NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. J.R.S.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1267-06T41267-06T4

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

J.R.S.,

Defendant-Appellant,

IN THE MATTER OF THE

GUARDIANSHIP OF A.L.S. AND T.J.S.,

Minors.

__________________________________

NEW JERSEY DIVISION OF A-1268-06T4

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

A.B.B.,

Defendant-Appellant,

IN THE MATTER OF THE

GUARDIANSHIP OF A.L.S. AND T.J.S.,

Minors.

________________________________________________________________

 

Argued telephonically September 9, 2008 - Decided

Before Judges Carchman, Sabatino and

Simonelli.

On appeal from the Superior Court of New

Jersey, Chancery Division, Family Part,

Monmouth County, Docket No. FG-13-106-05.

Justin J. Walker, Designated Counsel,

argued the cause for appellant A.B.

(Yvonne Smith Segars, Public Defender,

attorney; Mr. Walker, of counsel and on

the brief).

John R. Bailey, Designated Counsel,

argued the cause for appellant J.S.

(Yvonne Smith Segars, Public Defender,

attorney; Mr. Bailey, of counsel and

on the brief).

Deirdre C. Fichter, Deputy Attorney

General, argued the cause for respondent

Division of Youth and Family Services

(Anne Milgram, Attorney General, attorney;

Lewis A. Scheindlin, Assistant Attorney

General, of counsel; Ms. Fichter, on the

brief).

Noel C. Devlin, Assistant Deputy Public

Defender, argued the cause for the minor

children, A.L.S. and T.J.S. (Yvonne Smith

Segars, Public Defender, Law Guardian, attorney;

Ms. Devlin, of counsel and on the brief).

PER CURIAM

In these consolidated appeals, defendants J.S. and A.B. appeal from a judgment of the Family Part terminating their parental rights to their two children, A.L.S. and T.J.S., and granting guardianship to plaintiff Division of Youth and Family Services (DYFS or Division). We affirm.

These are the extensive facts adduced at trial. A.B. and J.S. are the unmarried parents of a daughter, A.L.S., born January 20, 1999, and a son, T.J.S., born July 16, 2001. The Division's first contact with defendants occurred on December 14, 1998, when DYFS received an anonymous call alleging that A.B. was more than seven months pregnant and abusing crack cocaine. While A.B. initially denied using drugs, she later admitted that she had tested positive for cocaine during a prenatal check-up. During a home visit on December 21, 1998, A.B. admitted to the Division caseworker that she had been using alcohol, marijuana and crack cocaine while pregnant, but claimed she did not realize that she was pregnant for the first five months. She told the caseworker that she had been "clean" for approximately three weeks.

On January 20, 1999, A.B. gave birth to A.L.S., who was born "clean." Following a short stay in the NICU, A.L.S. was discharged to A.B.'s care. Within two months, the Division received an yet another anonymous referral indicating that A.B. continued to abuse crack cocaine and that she had suffered a drug-related seizure requiring hospitalization. A caseworker visited A.B. the following day, March 19, 1999, accompanied by Linda Taylor of the Mercer Street Friends. Taylor later described A.B. as "nervous" and "not able to focus" during the visit. She noted that the room was "very dirty," that A.B. appeared "not to be groomed," and that A.L.S. had an eye infection. When questioned, A.B. admitted that she had suffered a seizure, but claimed it resulted from low blood sugar. A.B. denied using drugs since her pregnancy and provided a urine screen.

Following the home visit, the DYFS caseworker was stopped by local police who indicated that they had a warrant for A.B.'s arrest for drug-related offenses. Following A.B.'s arrest, A.L.S. was left in the care of J.S. and his mother, Lois.

Despite A.B.'s assurances that she had not used drugs since her pregnancy, on March 23, 1999, Taylor informed DYFS that A.B.'s urine screen was positive for marijuana and cocaine. Taylor recommended that A.B. enter Turning Point, a 28-30 day inpatient drug-treatment program. When confronted with the results of her urine screen, A.B. admitted to smoking marijuana at a friend's party, but denied using cocaine. J.S. indicated that he was in the TASC substance abuse program and had not used drugs in eight weeks. Both A.B. and J.S. indicated that they would not allow A.L.S. to be removed from the home, and stated that they would contact a lawyer.

Contrary to J.S.'s representation, TASC informed the Division that J.S. had not been in the program since July 20, 1998, although he did call on March 12, 1999, asking to return. After being instructed to come to the TASC office on March 13, 1999, J.S. failed to appear.

On March 25, 1999, the Division received the medical records relating to A.B.'s February visit to the emergency room, which revealed that she had tested positive for both marijuana and cocaine. The records further revealed that A.B.'s blood sugar was within normal range.

On March 31, 1999, the Division filed a verified complaint and order to show cause seeking custody of A.L.S., which was granted on that same date.

The Division made several attempts to obtain physical custody of A.L.S. and ultimately, by order dated April 7, 1999, J.S. was granted custody of A.L.S. on the condition that A.B. was not to have unauthorized contact with the child. The order required J.S. to complete a psychiatric evaluation, and both J.S. and A.B. were required to complete substance abuse screenings. A.B. was further ordered to enter into an in-patient substance abuse treatment program.

A.B.'s drug use continued, and on April 8, 1999, she submitted a positive drug screen for cocaine resulting in her entering Turning Point for treatment, which she successfully completed on May 18, 1999. J.S. submitted to a drug screen, which was negative although he later explained that he had purchased a "shake" to mask his use of drugs and facilitate a negative test result.

J.S.'s course of conduct was problematic. From April 1999, until November 1999, when DYFS regained custody of A.L.S., J.S. continuously used drugs, refused drug screens or exhibited physical traits or conduct suggesting continued drug use. During this period and unbeknownst to DYFS, J.S.'s sister, who had been granted custody of A.L.S., absented herself to Texas leaving the child in the care of J.S.'s mother Lois, who was physically unable to care for the child. J.S.'s understanding of his drug issues was best demonstrated when he inquired why he and A.B. could not do drugs and at the same time, care for the child. Any attempts by J.S. to successfully enter or complete drug programs were unavailing. His future was best described when the TASC director noted on the discharge sheet that J.S. "has no intention of stopping his drugging or complying with any treatment program."

A.B.'s successes at Turning Point were short lived. She continued receiving out patient treatment at TASC through Family Guidance, but repeatedly failed to appear for appointments. A November 29, 1999 court order reiterated the requirement that J.S. attend an inpatient substance abuse treatment program, and A.B. was ordered to attend substance abuse evaluations at Mercer Street Friends; however, she refused to submit to a urine screen in court on January 10, 2000. One month later, she and J.S. tested positive for cocaine, a circumstance that was repeated for J.S. just two months later when he again tested positive for cocaine.

On January 24, 2000, the court issued an order finding that A.L.S. had been abused and neglected by her parents and granting DYFS custody of A.L.S. Both J.S. and A.B. were granted visitation. By court order dated February 14, 2000, A.B. and J.S. were required to undergo drug evaluations, and Lois was to be evaluated to determine her ability to care for A.L.S. Intervening orders in April, June and September 2000 reiterated the need for J.S. to cooperate with random drug screens and A.B. to cooperate with drug screens and various treatment recommendations.

The Division referred J.S. to the Family Guidance Center; however, he failed to follow-through with that program, and his case was closed in June 2000. J.S. later entered a treatment program at Maryville on August 7, 2000, and successfully completed that program on September 4, 2000. J.S., however, tested positive for cocaine just a few weeks later on September 30, 2000.

A.B. did make attempts to address her drug issues. In August 2000, she called DYFS seeking a referral for treatment. She had recently been arrested for outstanding warrants, suffered another seizure and was referred to Mercer Trenton Addiction Science Center (MTASC).

A MTASC clinician performed a treatment evaluation of A.B. on August 23, 2000. The clinician noted that A.B. reported first using marijuana at age eighteen, moving to cocaine by age nineteen, and smoking crack cocaine by age twenty-two. He also noted that she stated "that she has remained clean for over a month . . . but later disclosed that she used the day before the assessment was conducted." He recommended treatment of partial hospitalization, and referred A.B. to the MTASC program. A.B. did not enter the MTASC program, and admitted to using crack when confronted with taking a drug test on September 28, 2000.

Both parents re-enrolled in the municipal TASC program, but attended only one meeting each on October 21, 2000. They were both terminated from the program on November 29, 2000.

By order dated May 7, 2001, A.L.S. was removed from foster care and placed in the physical custody of Lois. J.S. and A.B. were ordered to move out of the home and not to have unsupervised contact with their daughter.

The pattern of apparent successes and then reversion to drug use continued over the next few years. Additionally, successes were tempered by disciplinary problems that caused A.B. to leave various programs that had been made available to her. During this period, specifically July 16, 2001, A.B. gave birth to T.J.S., who was born drug-free. This birth, however, marked the end of the romantic relationship between A.B. and J.S.

As noted, A.B. started a number of programs that resulted in failure because of disciplinary reasons. In 2002, the Family Afterward program discharged A.B. for that reason followed months later by Epiphany House discharging A.B. for the same reason.

Some success was achieved at the Manna House Transitional Housing Program where A.B. remained sober and graduated from the program with employment and the custody of her children. The success was short lived as A.B. lost her employment, suffered a miscarriage, and in March 2004, she submitted a positive drug screen. She thereafter refused to submit to additional screens acknowledging that they would be positive. She then refused to enter outpatient substance abuse counseling.

On the evening of May 11, 2004, the Division received a referral from E.H., A.B.'s boyfriend, that A.B. was actively using drugs and that she had left the children with him since the morning of Saturday, May 8, 2004, without informing him of her whereabouts. E.H. further stated that A.B. had stopped going to meetings and was leaving the children with strangers.

The caseworker responding to the referral reported that A.B.'s home was in "disarray. There were piles of clothes, dirty dishes and other such clutter." The caseworker noted that five-year-old A.L.S. "was sleeping on a toddler bed without bedding" while T.J.S., then three, slept on a "love seat couch . . . with no bedding or covering on him; he was dressed only in a diaper." The caseworker noted that both children were "very dirty and not well cared for. [A.L.S.]'s hair was extremely tangled and dirty."

The caseworker observed that A.B. was annoyed, frustrated and "appeared to be under the influence." A.B. initially denied using drugs or alcohol, other than her prescription Lexipro for depression, claiming that she had been clean for over two years. However, she later admitted that she had relapsed with crack cocaine two days before this incident.

The Division initiated an emergency removal of A.L.S. and T.J.S. from A.B.'s care and temporarily placed them with Lois and J.S. However, J.S. had failed to complete any treatment program since February 2002, and Lois could not care for the children on her own. The children were removed the following day and placed in foster care.

DYFS filed an amended verified complaint and order to show cause on May 12, 2004, seeking removal and custody of both children, which was granted.

The children had their first visit with A.B. on May 18, 2004. During the visit, the children were upset, and A.B. indicated that she would do what was necessary to have them returned to her care. The children continued to do well in foster care; however, the foster parents indicated that A.L.S. would need counseling to address behavioral issues

On June 3, 2004, both J.S. and A.B. tested positive for cocaine. By order of that same date, the court granted A.B. supervised visitation, and she was also ordered to attend an in-patient substance abuse treatment program; however, she later indicated that she did not want to enter residential treatment and give up her possessions. J.S.'s visitation was suspended pending his compliance with court-ordered, out-patient drug treatment.

The pattern of drug abuse continued. A.B. tested positive for cocaine again on June 8, 2004. She refused to submit to drug screens on both June 23, 2004 and July 1, 2004. J.S. contacted DYFS on July 12, 2004, stating that he wanted visitation with his children and that he would agree to undergo the necessary treatment. J.S. did not follow through, and he tested positive for cocaine in court on August 2, 2004.

A.B. did not appear in court on August 2, 2004, and her visitation was subsequently suspended due to her failure to attend court-ordered treatment and evaluations and to comply with drug screenings.

A.B. entered a drug treatment program at New Hope in August 2004. A.B. completed that program and was discharged on September 23, 2004, with a minimum recommendation of "intensive outpatient treatment." She was referred to the Riverview outpatient program, but just days later, on September 27, 2004, A.B. tested positive for cocaine. Although she attended intake at Riverview in October 2004, A.B. did not return for treatment.

As of September 2004, A.L.S. and T.J.S. remained in the same foster home together. Both children were working with an in-home therapist from the Children's Home Society; however, A.L.S. continued to suffer emotional and behavioral issues. Her foster family reported that she had a dislike of men, was a difficult eater, and engaged in power struggles with her foster mother. The psychologist continued that A.L.S. seemed comfortable with her foster family, referring to her foster parents as "mom" and "dad," but that she "hate[ed] being a foster child."

On October 28, 2004, A.B. was granted weekly visitation with the children, conditioned on her compliance with treatment But in November 2004, the foster parents reported that the children were becoming increasingly upset after visits with A.B. and had been acting out in the foster home. The foster mother reported that A.L.S. was scared to go on the visits, and that T.J.S. cried, threw temper tantrums and had spread feces across the bed.

In December 2004, the foster parents notified the Division that they wished to end the placement due to the children's disruptive behavior. The children were removed from the foster home on December 22, 2004, and placed in Angel's Wings temporarily. A.L.S. was very upset, asking to return to her foster home, questioning whether she had done something wrong. The children were placed in a new foster home the following day. The children exhibited behavioral problems soon after being placed in their new foster home including altercations with other children necessitating medical care and treatment.

In December 2004, A.B. was incarcerated for twenty-eight days relating to charges of theft, possession of controlled dangerous substances and driving fines resulting in a suspension of her visitation. On January 25, 2005, A.B. enrolled in CPC Behavioral Healthcare Intensive outpatient program and made "great improvements" while in treatment.

A.L.S. was admitted to Monmouth Medical center on April 11, 2005, following suicidal ideations. In particular, A.L.S. had been riding her bicycle in the middle of the street, refusing to move for traffic. Later she became aggressive while in possession of a knife. She appeared to be "greatly depressed" and having "difficulty comprehending the sequence of events taking place in her life." She was diagnosed with post-traumatic stress disorder, depressive disorder and oppositional defiant disorder, and treated with anti-depressant and mood stabilizing medication.

The court conducted a permanency hearing on May 12, 2005, and accepted the Division's plan proposing the termination of A.B.'s and J.S.'s parental rights, followed by adoption of A.L.S. and T.J.S. By that same order, A.B. was granted supervised visitation.

A.L.S. underwent another psychiatric assessment after acting out in her foster home. She was admitted to Monmouth Medical Center due to depressive and oppositional defiant disorders on June 11, 2005. A.L.S. was transferred to the University of Medicine and Dentistry of New Jersey (UMDNJ) Children's Transitional Residence (CTR) on July 12, 2005, for more intensive therapy to stabilize "behavioral and emotional difficulties including agress[ive], assaultive, oppositional behaviors, sexualized behaviors, and suicidal ideations and gestures."

The CTR core assessments of A.L.S. listed the removal from her biological parents, reported exposure to domestic violence and possible sexual abuse, reported exposure to her parents' substance abuse, multiple foster home placements, multiple hospitalizations, recent contact with A.B. via supervised visits, and recent reported sexualized behaviors and dialogue as sources of the "conflicted feelings" which A.L.S. "demonstrates in her behaviors." The CTR termination report for A.L.S. indicated that in therapy, A.L.S. addressed her feelings of loss, abandonment, rejection, anger and sadness relating to her parents' inability to care for her and T.J.S. as a result of their drug use, her removal from her previous foster home after being told by her foster parents that they wanted to adopt her, placement in her current foster home, lack of closure with her biological parents and conflicted feelings related to adoption.

DYFS filed a guardianship complaint seeking the termination of parental rights on June 17, 2005.

A.B.'s pattern of conduct remained constant. In June 2005, A.B. contacted Sue Ralph stating an interest to return to the Manna House graduate program. A.B. began attending meetings at the YMCA and resumed oral drug screens. However, on June 21, 2005, A.B. tested positive for cocaine.

On July 6, 2005, J.S. underwent a psychological evaluation by Dr. Andrea Sollitto, a licensed psychologist. Dr. Sollitto stated that testing suggested J.S. "could be a viable parent to his children in the future," but noted that his prognosis was "guarded. . . given his lack of compliance to date" and defensive responses.

In August 2005, A.B.'s visitation with T.J.S. was suspended due to her failure to get treatment, and A.B. provided another positive drug screen at a case management conference on September 20, 2005.

At the guardianship trial, the judge learned that J.S. had married and been employed for three months. J.S. admitted that he had not received any substance abuse treatment since at least May 2004 and stated that he had last used drugs between March and August of 2005. J.S. also indicated his intent to enter outpatient treatment.

A.B., pregnant with her third child, stated that she last used drugs in September 2005, was currently on general assistance, not working and experiencing difficulty finding work while pregnant, but she intended to find a job or go back to school after the baby's birth, possibly working at Bayshore Hospital. She indicated that she would be eligible for child care services and that her church was also a resource.

A.B. was living in a one bedroom apartment but could receive a voucher for a larger apartment if the children were returned to her care. W.S., the father of her then unborn child, did not live with her, and she indicated that her relationship with him was "on hiatus." A.B. conceded that in the past she often used drugs to deal with stressful situations. She stated that she continues to attend counseling through the YMCA and also receives support through her church and the church community.

A.B. presented Dr. David Bogacki, a psychologist as her expert. Dr. Bogacki conducted a bonding evaluation between T.J.S. and A.B. In his report, Dr. Bogacki noted that T.J.S. did not refer to A.B. as "mommy" and he had no problems when separated from her. Dr. Bogacki concluded that there was "evidence of an insecure emotional attachment," although there was "no evidence that [A.B.] is the child's psychological parent." He noted that with increased contact, however, a stronger attachment would be able to develop between T.J.S. and A.B.

Dr. Bogacki opined that there was no imminent danger to the children should they be placed in A.B.'s care. He stated, however, that A.B.'s substance abuse and psychiatric problems were risk factors. In his report, Dr. Bogacki noted that A.B. "has a long term substance abuse history. It is [too] early in her recovery to opine whether or not she will relapse as she has relapsed several times in the past." He testified that twelve full months of "sustained remission" is generally preferred before turning a child over to a parent with a history of drug abuse. He suggested that A.B. undergo substance abuse treatment and weekly drug testing for two years.

Dr. Sollitto, DYFS's expert, conducted a bonding evaluation with A.L.S., T.J.S., their foster mother and their foster brother. He also conducted psychological evaluations on both J.S. and A.B. and bonding evaluations between T.J.S. and each of his biological parents, as well as J.S.'s wife, Laurie, and mother, Lois. Next, Dr. Sollitto met with J.S. Dr. Sollitto found J.S. to be very defensive and noted that he "tended to view psychological problems as a weakness and that he would tend to deny problems were they to exist." This concerned Dr. Sollitto with regard to A.L.S., who seems to have severe psychological problems.

J.S. indicated that he was willing to do what was necessary to gain custody of his children. Although Dr. Sollitto found that "it seems at this point [J.S.] really would like to parent his children," she was concerned "that he's had all this time to do what he needed to do to comply and get his children . . . and he hasn't done that, and that it's taken a severe toll on [A.L.S.] . . . psychologically and that it may be too late for her."

With regard to A.B., Dr. Sollitto was concerned about the "numerous attempts at rehabilitation and relapses." Dr. Sollitto noted that A.B. suffered from anxiety disorder, and that she is inclined to under report and minimize, deny weakness and emotional difficulties. She stated she was concerned about the effect of stressors on A.B. Dr. Sollitto opined that A.B. is not able to parent safely at this time and the return of the children to her care would expose A.L.S. and T.J.S. to an unnecessary risk of psychological harm. Based upon her evaluations, Dr. Sollitto found that

both parents' involvement with drugs and their subsequent lack of follow through . . . and/or ability to remain sober and clean has undermined their relationship with their children and, more significantly, compromised the mental health and stability of their children, especially [A.L.S.]. As such, I cannot recommend family reunification. . . .

To return the children to either parent would expose them to unnecessary risk of psychological harm and/or neglect. The parents have been given many opportunities to rehabilitate, but have been unable to do so. Since past behavior is the best predictor of future behavior, it is safe to say that the parents' prognosis is poor. It would be unfair to these children to keep

them in limbo.

At trial, Dr. Sollitto concluded that "neither parent has demonstrated that they could provide stability for the children now or at any time in the near future." She opined that although "[b]oth parents have the capacity to parent. They have not been able to provide a stable safe environment for the children, and the children, especially [A.L.S.] has suffered greatly." Dr. Sollitto, however, determined that the children "absolutely should stay together" noting that A.L.S. is psychologically fragile and separation from her brother would be devastating.

Following the close of trial, the Division requested an opportunity to reopen the record to update the court regarding developments in the children's placement as there was a possibility that the children would be separated. Jennifer Stoeckel, the DYFS caseworker, indicated, however, that the Division's goal was still to keep the children together if possible.

In his extensive opinion, Judge Peer found that the statutory standard for termination of parental rights had been met by clear and convincing evidence. Judge Peer found that both A.B. and J.S. had placed A.L.S. and T.J.S. "in jeopardy through their persistent abuse of drugs, the repeated cycles of rehabilitation and relapse, and their disregard for the impact of their actions upon their children." Of particular concern, he addressed A.B.'s cyclical history of treatment, abstinence and eventual relapse, and noted that her history has "caused great instability in the lives of her children."

Judge Peer further referenced A.B.'s lack of good judgment, as well as J.S.'s failure to identify his drug use as a problem and seek the necessary treatment. He concluded that both children have "demonstrated the psychological and emotional effects of the uncertainty in their lives caused by their parents' addictions."

He also found that both A.B. and J.S. "are either unable or unwilling to eliminate the harm that they have caused" their children. Judge Peer stated that "[b]oth parents have been reluctant in seeking treatment to remedy their addictions," although cognizant that such action was required to regain custody of the children.

Citing the opinions of both Drs. Sollitto and Bogacki, Judge Peer noted that both children require the stability that neither parent is able to provide at this time. He concluded that further delay in the children's placement "will add to the harm they have already suffered."

Judge Peer found that DYFS had made "diligent efforts" to assist A.B. and J.S. in correcting their problems with substance abuse. He listed numerous services in the form of referrals for counseling, both in-patient and out-patient treatment, drug screenings, classes, evaluations, family preservation services, day care, transportation, visitation and attempts at relative placements for the children. He noted that both A.B. and J.S. have provided "little cooperation" in return. He concluded that there is no alternative to termination that would "adequately safeguard the health and safety of these children."

On the record presented, the judge found that "[t]ermination of parental rights will not do more harm than good. It is in the children's best interests to remain in foster care at this time, with the possibility of adoption in the future." Judge Peer again referred to the parents' long history of substance abuse, and their failure to accept and adequately address their problems in an effort to provide A.L.S. and T.J.S. with a stable environment. Noting the children's need for permanency and stability, he concluded that A.L.S. and T.J.S. cannot wait for their parents to recover.

Following the filing of their appeal, we ordered a remand to address changes in the children's placement since trial. On remand additional details were revealed. Stoeckel informed the judge that A.L.S. had been removed from the foster home and placed into a Path II group home. T.J.S. also was removed from the foster home due to inadequate supervision by the foster parents. T.J.S. was removed and placed in Angel's Wings. He moved to a new foster/adopt home where he currently resides.

Dr. Wm. Dennis Coffey, a licensed psychologist, performed a psychological evaluation on T.J.S. Dr. Coffey noted that T.J.S. considered his former foster mother to be his "mother," and that his former foster parents were his "psychological parents." Dr. Coffey found that T.J.S. would benefit from a stringent group home setting; however, DYFS decided to provide T.J.S. an opportunity to adjust to his new placement rather than move him again. The Division offered in-home therapy to T.J.S, and he is now doing "great" in his placement.

A.L.S. remained in the group home for about one year. She had sibling visits with T.J.S. beginning in July 2006. Upon her discharge from Path II in June 2007, A.L.S. was placed in the same foster/adopt home with T.J.S.

Although A.B. appears to have remained sober and in counseling, the Division did not discuss placing the children with her after removing T.J.S. from his previous foster family in July 2006. T.J.S. did resume visits with A.B. in June 2006. At the initial visit, T.J.S. told A.B. to "get away" and kicked her. Stoeckel noted that T.J.S. had indicated that he does not know A.B. well enough to miss her.

A.L.S.'s first visits with her parents were scheduled for August 2006; however, her Path therapists determined that A.L.S. could not emotionally handle a meeting at that time. A.L.S. continued to refuse visits with both J.S. and A.B. throughout her time in Path. The Path therapist noted that A.L.S. "expressed her wish to know how her [biological] parents were doing. When asked what exactly she would like to know, [A.L.S.] replied 'if they still do drugs.'" However, A.L.S. identified her family as her previous foster family. When Path staff informed A.L.S. that her mother had a new baby, A.L.S. became sad and "expressed some concern . . . that mom might not be able to take care of the baby."

The Path therapist concluded that A.L.S. is depressed and angry with both of her parents as a result of their abandonment and the multiple placements she has endured. "She seems interested to know whether her parents are healthy and stable at this moment. However, she requires time and therapeutic work to be able to process and deal with her trauma of abandonment." Her therapist opined that A.L.S. "is a child who can thrive in a permanent home with a stable, loving family who can provide structure and discipline. She needs stability and permanency."

The Path therapist noted that A.L.S. "feels good with" the current foster parents. A.L.S. indicated that they want to adopt her, and she "thinks that it would be a great idea."

At the remand hearing, Stoeckel stated that A.L.S. still refuses to talk about her biological parents. Stoeckel noted that both children are doing well in their current foster/adopt placement, they are in school and making friends. Stoeckel stated that the foster parents are committed to caring for the children long term, and that both children "state they would like to stay in the home where they are, and eventually be adopted."

On appeal, A.B. argues:

I. A.B.'S PARENTAL RIGHTS TO HER CHILDREN, A.S.

AND T.S., SHOULD NOT BE TERMINATED AS THE

FINDINGS OF THE TRIAL COURT AND EVIDENCE

ADMITTED AT TRIAL DOES NOT SUPPORT A LEGAL

FINDING THAT ALL FOUR PRONGS UNDER N.J.S.A.

30:4C-15.1a WERE MET IN THIS CASE.

A. The findings of the trial court do

not support a legal conclusion

that the first prong of N.J.S.A.

30:4C-15.1a was met.

B. The findings of the trial court do

not support a legal conclusion

that the second prong of N.J.S.A. 30:4C-15.1a was met.

C. The findings of the trial court do

not support a legal conclusion

that the third prong of N.J.S.A. 30:4C-15.1a was met.

D. The findings of the trial do not

support a legal conclusion that

the fourth prong of N.J.S.A.

30:4C-15.1a was met.

II. THE TRIAL COURT MUST BE REVERSED BECAUSE IT

DID NOT APPLY A CLEAR AND CONVINCING

EVIDENCE STANDARD TO DYFS'S BURDEN OF PROOF

REQUIRED BY CASE LAW.

III. THE FINDING BELOW SHOULD BE REVERSED AS THE

COURT'S DECISION ERRONEOUSLY RELIES UPON A

MEDICAL CONDITION OF THE MINOR, ASHLEY

THAT CANNOT BE SUPPORTED BECAUSE THERE WAS NO MEDICAL EXPERT TESTIMONY, FOUNDATION OR REPORT.

IV. THE CONFLICTING REMAND ORDERS OF THIS COURT

AND THE REMAND HEARINGS DID NOT DISCLOSE THE

ALLEGED MEDICAL CONDITION OF ASHLEY OR IF

A.B. SHOULD BE CONSIDERED FOR PLACEMENT.

J.S. argues:

POINT I.

DYFS HAS FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT THE PARENTAL RIGHTS OF J.R.S. SHOULD BE TERMINATED.

POINT II.

DYFS HAS FAILED TO SHOW BY CLEAR AND CONVINCING EVIDENCE THAT TERMINATION WILL NOT DO MORE HARM THAN GOOD.

We address the issues raised by the parties.

Both defendants assert that the trial judge erred by finding that DYFS had met the best interests standard set forth in N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. While A.B. broadly contends that the judge erred as to each of elements identified by the statute, J.S. narrows his argument by asserting that DYFS failed to prove that J.S.'s conduct harmed his children or that termination would not do more harm than good.

In considering defendants' contentions, certain basic principles apply. We will not disturb the credibility determinations and factual findings of a trial judge in a non-jury case "unless 'they are so wholly unsupportable as to result in a denial of justice,'" but rather "'will uphold such findings whenever they are supported by adequate, substantial and credible evidence.'" N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 112 (App. Div. 2004) (quoting Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974); Cesare v. Cesare, 154 N.J. 394, 412 (1998)). The scope of appellate review, however, may be expanded "where the focus of the dispute is . . . alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom." IMO Guardianship of J.T., 269 N.J. Super. 172, 188-89 (App. Div. 1993) (quoting C.B. Snyder Realty v. BMW of N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989)).

A parent's right to raise and have a relationship with his or her child is fundamental and constitutionally protected. In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). This right, however, is not absolute, and is tempered by the State's parens patriae responsibility to protect the welfare of children. Id. at 347. This responsibility requires the State to act in the place of the parent where it has been demonstrated that the parent is unfit or that the child has been neglected or harmed. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). A balance between a parent's rights and the State's interest is achieved through the application of the best interests of the child standard. K.H.O., supra, 161 N.J. at 347.

Pursuant to N.J.S.A. 30:4C-15.1

a. The [d]ivision shall initiate a petition to terminate parental rights on the grounds of the "best interests of the child" . . . if the following standards are met:

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

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

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

(4) Termination of parental rights will not

do more harm than good.

These elements are not separate and discrete, but rather, "overlap with one another to provide a comprehensive standard that identifies [the] child's best interests." K.H.O., supra, 161 N.J. at 348.

"Because the consequences of finding that a child's best interests are served by the termination of the parental bond are permanent and irreversible," and the parent's right to foster a relationship with his or her child so fundamental, the State has the burden of proof by clear and convincing evidence. C.S., supra, 367 N.J. Super. at 111. "Clear and convincing" does not require absolute certainty. J.T., supra, 269 N.J. Super. at 190. Rather, this standard may be met by evidence that creates in the trier of fact "a firm belief or conviction as to the truth of the allegations sought to be established." Ibid.

Applying these standards, the trial judge determined that termination was in the best interests of A.L.S. and T.J.S. A.B.'s argument that the judge did not apply the clear and convincing standard is without merit. The judge found that each prong of the best interests standard was satisfied by clear and convincing evidence found in the trial record, and those findings are well supported by the applicable law and adequate, substantial and credible evidence presented at trial and in the record.

Both A.B. and J.S. assert that Judge Peer erred by finding that DYFS proved that the safety, health and development of A.L.S. and T.J.S. have been or will continue to be endangered by the parental relationship by clear and convincing evidence.

A.B. contends that the Division failed to show that the children's safety and well-being were threatened following her graduation from Manna House. She asserts, rather, that the children were removed due to the allegations of "a jealous and broken-hearted paramour," and that "her commitment to her children" should negate the trial court's findings of harm.

She also asserts that the lack of A.L.S.'s full medical records, any expert opinion, testimony or report establishing the source of A.L.S.'s behavioral and emotional problems precludes a finding that A.L.S.'s health has been endangered by her relationship with A.B. by clear and convincing evidence. A.B. contends that the judge's conclusion that defendants' drug abuse was a factor in A.L.S.'s psychological problems is not supported by any credible evidence.

J.S. makes a similar argument. J.S. further asserts that there is evidence that the children's problems stem not from the biological parents, but the "chaotic" and "undisciplined" conditions of the foster home.

N.J.S.A. 30:4C-15.1(a)(1) "requires a clear and convincing showing that the child's safety, health and development have been or will continue to be endangered by the parental relationship. The primary focus is whether the parent has harmed the child or may harm the child in the foreseeable future." C.S., supra, 367 N.J. Super. at 113. Such harm is not limited to physical abuse or neglect. IMO Guardianship of R., G. and F., 155 N.J. Super. 186, 194 (App. Div. 1977). "The trial court must [also] consider the potential for serious psychological damage to the child inferential from the proofs." Ibid. See In re Guardianship of K.L.F., 129 N.J. 32, 44 (1992) ("[s]erious and lasting emotional or psychological harm to children as the result of the action or inaction of their biological parents can constitute injury sufficient to authorize the termination of parental rights"); N.J. Div. of Youth & Family Servs. v. B.G.S., 291 N.J. Super. 582, 591-92 (App. Div. 1996) ("[e]vidence of serious emotional injury or developmental delay satisfies this prong."). Moreover, the court does not need to wait until the child actually has been irreparably impaired by parental inattention or neglect to act. In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999).

Here, the judge concluded that both A.B. and J.S. have jeopardized the well-being of their children through their persistent drug use, inability or unwillingness to address their addictions, and disregard for the impact their actions have upon their children. As support for this conclusion, the judge relied on the CTR records related to A.L.S., Dr. Sollitto's expert opinion, and other documented facts in evidence.

Both A.B. and J.S. contend that such a conclusion is a presumption or mere speculation without expert testimony or copies of A.L.S.'s complete medical records. The record clearly supports the conclusion that defendants' drug addiction and inability to adequately address that addiction and provide the children with a stable environment resulted in their being removed from their parents' care and displaced several times. These disruptions and the disappointment that accompanied them were difficult for the children, especially A.L.S.

The CTR records provided to Judge Peer following the trial indicated that the history of neglect by A.B. and J.S., removal from her biological parents, reported exposure to her parents' substance abuse, multiple placements and contact with A.B. were sources of A.L.S.'s psychological problems. The CTR discharge report, completed by A.L.S.'s therapists, reiterated that A.L.S. experienced feelings of loss, abandonment, rejection, anger and sadness relating to her parents' inability to care for her as a result of their drug use. The report also listed her removal from her previous foster home after being told by her foster parents that they wanted to adopt her, her placement in a subsequent foster home, lack of closure with her biological parents, and conflicted feelings related to adoption as factors contributing to her problems. Moreover, although not available to the judge prior to the remand, the Path records provided on remand further supported a conclusion that A.L.S. experienced depression and anger with A.B. and J.S. for abandoning her and the multiple placements she endured as a result.

Although not subjected to as profound an impact as A.L.S., T.J.S. has also experienced a lack of permanency and stability in his life, and he has also suffered emotionally as a result. See D.M.H., supra, 161 N.J. at 383 (noting that the court does not need to wait until a child is irreparably harmed). The record demonstrates that he has been acting out, especially after visits with his mother and that has significantly impacted on his conduct in his foster home placements.

Dr. Sollitto concluded that both children have suffered greatly as a result of their parents' failure to provide a safe, stable environment. She specifically noted that defendants' drug addiction and their inability to successfully overcome that addiction "has undermined their relationship with their children and, more significantly, compromised the mental health and stability of their children." Based upon her evaluation of both A.B. and J.S., Dr. Sollitto opined that returning the children to their parents would expose them to unnecessary psychological harm.

A.B.'s reliance on J.T., supra, 269 N.J. Super. 172, is misplaced. There, the trial judge disregarded expert testimony. Id. at 189-90. In this case, A.B. contends that harm cannot be found without expert testimony related to A.L.S.'s psychological problems.

As noted above, however, the record provides ample support for the judge's conclusion that the children, and particularly A.L.S., have suffered harm due to the instability in their lives caused by their parents' drug addiction and failure to provide them with a safe and stable environment. Although not expert testimony, the record relied upon by the judge included the reports provided by A.L.S.'s therapists at CTR. Again, these documents specifically list defendants' substance abuse, neglect and abandonment, and the instability that has resulted from defendants' inability to care for A.L.S. as factors contributing to her psychological problems.

J.S. asserts that the testimony indicated that the children's behavioral issues were the result of a lack of structure and discipline in a recent foster home. The facts are to the contrary. A.L.S.'s behavioral issues began well before her placement in that foster home. Specifically, A.L.S. acted out while she was still in her mother's care and then acted out after visits with their mother. A.B.'s argument that "her commitment" to her children somehow negates the harm caused by her May 2004 relapse is also without merit. We have no doubt that A.B. loves her children, but our concern is whether she can provide a stable and nurturing environment. See D.M.H., supra, 161 N.J. at 383 (noting that although there was "no question" that father loved his children, termination was warranted where evidence showed that he could not perform his parental duties). On credible evidence, the judge found that she could not.

A.B. asserts that there was no evidence that "the children's safety and well-being were threatened" but rather that DYFS removed the children based upon the allegations of "a jealous and broken-hearted paramour." However, the record demonstrates that A.B. did, in fact, relapse, that A.B. had left her children for several days with a man who she admitted drank alcohol "constantly," that the children were found dirty and that the house unkept. A.B. does not challenge these facts, and even if the referral resulted from a lovers' quarrel, they remain the facts.

The record fully supports the judge's conclusion that DYFS proved by clear and convincing evidence that the first element of the best interest standard had been met in favor of termination.

A.B. next contends that it was error for the trial judge to find by clear and convincing evidence that A.B. is unwilling or unable to eliminate the harm, or unwilling to provide a safe and stable home for the children, and that the delay of a permanent placement will add to the harm. She cites to the many times she sought treatment for her addictions, the fact that she was clean for more than two years and that she presently has been sober for more than one year, as proof of her willingness and ability to remain clean and provide a safe and stable home for her children.

Unfortunately A.B.'s history of treatment, remission and relapse compels a different conclusion. Dr. Sollitto, indicated that "neither parent has demonstrated that they could provide stability for the children now or at any time in the near future." DYFS observes that even A.B.'s expert questioned her ability to remain sober.

The Law Guardian also notes A.B.'s "pattern of relapses into drug use," asserting that "while she may desire to change her habits and provide a stable home for her children, she is unable to do so." The Law Guardian observes that although A.B. claims to have been sober for more than two years, much of that time was spent in a structured program, and A.B. has failed to show that she will maintain long-term abstinence on her own.

N.J.S.A. 30:4C-15.1(a)(1) and (2) are closely related, and "evidence that supports one informs and may support the other." D.M.H., supra, 161 N.J. at 379. The second prong, however, more closely focuses on "conduct that equates with parental unfitness." Ibid. The inquiry under N.J.S.A. 30:4C-15.1(a)(2) "is aimed at determining whether the parent has cured and overcome the initial harm that endangered . . . 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. The judge must decide "whether 'it is reasonably foreseeable that the parent can cease to inflict harm upon the children entrusted to their care. No more and no less is required of them than that they will not place their children in substantial jeopardy to physical or mental health.'" C.S., supra, 367 N.J. Super. at 117 (quoting N.J. Div. of Youth & Family Serv. v. A.W., 103 N.J. 591, 607 (1986)). The court's function is "to decide whether parents can raise their children without causing then further harm." J.C., supra, 129 N.J. at 10. "This test may be satisfied in a number of ways, including 'indications of parental dereliction and irresponsible recurrent drug abuse, [and] the inability to provide a stable and protective home . . . .'" C.S., supra, 367 N.J. Super. at 117-18 (quoting K.H.O., supra, 161 N.J. at 348). Proofs will often focus on past abuse and neglect, and the likelihood that such conduct will continue. J.C., supra, 129 N.J. at 10.

Here, the record fully supports the judge's finding that this element has been met. Both J.S. and A.B. were offered numerous opportunities to address their substance abuse problems; however, the record is replete with notations of missed screenings, appointments and evaluations by both defendants. A.B. and J.S. often failed to comply even when such treatment or screenings were ordered by the court as conditions for visits with or retaining custody of the children.

A.B. claims that she remained sober for more than two years; however, as noted by the Law Guardian, during much of that time, A.B. was in in-patient treatment facilities, and subjected to random drug screenings. A.B. was discharged from two residential facilities during that time due to her failure to follow rules. She was out of Manna House less than one year before she had a documented relapse.

Previously, J.S. has indicated that he did not believe his drug use was a problem or impeded his ability to parent his children. He has consistently failed to comply with court-ordered screenings and treatment and was discharged from the treatment programs he did enter due to his failure to attend. His repeated intentions to enter treatment have been unavailing. The record supports the judge's finding that the second prong of the best interest standard has been met in favor of termination by clear and convincing proof.

A.B. argues that the judge erred by finding that DYFS proved by clear and convincing evidence that it made reasonable efforts to provide services to correct the circumstances that led to the children's placement in foster care, namely the parents' drug addiction. A.B. focuses on the time period between December 2004 and October 2005 when Maria Roman served as the caseworker, noting that Roman made few visits to A.B. and often failed to return her calls or respond to her requests for services. A.B. also contends that she received no assistance from DYFS in entering in-patient care through Family Afterward, Epiphany House or Manna House and that she sought counseling through YMCA on her own.

DYFS asserts, however, that A.B.'s "contention that she found her way to a limited period of sobriety without any assistance from the Division is factually inaccurate," noting that her admittance into the Family Afterward program was the result of a series of DYFS referrals. The Division

reiterates that A.B.'s involvement with DYFS began in 1998. It argues that a review must be made with regard to the Division's full history with A.B. and not limited to the ten month period in which Roman acted as the caseworker. DYFS further challenges A.B.'s assertion that Roman "did nothing," stating that services were already in place when Roman became involved. It noted that A.B. failed to appear for scheduled evaluations and was difficult to contact during that time because she had moved and did not have a telephone.

The Law Guardian emphasizes the fact that DYFS had provided A.B. with referrals to at least six different treatment programs, and made bona fide efforts at reunification between A.B. and her children.

The third prong requires a showing that DYFS has made reasonable efforts to correct the circumstances that led to the child's removal. N.J.S.A. 30:4C-15.1(a)(3). The term "reasonable efforts" is defined in N.J.S.A. 30:4C-15.1(c) as

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

 
(1) consultation and cooperation with the parent in developing a plan for appropriate services;
 
(2) providing services that have been agreed upon, to the family, in order to further the goal of family reunification;

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

 
(4) facilitating appropriate visitation.

The reasonableness or diligence of the Division's efforts is not to be measured by their success. D.M.H., supra, 161 N.J. at 393. Rather, "[t]hese efforts must be assessed against the standard of adequacy in light of all the circumstances of a given case." Ibid.

The goal of the "reasonable efforts" requirement is to encourage, foster and maintain the parent-child bond as a basis for reunification. Id. at 390. However, some factors that suggest that efforts to reunite a family are no longer reasonable include, but are not limited to, parents who refuse to engage in therapy or other services and children who show serious adverse reaction to contact with their parents. A.W., supra, 103 N.J. at 610.

In the trial judge's opinion, he correctly concluded that DYFS made reasonable efforts to assist A.B. and J.S. address their addictions, provide a stable environment and reunite with their children. A.B.'s focus on the actions, or lack thereof, taken by Roman during a specific ten-month time period is short sighted. As the Division notes, it has been involved with A.B. since 1998. In that time, DYFS has provided both J.S. and A.B. with numerous referrals for treatment and evaluations. DYFS also provided defendants with access to supplies, facilitated visitation, provided transportation, sought potential relative placements for the children, and provided services and counseling to facilitate such relative placements.

The record fully supports the judge's conclusion that DYFS provided reasonable efforts to assist A.B. and J.S. in correcting the problems that resulted in the removal of their children.

Both A.B. and J.S. assert that the trial judge erred by finding that DYFS proved by clear and convincing evidence that termination will not cause more harm than good. A.B. stresses A.L.S.'s lack of a stable foster placement, noting that she has been in several foster homes and residential treatment facilities, and that T.J.S. was removed from his placement not long after the close of trial. A.B. asserts that she has remained "clean" and is capable of caring for her children.

J.S. asserts that it was not clear whether the judge was even aware that the children had been removed from their foster family. He implies that the judge's conclusion that termination would not do more harm than good has been invalidated by the children's removal from the foster home, as there was no longer any relationship to balance against the children's bond with their biological parents. In these circumstances, J.S. claims that the "entire harm to the children is clearly one-sided" against termination.

DYFS argues that the judge's conclusion is well-supported by the testimony and report of Dr. Sollitto, who concluded that neither parent was currently capable of providing stability for the children. She further opined that T.J.S.'s bond with his parents was not so significant that termination was not in his best interest. In contrast, DYFS asserts that neither parent offered any evidence that the children would be harmed if parental rights were terminated. DYFS notes that A.B.'s expert, Dr. Bogacki, concluded that T.J.S. did not view A.B. as his psychological parent.

The fourth prong requires that the Division provide clear and convincing evidence that the termination of parental rights will not do more harm than good. N.J.S.A. 30:4C-15.1(a)(4). "This criterion is related to the first and second elements of the best interests standard, which also focus on parental harm to the children." D.M.H., supra, 161 N.J. at 384.

The trial judge must often determine "whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with her natural parents than from the permanent disruption of her relationship with her foster parents." K.H.O., supra, 161 N.J. at 355. Unfortunately, however, "termination of parental rights does not automatically lead to adoption or other comparable permanent arrangements." Id. at 359. Termination of parental rights is not solely predicated upon bonding, and thus, a showing that the child is settled in a permanent placement is not always required. A.W., supra, 103 N.J. at 614; B.G.S., supra, 291 N.J. Super. at 593.

Rather, the child's need for permanency and stability is the "central factor" to be considered under this prong of the best interests test. K.H.O., supra, 161 N.J. at 357. Limits are appropriately placed on the amount of time given to a birth parent to correct conditions in anticipation of reunification. Id. at 358. "A child cannot be held prisoner of the rights of others, even those of his or her parents. Children have their own rights, including the right to a permanent, safe and stable placement." C.S., supra, 367 N.J. Super. at 111.

Here, both children have been removed from the foster placement in which they resided during trial. This fact alone, however, does not warrant the finding that termination would not do more harm than good. Changes in foster or even potentially-adoptive placements "are the inevitable consequences of temporary living arrangements." A.W., supra, 103 N.J. at 614.

Contrary to J.S.'s argument, the judge was aware of the fact that the children's placement had changed. As noted, however, the focus of the inquiry is the child's need for permanency and stability. K.H.O., supra, 161 N.J. at 357. And, as the judge concluded, there is simply no evidence in the record demonstrating that either A.B. nor J.S. will be able to provide their children the safe and stable environment that they need at any time in the near future.

Dr. Sollitto stated that she could not recommend family reunification based upon her evaluations, noting that "neither parent has demonstrated that they could provide stability to the children now or at any time in the near future." Further noting that past behavior is the best predictor of the future, Dr. Sollitto opined that defendants' prognosis for sustained recovery was "poor." Dr. Sollitto concluded that defendants' drug addiction and failure to address that addiction had "compromised the mental health and stability of their children" and that reunification would further expose A.L.S. and T.J.S. "to unnecessary risk of psychological harm and/or neglect."

Although Dr. Bogacki concluded that there was "no imminent danger to the children" if returned to the care of their mother, he admitted that A.B. has a long history of substance abuse and that it was too "early in her recovery to opine whether or not she will relapse."

Dr. Bogacki opined that although T.J.S. has an insecure emotional attachment to A.B., she is not his psychological parent. Dr. Coffey's report, provided on remand, indicates that T.J.S. considers his former foster mother as his "mother" and psychological parent. T.J.S. has more recently indicated that he does not know A.B. well enough to miss her.

A.L.S. has been out of her parents' care for most of her short life, first entering foster care in November 1999, prior to her first birthday. A.L.S. refused to participate in any bonding evaluations with her biological parents, and she has not seen either A.B. or J.S. since before her hospitalization in June 2005. Her therapists at both CTR and Path indicated that visitation was not in the best interests of A.L.S., and she continues to refuse to meet with her biological parents.

The CTR therapists specifically cited to her parents' drug use and the resulting foster placements as sources of A.L.S.'s behavioral and emotional problems. The Path therapists further indicated that A.L.S. has experienced feelings of depression and anger due to her parents' abandonment and the multiple foster placements she has endured as a result, opining that A.L.S. "is a child who can thrive in a permanent home with a stable, loving family who can provide structure and discipline. She needs stability and permanency."

Even though there are no bonding evaluations between the children and their current foster family, we conclude that the judge correctly held that DYFS met its burden of proof by clear and convincing evidence as to N.J.S.A. 30:4C-15.1(a)(4).

We previously ordered a remand to ascertain the status of the children. A.B. asserts error because the remand failed to disclose either A.L.S.'s medical condition or A.B.'s current status. A.B. argues that "[t]he ambiguity concerning the conflicting orders of the Appellate Division regarding remand . . . did not permit A.B. to present further evidence and testimony of her fitness to parent her natural children." She further contends that the remand proceedings were "unproductive" because no documentary evidence or expert testimony was offered regarding A.L.S.'s medical condition. We conclude that these arguments are without merit.

First, we denied her motion seeking a remand to ascertain her post-trial status. J.S.'s motion, which was granted, sought a remand to update the court as to the status of the children.

A.B.'s argument that the remand was "unproductive" because it failed to include expert testimony or an expert report relating to A.L.S. is without merit. Stoeckel's testimony and the documents provided by the Division informed us as to the status of children since trial and their present placement. Nothing further was requested or ordered by the court. There was no requirement that any expert testimony be provided.

 
We are satisfied that the trial judge's findings are well-supported by the record.

Affirmed.

Throughout the record, defendants J.R.S. and A.B.B. are referred to at various times as "J.S." and "A.B." For ease of reference, we refer to each defendant as "J.S." and "A.B."

Treatment Assessment Services for the Courts.

(continued)

(continued)

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A-1267-06T4

RECORD IMPOUNDED

November 17, 2008