NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES - v. J.F.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6314-07T46314-07T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

S.M.,

Defendant-Appellant,

IN THE MATTER OF THE

GUARDIANSHIP OF J.M.,

Minor.

___________________________________

NEW JERSEY DIVISION OF YOUTH DOCKET NO. A-1483-08T4

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

J.F.,

Defendant-Appellant,

IN THE MATTER OF THE

GUARDIANSHIP OF J.T.M.,

Minor.

____________________________________

 

Argued August 4, 2009 - Decided

Before Judges Lihotz and Baxter.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-93-08.

Carleen M. Steward, Designated Counsel, argued the cause for appellant S.M. in A-6314-07T4 (Yvonne Smith Segars, Public Defender, attorney; Ms. Steward, on the brief).

William J. Sweeney, Designated Counsel, argued the cause for appellant J.F. in A-1483-08T4 (Yvonne Smith Segars, Public Defender, attorney; Mr. Sweeney, on the brief).

Andrea Fonseca-Romen, Deputy Attorney General, argued the cause for respondent Division of Youth and Family Services (Anne Milgram, Attorney General, attorney; Lewis A. Scheindlin, of counsel; Nora P. Pearce, Deputy Attorney General, on the brief).

Noel C. Devlin, Assistant Deputy Public Defender, argued the cause for minor J.T.M. (Yvonne Smith Segars, Public Defender, attorney; Mr. Devlin, on the brief).

PER CURIAM

In these consolidated matters, S.M. is the mother and J.F. is the father of J.T.M., who was born on November 11, 2005. The parents appeal from a judgment entered on June 24, 2006, terminating their parental rights and awarding guardianship, care and custody of J.T.M. to the Division of Youth and Family Services (DYFS or Division). Visitation between the parents and the child continued pending appeal.

On appeal, S.M. raises the following points for our consideration:

POINT I: DURING THE TRIAL, DOCUMENTS WERE ADMITTED INTO EVIDENCE AND TESTIMONY WAS PERMITTED ABOUT UNFOUNDED AND UNSUBSTANTIATED DIVISION REFERRALS (NOT RAISED BELOW).

POINT II: THE TRIAL JUDGE MADE INACCURATE FINDINGS OF FACT AND CONCLUSIONS OF LAW THAT RESULTED IN TERMINATION OF PARENTAL RIGHTS AND THE DIVISION FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE EACH OF THE FOUR PRONGS OF N.J.S.A. 30:4C-15.1, AND, THEREFORE, [S.M.'S] PARENTAL RIGHTS TO HER DAUGHTER, [J.T.M.], MUST BE REINSTATED.

A. The trial judge's findings of fact and conclusions of law were not consistent with the evidence.

B. The trial judge improperly found that the first and second prongs of the statute were satisfied.

C. The trial judge improperly found that the Division satisfied the third prong of the statute.

D. The Division failed to demonstrate that termination of [S.M.'s] parental rights will not do more harm than good.

J.F. raises these points for review:

POINT I: THE ELEMENTS OF N.J.S.A. 30:4C-15.1 WERE NOT PROVEN BY CLEAR AND CONVINCING EVIDENCE.

A. J.F. never harmed J.T.M. in any way and prior incarceration does not give rise to a presumption of parental unfitness.

B. After having been released from jail, J.F. has visited with J.T.M. and has stood willing and able to remove whatever harm the Division may perceive he caused J.T.M.

C. The Division did not provide reasonable services to J.F. while he was in jail or after his release.

D. A strong bond with the foster parent does not constitute an independent basis for termination of parental rights under the fourth prong.

We have considered the arguments raised in light of the record and applicable legal standards. We affirm.

I.

Our review is guided by the following principles. The right of parents to enjoy a relationship with their children is constitutionally protected. In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). Parents have a fundamental liberty interest in raising their children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394, 71 L. Ed. 2d 599, 606 (1982). Both the federal and state constitutions protect the inviolability of the family unit. See Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212-13, 31 L. Ed. 2d 551, 558-59 (1972); New Jersey Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986).

"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). This presumption, however, is not always true. "[E]xperience 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. As evidenced by child abuse and neglect cases, some parents "may at times be acting against the interests of their children." Ibid. Thus, "the right of parents to be free from governmental intrusion is not absolute." A.W., supra, 103 N.J. at 599. "More recently, 'concern has arisen for the best interests of children whose parents have forsaken their parental duties. The child's right to a permanent home has gained increasing prominence.'" In re Guardianship of P.P., 180 N.J. 494, 505 (2004) (quoting In re Adoption of Children by G.P.B., Jr., 161 N.J. 396, 404 (1999)). Undoubtedly, J.T.M.'s need for permanency and stability was a critical factor in this case.

When a child's biological parents resist the termination of their parental rights, the court's function is to decide whether the parents can raise the child without causing the child further harm. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). "[T]he cornerstone of the inquiry is not whether the biological parents are fit but whether they can cease causing their child harm." Ibid. "The analysis of harm entails strict standards to protect the statutory and constitutional rights of the natural parents[,]" and the "burden falls on the State to demonstrate by clear and convincing evidence that the natural parents have not cured the initial cause of harm," and they "will continue to cause serious and lasting harm to the child." Ibid.

While recognizing the fundamental nature of parental rights and the need to preserve and strengthen family life, the Legislature has also recognized "the health and safety of the child shall be the State's paramount concern when making a decision on whether or not it is in the child's best interest to preserve the family unit." N.J.S.A. 30:4C-1(a). "The balance between parental rights and the State's interest in the welfare of children is achieved through the best interests of the child standard." K.H.O., supra, 161 N.J. at 347. The best interest standard, initially formulated by the Court in A.W., supra, 103 N.J. at 604-11, and codified in N.J.S.A. 30:4C-15.1(a), requires the State to establish each of the following standards by clear and convincing evidence before parental rights may be severed:

(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 requirements "relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." K.H.O., supra, 161 N.J. at 348. The considerations involved are extremely fact-sensitive and require particularized evidence that addresses the specific circumstances present in each case. Ibid.

II.

Generally, the facts leading up to J.T.M.'s foster care placement are undisputed. J.T.M. was removed from S.M.'s care. At that time, J.F. was not a member of the household. We therefore, review the circumstances surrounding the Division's involvement with each parent.

A.

S.M., who is now age twenty-seven, is the mother of the three children who were the subject of this litigation: S.S., born on May 29, 1997; S.S.M., born on April 17, 1999; and J.T.M. The fathers of S.S. and S.S.M. surrendered their respective parental rights prior to trial and are not parties to this appeal.

The Division's initial involvement with the family occurred in January 2001, after a referral of alleged inadequate supervision of S.S. and S.S.M was received. The Division's investigation concluded the allegations were unsubstantiated. However, a subsequent referral was received on July 22, 2001, which alleged S.M. was drunk, using phencyclidine (PCP) regularly, and residing in a flea-infested home with a registered sex offender. Following an interview with S.M., the Division substantiated the need for intervention and a case was opened for services. S.S. and S.S.M. were placed with a relative and eventually returned to live with S.M.

The most recent referral leading up to this matter was submitted to DYFS on September 12, 2006. The Gloucester Township Police Department received an anonymous call expressing concern for S.S. because he was not attending school. The anonymous caller also suggested S.M. was "homeless" and an "alcoholic." Police officials responded to the home of the child's maternal aunt, who was caring for S.S. The police reported the condition of the home to be "questionable" and were told S.M. was living elsewhere with S.S.M. and J.T.M. The Division was called and investigated the living conditions of all three children. The Division concluded:

Mother [S.M.] has no stable housing. She stays with various relatives until they ask her to leave due to her heavy drinking. Mother left baby [J.T.M.] at a friend[']s house and forgot where she left child due to heavy drinking. Mother left [S.S.] with an aunt and made no plans to return for him or care for him. None of the children are enrolled in school.

The Division exercised an emergency removal of all three children pursuant to N.J.S.A. 9:6-8.29 and N.J.S.A. 9:6-3. DYFS obtained medical care for the children. J.T.M. was diagnosed with an ear infection and a genital rash, and both S.S. and S.S.M. suffered from serious tooth decay.

On September 14, 2006, DYFS initiated a Title 9 action seeking custody, care and supervision of the children. S.M.'s mother and sister were present in the home at the time the Division executed the removal.

Following removal, Dr. Meryl Udell conducted a psychological examination of S.M. He observed S.M. was "pleasant and cooperative with the evaluation process." Dr. Udell opined S.M.'s insight and judgment were fair, and "her thought processes were logical and goal directed." S.M. admitted her alcoholism, but denied other substance abuse. Dr. Udell concluded S.M. was alcohol dependent and moderately depressed. He recommended she complete an Intensive Outpatient Program for alcohol abuse, participate in individual counseling, continue with a step-down aftercare program (suggesting attendance at Alcoholics Anonymous meetings), participate in parenting skills classes if amenable, and obtain suitable housing before the children could be returned to her care.

S.M. did not comply with Dr. Udell's recommendations. She was dismissed from the Family First Intensive Outpatient Drug Program through Sikora House, due to lack of attendance. S.M. failed to comply with the rehabilitation services offered and in August 2007 admitted to using PCP.

At the September 5, 2007 permanency hearing, the court approved the Division's plan for termination of parental rights followed by adoption. S.M. was repeatedly told that her continued substance abuse would ultimately result in the termination of her parental rights. S.M. agreed to accept treatment and was admitted to Seabrook House on October 31, 2007 for a twenty-eight day substance abuse treatment and rehabilitation program. She was discharged on November 28, 2007. Her discharge summary stated her "overall response to treatment became increasingly positive" and outpatient treatment at Sikora's House was recommended. S.M. enrolled for treatment at Sikora on November 29, 2007. While undergoing treatment, her "attendance, participation and progress [were] excellent." Her urine drug screens and alcohol check swab tests were consistently negative and she demonstrated "responsible behaviors."

The complaint for guardianship was filed on December 3, 2007. At that point, the children had been in foster care for over one year. The complaint stated the children's placement was necessary to avoid ongoing risk to their lives, safety and health. Continued placement with S.M. was contrary to their welfare due to her serious alcohol dependence and her lack of adequate housing. The Division did not secure adoptive homes for S.S. and S.S.M., as their age and behavioral problems made adoption unlikely.

As a result of her successful compliance with the Sikora House program, S.M.'s mandatory attendance was reduced to three days per week, allowing her to enroll in parenting classes, which began on March 5, 2008. S.M. was discharged from the evening parenting classes due to lack of attendance. She later completed one series of classes focused on the care of the older children. At S.M.'s request and on her behalf, the Division wrote to the Housing Authority in search of available housing. S.M. continued after-care and attended AA/NA meetings once she was discharged from Sikora House.

On April 28, 2008, S.M. was examined by the Division's forensic psychologist, Frank J. Schwoeri, Ph.D. S.M. acknowledged an extensive history of alcohol and drug abuse and admitted she last used PCP seven months earlier. Dr. Schwoeri diagnosed S.M. with alcohol and PCP dependence in early remission and dysthymic disorder. He observed S.M. was "still in the relatively early phase of recovery from a quite long and extensive substance abuse history, and ha[d] not yet completed treatment nor remained abstinent outside the structure of an intensive treatment program."

Dr. Schwoeri also completed a bonding evaluation between S.M. and the three children. As to J.T.M., the evaluation, performed on April 28, 2008, showed J.T.M. "clearly recognize[d] [S.M.] and [wa]s familiar with her." When S.M. tried to leave, Dr. Schwoeri observed J.T.M. showed signs suggesting she was affected by her mother's absence. However, he opined J.T.M.'s weekly visits with S.M. were "a very infrequent level of intensity and would be insufficient to compensate or provide continuous attachment bonding." As a result, Dr. Schwoeri concluded J.T.M. did not have a bond with S.M. and likely had established an attachment to her foster mother.

Additionally, Dr. Schwoeri performed a bonding evaluation between J.T.M. and her foster mother. He observed J.T.M. refers to her foster mother as "mommy," and was "clearly comfortable with her and show[ed] no signs of ambivalence or avoidance." For the separation phase of the evaluation, Dr. Schwoeri stated, J.T.M. noticed her foster mother's exit and "became clearly subdued in her mood." He concluded, based upon the interaction between J.T.M. and S.M. and her foster mother, "relatively little or no harm would come to [J.T.M.] if her biological mother's right[s] were terminated; by the same token, she would suffer significant and enduring harm if moved from her current placement since she is securely and specifically attached to her foster mother."

At trial, Dr. Schwoeri's testimony on behalf of the Division was consistent with the findings and recommendations set forth in his written reports. When asked if J.T.M. would suffer serious injuring harm if separated from her mother, Dr. Schwoeri responded:

[J.T.M.] does not see [S.M.] as her psychological parent. Of course, she can't formulate it in those -- in anything like those words, but I would say that what would be comparable would be that she experiences her mother, her biological mother as she would any benign relative that she saw once in a awhile. She's not afraid of her. She's kind of familiar with her, but she's not her mother, from her point of view.

S.M. also underwent a psychological evaluation to assess her capacity to parent conducted by her expert Dr. David F. Bogacki, who did not testify at trial. However, his reports were admitted into evidence without objection.

Dr. Bogacki found S.M.'s cognitive assessment showed no evidence of organic brain dysfunction. In terms of her personality, Dr. Bogacki observed S.M. was "behaviorally rigid and constricted" and "prone toward a repetitive lifestyle." He also stated S.M. showed "high needs for attention, recognition and praise" and evidenced "narcissistic and antisocial traits." Based upon his evaluation, Dr. Bogacki diagnosed S.M. with "polysubstance abuse in partial remission; generalized anxiety disorder; depressive disorder, not otherwise specified (NOS); compulsive and narcissistic personality traits."

Dr. Bogacki also conducted a bonding evaluation between S.M. and her three children, as well as J.T.M. and her foster mother. Dr. Bogacki observed that all three children referred to S.M. as "mommy." However, S.S and S.S.M. confided in S.M. more easily and showed stronger emotional attachment than J.T.M. In the presence of her siblings and S.M., J.T.M. behaved "in an acting out and anxious manner." In comparing this observation with J.T.M.'s interaction with her foster mother, Dr. Bogacki stated J.T.M. "was more sedate, calm, and interacted in a more appropriate manner" with her foster mother than with S.M. J.T.M. referred to her foster mother as "mommy" and "was calmer and more physically affectionate." In addition, her foster mother "provided more structure" than S.M., and "stimulated language development and social skills and pre-academic skills." Based upon the evaluation, Dr. Bogacki concluded J.T.M. "clearly developed a strong attachment to her foster mother," and in his opinion, viewed her foster mother as her "psychological parent." He cautioned that J.T.M. "would suffer from greater emotional harm if separated from [her] foster mother than from [her] biological mother, although a confounding factor is that she has made some attachments to her siblings."

S.M. did not testify at trial. Nikiaya Beatty, the Division's caseworker, related the available information regarding S.M.'s current status. Beatty stated S.M. had not obtained housing for the children or secured employment. S.M. continued to attend weekly visits with J.T.M. and the other children, which were supervised by the Division. Beatty discussed the various services extended by the Division and its review of possible relative placements, which were all ruled out as unsatisfactory.

B.

Shortly after J.T.M.'s birth, J.F., who had been released from prison, resided with S.M. and cared for J.T.M. while S.M. worked for about five months. He was not incarcerated from May 3, 2006 to June 4, 2006. From June to December 8, 2006, when he was again incarcerated, there is no evidence J.F. was involved in J.T.M.'s care or renewed contact with her. As a result of J.F.'s failure to report, testing positive for alcohol, and not satisfying ordered fines and penalties, J.F.'s probation was revoked and he was jailed. He was also charged with a new offense after he failed to register as a Megan's Law offender. J.F. was rearrested and incarcerated and not released until March 2008.

Dr. Schwoeri conducted a psychological evaluation of J.F. on April 15, 2008. J.F. confirmed his significant criminal justice entanglements, but emphasized the five-month time period he cared for J.T.M. shortly after her birth. J.F. denied any alcohol or drug abuse, but admitted past moderate alcohol use, which he described as six beers per week.

The results of psychological testing revealed no evidence of gross cognitive impairments. However, Dr. Schwoeri noted J.F. demonstrated poor impulse control and emotional immaturity resulting in the diagnosis of personality disorder (NOS), with features of dependent and histrionic personality.

Dr. Schwoeri completed a bonding evaluation between J.T.M. and J.F. J.T.M. recognized J.F. and "went readily to him when she saw him." J.F. responded to J.T.M.'s overtures, initiated affection and positive interactions and accepted her expressions of autonomy. Dr. Schwoeri found J.T.M. "responded positively to her father, showed signs of reciprocity, and reacted positively to physical closeness to him." However, he concluded, "it is not likely [J.T.M.] has ever had any opportunity to develop an attachment bond to her father despite his early involvement with her since it was before the time at which specific attachment would have developed." While J.F. remained a "familiar figure" to J.T.M., she did not view him as a "psychological parent." Finally, Dr. Schwoeri noted, while J.F. possesses nurturing qualities and capacities for attachment, "there has not been the opportunity for this to occur."

Dr. Schwoeri's trial testimony included the findings and recommendations as set forth in his written reports. In discussing J.F., Dr. Schwoeri opined, "I think he's actually invested in being kind of a good guy and a nice guy and he struck me that way, but I think he does have trouble with handling his . . . impulses and his feelings." He explained, J.F.'s pattern of behavior was not deeply ingrained but had not changed as of the date of trial, which was cause for concern. When asked to characterize the quality of the relationship between J.F. and J.T.M., Dr. Schwoeri replied J.F. was less of a psychological parent to J.T.M. than S.M. He was then asked if he had an opinion about whether J.T.M. would suffer serious injury or harm if J.F.'s parental rights were terminated. He responded in the negative, stating, "because the nature of her experience of him is as . . . a friendly visitor that she's familiar with." Based upon a comparison of J.T.M.'s bonding evaluations with S.M. and her foster mother, Dr. Schwoeri testified J.T.M. "is more specifically and securely attached to her foster mother," and described the two as "a very well- functioning parent/child pair."

At trial, J.F. did not testify. Beatty stated that despite being referred to the Department of Labor for assistance, J.F. "made little effort in securing employment and most importantly incurred new charges" despite knowing of J.T.M.'s birth. J.F. recommenced visits with J.T.M. in March 2008. When DYFS contacted J.F. upon his release from prison, he did not request consideration as the child's principal caregiver. J.F. was unemployed, lived with his mother in an age-restricted home and presented no plans to obtain alternative housing or develop a plan to care for J.T.M.

C.

Following trial, the judge rendered an oral opinion on June 24, 2008. The court dismissed the Division's complaint to terminate S.M.'s parental rights as to S.S. and S.S.M. "on condition that care, custody, and supervision remain with the Division . . . that the Division provide services to the mother, and the children, in the form of housing assistance, employment assistance, continuing drug and alcohol counseling to [S.M.], as needed, and therapy and treatment for [S.S.] and [S.S.M.], with custody being transferred to [S.M.] when housing and financial stability have been achieved." Neither the Law Guardian nor the Division appealed these provisions of the judgment.

As to J.T.M., the court set forth independent findings of fact and stated its conclusions that guardianship should be awarded to DYFS. With respect to S.M., the court noted she admitted the initial harm she caused to the children as a result of her substance abuse. Although S.M. initially had difficulty obtaining treatment for her alcohol problem, she had been drug and alcohol free for the seven months prior to trial. However, based on the testimony and findings of Dr. Schwoeri and the findings of Dr. Bogacki, the trial judge found S.M. had a behaviorally rigid personality, prone toward a repetitive lifestyle, with limited drive or ambition, and that she was socially withdrawn. S.M.'s alcohol recovery was still quite fragile. The court further found S.M.'s housing was inadequate to care for the children even though the Division continued to work with her on this issue. S.M. was unemployed, but attempting to gain full-time employment. She continues to attend parenting classes twice per week, as well as supervised visits during which a positive relationship with S.S. and S.S.M. was observed. Also evident was J.T.M.'s positive interaction with S.M., though she showed no strong emotional attachment to her. Thus, the trial judge concluded, J.T.M. "would suffer from greater emotional harm if separated from her foster mother, rather than her biological mother."

With regard to J.F., the trial judge found: he had no financial stability, possessed inadequate housing, and had prior to trial made it clear to the Division he could not care for J.T.M. Services were not extended because J.F. declined to be considered for reunification efforts to become the child's principal caregiver. Except for the few months following J.T.M.'s birth, J.F. did not extend care or foster his relationship with the child during those periods he was not incarcerated.

The court found J.F. possessed "nurturing qualities and capacities for atonement and responsiveness" to J.T.M., but there was a lack of an attachment bond, based on his absence for the majority of J.T.M.'s life, which allowed the child to develop a strong attachment to her foster mother, whom she considered her "psychological parent."

Viewing the issues from the eyes of the child, the court determined "neither [S.M.] nor [J.F.] . . . [wa]s currently in a position to provide a safe and stable home for [J.T.M.], neither having adequate housing or financial stability at this time." The court noted there was no evidence presented to show when either parent might possibly be in a position to eliminate the harm to the child. Since J.T.M. had been with her current foster mother since November 2006, the trial judge concluded further delay in allowing the child a permanent placement would add to the harm already experienced by being away from her parents due to S.M.'s substance abuse and J.F.'s failure to be involved in her life. Moreover, the court found "the Division has made reasonable efforts to provide services for these parents, and termination of parental rights will not do more harm than good." Regarding this last conclusion, the court stated:

To me, the greatest harm facing [J.T.M.] would be to break the bond . . . which she has formed with her foster parent. It may be argued that in time, and with help, the housing and financial problems can be overcome. The concept of time and how it will affect a particular case is dependent upon the facts. How long a court should be willing to wait depends in part upon the age of the child, A.W. [supra,] 103 N.J. [at 607].

A few months or a year may not be much for an adult, but for a young child, it may be forever. [J.T.M.] does not have that time available to her[.]

It is the [c]ourt's duty to enforce and choose between the parent's rights, and a child's welfare, that which is in the best interest of the child. There can be no solution satisfactory to all in this kind of case. The best interest of the child is often achieved at the expense of the biological parent[.]

Judgment will be entered terminating the parental rights as to [J.T.M.] of J.F. and S.M. Care and supervision will remain with the Division of Youth and Family Services. Custody to remain with the foster parent, with a view toward adoption by the foster parent.

III.

As a threshold matter, the scope of appellate review in a termination of parental rights case is limited. "The factual findings which undergird a judgment in such a case should not be disturbed unless 'they are so wholly insupportable as to result in a denial of justice,' and should be upheld whenever they are 'supported by adequate, substantial and credible evidence.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974); Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 475 (1988)). "[I]n reviewing the factual findings and conclusions of a trial judge, we are obliged to accord deference to the [] court's credibility determination[s] and the judge's 'feel of the case' based upon his . . . opportunity to see and hear the witnesses." New Jersey Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)), certif. denied, 190 N.J. 257 (2007). We also recognize the special expertise of those judges assigned to the Family Part. Cesare, supra, 154 N.J. at 412-13. "However, where the focus of the dispute is . . . alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom, the traditional scope of review is expanded. Still, even in those circumstances we will accord deference unless the trial court's findings went so wide of the mark that a mistake must have been made." New Jersey Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (internal quotations and citations omitted). We next review the arguments advanced by S.M. and J.F.

A.

S.M. first challenges Beatty's testimony regarding prior unsubstantiated referrals made to the Division prior to the final referral resulting in the removal of the children. Because the trial judge cited them in his opinion, S.M. suggests the court accepted them "as if they were true" therefore prejudicing S.M. and warranting reversal.

"'Traditional rules of appellate review require substantial deference to a trial court's evidentiary rulings.'" Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999) (quoting State v. Morton, 155 N.J. 383, 453 (1998)), certif. denied, 163 N.J. 79 (2000); see also Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84, 92 (App. Div. 1991) ("As a general rule, admission or exclusion of proffered evidence is within the discretion of the trial judge whose ruling is not disturbed unless there is a clear abuse of discretion.") We give "substantial deference" to the trial judge's evidentiary rulings. Benevenga, supra, 325 N.J. Super. at 32 (citations omitted). Since there was no objection at trial, we additionally note our review is made using the plain error doctrine such that we disregard an error unless it is "clearly capable of producing an unjust result." R. 2:10-2; Bonitsis v. N.J. Inst. of Tech., 363 N.J. Super. 505, 524 (App. Div. 2003), rev'd on other grounds, 180 N.J. 450 (2004).

We reject S.M.'s contention. The context of the court's reference of the prior DYFS involvement was the recitation of historical events explaining the Division's involvement. Importantly, most of those referrals were unsubstantiated -- meaning they could not be confirmed or refuted -- not unfounded, which means they were not true. In any event, after an initial denial, through rehabilitation S.M. admitted her longstanding daily drug and alcohol abuse, which formed the basis of many of these referrals. It is S.M.'s admission, along with the Division's investigation on September 12, 2006, which satisfied the first statutory prong of harm to the children. We discern no error warranting reversal.

S.M.'s remaining points challenge the trial court's factual findings suggesting the Division failed to sustain its burden to prove the second, third and fourth prongs of the statutory test of N.J.S.A. 30:4C-15.1, by clear and convincing evidence. Specifically, S.M. argues the court's finding that the Division aided her search for housing was inaccurate. S.M. suggests the failure to obtain adequate housing, which the court found significant in making its final determination, resulted from the lack of assistance provided by DYFS. Alternatively, S.M. seeks additional time to obtain a two-bedroom apartment.

S.M. also argues the court's findings were flawed because S.S. and S.S.M. were conditionally returned to her care. S.M. suggests the harm to all three children was the same, and she alleviated that harm to the extent the older children were to be reunited. S.M. argues it is illogical that she could eliminate the harm for two children but not the third, so her parental rights to J.T.M. should not have been terminated.

Finally, S.M. suggests the court weighed too heavily its finding that J.T.M. would suffer harm due to separation from her foster mother. Although there is an admitted bond between J.T.M. and her foster mother, S.M. argues this is an insufficient basis to terminate parental rights.

At oral argument before this court, S.M. filed a motion and certification to supplement the record in support of her appeal. S.M. states she and J.F., the infant's father, intend to "live together to support their children in a family setting." S.M. awaits the return of S.S. and S.S.M to her care. She secured full-time employment at a fast-food restaurant, however she did not disclose the amount of her income; she obtained a two-bedroom apartment where she proposes to allow her two female children to sleep in one bedroom, her two male children to sleep in the other bedroom and she would occupy the living room; and she continues aftercare treatment and has not tested positive for illicit substances or alcohol.

S.M.'s assertions and effort to supplement the record are opposed by the Division and the Law Guardian. The Division also filed an application to remove the infant after his birth. A factfinding hearing determined whether the infant suffered abuse and neglect while in S.M.'s care, pursuant to N.J.S.A. 9:6-8.21 and N.J.S.A. 30:4C-12. The court stated its findings in orders dated December 10, 2008 and March 10, 2009, including: S.M. did not seek pre-natal care while pregnant; a drug test administered in November 2008 revealed S.M. tested positive for PCP; and S.M. had unstable housing. The Division caseworker in that matter, Chy'Vonne Gardiner, certified that hair follicle testing on S.M. was positive for: (1) PCP at the infant's birth and on January 23, February 17, July 8, and August 3, 2009; (2) marijuana on March 3, 2009; and (3) ecstasy on August 3, 2009. Also, at the time of the infant's birth, J.F. was again incarcerated. We note J.F. has since been released and he appeared at oral argument. The infant has since been removed from S.M.'s care, S.S. and S.S.M. remain in foster care, and DYFS renewed its request for their guardianship in a complaint filed on June 30, 2009.

The trial court identified S.M.'s substance abuse, her lack of housing and insufficient ability to provide financial support for the children as the harms warranting their out-of-home placement. While S.M. completed substance abuse rehabilitation and as of the trial date was sober for eight months, the court credited Dr. Schwoeri's opinion, which stated "she needs more time" to assure against a relapse after an over six year drug and alcohol dependence. S.M.'s expert, Dr. Bogacki, also concluded her polysubstance abuse was only in "partial remission." At the time J.T.M. was removed, S.M. could not remember where she left the infant. This event actualizes the effect of S.M.'s drug and alcohol abuse. Her addiction and affiliation with J.F. also resulted in various criminal convictions. The supplemental information included in the motion reveals she has relapsed in her sobriety causing the Division to again refer her for drug rehabilitation. It is evident S.M. has not yet conquered the demons of her addiction despite her best intentions. Thus, the harm to J.T.M. has not been abated.

S.M.'s argument suggesting the Division failed to extend reasonable efforts to achieve reunification, particularly in securing housing for S.M. and the children, is unpersuasive. We agree the trial judge failed to fully articulate the numerous services extended to S.M. since 2006, nevertheless, the record is replete with this information. Beatty's testimony and the case notes included mention of possible relative placements and a myriad of substance abuse treatments, parenting classes, counseling, transportation and visitation programs offered to effectuate reunification. In addition, each child was provided with individualized care. As Beatty testified, the Division has no housing to offer. S.M. was given the available information and requested no other assistance. There is no evidence that her limitations prevented her from applying for rentals or that a caseworker's assistance was necessary for S.M. to understand the apartment lease application or view available units.

The court's conclusion -- that S.M.'s failure to secure housing and employment impeded any reunification with J.T.M. -- was justified based upon the evidential record. Also, the court did not err in distinguishing the separate needs of the older two children from those of J.T.M. S.S. and S.S.M. experienced behavioral problems, which are partially linked to the fact that they are no longer with their mother. S.S. was nine and S.S.M. seven when first placed in foster care. Notwithstanding the abuse and neglect, they recognize S.M. as their mother and are very attached to her. Additionally, the Division had not secured an adoptive home placement for S.S. or S.S.M. Thus, given their age, bonding and circumstances an award of guardianship was not clearly and convincingly established.
New Jersey Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104-05 (2008).

On the other hand, J.T.M. was ten months old when she was removed. Her current placement was secured prior to her first birthday. Her bonding to S.M. is not the same as the attachment felt by her siblings. Furthermore, DYFS presented clear and convincing expert evidence that termination would not do more harm than good, as the child is intensely bonded to her foster mother. S.M.'s desire to care for her daughter and her other three children and her struggle to terminate her drug and alcohol dependence are admirable. However, the efforts, which have not yet resulted in complete success, were advanced too late to benefit J.T.M. The evidence clearly and convincingly establishes J.T.M.'s emotional health would be shattered if removed from her foster mother's care.

"A child is not chattel in which a parent has an untempered property right" and should not "be held prisoner of the rights of others, even those of his or her parents. New Jersey Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 110-11 (App. Div.), certif. denied, 180 N.J. 456 (2004). The emphasis of the Federal Adoption and Safe Families Act of 1997, Pub. L. No. 105-89, 101(a), 111 Stat. 2115 (1997), has shifted from protracted efforts for reunification with a birth parent to an expeditious, permanent placement to promote the child's well-being. See N.J.S.A. 30:4C-11.3 ("When determining whether reasonable efforts are required to reunify the child with the parent, the health and safety of the child and the child's need for permanency shall be of paramount concern to the court."); see also C.S., supra, 367 N.J. Super. at 111. J.T.M.'s right to a permanent, safe, and stable home rises above S.M.'s parental rights. In re Guardianship of K.L.F., 129 N.J. 32, 43-44 (1992); C.S., supra, 367 N.J. Super. at 110. The judgment of guardianship must be affirmed.

B.

J.F.'s challenge on appeal suggests the court's determination is against the weight of the evidence. He argues the Division did not prove he caused direct harm to the child and the evaluations showed no impediment or addiction precluding parenting. Moreover, DYFS made no efforts to achieve his reunification with J.T.M. No services were extended while he was imprisoned and trial occurred just months after his release, an insufficient time frame to fully reintegrate into society. J.F. maintains he "stood willing and able" to care for J.T.M. if given a reasonable time to do so. He asserts the trial court presumed J.T.M. was better off with her foster mother, contrary to the statutory imperative favoring reunification. We reject these arguments.

The focus of the best interests test stated in the first prong is the effect of the harm, caused by the parent-child relationship, to the child's health and development. P.P., supra, 180 N.J. at 506; K.H.O., supra, 161 N.J. at 348. The absence of physical abuse is not conclusive on the issue of harm, since the court must consider psychological and developmental injury to the child as well. In re Guardianship of R., G. and F., 155 N.J. Super. 186, 194 (App. Div. 1977). Indeed, a parent's withdrawal of solicitude, nurture and care for an extended period of time has been recognized as a harm that endangers the health and development of a child. In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999). Further, prolonged inattention to a child's needs, which encourages the development of a bonding relationship to foster parents, the severing of which would cause profound harm, has also been recognized as harmful. New Jersey Div. of Youth & Family Servs. v. B.G.S., 291 N.J. Super. 582, 592 (App. Div. 1996).

On this score, it has been recognized that while by no means dispositive as a matter of law, "the incarceration of a parent is a relevant factor in determining whether the parent-child relationship may be terminated[,]" because a "parent's incarceration may be a substantial obstacle to achieving permanency, security, and stability in the child's life." In re Adoption of Children by L.A.S., 134 N.J. 127, 135, 139 (1993). To be sure, the effect of a parent's incarceration on the parent-child relationship is extremely fact sensitive. Id. at 139, 143. By the same token, however, "once a parent is imprisoned, a relationship with one's children that was nonexistent prior to incarceration will not likely be fostered." Id. at 139.

Once he was released from prison in February 2008, J.F. was asked by the Division whether he would assume the responsibility to care for his child. He declined and affirmatively stated he was not in a position to do so. Only when faced with a likely termination of his parental rights did J.F. assert interest in reunification. Even so, he has no plan, no stability, no job, no place for the child to live, and offered no evidence of when he might reasonably achieve these necessities. We are satisfied J.F. is not in a position to parent J.T.M. His absence for most of her life, along with his failure to protect the child from her drug addicted alcoholic mother, harmed the child. Although physically, psychologically and financially able to assume parental responsibilities, J.F. directed his energy and focus in other directions. His prolonged absence causes the harm to continue, as J.T.M. views him only as a familiar person not a parent.

We also find unpersuasive J.F.'s argument that DYFS prevented his continued connection to the child by not offering services while he was incarcerated or after his release even though he declined consideration for J.T.M.'s placement. J.F.'s choices separated him from his daughter. Rather than choosing to comply with probation and provide for J.T.M., J.F.'s actions caused repeated incarceration, resulting in what is now noted as a very limited attachment.

The strong bond to her foster mother and the harm upon severing that relationship, as discussed above, cannot be overcome by J.F.'s suggestions that he now can provide for her. Termination would not do more harm than good, and the judgment terminating parental rights should not be set aside.

IV.

After considering the record and briefs in light of the applicable law, we are satisfied the trial judge's findings and conclusions are adequately supported by substantial, credible evidence in the record as a whole. See, e.g., New Jersey Div. of Youth & Family Servs. v. A.R.G., 361 N.J. Super. 46, 78 (App. Div. 2003), aff'd in part, modified in part, and remanded, 179 N.J. 264 (2004). The record contains clear and convincing evidence that the Division has satisfied all four prongs of N.J.S.A. 30:4C-15 as to each parent. We will not disturb the June 24, 2008 judgment awarding guardianship of J.T.M. to DYFS.

Affirmed.

S.M. and J.F. filed separate appeals on August 20, 2008 and October 31, 2008, respectively. This court consolidated the matters by order dated December 2, 2008.

A fourth child was born approximately six months after the trial in this matter.

Between July 2001 and September 2006, the Division received seven additional referrals regarding S.M.'s substance abuse, her failure to supervise the children and insufficient housing. None of the referrals were substantiated.

DYFS investigated the following relatives for possible placement of the children: S.M.'s mother; a maternal aunt; A.V., a family friend with whom the children had been placed until she requested their removal; and S.S.'s paternal grandmother.

S.M. admitted abusing alcohol and marijuana daily along with regular PCP and occasional narcotic pain reliever use.

The motion was also supported by counsel's certification, in violation of Rules 1:6-2(c) and 1:6-6, which we did not consider.

(continued)

(continued)

36

A-6314-07T4

RECORD IMPOUNDED

September 4, 2009