NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. E.H.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6155-05T46155-05T4

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

E.H.,

Defendant-Appellant.

___________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF N.A.H.,

A Minor.

___________________________________

 

Submitted May 23, 2007 - Decided June 22, 2007

Before Judges A. A. Rodr guez and Sabatino.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FG-07-203-05.

Yvonne Smith Segars, Public Defender, attorney for appellant (Bernado W. Henry, Designated Counsel, of counsel and on the brief).

Stuart Rabner, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Diane L. Scott, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian for the minor, N.A.H. (Jeffrey R. Jablonski, Designated Counsel, on the brief).

PER CURIAM

In June 2006, following a three-day guardianship trial, the Family Part granted the application of the Division of Youth and Family Services' ("DYFS") to terminate the parental rights of E.H. regarding her son, N.A.H. The trial court had previously terminated the parental rights of N.A.H.'s biological father, M.W., in a default proceeding in September 2005.

E.H. is the sole appellant. She contends that the trial judge incorrectly determined that (1) she is unable or unwilling to eliminate the harm facing her son and cannot or will not provide him with a safe and stable home; (2) a delay in N.A.H.'s permanent placement will add to the harm; (3) DYFS made reasonable, unsuccessful efforts to reunify her son with her; and (4) termination of E.H.'s parental rights will not do more harm than good.

Given our limited standard of review, see N.J. Div. of Youth & Family Services v. M.M., 189 N.J. 261, 279 (2007), we affirm the Family Part's disposition substantially for the reasons expressed in Judge Peter Ryan's comprehensive and well-analyzed written decision of September 15, 2006.

I.

We first summarize the facts most salient to our review.

E.H., a young woman whose date of birth is uncertain, has had an extremely turbulent and unfortunate life. She was abandoned by her own biological mother, and thereafter lived with a foster parent, Y.H., who neglected her. In or about November 1998, E.H.'s foster mother moved her and her presumed siblings from Florida to New Jersey.

Since moving to New Jersey, E.H. was under DYFS' oversight for most of her remaining childhood. In February 1999, DYFS received a report that Y.H. had left E.H. and her other foster children at home with her paramour, and that the children had been seen begging for food. This led to DYFS obtaining temporary custody of E.H. in March 1999, but E.H. was subsequently returned to Y.H. About a year later, in March 2000, E.H. was again removed from Y.H.'s home by DYFS because she had been mistreated. This resulted in E.H. being placed in a shelter for girls, along with her presumed "twin" sister, L.H. Thereafter, in July 2001, E.H. was relocated to a group home to receive counseling. In sum, E.H. had an estimated nineteen different residential placements between March 1999 and April 2005.

Although it is not verified in the record, there is some indication that E.H. was sexually assaulted by the boyfriend of Y.H., and possibly by others. Apart from the psychological trauma arising from those apparent sexual episodes, E.H. has also experienced strong feelings of abandonment. She has been diagnosed with dysthymic and adjustment disorders, with mixed anxiety and depressive moods. Her IQ has been measured in the lower range, although the trial court found her to be "intellectually capable."

Plagued with these problems as a child, E.H. has a long history of runaway behavior, dating back to at least 2002. She appears to have run away to deal with her fears of abandonment. During one of those runaway scenarios, in July 2003, E.H. was brought into a DYFS office and determined to be pregnant. Her then-boyfriend had been arrested for striking her. However, before DYFS could provide her with any services, E.H. fled. Similar behavior occurred throughout her pregnancy.

According to the trial testimony of a DYFS caseworker, Gerlando Jean-Louis, E.H. appeared at a hospital in the fall of 2003 with a urinary tract infection. E.H. then stated that she had not received prenatal care, although she later claimed that she had received such care at UMDNJ. DYFS attempted to place E.H. in a foster home at the time, but she once again disappeared. On September 24, 2003, E.H. resurfaced, claiming to be living with a twenty-two year-old friend named Quaisha Jacobs. Caseworker Jean-Louis attempted to give her services, including a parenting skills course for her forthcoming child and psychological evaluations. Jean-Louis also tried to place E.H. in a home for pregnant women.

The infant who is the subject of the present appeal, N.A.H., was born on October 30, 2003. DYFS was not notified when N.A.H. was born because E.H. listed him under a different last name, apparently in an effort to hide him from DYFS. Around the day of N.A.H.'s birth, Jean-Louis attempted to visit Quaisha Jacobs' residence to speak with E.H. about a missed psychological evaluation, but found the home padlocked. Subsequently, Jean-Louis managed to find and speak with E.H. on the telephone on November 5, 2003. At that point Jean-Louis realized that the child had been born, but did not know where E.H. was located.

E.H. and her baby were eventually found as the result of another DYFS investigation of persons in the house where they were staying. The home turned out to be that of Jacobs' cousin in East Orange. Jean-Louis went to the home with Department of Human Services police to remove the baby. Although N.A.H. was seemingly not in distress, Jean-Louis still believed removal was appropriate because she did not want to risk E.H. running away with the child again.

Jean-Louis attempted to get E.H. into a program for teen mothers, but E.H. was not available for the evaluations required for admission to that program. Meanwhile, N.A.H. was successfully placed into foster care. E.H., still a minor herself, did not wish to be placed and walked out of the DYFS office. She went back to the home of Jacobs and her grandmother. Thereafter, E.H. was not stably housed, going back and forth between Dorothy and Quaisha Jacobs' home and also at times living in a hotel with her then-boyfriend, who was Quaisha Jacobs' cousin. At times E.H. could not be found at all, and various missing persons reports were issued.

DYFS scheduled supervised visits for E.H. and N.A.H. E.H. attended these visits on a "pretty regular" basis. Visits were also provided for E.H. with her supposed siblings. E.H. did not, however, participate in the multicultural community services program for parental training that had been recommended by DYFS. Jean-Louis also attempted to assist E.H. in returning to high school, which she refused to attend.

Jean-Louis explained to E.H. that to have her son returned she had to attend school, live in a stable environment, and stop running away. To assist her in that regard, Jean-Louis provided E.H. with clothing, medical care, and a bus fare card, and also arranged psychological evaluations and therapy. She also referred E.H. to a psychologist, Dr. Barry A. Katz, who indicated that E.H. was in need of a "program that provides care, support and training to teenage mothers . . . ."

On July 27, 2004, E.H. was placed in such a teenage-mother program, known as Union Industrial, with N.A.H., who had previously been living in foster care. During her brief involvement in this residential program, E.H. kept her room clean and looked after her son. As part of the rules of the house, it was explained to E.H. that DYFS needed to assess any person she was going to see before she could leave the premises with that person. Nevertheless, on September 3, 2004, E.H. left the facility in a taxi, without her son, without obtaining permission and without leaving information as to where she was going. She did not return to Union Industrial until three days later. E.H. claimed to have been with the Jacobs family during that hiatus but Dorothy Jacobs, Quaisha's grandmother, contradicted her account.

Following these events, the group home decided that E.H.'s behavior presented too much of a safety hazard. Hence, both E.H. and N.A.H. were discharged from Union Industrial on September 7, 2004.

At this point, DYFS' goal was changed to adoption. N.A.H. was returned to the foster mother with whom he had been living prior to his brief stay at Union Industrial. On September 30, 2004 he was placed in a "fost-adopt home", where he remained at the time of this trial. Meanwhile, E.H. was given biweekly visitation.

After her discharge from Union Industrial, E.H. went back to live with Dorothy Jacobs, who was provided with foster care services. She continued seeing Dr. Denise Williams Johnson, a psychologist, for counseling. DYFS also investigated placing E.H. with Daphne Duplaix, who may be an adult sister of E.H. Duplaix lived in California, and had been investigated as a potential caretaker by the Los Angeles Department of Children and Family Services. That agency, however, had recommended against E.H. being placed with her. Another potential "sister" in California reported that she did not want to provide a home for E.H. because E.H. had stolen things from her.

E.H. went missing again between March and May of 2005. On March 23, 2005, Jean-Louis learned that E.H. had not been in school for a month. E.H. was reportedly in distress because Y.H., the only mother she had known, had died around that time, and E.H. had disappeared again after the funeral.

Belinda Benson, who was E.H.'s caseworker as of the time of trial, started interacting with her in May 2005. Benson described E.H.'s living conditions in Dorothy Jacobs' home as "mass hysteria", with adults and children streaming in and out. E.H.'s bed was located in the living room. On June 27, 2005, E.H. came into Benson's office crying, and "indicated that she was tired of running and wanted to comply with [DYFS] and wanted to be placed in a group home." Benson accordingly located for E.H. a placement in a DYFS-funded facility known as Isaiah House. E.H. moved to Isaiah House on July 21, 2005. Isaiah House provided not only a place for E.H. to stay, but also supplied her with life skills training with a goal towards independent living.

As of the time of trial in April 2006, E.H. had been in the Isaiah House program for nine months without running away and was still residing there. E.H. completed the "Juvenile JAT Provision" program in December 2005 and continued getting therapy from her psychologist Dr. Johnson. Her drug screens were clear, and she had completed a parenting skills program.

On September 2, 2005 Isaiah House recommended that E.H. be referred to a Care Management Organization ("CMO") because of her "history of verbal, physical and sexual abuse as well as neglect and insufficient basic necessities." E.H. was three months pregnant with another child at that time; however, she later terminated that pregnancy.

Although E.H. made some progress at Isaiah House, she also exhibited lingering behavioral problems while in that program. At one point she was charged with delinquency in juvenile court for being a passenger in a stolen car. E.H. also got into a physical altercation with a few of the other residents and with a worker. On another occasion, E.H. came in about a half an hour after the 10:30 p.m. curfew, causing her to be put on temporary restriction.

During a DYFS-funded Christmas visit with Duplaix in California, E.H. stole a watch and cologne from her. After Duplaix reported these items missing to Isaiah House, they were found in E.H.'s possession. E.H. mailed them back to Duplaix. In January 2006 E.H. declined her sessions with Dr. Johnson because she felt that she was not "connecting" with her. In her April 2006 report, which was admitted into evidence, Dr. Johnson opined that E.H. "continues to disobey the rules at Isaiah House; leaving the facility without permission; and being in someone's room without permission." According to caseworker Benson, however, during this period between January and April 2006, E.H. complied with the rules of the program and gained "great strides." Even so, Benson did opine at the time of trial E.H. was not ready for independent living.

The State also presented testimony at trial from Harriet Johnson, the DYFS caseworker involved in the litigation aspects of this matter since April 2005. When the case was initially assigned to Johnson, E.H. was in default with respect to N.A.H. because she had disappeared and had missed a court date in the Family Part. E.H. then reappeared in May 2005. Consequently, E.H. did not see N.A.H. for about six months between May and October of 2005. Eventually her visits with N.A.H. resumed.

According to caseworker Johnson, notwithstanding E.H.'s progress at Isaiah House, DYFS' goal remained adoption by N.A.H.'s foster family, which had indicated a desire to do so. DYFS found no impediments to that goal because N.A.H. had bonded with his new family. Caseworker Johnson opined that it would be in N.A.H.'s best interests to stay with the foster family, and further observed that it would be harmful to remove him from that stable home.

Dr. Karen Wells, a psychologist, testified for DYFS as an expert witness in psychology. Dr. Wells performed psychological and bonding evaluations with E.H. and N.A.H. in December 2005, and with N.A.H. and his foster family in March 2006. The results of those assessments showed that E.H. has "stressful interpersonal relationships," and thus "has experienced difficulty relating to others, receiving the care and responsibility for others, and [thereby] has had her moods affect[ed]." In general, Dr. Wells found that E.H. feels "cheated and misunderstood in relationships" and has a "low tolerance for frustration and a vacillation between being despondent and distraught." According to Dr. Wells, E.H. has unexpressed fears and often feels alone. She is untrusting and therefore tends to be dishonest with others. However, Dr. Wells did acknowledge that E.H. expressed a welcoming attitude towards her son and a desire to care for him.

These observations led Dr. Wells to the following conclusions:

As of the December 2005 psychological evaluation, there were indications that [E.H.] continued to be in need of significant services for her own personal stability, . . . that there are difficulties in terms of interpersonal relationships . . . with . . . both family and friends, . . . that she has had difficulty in maintaining stability in a program . . . and that she is likely to not receive full benefit unless she is willing to both comply and relinquish some of the difficulties she experiences in trusting and relating to other people.

Dr. Wells also noted that of the six clinical categories showing a propensity for child abuse, E.H. evinced a moderately elevated propensity in three categories: (1) relationships with others; (2) personal distress; and (3) the so-called family subscale. These assessments led Dr. Wells to conclude that E.H. had a moderate potential to abuse or neglect her child.

Dr. Wells confirmed that E.H. was "[a]bsolutely not" ready to care for N.A.H. Her continued signs of personal instability indicated to Dr. Wells that she would not be able to care for someone else. Further, Dr. Wells did not believe that DYFS should wait any longer to see if E.H. could attain the ability to carry out such parental responsibilities.

Further, Dr. Wells determined that N.A.H.'s foster parents have functioned as his psychological parents, looking to them for attention, approval, direction, guidance and the assurance of safety. N.A.H. also calls them "mommy" and "daddy."

Dr. Wells perceived a bond and familiarity between E.H. and N.A.H., but that bond was not as strong as that which N.A.H. shared with his foster parents. She acknowledged that N.A.H. called E.H. "mommy," and that the two of them played together and interacted without difficulty. However, the child was not distressed when E.H. left the room, nor did he show any reaction upon her return. Dr. Wells did note that E.H. teased N.A.H. until he was frustrated. E.H. stopped the teasing eventually, but not soon enough to demonstrate to Dr. Wells that she was quickly responding to her son's sensitivities. Overall, Dr. Wells did not perceive E.H. to be functioning as N.A.H.'s psychological parent.

On the subject of N.A.H.'s best interests, Dr. Wells testified that permanency is "crucial" in a child's life. She opined that N.A.H.'s foster parents are best able to provide such permanency to N.A.H. and that harm would occur if he were to be removed from their care. By comparison, she found that E.H. was not presently able to provide her son with such permanency because of E.H.'s focus on attending to her own needs. Dr. Wells doubted whether E.H. would be able to meet N.A.H.'s emotional needs, which would be particularly acute if he were removed from his foster family. Dr. Wells acknowledged that E.H. has potential to be a loving and caring mother, but concluded that it is unlikely that she could reach this potential in the near future.

Because of the inconsistent past involvement of E.H. in N.A.H.'s life, Dr. Wells did not believe that he would be harmed by having his biological mother's rights terminated. According to Dr. Wells, any harm would be mitigated because the foster parents have indicated that they would allow N.A.H. some voluntary contact with E.H. after the adoption.

Stephanie Bird, the DYFS caseworker who worked with N.A.H.'s foster family in Monmouth County, provided some additional first-hand observations. Bird had helped E.H. with her weekly visits with N.A.H. in the Red Bank office. During those visits E.H. and N.A.H. were left alone together in a play room for an hour. Bird had not seen any inappropriate behavior during those visits, although she acknowledged that the visits were not continuously monitored. During monthly visitations to N.A.H.'s foster home she observed that N.A.H. seemed well cared for and to be getting along well with his seven-year-old foster sibling. She also noted that N.A.H. was on target developmentally. Bird could offer no reason that should preclude the foster family from adopting him.

E.H. did not testify at trial. However, she did call several lay and expert witnesses.

Dr. Paul Fulford, a psychologist, testified as an expert for the defense. Dr. Fulford performed a bonding evaluation with E.H. and N.A.H. and also a psychological evaluation of E.H. He found nothing in his diagnosis of E.H. or in her history that he believed would interfere with her parenting. Dr. Fulford agreed that E.H. had made "significant errors" that show bad judgment and impulsive behavior, but he opined that these errors were neither psychiatric nor criminal. Further, Dr. Fulford observed that E.H.'s runaway periods were generally short and were often attached to a crisis. Even so, Dr. Fulford agreed that E.H. "[a]bsolutely" needs ongoing treatment from a therapist.

In his bonding evaluation Dr. Fulford determined that "the child obviously recognizes [E.H.]" and calls her "mommy." He observed their interactive play favorably, noting that E.H. appropriately set limits and played an adult role but was still affectionate. Dr. Fulford thus found that a bond of "relatedness" was shown between E.H. and N.A.H. However, he agreed that a separate bond of relatedness also existed between N.A.H. and his foster family. Dr. Fulford perceived a slightly stronger level of interaction by N.A.H. with the foster family as opposed to E.H., but he opined that the difference could be explained by the fact that N.A.H. has been residing with the foster family.

Like Dr. Wells, Dr. Fulford agreed that N.A.H. needs "a permanent, safe, stable home and family life . . . ." However, Dr. Fulford opined that with continued compliance by E.H. with DYFS' requirements and her successful placement in a "mommy and me" program, E.H. could provide such a stable home, after a period of transition.

Melodi Pinkney, a representative of a Care Management Organization (CMO), also testified on E.H.'s behalf. Pinkney has been involved with E.H.'s case since October 2005, seeing her on at least a monthly basis. As of the time of trial, Pinkney was in the process of finding a replacement therapist at Isaiah House to deal with E.H.'s emotional detachment and abandonment issues. According to Pinkney, E.H. has progressed greatly in maturity and responsibility. E.H. reported to her that she wanted to obtain vocational training and a job.

The court also heard testimony from Diana Melton, E.H.'s case manager at Isaiah House. As she described it, Isaiah House is a very structured environment, with consequences for residents when they commit mistakes. Ten to twelve young women reside in the House at any given time. Melton has known E.H. since she was age twelve. Melton acknowledged love and affection for E.H., and helped comfort E.H. when she terminated her pregnancy.

Melton testified that E.H. was achieving success at Isaiah House. She noted that E.H. was increasing her self-reliance, attending school with passing grades, and adhering to the program's rules and regulations. Melton also noted that E.H. had completed a parenting course. Melton had never met N.A.H. or seen E.H. interact with him. She agreed that E.H. should not yet have independent care of N.A.H., but instead would need to live with him in a structured environment for at least one year. The defense also presented testimony from Diane Melton, a mentor with the YAT program, who DYFS had provided for E.H. and her two presumed sisters within a few months after they had been placed in foster care. She recalled the first time E.H. ran away occurred when E.H. was unceremoniously told by her foster family that she and her presumed sister were not twins and likely not even biologically related. She acknowledged that E.H. had a pattern of runaway behavior, but contended that E.H. would typically call her to let her know where she was. She believes that E.H. is coming to accept her past, including the abuse by her foster mother, the fact that her foster mother was not her real mother, and the past apparent incidents of molestation. She saw no reason why E.H. could not take care of her son, but acknowledged that she had not seen N.A.H. since he was born in October 2003.

Following these extensive proofs, Judge Ryan issued a detailed written opinion, concluding that DYFS had established the statutory grounds for the termination of E.H.'s parental rights. Although the judge recognized E.H.'s efforts to stabilize herself, including her progress at Isaiah House, the judge found by clear and convincing proof that the criteria for termination had been fulfilled, and that N.A.H.'s adoption by his foster family was in his best interests. This appeal ensued.

II.

When seeking the termination of a parent's rights under N.J.S.A. 30:4C-15.1a, DYFS has the burden of establishing, by clear and convincing proof, the following factors:

(1) The child's safety, health and development has been or will continue to be endangered by continuation of 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 f[ro]m his foster parents would cause serious and enduring emotional or psychological harm to the child;

(3) [DYFS] 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.

[Ibid. See also New Jersey Division of Youth and Fam. Servs. v. A.W., 103 N.J. 591, 604-11 (1986) (reciting the four controlling factors later codified in Title 30).]

We are further mindful that the termination of a parent's right to raise her child is a matter of constitutional dimension. See In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999); see also In re Guardianship of J.C., 129 N.J. 1, 9-10 (1992).

In considering the important rights at stake in this appeal, we are also cognizant that our scope of review of the Family Part's termination ruling is circumscribed. As our Supreme Court recently reaffirmed, the "[r]eview of a trial court's termination of parental rights is limited." N.J. Div. of Youth & Family Servs. v. M. M., supra, 189 N.J. at 278. "A reviewing court should uphold the factual findings undergirding the trial court's decision if they are supported by 'adequate, substantial and credible evidence' on the record." Id. at 279. Even where the focus of appeal is upon the trial judge's evaluation of the record and the implications to be drawn from it, reviewing courts still are obligated to accord deference, "unless the trial court's findings 'went so wide of the mark that a mistake must have been made.'" Ibid. We view the record before us through such a prism of deference.

With respect to the first prong of the four-part statutory test, Judge Ryan found "overt evidence of actual harm in the form of [E.H.'s] general dereliction of care which has caused [N.A.H.] to remain in a foster home setting as a consequence of her actions and non-compliance with rehabilitative services." On this point, the judge correctly noted that subsection (a)(1) of the statute is written in the disjunctive, requiring either past endangerment of the child's welfare or continued endangerment. N.J.S.A. 30:4C-15.1a(1). The judge recited numerous reasons why this prong was easily satisfied in the present case. These reasons included, most pointedly, E.H.'s absconding from her placement with N.A.H. at the Union Industrial Home in September 2004, an episode which led to her discharge from that residential program for teenage mothers and their children.

Defendant does not challenge on appeal the court's finding as to the first prong of the termination statute. Consequently, we need not comment further, except to note that we are satisfied that this finding is indeed supported by adequate, substantial, and credible proof.

Defendant does take issue with Judge Ryan's conclusions as to the second prong of the statute, i.e., her ability and willingness to eliminate the harm to N.A.H., and as to whether a delay in N.A.H.'s permanent placement would add to the harm. See N.J.S.A. 30:4C-15.1a(2). On this score, Judge Ryan found that E.H.'s lengthy track record of runaway behavior, as well as the numerous mental health evaluations confirming her psychological difficulties stemming from her unfortunate childhood, provided "formidable" evidence that E.H. remains unable to serve as a fit parent for her son. The judge noted that the experts' submissions were "completely in accord" that E.H. is presently unable to care for N.A.H., despite her participation in "a significant number of therapeutic interventions, foster care placements and individual therapy." The judge was especially impressed with Dr. Wells' observation that "[t]here are no clinical indicators which would suggest that [E.H.] possesses even minimal capacities to assume parental care and responsibility for [N.A.H.]."

E.H. essentially contends on appeal that the trial judge was too pessimistic in his assessment of her prospective ability to parent. She argues that the judge undervalued the progress that she more recently had made in her residential program, in her schooling, and in her counseling. Defendant urges that the court should have adopted the more optimistic views of the defense expert, Dr. Fulford, who emphasized that E.H. had made significant strides towards becoming a responsible adult and parent. However, as the finder of fact who considered these proofs first-hand, the trial judge had the prerogative to determine which of the competing experts' predictions was more persuasive. See Brown v. Brown, 348 N.J. Super. 466, 478 (App. Div.), certif. denied, 174 N.J. 193 (2002) (trier of fact is free to accept or reject the testimony of either party's expert witness, in full or in part).

Moreover, even Dr. Fulford acknowledged that E.H. was not presently capable of caring for E.H., despite the long-standing efforts to help her achieve such capability. We also note that as of the time of trial, E.H. had chosen to sever her relationship with her therapist, and that she was in a transitional process of having a new one obtained for her.

Judge Ryan appropriately recognized that N.A.H.'s own right to stability and permanency bears significantly on these issues. As the judge observed:

Thus, the overwhelming evidence developed and presented during the course of trial clearly demonstrates that [E.H.] is incapable of providing the appropriate parenting and stable home so essential to the well-being of her child. Apart from the above indisputable facts, it is possible that she may, one day, rise to the level of stability that would stand her in good stead. The child, however, needs a parent now. Time for him is a precious commodity and is of the essence. The record accrued here persuades this court, clearly and convincingly, that the defendant "is unable and/or unwilling to provide a safe and stable home for the child and that delay in securing permanency will add to the child's harm" K.H.O., supra, 161 N.J. at 348-49 (citing N.J.S.A. 30:4C-15.1(a)(2)). The clock ticks rapidly. By way of analogous reasoning, the Appellate Division in In re the Adoption of P.S., supra, observed - ". . . a person whose problem has caused her to neglect her child may at some later time in her life be rehabilitated to the point where she can be a "fit parent" but that does not necessarily make her a fit parent to the previously neglected child or children, whose future is now. 315 N.J. Super. at 117-18. A parent's rehabilitation can be too dilatory and, therefore, unavailing.

Although we likewise appreciate the strides that E.H. had made in her most recent residential placement, we are satisfied that Judge Ryan's conclusions on the second prong of the statute have adequate evidentiary support. We reach that determination with empathy for the plight E.H. herself endured as a child, and with sensitivity to her desire to provide a stable home for her own offspring. Nonetheless, the trial judge's considered assessment, while no doubt disappointing to E.H., is surely not "wide of the mark" as to warrant our intervention.

The third prong of the statute, DYFS' reasonable efforts to reunify E.H. with N.A.H., see N.J.S.A. 30:4C-15.1a(3), has overwhelming factual support in the record. Judge Ryan catalogued the agency's multiple and sustained attempts to provide E.H. with a host of services, both as a minor who herself had been victimized by neglect, and as a teenage mother. These placements included E.H.'s reunification with her son at Union Industrial, which culminated with E.H. running away and leaving her son behind, and E.H.'s subsequent placement at Isaiah House. DYFS also arranged numerous psychological evaluations for E.H., individual therapy sessions, parenting classes, and periodic visits with N.A.H. Unfortunately, as the trial judge observed, E.H.'s protracted "resistance" and "negativity," at least until her more recent progress at Isaiah House, undermined what he aptly termed were "extraordinary effort[s]" by DYFS to aid in potential reunification.

Defendant criticizes DYFS for not placing her in another residential facility with her son after she ran away from Union Industrial in September 2004. We do not second-guess the agency's decision in this regard. By the fall of 2004, E.H. had demonstrated a continued inability to be a responsible and compliant participant in the programs that had been afforded to her. Even after E.H. and N.A.H. were separated as a consequence of her departure from Union Industrial, DYFS continued to arrange visitation sessions and other services. We cannot fault DYFS for deciding to return N.A.H. to the safety and stability of a foster home while his mother attempted to rectify her own personal difficulties.

Lastly, we consider the trial judge's finding on the fourth prong of the statute, i.e., that termination of E.H.'s parental rights would not cause her son more harm than good. N.J.S.A. 30:4C-15.1a(4). We perceive that this aspect of the court's analysis was the most pivotal one, and appropriately so. On this question, Judge Ryan adopted Dr. Wells' "unchallenged opinion" that E.H. is presently unfit and that termination of her parental rights would not cause more harm than good to her son. The judge noted that the expert bonding evaluations placed in evidence "plainly indicate" that separating N.A.H. from his foster family would cause him serious and enduring emotional or psychological harm. The record reveals, in fact, that N.A.H. has been in foster care for all but six weeks of his life, representing the brief interval when he lived with E.H. at Union Industrial.

To be sure, the trial judge recognized that N.A.H. also had bonded to a degree with his biological mother, that he also called her "mommy," and that he was seen to interact well with her. Nonetheless, the judge found that, in balancing the relationships in question, N.A.H. "has made and continues to make a positive adjustment and is comfortable with his foster parent situation." The judge recognized that Dr. Fulford had recommended continued treatment of E.H. and gradual reunification of E.H. with her son instead of his adoption by the foster family. However, the judge correctly noted that Dr. Fulford had "candidly acknowledged that all was dependent upon [E.H.'s] cooperation, which was nonexistent in the past." The judge also considered significant Dr. Fulford's acknowledgment that N.A.H. had bonded with not only with his foster parents, but their other child. In sum, the judge had ample grounds to conclude that the fourth statutory factor weighed in favor of termination.

We are therefore satisfied that the Family Part's decision comported with applicable law. We also are satisfied that the Family Part's decision reflects adequate sensitivity to E.H.'s constitutional interests, and that her rights as a parent were justifiably terminated because of strong countervailing proofs and the compelling need to achieve permanency for her young son, who has lived capably in foster care for nearly his entire life.

Affirmed.

 

M.W. has not appealed the judgment against him. Nor did he testify or otherwise participate in E.H.'s guardianship trial.

E.H.'s birth certificate nominally indicates she was born on November 30, 1987 in the City of Newark but there are no records of her birth in either the public files or at the local hospitals. Other documentation from E.H.'s medical and dental records suggests that she was likely born between January and September of l989. E.H.'s foster mother, Y.H., apparently told DYFS that E.H. was born in Haiti. However, Haitian officials were similarly unable to find any documentation as to E.H.'s birth.

The record indicates that E.H. is not, in fact, biologically related to the children who were thought to be her siblings.

Blood tests have revealed that E.H. and L.H. are not related.

Due to E.H.'s unknown lineage, the exact relationship could not be verified.

Caseworker Johnson is not related to Dr. Johnson.

Coincidentally, Diane Melton of the YAT happens to be the mother of Diana Melton at Isaiah House.

See K.H.O., supra, 161 N.J. at 363 (finding the fourth prong for termination had been fulfilled when the child's primary parental bond was with her foster parents and only a weaker secondary bond had existed with her biological mother).

(continued)

(continued)

28

A-6155-05T4

RECORD IMPOUNDED

June 22, 2007