she further opined that "[p]eople with his scores have a hard time feeling empathy. They can have, they have impulsicity, egocentricity, and anger that cause them to lash out at people they feel have slighted them. They usually have trouble maintaining a job, feel a distinctive lack of support from others." Concerning his scores, the doctor stated that they "indicated a strong potential for aggressive behavior against others."

As to M.W.'s assertion that DYFS failed to attempt to seek alternatives to termination of his parental rights by determining whether he had a family member who would be able to care for Jason, we find the argument meritless. DYFS considered but ruled out alternative caretakers as presented by J.B.B. Additionally, M.W. never provided DYFS with names of any prospective caretakers.

J.B.'S APPEAL.

On appeal, J.B. argues:

POINT I.

THE JUDGMENT TERMINATING [HIS] PARENTAL RIGHTS MUST BE REVERSED BECAUSE THE NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES DID NOT MEET THE FIRST OR THE SECOND PRONG OF THE BEST INTERESTS TEST, AND NO FINDING OF ABUSE OR NEGLECT WAS EVER MADE AS TO [HIM].

POINT II.

THE ORDER TERMINATING THE DEFENDANT'S PARENTAL RIGHTS MUST BE REVERSED BECAUSE THE NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES NEVER MADE REASONABLE EFFORTS TO REUNITE [TREVOR] WITH [J.B.], HIS FATHER.

POINT III.

THE ORDER TERMINATING THE DEFENDANT'S PARENTAL RIGHTS MUST BE REVERSED BECAUSE THE NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES DID NOT SATISFY THE FOURTH PRONG OF THE BEST INTEREST[S] TEST.

J.B. argues that the trial judge erred in determining that DYFS had proven the four prongs of the best interests of the child standard by clear and convincing evidence. J.B. contends that no finding of abuse and neglect was ever made against him and that the trial judge's conclusions that J.B.'s conduct and actions had endangered Trevor's safety, health, and development were not supported by credible evidence in the record. J.B. asserts that the unsanitary condition of the maternal grandparents' home was not relevant because Trevor was hospitalized and placed in the Dooley House because of breathing problems developed at birth, and subsequently placed directly into foster care. J.B. also argues that before seeking termination, DYFS should have considered a plan that included increased parenting time coupled with counseling and/or therapy to assist J.B. because Trevor had only been in foster care for a couple of months prior to trial and pursuant to DYFS's own expert, would not have suffered if removed from the foster mother at that time. We disagree.

A parent has a constitutional right to enjoy a relationship with his or her child. K.H.O., supra, 161 N.J. at 346. Accordingly, "[p]resumptions of parental unfitness may not be used in proceedings challenging parental rights . . . and all doubts must be resolved against termination of parental rights." Id. at 347. In fact, "[t]here is a presumption that parents will act to promote the best interests of their children." R.L., supra, 388 N.J. Super. at 87.

When a biological parent resists termination of his or her parental rights, the court's function is to decide whether that parent has the capacity to eliminate any harm the child may already have suffered, and whether that parent can raise the child without inflicting any further harm. That is, the focus of the inquiry is not only whether the parent is fit, but also whether he or she can become fit within time to assume the parental role necessary to meet the child's needs.

[Ibid. (internal citation omitted).]

Here, the trial judge determined that J.B. had not eliminated the harm that J.B.B. posed to Trevor, and probably would not eliminate that harm in the near future. The judge concluded that "if [J.B.] is ever qualified to be [Trevor's] caretaker, it would be in the far distant future. [Trevor] cannot wait forever. He will be a year old in less than a month, and he has never lived with his parents." In reaching that conclusion, the trial judge observed that J.B., who was leaving for active military duty with the National Guard, had minimized J.B.B.'s shortcomings and would probably leave Trevor with her unattended. We conclude that the record adequately supports those determinations.

We agree with J.B. that DYFS did not substantiate abuse and neglect against him. The complaint was originally filed as to Jason against J.B.B. and M.W. because neglect had been substantiated as to J.B.B.'s living in unsanitary conditions with Jason. Trevor was hospitalized following his birth and was immediately placed in the Dooley House because he suffered breathing problems following his birth. After Trevor's release from the Dooley House, he was immediately placed into foster care. While Trevor was in the hospital and Dooley House, J.B. visited him.

We also agree with J.B. that contrary to his wife, he is mentally capable of parenting Trevor. Dr. Schroeder performed a parenting psychological evaluation of J.B. She concluded that he "showed good reading skills and adequate intelligence to enable him to parent. He was able to think rationally, logically, and coherently, but his emotional skills were limited." On observation, Dr. Schroeder determined that J.B. handled Trevor appropriately. It was the doctor's opinion that while J.B. was marginally able to parent Jason, he was "able to parent [Trevor]." However, Dr. Schroeder opined that J.B. would probably leave Trevor with J.B.B. unattended when he himself could not care for the child because J.B. "denies that there is a substantial problem with [J.B.B.'s] parenting." It was of concern to Dr. Schroeder because J.B. had recently enlisted in the Army National Guard and was scheduled for twelve weeks of basic training out of State. Although J.B. indicated that Trevor's maternal grandmother would help care for the two boys, and if ordered by the court, he would divorce J.B.B., Dr. Schroeder questioned his sincerity because he had stated "once he has the children back, no one can tell him who he can and cannot associate with."

At trial, Dr. Schroeder testified:

He doesn't recognize the serious problem that his wife has in taking care of the children. She is in my opinion as I've already testified, inappropriate to take care of the children, from hitting to emotional mistreatment, yet he doesn't understand that. He says that she is fine. I have serious concerns that he would leave the children alone in [her] care.

The evaluation results, again . . . I think most importantly here is that facing, he's going to basic training and he, his plan which he told me as of less than a month ago, was to leave the children in his wife's care with the assistance of the grandmother, which is not an appropriate plan. If he leaves the children and he is -- the children are supposed to attach to this person, they need an attachment figure in their life.

As to parenting Trevor, Dr. Schroeder stated:

For the same reasons that I spoke about with regard to [Jason], I am concerned about that. Again there is the beginning of an attachment with the foster parent on [Trevor's] part. Disrupt that, and now he goes back to a caregiver who's about to leave, who has plans to leave the child in the care of somebody who's not able to parent. And again, for the future with no recognition of -- despite -- excuse me -- despite the provision of parenting services, he still has this kind of problem that I testified to regarding his ability to manage [Jason].

J.B. contends that DYFS should have considered a plan that included increased parenting time coupled with counseling and/or therapy to assist him. Contrary to J.B.'s argument, the record discloses that psychotherapy had been recommended and court ordered, but J.B. did not attend any of the three sessions scheduled for him in March 2006. J.B. also missed several parenting support sessions due to incarceration. J.B. also argues that because Trevor had only been in foster care a couple of months prior to trial, Trevor would not have suffered if removed from his foster mother at that time. Although Dr. Schroeder conceded that because Trevor was very young he could transfer his attachment to a new caregiver if removed from the foster parent, she expressly conditioned her opinion on the proviso "that the caregiver is just as good as the current foster parent." Dr. Schroeder determined that was not the case as to Trevor's natural parents:

In this situation, the biological mother is not able to parent him for reasons that I have testified to. In this case, the biological father is not, is proposing to leave the child with a parent, with a mother who's not appropriate, and is in addition is about to leave himself, disrupting the attachment of the child.

Accordingly, Dr. Schroeder opined that she did not believe that termination of J.B.'s parental rights would cause serious and enduring harm.

We are satisfied that the record adequately supports the judge's conclusion that J.B. is unwilling or unable to eliminate the harm facing Trevor. Although J.B. did obtain clean, adequate housing for his family shortly before trial, he has failed to present a plan that would provide for the safety and care of his son. J.B. continues to minimize his wife's shortcomings and her inability to properly care for her children. Notwithstanding, J.B. has not developed a plan to care for his children, even when on active duty with the National Guard, other than leaving his son in the care of J.B.B. and her mother, two of the individuals who contributed to the unsanitary condition of the grandparents' home.

In affirming the trial judge's decision as to J.B., we considered the record below in light of the Supreme Court's recent decisions in N.J. Div. Youth & Family Servs. v. G.L., 191 N.J. 596 (2007) and M.M., supra. We conclude that the facts align more closely with those in M.M.

In G.L., the natural father of a baby girl was indicted for second-degree manslaughter and third-degree endangering the welfare of a child, after the death of his son, who had been left in his custody while the child's mother was at work. The father was subsequently convicted of the endangering charge. The autopsy report indicated that the child died from Shaken Baby Syndrome. G.L., supra, 191 N.J. at 600.

Prior to the father's trial, G.L. had given birth to a baby girl. Ibid. Because of concerns for the safety of the baby girl after the death of the baby boy, DYFS imposed restrictions on G.L. retaining physical custody of her daughter. "Those restrictions included a prohibition against [father] having unsupervised visitation with [the baby girl] and [G.L.'s] agreement to meet with a caseworker, participate in counseling, attend a parenting skills course, and undergo a psychological evaluation." Ibid. G.L. complied with all restrictions and recommendations. Because G.L. continued to believe that the father had not shaken their son, DYFS filed a complaint to place the baby girl under its care and supervision. Id. at 601.

A psychologist, who had examined G.L., recommended that she be reunited with her daughter. Id. at 602. Because the trial judge was concerned that the baby girl would be at risk due to G.L.'s "refus[al] to acknowledge that [father] shook their infant son to death," the judge changed the goal from reunification to adoption. Id. at 602-03. Following trial, the judge terminated G.L.'s parental rights, determining that "the continued relationship between [G.L.] and [father] placed their daughter at risk of harm once [father] was released from prison." Id. at 604. The judge "reasoned that [G.L.'s] unwillingness or inability to sever ties with [father] posed a serious risk to [the baby girl] despite [G.L.'s] absolute compliance with all DYFS's strictures." Id. at 604. On appeal, we affirmed.

The Supreme Court reversed, determining that DYFS had failed to prove each of the four statutory prongs by clear and convincing evidence. As to the trial judge's decision that mother's continued relationship with the father was by itself a threat to the baby girl, the Court disagreed, stating "[t]hat threat is based on speculation and not on clear and convincing evidence. The judge simply presumed that [G.L.] could not keep [the baby girl] safe." Id. at 608. In reaching its decision, the Supreme Court distinguished G.L. from M.M. Id. at 607-08.

In M.M., DYFS filed a complaint seeking to terminate the parental rights of both parents to their minor son. The evidence presented at trial established that the mother was cognitively limited, to where she functioned within the mildly retarded range, and that she abused alcohol, often running away from home to binge drink. M.M., supra, 189 N.J. at 270-71. Contrary to their conclusions about the mother, the experts found the father was capable of caring for his son. Id. at 272. However, one of the experts had opined that the father's inability to stabilize his wife was an obstacle in raising the child. Ibid.

At the conclusion of the trial, the judge terminated both parents' rights, concluding that the son was "at risk because of the mother's destabilizing influence on the home, a negative influence that must be considered when evaluating the father's [parental] rights." Id. at 267. On appeal, we affirmed the termination of the mother's parental rights but reversed as to the father's, concluding that the father's rights could not be terminated because of the mother's failings. Id. at 277. On certification granted as to the father's rights only, the Supreme Court reversed, referring to the trial judge's findings and conclusions. Id. at 268.

In terminating the father's parental rights, the Court was satisfied that the record supported the trial court's determination that he "failed to provide a home in which the son was not in constant danger. Although we are mindful of the mother's limitations, it is the father who established the dangerous situation at home, who maintains those conditions, and who is unable or unwilling to substantially alter those conditions." Id. at 282. The Court noted that the father had failed to provide a suitable plan under the circumstances for protecting his son from the harmful home environment, which the father maintained by failing to recognize and acknowledge the threat to his son by the boy's mother. See G.L., supra, 191 N.J. at 607, where the Court in distinguishing M.M. stated: "There [in M.M.], the father insisted on continuing to live with his wife and offered no realistic parenting plan that would have kept his son away from his offending spouse." Such is the case here.

J.B.'s parental rights were terminated because of his inactions. J.B. continues to minimize his wife's inability to care for their son. Notwithstanding having been offered services, and unlike G.L., J.B. did not attend the three sessions of psychotherapy scheduled for him in March 2006. He also failed to attend several of the parenting support sessions because he was incarcerated. Moreover, like the father in M.M., J.B. failed to present a suitable parenting plan for his son, notwithstanding J.B.'s anticipated active duty National Guard training. The only plan J.B. suggested was to leave Trevor in the care of J.B.B. and her mother, individuals who are not capable of caring for the child. J.B. never suggested any other individuals, even members of his family, who might assist in his son's care.

Accordingly, we affirm the judgment terminating the parental rights of J.B.B., J.B., and M.W., to the two children. Affirmed.

The judgment and the subsequent three notices of appeal were mistakenly filed under Docket No. FG-17-36-06. The complaint, amendment to the complaint, and subsequent case management orders were filed under Docket No. FG-17-35-06.

Because of the similarity of the children's initials with those of one or more of the defendant parents, we have designated the children by fictitious names in order to protect their anonymity.

The three appeals were consolidated by order of March 6, 2007.

The order bears an entry date of January 23, 2005, and a stamped, filed date of January 24, 2006.

Contrary to the information provided to DYFS, A.P. testified that the person who had been convicted of a sexual offense was not her daughter-in-law's father who was then deceased, but rather the boyfriend of her daughter-in-law's mother.

(continued)

(continued)

2

A-3110-06T4

RECORD IMPOUNDED

October 31, 2007