STATE OF NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. J.V.A.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5691-07T4

A-5692-07T4

STATE OF NEW JERSEY DIVISION

OF YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

H.V.A.,

Defendant-Appellant.

__________________________________

STATE OF NEW JERSEY DIVISION

OF YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

J.V.A.,

Defendant-Appellant.

_________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF P.V.A.,

A Minor.

________________________________________________________________

 

Submitted June 8, 2009 - Decided

Before Judges Carchman and Parrillo.

On appeal from the Superior Court of New

Jersey, Chancery Division, Family Part,

Sussex County, Docket No. FG-19-16-08.

Yvonne Smith Segars, Public Defender,

attorney for appellant H.V.A. (Miles

Lessem, Designated Counsel, on the

brief).

Yvonne Smith Segars, Public Defender,

attorney for appellant J.V.A. (Michael

C. Kazer, Designated Counsel, on the

brief).

Anne Milgram, Attorney General, attorney

for respondent (Andrea M. Silkowitz,

Assistant Attorney General, of counsel;

Victoria Almeida Galinski, Deputy Attorney

General, on the brief).

Yvonne Smith Segars, Public Defender, Law

Guardian, attorney for the minor P.V.A.

(Christopher A. Huling, Assistant Deputy Public

Defender, on the brief).

PER CURIAM

Defendants Haley Van Achen (Haley) and Jack Von Achen (Jack) appeal from a June 30, 2008 order of the Chancery Division, Family Part, terminating their parental rights to their son Peter Von Achen and awarding guardianship to the Division of Youth And Family Services (the Division or DYFS). We affirm.

I.

These are the relevant facts adduced at trial. Haley, born on April 9, 1978, and Jack, born on April 11, 1978, are the biological parents of five children, four of whom are currently alive: Kevin Von Achen, born on October 15, 2000; Vince Von Achen, born on November 2, 2001; Carrie Von Achen, born on March 10, 2003; Daisy Von Achen, born on February 13, 2004; and Peter Von Achhen, born on August 17, 2007. Defendants' parental rights to Kevin, Vince, and Carrie were terminated on June 18, 2003. Defendants' parental rights to Daisy were terminated on March 16, 2005; Daisy died on March 31, 2005, from complications due to a congenital heart defect.

The Division has been involved with defendants since they were minors. On September 8, 1999, the Division was informed that defendants, both of whom have psychological and intellectual limitations, were expecting their first child. A Division caseworker visited defendants, who were residing with Haley's parents, James and Valerie McBride. Haley's autistic brother, Richard, who has a history of violence, was also living there. Upon entering the home, the caseworker noted a "strong cat odor." The home was "messy", "cluttered", with old food on tables, dirty dishes in the sink and on the counter, floors that needed to be vacuumed and mopped and litter boxes that were full and needed to be emptied and cleaned. The Division provided a variety of services to both parents and to the McBrides, including pre-natal services for Haley. On October 13, 1999, Haley delivered a still born child.

Approximately one year later, on October 17, 2000, the Division received a referral from a social worker at Chilton Memorial Hospital. Haley gave birth to a boy, Kevin, and the hospital staff was concerned about defendants' ability to care for Kevin. On October 30, 2000, the Center for Evaluation and Counseling (CEC) conducted an emergency risk assessment of defendants and the McBrides. In what emerged as a persistent and crucial issue in this case, the CEC reported that both parents were "high-risk parent[s]" due to their cognitive limitations, "poor" parenting skills and "poor hygiene." The clinicians observed that defendants "actively endanger[ed]" Kevin by failing to support his head, despite repeated reminders to do so, and by failing to feed Kevin on a consistent basis. The clinicians also opined that the McBrides did not "lower [the] risk to [Kevin]" due to their own "limitations" and their denial of defendants' limitations. Therefore, the Division retained custody of Kevin while providing a variety of services to the family.

On May 15, 2001, Dr. Paul Garson conducted psychiatric evaluations of defendants and the McBrides. Dr. Garson reported that Haley had "mild" mental retardation with a full scale Intelligence Quotient (IQ) of sixty-two, while Jack had a full scale IQ of seventy-three. Dr. Garson opined that defendants were "not capable of caring for [Kevin]." He also noted that the McBrides had "an unrealistic concept of what is needed to raise a child." Dr. Garson opined that Kevin "should not be returned to the [Von Achen]-McBride family . . . ."

Hayley gave birth to a boy, Vince, on November 2, 2001, and the Division obtained custody of the infant on November 8, 2001. The Division continued providing the necessary services to the family. However, a clinician reported that she was "highly concerned" because defendants were "still not learning basics such as infant feeding schedules" or supporting the baby's head at all times. A clinician was also concerned with defendants' "ability to learn" parenting skills because they "have failed to demonstrate comprehension of the material." On April 25 and May 14, 2002, Dr. Susan Herschman conducted psychological evaluations of both Haley and Jack and bonding evaluations with Kevin and Vince. Dr. Herschman's observations were consistent with those of Dr. Garson. Dr. Herschman was "great[ly] concern[ed]" that defendants "have had weekly visitations with [Kevin and Vince] yet seemed to have retained little from the parenting classes and other therapies they have had." She opined that defendants' "many limitations" and "parental deficits" would cause the children to "suffer significantly."

On January 17, 2003, the Division was advised by the Bon Secours Community Hospital (Bon Secours) in Port Jervis, New York that Haley was receiving pre-natal care because she was seven months pregnant. During a prior court hearing, she had denied being pregnant. Bon Secours also advised the Division that Haley was "portraying to the hospital that she ha[d] custody of [Kevin and Vince]." Dr. Herschman conducted an updated psychological evaluation of both parents on February 21, 2003. Although Haley was approximately eight months pregnant at the time, when Dr. Hershman asked, both Haley and Jack claimed that Haley's asthma medication was causing her to look "bloated." Dr. Hershman's opinion was the same as before. With regards to Jack, Dr. Hershman noted that Jack had "little knowledge of child rearing practices and appropriate developmental milestones" and that "[d]evelopmentally, in many ways he is much like a young child who needs to be taken care of and told what to do." As to Haley, Dr. Hershman concluded, "[w]hile [Haley] does not appear to be intentionally abusive or harmful to her children, if they were placed in her care they would be at risk for neglect and harm due to her cognitive and social limitations." Haley gave birth to Carrie Von Achen on March 10, 2003.

Following a trial, on June 18, 2003, Haley and Jack's parental rights as to Kevin, Vince and Carrie were terminated. Haley appealed and we affirmed. New Jersey Div. of Youth and Family Servs. v. H.V.A., No. A-6074-02T4 (App. Div. February 6, 2004). In the opinion, we noted that the trial court "carefully examined the unsafe and unsanitary nature of the home in which [Haley] resided and the myriad instances in which she exhibited her inability to care for the children." Id. (slip op. at 3). We also noted that "the record discloses continuous and extensive efforts, starting long before the birth of [Kevin], the oldest child, to furnish guidance and support to meet the needs of [Haley] and her family." Ibid.

On February 13, 2004, defendants' family doctor advised the Division that Haley had given birth in her home to a girl, Daisy Von Achen. Daisy was transported to Newton Memorial Hospital because she was in respiratory distress. She was diagnosed with Total Anomalous Pulmonary Venous Return (TPVR), a congenital heart defect. After receiving open heart surgery, Daisy was placed in a specialized foster home on April 22, 2004. Dr. Frank Dyer conducted a psychological evaluation of Haley and Jack on October 18, 2004. Dr. Dyer found Jack to be "mildly retarded" with a full scale IQ of sixty-seven. Dr. Dyer concluded that Jack "lacks any appreciation of the physical and emotional needs of a young child . . . [and] that he would not be expected to profit from any kind of instruction or supervision" due to his hostility and resistance to social service workers. With regards to Haley, Dr. Dyer also found her to be "mildly retarded" with a full scale IQ of sixty-seven. He noted that she "maintains a posture of rigid denial with respect to any wrongdoing or failures that might cause DYFS to have concerns over her adequacy as a mother" and that she was "a dependent, immature young woman with poor insight and judgment." On March 16, 2005, following a trial, Haley and Jack's parental rights as to Daisy were terminated. Daisy died from "complications of her congenital heart defect" on March 31, 2005.

On July 2, 2007, the Division received a referral that Haley "was seen with a newborn child." On that same day, a Division caseworker visited the defendants/McBride home and confirmed that defendants did not have another baby. The caseworker noticed a "strong odor of cat urine" and that the home was "very cluttered," "[t]here were flies all over," "[t]here were feces all over the floors," "the cat litter boxes were overflowing with waste," the animals were "malnourished, dirty, and the dog was missing hair on his back." Valerie advised the caseworker that James' brother, Oscar McBride, had been staying with them, "had a bladder problem" and "has been urinating around the home." Although the family denied that Haley was pregnant, the Division contacted all hospitals in the area requesting that they contact the Division if Haley came for any pre-natal or neonatal treatment. The Division received two responses from St. Anthony's Hospital in Warwick, New York on August 15, 2007, stating that Haley was admitted there for gestational diabetes. The following day, the Division spoke to a staff member of St. Anthony's and learned that Haley was thirty-three to thirty-four weeks pregnant and was receiving pre-natal care from Dr. Arrow. The staff member also advised the Division that Haley had told Dr. Arrow and hospital staff that this was her first pregnancy. When the caseworker interviewed Haley, she denied being pregnant, although she was in the maternity ward, and claimed that she was in the hospital receiving treatment for diabetes. Haley also requested a copy of Daisy's death certificate because she believed that Daisy was still alive and that the Division "lied to her about" Daisy's death. A hospital social worker also reported that Haley claimed that she was "sexually assaulted in December 2006 [and that Jack] was not the father of the child." Haley gave birth to a boy, Peter Von Achen, on August 17, 2007. Peter was born with respiratory distress and was transferred to the Neo-Natal Intensive Care Unit (NICU) for testing and treatment. He was discharged on September 13, 2007, and placed in a specialized foster home where he remains to this date. Peter suffered from two cardiac conditions - "a defect in the wall between the two chambers in the heart" and "abnormal circulation between the two arteries near the heart." He also has been fitted with a headband "to help correct [his] Torticollis" and gradually "remold" his head.

Prior to Peter's discharge, the Division met with defendants and the McBrides to determine the feasibility of having Peter in the home. On August 21, 2007, a caseworker visited the home and again noted the smell of cat urine. The basement, where defendants sleep, had a "potent smell of must and cat urine." The caseworker again observed two rabbits in cages and "a cat litter box with feces overflowing onto the floor." On September 10, 2007, a caseworker visited the family at the hospital and noted an "overwhelming" odor from the family. The hospital social worker reported that the family's odor "was so bad a nurse vomited." The caseworker observed Haley reposition Peter without supporting his head. When advised that the Division was filing for Peter's custody, Valerie claimed that the Division could not take him away because James' "grandfather was a member of the Lenni-Lenape [tribe]." Haley stated that she was raped by a man of Native American descent and that Jack was a "Cherokee Indian." Haley also claimed that Daisy's foster parents had "fed her anti-freeze causing her death." Valerie informed the caseworker that the feces a Division worker had observed on the floor were not animal feces but "human feces from her brother-in-law."

During a scheduled visit with Peter and the family on September 19, 2007, the Division caseworker again noted the family's "offensive" body odor. Haley advised the caseworker that a man named Thomas Carter raped her and was "incarcerated for drug related charges and rape, but [that] they did not know" the name or location of the prison. She also stated that "a paternity test was done at the hospital which confirmed that Mr. Carter [was Peter's] father ...." The caseworker informed the family that it would conduct its own paternity test and that it had also scheduled the family for psychological evaluations. During the visit, Haley handled Peter appropriately but Jack pressed his fingertips into the baby's back, with enough force that the caseworker noticed Peter's chest rising with each poke. Jack would also press his thumb into Peter's side, squeeze Peter's fingers and pull on Peter's arm so that Peter "squirm[ed] or grunt[ed]." The caseworker noticed the same behavior during another visit which occurred on September 26, 2007. Jack did not support the baby's head but rather left the head "dangling off [of] his forearm," he "continued to be forceful with [Peter's] arms, legs and finger[s]," he "palm[ed]" Peter's head and moved it "side to side." The caseworker had to repeatedly correct Jack and tell him to "stop poking and pulling on [Peter]." Despite being told to stop, Jack continued to poke, prod and flick Peter during subsequent visits. On the other hand, Haley "properly" cared for Peter.

Dr. Dyer conducted a psychological evaluation of Haley, Jack, Valerie and James on September 25 and 26, 2007. With regards to Jack, Dr. Dyer opined that his "psychological presentation had not changed appreciatively since the initial evaluation [that was conducted] in 2004." Dr. Dyer noted that Jack "continue[d] rather to function at a mildly retarded level," and "continue[d] to display poor judgment, poor insight into his limitations, lack of comprehension as to the needs of a young child" and was still "volatil[e]." Therefore he "strongly recommend[ed] that [Jack] not be considered as a viable candidate for custody of [Peter]." With regards to Haley, Dr. Dyer reported that Haley stated that she believed Daisy "to still be alive" and living with the foster parents "because she never received a death certificate with a raised seal." He opined that Haley was "manifestly lacking in the intellectual ability, literacy, judgment, and overall ego resources to provide adequate protection, nurturance, structure, stimulation, and positive role modeling for a child." Dr. Dyer also opined that not only was there "no detectable improvement" in Haley's parenting ability since his evaluation in 2004, but that "her parenting capacity [was] even below the level that it was when [he] initially evaluated her." Therefore he "recommended that DYFS not consider [Haley] as a viable candidate for custody."

As to Valerie, Dr. Dyer noted that she had a full range IQ that was below sixty, which means that she "falls well within the mildly retarded range." During the interview, Valerie stated that "she still [did] not understand the allegations against [Haley]," that "[Jack] did 'great' with [Kevin]," and that there were no "dangerous conditions in the home that would pose a threat to the children." She claimed that she knew Daisy was still alive because "their dog, who is a search and rescue dog, found [Daisy]" living "with her foster parents three houses away...." She believed that "DYFS was 'playing a funny joke' with them by telling them that [Daisy] was dead." Dr. Dyer opined that Valerie was not "a positive resource for [Peter]" due to her "cognitive limitations, her own basic literacy and her own [in]capacity to assess reality properly."

As to James, Dr. Dyer found that his "intellectual functioning [was] estimated as high average," but noted that James also believed that Daisy was still alive. James stated that "he felt that there was something fishy about the whole process," noted that there was no obituary for Daisy, and he felt that the Division told them Daisy was dead because "'they were trying to end this situation with [Haley]'s children.'" He believed that Daisy was "living down the street from them" but he could not see her when the family passed by the foster parents' house because he is the one driving the car. Dr. Dyer concluded: "If DYFS had considered [James] as a psychologically intact and stable figure of normal intelligence who could protect [Peter] from the hazards in the home and from [Jack] if the child were given to the birthparents, the present examination results strongly indicate the contrary."

On October 5, 2007, Dr. Michael Gentile conducted psychiatric evaluations of Haley and Jack. Dr. Gentile diagnosed Jack with "pervasive developmental disorder," "nonspecific learning disabilities," and suspected "mild mental retardation." He recommended that Jack "consider a vasectomy ... as there is little likelihood that he will ever keep any child sired by him." With regards to Haley, Dr. Gentile diagnosed her with "Asperger's disorder," and suspected "borderline intelligence and learning disabilities." He also recommended that Haley "strongly consider some form of permanent contraception and/or sterilization to prevent further pregnancies [because it was] unclear whether she would ever be able to successfully parent a child given her and her family's limitations."

A paternity test confirmed that Jack was Peter's biological father. Consequently, the Family Part entered an Exception to the Requirement of Reasonable Efforts to Reunify Order, pursuant to N.J.S.A. 30:4C-11.3, which "relieved [the Division] of its obligations to provide reasonable efforts to reunify [Peter] with [Haley and Jack]" since their parental rights to Kevin, Vince, Carrie and Daisy had been previously terminated. The Division explored two placement resources that were recommended by Haley and Jack. Both were ruled out because one would not commit to "car[ing] for 'an infant with special needs,'" and the other was found to have eighteen "separate child abuse/neglect substantiations." A permanency hearing was held on January 25, 2008, in which Judge Farber found that "[t]ermination of [p]arental [r]ights followed by [a]doption [was] an appropriate plan . . . ."

On April 7, 2008, the Division filed a complaint for guardianship and to terminate Haley and Jack's parental rights as to Peter. At the trial held before Judge Farber, the Division presented the testimony of case manager Dawn Celi and the expert testimony of Dr. Dyer as well as supporting documentations. Celi testified to the previously described history of the Division's involvement with defendants and the McBrides, while Dr. Dyer rendered his previously described psychological assessments of the entire family. Haley and Jack did not offer any expert testimony or documentary support, and Haley did testify at trial. She acknowledged that she received parenting skills courses at Project Self Sufficiency, was attempting to obtain vocational employment and had all the necessary supplies to care for Peter. She denied questioning the fact that Daisy was dead and claimed that she "never saw [the death certificate]" until it was submitted during the trial. She stated that she had the parenting skills necessary to care for Peter, that she would be Peter's primary caregiver and her parents would help.

At the conclusion of the trial, Judge Farber issued an extensive and comprehensive oral decision finding that "by clear and convincing evidence . . . termination [of Haley and Jack's parental rights] will not do more harm than good." On the same date, he issued a judgment of guardianship terminating Haley and Jack's parental rights as to Peter. Both parents appeal.

II.

On appeal, Jack raises the following arguments:

POINT I: THE JUDGMENT OF GUARDIANSHIP TERMINATING THE DEFENDANT'S PARENTAL RIGHTS SHOULD BE REVERSED, BECAUSE, CONTRARY TO THE STATUTORY CRITERIA OF THE BEST INTEREST TEST, THE TRIAL COURT APPLIED A STATUS QUO ANTE ANALYSIS THAT WAS BASED ON A PRESUMPTION OF PARENTAL UNFITNESS AND WHICH IMPROPERLY SHIFTED THE BUR[D]EN OF PROOF TO THE DEFENDANT

POINT II: THE JUDGMENT OF GUARDIANSHIP SHOULD BE REVERSED BECAUSE THE DEFENDANT'S MENTAL ILLNESS AND RELATED CONDITIONS RESULTED IN A DE FACTO FORFEITURE OF PARENTAL RIGHTS CONTRARY TO THE STATUTORY CRITERIA OF THE BEST INTERESTS TEST AND CONTRARY TO THE PROVISIONS OF THE MENTAL PATIENTS BILL OF RIGHTS ACT

(A) DYFS FAILED TO PRODUCE CLEAR AND CONVINCING EVIDENCE THAT THE DEFENDANT "HARMED" [PETER] UNDER THE FIRST PRONG OF THE BEST INTERESTS TEST AND WAS PARENTALLY "UNFIT" UNDER THE SECOND PRONG

(B) THE ORDER EXCUSING THE DIVISION OF ITS REASONABLE EFFORTS OBLIGATION RESULTED IN A DE FACTO FORFEITURE OF THE DEFENDANT'S PARENTAL RIGHTS BECAUSE IT DEPRIVED HIM OF HIS RIGHT TO REUINIFICATION SERVICES AS A VICTIM OF MENTAL ILLNESS

(C) TERMINATION OF PARENTAL RIGHTS IN THE ABSENCE OF A BONDING EVALUATION RESULTED IN A DE FACTO FORFEITURE OF THE DEFENDANT'S PARENTAL RIGHTS CONTRARY TO FOURTH PRONG STATUTORY CRITERIA

Similarly, Haley raises the following arguments:

THE EVIDENCE PRESENTED DID NOT DEMONSTRATE THAT D.Y.F.S. HAD MET ITS BURDEN TO OVERCOME DEFENDANT [HALEY]'S FUNDAMENTAL CONSTITUTIONAL RIGHT TO HAVE A RELATIONSHIP WITH [PETER] OR THE FOUR PART TEST TERMINATING PARENTAL RIGHTS AS SET FORTH IN N.J.S.A. 30:4C-15.1(a)

POINT A: DYFS FAILED TO PROVE THAT DEFENDANT, [HALEY] CAUSED OR WOULD CAUSE [PETER]'S SAFETY, HEALTH OR ENVIRONMENT TO BE ENDANGERED. THEREFORE PRONG ONE OF THE TEST WAS NOT MET.

POINT B: DYFS CANNOT PROVE THAT DEFENDANT, [HALEY] IS UNWILLING OR UNABLE TO PROVIDE A SAFE AND STABLE HOME FOR [PETER] OR THAT SUCH DELAY WILL DO [PETER] HARM.

POINT C: THE ORDER EXCUSING THE DIVISION OF ITS REASONABLE EFFORTS OBLIGATION RESULTED IN A DE FACTO FORFEITURE OF THE DEFENDANT'S PARENTAL RIGHTS BECAUSE IT DEPRIVED HER OF HER RIGHT TO REUNIFICATION SERVICES AS A VICTIM OF MENTAL ILLNESS

POINT D: TERMINATION OF [HALEY]'S PARENTAL RIGHTS WILL DO MORE HARM THAN GOOD.

We are satisfied that DYFS has met its burden as to all four statutory prongs by clear and convincing evidence.

Our Supreme Court has "recognize[d] that '[b]ecause of the family courts' special . . . expertise in family matters, appellate courts should accord deference to family court factfinding.'" N.J. Div. of Youth & Family Servs. v. G.M. (In re K.M.), 198 N.J. 382, 397 (2009) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)). See also N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 433 (App. Div. 2009) (noting that "we must afford great deference to the Family Part's findings of fact and conclusions of law based on those findings"). Therefore we will "uphold the factual findings undergirding the trial court's decision if they are supported by 'adequate, substantial and credible evidence' on the record." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (quoting In Re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)).

"[P]arent[s]' right[s] to raise a child and maintain a relationship with that child is constitutionally protected under the federal and state Constitutions." A.R., supra, 405 N.J. Super. at 434 (internal quotations and citations omitted). See also In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). However, those rights "are not absolute, and 'must be balanced against the State's parens patriae responsibility to protect the welfare of children.'" G.M., supra, 198 N.J. at 397 (quoting D.Y.F.S. v. G.L., 191 N.J. 596, 605 (2007)). In order to balance parental rights and the State's interest in protecting the welfare of children, courts are to apply the "best interests of the child standard." K.H.O., supra, 161 N.J. at 347. Under N.J.S.A. 30:4C-15.1(a), the standard provides that parental rights may be terminated when 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 division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and
 
(4) Termination of parental rights will not do more harm than good.

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

These four prongs are not "discrete, but rather relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." A.R., supra, 405 N.J. Super. at 434 (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 103 (2008) (citing K.H.O., supra, 161 N.J. at 348))(internal quotations omitted)). The Division has the burden to prove by clear and convincing evidence that the parental rights should be terminated. E.P., supra, 196 N.J. at 104; In re Guardianship of J.N.H., 172 N.J. 440, 464 (2002); A.R., supra, 405 N.J. Super. at 434; N.J. Div. of Youth & Family Servs. v. M.W., 398 N.J. Super. 266, 276 (App. Div.), certif. denied, 196 N.J. 347 (2008).

A.

With regards to the first prong, "[h]arm . . . involves the endangerment of the child's health and development resulting from the parental relationship." K.H.O., supra, 161 N.J. at 348. "[T]he harm shown . . . must be one that threatens the child's health and will likely have continuing deleterious effects on the child.'" M.M., supra, 189 N.J. at 281 (quoting K.H.O., supra, 161 N.J. at 352). A court does not have to wait "until a child is actually irreparably impaired by parental inattention or neglect." In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999) (citing N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 616 (1986)).

Both defendants argue that the Division failed to prove that they "harmed" Peter. Haley argues that she took adequate care of Peter during visitations, while Jack argues that the Division attempted to prove harm only by presenting his prior behavior with Kevin, Vince, Carrie and Daisy.

Defendants' arguments are without merit. Judge Farber's finding, that placing Peter in defendants' custody would harm Peter, is amply supported by the record. With regards to Jack, Judge Farber relied on the following: 1) Jack's prior and current inappropriate interaction with all the children, such as not supporting their heads, prodding, poking, slapping their faces or heads and touching the infants with unwashed hands; 2) his problems with aggression and inability to consistently medicate himself; 3) his "foul odor" resulting from an inability "to perform simple acts of personal hygiene such as bathing, brushing teeth and wearing clean clothes"; 4) the conditions of his home described as "cluttered, dirty and over run with dogs, cats, ferrets and rabbits," which resulted in overflowing litter boxes, feces on the floor and "a stench of cat urine" throughout the home; and 5) Dr. Dyer's opinion that Jack's cognitive limitations prevent him from learning even basic parenting skills, such as properly feeding an infant, let alone ones needed to care for a medically fragile one.

As to Haley, Judge Farber relied on the following: 1) Dr. Dyer's expert opinion as well as the opinions of Dr. Hershman and Dr. Gentile who all opined that Haley's cognitive limitations prevented her from learning parenting skills; 2) the fact that "[s]he never learned over the last decade how to adequately perform elementary tasks of feeding, cleaning or changing a baby" despite repeated instructions from service providers; 3) her "poor personal hygiene and unclean habits in handling the babies"; and 4) the filthy condition of the home.

The judge concluded that the Division sustained its burden as to the first prong.

B.

As to the second prong, "'the focus of the inquiry is not only whether the parent is fit, but also whether he or she can become fit within time to assume the parental role necessary to meet the child's needs.'" A.R., supra, 405 N.J. Super. at 434 (quoting 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)). "The fact that the parents may be morally blameless in this unfortunate situation is not conclusive on the issue of permanent custody." N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 439 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002) (quoting In re Guardianship of R.G. and F., 155 N.J. Super. 186, 194-95 (App. Div. 1977)). In this context, mental disabilities are factors that this court has previously taken into consideration. See, e.g., A.G., supra, 344 N.J. Super. at 440 (affirming termination of parental rights of parents who "suffer[ed] from mental disorders which adversely affect[ed] their ability to parent" despite the fact that there was no "evidence to show that they would intentionally harm the child"); R.G., supra, 155 N.J. Super. at 194-95 (holding that the Division established a prima facie case for termination of parental rights where "the parents' unfortunate mental illnesses react[ed] synergistically to create an environment in which they cannot adequately care for and raise the children"); In re Guardianship of D.N., 190 N.J. Super. 648, 654 (J. & D.R. Ct. 1983), cited with approval in A.G., supra, 344 N.J. Super. at 440 (terminating parental rights of mentally retarded parents where there was "no probable expectation of change in the ability of the parents to assume the parental responsibilities").

Here, Judge Farber relied on the expert testimony from Dr. Dyer who opined that because of their mental limitations, both Haley and Jack were "unable nor or [sic] in the foreseeable future, if ever, to provide a safe and stable home [for Peter]." The judge's decision is also supported by Dr. Gentile and Dr. Hershman's reports for both defendants concluding that their parenting skills are lacking and will not improve. Defendants have not offered any testimony or opinion to refute the Division's expert opinions.

C.

As to the third prong, the general rule is that

[i]n any case in which the Division accepts the care or custody of a child, 'the [D]ivision shall make reasonable efforts, prior to placement, to preserve the family in order to prevent the need for removing the child from his home.' N.J.S.A. 9:6-8.8(b)(2). Even after placement, 'the [D]ivision shall make reasonable efforts to make it possible for the child to safely return to his home.' Ibid.
 
[G.M., supra, 198 N.J. at 398.]

However, an exception to this rule is invoked in certain circumstances. N.J.S.A. 30:4C-11.3 states in pertinent part

In any case in which the Division of Youth and Family Services accepts a child in care or custody, including placement, the division shall not be required to provide reasonable efforts to reunify the child with a parent if a court of competent jurisdiction has determined that:

. . . .

 
c. The rights of the parent to another of the parent's children have been involuntarily terminated.

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

Defendants argue that because the Division "was well aware" that defendants suffered from "mental illness and related conditions" which caused Peter's removal from their custody, it should have provided them with "a specific treatment plan designed to treat [their] mental illness and related conditions...." Defendants' arguments are without merit.

Defendants rely on State in Interest of W., 145 N.J. Super. 167, 179 (Cty. Ct. 1976) and claim that "[w]hen the conduct which the Division cites as justification for termination of parental rights was the result of that mental illness, the Division must provide the parent with a treatment plan designed to treat the mental illness and its related conditions." The issue in State in Interest of W. (W.), supra, was not a termination of parental rights. Rather it involved a juvenile who was adjudged not guilty by reason of insanity on charges of first-degree murder, institutionalized and sought a court order for mental health treatment. In W., the court noted that every individual who is institutionalized has a statutory right to mental health treatment. Id. at 179. W. does not support defendants' argument that the exception for services allowed by N.J.S.A. 30:4C-11.3 is not applicable when the parent is mentally ill. Dr. Dyer's expert opinion that no amount of services would help defendants improve their parenting skills because they lack the necessary cognitive abilities is particularly persuasive.

Defendants have participated in two prior guardianship trials where their rights were terminated as to their four older children. Those proceedings revealed that numerous services were provided by the Division to no avail. Further, despite being relieved of its obligation to provide any services, the Division conducted an assessment of the family's living arrangements, provided supervised visitations, conducted psychological evaluations of defendants and the McBrides, and explored alternatives to termination such as relative resource placements. The Division sustained its burden under the third prong.

D.

The fourth prong "serves as a fail-safe against termination even where the remaining standards have been met." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 609 (2007). "The question ultimately is not whether a biological mother or father is a worthy parent, but whether a child's interest will best be served by completely terminating the child's relationship with that parent." E.P., supra, 196 N.J. at 108. The Court has noted that it "is widely understood that a `child deeply needs association with a nurturing adult' and that `permanence in itself is an important part of that nurture.'" Ibid. (quoting A.W., supra, 103 N.J. at 610).

The strong public policy of New Jersey favors permanency of child placement. N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 116 (App. Div.) certif. denied, 180 N.J. 456 (2004). See, e.g. N.J.S.A. 30:4C-11.1. We have previously observed,

Children must not languish indefinitely in foster care while a birth parent attempts to correct the conditions that resulted in an out-of-home placement. In response to the reforms resulting from the Federal Adoption and Safe Families Act of 1997, n4, the emphasis has shifted from protracted efforts for reunification with a birth parent to an expeditious, permanent placement to promote the child's well-being. 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.

 
[N.J. Div. of Youth & Family Servs. v. S.F., 392 N.J. Super. 201, 209-210 (App. Div.) (internal quotations and editing marks omitted) (citing C.S., supra, 367 N.J. Super. at 111 (App. Div.) certif. denied, 180 N.J. 456 (2004)), certif. denied, 192 N.J. 293 (2007).]

Defendants argue that Judge Farber erred in finding that the termination of parental rights would do more good than harm because there were no bonding evaluations conducted between Haley, Jack and Peter. Defendants' arguments are without merit.

The issue before the trial court was the harm that would befall Peter due to defendants' deficient parenting skills, not the harm that would be caused from severing his bond with his biological parents. With regards to Jack, Judge Farber noted,

[Jack] is simply and unequivocally unable to care for a child. He has not even shown that he is capable of independently caring for himself. If [Peter] was put in [Jack's] care, he certainly would not thrive emotionally, financially, or academically or intellectually . . . . The Court believes that [Peter] could easily perish if left for even a short period in the care of his father.

Similarly, as to Haley, Judge Farber noted, "[Haley] is simply and unequivocally unable to care for the child and has not been show[n] to be capable of independently caring for herself. If put in her care, [Peter] would not thrive and would be at risk to survive." The record amply supports Judge Farber's opinion that termination would do more good than harm.

We have carefully reviewed the record and are satisfied that the Division sustained its burden of proof by clear and convincing evidence.

 
Affirmed.

Defendants' and their children's names are fictitious. For ease of reference, we refer to defendants by their fictitious first names.

Division records show that it had fifteen referrals of abuse or neglect against Haley's parents related to Haley and her siblings. There are three referrals and an open case for services for Jack.

Dr. Arrow's first name is not in the record.

The foster parents now wish to adopt Peter.

Torticollis is a condition in which "the head is drawn to one side and usually rotated so that the chin points to the other side." Stedman's Medical Dictionary, Unabridged Lawyer's Edition 1460 (4th ed. 1976).

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2

A-5691-07T4

RECORD IMPOUNDED

August 21, 2009