NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. W.L IN THE MATTER OF THE GUARDIANSHIP OF S.M.T A Minor

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3774-08T4
3774-08T4

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

W.L.,

Defendant-Appellant.

____________________________________________

IN THE MATTER OF THE GUARDIANSHIP OF

S.M.T.,

A Minor.

____________________________________________

 

Submitted October 21, 2009 - Decided

Before Judges Sabatino, J. N. Harris and Newman.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-0185-07.

Yvonne Smith Segars, Public Defender, attorney for appellant (Catherine Reid, Designated Counsel, on the brief).

Anne Milgram, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Eleanor M. Armstrong, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minor S.M.T. (Joyce Maraziti, Designated Counsel, on the brief).

PER CURIAM

S.T., now four years old, was born HIV positive to B.T., who was fifteen years old at the time of S.T.'s birth and, herself, under the supervision of the Division of Youth and Family Services (DYFS). This was B.T.'s second child, having given birth to E.T. when she was thirteen years old. Shortly after S.T.'s birth, B.T. identified one individual, L.F., as a potential father. In June 2007, a paternity test determined that L.F. was not the father. Shortly thereafter, B.T. identified, when questioned by a judge in court, W.L. as a potential father.

In December 2007, DYFS located W.L. A DNA test indicated that W.L. was S.T.'s father, and paternity was adjudicated. Meanwhile, DYFS's plan for S.T. was termination of parental rights and adoption by S.T.'s foster mother, although reunification with the father was not ruled out when W.L.'s parentage was confirmed.

A trial to determine whether B.T. and W.L.'s parental rights should be terminated was held. B.T. did not appear at trial. The trial judge entered an order on September 26, 2008, terminating both B.T.'s and W.L.'s parental rights. W.L. appeals from the order terminating his parental rights. B.T. has not appealed from the order terminating her parental rights, and, therefore, we do not discuss the termination insofar as she is concerned. We now affirm.

The trial judge read her opinion from the bench on January 7, 2009. In terminating W.L.'s parental rights, the trial judge determined that DYFS established that S.T.'s safety, health, and development would be endangered by a parental relationship with W.L. The judge opined that W.L. "has not shown that he can parent S.T. and he has not shown that S.T.'s safety, health and development would not be endangered if in his care." The judge recognized that W.L. did not obtain employment, did not offer a consistent plan of care, and did not establish safe and stable housing.

The judge also determined that DYFS proved that W.L. was "unwilling or unable to eliminate the harm facing the child, or unwilling or unable to provide a safe home for the child, and the delay of permanent placement will add to the harm."

The trial judge found that W.L. did not make "any effort to show that he can care for" S.T., a medically fragile child who was under the care of five different medical specialists. The judge stated that W.L. failed to offer a consistent plan of care, but, rather, W.L. submitted five different plans. The trial judge was also concerned about W.L.'s failure to obtain employment or stable housing because S.T.'s special needs required a proactive caretaker, and that W.L. would not be a proactive parent, which would be unacceptable for S.T.'s needs.

The trial judge relied on particular instances that demonstrated W.L. would not be the assertive, proactive caretaker that S.T. needs.

First, W.L. missed four visits with his son because he forgot about them. The judge emphasized that S.T. needs a caretaker who does not forget because he takes three medications a day, sees five specialists, and has therapy twice a week. The trial judge stated, "He needs a parent that's going to be on top of everything and not forget to give medicine, not forget appointments. Those -- are too critical for someone like S.T." The trial judge found that W.L.'s forgetfulness reflected a lack of motivation to care for S.T.

Second, W.L. forgot to attend S.T.'s doctor appointment. The trial judge opined "that W.L.'s first priority should have been, besides visiting with S.T. and developing a bond with him, . . . should be S.T.'s health . . . . [He should] want to know everything there is about S.T.'s health, his special needs, and his condition, and he just didn't do that." These forgotten doctor visits were unacceptable to the trial judge, especially because of S.T.'s serious medical needs.

The trial judge further found that S.T. had developed a bond with his foster mother. The judge relied on the testimony of Dr. Leslie Williams, a clinical psychologist, "that S.T. would suffer harm if he were removed from his foster mother, and . . . W.L. [does] not possess any ability to address that harm."

The trial judge determined that DYFS made reasonable efforts to provide services to W.L. to help him remedy his circumstances. Furthermore, the judge understood that DYFS attempted to find and conduct DNA testing for each potential father identified by B.T. The judge said that after W.L.'s paternity was confirmed, "the Division provided services to him, including psychological evaluation, bus tickets, visitation, [and] an opportunity to participate in the medical appointments for S.T."

The judge concluded S.T. would not suffer more harm than good by terminating W.L.'s parental rights. The trial judge also determined that W.L. failed to develop a bond with S.T. during their limited number of visits. Dr. Mark Seglin, a psychologist who evaluated bonding between S.T. and his foster mother, reported that S.T. viewed his foster mother as his parental figure who had provided nurture and assistance to him since he was just over one year old. In contrast, the trial judge found that S.T. would suffer severe loss if he were to be separated from his foster mother.

On appeal, W.L. raises the following points for our consideration:

POINT I

THERE IS NOT SUFFICIENT, CREDIBLE EVIDENCE TO SUPPORT THE TRIAL COURT'S DETERMINATION THAT THE DIVISION HAS CARRIED ITS BURDEN OF PROOF AS TO ALL FOUR PRONGS OF N.J.S.A. 30:4C-15.1a.

A. W.L. has not harmed his child within the meaning of N.J.S.A. 30:4C-15.1a(1).

1. The trial court impermissibly shifted the burden of proof to W.L. as to the first prong, requiring him to demonstrate that he would not harm S.T. in the future.

2. W.L.'s actions or inactions in the six months he was given before the Division sought to terminate his parental rights do not constitute sufficient evidence to support a finding that he has harmed S.T.

B. The trial court's decision that the second prong of the statute was satisfied was not supported by substantial, credible evidence.

1. There was not clear and convincing evidence to support the trial court's determination that W.L. was unwilling and unable to parent his child.

2. There was not clear and convincing evidence to support a finding that a delay in permanency would add to S.T.'s harm.

C. The record does not contain sufficient evidence to support a finding that the Division met its burden of proof under the third prong of the statute.

1. Given the short timeframe in which the parties worked, the Division's minimal efforts to reunify father and son were not reasonable.

2. The trial court did not properly consider alternatives to termination of W.L.'s parental rights.

D. The trial court's conclusion that termination would not do more harm than good to S.T. was not supported by substantial, credible evidence.

POINT II

THE DIVISION'S HANDLING OF THE CASE CREATED THE GROUNDS ON WHICH IT SOUGHT TO TERMINATE PARENTAL RIGHTS, AND THEREFORE, THE TERMINATION VIOLATED W.L.'S SUBSTANTIVE DUE PROCESS RIGHTS AND CANNOT BE ALLOWED TO STAND.

We begin our inquiry by restating the applicable legal principles. What follows has been set forth in a long line of reported and unreported opinions. These principles bear replication in light of the remedy ordered by the Family Part judge and our agreement with the conclusions she reached.

The rights of parents to enjoy a relationship with their children is of constitutional dimension. In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999) (citing Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972); In re Adoption of Children by L.A.S., 134 N.J. 127 (1993); N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591 (1986)). Parents have a constitutionally protected, fundamental liberty interest in raising their biological children. Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982). The Federal and State Constitutions protect the inviolability of the family unit. Stanley, supra, 405 U.S. at 651, 92 S. Ct. at 1212-13, 31 L. Ed. 2d at 558-59; A.W., supra, 103 N.J. at 599.

"The law's concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life's difficult decisions." Parham v. J.R., 442 U.S. 584, 602, 99 S. Ct. 2493, 2504, 61 L. Ed. 2d 101, 118 (1979). As is true of so many other legal presumptions, "experience and reality may rebut what the law accepts as a starting point . . . ." Id. at 602, 99 S. Ct. at 2504, 61 L. Ed. 2d at 119. The incidence of child abuse and neglect cases attests to the fact that some parents may act against the interests of their children. Ibid.

Government "is not without constitutional control over parental discretion in dealing with children when their physical or mental health is jeopardized." Id. at 603, 99 S. Ct. at 2504, 61 L. Ed. 2d at 119 (citing Wisconsin v. Yoder, 406 U.S. 205, 230, 92 S. Ct. 1526, 1540, 32 L. Ed. 2d 15, 33 (1972)). The State as parens patriae may act to protect children from serious physical and emotional harm. This may require a partial or complete severance of the parent-child relationship. However, "[f]ew forms of state action are both so severe and so irreversible." Santosky, supra, 455 U.S. at 759, 102 S. Ct. at 1398, 71 L. Ed. 2d at 610.

When the child's biological parent resists termination of parental rights, our function is to decide whether the parent can raise the child without causing harm. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). The cornerstone of our inquiry is not whether the parent is fit, but whether he or she can become fit to assume the parental role within time to meet the child's needs. Ibid. "The analysis . . . entails strict standards to protect the statutory and constitutional rights of the natural parent[]." Ibid. The burden rests on the party seeking to terminate parental rights "to demonstrate by clear and convincing evidence" that risk of "serious and lasting [future] harm to the child" is sufficiently great as to require severance of parental ties. Ibid.

The balance between fundamental parental rights and the State's parens patriae responsibility is achieved through the best interests of the child standard. K.H.O., supra, 161 N.J. at 347. Under that standard, parental rights may be severed when:

(1) The child's health and development have 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 foster parents would cause serious and enduring emotional or psychological harm to the child;

(3) [DYFS] has made diligent 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 right; and

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

[N.J.S.A. 30:4C-15.1(a).]

These standards are neither discrete nor separate. K.H.O., supra, 161 N.J. at 348. They overlap to provide a composite picture of what may be necessary to advance the best interests of the children. Ibid. The considerations involved in determining parental fitness are "'extremely fact sensitive'" and require particularized evidence that addresses the specific circumstances of the specific case. Ibid. (quoting L.A.S., supra, 134 N.J. at 139). In reviewing a judge's findings, we are obliged to accord deference to the trial court's credibility determinations and its "feel of the case" based upon its opportunity to see and hear the witnesses. N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 396 (2009). We are not to disturb the judge's findings unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 484 (1974).

I.

W.L. argues that the record does not support a finding that he caused harm to S.T.

In her bench opinion, the trial judge determined that prong one of N.J.S.A. 30:4C-15.1(a) was satisfied. She stated:

[W.L] has not shown that he can parent S.T. and he has not shown that S.T.'s safety, health, and development would not be endangered if in his care. [W.L.], for the last six months -- for the first six months when he was involved from January 9, 2008 forward, did not obtain employment, did not offer a consistent plan of care for S.T., failed to establish . . . that he could provide safe and stable housing for S.T.

"A parent's withdrawal of . . . solicitude, nurture, and care for an extended period of time is in itself a harm that endangers the health and development of the child." In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999). "Courts need not wait to act until a child is actually irreparably impaired by parental inattention or neglect." Id. at 383. The lack of a permanent, safe, and stable home may cause significant harm to a child. Ibid. See N.J. Div. of Youth & Family Servs. v. B.G.S., 291 N.J. Super. 582, 591-93 (App. Div. 1996) (holding that a parent's failure to provide a permanent home or identity, causing child to suffer psychological damage, may authorize termination of parental rights). "Recognizing the natural tendency to want to continue working with parents to restore the family unit, [the Supreme Court has] cautioned that placement plans must not lose sight of time from the perspective of the child's needs." K.H.O., supra, 161 N.J. at 357. Rather, "courts must consider the child's age, [his or] her overall health and development, and the realistic likelihood of caring for the child in the near future." Ibid. Hence, courts should focus on a child's need for permanency and stability. Ibid.

W.L. did not enter S.T.'s life until January 2008, when S.T. was almost two and one-half years old. S.T. had been living with a foster mother for almost two years. Dr. Seglin testified that the length of time that S.T. spent under his foster mother's care was significant because "this is a period where he's becoming cognizant of an objective world outside of him, a figure. He has a figure there that he -- through whom he builds that sense of self . . . ." Dr. Seglin stated that S.T. needed permanency and stability especially in light of his special needs. Dr. Seglin opined that S.T.'s needs for permanency and stability outweighed his need to have continued contact with W.L.

Dr. Williams concurred that S.T. needed permanency. Dr. Williams said that S.T.'s lack of permanency harmed him and that a six month delay in settling S.T.'s situation would cause further harm. Although Dr. Williams could not articulate the specific type of enduring harm S.T. would suffer, he said:

[Assuming S.T. stays where he is,] he would theoretically continue to bond with his care giver and also approach the age -- from a bonding point of view, we really look at between two and a half and three, particularly, by age three, a child is typically securely bonded with the care giver where the child is at. So, that to add on extra visits with [W.L.], meanwhile, having [S.T.] deepen his bond with his foster mother, and with the belief that I don't think that [W.L.] would be able to get [S.T.], would ultimately cause [S.T.] to suffer severe psychological harm, if he's then removed from his foster mother.

Dr. Williams concluded that it was in S.T.'s best interest to be adopted immediately.

W.L. was advised that S.T.'s case plan required him to obtain stable housing, obtain employment, and present a consistent plan of care for S.T. Theresa Dawson, S.T.'s case worker, told W.L. that DYFS needed to assess whether W.L. was capable of financially supporting S.T. W.L. was told that he needed to provide stability and permanency for S.T. He also was informed of S.T.'s special needs.

Substantial, credible, and adequate evidence established that W.L. met none of these requirements. W.L. failed to provide a consistent plan of care for S.T., but instead, W.L. offered five different plans to the court and DYFS. The combination of caretakers proposed in each plan varied: W.L.'s aunt, W.L. and an unidentified friend, W.L. and B.T., and W.L. independently. The plans varied by location: W.L. indicated that he wanted S.T. to be cared for in Florida in at least two of his plans, and then later, he proposed that S.T. would remain in New Jersey. The final plan called for W.L. to care for S.T. independently, but no details were offered for this plan or any other plan.

DYFS presented uncontroverted evidence that W.L. lived at his girlfriend's apartment and that this situation had not changed by trial. W.L. concedes that he was living with his girlfriend up through trial and never proposed that she be a caretaker for S.T.

W.L. asserts that there is evidence in the record that his delay to obtain housing "may have been attributable at least in part to [DYFS's] refusal to assist him by providing a letter about his housing needs to Public Assistance." Not so. Dawson testified that W.L. "asked for a letter from the Division saying that he needed a two-bedroom apartment," which DYFS did not give to him because he had not presented a consistent plan. The record does not reflect that this letter was for public assistance, and there is no evidence that the absence of the letter has delayed W.L.'s housing situation.

Moreover, DYFS presented testimony that W.L. was unemployed up until trial. Dawson testified that W.L. had two relatives who owned their own businesses, but W.L. would not seek employment with them. Although Dawson stated that W.L. had informed a co-worker of hers on July 3, 2008, that he gained part-time employment a few weeks earlier, Dawson testified that W.L. would not disclose his employer's identity or his salary. Furthermore, W.L. did not provide DYFS or the court with a paystub. While W.L.'s supposed part-time employment is a step in the right direction, W.L. did not cooperate in providing DYFS with his financial information, which would help DYFS assess his ability to care for S.T. Even if the trial judge had accepted W.L.'s claim that he gained part-time employment, the evidence clearly demonstrates that W.L. is unprepared to offer S.T. permanence and stability.

W.L. contends that the trial judge impermissibly shifted the burden of proof to W.L., thereby requiring him to demonstrate that he would not harm S.T. in the future. To be sure, the burden of proof indeed rests on the State when seeking to terminate parental rights. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 280 (2007).

The trial judge did not shift the burden of proof; instead, she simply accepted DYFS's uncontroverted proof that S.T. had been harmed by W.L.'s inaction. DYFS produced evidence that W.L. had not obtained employment, had not offered a consistent plan of care, and had not acquired safe and stable housing. DYFS produced three witnesses and W.L. produced no witnesses. W.L. did not testify either. Hearing nothing different to rebut DYFS's evidence, the trial judge accepted DYFS's proof as clear and convincing. The credible evidence of the record amply supports this conclusion.

W.L. claims that clear and convincing evidence does not support the trial judge's determination that W.L. was unwilling and unable to parent his child. He also argues that there was not clear and convincing evidence to support a finding that a delay in permanency would add to S.T.'s harm.

The second prong of the best interests standard is satisfied if the State can demonstrate "that the child will suffer substantially from a lack of stability and a permanent placement and from the disruption of [his or] her bond with foster parents." Id. at 281. A delay in permanent placement and the failure to provide a "safe and stable home" are both recognized as harmful circumstances for a child. K.H.O., supra, 161 N.J. at 352. Primarily, this prong focuses on parental unfitness. See id. at 353. The first and second prongs of the best interests standard are related to each other and evidence that supports one prong may support the other. D.M.H., supra, 161 N.J. at 378-79.

The judge reviewed how W.L. did not offer a consistent plan of care for S.T., did not obtain employment, and did not obtain stable housing, which "he would need to undertake to show that he, in fact, could provide a stable environment for S.T."

The trial judge found that W.L.'s forgotten visits and doctor's appointment were unacceptable in light of S.T.'s special needs and indicative of W.L.'s lack of motivation to be S.T.'s caretaker.

Additionally, the trial judge determined "the evidence has established that S.T. has bonded with his foster mother. Dr. Williams testified that S.T. would suffer harm if he were removed from his foster mother, and further opined that [W.L.] did not possess any ability to address that harm."

The trial judge believed that "S.T. needs to have someone that's going to be assertive, proactive." The trial judge said that W.L. did not fit this description based on Dr. Williams's testimony. Moreover, in the trial judge's view, W.L.'s actions, after his paternity was confirmed, demonstrated that he had not been preparing to care for S.T., having not made progress in obtaining stable housing, gaining employment, or developing a plan that took account of S.T.'s medically fragile condition.

DYFS also established that W.L. was unwilling or unable to remediate the potential harm S.T. would endure from a separation from his foster mother. As of trial, W.L. visited S.T. for two hours, every other week, for six months. While W.L. approached Dawson to seek more frequent visitations, he never brought this matter before the trial court, although he had opportunities to do so. Dr. Seglin testified that it would take "a number of extended overnight, unsupervised visits" consisting of lots of activities for S.T. to establish a bond with his father. Dr. Williams believed a bonding evaluation would be unnecessary for W.L. and S.T. because they had not interacted with each other sufficiently to develop a bond. Sufficient, adequate, and credible evidence supported the trial judge's finding that a delay in permanency would further harm S.T.

Credible evidence also supported the court's determination that W.L. was unable or unwilling to eliminate the harm facing S.T. S.T. had developed a deep bonding relationship with his foster mother, and placing him in W.L.'s care some time in the future would only further harm S.T. Considering the challenges presented to S.T. because of his special needs, further delay in establishing stability and permanency for S.T. was not in his best interest.

W.L. argues that DYFS's efforts to reunify him with his son were not reasonable because of the short time frame in which the parties worked. He also contends that the trial judge did not properly consider alternatives to termination of W.L.'s parental rights.

The State must make reasonable efforts to provide services to help parents cure the circumstances that led to the child's placement outside the home to satisfy the statute's third prong. M.M., supra, 189 N.J. at 281. "'Reasonable efforts' may include consultation with the parent, developing a plan for reunification, providing services essential to the realization of the reunification plan, informing the family of the child's progress, and facilitating visitation." Ibid. DYFS's efforts are "not measured by their success." D.M.H., supra, 161 N.J. at 393.

The trial judge found DYFS satisfied prong three. The judge identified the services made available to W.L. after confirmation of his paternity: "psychological evaluation, bus tickets, visitation, [and] an opportunity to participate in the medical appointments for S.T."
DYFS was not required to prove it provided every possible service to W.L., but rather, it had to show it made reasonable efforts to provide services to help W.L. In addition to the services identified by the judge, DYFS offered transportation and tested both W.L. and L.F. to determine their paternity. DYFS informed W.L. of S.T.'s medical condition. Moreover, DYFS provided W.L. with the name and number of a job service and suggested that W.L. seek employment with one of his relatives.

W.L. had the opportunity to visit his son every other week, but he forgot and missed four visits. W.L was provided with the opportunity to accompany his child to the doctor, another opportunity forgotten and missed by W.L.

W.L. complains that because he did not receive parenting classes, DYFS, therefore, could not satisfy the third prong. Dawson stated that DYFS was waiting to see W.L. make progress in other areas before it would make such classes available to him. "Even if [DYFS] had been deficient in the services offered

. . ., reversal would still not be warranted, because the best interests of the child controls." N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 621 (App. Div.), certif. denied, 192 N.J. 68 (2007). It was reasonable for DYFS to take one step at a time, affording W.L. the opportunity to demonstrate that he was able and willing to accept the challenges facing him with a child that needed a person qualified to address his medical condition.

W.L. contends that if DYFS had allowed for appropriate visitation between S.T. and W.L., "it could have helped create a bond that would have greatly mitigated any harm" S.T. would have suffered from being removed from his foster mother. In re the Guardianship of K.L.F., 129 N.J. 32, 46 (1991). In K.L.F., the Court noted that "much of the bonding that has taken place in this case could have been avoided if the agency had correctly followed its mandate to use due diligence and its best efforts to reunite children with their natural parents." Id. at 45. In that case, a homeless mother surrendered her child to DYFS while she attempted to rehabilitate her life. She testified that she tried contacting DYFS for eighteen months but none of the workers she spoke with knew of her case. Id. at 35. Moreover, she was not allowed to visit her child when she finally contacted a worker familiar with her case. Id. at 35-36. The mother also unsuccessfully attempted to file a motion for visitation Id. at 36.

K.L.F. is distinguishable in two significant respects. First, when K.L.F. was decided, the termination statute required DYFS to use due diligence and its best efforts; now, DYFS is required to expend reasonable efforts. Secondly, in this case, DYFS permitted visits between W.L. and S.T. Dawson suggested W.L. should request more frequent visitations on the record, which W.L. failed to do. DYFS should not be faulted for W.L.'s failure to request additional visitation.

The trial judge did not discuss any alternatives in her decision. However, the record reflects that alternatives were considered at case management conferences and in DYFS's case plan as well. DYFS initially set up an interstate assessment of W.L.'s aunt, after W.L. indicated that he wanted her to care for S.T. Dawson visited W.L.'s aunt in Florida, but when W.L. decided he did not want his aunt to care for S.T., this alternative was abandoned. DYFS also suggested to W.L. that he move to Florida, become settled there, and then, seek to bring S.T. with him, but W.L. did not accept this recommendation.

W.L. now suggests that the trial judge could have awarded custody to W.L. but allowed DYFS to retain care and supervision. He also suggests that trial should have been delayed to permit him to spend more time with his son. First, nothing in the record indicates that W.L. sought a delay in the trial. Second, uncontroverted testimony established that S.T.'s best interest required permanency and stability. To place S.T. in temporary care and supervision with DYFS or to delay the trial would not serve S.T.'s best interest.

While the trial judge did not mention alternatives to termination of parental rights, the record reflects that DYFS in fact considered alternatives and they were brought before the court in case management conferences.

W.L. contends that DYFS did not establish that termination of parental rights will not do more harm than good. "[A] child has a 'paramount need for a permanent and defined parent-child relationship,' as well as a deep need for a nurturing adult, commonly termed the 'psychological parent.'" N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 119 (App. Div.), certif. denied, 180 N.J. 456 (2004) (quoting J.C., supra, 129 N.J. at 26). Biological parents are culpable under the best interests standard when their "prolonged inattention . . . permits the development of disproportionately stronger ties between a child and foster parents . . . [that] lead[s] to a bonding relationship the severing of which would cause profound harm." J.C., supra, 129 N.J. at 18. The quality of the child's relationship with his natural parents must also be considered. Ibid. "[W]here it is shown that the bond with foster parents is strong and, in comparison, the bond with the natural parent is not as strong, that evidence will satisfy" the fourth prong. K.H.O., supra, 161 N.J. at 363.

The trial judge determined:

[W.L.] has not developed a bond with the child, although he's availed himself of the visitation, he did not attend every visitation. As I noted, he missed four, in an effort to form a bond, especially when he knew time was of the essence. And, in fact, Dr. Wiliams opined that given the limited number of visitations that it was unlikely that S.T. had bonded with [W.L.].

The trial judge concluded:

the evidence has shown that the termination of parental rights will not do more harm than good. In fact, the Court finds that S.T. would not suffer severe loss by the termination of the parental rights of [B.T.] and [W.L.], but on the other hand, would suffer severe loss if, in fact, he was separated from his foster mother.

S.T. was in his foster mother's care since July 2006. Dr. Seglin opined that S.T. would be harmed if he were removed from his foster mother. Dr. Seglin noted that S.T. has maintained a sense of well-being, self-esteem, and stability, in large part due to his attachment to his foster mother. Dr. Seglin testified that S.T. recognized his foster mother as his psychological parent.

Furthermore, Dr. Williams said that "by age three, a child is typically securely bonded with the care giver where the child is at." Dr. Seglin noted that S.T. was approaching a key stage in his development where he would begin to internalize parental figures. Dr. Seglin described the relationship between S.T. and his foster mother as "a well established bond that addresses his cognitive needs, his behavioral needs, and his emotional needs." Dr. Williams's knowledge of S.T.'s relationships with his foster mother and W.L. led him to conclude that S.T. would suffer psychological harm by being removed from his foster mother. Dr. Seglin concluded that it would be "more than likely" that S.T. would be harmed long term if he were removed from his current placement.

Both psychologists noted that W.L. could not have formed a bond with S.T. from their visits. S.T.'s medical issues enhanced his need for stability and permanency, both of which S.T.'s foster mother had begun to furnish and W.L. had yet to demonstrate. Substantial credible evidence supported the judge's finding for the fourth prong.

II.

W.L. asserts that DYFS and the trial judge's handling of his case denied W.L. a fundamental fair trial, depriving him of due process of law. We disagree.

W.L. was advised of the steps that the court and DYFS considered necessary for W.L. to become a viable caretaker for S.T. The court held almost monthly case conferences that W.L. or his counsel attended prior to trial. The record does not reflect W.L. requested a delayed trial date so he could attempt to bond with S.T. W.L. was represented at trial, where he had the opportunity to cross-examine witnesses. W.L. also had the opportunity to present his own witnesses, although he chose not to do so. At trial, DYFS's witnesses stressed S.T.'s need for permanency and stability. Furthermore, the trial judge applied the appropriate statutory best interests standard in accordance with the proper standard of proof when she made her decision. In fact, the judge found that DYFS made reasonable efforts to offer W.L. services. Hence, W.L.'s parental rights were terminated pursuant to fundamentally fair procedures. W.L. received all the process that was due to him.

 
The judgment of termination of W.L.'s parental rights to S.T. is affirmed.

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27

A-3774-08T4

RECORD IMPOUNDED

November 12, 2009