NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. P.A., R.S. and A.J IN THE MATTER OF THE GUARDIANSHIP OF A.L.M.S., D.J.R.J. and T.R.S

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3757-07T43757-07T4

A-4345-07T4

A-4475-07T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

P.A., R.S. and A.J.,

Defendants-Appellants.

________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF A.L.M.S., D.J.R.J. and T.R.S.,

Minors.

______________________________________________

 

Argued October 21, 2009 - Decided

Before Judges Axelrad, Fisher and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-116-07.

Amy Williams, Designated Counsel, argued the cause for appellant P.A. (Yvonne Smith Segars, Public Defender, attorney; Anna F. Patras, Designated Counsel, on the brief).

Carleen M. Steward, Designated Counsel, argued the cause for appellant R.S. (Yvonne Smith Segars, Public Defender, attorney; Ms. Steward, on the brief).

Yvonne Smith Segars, Public Defender, attorney for appellant A.J. (Annamaria Bretao Bercik, Designated Counsel, on the brief).

Merav Lichtenstein, Deputy Attorney General, argued the cause for respondent New Jersey Division of Youth and Family Services (Anne Milgram, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Lichtenstein, on the brief).

Olivia Belfatto Crisp, Assistant Deputy Public Defender, argued the cause for respondent minors (Yvonne Smith Segars, Public Defender, Law Guardian, attorney; Ms. Crisp, on the brief).

PER CURIAM

In this appeal, defendants seek review of a judgment terminating their parental rights to the children in question. After careful examination of the record in light of the issues raised on appeal, we affirm.

I

This guardianship action, commenced by the Division of Youth and Family Services (the Division), concerns three children: D.J. (born on April 17, 2001), A.S. (born on September 21, 2003) and T.S. (born on September 4, 2004). Defendant P.A. is the mother of all three children; defendant A.J. is the biological father of D.J.; and defendant R.S. is the biological father of A.S. and T.S. Defendant P.A. (the mother) is also the biological mother of four other children, none of whom were in her custody when this action was commenced; custody of her oldest child was granted to that child's father, and her parental rights to her next three children were involuntarily terminated in 1998.

The Division again became involved with the mother when the oldest of the three children in question, D.J., was born. Another referral was made when D.J. fell to the floor while defendant R.S. was giving him a bath in a kitchen sink on July 12, 2002. Allegations of abuse or neglect were unsubstantiated, but the Division concluded that the family's basement apartment was not large enough to accommodate all persons living there. The Division also learned at the time that defendant A.J. had been in an altercation with defendant R.S., and that P.A. had obtained a restraining order against A.J.

In December 2002, a Division caseworker visited the mother's home, observing it to be very messy and lacking a bathroom sink. A case plan was formulated and the mother agreed to contact the Division for services as needed.

On September 6, 2004, the Division was informed that the mother had given birth to T.S. two days earlier. A caseworker informed the mother that she had an open case in the Division's Newark office and was considered to be on missing status. The mother indicated she was living in the Elizabeth YMCA for nine months, and, before that, she had been residing with various friends. Because the mother was on missing status, she was not permitted to leave the hospital with T.S. At the same time, D.J. and A.S. were removed due to concerns about their living situation at the YMCA. The mother signed a fifteen-day consent form, and R.S. was sent for a substance abuse assessment.

The children were returned to the mother's custody on September 14, 2004, when the Division confirmed she had appropriate living arrangements at the YMCA. The Division began providing services. It supervised monthly visits and referred the mother for a psychological evaluation; the YMCA also referred the mother for counseling. During a monthly visit in March 2005, the mother informed a Division caseworker that she was leaving the YMCA because welfare would not pay for additional time. When the caseworker returned in April 2005, the mother and her children were no longer residing at the YMCA.

The Division investigated and learned from a welfare worker that the mother had been evicted from the YMCA due to a visit from an unauthorized party. The welfare worker advised the Division caseworker that the children were staying with their father at the home of a woman named Mary Smith. The Division assessed the apartment and agreed the children could remain in the care of the mother and R.S. as long as they obtained beds for the children.

Following the home assessment, the Division had no contact with the mother until October 18, 2005. The mother did not enroll the children in school or daycare, obtain a job, or find appropriate housing. She later admitted her routine was to leave the house early in the morning without returning until evening; R.S. informed the Division that he worked nights and that the mother brought the children to him in the morning. The mother did not explain what she did during the day. She also refused to allow the Division to visit Smith's home after the meeting, claiming she had forgotten her keys.

When the Division visited Smith's home the next day, Smith stated that the mother and children had moved out three months earlier and the children had only been there for about one month. During that one month, R.S. lived with Smith and the mother resided with her boyfriend, Charles Jones. Smith also confirmed that R.S. was unemployed.

Smith took the caseworkers to a motel in Elizabeth, where the mother and the three children were found residing in a room with another woman and her three teenage sons. The room was in disarray, with dirty mattresses, no sheets on the beds, and clothing strewn about the room. A hot plate was lying on a stand and a microwave was sitting on a small refrigerator. The caseworker described the room as "filthy, dirty and deplorable." The caseworker determined that the children were not safe with their mother because she did not have adequate housing, because of her transient living situation, and because she had not maintained contact with the Division. The Division effected an emergency removal of the children.

II

On October 20, 2005, the Division filed an action alleging the children were abused or neglected and seeking judgment awarding the Division the custody, care and supervision of the children. The trial court temporarily awarded the Division the custody, care and supervision of the three children; D.J. and T.S. were placed in one foster home and A.S. in another. A search was initiated for A.J.

Both the mother and R.S. failed to appear for a scheduled visitation with the children on October 25, 2005. The mother visited the children on October 28, November 9, and November 30, 2005; R.S. attended the first two visits. The Division referred the mother for parenting skills classes, individual counseling, and anger management classes. By way of an order entered December 1, 2005, the mother stipulated she "does not have suitable housing and caused her own termination at a shelter for not following rules."

Pursuant to court order, the mother attended a psychological evaluation with Dr. Karen Wells. The mother stated that she had been living in a shelter or with friends until April 2005. She explained that she did not enroll her children in daycare because she did not trust people around them.

Dr. Wells had previously examined the mother regarding the three older children who had been terminated. She made note that she had concerns similar to those indicated in her 1998 evaluation. Those concerns included homelessness, inappropriate or overcrowded living conditions, psychological and psychiatric issues, and an absence of relative resources. In addition, Dr. Wells observed that there had been "extensive periods when [the mother's] whereabouts were unknown" to the Division. Dr. Wells found the mother still "assumed minimal to no responsibility for the children's placement independent of her care, blaming [the Division] and others for their alleged inadequacies and failures."

Dr. Wells found that the mother "may experience periods of marked emotional, cognitive, or behavioral dysfunctioning" and "is likely to project blame onto others, assuming minimal responsibility for her actions," and that "rebuffs to [the mother's] self-esteem will likely disrupt her characteristic composure and elicit a range of unpredictable behavior such as anger, depression, moodiness, and social withdrawal." According to Dr. Wells, the mother "will need to display an ability to secure and maintain housing prior to any plans for favorable reconsideration of the children in her care," noting that "[w]hile [the mother] expresses intentions to secure housing, there are no indications that these plans are definitive." Dr. Wells reported that "[c]onsistent with information received from [the mother] during the December 1998 psychological evaluation . . ., she again expresses intentions to become gainfully employed and secure stable housing, with no indication that during this close to seven-year period she has been able to be successful in either." It is apparent, claims Dr. Wells, that the mother "is limited in her capacities to independently function and will continue to be dependent on external agencies to meet her needs, while simultaneously continuing to project blame and describe them as inadequate in meeting her needs." Dr. Wells observed that because the mother lacks natural or familial resources to assist her in finding housing, "it appears that she will not be able to resume care for the children in the foreseeable future."

In conclusion, Dr. Wells found that "[the mother]'s ability to assume care for herself is questionable, with even greater concern as it relates to her ability to attend to the needs of her children." Dr. Wells further opined that if reunification occurred, "multiple layers of services and support[] would be required," and "despite having received services through the years, [the mother] continues to display limitations in her ability to attend to the needs of her children." As such, Dr. Wells determined that "no support can be given for reunification at this time."

On December 15, 2005, Dr. Wells conducted a psychological evaluation of R.S. Dr. Wells observed that R.S. "related information to indicate that he was not only supportive of [the mother's] desire to assume parental care and responsibility for the children, but also that she had been a good mother to the children while they were in her care." R.S. "related information noting that he had an active day-to-day involvement in the lives of the children, although he did not view himself as being able to independently assume parental care." According to Dr. Wells, R.S., who resided with his grandparents and father, "d[id] not state a desire or intentions to assume a primary role with the children, preferring that this responsibility would be left to their mother." Dr. Wells opined that R.S.'s "deflated sense of self-worth and his expectation of failure and humiliation constrain his efforts to function without support," and that R.S. "sees no alternative but to depend on supporting persons and groups." Despite finding "no indications that [R.S.] would intentionally place the children at risk or harm for abuse or neglect," Dr. Wells determined "there are also indications that he cannot provide even minimal parental care and responsibility for them." As such, Dr. Wells concluded "there are no indications that within the foreseeable future, [R.S.] would be equipped with the means to assume primary parental care and responsibility for [the children]."

On March 29, 2006, the trial court entered an order, pursuant to N.J.S.A. 30:4C-11.3, which relieved the Division of the obligation to provide services aimed at reunifying the mother with her children. The order was based on the prior involuntary termination of the mother's parental rights to three older children. The court also ordered the mother and R.S. to obtain stable housing and employment and to comply with all services and recommendations emanating from their psychological evaluations.

On July 26, 2006, all three children were removed from foster care and placed with their grandparents, who expressed an interest in adopting the children. The children were removed on May 2, 2007, however, when the grandmother required medical attention. T.S. was placed in a foster home in Newark, while D.J. and A.S. were placed in Jersey City. They have since been returned to their grandparents.

The trial court issued a permanency order on October 12, 2006, finding appropriate the Division's plan of termination followed by relative adoption. A.J. was not present at the permanency hearing, and R.S., who had been incarcerated on a drug charge, appeared by telephone from jail. The order recited that "the parents have not made reasonable efforts towards reunification," as A.J. "has not made himself available for services," R.S. "was incarcerated and cannot plan for the children," and the mother "has a history of homelessness, abandonment, physical and substance abuse and mental health issues and has not been compliant with services, offered even though [the Division] obtained a No Reasonable Efforts Order."

III

On December 7, 2006, the Division commenced this action to terminate the parental rights of all three defendants. The Division initiated a search for A.J., but ultimately was relieved of its efforts to search further and a default was entered. Eventually, A.J. appeared. Psychological evaluations of all defendants were conducted.

A trial was conducted on February 11, 13 and 15, 2008. Judge Callahan rendered an oral decision on February 25, 2008. He concluded that the parental rights of all three defendants should be terminated and memorialized that decision in a judgment entered on March 3, 2008.

All three defendants appealed.

IV

Defendants all argue that the evidence was insufficient to demonstrate the presence of all four prongs of the test contained in N.J.S.A. 30:4C-15.1a. The applicable standard of appellate review requires that we defer to a trial judge's factual findings when they are based on credible evidence in the record unless convinced those findings are "so wholly unsupportable as to result in a denial of justice." In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002) (citations omitted); Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). In examining a judge's findings, we are obligated to accord deference to the judge's credibility determinations as well as the judge's "feel of the case" based upon the opportunity to see and hear the witnesses. Pascale v. Pascale, 113 N.J. 20, 33 (1988). "When the credibility of witnesses is an important factor, the trial court's conclusions must be given great weight and must be accepted by the appellate court unless clearly lacking in reasonable support." N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 259 (App. Div. 2005). Appellate courts also afford deference to factfinding in such matters because of the family court's special expertise in family matters. Cesare, supra, 154 N.J. at 413; Brennan v. Orban, 145 N.J. 282, 304-05 (1996).

Having closely examined the matter, we conclude that the record contains clear and convincing evidence to support Judge Callahan's findings. We also find that the judge identified the correct legal standards and thoughtfully applied them to his factual findings in ultimately concluding that termination was required.

In reaching his decision, Judge Callahan applied N.J.S.A. 30:4C-15.1a, which requires that, in order to obtain the termination of parental rights, the Division must prove that:

(1) The child's safety, health or develop-ment 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 . . .;

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

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

See also N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986).

These factors are "extremely fact sensitive and require particularized evidence that address the specific circumstance in the given case." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 280 (2007) (internal citations omitted). The Division bears the burden of proving by clear and convincing evidence that the four statutory criteria are satisfied. Ibid.; N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004). These criteria "overlap to provide a composite picture of what may be necessary to advance the best interests of the children." M.M., supra, 189 N.J. at 280 (quoting F.M., supra, 375 N.J. Super. at 259).

In considering the sufficiency of the evidence, we examine the judge's findings on each of the four prongs and how those prongs apply to each defendant.

A

The first prong concerns whether the parent has harmed or will continue to harm the child if the parent-child relationship is allowed to persist. In re Adoption of Children by G.P.B., 161 N.J. 396, 412 (1999). "Harm" is defined as anything that endangers the child's "health and development resulting from the parental relationship." In re K.H.O., 161 N.J. 337, 348 (1999). The harm contemplated by the first prong must be that which will likely have continuing deleterious effects on the child. Id. at 352. "Although a particularly egregious single harm can trigger the standard, the focus is on the effect of harms arising from the parent-child relationship over time on the child's health and development." Id. at 348.

Judge Callahan found that the children were subjected to "a nomadic day to day situation from shelter to shelter," and their living conditions were like "a ship in the storm, never believing that they might reach any shore of stability." The judge found that this situation was not "thrust upon the children from a purely economic standpoint, but one that was created primarily by the conduct of the mother and [abetted] by the action or inaction of [R.S.] and [A.J.]."

The mother argues that the Division failed to prove this prong by clear and convincing evidence. We find her argument to be without merit. Indeed, her argument seems to be based on the fact that there are gaps in time since D.J.'s birth in 2001 during which the Division was unable to show that the family was homeless or subjected to inadequate shelter. Assuming it is true that the children resided at times, during the seven years between D.J.'s birth and the trial, in a sufficient home does not suggest that the Division failed to prove the first prong regarding the mother's parental relationship. There was ample evidence from which the judge could conclude that for significant periods of time, the mother had failed in this regard. The record reveals that the children were removed from a "filthy, dirty and deplorable" motel room inhabited not only by the mother and children but also another woman and her teenage children.

The entire record demonstrates the mother's failure to provide a safe and stable home for her children, a circumstance similar to that which caused the removal of her older children from her custody and the eventual termination of her parental rights to three of those four children. She was asked to leave the YMCA because of rule violations, and prior to that she had been residing with various friends. When living at the motel with her friend and three teenage boys, the room was very poorly maintained, as evidenced by the caseworker's description of filth and the substantiated allegation of neglect. At trial, the mother acknowledged she was residing with a paramour -- she still had not made appropriate living arrangements for her family. The harm caused by this neglect threatens the children's welfare and, absent termination, would have continuing deleterious effects. K.H.O., supra, 161 N.J. at 352. The judge's finding that this "nomadic" lifestyle was "created primarily by the conduct of the mother" is supported by adequate, substantial, and credible evidence.

The judge explained that R.S.'s "own self admission of neglect satisfies, aside from anything else, the first prong." During R.S.'s testimony, noted the judge, "[w]ith a degree of insight, [R.S.] acknowledge[d] his part in the neglect of the children, going back to October of 2005." The judge found that R.S. admitted to "not being responsible for his children and that he was neglectful [by failing] to prevent the harm that [the mother] was maintaining on a daily basis over an extended period of time." R.S. "was moving about, so to speak, in 2005 by his own admission, while [the mother] wound up finally in the . . . motel room where she was finally located." The judge determined that "it's obvious that [R.S.] had no physical location for even his own benefit on a regular basis, let alone to provide [the mother] and the three children housing." Also, by October 2005, R.S. was, in the judge's words, "quite drug involved."

R.S. argues that his "acknowledgement of his past deficiencies should be applauded in that he recognizes that his past behavior was less than stellar, yet he has made remarkable strides in remedying the problems." Yet, at the time of trial, R.S. could only say that he was employed, saving money, looking for an apartment, and had two potential babysitters if an after school program could not be located.

As the factfinder, the judge was entitled to conclude from the evidence that R.S. was aware of the children's circumstances at the time they were removed from the mother, that he took no steps to provide the children with suitable housing, that he was abusing drugs and alcohol at the time, and that R.S.'s intentions at the time of trial regarding employment, housing and childcare were "not sufficient to prove that the children will not continue to be endangered by the parental relationship with R.S."

With regard to A.J., the judge explained that he "created his own patterns of parental non-involvement by his own conduct," namely through drug use and incarcerations. That history evidenced that A.J. has harmed D.J.'s health and development. K.H.O., supra, 161 N.J. at 348. Even when he was not incarcerated, A.J. was absent from his young child's life, making only minimal efforts to locate her. Although A.J. eventually discovered where his daughter was located, he still made no "attempt to become involved." As such, the judge's finding that A.J.'s "benign neglect" suffices to meet prong one is supported by adequate, substantial and credible evidence and should be affirmed. J.T., supra, 269 N.J. Super. at 188.

B

The second prong requires consideration of whether the parent is "unwilling or unable to eliminate the harm" that has endangered the child's health and development. N.J.S.A. 30:4C-15.1a(2). Parental unfitness may be demonstrated through proof that the parent "has failed to provide a 'safe and stable home for the child' and a 'delay in permanent placement' will further harm the child." K.H.O., supra, 161 N.J. at 352. Rather than concentrate on past harm, the court focuses on whether "it is reasonably foreseeable that the parent can cease to inflict harm upon the children entrusted to their care." A.W., supra, 103 N.J. at 607. "[T]he cornerstone of the inquiry is not whether the biological parents are fit but whether they can cease causing their child harm." J.C., supra, 129 N.J. at 10.

"Presumptions of parental unfitness may not be used in proceedings challenging parental rights." K.H.O., supra, 161 N.J. at 347 (citing In re Adoption of Children by L.A.S., 134 N.J. 127, 132 (1993)). "Predictions as to probable future conduct can only be based upon past performance. . . ." J. v. M., 157 N.J. Super. 478, 493 (App. Div.), certif. denied, 77 N.J. 490 (1978); see also Division of Youth and Family Servs. v. Robert M., 347 N.J. Super. 44, 68 (App. Div.), certif. denied, 174 N.J. 39 (2002).

In examining the circumstances relevant to this prong, the trial judge discussed the results of the mother's psychological evaluations, noting that Dr. Wells believed "there is at least a moderate level of pathology which characterizes [the mother's] overall personality organization and indicates from the testing a failure to develop adequate internal cohesion and a less than satisfactory hierarchy of coping strategies." Further, the judge observed that test results revealed that the mother's introspective regulation and socially acceptable interpersonal conduct appeared deficient or incompetent, and that she was diagnosed with borderline intellectual functioning and mixed personality disorder.

The judge remarked that during her session with Dr. Trott, the mother indicated that "she believes she's achieved a sense of stability with a new mate," but was unable to provide clarity as to what this new mate's "views, interests, or attitudes are or may be" regarding the three children. The judge also found that the mother "is avoidant in certain life determining issues," citing as an example her failure to keep an arranged evaluation with her own expert, thereby losing the opportunity to provide expert testimony at the time of trial.

The judge also relied on Dr. Trott's opinion that the mother would have to demonstrate housing stability, income to support herself and her children, followed by six months of counseling and six months of therapeutic visits with the children before Dr. Trott for there to be any hope of reunification. As such, the court could not find that "the prospect of harm as to [the mother], let alone the offer of a safe and stable home could be provided by her today." The judge determined that all three defendants could show nothing but "desires or hopes," which he found to be inadequate to rebut the strong likelihood that the harm to the children would continue if termination did not take place.

The mother takes issue with the Division's contention that she was in "missing status," arguing that "there is simply no three-year period during which [the Division] had no contact with this family." She argues that the Division's Newark office transferred the case to the Elizabeth office in December 2002, that the Elizabeth office "did absolutely nothing after that transfer," and that "it was not [she] who was missing, but instead" the Division.

The significance of this argument eludes us. Regardless of whether the Division may be blamed for its alleged failure to seek or inability to find the mother, the fact remains that the mother failed to provide a safe and stable home for the children. If her point is that she could have done better with the assistance of the Division during that period of time, then she need only have reached out to the Division. Her failure to seek out help that was available to her adds even greater weight to her lack of fitness as a parent.

Regardless of the dispute about the mother's alleged "missing status," the record is replete with evidence that the mother failed to provide the children with a safe and stable home. The evidence reveals that the mother acknowledged that until April 2005 she had been living in a shelter or with friends, that after she left the YMCA she resided with Smith for a short time, and then moved to a small motel room with another friend and her friend's three teenage sons. At trial, the mother admitted that she had still not obtained housing of her own, but was living with a boyfriend.

There is ample evidence from which the judge could find that the mother failed to provide a safe and stable home for her children, and a delay in permanent placement will further harm the children. K.H.O., supra, 161 N.J. at 352. She has not "cured and overcome the initial harm that endangered the health, safety or welfare of the child[ren]," and it is unlikely that she is "able to continue a parental relationship without recurrent harm to the child[ren]." Id. at 348. At the time of trial, over two years after the removal of the children, the mother had still failed to establish an appropriate living situation for her children. Looking to her past performance, J., supra, 157 N.J. Super. at 493, the judge was fully justified in concluding that the mother, who is now in her forties and has had her parental rights to three other children already terminated, will not be able to provide a stable home for her three youngest children. Quite simply, little progress has been made by the mother. It would exalt hope over experience to conclude that she can become fit "within time to assume the parental role necessary to meet the child[ren]'s needs." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 87 (App. Div. 2006), certif. denied, 190 N.J. 257 (2007). Whether the mother's "missing status" was two years as the mother argues or three as the Division contends, the upshot remains the same: the mother has failed in the past, remained unable by the time of trial, and was proven to be unable in the future to provide her family with a safe and stable home.

As for R.S., the judge observed that the evaluation with Dr. Wells revealed that R.S. wanted the mother to resume parental care and "in spite of the parental deficits, as far as [R.S.] was concerned, he could not offer the option of his own mother and stepfather . . . as a resource." The judge noted that after first claiming he was unaware of his mother's whereabouts, R.S. later revealed her whereabouts -- a reticence that demonstrated he was most concerned with reuniting the children with their mother. During the evaluation, R.S. also told Dr. Wells that he did not use drugs; however, less than 30 days later, R.S. "began his self-imposed removal from society for that very use and potential sale of drugs."

The trial judge stated that Dr. Wells "found a defective psychic structure suggesting a failure to develop adequate internal cohesion and less than satisfactory hierarchy of coping strategies," and that R.S. was "subjected to the flux of his own enigmatic attitudes and contradicting behavior." The judge recounted Dr. Wells's conclusion that R.S. "feels trapped by an intense conflict between the desire to withdraw from others and a fear of embarking on his own," creating "a dependency security where he desperately seeks by reason of his passive aggressive behavior, and his tendency to act in an unpredictable manner, occasionally essentially attacking others for their lack of support."

R.S. takes issue with the court's reliance on the evaluation conducted by Dr. Wells, arguing that Dr. Wells "evaluated R.S. three years before the trial, did not appear at the trial, and [] was not available for cross-examination." He contends that he has clearly turned his life around since the removal of the children, and claims that the trial judge "fail[ed] to consider the present circumstances and relie[d] solely on the past for his fact-finding." Despite that criticism, we note that the judge "accept[ed] the efforts and strides that [R.S.] has achieved for himself," noting his upcoming graduation from the Integrity House program and his full time employment. However, the judge found this to be too little, too late.

In short, the judge found that although R.S. has taken steps to improve his situation, his ambitions still remain in their planning stage. It has been nearly four years since the children were removed from an unstable situation; their need for permanency must emerge as a central factor. K.H.O., supra, 161 N.J. at 357. There was ample evidence, in light of all the circumstances, for the judge to conclude that the Division met its burden of proving the presence of prong two with regard to R.S. That finding is entitled to our deference.

In considering prong two as it relates to A.J., the judge explained that at the time of trial, A.J. faced an "open unresolved criminal charge involving narcotics," and had a criminal history dating back before 2000. The court reviewed the results of A.J.'s psychological evaluations, noting that Dr. Wells found A.J. "charged with impulsive hostility," and that Dr. Trott found A.J. did not show remorse or empathy and presented an anti-social personality disorder. The trial judge observed that A.J. was "lacking in goals and aside from offering himself as a father to parent," he had only recently offered his mother as a relative placement. The court determined that A.J. offered nothing "but a limited interest . . . some two years since he last saw her." At the time of trial, A.J. was out of jail on bail, still facing a drug charge. He was residing with his sister and had not obtained independent housing. The trial judge properly found from these circumstances that A.J. was unwilling or unable to eliminate the harm faced by D.J. or provide a safe and stable home for her.

C

The third prong requires consideration of whether the Division made "reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home," as well as consideration of "alternatives to termination." N.J.S.A. 30:4C-15.1a(3). We consider these two aspects separately.

1. Services

"Reasonable efforts" are defined as "attempts . . . to assist the parents in remedying the circumstances and conditions that led to the placement of the child and in reinforcing the family structure," such as:

(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.

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

The "reasonableness" of the Division's efforts may vary depending on the facts of the case. N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 435 (2001), certif. denied, 171 N.J. 44 (2002). When accepting a child into its custody or care, however, the Division is relieved from providing reasonable efforts to reunify the child with a parent if a court determines that

a. The parent has subjected the child to aggravated circumstances of abuse, neglect, cruelty or abandonment;

b. The parent has been convicted of [an enumerated criminal act]; or

c. The rights of the parent to another of the parent's children have been involun-tarily terminated.

[N.J.S.A. 30:4C-11.3.]

As mentioned earlier, the judge entered an order that relieved the Division of its obligation to make reasonable efforts.

The record reflects that, notwithstanding that order, "[the mother] was in the program at the YMCA for a number of months . . . [where] she claimed to be attending parenting skills classes, job readiness, and budgeting . . . provided by the Y[MCA] to her as part of her residence there." The judge, thus, found that the Division would not have been responsible for duplicating the programs that the mother attended at the YMCA. He also found that "before removal from the YMCA program in Elizabeth, there had been a compliment of services to [the mother], which she entered into and presumably completed[,] and after foster placement of the children, she then, unfortunately, [became] scarce, to use my words."

The mother argues that the Division "made much ado" that it had been relieved by the trial court from providing her with services. However, contends the mother, this argument "ignores the prior history giving rise to the March 29, 2006 order." The mother states that, in 2002, the Elizabeth office "dropped the ball and provided no preventative services whatsoever for a twenty-two month period." When the Division transferred the case to Elizabeth, argues the mother, "nobody in the receiving office made one call or one visit or did a single thing until some third party, on September 6, 2004, called [the Division] and reminded them that this family existed and had needs." Again, as we previously stated regarding the second prong, this argument is of no consequence. The December 2002 referral report indicates that the mother had "to stay in touch w[ith the Division] for services as needed." Regardless of whether the Division was accurate in viewing the mother as thereafter "missing," the mother had an obligation to contact the Division and, if there was a need, she owed it to her children to reach out for the Division. The judge was entitled to find from the facts and circumstances that the Division sustained its burden with regard to the mother on this prong.

We also conclude there was ample evidence from which the judge could conclude that the Division acted reasonably in providing services to R.S. The Division provided visitation, as R.S. admits, but once he was arrested the visits ceased. Visitation resumed later, although there were some difficulties in coordinating visitation with Integrity House. Other services were provided through Integrity House, where R.S. resided for over one year. The Division was not obligated to duplicate the same services provided by Integrity House, as the judge properly held.

A.J. argues that the Division failed to meet its burden of proof with regard to the third prong, as it applies to his situation, because the Division did not attempt to locate him until two years after D.J.'s removal from her mother. We find his argument on this prong to be of insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). It suffices to say that the Division could not be expected to provide services to A.J. during the time that A.J. was incarcerated or otherwise out of contact with the Division. Once released from jail, the Division provided A.J. with a psychological evaluation.

2. Alternatives to Termination

The third prong also requires consideration of reasonable alternatives to the termination of parental rights. J.T., supra, 269 N.J. Super. at 187. Even if efforts to reunite the family are futile or become unreasonable, "unless all reasonable alternatives to termination have been considered, the complaint should be dismissed." Ibid.

One such alternative is Kinship Legal Guardianship (KLG), which provides "a new type of legal guardianship that addresses the needs of children and caregivers in long-term kinship relationships." N.J.S.A. 3B:12A-1d. KLG adds "another alternative, permanent placement option, beyond custody, without rising to the level of termination of parental rights, for caregivers in relationships where adoption is neither feasible nor likely." N.J.S.A. 3B:12A-1c. This relationship is "intended to be permanent and self-sustaining, as evidenced by the transfer to the caregiver of certain parental rights, but retains the birth parents' rights to consent to adoption, the obligation to pay child support, and the parents' right to have some ongoing contact with the child." N.J.S.A. 3B:12A-1b. We find insufficient merit in the arguments of all three defendants regarding this aspect of the third prong to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following brief comments regarding the contentions of each defendant.

As for relative placement, the judge explained that "[t]here were no persons given and noted by [the mother] throughout" as alternatives. The court found that the mother "had exhausted her relative resources with the other children," noting that the caretaker of her older children "could not accommodate any more children." Further, the judge noted that "we can infer that after the children were placed with [R.S.'s] mother . . . [the children's mother] seemed to lose interest, even after the court appearances that she did make."

Regarding alternatives to termination, the mother contends that KLG was never considered in advance of trial even though at one point all three children had been living with the grandparents for nearly a year. She contends that placement with the grandparents until either she or R.S. was prepared to assume primary parental responsibility should have been considered. The judge found there were no alternatives to termination.

Certainly, KLG was not an alternative because it applies "where adoption is neither feasible nor likely," N.J.S.A. 3B:12A-1c, and the grandparents expressed their willingness to adopt the children.

The judge also noted that R.S. was not forthcoming in naming his mother as a caretaker, presumably because he had had a "falling out" with her. Because the judge's findings and conclusions pertaining to the third prong, as it applies to R.S., are not manifestly unsupported by or inconsistent with the evidence as to offend the interests of justice, they should not be disturbed.

In addition, the trial judge found that A.J. only suggested his mother "at the last hour." The judge determined that A.J.'s mother's household already contained two adult children and three grandchildren, and inferred that this would raise "a serious question realistically as to space and opportunity" to care for the three children.

D

The fourth and final prong of the best interests standard requires that the Division demonstrate by clear and convincing evidence that termination of parental rights will not do more harm than good. N.J.S.A. 30:4C-15.1a(4). Under this prong, the court looks to "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. This prong "serves as a fail-safe against termination even where the remaining standards have been met," but it "does not provide an independent basis for termination where the other standards have not been satisfied." New Jersey Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 609 (2007).

In his discussion of the fourth prong, the trial judge relied upon Dr. Trott's individual evaluations of all three defendants and his bonding evaluations. According to Dr. Trott, the mother "displayed continued impulsivity and poor insight as to how her behavior would impact upon others." The judge found credible Dr. Trott's finding that the mother's self-reporting was unreliable and evasive "in spite of her connections as a parent to the children," and Dr. Trott's determination that the mother "was more concerned with herself than with the [children]," as evidenced by "her failure to respond to a number of questions that were posed by one or more of the children" during the evaluation. Although both Dr. Wells and Dr. Trott found the mother "undoubtedly loves the children," they recognized she is unable to care for them due to her long standing issues, including her inability to find and maintain stable housing and employment. As Dr. Trott testified, if contact with the mother was severed completely, the children "would have little difficulty adjusting in their lives."

In considering the fourth prong's application to R.S., the judge recognized the conflict between the opinions of Dr. Trott and Dr. Figurelli, R.S.'s expert. The judge noted that Dr. Figurelli found that R.S. exhibited no clinically significant symptoms, whereas Dr. Trott found that R.S.'s responses bordered on deception and much of his information was unreliable. In one respect, the judge found Dr. Figurelli's view was not supported by other evidence; that is, Dr. Figurelli noted that R.S. indicated he intended to get an apartment with the mother, but as the judge stated, "perhaps [R.S.] was not in the loop," as the mother "has certainly in her testimony not vocalized any interest in reunification with [R.S.]."

The judge recognized that Dr. Figurelli opined that R.S. might be able to fulfill the parenting role if he accomplished a number of goals, but the judge gave this little weight in his findings because of the children's need for permanency. R.S. forcefully argues that he was not far from meeting the goals required of him.

As was his prerogative, the judge accepted the credibility of Dr. Trott's evaluations and testimony, and based his findings thereon. In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999). The judge emphasized the need for permanency in the children's lives, explaining that sympathy for R.S. "must not blind the court to its responsibility" to the children. Cognizant of the State's strong public policy in favor of permanency, K.H.O., supra, 161 N.J. at 357, the judge concluded that the fourth prong had been met with regard to R.S. Because that finding is not "so wholly unsupportable as to result in a denial of justice," we will not disturb it. J.T., 269 N.J. Super. at 188.

Turning to A.J., the judge explained that A.J.'s "historical criminal drug history confirmed an irresponsible behavioral theme with no empathy and emotional functioning impairment." The judge was particularly impressed by the fact that A.J., "to entertain himself, brought a PlayStation [to the evaluation], but didn't bring anything for [D.J.]." To a degree, the judge viewed this event as suggesting A.J.'s "lack of interest." This was particularly noteworthy since A.J. was out of the picture for two years prior to the bonding evaluation. Dr. Trott observed that D.J. initiated most of the contact with A.J., as a result of her emotional neediness rather than as a result of any shared relationship. For this and other reasons, Dr. Trott concluded that D.J. would be at increased risk if placed in A.J.'s care. In relying upon Dr. Trott's opinions, the judge had before him adequate, substantial and credible evidence to support his conclusion that termination of A.J.'s rights would do no more harm than good. J.T., supra, 269 N.J. Super. at 188.

E

We conclude that the judge's findings as to all defendants were supported by adequate, substantial and credible evidence in the record. N.J. Div. of Youth & Family Serv. v. E.P., 196 N.J. 88, 104 (2008); J.T., supra, 269 N.J. Super. at 188. Having carefully reviewed the record, we can discern no sound reason for disturbing the judge's findings or to question the conclusions drawn from those facts as presented to him.

V

In addition to arguing that the Division failed to sustain its burden of proof on the four statutory prongs, defendant R.S. has also presented the following arguments for our consideration:

I. THE TRIAL JUDGE IMPROPERLY DENIED R.S.'S MOTION TO DISMISS THE COMPLAINT AT THE CLOSE OF THE DIVISION'S CASE, AND, THEREFORE, HIS PARENTAL RIGHTS MUST BE REINSTATED.

II. THE TRIAL COURT IMPROPERLY ADMITTED P-31, P-47 AND P-48 INTO EVIDENCE.

III. THE OPINION OF DR. TROTT WAS A NET OPINION AND SHOULD HAVE BEEN EXCLUDED AT THE TIME OF TRIAL.

We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following brief comments regarding Point III.

In Point III, R.S. contends that the judge should have excluded Dr. Trott's expert opinions because Dr. Trott did not bring to court certain materials upon which he relied. This was an argument that was raised by A.J.'s counsel during trial. That attorney asked Dr. Trott during cross-examination whether he relied upon certain data in formulating particular opinions. In each instance, Dr. Trott indicated he had relied on other materials but that those materials were still in his file in his office.

As can be seen, R.S. has not framed the issue correctly. The question is not whether Dr. Trott rendered a net opinion. He clearly did not. He testified as to what he relied upon in formulating his opinion. The issue, instead, is whether Dr. Trott was obligated to produce any underlying records at the time he testified. There is nothing in the record to indicate that any party subpoenaed those records or requested that the Division have Dr. Trott produce those materials when he testified. Absent such a demonstration, Dr. Trott was under no obligation to produce his entire file when testifying. Accordingly, we find no merit in R.S.'s argument on this point.

 
Affirmed.

"Mary Smith" is a fictitious name.

"Charles Jones" is a fictitious name.

The grandmother underwent total knee replacement surgery and required time to recuperate.

At the time, R.S. admitted to daily heroin use.

A.J. had been incarcerated for a few months in 2003 and for a few months in 2006, for violating the terms of his probation.

(continued)

(continued)

24

A-3757-07T4

RECORD IMPOUNDED

November 17, 2009