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

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2815-06T42815-06T4

NEW JERSEY DIVISION OF YOUTH AND

FAMILY SERVICES,

Plaintiff-Respondent,

v.

M.B.,

Defendant-Appellant,

IN THE MATTER OF THE GUARDIANSHIP

OF C.W.M.,

Minor.

_______________________________

NEW JERSEY DIVISION OF YOUTH AND DOCKET NO. A-3318-06T4

FAMILY SERVICES,

Plaintiff-Respondent,

v.

C.M.,

Defendant-Appellant,

IN THE MATTER OF THE GUARDIANSHIP

OF C.W.M.,

Minor.

________________________________________________________________

 

Submitted November 28, 2007 - Decided

Before Judges Lisa and Lihotz.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FG-12-89-06.

Yvonne Smith Segars, Public Defender, attorney for appellant M.B. in A-2815-06T4 (Anna F. Patras, Designated Counsel, of counsel and on the brief).

Yvonne Smith Segars, Public Defender, attorney for appellant C.M. in A-3318-06T4 (Dianne Glenn, Designated Counsel, of counsel and on the brief).

Anne Milgram, Attorney General, attorney for respondent in A-2815-06T4 and A-3318-06T4 (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mary Jane Lembo Cullen, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minor C.W.M. in A-2815-06T4 and A-3318-06T4 (Christopher A. Huling, Assistant Deputy Public Defender, on the brief).

PER CURIAM

This is a termination of parental rights case. We decide in this opinion the consolidated appeals of M.B., the mother, and C.M., the father, of the judgment terminating their parental rights to their son, C.W.M., who was born on October 28, 1999. Appellants argue that the Division of Youth and Family Services (DYFS or Division) failed to establish by clear and convincing evidence all four prongs of the best interest test. As part of their argument under the third prong, they contend that the judge erred in failing to properly consider kinship legal guardianship as an alternative to termination. They further argue that the trial judge erred in allowing into evidence the report and testimony of the Division's psychiatric expert, Dr. Alexander Iofin, because of the late delivery of the report. We reject these arguments and affirm.

M.B. and C.M. were never married. At the time of C.W.M.'s birth, they were involved in an ongoing relationship, living in the home of C.M.'s parents. M.B. tested positive for marijuana during her pregnancy. Four days after C.W.M's birth, the Division received a referral indicating that M.B. and C.M. were involved in a domestic violence incident, during which C.M. was holding C.W.M. The referral also indicated that both parties had a history of drug abuse. After an investigation, the Division did not substantiate the allegations of abuse and neglect. However, both parties were referred to Easter Seals for a determination of the necessity of drug treatment. The Division received another referral in 2002, alleging abandonment, but that was also unsubstantiated after investigation.

On June 14, 2004, the Division received a third referral, alleging that the child was being neglected and was not receiving appropriate medical or dental care, and that the parents were substance abusers who habitually slept all day. A caseworker observed that the paternal grandparents' home was clean and the child was observed to be well, clean and appropriately dressed. M.B. and C.M. denied the allegations, but agreed to complete substance abuse evaluations.

The Division's investigation revealed information from the local police department that the parties had a history of domestic violence, simple assault, self-inflicted wounds, possession of marijuana and drug paraphernalia, and missing prescription drugs. The investigation further revealed, based upon contact with the family's doctor, that the child had not been seen since October 19, 2001. The doctor also noted his concern that C.M. was not receiving proper treatment for his diagnosed bipolar disorder.

On November 30, 2004, the Division received a call from C.W.M.'s maternal aunt, J.B., who advised that she had recently taken over the care of C.W.M. M.B. and C.M. had been thrown out of the paternal grandparents' home after they stole the grandmother's wedding band to purchase drugs.

A caseworker visited J.B.'s home, where she lived with her husband and brother. The four-bedroom single-family home was clean and contained adequate food and space, allowing C.W.M. to have his own room. C.W.M. was clean and appropriately dressed. J.B. did not know the whereabouts of either parent.

On December 7, 2004, C.W.M. was seen by a dentist and had six teeth extracted as a result of severe infection. Based upon these events, the allegations of neglect were substantiated.

On December 8, 2004, M.B. and C.M. went to the DYFS office. They confirmed they had been thrown out of the grandparents' home and C.M. admitted stealing his mother's wedding band. Both parents were unemployed, and because they had nowhere to live independently, they said they would be staying with a close friend temporarily. They denied drug use and agreed to submit to urine tests (which were negative) and substance abuse evaluations. They signed a fifteen-day consent form, allowing placement of C.W.M. with J.B.

The substance abuse evaluations were conducted for M.B. on December 9, 2004 and for C.M. on December 10, 2004. M.B. admitted to smoking marijuana and taking prescription pain medications, but denied having a substance abuse problem. She was referred to Open Door for outpatient treatment to address her sedative use and develop "a substance free social network." C.M. admitted to smoking marijuana and taking Zanax and Adderall. He stated he attended a detox program at Bergen Pines in February 2004, but failed to follow through. He was also referred to Open Door to address his addiction to sedatives and to develop a "sober, clean social network."

On January 4, 2005, J.B. informed DYFS that M.B. and C.M. had been thrown out of their friend's house for stealing. On January 10, 2005, M.B. informed the Division she was staying with her brother and C.M. was staying with a friend. She also advised that she contacted Open Door, but did not attend because she needed $120. M.B. was referred to CACD for assistance, and on January 20, 2005, she advised DYFS she had begun the process of enrollment.

On February 9, 2005, psychological evaluations of both parties were conducted by Dr. Karen Wells. With respect to C.M., she noted his history of prescription drug use and previously diagnosed bipolar disorder, and concluded:

The forestated concerns all highlight [C.M.'s] emotional and psychological instability. His personal functioning is less than adaptive, with indications that he has neither received any treatment services nor appreciates the extent and nature of his own difficulties. While [C.M.] recognizes that he has made "mistakes" in his past, there are indications that he is either minimizing or being less than honest in his representation that these difficulties continue.

There is no clinical information or test materials which support [C.M.'s] ability to resume parental care and responsibility for [C.W.M.]. He has significant personal, emotional, and psychological functioning which greatly hamper his ability to provide for his own needs. Clearly, it is clinically contraindicated to place [C.W.M.] in his care, as his son would be exposed to neglectful conditions, with the potential of accidental injury or harm. The risk posed to [C.W.M.] cannot be underestimated if he were placed in [C.M.'s] care. It is recommended that until [C.M.] begins to have a recognition and appreciation of the extent and nature of his difficulties as well as a regard for the potential consequences affiliated with these difficulties, [C.W.M.] should continue to remain independent of his care. Moreover, as there are reports that [C.M.] continues to engage in illicit substance abuse, it is strongly recommended that only supervised visits would occur between him and [C.W.M.].

It is noted that [C.M.] will need to engage in substance abuse treatment, including a need to rule out inpatient treatment. . . . [I]t is the clinical impression of the present examiner that [C.M.] is neither ready nor committed to modify his lifestyle and make significant changes. As such, it is also apparent that the benefits of treatment cannot be fully realized or derived for him.

With respect to M.B., Wells noted her history of involvement with illicit drugs and concluded:

It is recommended that [M.B.] would complete substance abuse treatment services, with ongoing monitoring to ensure that she is abstinent. It is the clinical impression of the present examiner, however, that [M.B.] is neither ready nor committed to abstaining from drugs at this time in her life. She has a lengthy history of drug involvement, has not experienced significant consequences to prompt abstinence, and is involved in a relationship with a paramour who not only supports her drug use, but is also drug involved himself. [M.B.] has utilized drugs to cope with life difficulties, recreationally, and to ward off pain. There are no indications that her drug use is significantly troublesome to her. Moreover, [M.B.] is comfortable with her son being in her sister's care, disclosing that she would trust both her life and that of her son to her sister.

It is recommended that [the Division] would provide and [sic] supportive services to [M.B.'s] sister so as to further stabilize [C.W.M.'s] placement with her. In the interim, not only is it recommended that [M.B.] would engage in substance abuse treatment, but that she would also attend individual psychotherapy as there are many issues warranting such involvement. . . . In regard to contact with [C.W.M.] an unsupervised contact is not supported.

Continued monitoring by the Division in the Spring of 2005 revealed that C.W.M. was attending half-day kindergarten, he appeared to be very well-adjusted and happy in J.B.'s home, and he spent some weekends at the home of his paternal grandparents, which worked out well. The parents were allowed liberal visitation, to take place in the caretaker's home and under her supervision. The parents visited C.W. very infrequently. When they did, C.W.M. enjoyed seeing them. J.B. and her husband informed the caseworker that they wished to adopt C.W.M. if his parents did not get their lives together. They expressed their concerns that M.B. and C.M. were not in treatment, were not employed, and were not making any attempts to see or call C.W.M.

On March 24, 2005, the caseworker contacted both parents. M.B. said she would be starting drug and alcohol treatment the following Monday at Open Door. However, she never showed up for that treatment. On April 8, 2005, the Division was notified that C.M. was thrown out of his parents' home again for stealing. The living arrangements of both parents were unknown at that time.

On May 12, 2005, both parents failed to appear at a compliance review hearing, as a result of which the court ordered suspension of their visitation rights until it was established that they entered treatment. At the hearing, the caseworker learned that the parents were being housed by Welfare at a local motel. The same day, the caseworker went to the motel and met with the parties. She informed them of the suspension of visitation until after they successfully entered treatment.

C.M. said he would begin treatment at Open Door on May 16, 2005 and M.B. would begin treatment at JFK Medical Center on May 19, 2005. However, on May 20, 2005, the Division learned that M.B. failed to show up for treatment at JFK, and on June 7, 2005, the Division learned that C.M. had missed five sessions at Open Door since May 23, 2005. Throughout the summer months of 2005, both parties were noncompliant with drug treatment. C.M. enrolled in a methadone treatment program in New Brunswick, but left after only a few days. M.B. tested positive for opiates, and C.M. tested positive for opiates and cocaine on several occasions.

During this time, M.B. received an $11,000 inheritance, which she later claimed she used to purchase a car and pay off fines and warrants, rather than putting any portion of the money towards obtaining stable housing for potential reunification of the family. The parties were evicted from the motel in July 2005. They failed to appear at a compliance review hearing on August 4, 2005, and suspension of their visitation rights was continued, pending their successful entry into treatment programs.

In August 2005, J.B. gave birth to a baby boy, and according to J.B., C.W.M. wanted to be the baby boy's brother, not cousin. In later evaluations, C.W.M. referred to this child as his brother. In an October 4, 2005 visit, the caseworker discussed with J.B. and her husband the difference between adoption and kinship legal guardianship.

M.B. and C.M. failed to appear for another compliance review hearing on October 13, 2005, as a result of which the court relieved DYFS of its responsibility to exercise reasonable efforts to reunify the family until such time as the parties appeared before the court. After the parties again failed to appear on December 1, 2005, the court directed that a guardianship complaint be filed.

At this point, the Division had not heard from either parent since August 2005. Its investigation revealed that family members believed the parents were living in New York. J.B. reported that she once got a phone call from a homeless shelter to verify that she had C.W.M. C.M.'s mother reported that she saw M.B. and C.M. walking down the street in New York and that they appeared to be homeless. A family member reported that C.M. was in jail for petty larceny and M.B. was living in a homeless shelter.

On February 27, 2006, the Division filed a complaint for guardianship, seeking termination of the parental rights of M.B. and C.M.

On March 4, 2006, the Division received a message stating that C.M. and M.B. checked into a detoxification unit at New York's Metropolitan Hospital. On March 6, 2006, a caseworker contacted the hospital and eventually spoke with C.M. over the telephone. The caseworker informed C.M. of the status of court proceedings and sent him copies of relevant court documents. C.M. stated that both he and M.B. had been homeless for the past six months and that they intended to attend twenty-eight-day inpatient programs after their release from Metropolitan.

On March 14, 2006, M.B. and C.M. were referred to Kingsboro Addiction Treatment Centers' twenty-eight-day inpatient program. They completed the program and were referred to Damon House for outpatient treatment. Damon House, located in Brooklyn, New York, offered a full six-month community service program.

On May 8, 2006, the parties appeared before the court at a case management hearing. At that time, the court ordered that the Division's reasonable efforts be reinstated, that reports from M.B.'s and C.M.'s treatment programs be submitted, and that supervised visitation be resumed.

On May 24, 2006, a caseworker met with J.B. and her husband. The caseworker reported that C.W.M. appeared to be "happy and healthy" and that he was doing very well in school. J.B. expressed her concern about the recent court proceedings, especially the fact that the paternal grandparents were now urging kinship legal guardianship. The caseworker explained that the Division was continuing to pursue adoption as the goal.

On June 20, 2006, the Division received notification that M.B. was thrown out of Damon House after she became involved with another patient, contrary to program rules. As it turned out, M.B. married one individual, but hid that information from the program. She then sought a divorce from that individual and began a relationship with another patient. Thus, the relationship between M.B. and C.M. was no longer ongoing. At this time, C.M. informed the caseworker that he would seek sole custody of his son, that he intended to leave Damon House to find another program in New Jersey, and that he intended to find a job. The caseworker warned C.M. that following through with those plans would not result in a positive discharge from Damon House.

In July 2006, the Division received a call from M.B. who reported that she moved to Pennsylvania with the person she met at Damon House and had not sought referrals to a new program. The caseworker warned her that she was jeopardizing her chances of getting her son back by not completing treatment at Damon House and not seeking referral to another treatment program.

On August 21, 2006, C.M. left Damon House without completing the program. C.M. moved back to his parents' home in New Jersey with the stated intention of pursuing employment at Home Depot, which never materialized.

On August 22, 2006, C.M. appeared at a case management conference, but M.B. did not. The court granted C.M. continued supervised therapeutic visitation, to be supervised by the Division. The court temporarily suspended M.B.'s visitation rights.

On three dates in September and October 2006, C.M. visited with C.W.M. under the supervision of a DYFS caseworker. C.W.M. was happy to see his father, and they interacted appropriately.

On September 18 and 19, 2006, Dr. Alan Gordon conducted psychological evaluations of C.M. and C.W.M., and a bonding evaluation between C.M. and C.W.M. Gordon also conducted a bonding evaluation between C.W.M. and J.B. and her husband. Gordon presented his findings at trial.

On September 29, 2006, a caseworker telephoned C.W. to remind him of his appointment with Iofin for a psychiatric evaluation. C.M. claimed he was not informed of the appointment and he was not going to attend any more doctors' appointments. However, on October 19, 2006, C.M. finally attended the evaluation with Iofin, who presented his findings at trial.

C.M. informed DYFS at this time that he secured a job at New York Sports Club. However, he did not submit proof of this asserted employment.

On October 20, 2006, M.B. finally contacted DYFS after nearly three months with no contact. She advised she was staying in a Women in Transition Program in Lewisburg, Pennsylvania. She claimed she had been drug-free for seven months, but was not in a substance abuse program at the time.

On October 20, 2006, M.B. attended a psychological evaluation with Gordon and on November 1, 2006, she attended a psychiatric evaluation with Iofin. Both doctors presented their findings at trial.

Trial began on November 8, 2006 and continued on November 27 and 28, 2006. C.W.M. was then seven years old and had been living with J.B. and her husband continuously for two years. The caseworkers' many visits to the family home revealed that C.W.M. was happy and healthy, and he considered his younger cousin to be his brother. Although C.W.M. had recently visited with his father, C.W.M. had not seen his mother for a long time.

Gordon testified regarding C.M.'s history of drug abuse, noting,

[C.M.] started with marijuana at the age of 18, moved onto Opiates. He was taking Klonopin for the treatment of anxiety. And then he was self-medicating with street drugs, opiates for about two years. He stated that he is free of drugs at the time that I saw him, for about seven to eight months.

Gordon also briefly discussed C.M.'s history of drug treatment, mental health issues, housing, employment, and criminal activity.

When asked about C.M.'s parenting plan for C.W.M., Gordon replied,

The plan was that [C.W.M.] would live with him. The plans were rather vague in terms of what he would do with [C.W.M.], in terms of the care of the child. He would put him in daycare when he would work, or he would have his mother or family members assist him.

Gordon also discussed the results of the various psychological tests performed on C.M., and noted specifically that the Millon Clinical Multiaxial Inventory test revealed "fear of abandonment, repressed fear, often feels overwhelmed . . . depression, guilt, and anxiety," and that the Child Abuse Potential Inventory revealed that the validity and abuse scales were "elevated."

With respect to C.M.'s parenting abilities, Gordon testified as follows:

[Parenting] involves nurturance, or being able to provide the child with food, clothing, and shelter. It involves protection, and being able to protect the child from harm, whether real or potential. Stability in his own life. And guidance or being able to guide the child through each developmental stage.

I found that [C.M.] had a tendency to make his own rules. He left Damon House when he was kind of directed to stay there. He has not completed drug programs. He has unstable work history. He is living with his parents. And he didn't fulfill the criteria for parenting at the time that I saw him.

. . . .

[T]o be a guider you have to be a role model. And to be a role model you should be able to have a life that shows stability. And at this point, when I saw him, he wasn't showing stability in his life.

. . . .

[I]f [C.M.] cared for [C.W.M.] alone, I think he would have great difficulty. I think he would have difficulty in terms of he would need a job. He would need a place that's appropriate for himself and his son. I think that he has to demonstrate a stability in terms of drug use, as well as, a stability in terms of living a productive life.

. . . .

I think he's on the right track in terms of being a stable parent in terms of drugs. But the drugs [are] only one piece of the puzzle. There's also the other parts, being able to be productive, employed, having stability in terms of counseling, things like that.

Finally, Gordon testified that C.M. had not demonstrated an ability to replicate C.W.M.'s current stable living situation.

Gordon next testified to his psychological evaluation of M.B. He discussed M.B.'s history of drug abuse, noting that M.B. began using marijuana and alcohol at the age of eighteen and moved on to heroin, using up to ten bags a day, by the age twenty-four. Gordon also briefly discussed M.B.'s history of substance abuse treatment, housing, mental health, employment, criminal activity, sexual abuse, and education. He concluded that M.B. had no concrete, specific plans for C.W.M.'s care. Commenting on the results of the various psychological tests, he diagnosed M.B. with anti-social personality disorder, avoidant personality disorder with self-defeating personality traits, and dependent personality disorder. He also noted that the Child Abuse Potential Inventory test resulted in high abuse scores.

As to M.B.'s ability to parent, Gordon concluded:

I thought that [M.B.] certainly did not fulfill the criteria for parenting. She didn't have a place to stay. She has no employment. There's no stability in her life. And I had serious doubts whether she could guide her child through each developmental stage. I think she's still struggling with her own issues at this time.

. . . .

I made recommendations [to the Division with regard to reunification] for individual psychotherapy. I thought there were many issues that should be addressed. Drug treatment was a second issue, employment. [M.B.] indicated to me that she had been, prior to [C.W.M.], that there were cancer spots inter-uterine. And she has never gone back and taken care of it, and never had it checked. And one of my recommendations is she be seen for a gynecological examination to determine her health issues. I also thought that parenting skills classes.

. . . .

I thought she wasn't able to parent.

Gordon next testified to his psychological evaluation of C.W.M. He first discussed the results of the various psychological tests:

I gave him again, the Wechsler Intelligence Scale for children, which again it came up with an IQ score of 102. I gave him a Wide Range Achievement Test to see what his academics are. Reading above grade level, spelling is on grade level, arithmetic is a little below grade level. I gave him a sentence completion form. I asked him three wishes. He stated a parrot ruler of the world, and three more wishes. That's an interesting response, because he didn't say things like go back with mom, go back with dad. You know, where you might get it from other children.

I asked him to draw a picture of his family. He did draw his three figures, which he identified as mom, dad, and himself. I thought that was pretty significant. I think it indicates that he still wants that family unit, which children do.

He then discussed C.W.M.'s attachment and abandonment issues:

Well, the most important thing is that the child's in a very stable situation where he knows this is where he is located, that there's no fear that this will be -- that the rug will be removed from under him. That he's going to be here. There's a sense of security. And children who are seven years old need security. They need to know that, you know, I feel secure in this current situation.

When Gordon asked C.W.M. whether he would like to see his father more, less, or the same, C.W.M. replied, "the same."

Gordon described the bonding evaluation that took place between C.M. and C.W.M. He observed that C.M. "did well" with C.W.M. and "that there was real affection that [C.M.] showed for the child" and that C.W.M. "was happy to see [C.M.], and remained interactive with him throughout the session." However, Dr. Gordon characterized the bond between C.M. and C.W.M. as an "insecure bond" and further explained:

[T]he child can play with the parental figure, and interact, and enjoy it. But [C.W.M.] did not look toward his father for his basic needs. He wasn't upset when he left him. They separated very easily. He went back to his aunt, and left. There wasn't a feeling of wanting to hold on or staying to the situation.

Gordon then described the bonding evaluation between C.W.M. and his maternal aunt and uncle. There was a "very natural interaction" and C.W.M. "was very happy in [that] environment." The maternal aunt and uncle "had the criteria for parenting."

Gordon concluded that if the parental rights of M.B. and C.M. were terminated, C.W.M. would not suffer any emotional harm. He noted that the maternal aunt and uncle would still allow C.W.M. to have access to his biological parents. And even if this were not case, the need for permanency outweighed any need for the child's continued contact with the biological parents.

The Division's efforts to schedule a bonding evaluation between M.B. and C.W.M. was frustrated by M.B.'s long-term lack of contact with the Division.

Reginald Johnson, a Division case manager who handled C.W.M.'s case since July 2006, testified regarding the services provided to the family, as we have already discussed in this opinion. Johnson also explained that the Division provided funds for transportation to scheduled visitations and court appearances, and also assisted in getting the family medical insurance.

Johnson also testified to his conversations with J.B. and her husband. Although he discussed the possibility of kinship legal guardianship with them, they felt that kinship legal guardianship was not a sufficiently permanent plan for C.W.M. and that it would create suspense as to what the future might hold for him. In Johnson's view, M.B. and C.M. were not in a position to reassume custody of C.W.M., C.W.M. was in a loving relationship with his aunt and uncle, C.W.M. considered his cousin to be his brother, and C.W.M. wanted to continue living with his aunt and uncle and for his parents to come live with them.

DYFS caseworker Roseanne Macpherson, who handled the case from March 2005 to June 2006, described services the Division rendered or attempted to render. She noted, for example, that although the Division offered to assist with transportation, visitation was very limited. Further, the Division worked with Welfare to assist M.B. and C.M. with housing, but they were dropped from the program after they failed to comply with guidelines. Macpherson explained that the Division's plan changed from reunification to termination because there was absolutely no progress made toward the goal of reunification. Both parents failed to complete drug treatment and maintain housing. And, J.B. and her husband indicated they wanted to adopt C.W.M.

Dr. Iofin testified regarding the results of his psychiatric evaluations of M.B. and C.M. This testimony and the admission of Iofin's report were allowed over the objection of M.B.'s attorney because she had not received the report until November 10, 2006, two days after the first day of trial. The Division's attorney responded that the reason for the late submission was that M.B. had not resurfaced until October 20, 2006. The court overruled the objection, noting that all parties were on notice that a psychiatric report was being prepared in the case.

Iofin described C.M.'s substance abuse history noting that C.M. began smoking marijuana at age seventeen, and later progressed to cocaine and heroin. He further noted that C.M. continues to use alcohol, indicating that he had not "completely committed to full sobriety and abstinence." Iofin's mental status exam of C.M. revealed symptoms indicative of ADHD and bipolar disorder. He opined that C.M. was not able to care for his child because he had a "constellation of chronic psychiatric problems" and had not "fully committed himself to be completely abstinent from drugs and alcohol."

In Iofin's view, in order to be considered for reunification, C.M. would have to complete drug treatment, have at least twelve months of abstinence from drugs and alcohol, attend counseling on a regular basis to address impulse control problems, and be able to maintain steady employment. Iofin opined that C.M. was not fully committed to following through with these recommendations.

Iofin described M.B.'s substance abuse history, noting that she began smoking marijuana at age eighteen and progressed to heroin by age twenty-four. He said a psychological assessment of M.B. revealed that she had a history of psychopathology, which meant that "she has typically unreliable behavior, self-centered which means narcisstic. Has EG irritability and resentment. Has problems related to -- defiance, which accompany by quite impulsive emotional behavior." He also described M.B.'s history of being a victim of sexual abuse, attention deficit hyperactivity disorder, drug dependency, and impulse control problems.

Iofin concluded that "during all of this time [M.B.] essentially was not capable to properly take care of her child." In order to be considered for reunification, he opined that she would have to receive services from drug addiction specialists for at least twelve months, attend AA and NA meetings, attend long-term counseling, psychotherapy, behavioral therapy and group therapy sessions, and maintain gainful employment.

M.B. presented the testimony of Kathy DiVonaventura, a coordinator at the Women in Transition shelter where M.B. was staying at the time of trial. DiVonaventura described M.B. as extremely motivated. She said M.B. was attending domestic violence counseling sessions twice a week, had been referred to an outside drug and alcohol counseling program, and had scheduled general medical examinations.

Both parents testified. M.B. said she was currently living at Women in Transition in Pennsylvania and was employed part-time as a telemarketer. She confirmed her activities and events at Damon House, including her involvement there with two other patients, one of whom she married and the other of whom she left with and moved to Pennsylvania. She acknowledged that she was not receiving drug treatment or attending any NA-type meetings. Her plan for reunification with her son was that she would save money from her temporary job, begin drug counseling, obtain better employment, enter "long term therapy," and eventually obtain suitable housing.

M.B. acknowledged that she did not comply with court orders and failed to obtain treatment. She also admitted that, although she knew she had an obligation to remain in contact with the Division, she failed to do so for extended periods of time. She acknowledged that she visited with her son on only a few occasions during the last two years that he was placed with his aunt. She acknowledged that her sister, J.B., had a good relationship with C.W.M. and had no plans to disallow M.B.'s continued contact with C.W.M.

M.B. described her progress in substance abuse treatment. She said she abstained from alcohol and drugs since March 2006.

C.M. testified that he chose not to get treatment immediately after C.W.M. was placed with J.B. because he was more concerned with attempting to find a job and place to live. He explained that after his experiences at Metropolitan and Kingsboro, he voluntarily attended Damon House for four-and-one-half months. He felt he had "gained tons of knowledge as far as [his] addiction" and decided to leave to pursue employment, ultimately obtaining a job at New York Sports Club.

C.M. stated that if C.W.M. were returned to him, they could live together at his parents' house. At the very least, C.M. wanted C.W.M. to be able to visit his side of the family. He acknowledged that if J.B. adopted C.W.M., he would be able to continue to see his son, but he felt that would not be sufficient. He had been working for only about a month at New York Sports Club, earning minimum wage. His unification plan was to make more money and obtain his own housing for him and his son.

Based upon the testimony we have summarized and substantial documentary evidence, Judge Lerner rendered a comprehensive and well reasoned oral decision on November 28, 2006. He concluded that DYFS demonstrated by clear and convincing evidence that C.W.M.'s best interests required termination of the parental rights of M.B. and C.M. He concluded that DYFS proved all four prongs of the best interest test by clear and convincing evidence. He entered a final judgment on that date. These appeals followed.

Parents have a fundamental constitutional right to raise their children. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). However, this right is not absolute and must be balanced against the State's parens patriae responsibility to protect the welfare of children. Ibid.; In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). A child's own right to a permanent home has also gained increasing prominence in recent years. N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 505 (2004).

In furtherance of these principles, the Legislature has enacted N.J.S.A. 30:4C-15.1a, which governs termination of parental rights cases in New Jersey. G.L., supra, 191 N.J. at 606. The court must find:

(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 Division bears the burden of proving by clear and convincing evidence that these four prongs are satisfied. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 280 (2007)

These prongs are not "discrete and separate," but "relate to and overlap with one another" so as to provide a comprehensive standard for determining what is in a child's best interest. K.H.O., supra, 161 N.J. at 348. "The considerations involved are extremely fact sensitive and require particularized evidence that address the specific circumstance in the given case." M.M., supra, 189 N.J. at 280 (citations and internal quotations omitted).

Appellate review of a trial court's decision to terminate parental rights is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002); N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 610 (App. Div.), certif. denied, 192 N.J. 68 (2007). An appellate court must defer to a trial court's findings of fact if they are supported by adequate, substantial, and credible evidence in the record. G.L., supra, 191 N.J. 596, 605 (2007); Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). This deferential standard is especially warranted in Family Part cases, because of the judge's "special jurisdiction and expertise in family matters." Cesare v. Cesare, 154 N.J. 394, 413 (1998). A trial court's findings will only be disturbed if there is an error in the trial court's evaluation of the underlying facts, or if the trial court went so wide of the mark as to be clearly mistaken. G.L., supra, 191 N.J. at 605; In re Guardianship of J.T., 269 N.J. Super. 172, 188-89 (App. Div. 1993).

Under the first prong, the Division must show harm to the child by the parental relationship. F.H., supra, 389 N.J. Super. at 610. More specifically, the harm must involve the endangerment of the child's health and development resulting from the parental relationship. K.H.O., supra, 161 N.J. at 348. The focus is not necessarily on a single or isolated harm, but more on the effect of harms arising from the parent-child relationship over time. Ibid.

The court found significant that after M.B. and C.M. were thrown out of C.M.'s mother's house, they left C.W.M. behind and did not return. The court also found significant the medical and dental neglect suffered by C.W.M., particularly the missed shots and rotted teeth. The court stated:

The reason I cite those specific facts, meaning the shots, dental neglect, and not returning for the child after being evicted from [C.M.'s parents'] home, to retain their child and causing a phone call later from the older sister from [M.B.], calling DYFS saying, I still have the child.

That's abuse. That's an injury. I also find that the constant moving around and the sharing of this child, moving from house to house to house, up until this point in time, which reflects the homelessness to be a harm that this child was subjected to . . . .

And the first prong has been established in as much as they can see. [M.B. and C.M.] both were the care taking parents, as a couple, during which time this occurred.[] Therefore, the first prong of termination of parental rights which reads, "if the child's safety, health, and/or development have and will continue to be endangered by a parental relationship." That's been established by clear and convincing evidence, that while the child was in their care they did not take proper care of the child.

These findings are supported by adequate, substantial, and credible evidence in the record. Indeed, M.B. and C.M. do not dispute the facts relied upon by the trial court (although C.M., in his brief, attempts to explain away each allegation). Rather, M.B. and C.M. argue that these allegations do not constitute the required level of harm to satisfy this first prong. We disagree.

Courts do not have to wait until a child is irreparably injured by parental inattention or neglect. In re Guardianship of DMH, 161 N.J. 365, 383 (1999). The first prong may be satisfied as long as there is a record showing of a pattern of parental inaction and neglect, amounting to unfitness. F.H., supra, 389 N.J. Super. at 615. In this case, there was undisputed evidence that C.W.M.'s health and development suffered harm as a result of his parents' continued inattention and neglect.

The second prong requires a showing that the harm is likely to continue because the parent is unable or unwilling to overcome or remove the harm. N.J.S.A. 30:4C-15.1(a)(2); K.H.O., supra, 161 N.J. at 348. "That inquiry is aimed at determining 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; F.H., supra, 389 N.J. Super. at 617.

Alternatively, the State may also show "that the parent is unable to provide a safe and stable home for the child and that delay in securing permanency continues or adds to the child's harm." K.H.O., supra, 161 N.J. at 348-49. "'In other words, the issue becomes whether the parent can cease causing the child harm before any delay in permanent placement becomes a harm in and of itself.'" F.H., supra, 389 N.J. Super. at 617 (quoting 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)). The court may also consider whether the child had bonded to his or her resource family to the extent that separation from them would itself cause serious and enduring emotional or psychological harm. N.J.S.A. 30:4C-15.1a(2); P.P., supra, 180 N.J. at 507.

The trial court found that, under either analysis, the second prong was established. In analyzing whether the parents were unable or unwilling to eliminate the harm, the court first looked to the joint actions of M.B. and C.M. after C.W.M. was placed with his aunt. The court noted that M.B. and C.M. lied to substance abuse evaluators about the extent of their drug problems. M.B. and C.M. essentially "disappeared" in 2005, after they were ordered by the court to complete substance abuse treatment and maintain contact with the Division. The court found that during this time M.B. and C.M. demonstrated "no attempt to offer a safe, stable, secure home for [C.W.M.], no attempt whatsoever." The court also found significant that M.B. inherited $11,000 during this time and chose to buy a car and pay off fines and warrants instead of finding an apartment and making a home for their son.

After M.B. and C.M. resurfaced in March 2006, both entered treatment, at which point their paths diverged. Rather than comply with and complete treatment, M.B. chose to pursue a relationship with another man while at Damon House, which resulted in her getting thrown out of the program. M.B. then traveled to Pennsylvania where she enrolled in a faith-based program, and later entered Women in Transition. The court characterized M.B.'s actions as follows:

What is wrong with that? Well, what's wrong with that is she never successfully completed a drug program. She felt that she didn't need it or she didn't want to go for it. Or it was not required any longer. She had lost contact with DYFS. She didn't make any contact with DYFS. In fact, while this case was being readied for trial she only surfaced in October. And the first trial date was scheduled for November the 8th before me.

What's interesting again is everything she does is self-motivated so that if you say is she unwilling or unable to remove those issues that affect her, I think she is unable. Unable because of . . . her character flaws. That she really needs therapy in dealing with her issues. I think she has attempted to define them herself. And self identification of issues of a person who had significant character traits and flaws which are treatable. . . . Dr. Iofin and Dr. Gordon both said there's nothing wrong with her if she gets proper treatment. . . .

. . . The Women in Transition does not have a substance abuse program. . . . And no one has offered a plan showing participation in a substance abuse program with random urine screens being asked by provided by a provider.

She wound up having a history of homelessness, . . . winding up homeless in York, Pennsylvania where she was essentially homeless when she left Damon House. . . . [S]he then . . . wound up in a shelter in North Umberland County, Pennsylvania where she is receiving Welfare benefits. She was on Welfare in York. On Welfare in North Umberland and essentially homeless.

With respect to C.M., the court noted that he left Damon House on his own and had not yet successfully completed treatment. The court found that this behavior fit in with Iofin's and Gordon's characterizations of M.B. and C.M. as "impulsive" and "narcissistic." The court also found significant that C.M. recently admitted to consuming alcohol, representing a setback in his recovery.

After evaluating both the joint and individual actions of M.B. and C.M., the court concluded:

So has either parent been unwilling or unable to eliminate the harm. I say unwilling and unable based upon they are unable and unwilling to offer a safe and stable home for their child. Because of their perception of what their defect is. Both acknowledging that only that they have a defect meaning they had a substance abuse issue. But at no point in time have they at least demonstrated a successful completion of a single drug program, even out-patient, even attending AA and NA meetings.

. . . .

But, again, I find that by clear and convincing evidence the failure to participate in a drug treatment program to successfully complete and comply with all of its recommendations which was clear from the very beginning Open Door and then subsequently with Damon House a year later that was not done. And that is clear convincing evidence that the second prong has in fact -- because neither parent is able at this point in time to offer a safe, stable home for the child.

The court also analyzed whether a delay in permanent placement would cause harm to C.W.M. The court essentially concluded that there was no proof that a delay would be successful.

Since M.B. left Damon House, she did not seek appropriate treatment for her substance abuse problems, medical conditions, and psychological and psychiatric disorders. The court, citing Iofin's report, stated: "Can all this be helped -- yes. Is she doing anything that's required to help her? No."

The court noted that C.M. also had not sought treatment for his substance abuse problems or his psychological and psychiatric disorders. Again citing Iofin's report, the court stated: "Can [C.M.] be helped? Of course. Would he benefit from treatment? Yes. Is he amenable to treatment? No."

The court found that the only real security C.W.M. has ever known has been with J.B. and her family. Thus, the court concluded that there was clear and convincing evidence that M.B. and C.M. "have not been able and still are not able to offer a safe, stable, secure home for the child and be a psychological parent to the child."

The trial court's findings as to the second prong are supported by adequate, substantial, and credible evidence in the record. Since C.W.M. was placed with his aunt in November 2004, M.B. and C.M. had ample time to get their lives back together. Yet the record clearly establishes that both parents failed to complete drug treatment, seek treatment for their psychological problems, maintain meaningful long-term employment and secure stable housing. In light of the trend toward placing limits on the amount of time a parent may have to correct conditions in the home, see K.H.O., supra, 161 N.J. at 358, we have no occasion to interfere with the court's findings on the second prong.

Under the third prong, DYFS must demonstrate that it "made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home." N.J.S.A. 30:4C-15.1a(3). "Reasonable efforts" are defined as "attempts by an agency authorized by the division to assist the parents in remedying the circumstances and conditions that led to the placement of the child and in reinforcing the family structure." N.J.S.A. 30:4C-15.1c. In determining whether this requirement is met, a court must look at the circumstances of each individual case, including the parent's active participation in the reunification effort. DMH, supra, 161 N.J. at 390.

The court noted that before M.B. and C.M. disappeared in August 2006, the Division offered them drug counseling, and Welfare provided them with housing. The Division was relieved of its duty to make reasonable efforts after they disappeared.

M.B. and C.M. argue that the Division did not make reasonable efforts to reunify the family. M.B. contends that the Division only made one referral to a drug treatment facility, and that it failed to assist her with individual counseling and housing. C.M. contends the Division never developed a plan for reunification, and that it prevented him from contacting his son. We disagree with M.B.'s and C.M.'s characterization of the Division's efforts.

We are satisfied that the record more than adequately supports the court's conclusion that the Division exercised reasonable efforts to assist M.B. and C.M. during this process. The Division's primary goal for the parents was for them to enter drug treatment. Once the parents cleared that hurdle, the Division would then begin the process of assisting with housing and reunification. However, the parents refused to follow the Division's recommendations as to this essential first step. In particular, M.B. failed to enter treatment at JFK, and C.M. failed to follow through with treatment at Open Door. The parents then disappeared for a period of over six months and did not inform the Division of their whereabouts. By the time they resurfaced in March 2006, they were already in a treatment program, which they both failed to complete. Throughout the process, the Division cooperated and offered assistance regarding visitation (except during periods when the court suspended visitation). The Division satisfied its duty to exercise reasonable efforts.

Under the third prong, DYFS must also show that it considered alternatives to the termination of parental rights. N.J.S.A. 30:4C-15.1a(3). One such alternative is kinship legal guardianship. N.J.S.A. 3B:12A-6. However, a trial court should not consider this alternative "when the permanency provided by adoption is available." P.P., supra, 180 N.J. at 513. In other words, a trial court should not consider kinship legal guardianship as an alternative unless the caregiver "decline[s] to adopt." Id. at 514.

M.B. and C.M. argue that the court should have considered kinship legal guardianship as an alternative option. They point out that there was conflicting hearsay testimony at trial regarding J.B. and her husband's intention to adopt C.W.M. Although J.B. and her husband did not testify, we are satisfied that there was sufficient evidence in the record to support the court's finding that adoption was available.

Two Division case workers testified that they discussed kinship legal guardianship and adoption with J.B. and her husband. These conversations are documented in the Division's contacts sheets. Gordon, who performed the bonding evaluations, also understood that it was the intention of the foster parents to adopt. M.B.'s and C.M.'s testimony suggesting that J.B. and her husband did not want to adopt C.W.M. was unsubstantiated and self-serving at best. As in P.P., kinship legal guardianship was not a viable alternative because adoption was available. Id. at 513-14.

Under the fourth prong, the Division must prove that termination of parental rights will not do more harm than good to the child. N.J.S.A. 30:4C-15.1a(4). The court must inquire into the child's relationship with both his biological parents and his foster parents. K.H.O., supra, 161 N.J. at 355. The court must then determine whether the child will suffer a greater harm from the termination of ties with his biological parents than from the permanent disruption of his relationship with his foster parents. Ibid. This determination "'requires expert inquiry specifically directed at the strength of each relationship.'" Ibid. (quoting In re Guardianship of J.C., 129 N.J. 1, 25 (1992)). The child's need for permanency and stability is central to this analysis. Id. at 357.

The court emphasized that the "benchmark in New Jersey is what is in the best interest of the child." Citing Gordon's opinion, the court found that C.W.M. would be "better off" if he remained with his foster family. The court further noted that C.W.M. had been with his foster family for twenty-four months and that neither parent was currently in a position to "parent the child and offer a safe and secure home." The court also noted that even though termination of parental rights would do some harm, in that C.W.M. had a relationship with his biological parents, that harm did not outweigh C.W.M.'s need for a safe and stable home. Finally, the court reiterated its concern over M.B.'s and C.M.'s failure to seek adequate treatment for their substance abuse and psychological problems.

M.B. and C.M. argue that there was no clear and convincing evidence to support the court's findings as to the fourth prong. Citing In re Baby M., 109 N.J. 396, 445 (1988), they argue that the court applied the wrong legal standard when it found that the child would be "better off" with his foster parents. M.B. also argues that there was no bonding evaluation between mother and son and therefore "it cannot be known what level of harm separation of the child from his parent will result from termination of that parent's rights to the child."

We are satisfied that the court applied the correct legal standard in analyzing this prong. And, the bonding evaluation between M.B. and C.M. could not be completed because M.B. did not resurface until two weeks before trial.

Essentially, J.B. and her husband provided C.W.M. with the only stable home that he has ever known. C.W.M. has now been with them for more than three years. The bonding evaluation between C.W.M. and his foster parents clearly shows that there is a close familial relationship. As previously discussed, neither M.B. nor C.M. are currently in a position to care for C.W.M. and to provide him with a safe and stable home. And, the unrefuted evidence, credited by the trial court, establishes that both parents would need at least twelve months of compliant treatment and behavior before they might be ready to parent this child. The prospects for that eventuality were deemed tenuous.

Therefore, the record well supports the finding that it would not be in C.W.M.'s "best interest to remove him from a home where he has flourished and place him in an environment that is, at best, destabilizing." M.M., supra, 189 N.J. at 268.

 
Finally, we address the argument that the court erred in allowing in evidence Iofin's report and testimony. M.B. and C.M. contend that because his report was submitted on November 10, 2006, two days after commencement of the trial, it constituted a discovery violation. See R. 5:12-3 (requiring delivery of experts' reports "as soon as practicable"). Although the report here was furnished after commencement of trial, it was furnished seventeen days before Iofin testified. Under the circumstances, we find no mistaken exercise of discretion in allowing this evidence. On May 8, 2006, all parties were put on notice that psychiatric evaluations would be forthcoming. M.B. and C.M., knowing that mental health would be an issue, had ample time to schedule evaluations with there own experts. Moreover, both parents were uncooperative in the process. M.B. left Damon House sometime before June 20, 2006, and did not resurface until October 20, 2006, on the eve of trial, thus making it impractical to conduct a bonding evaluation with her and C.W.M. C.M. refused to attend the original evaluation with Iofin, that had been scheduled for September 29, 2006. Thus, we are satisfied that the delay in Iofin's report was occasioned in large part by M.B.'s and C.M.'s conduct.

Affirmed.

Although parental rights are individual in nature, the court correctly evaluated the combined actions of both parents under the first prong because they were jointly responsible for the care of C.W.M. during the relevant time. See M.M., supra, 189 N.J. at 288-90.

(continued)

(continued)

42

A-2815-06T4

RECORD IMPOUNDED

December 28, 2007