DIVISION OF YOUTH AND FAMILY SERVICES v. M.M.K.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1771-08T41771-08T4

A-1974-08T4

DIVISION OF YOUTH AND

FAMILY SERVICES,

Plaintiff-Respondent,

v.

M.M.K.,

Defendant-Appellant.

_______________________________

IN THE MATTER OF THE

GUARDIANSHIP OF A.R.K.,

a Minor.

_______________________________

DIVISION OF YOUTH AND

FAMILY SERVICES,

Plaintiff-Respondent,

v.

D.L.,

Defendant-Appellant.

_______________________________

IN THE MATTER OF THE

GUARDIANSHIP OF A.R.K.,

a Minor.

__________________________________________________________

 

Argued March 3, 2010 - Decided

Before Judges Stern, Graves and Sabatino.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Passaic County,

Docket Nos. FG-16-104-08 and FN-16-117-06.

Madeline Marzano-Lesnevich argued the cause

for appellant M.M.K. (Lesnevich & Marzano-

Lesnevich, LLC, attorneys; Ms. Marzano-

Lesnevich, of counsel; Scott Adam Laterra,

Sarah J. Jacobs, and Jeffrey B. Hodge, on the

brief).

Richard S. Mazawey argued the cause for

appellant D.L.

Geraldine O. Livengood, Deputy Attorney

General, argued the cause for respondent

(Paula T. Dow, Attorney General, attorney;

Andrea M. Silkowitz, Assistant Attorney

General, of counsel; Ms. Livengood, on the

brief).

Christopher A. Huling, Assistant Deputy Public

Defender, argued the cause for respondent A.K.,

a minor (Yvonne Smith Segars, Public Defender,

Law Guardian, attorney; Mr. Huling, on the brief).

PER CURIAM

In these consolidated appeals, defendant M.M.K. is the biological father and defendant D.L. is the biological mother of A.R.K. (fictitiously, Ahmad), who is almost six years old. Defendants appeal from a judgment entered on October 30, 2008, terminating their parental rights and granting guardianship of Ahmad to the Division of Youth and Family Services (DYFS or the Division). Based on our examination of the record and the applicable law, we conclude that the trial court's decision to terminate parental rights is supported by clear and convincing evidence. Consequently, we affirm.

At the outset, we restate the well-settled principle that a parent's right "to raise a child and maintain a relationship with that child, without undue interference by the state, is protected by the United States and New Jersey Constitutions." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 102 (2008) (citing Stanley v. Illinois, 405 U.S. 645, 651-52, 92 S. Ct. 1208, 1212, 31 L. Ed. 2d 551, 558-59 (1972); In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999)). Notwithstanding the fundamental nature of the parent-child relationship, parental rights are not absolute. "The constitutional protection surrounding family rights is tempered by the State's parens patriae responsibility to protect the welfare of children." K.H.O., supra, 161 N.J. at 347. Therefore, in appropriate cases, "if the child is at risk of serious physical or emotional harm," the State may seek to terminate parental rights. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (citing Parham v. J.R., 442 U.S. 584, 603, 99 S. Ct. 2493, 2504, 61 L. Ed. 2d 101, 119 (1979)).

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 parent has not cured the initial cause of harm and will continue to cause serious and lasting harm to the child." Ibid.

While acknowledging the fundamental nature of parental rights, the Legislature has also recognized that "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. That standard, initially formulated by the Court in N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986), and codified in N.J.S.A. 30:4C-15.1(a), requires the State to establish the following criteria 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.

In this case, the guardianship trial took place on fifteen days between June 23 and October 30, 2008. At the time of trial, M.M.K. and D.L. were still married but were not living together. In his opening statement, M.M.K.'s attorney advised the court that M.M.K. wanted Ahmad returned to D.L., and that M.M.K. intended to exercise his right to visitation with Ahmad. When he testified, M.M.K. explained that Ahmad "needs a mother and he needs me, but he needs a mother more." However, the law guardian for Ahmad supported the Division's position and argued it was in Ahmad's best interest to terminate the parental rights of both parents so that he could be adopted by his current foster family.

In a comprehensive oral decision on October 30, 2008, the trial court explained its reasons for terminating the parental rights of both the mother and the father. In its decision, the court noted there was no expert testimony to rebut the findings and conclusions of the two psychologists who testified for the Division and, to a large extent, the court relied on their testimony:

It is important to recognize there has been no expert testimony offered . . . by either the mother or father to rebut the opinions and/or conclusions reached by . . . Dr. [Nadelman] or Dr. Nelson.

It is clear in this case that we are not dealing with allegations of any physical abuse by either parent to the child [Ahmad]. [On] the other hand there is clear testimony of emotional abuse and/or harm not only to [Ahmad] but to the other children as well.

Furthermore, it's interesting to note that at no point during the course of this case did anyone indicate or recommend that [Ahmad] should return to his father. The emotional harm [in] this matter came from both [D.L.] and [M.M.K.] as evidence by the expert testimony provided. Additionally the fact that [D.L.] continues to refuse to recognize the harm that she has placed upon the children only demonstrates her inability to eliminate it.

On appeal, M.M.K. and D.L. primarily argue that the Division failed to establish each of the four statutory factors set forth in N.J.S.A. 30:4C-15.1(a). We do not agree.

D.L. was born in Kansas City, Missouri in 1969. At some point, she converted to the Muslim religion. In 1991, D.L. married her first husband, S.E., in a religious ceremony. On April 4, 1992, they were married in a civil ceremony in Egypt. D.L. and S.E. had three sons. Their oldest son, I.E., was born in 1993; A.E. was born in 1995; and K.E. was born in 1996.

The Division became involved with the family in 1999 as a result of referrals regarding domestic violence, neglect, and family problems. In March 2001, D.L. and S.E. were divorced. A few months later, in July 2001, the court temporarily transferred legal custody of D.L.'s three sons to DYFS pending an investigation. Following the investigation, legal custody was returned to D.L.

M.M.K. was born in Egypt in 1969. In September 2002, he visited his brother in the United States and met D.L. at a mosque. On June 27, 2003, they were married in an Islamic ceremony. They were subsequently married in a civil ceremony.

On August 23, 2003, M.M.K. was arrested for hitting D.L. and two of her boys with a stick, causing bruises. According to the police report, M.M.K. was angry because D.L. allowed the boys to call their father in Egypt for his birthday. Criminal charges were filed against M.M.K., and he entered guilty pleas to endangering the welfare of both children. During the plea hearing on February 18, 2004, M.M.K. testified as follows:

Q. On August 23rd of last year, were you at home with your wife?

A. Yes.

Q. And were the two boys, whose initials are A.E. and K.E., home also?

A. Yes.

Q. . . . A.E. was eight at the time, and K.E. was seven at the time. Is that right?

A. Yes.

Q. All right. Now you indicated earlier that you were having a dispute with your wife and it began to get somewhat physical, with pushing and shoving. Is that correct?

A. Yes.

Q. . . . And the two boys may have heard something, or hearing yelling or whatever, and came into the room. Is that correct?

A. Yes.

. . . .

Q. You had a . . . stick, then, that was about 18 inches long?

A. Yes.

Q. All right. And you said you were waving it at your wife. Is that correct?

A. Yes.

Q. Did you actually hit your wife with it?

A. Yes.

Q. All right. And what part of her body did you hit her on?

A. Her arm.

Q. Her left . . . arm by her shoulder area?

A. Yes.

Q. All right. And what did the boys do, or what did you do to the boys? What . . . happened next?

A. The kids jumped on me, so I hit them so they would keep away from me. That's it.

. . . .

Q. And you hit both of the boys with the stick?

A. Yes.

. . . .

Q. And you acknowledge that by hitting these children under these circumstances, you caused that bruising. Is that correct?

A. Yes.

Pursuant to a plea agreement, M.M.K. was admitted into a pretrial intervention (PTI) program on condition that he have no contact with D.L.'s three sons. In addition, the PTI order prohibited M.M.K. from coming within 200 feet of D.L.'s home. The criminal charges against M.M.K. were eventually dismissed after he successfully completed the PTI program.

Notwithstanding the assaults on August 23, 2003, which resulted in the criminal charges, D.L. and M.M.K. were married in a civil ceremony on November 11, 2003. A week later, on November 18, 2003, D.L. filed a complaint against M.M.K. for simple assault and harassment and obtained a domestic violence temporary restraining order (TRO) against him. In support of her request for the TRO, D.L. testified as follows:

Last night he kept sticking his fingers in my neck and told me should I kill you now, should I kill you now? He put his hand here and said, you know I could kill you very easily and he put his fingers in front of my eyes and said . . . you want to see your ex so bad, what if I poke your eyes out and you won't be able to see him again. And then he started threatening me and telling me . . . you want to be with your ex so bad, you want to be with him so bad, you guys are gonna be together in the federal pen. He said I'm gonna go and tell the FBI you guys are terrorists and you're plotting this and this and that.

Q. Are you afraid of him?

A. Yes, very.

D.L. did not request a final domestic violence restraining order, however, and the TRO and the municipal court complaint were both dismissed.

Ahmad was born on April 19, 2004. On June 26, 2004, while M.M.K. was still in the PTI program, DYFS substantiated an allegation of neglect by D.L. for permitting M.M.K. to enter her home in violation of the PTI order.

Unfortunately, on October 25, 2005, when D.L.'s oldest son, I.E., was twelve years old, he committed suicide. Following his death, D.L. and her three children stayed at a women's shelter where they obtained mental health services through the Mental Health Clinic of Passaic. D.L. and her children returned to their home in Paterson in December 2005.

On February 10, 2006, the Paterson Police Department responded to a complaint of domestic violence at D.L.'s residence. Upon arrival, the police heard loud yelling and screaming, and D.L. told the police that M.M.K. had hit her four times with a stick and then locked himself in a bedroom with Ahmad, after D.L. told him to leave the house. M.M.K. was arrested for aggravated assault, but D.L. refused to apply for a TRO and the police referred the matter to DYFS.

On February 15, 2006, a DYFS caseworker went to D.L.'s residence to interview her. D.L. acknowledged the incident five days earlier, but denied M.M.K. "touched the children." She explained that M.M.K. stayed with her three or four days a week, and they were having an argument. D.L. also claimed the incident was "blown out of proportion," and she refused to sign a case plan to prohibit M.M.K. from returning to her home.

The same day, another caseworker went to the Partial Care Program in Clifton to interview the children. One of the school counselors reported that D.L. had called the school to prohibit anyone from talking to her sons. After the caseworker explained to the counselor that DYFS could speak with the children without the parents' permission, the caseworker proceeded to interview A.E. and K.E.

A.E., then ten years old, told the caseworker that his stepfather picked up a "wooden stick of art" and hit his mother with it during an argument. According to A.E., D.L. told M.M.K. to leave and he "jumped on her to scare her off." When the caseworker asked A.E. if this was the first time that something like this happened, he said it happened "2 or 3 other times." The caseworker asked A.E. if his stepfather had done anything to him and A.E. stated that his stepfather had "pushed him around" when his mother and stepfather fight. A.E. also told the caseworker he was afraid of his stepfather and worried about what he might do when he got out of jail. The caseworker then asked A.E. if he ever told his mother he was afraid of M.M.K., and A.E. stated he had told his mother but she just said "I'll take care of it and don't worry about it."

The caseworker also interviewed K.E., who was nine years old. K.E. told the caseworker his stepfather hit his mother with a wooden stick and also with his fist. The caseworker asked K.E. where he was when this was going on, and K.E. stated he was trying to break up the fight between his mother and stepfather, but his stepfather pushed him away. The caseworker then asked K.E. if his stepfather ever did anything to him or his brothers, and K.E. replied that M.M.K. had "punched and slapped him and his brother [A.E.], but [M.M.K.] doesn't do anything to his little brother [Ahmad]." K.E. also told the caseworker that he was "a little afraid" of his stepfather and did not want to see him again. When the caseworker asked K.E. if he had ever told his mother he was afraid of his stepfather, K.E. stated he had not told his mother "because she should already know this."

After D.L. refused to sign the case plan that would have prevented M.M.K. from returning to her home, DYFS served her with an emergency removal notice. D.L. immediately became upset and yelled at the children, "DYFS is here to take you because when the lady went to the program you lied to her and told her that your dad had hit me." According to the caseworkers, A.E. and K.E. were "very distraught," and A.E. replied, "Mama I didn't lie, he did hit you." D.L. continued to yell at the boys for lying to the "DYFS lady" until K.E. threatened "to kill himself" and A.E. said he was going to run away. At that point, D.L. stated, "my older son killed himself in this apartment, do you want that to happen again"?

When the emergency removal was completed, the three children were placed in a foster home until the court could review the matter. Two days later, on February 17, 2006, the court heard testimony and determined the removal of the children was necessary and appropriate. The judge made the following handwritten notation on the order that was entered: "DV incident @ home (repeat incident) prior PTI to DV assault by husband; children witnessed the incident, mother told police assaulted by husband, pressured children about talking to DYFS and interfered with DYFS access, refused to sign case plan restricting husband's access."

On May 15, 2006, M.M.K. and D.L. were both represented by counsel when they stipulated that on February 10, 2006, they "engaged in a heated argument with physical contact between them in the presence of the children which exposed the children to the risk of emotional harm." Thus, the circumstances that resulted in Ahmad's emergency removal are not seriously disputed.

On April 18, 2006, the day before Ahmad's second birthday, DYFS placed him in the foster home of J.F. (foster mother) and B.F. (foster father), where he remains to date. Both foster parents testified during the trial, and stated they wanted to adopt Ahmad if the parental rights of his natural parents were terminated.

After the children's removal, D.L. began attending domestic violence and parenting programs on her own. She also received services for depression at the Passaic County Women's Center, and attended battered women's meetings at Strengthen Our Sisters, Inc. From March 13, 2006, through May 1, 2006, she participated in an eight-week course in parenting at Positive Parenting in West Milford.

On May 1, 2006, D.L. enrolled in a twenty-six-week course on domestic violence at the Challenge Program of New Jersey, Inc. (the Challenge Program), an alcohol and drug treatment center and mental health center. Raymond Dorritie, Executive Director of the Challenge Program, moderated the group session, which D.L. successfully completed in November 2006. D.L. also attended individual counseling sessions with Dorritie. Beginning August 1, 2006, and continuing at least through the trial, D.L. attended weekly individual counseling sessions with Elizabeth Marton-Soltis, Director of Outpatient Services at the Mental Health Clinic of Passaic.

In 2007, M.M.K. participated in the Challenge Program's twenty-six-week course on anger management, and attended individual counseling sessions with Dorritie. He also completed the Positive Parenting course, and received psychological counseling from a Muslim therapist at Barnert Hospital.

M.M.K. and D.L. completed all the required services through the Challenge Program and voluntarily repeated some courses. At the time of trial, M.M.K. was still participating in the group sessions on an as-needed basis, and D.L. was still attending individual therapy sessions with Dorritie and Marton-Soltis.

At the Division's request, Alice Nadelman, Ph.D. (Nadelman), a licensed psychologist, evaluated M.M.K., D.L., and D.L.'s first husband, S.E. She spent forty-five hours conducting in-person assessments, more than ten hours of collateral phone contact, and twenty-five hours reviewing documents. Nadelman also interviewed M.M.K. twice in September 2006, and twice in October 2006, and administered psychological tests. During the interview on September 13, 2006, D.L. called M.M.K. on his cell phone. At first, M.M.K. denied his wife had called, but then admitted it when Nadelman asked to see the numbers on his phone. Nadelman then called D.L. on her cell phone to confirm that she had been speaking with M.M.K. D.L. initially denied calling her husband. However, she subsequently admitted she lied because she was afraid that M.M.K. would be angry with her.

In her preliminary report dated December 8, 2006, Nadelman noted that M.M.K. "denied all wrong-doing" notwithstanding his guilty pleas to endangering the welfare of his two stepchildren:

[M.M.K.'s] basic position, which he repeated over and over, was that he has been a good husband and father and that [S.E.] has destroyed his family by harassing his wife, calling and coming to the house to see [A.E.] and [K.E.] and calling the police against him for no reason. [M.M.K.] denied all wrong-doing, including having hit [D.L.] in August 2003, despite his guilty plea. He insisted that he was made to plead guilty because everyone was against him, including the Judge, prosecutor and his own attorney. [M.M.K.] appeared to be obsessed with [S.E.] and the ongoing relationship between [D.L.] and [S.E.] about their sons. . . .

. . . .

[M.M.K.] was unable and/or unwilling to accept any responsibility for his own actions which have resulted in repeated police involvement over the past 3 years. Even though [S.E.] was out of the country on 8/22/03, when [M.M.K.] was arrested for domestic violence against [D.L.] and the boys, he blamed [S.E.]. Even though the children were removed in February 2006 for domestic violence between himself and [D.L.], he blamed [S.E.].

Like [D.L.], [M.M.K.] was less than honest about their current relationship. From the beginning they both stated that they were separated, living apart and having no contact so she could regain custody of the children. This was proven false by numerous incidents. [M.M.K.] showed me the same pictures of himself with his step-sons that [D.L.] had shown me. He also had pictures of the boys from visits with their mother, and numerous documents which he could only have gotten from [D.L.]. She called him during our evaluation session of 9/13/06, although both initially lied about it.

. . . .

[M.M.K.] presented as emotionally volatile, demanding and easily frustrated when he did not get his way. He became agitated and yelled repeatedly during this evaluation, as he did during an earlier evaluation with Dr. El Rafei. Clinically, [M.M.K.] showed significant narcissism and seemed unable to separate his needs and desires from those of others. He has been unable to understand or accept how his actions have harmed his wife, step-sons and son. Of greatest significance, his obsession with his wife's former husband, [S.E.], has prevented him from acknowledging or examining his own behavior especially his explosiveness and impulsivity. He has accepted no responsibility for the behavior that resulted in at least 3 arrests for domestic violence and ultimately caused the removal of the children by DYFS. Whatever his degree of actual physical aggression toward [D.L.] and the boys, he was sufficiently threatening for the police to arrest him. [M.M.K.] lied numerous times during this evaluation. Like [D.L.], his credibility is questionable, at best.

Nadelman conducted clinical interviews with D.L. twice in July 2006, once in October 2006, and twice in November 2006. The doctor also observed D.L.'s interactions with her children and administered standardized tests. In her preliminary report, Nadelman's findings with regard to D.L. included the following:

[D.L.] presented as a troubled, dependent and depressed 37 year old woman with a self-reported history of abuse, rejection and trauma. She has acknowledged lying repeatedly in the past, and can be very convincing when she lies, so it is difficult to determine which of her reports are actually true. According to her own accounts, she has rarely been self-supporting since she left her father's home at 18 years, but has jumped into intense, conflictual relationships with men she has known only briefly so they could take care of her. These men have been demanding, controlling and according to [D.L.], physically and verbally abusive toward her. She has been unable to extricate herself from these relationships but has gone back and forth repeatedly with accusations, explosive episodes, separations, and reconciliations.

[D.L.] has not demonstrated the ability to protect her sons from the volatility and violence in her own life. She did not enforce Restraining or No Victim Contact orders, which inflamed the ongoing custody battle with [S.E.]. Of greater concern, she has involved her sons in her own lies against her current husband, and likely against their father. When she has made accusations, they have made accusations; when she has recanted, they have recanted; when she has sung the praises of [M.M.K.,] they have sung his praises; when she has given negative messages about [S.E.], they have rejected him; when she has given positive messages, they have been willing to enjoy their time with him. [A.E.] and [K.E.] have made allegations against their father and stepfather using almost the exact words their mother had used. It is not clear how [D.L.] has wielded such emotional control over her sons, although it seems more due to their feeling responsible for her well-being than their being afraid of her. This was likely a tremendous burden for the oldest son, [I.E.], who was reported emotionally fragile and described as exhibiting behavioral problems from early childhood. More than his younger brothers, [I.E.] was caught in the middle of the never-ending battle between his parents.

In the same report, Nadelman stated:

There is significant evidence that [D.L.] and [M.M.K.] have lied repeatedly about their relationship and the conflict between them during the 3 1/2 years of their marriage. [D.L.] has admitted that she encouraged her sons to endorse her lies about their stepfather, both positive and negative. It cannot be determined whether [D.L.'s] allegations of abuse against [M.M.K.] or her recantations and supportive statements are true. However, there is evidence that there was frequent verbal fighting between them and at least moderate physical contact involving pushing. There have been numerous police calls to their apartment. Chief Wittig of the Paterson police told me that there have been multiple police reports over the past 3 years from both parties against the other. This type of repeated fighting and police involvement has been shown to be emotionally damaging to children, especially if they are made to take sides.

. . . .

Once there was a Restraining Order and No Victim Contact Order against [M.M.K.], [S.E.] became determined to keep [M.M.K.] away from his sons, despite their mother's willingness to violate the Orders and permit contact. It cannot be determined whether [S.E.] was primarily motivated by a desire to protect his sons or to disrupt his ex-wife's second marriage, but he clearly made repeated efforts to prevent [M.M.K.] from being with his sons. [S.E.] even applied to Court to gain residential custody of his sons based on [M.M.K.'s] violating the No Victim Contact Order, but his petition was denied by Judge Rothstadt on 2/1/05. Judge Rothstadt did order that [D.L.] not allow contact between [M.M.K.] and her 3 older sons and not allow [M.M.K.] into the family home. However, it is clear that [D.L.] never followed this Order and that [M.M.K.] continued to live with the family. Judge Rothstadt even wrote that if [D.L.] violated his Orders he would consider transferring custody to [S.E.] or to DYFS, but this was not pursued.

Thus, continued the nightmare of the boys being caught in the middle of the recurrent fights between their mother and step-father, as well as the ongoing custody battle between their parents, involving mutual charges of abuse and neglect. The boys endured charges, counter-charges, allegations, recantations, police involvement, arrests and Restraining Orders. They lived with lies, distortions and pressures to support one adult against another. During this period, [Ahmad] was a baby, also growing up in this battlefield.

In Nadelman's opinion, M.M.K. was "not a viable parent" due to his "volatility, explosive outbursts and denial of his own problems." However, Nadelman felt there was a possibility that D.L. "could learn to become a competent, non-abusive and protective parent to [Ahmad]," if she engaged in meaningful therapy and parent training, and if D.L. and M.M.K. agreed that D.L. would have custody of Ahmad, M.M.K. would have supervised visitation, and M.M.K. would "not interfere with her parenting."

Nadelman had further contact with D.L. on February 27 and 28, 2007, and March 7, 2007, for a total of five hours. She also had further contact with S.E. on March 7 and 20, 2007, and met with D.L., S.E., A.E., and K.E. on March 7, 2007. In her second report dated March 12, 2007, Nadelman noted A.E. was returned to his father's custody on March 5, 2007, and K.E. was scheduled to begin living with his father, S.E., in two or three months. Nadelman stated that the "primary unresolved issue" was whether D.L. and M.M.K. were actually separated and pursuing their own lives, "or whether this is a fabrication so that [D.L.] can obtain custody of their son." According to Nadelman, D.L. "stated adamantly and repeatedly to DYFS, her therapists and myself, that she and M.M.K. are separated, will be divorced and will not raise [Ahmad] together." Nadelman further reported, however, that M.M.K. told her "he would separate from his wife if necessary to regain custody of his son, but that he did not really want to do so."

In her second report, Nadelman stated the essential condition for reunification of Ahmad with his mother "would be verification that [D.L.] is no longer involved with [M.M.K.], as she has insisted. If this is found to be untrue, it would be impossible to believe her or to work with her on making a safe plan for [Ahmad]." On the other hand, if D.L. and M.M.K. "really separated" and D.L. was "working with her therapists in an honest and meaningful manner," then Nadelman believed that Ahmad could be returned to his mother.

Nadelman advised DYFS to check D.L.'s cell phone records and to take other measures to determine whether D.L. was still involved with M.M.K. Nadelman explained:

It is essential that the circumstances of [M.M.K.] being at [D.L.'s] home and signing for a delivery be investigated by DYFS. In addition, DYFS should determine what belongings of [M.M.K.] remain at [D.L.'s] apartment and how he can remove them. DYFS should make unplanned visits to the home to determine [M.M.K.'s] presence or absence. [D.L.'s] cell phone records should be checked to determine her phone contact with [M.M.K.] These may seem like drastic measures, but they are required after almost 3 years of conflict as well as ever-changing allegations, accusations, and police involvement. [Ahmad] cannot be subjected to a harmful environment of repeated emotional and physical violence, charges and counter charges, between his parents, which was so detrimental to his older brothers.

At the initial permanency hearing in May 2007, Nadelman's testimony was consistent with her written reports. She recommended that Ahmad be returned to his mother even though she had "concerns about D.L.'s honesty" because there would be fewer risks "than the other potential permanency options." When Nadelman was asked whether she could say "with a degree of psychological certainty that it was safe to return [Ahmad] to his mother," she testified as follows:

I can say . . . with a reasonable degree of psychological certainty that there are risks to returning [Ahmad] to his mother, but that she has the basic willingness and capacity to provide him with at least a minimum degree of safety. I would feel . . . more strongly . . . in saying that there was minimal risk, if I had the answers to the questions that I raised earlier. And if those answers come out to be negative that in fact [D.L.] and [M.M.K.] are continuing to pursue a relationship and are in fact lying to everybody about it, then that would move me in the other direction and I would change my recommendation.

. . . .

Q. You asked [D.L.] for her cell phone number?

A. [D.L.] told me that she submitted [her telephone records] to the Court. But . . . the information that I have from the Division is that they've never received them.

In June 2007, K.E. began living with his father, S.E., and on September 12, 2007, the court transferred physical and legal custody of A.E. and K.E. to S.E. The court also approved the Division's reunification plan for D.L. and Ahmad.

Meanwhile, the Division's records from 2006 and 2007 confirm that Ahmad was happy to see his mother and father during their weekly visits. The same records reveal that Ahmad had trouble with transitions, and sometimes became upset when the visitation sessions ended. Likewise, he sometimes became upset when he had to leave his foster mother.

In a letter dated December 19, 2007, the Division's attorney advised the court that she had reviewed D.L.'s telephone records and that "many, many calls" were exchanged between D.L. and M.M.K. between February 15, 2006, and February 27, 2007, "a time when both parties reported that they were no longer in touch with each other." Because Nadelman's reunification recommendation was based on D.L.'s representation that she was no longer involved with M.M.K., the Division requested a new permanency hearing.

In January 2008, Nadelman and the Division decided it would be a good idea to have new evaluations, and "to have a new set of eyes looking at all the data." The court agreed. In an order dated January 28, 2008, the court directed D.L. and M.M.K. to attend psychological and bonding evaluations to be performed by Rachel Jewelewicz-Nelson, Ph.D., (Nelson), a licensed psychologist.

Nelson met with M.M.K. on February 14 and 29, 2008, and March 11, 2008, and with D.L. on February 7, 15, and 26, 2008. She had collateral telephone conversations with Nadelman; the DYFS transportation aide, Justine Walia; and with Jordan Brown, who provided "in-home parent shadowing" when Ahmad visited with his parents. Nelson also reviewed various records, administered standardized tests to both parents, and observed Ahmad with both foster parents on February 21, 2008, with his birth mother on February 26, 2008, and with his birth father on February 29, 2008.

In a report dated March 12, 2008, Nelson concluded that it was in Ahmad's "best interest to have parental rights terminated so that he is freed for adoption by his current foster family," and her testimony was consistent with her report. Nelson's findings included the following:

[D.L.] has a schizoid personality structure characterized by an asocial and distant interpersonal pattern, a tendency toward social isolation and passivity, and a limited capacity for empathy. [M.M.K.] has a personality pattern characterized by a histrionic need for drama and attention of others and a narcissistic drive for meeting his own emotional needs first. He tends to view the world and events in it through the lens of his own inner drives and needs, creating significant cognitive distortions; he lacks capacity to recognize the needs of others if/when they are disparate from his own. He, too, lacks capacity for empathy. Personality patterns are deeply entrenched aspects of an individual's style of functioning in the world. They are not easily responsive to change, even with intensive therapy. They tend to become even more deeply rooted and immutable when the individual experiences stress and anxiety. It is my professional judgment that [D.L. and M.M.K.] are not likely to change in the near future, if ever, given the treatment and educational services they have already received. Collateral communication with visitation supervisors and DYFS aides indicates that [D.L. and M.M.K.] lack attunement to [Ahmad's] needs and moods during weekly visits. . . .

. . . .

[D.L. and M.M.K.] lack the capacity for empathy and attunement that is essential to help [Ahmad] overcome the sense of loss, abandonment, and grief that he would suffer with severing of his relationship with his foster family. [Ahmad] came to his foster family shortly before his second birthday. He had to overcome the loss of his primary love object, his birth mother, and to develop a new attachment to his foster mother. In the past almost-two-years, [Ahmad] has developed that attachment, and it is a strong bond with his foster mother. He looks to her for safety, nurturance, and 'grounding' in feeling secure. Age two to four years is the primary phase of establishing personal identity and trust in oneself and in others. [Ahmad] refers to his caretakers as his 'foster mom' and 'foster dad', and to his birth parents as his 'visit mom' and his 'visit dad'. These labels convey his primary attachment to his foster home and to the fact that he experiences his foster parents as his psychological parents. His birth parents are simply the people that he visits. While he enjoys being spoiled by them during visits, it is my professional judgment that he would not experience enduring harm from not seeing them any more. In sharp contrast, [Ahmad] is likely to suffer enduring and irreparable emotional harm if his relationship with his foster parents [is] severed. Whereas [D.L. and M.M.K.] are not capable of mitigating that loss and harm for [Ahmad], the foster parents are eminently capable of addressing and mitigating [Ahmad's] bereavement at the loss of his birth parents.

. . . .

It is our societal and legal presumption that children should be raised by their birthparents whenever possible. When that is not feasible, relative care is considered the next best option, in order to keep the child close to his cultural and familial heritage and birthright. In the case of [Ahmad], however, these options were not available to him during the half of his life span to date, in which he was in non-relative foster placement. Unfortunately, too much time has elapsed since [Ahmad] was removed from his birth family. To remove [Ahmad] from his current foster parents at this point in time would cause more harm than good.

Based on Nelson's report, the Division changed its permanency plan to termination of parental rights followed by foster home adoption. On March 17, 2008, the court approved the Division's new permanency plan and scheduled the matter for trial on June 23, 2008.

During the guardianship trial, DYFS presented testimony from the foster parents, Jordan Brown, various caseworkers and case aides, and expert testimony from Nadelman and Nelson. M.M.K. and D.L. also testified, and they presented the following witnesses: Giacomo DeStefano, M.M.K.'s employee; Fatina Habehh, the founder of Muslim Youth Services; Waleha Salaam, a potential Muslim foster mother; Spatama Yanes, a coordinator at an Islamic private school; Sandra Damrah, M.M.K.'s landlord; Elizabeth Marton-Soltis, Director of Outpatient Services at the Mental Health Clinic of Passaic; and Raymond Dorritie, Executive Director of the Challenge Program.

On the defense case, D.L. acknowledged at trial that her marriage with M.M.K. "was difficult," and she admitted she made mistakes. Nevertheless, D.L. did not believe that her children suffered any ongoing emotional harm, and she testified that her "children were never put in jeopardy or harm's way" when they were in her care. D.L. also testified that Ahmad should not "have been taken from me. I have always been a good care provider. The mistakes in my life have happened, but I am sure 90 percent of society have had a lot of the marital issues and home issues that I have, that I've endured."

D.L. testified she separated from M.M.K. "the day DYFS removed my children" and that she had severed all ties with him. For example, she opened a separate bank account and obtained a religious divorce. D.L. testified she did not pursue a civil divorce, however, because she could not afford the filing fees and because she considered herself divorced "in front of God."

When she was shown her telephone records and asked whether she had called M.M.K.'s cell phone 171 times in September 2006, she testified:

A. I sincerely doubt that there was that many calls from me to him.

Q. You do.

A. If you told me the opposite I'd probably believe it.

Q. If I told you that there were 39 incoming calls from his number to your number, would that sound like something that was realistic?

A. To me that seems much less than I would have imagined it to be.

Q. . . . [D]id you call him frequently during the month of October?

A. I don't remember what time or what the date was, but being I wasn't employed I had gave the phone to my friend Salina Rodriguez and she used the phone. And she used my phone a lot of times to mediate between [M.M.K.] and I.

Q. She used your telephone to call him?

A. Yes. . . . [S]he did a lot of the mediation. And there's times [till] now that I need to say something and she'll make the phone call to [M.M.K.] You know, until recently. And I wasn't able to pay the bill, so she assumed the cost of the bill and kept the number.

Q. So if I told you that there were 279 calls from your phone to his phone in October of 2006, your testimony is that some or all may have been made by someone else?

A. At least some.

. . . .

Q. And did that continue through February of 2007? That mediation by the woman that you gave your telephone to?

A. I believe it has until just a few months ago.

Q. Okay. And is that how you would account for the 197 telephone calls in November of 2006?

A. My answer is the same for every single month.

At the time of trial, D.L. was not employed and she testified that her phone had been "cut off," she was two or three months behind on her utility bills, and her car insurance was $1300 in arrears. D.L. testified she planned to pursue employment with Verizon after she obtained custody of Ahmad and he was enrolled in the Head Start Program.

Marton-Soltis testified about her weekly therapy sessions, with D.L., which had taken place since August 2006. According to Marton-Soltis, D.L. "demonstrated a clear understanding of how her children had been harmed by her failure to protect them from the turmoil of living in a household where there was domestic violence." However, D.L. never told Marton-Soltis that M.M.K. hit the children or that the children were afraid of him. Marton-Soltis also testified she was supporting D.L.'s application for federal Supplemental Security Income (SSI) based on a diagnosis of bipolar disorder and post-traumatic stress disorder.

Dorritie testified that D.L. and M.M.K. entered the Challenge Program as self-referrals, but DYFS incorporated the program into its case plan and funded the service. His reports described D.L. as an active participant in group and individual therapy, and emphasized that she made "steady progress in all of her identified treatment areas." For example, she improved her coping skills, self-esteem, self-concept, and interaction with peers, and developed greater insight into her behaviors and decision-making. While acknowledging that D.L. failed to fully disclose prior incidents of domestic violence, Dorritie did not consider this unusual behavior in abusive relationships.

After D.L. separated from M.M.K., Dorritie testified they communicated primary by telephone. His agency helped her to abide by the "no contact" order during the separation process, giving her assistance on such matters as the car, cell phones, bills, and expenses. He also said D.L. relied on a mutual friend to speak to M.M.K. on her behalf. He believed that D.L. had severed her relationship with M.M.K., that their separation was permanent and irrevocable, and that D.L. had not sought a civil divorce only for financial reasons.

Dorritie also testified that M.M.K. had a very difficult time understanding what was happening to him, even though "[h]is English was flawless." Over time, however, M.M.K. gained a better understanding of appropriate behavior. He interacted well with other participants in the group session, and became less focused on S.E. Dorritie believed that M.M.K. understood that he and D.L. could no longer live as a family unit. Nonetheless, M.M.K. often complained about Ahmad's treatment in foster care, his placement in a Christian family, his bruises, and his "disheveled and dirty" appearance.

M.M.K. testified he was not seeking custody of his son. He said that Ahmad should be returned to his mother. However, if that was not possible, M.M.K. testified he had the emotional and financial means to provide whatever Ahmad needed.

When M.M.K. testified, he admitted his involvement in the August 2003 incident, although he later denied hitting anyone and said he only entered a guilty plea to avoid jail. He also accepted responsibility for Ahmad's removal in February 2006, and acknowledged repeatedly threatening to tell the police that D.L. was not a good mother. However, M.M.K. blamed his family problems on S.E.'s constant harassment.

M.M.K. expressed concern that Ahmad was not being raised in a Muslim household, and questioned why he was not practicing his religion. M.M.K. explained that when DYFS removed his son, he wanted his brother to take care of Ahmad. His brother went to a DYFS office in Los Angeles, where he lived, and filled out an application and took classes. But after DYFS adopted the reunification plan, M.M.K. testified, "DYFS and me and everybody told my brother, hey, stop, the baby [is] coming back." According to M.M.K., when he realized reunification was unlikely, he asked his brother if he would take Ahmad, and his brother said yes.

In its decision on October 30, 2008, the trial court noted that Ahmad and D.L.'s other two children, A.E. and K.E., had been removed because of "incidents of domestic violence between the two defendants." The court summarized Nadelman's testimony as follows:

She said children who are raised in homes where there was domestic violence or high conflict are damaged psychologically in a number of ways and their ability normally is impaired. The younger the child, the greater the damage. The child will become torn with positive feelings with the other parents, would have anxiety and not have the ability to know who to trust, the ability to function in school, to get along with others or establish relationships. . . .

It was clearly Dr. [Nadelman's] position throughout her testimony that [Ahmad] could not safely reside with the father or with the mother if they remained together. At the time of her initial report the fact that [D.L.] accepted services as provided by the [D]ivision showed that she loved and cared for the child and therefore lead to Dr. [Nadelman's] conclusion of reunification at that time.

The Doctor said, however, that she was not aware of what the mother was doing with any of the programs from the time of her report to the time of her testimony. She had not done [an] updated evaluation, although there has been a substantial period of time from her last report, until the time of her testimony. She was not aware of anything that has happened in the interim period. This fact plays a substantial part in the [c]ourt's ultimate decision in this matter.

With regard to Nelson, the court noted she was initially retained by the Division "to see how they would implement a plan for reunification." However, based on her evaluations, Nelson found D.L. "shows the lack of empathy, is unable to share and understand [Ahmad's] broad range of feelings and cannot understand what the child is going through." As for M.M.K., Nelson found there were "significant cognitive distortions on how he sees the world." "Everything is about him" and he "does not recognize the needs of a child accurately." Based on her psychological and bonding evaluations, Nelson ultimately concluded both parents were unable to provide adequate parental care for Ahmad, and that Ahmad would suffer significant and enduring harm if he was removed from his foster parents.

Despite D.L.'s testimony that she separated from M.M.K. in February 2006 and severed all ties with him, the court found there was "some type [of] continuous arrangement, and/or contact between the parties" based on the telephone records, which showed "there were over 1100 telephone calls between the two of them" after February 2006; "the coincidence of events that have taken place between them and the child"; the fact that D.L. "has on more than one occasion testified she intended to co-parent [Ahmad]." In addition, the court found it "rather surprising" that D.L. claimed her children were never in harm's way given the parents' stipulation that they had exposed the children to the risk of emotional harm on February 10, 2006, and the children's statements to the DYFS caseworker at the time of the removal in February 2006.

Similarly, the court was not persuaded by M.M.K.'s testimony that he did not understand some parts of the tests administered by Nadelman and Nelson. The court also did not believe M.M.K.'s testimony that he never hit anyone, based on his admission "as part of his plea" to endangering the welfare of children that he hit D.L., A.E., and K.E. with a stick that was about eighteen inches long. In addition, the court found that M.M.K. "had a select[ive] memory . . . more times that not" during cross-examination. "He said he couldn't remember or he didn't remember certain crucial facts and yet at other times he was very clear in his ability to remember questions when asked on direct examination."

After carefully reviewing all of the evidence, the court concluded that DYFS had established the four prongs of the best-interests-of-the-child test by clear and convincing evidence. Accordingly, the court entered a judgment terminating the parental rights of M.M.K. and D.L.

Both M.M.K. and D.L. contend the court erred by finding DYFS proved that Ahmad's safety, health or development has been and will continue to be endangered by the parental relationship. They argue there was no evidence showing Ahmad suffered any emotional or psychological harm as a result of his presence during the February 2006 domestic violence incident, and that DYFS failed to identify any specific harm warranting his continued removal.

Although there were no allegations that Ahmad was physically abused, the court found that there was clearly "emotional abuse and/or harm not only to [Ahmad], but to the other children as well." Specifically, the court found that M.M.K. and D.L. exposed Ahmad to the risk of emotional harm during the domestic violence incident on February 10, 2006, "as evidenced by the expert testimony." Additionally, the court found that D.L.'s refusal "to recognize the harm that she has placed upon the children only demonstrates her inability to eliminate it." Although Ahmad was about twenty-two-months old at the time of his removal, the court found that his welfare and safety were endangered based on the harm caused to D.L.'s other children.

Under the first prong, the State must show harm to the child by the parental relationship. N.J.S.A. 30:4C-15.1(a)(1); K.H.O., supra, 161 N.J. at 348. The harm "must be one that threatens the child's health and will likely have continuing deleterious effects on the child." Id. at 352. "Although a particularly egregious single harm can trigger the standard, the focus is on the effect of harms arising from the parent-child relationship over time on the child's health and development." Id. at 348. The harm may include physical or sexual abuse, or the potential for psychological damage to the child. A.W., supra, 103 N.J. at 605. "Serious and lasting emotional or psychological harm to children as the result of the action or inaction of their biological parents can constitute injury sufficient to authorize the termination of parental rights." In re Guardianship of K.L.F., 129 N.J. 32, 44 (1992) (citing J.C., supra, 129 N.J. at 18). Moreover, a parent's abusive treatment of one child "could be a dangerous harbinger" of the parent's treatment of another child. Div. of Youth & Family Servs. v. Robert M., 347 N.J. Super. 44, 68 (App. Div.), certif. denied, 174 N.J. 39 (2002). See also J. & E. v. M. & F., 157 N.J. Super. 478, 493 (App. Div.) (noting that "[p]redictions as to probable future conduct can only be based upon past performance" and "[e]vidence of parents' fitness or unfitness can be gleaned not only from their past treatment of the child in question but also from the quality of care given to other children in their custody"), certif. denied, 77 N.J. 490 (1978).

We are satisfied from our review of the record that Ahmad's older brothers suffered harm as a result of the parental relationship, and that Ahmad could also suffer harm if returned to either M.M.K. or D.L. D.L. filed two domestic violence complaints and obtained two TROs against M.M.K. prior to the February 2006 incident. In August 2003, she obtained a TRO after M.M.K. allegedly hit A.E. and K.E. with a wooden stick. Three months later, she obtained another TRO after telling the hearing officer that M.M.K. had physically and verbally threatened her. Nevertheless, D.L. never sought a final restraining order.

Moreover, when M.M.K. pled guilty to endangering the welfare of A.E. and K.E., he acknowledged that he hit his wife and the two boys with a stick. Nevertheless, during the guardianship trial D.L. did not remember any assault by M.M.K. and M.M.K. denied hitting anyone, claiming he only entered the plea to avoid jail.

In the February 2006 incident, M.M.K. also hit D.L. with a wooden stick, which both A.E. and K.E. confirmed when interviewed by a DYFS worker. A.E. also told the caseworker that M.M.K. "pushed him around," and K.E. reported that M.M.K. hit D.L. with his fists. Both boys admitted they were afraid of M.M.K. and D.L. told A.E., "I'll take care of it and don't worry about it." Nevertheless, when the children were removed, DYFS workers at the scene reported that D.L. yelled at her two older sons, "DYFS is here to take you because when the lady went to the program you lied to her and told her that your dad had hit me." They described A.E. and K.E. as distraught, noting A.E. replied "Mama I didn't lie, he did hit you." As D.L. was talking on the telephone and yelling, K.E. said he was going to kill himself and A.E. said he was going to run away.

Nadelman's reports addressed the psychological damage inflicted on D.L.'s sons, stating it was an uncontested fact that "these young boys have been caught in the middle of ongoing battles between warring adults for most of their young lives." She noted there was evidence of frequent verbal fighting between D.L. and M.M.K., and at least moderate physical contact involving pushing. Both parents also had lied repeatedly about their relationship and the conflict between them. Moreover, D.L. had encouraged A.E. and K.E. to lie about their stepfather. After almost three years of conflict, Nadelman considered it unacceptable to subject Ahmad to the same environment of repeated emotional and physical violence, which was so detrimental to his older brothers.

At trial, Nadelman explained "that children who are raised in homes where there is domestic violence and high conflict are damaged psychologically in a number of ways." Their ability to function normally is impaired, and "[t]he younger this occurs the greater the damage to the children." According to Nadelman, such children live "in a state of anxiety and hyper-vigilance," which can interfere with the ability "to trust . . . to function in school, to learn, to get along with other children, and ultimately to establish relationships with other people."

Nadelman also testified that the destructive pattern of dishonesty interfered with the boys' ability "to distinguish what was real and what was not real, and what was true and what was a lie, and who was abusive and who was not abusive." Nadelman believed this pattern could become "just as destructive" to Ahmad as it had been to his three brothers, "all of whom . . . were significantly emotionally damaged by the lives that they lived."

Nelson was also concerned that Ahmad had witnessed domestic and psychological violence, and experienced much of the tension and confusion that contributed to I.E.'s suicide. She explained that such exposure was a known risk factor for psychiatric and socioeconomic problems throughout life. She believed reunification would place Ahmad at great risk of harm "because he would be subject to the same stressors that his brothers experienced." In her opinion, reunification with D.L. would threaten Ahmad's "sense of stability, security, and permanency."

M.M.K. and D.L. both rely on N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13 (App. Div. 2004), certif. denied, 182 N.J. 426 (2005), to argue there was no evidence to support the court's finding that Ahmad had suffered, and would continue to suffer, emotional harm as a result of witnessing domestic violence. In S.S., the trial court determined that a mother abused or neglected her infant child under N.J.S.A. 9:6-8.21(c)(4)(b) by allowing the child to be present when the mother was physically attacked by her husband. Id. at 15. This court reversed because "no psychological evidence was introduced to support . . . a causal relationship between witnessing domestic violence and emotional distress in the young." Id. at 22.

This case is distinguishable from S.S. for at least two reasons. First, M.M.K. and D.L. both stipulated they exposed their children to the risk of emotional harm when they "engaged in a heated argument with physical contact between them" on February 10, 2006. Second, both Nadelman and Nelson testified there was a causal relationship between witnessing domestic violence and emotional distress in the young, and they were able to balance the emotional harm from domestic violence with the harm caused by Ahmad's removal from the home. Moreover, Nadelman and Nelson were subjected to cross-examination, and neither M.M.K. nor D.L. presented any expert testimony to rebut their conclusions. Accordingly, the record fully supports the trial court's determination that DYFS satisfied the first prong of the termination test by clear and convincing evidence.

With regard to the second statutory prong, M.M.K. and D.L. contend the court erred by finding they were unwilling or unable to eliminate the harm facing Ahmad, and to provide him with a safe and stable home. They argue that Ahmad's exposure to harm from domestic violence has been eliminated because they severed their physical relationship, moved to separate homes, obtained a religious divorce, and made substantial progress in counseling.

The trial court found D.L. was unable to avoid or eliminate the harm facing Ahmad given the history of her relationships with S.E. and M.M.K., and the proof of continued contact with M.M.K. as shown by the telephone records. It also found that D.L. manipulated the system by participating in DYFS services to create the impression that she had "improved her own short comings," and she "changes her story under [the] circumstances to fit the situation."

The court also determined D.L. failed to provide adequate proof that she could provide a safe home, explaining she had misrepresented or intentionally lied on her housing application. It further found that a delay in permanent placement would add to the harm, and that Ahmad would suffer potential harm if separated from his foster mother. The court did not address this issue with regard to M.M.K., noting elsewhere that no one indicated or recommended that Ahmad should be returned to his father. Moreover, M.M.K. testified he wanted Ahmad returned to his mother.

We are satisfied from our independent review of the record there is sufficient credible evidence to support the court's determination that D.L. was unable to cure the initial harm from domestic violence. She repeatedly failed to protect her older children from physical harm, and placed all her children at risk of emotional harm by: (1) obtaining two TROs against M.M.K., but failing to seek final restraining orders; (2) allowing M.M.K. to visit her home in February 2006 despite a March 2004 court order that prohibited M.M.K. from having contact with A.E. and K.E., and also prohibited him from being within 200 feet of D.L.'s home; (3) continuing her relationship with M.M.K. for at least several months (by her own admission) after the domestic violence incident which resulted in the children's removal; and (4) maintaining frequent telephone communications with M.M.K. after she told Nadelman that her contact with M.M.K. "was virtually nonexistent." Although D.L. argues that her phone records show the lack of direct physical contact with M.M.K., the sheer number of calls, and her failure to present a witness to confirm her claim that an intermediary made them, supports the court's finding.

Although D.L. believed she had obtained a healthier life and planned to continue counseling, Nelson testified D.L. had a personality pattern which affected her ability to become a good parent, and could prove as destructive to Ahmad as it did to his older brothers. Moreover, both experts found that D.L. had a troubled childhood, she had a history of self-destructive relationships with men, she repeatedly lied, and she lacked the capacity for empathy. Indeed, after more than two years of counseling, D.L. still claimed that her children were never "in jeopardy or harm's way" as a result of her relationship with M.M.K., and she did not believe any of them suffered emotional or physical harm, despite overwhelming evidence to the contrary. Under these circumstances, we conclude there was sufficient evidence to support the trial court's determination that the Division satisfied the second prong of the best interests standard with respect to both birth parents.

The third statutory prong requires DYFS to make "reasonable efforts" to provide services and consider alternatives to termination of parental rights. N.J.S.A. 30:4C-15.1(a)(3). The statute defines "reasonable efforts" as:

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

(1) consultation and cooperation with the parent in developing a plan for appropriate services;

(2) providing services that have been agreed upon, to the family, in order to further the goal of family reunification;

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

(4) facilitating appropriate visitation.

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

Whether particular services are necessary to comply with the reasonable services requirement depends on the circumstances of the individual case before the court. In re Guardianship of D.M.H., 161 N.J. 365, 390 (1999). "Consistent efforts to maintain and support the parent-child bond are central to the court's determination." Ibid.

D.L. argues "DYFS made no diligent effort to provide any services" but fails to identify any additional services that should have been provided to her. To her credit, D.L. entered the Challenge Program on her own. The executive director of the Challenge Program testified, however, that the services provided to D.L. and M.M.K. were "incorporated into the case plan" and funded by DYFS. The record also reflects that DYFS provided weekly supervised visitation for D.L. and M.M.K., transported Ahmad to and from the sessions, and hired Jordan Brown, the owner of Full Circle Counseling, in February 2008 to provide "in-home parent shadowing" and "parenting tips" to M.M.K. and D.L. Finally, contrary to D.L.'s assertions, there is no testimonial or documentary evidence to support her claim that DYFS failed to keep her informed about Ahmad's health and development.

As part of its responsibilities under the third prong, the Division investigated and evaluated several Muslim home placements for Ahmad and his brothers, none of which proved to be appropriate. Either the individuals contacted by the Division were unwilling to serve as permanent foster parents, or their homes were unsuitable. For example, the Division investigated Ahmad's placement with M.M.K.'s brother who lived in California. However, the Division did not pursue placement with M.M.K.'s brother because the permanency plan at the time was to return Ahmad to his mother. Moreover, M.M.K. testified he did not ask his brother to go to the DYFS office in February 2007 when his brother visited him in New Jersey, because M.M.K. believed that Ahmad would be returned to his mother. M.M.K. also testified, without any corroboration, that when he realized reunification was unlikely, he asked his brother to take Ahmad and his brother said yes.

Spatama Yanes, who knew D.L., M.M.K. and S.E., testified she offered her home as a temporary placement after the children's removal. Yanes was aware that the three parents were not getting along and testified she "was tired of that whole thing," but she was willing to take the children on a short-term basis. She testified the Division never investigated her home because she had eight children of her own. A Division caseworker testified, however, that Yanes "was in the process of opening some sort of business or something along those lines, and logistically she was not going to be able to do it." In addition, she was "concerned about getting involved with all three parents knowing them on the level she did."

In March 2006, DYFS placed A.E. and K.E. in a Muslim home, but removed them after several weeks at the family's request. In April 2006, DYFS contacted Muslim Youth Services for assistance in finding a Muslim home for the three children. Fatina Habehh explained that Muslim Youth Services was a referral service for foster care. She gave DYFS the names of two families, but one of the families was unable to take the children, and the Salaam home was too small to accommodate the children. After the Salaam family moved to a larger home, the Division contacted them regarding placement of the children, but at the last minute the Division said that "family members decided to take the children."

The trial court found that Muslim Youth Services acted as a recruitment agency to identify Muslim families who were willing to take foster children; there were no "Muslim families available in Passaic County" at the time of trial; and Muslim Youth Services did not "keep records of any licensed families for future needs." It also found that Yanes was only willing to take the children on a temporary basis until a full-time foster home was found, and that Salaam was not a licensed foster parent and had not pursued becoming one. In addition, as the court explained, the continuity of religious education and environment is an important, but not a controlling factor when considering a child's best interests. See N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 627 (App. Div.) ("Although the continuation of a child's cultural and religious traditions may be laudatory, it cannot guide a decision to remove or not to remove; to terminate or not to terminate; or to pass over an otherwise suitable foster placement."), certif. denied, 192 N.J. 68 (2007).

With regard to the fourth and final statutory requirement, M.M.K. and D.L. contend the court erred by: (1) terminating their parental rights based exclusively on Ahmad's bonding with his foster mother; and (2) refusing to permit cross-examination of the foster parents to assess whether termination of parental rights would do more harm than good.

As the trial court noted, nobody recommended that Ahmad should be returned to his father, and the court concluded that greater harm was likely to befall Ahmad "by perpetrating any relationship with his natural mother." The court explained that Ahmad needed permanency and stability in his life, that he needed to know where he belonged and would grow up, and that he needed to know that he was no longer involved in the "tug of war" which he had been experiencing for the past two years.

The fourth prong of the best interest test requires DYFS to prove by clear and convincing evidence that "[t]ermination of parental rights will not do more harm than good." N.J.S.A. 30:4c-15.1(a)(4). In assessing this standard, a "court must inquire into the child's relationship both with [his] biological parents and [his] foster parents" and determine whether "the child will suffer a greater harm from the termination of ties with [his] natural parents than from the permanent disruption of [his] relationship with [his] foster parents." K.H.O., supra, 161 N.J. at 355. The decision "requires expert inquiry specifically directed to the strength of each relationship." Ibid. (quoting J.C., supra, 129 N.J. at 25).

In this case, based primarily on the testimony of Nelson, the court found that Ahmad's attachment with his foster mother was stronger and healthier than his bond or attachment with D.L. and M.M.K., and the record fully supports that determination. Nelson testified that Ahmad was calmer, functioned at a higher level, and was more secure in his interactions with his foster parents. She found that Ahmad's bond with D.L. was more tentative, while his bond with M.M.K. was "insecure and tenuous."

In Nelson's opinion, Ahmad would suffer significant and enduring harm if separated from his foster parents. She explained that he lived with them between the ages of two to four years, when he developed a sense of self and trust in himself along with a sense of security and protection. She considered his foster parents as his psychological parents. If separated from them, Nelson believed Ahmad's sense of bereavement would interfere with his capacity to learn in school, to development new attachments, and to trust other people. In her view, D.L. would be unable to mitigate Ahmad's sense of loss, because of her inability to recognize her son's feelings and to help him overcome them, and M.M.K. would be even less successful, given his inability to recognize or respond to his son's needs. She reached these conclusions based on the bonding evaluations as well as clinical interviews and formal testing of each parent. Although she believed Ahmad would have "an intellectual sadness" if his bonds with D.L. and M.M.K. were severed, Nelson testified the separation would have no significant implication on a day-to-day basis, as Ahmad would continue to derive emotional and psychological consistency and security in the foster home.

As the trial court noted, Ahmad's need for permanency and stability was a critical factor in this case, and the evidence clearly and convincingly established that the termination of parental rights will not do more harm than good to Ahmad.

Defendants also argue the court erred by refusing to allow them to question the foster parents about their fitness for adoption, and the March 2008 incident, when the foster mother hit Ahmad with a hairbrush. Defendants contend such questions were "relevant to determining whether [Ahmad] would have a more promising relationship with his foster parents in the future."

The court ruled the foster parents could be questioned on cross-examination only on matters regarding their direct testimony, and noted defendants could call the foster parents as witnesses. Nevertheless, neither foster parent was called as a witness for the defense.

Cross-examination of a witness is generally limited to matters discussed on direct examination. Glenpointe Assocs. v. Twp. of Teaneck, 241 N.J. Super. 37, 55 (App. Div.), certif. denied, 122 N.J. 391 (1990). Its scope rests in the discretion of the trial judge, and will not be overturned on appeal unless there is a showing of clear error and prejudice. Id. at 54. "[T]he extent of allowable cross-examination where it involves collateral matters is measured by the trial judge in light of the effect such examination may have upon substantial justice." Id. at 55.

Here, DYFS presented the foster parents for the limited purpose of testifying about the March 2008 incident, and the standard for termination of parental rights does not require birth parents to prove they are more fit than foster parents. Consequently, the trial court's decision to limit cross-examination was not an abuse of discretion.

M.M.K. also contends the trial court committed reversible error "in admitting and according weight to Dr. [Nelson's] reports and testimony" because: (1) she "lacked an understanding of his culture" and "how that culture affected his interaction with his son"; (2) her "testimony contained inconsistencies"; (3) she "was blatantly biased against both [M.M.K. and D.L.]"; and (4) "the trial court limited cross examination" as to her reports. We conclude, however, that these arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

The scope of our review is limited. "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Trial courts hear the case and see the witnesses, and they are in a better position to evaluate the credibility and weight to be afforded testimonial evidence. D.M.H., supra, 161 N.J. at 382; Pascale v. Pascale, 113 N.J. 20, 33 (1988). Deference is not appropriate, however, if the trial court's findings are "so wide of the mark that the judge was clearly mistaken." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007).

In this case, the trial court made detailed findings as to each of the birth parents, and the court's findings are adequately supported by clear and convincing evidence. In addition, the court correctly concluded that the evidence was sufficient to satisfy each of the four statutory standards under N.J.S.A. 30:4C-15.1(a). We therefore affirm substantially for the reasons stated by Judge Diamond in his comprehensive oral decision on October 30, 2008.

 
Affirmed.

We note that defense counsel did not contend at trial, nor proffer any expert testimony, that D.L.'s lying was the byproduct of a cycle of domestic violence and thereby of some arguably lesser significance. Moreover, we do not find that the subject matters of the lying were trivial or about matters immaterial to the welfare of Ahmad.

According to the foster mother, when Ahmad began "fussing," she "gave him a little whap on the behind" with a hairbrush to get his attention. The Institutional Abuse Investigation Unit of the Department of Children and Families concluded that the foster mother's conduct was inappropriate but not abusive under N.J.S.A. 9:6-8.21.

(continued)

(continued)

34

A-1771-08T4

RECORD IMPOUNDED

April 19, 2010