DIVISION OF YOUTH AND FAMILY SERVICES v. H.F. and A.S IN THE MATTER OF THE GUARDIANSHIP OF A.A.S., a minor

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5795-09T1

A-5797-09T1

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

H.F. and A.S.,

Defendants-Appellants.

___________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF A.A.S., a minor.

___________________________________

December 19, 2011

 

Argued November 7, 2011 - Decided

 

Before Judges A. A. Rodr guez, Sabatino, and Fasciale.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FG-12-69-10.

 

Rebekah E. Heilman, Designated Counsel, argued the cause for appellant H.F. (A-5795-09) (Joseph E. Krakora, Public Defender, attorney; Ms. Heilman, on the brief).

 

Jennifer L. Gottschalk, Designated Counsel, argued the cause for appellant A.S. (A-5797-09) (Joseph E. Krakora, Public Defender, attorney; Richard Sparaco, Designated Counsel, on the brief).

 

Stephanie Anatale, Deputy Attorney General, argued the cause for respondent (Paula T. Dow, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Anatale, on the brief).

 

Olivia Belfatto Crisp, Assistant Deputy Public Defender, argued the cause for minor A.A.S. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Crisp, on the brief).

PER CURIAM

Defendants, A.S. and H.F., the birth parents of A.A.S. ("Alice"),1 now age nine, each appeal the Family Part's entry of a final judgment of guardianship terminating their respective parental rights. Their appeals are opposed by the Division of Youth and Family Services ("DYFS" or "the Division") and the Law Guardian. For the reasons that follow, we affirm the judgment as to the birth mother, A.S., but remand for further proceedings as to the birth father, H.F.

I.

A.

The proceedings in the Family Part, including the three-day guardianship trial in May and June 2010, developed the following relevant proofs. In general, they depict a birth mother beset by a variety of behavioral and dependency issues, unable to fulfill her responsibilities as a parent, and a birth father who has had drug and alcohol problems of his own, and who did not begin to establish a relationship with his daughter until she was nearly four years old.

Defendant A.S., Alice's biological mother ("the mother"), was born in 1986. She has given birth to two children Alice, who was born in August 2002, and M.P., who was born in December 2004. A.S. did not marry either Alice's biological father, defendant H.F., or her son M.P.'s biological father, M.T.P.2

Alice's biological father, defendant H.F. ("the father"), was born in 1976. He is more than nine years older than A.S. In addition to his youngest child Alice, the father has three other children. His first child, a son, was born in April 1995, to M.R., a woman that he did not marry. The father thereafter developed a relationship with another woman, I.F., whom he eventually married. The father had two children with I.F. a son born in June 1997 and a daughter born in March 2000.

In 2001, the father was working in Detroit and living there with I.F. and their two children. That holiday season, he visited his parents in Perth Amboy, New Jersey. During that brief trip, the father met and impregnated A.S., who was then just fifteen years old. The father returned to Detroit in February 2002. At that point he knew that A.S. was pregnant, but he and A.S. did not maintain contact with each other.

Initially, when Alice was born in August 2002, the identity of her birth father was omitted from her birth certificate. The birth certificate was subsequently amended in September 2004 to erroneously name M.T.P. as Alice's father.3

In December 2002, shortly after Alice's birth, the father married I.F. The father and I.F. eventually separated in early 2006.4

According to the father's trial testimony, he visited Perth Amboy "frequently" and each time he was in town, he would look for the mother and their child. The father also contended that he attempted to contact the mother's family members in order to find out where she was, but was unsuccessful in his attempts.5

In 2005, while the father was still living in Detroit, the Division contacted him and requested that he take a paternity test. According to a Family Service Specialist with the Division ("the testifying caseworker"6), the father told her that he had performed his side of the test but that the mother had not brought Alice in to have her DNA analyzed.

The father met Alice for the first time in the summer of 2006, when she was nearly four years old. At that point, he acknowledged paternity. At his request, paternity was confirmed by genetic testing in December 2007.

The father testified that after he discovered Alice was his daughter, the mother, Alice, and Alice's half-brother M.P. all visited him in Michigan from the summer of 2006 until about November 2006. He recalled that they visited a second time thereafter for about a month, during which time he saw Alice every day. During those visits, according to the father, he "took [Alice] to the park, to the beach, to the movies, to the mall," and he would cook meals for her. He recalled discussing with the mother the prospect of him moving to New Jersey, so that he could "help raise [Alice] and get to know her."

In January 2007, the father lost his auto industry job in Detroit, a job that he had held for seven years. The father thereafter relocated to New Jersey, where he has since resided. Upon returning to New Jersey, the father initially moved in with his brother. Subsequently, the father moved in with his parents.

As the father recounted, after his relocation to New Jersey, from early 2007 until September 2007, he saw Alice "every weekend." When he was "doing a driving job" he also would see Alice "every day" on his commute to work. As the Division was not yet involved with the family, the father would arrange these visits directly with the mother.7

At around 4:00 a.m. on October 23, 2007, the Carteret Police Department responded to a reported domestic violence incident at the mother's home. When the police officers arrived, they found three children Alice (then age five); M.P. (then age two); and Alice's cousin (then age three) wandering around the home, seemingly unsupervised. The police then searched the home and discovered F.G., the mother's boyfriend at the time, hiding under the sink. F.G. was later arrested on various warrants. The police immediately notified the Division of the children's circumstances.

When the police located the mother later that day, she was wearing a ripped t-shirt and appeared to be "very emotional, crying, sobbing and sniffling." She admitted that she had been drinking with F.G. She told the police that her relationship with F.G. was marked by ongoing abuse and that she had run away from the home because she thought that F.G. was going to hurt her.

The mother was unable to provide a satisfactory safety plan for her children. She revealed that she was not on speaking terms with her own father; that she was unable to provide the Division with her sister's last name; and that M.P.'s father, M.T.P., was then confined at the Wagner Youth Correctional Facility. She claimed that she did not know where Alice's father was living, and she could not identify any relatives who could care for Alice in her stead. Given these circumstances and the mother's emotional and physical state, the Division intervened and placed Alice and M.P. in foster care that night.

In late 2007, the Division placed Alice in the care of her present foster parents, T.C. and H.G., with whom she has resided since that time. After his paternal grandmother passed away in early 2010, M.P. was also placed with T.C. and H.G.

At the time of Alice's removal from her mother's care in October 2007, the father happened to be in Detroit. The father testified that he attempted to contact the mother by phone upon his return to New Jersey, but he was unsuccessful.

According to the testifying caseworker, the father contacted the Division a few days later after he learned that Alice and M.P. were in foster care. The caseworker stated that the father eventually offered himself as a caregiver. However, he was unable to serve as Alice's caretaker because at that time he was living with his mother, who had a confirmed history of physical abuse.

The emergency removal led the Division to file an order to show cause in the Family Part on or about October 25, 2007. The court approved the application, granting the Division care, custody, and supervision of Alice. Eventually, the mother stipulated that (1) she had been involved in a domestic violence incident in October 2007; (2) following the incident, she had left her children alone with the perpetrator; and (3) her conduct constituted abuse or neglect.

Around January 2009, Alice began attending therapy sessions with Roberta Gold, a social worker at the Children's Home Society. The Division referred Alice to Gold because she was suffering from anxiety and adjustment issues related to her placement in foster care.

At trial, Gold testified that Alice did not suffer from any behavioral problems and that "[s]he just seemed to be a frightened child about new [] experiences, making friends, that [] sort of thing." Gold noted that Alice was "slow to talk about her parents" and that she did not mention her father for the first six to eight months that she was in therapy. Gold also noted that Alice "would become anxious and tense before the visits [with her mother,] and she would kind of have trouble settling back down again after the visits[.]" However, Gold acknowledged that Alice would likewise become upset if a visit with her mother was cancelled. Although Gold criticized the mother for bringing F.G., who Alice thought was in jail, to a visit, Gold did acknowledge that Alice showed an attachment to her mother.

According to Gold, Alice told her that she would be "comfortable with either staying with her aunt and uncle or living with her mom." Alice once told Gold that she "hated" her father, a sentiment that Gold described as "the most forceful expression of feelings that [Alice] had ever made[.]" However, Gold admitted at trial that Alice's feelings about her father ultimately softened and that Alice later retracted her comments about hating her father.

In addition to granting the Division care and custody of Alice, the Family Part judge ordered that the mother obtain stable housing before her children could be returned to her care.8 The court also required the mother to engage in a substance evaluation, parenting classes, and psychological evaluations. The mother continued to reiterate that the children could not be placed with any of her relatives.

The Division arranged for a social services agency, known as Multi-Cultural Services ("MCS"), to help the mother obtain counseling, attend drug treatment, and find a job.9 MCS helped the mother obtain "any kind of services that she was eligible for, including Medicaid." MCS provided the mother with transportation to visitations with Alice. Additionally, the Division provided the mother with bus passes so that she would be able to get to and from various programs.

The Division further arranged for the mother to undergo substance abuse and psychological evaluations. The mother's substance abuse evaluation was performed in October 2007, resulting in a recommendation that she receive outpatient treatment. The Division then referred the mother to numerous substance abuse treatment programs. According to the caseworker notes in the record, one of those programs advised the Division in October 2008 that the mother had "hardly participate[d]" in substance abuse treatment. The mother did not complete alcohol treatment until July 2009, nearly two years after Alice was removed from her care. About three-and-a-half weeks before the start of the trial, the Division received a referral from the police in which the mother admitted that she had "been drinking several beers" that night with her boyfriend F.G. and that they "had gotten into an argument."

In December 2007, the mother was arrested after she went to retrieve her belongings from F.G.'s house. The caseworker notes indicate that subsequently the Division provided the mother with a referral to Woman Aware, a women's shelter that could assist her with finding a new place to live.

Shortly after the mother's arrest in late December 2007, she was evaluated by two psychologists, Dr. Melissa Zarin, Ph.D. and Mark H. Seglin, Ph.D. Both psychologists diagnosed the mother as having adjustment disorder with mixed disturbance of emotions and conduct and histrionic personality disorder with avoidant features. The psychologists did not recommend reunification of Alice with her mother, given what they perceived to be A.S.'s impulsiveness, paranoia, and "her deficiencies on all of the parenting measures," with respect to an ability to empathize.

The testifying caseworker recounted that the mother did not complete parenting skills classes until June 2009, nearly two years after Alice was placed in foster care. The caseworker notes in the record indicate that the mother at one point said that she would like to have her son M.P. placed with her but that the father could "take" their daughter Alice.

The caseworker notes further indicate that in January 2008, an MCS case manager helped the mother call the Perth Amboy Section 8 housing agency in an effort to help her obtain subsidized housing. Ultimately, MCS closed the mother's case in November 2008 because she had not taken advantage of the services offered to her, including substance abuse treatment, counseling, and parenting skills classes.

The testifying caseworker related that the mother attended counseling sessions through a program at Raritan Bay Mental Health Clinic for about four months from January 2008 until May 2008, but she did not complete the program. The mother was then referred to At Home Marital and Family Therapy ("At Home"), where she attended counseling sessions from October 2008 through January 2009. She also did not complete that program. The mother was referred once again to the At Home program in July 2009 and was discharged on August 30, 2009. Reports from the At Home program reflect that the mother did not speak during the program sessions and that she would not engage in therapy. Shortly before the trial, the mother was referred to yet another agency, Jewish Family Services, for therapy.

In September 2009, a permanency hearing was held in the Family Part, at which time the court approved the Division's plan to terminate the birth parents' rights in anticipation of Alice's adoption by her foster parents. In its permanency order, the trial court noted that such a plan was appropriate because neither Alice's mother nor her father was "currently in a position to care for [her]."

Thereafter, in November 2009, the Division filed a complaint for guardianship of Alice. Both the mother and the father were named as defendants in the Division's complaint.

As the guardianship case progressed toward trial, the mother remained in a stormy relationship with F.G. According to the caseworker's testimony, the mother stayed involved with F.G., at least intermittently, throughout the pendency of the litigation. The caseworker noted that the couple's relationship continued to be marked by domestic violence. In particular, the mother reported three incidents of domestic violence by F.G. to the police between March 2009 and May 2010; she also procured a temporary restraining order against him.

The father's personal history and his course of conduct leading up to the trial are also troublesome, but less so than those of the mother. In particular, the father has his own history of substance abuse issues and violations of the law. The record reflects that in 2001 the father was convicted of cocaine possession. In 2007, the father was convicted of a disorderly persons offense, again involving cocaine. He was on probation for the disorderly persons offense through late 2010. More recently, it appears that the father has been drug-free, and he testified at trial that he last took drugs in July 2007.

As a result of the father's history, the Division requested a substance abuse evaluation, which was completed in November 2007.10 The Division then requested an "extended" substance abuse evaluation, but it was not conducted. The father explained that after encountering difficulty in reaching an employee at DYFS to arrange such an evaluation, he instead provided urine samples to his probation officer for ongoing drug screening.

At the Division's request, Victoria Larsen, Ed. D., completed a psychological evaluation of the father in December 2008. In her written report, Dr. Larsen noted that the father had not been "aggressive" in maintaining his supervised visitation with Alice. It was Dr. Larsen's impression at that time that the father "greatly underestimate[d] the level of responsibility and level of dedication required to raise a child." Dr. Larsen recommended that the father be allowed to continue visiting Alice but that, among other things, he also engage in short-term counseling for six months "to focus on developing his skills as a parent."

Following Dr. Larsen's report, the Division referred the father in January 2009 to counseling through At Home. The father consistently engaged in that therapy for several months, which the caseworker confirmed in her trial testimony. According to the caseworker, Sean Magnun, the father's therapist, advised that "he would encourage or recommend that [the father] develop some empathy for [Alice's] situation and his role in why she remained in that situation."

The Division also referred the father to Catholic Charities for parenting classes. The father did not attend those classes due to conflicts with his school and work schedule. As a result, the Division requested that Magnun incorporate parenting skills into the therapy sessions, which he did. Magnun discharged the father from therapy in May 2009 when it was determined that the father would not be parenting Alice for at least a year.

In his testimony at trial, the father explained that he had delayed in exercising and pursuing his parental rights because he believed that the Division would be able to reunite the mother and Alice. He ultimately became more assertive when it became apparent that Alice was not going to be returned to her mother's care.

The father's attendance at scheduled visits with Alice was initially inconsistent, but ultimately improved. According to the caseworker notes in the record, in November and December 2007, there were four initial visits, all of which the father attended. His attendance from January 2008 through October 2008, however, was more uneven. Thereafter, from October 2008 through March 2009 the father did, in fact, regularly attend scheduled visitations, which the testifying caseworker confirmed.

The testifying caseworker noted that the father stopped regularly attending visits on the weekends because of scheduling issues between him and Alice's foster mother. The foster mother was dissatisfied that the father often did not confirm the visits in advance. The father, meanwhile, contended that the foster mother was not accommodating of his school and work schedule.

In December 2009, the Division requested that Alice's visits with her father be suspended because Alice's therapist had reported that the visits were having a negative impact on her. The Family Part granted that request and temporarily suspended visitation between Alice and her father.11

At the time Alice was placed in foster care, the father was living with his mother. The testifying caseworker explained that Alice would not be permitted to reside with the father's mother because "she is a confirmed perpetrator for physical abuse."

The father testified that he moved out of his mother's home and into his own apartment in September 2009. He asserted that he has been ready to have Alice come live with him, at least since that time. At trial, the testifying caseworker confirmed that the accommodations in the father's apartment were appropriate for a child.

The father testified that since moving to New Jersey, he has obtained work through the ironworkers union. He noted that he sometimes gets laid off and that when that happens, he collects unemployment or drives a taxi. The father anticipated that, despite the occasional unavailability of work through the union, he would have sufficient income to care for Alice. However, on cross-examination, the father admitted that he currently owes outstanding child support for his other children.

The parties presented three expert witnesses at trial: Jason Scott Fleming, Psy. D., a psychologist retained by the Division; Richard Klein, Ed. D., a psychologist retained by the mother; and Ronald G. Silikovitz, Ph.D., a psychologist retained by the father.

Dr. Fleming conducted two successive evaluations one in January 2009 and one in March 2010 which he memorialized in expert reports. For the 2009 report, Dr. Fleming completed bonding evaluations between Alice and her mother, Alice and her father, and Alice and her foster parents. Dr. Fleming perceived that during the bonding evaluation, Alice and the mother "engaged in a positive and what appeared to be a familiar interaction . . . [Alice] for the most part was responsive to her [mother] . . . It didn't appear as if [Alice] or [the mother] had any concerns, you know, discomfort with regard to being in close physical proximity." However, Dr. Fleming noted that during the evaluation the mother stated, "'Daddy's trying to get you to come live with him and maybe we can all hang out together,'" which "initiated some other comments by [Alice] that clearly indicated to me an ambivalence about the idea of going to live with her father."

Dr. Fleming testified that he spoke with Alice individually in 2009, and she communicated that "she didn't really know [her father] well[.]" Dr. Fleming testified that "my strong impression is that [Alice] was uncomfortable interacting with [the father]" and noted that Alice had "no real connection" to her father and "no real . . . desire to connect with him any further at that point."

In contrast, Dr. Fleming testified that Alice was "comfortable" and "familiar" with her foster family and that there was a "mutuality in [their] interaction." He testified that their relationship was "psychologically healthy and improving."

Based upon his impressions from the 2009 bonding evaluations, Dr. Fleming supported the Division's goal of adoption because he found that "termination would not do more harm than good." Nonetheless, Dr. Fleming stated that he "struggled" with the decision and "strongly recommended that [Alice] have the opportunity to continue to have a relationship with her parents[.]" Notably, Dr. Fleming testified that "[i]t would've been very difficult for me to come to conclusions about [Alice's] relationship with any one particular person without having more context of how she's interacting with most of the other primary adults in her life."

Dr. Fleming completed a second report in 2010. For that report, Dr. Fleming conducted full psychological evaluations of the mother and the father, and he also performed a second round of bonding evaluations with Alice, both of her parents, and her foster parents.

Dr. Fleming testified that his second bonding evaluation of the mother and Alice was marked by "distance" and that Alice was "a lot less engaged with [the mother.]" He concluded that the mother was "not able to provide a safe, comfortable, nurturing environment for her daughter." As to the father, Dr. Fleming opined that "there [were] still significant issues in both [the father's] relationship with [Alice] as well as the resources that he would have and be able to provide" to her. In contrast, Dr. Fleming characterized Alice's interaction with her foster parents as "seamless" and "positive."

Ultimately, Dr. Fleming concluded after his 2010 evaluation that Alice "was most primarily [] attached to [] her foster caretakers." He noted that Alice expressed a desire to live with her mother but that she "recognizes that this is not likely to happen." Alternatively, if Alice were removed from her caregivers' home and placed in her father's care, Dr. Fleming opined that the impact on her would be "severe," and that she "would suffer significant[] emotional harm as a result of that."

In sum, Dr. Fleming predicted that the mother and the father would not be able to successfully care for Alice and recommended that the foster parents be permitted to adopt her. He stated that although he had "struggled" with his previous assessment in 2009, he was "confident" in his 2010 findings.

The mother's expert, Dr. Klein, offered a markedly different view. Dr. Klein completed a psychological evaluation of the mother as well as a bonding evaluation of the mother and Alice. Dr. Klein also reviewed Dr. Fleming's two reports and Dr. Silikovitz's report.

Although he agreed with Dr. Fleming's reports, as he put it, "clinically," Dr. Klein disagreed with the Division expert's recommendations. Contrary to Dr. Fleming, Dr. Klein perceived that Alice and her mother maintained "a very strong positive attachment." According to Dr. Klein, the mother "has the potential to become capable of parenting independently" but "[w]hether or not she achieves that potential . . . is up to [her.]" Dr. Klein asserted that terminating the mother's parental rights would do more harm than good, especially given that the court could not guarantee that the mother and Alice's relationship would continue after termination. Dr. Klein further opined that the termination of the mother and Alice's relationship would result in "enduring psychological harm." When the trial judge asked Dr. Klein how long it would be before the mother would be ready to parent, Dr. Klein was unable to provide such an estimate.

Dr. Silikovitz, the father's expert witness, presented yet another perspective. Dr. Silikovitz conducted a psychological evaluation of the father and a bonding evaluation of Alice and her father in June 2009 and again in August 2009.

Dr. Silikovitz began by testifying that the father told him that he believed that Dr. Fleming's bonding evaluation in 2009 had gone poorly because Alice had a video game with her during the session, and, thus, the father was unable to establish any kind of rapport with her.

Based on the results of the psychological evaluation, Dr. Silikovitz determined that the father was of above average intelligence and that he did not suffer from any kind of mental condition. Dr. Silikovitz also noted in his testimony that the father stated during the evaluation that he considered his children to be the "best thing[s] in the world."

During the bonding session administered by Dr. Silikovitz, Alice was "smiling" and "relaxed" and "appeared happy to see her father." Based on these observations, Dr. Silikovitz determined that Alice was bonded with her father.

Specifically, Dr. Silikovitz testified that, based on his evaluations, he believed that the father would be financially capable of supporting Alice and that the father would be able to care for her, given the father's familial support and the positive relationships that the father had with his other children.

On the whole, Dr. Silikovitz concluded that Alice was indeed bonded with her father and recommended that Alice be reunited with him. It should be noted, however, that in making this determination, Dr. Silikovitz did not observe Alice with her foster parents.

B.

After considering these proofs, the trial judge concluded that the Division had sustained its burden of proving the four statutory criteria for termination under Title 30 as to both parents by the requisite level of clear and convincing evidence. Consequently, the trial judge issued a final judgment on June 18, 2010, terminating the parental rights of both A.S. and H.F. and designating the Division as Alice's legal guardian for all purposes, including adoption.

In his oral opinion, the trial judge observed that Alice was "psychologically [] and emotionally being harmed, in the sense that at the time the Division became involved [the mother] was out of the house . . . [and] was in an abusive relationship with the gentleman she was living with." The judge found it noteworthy that the mother continued to be involved in that abusive relationship. The judge observed that "[a]s long as she is involved with that [relationship], she has absolutely no possibility of being able to parent [Alice] in a manner in which [Alice] is deserving at this point." With respect to the father, the judge found that at the time of the child's removal, the father "was pretty much out of the picture"; that for the first four to five years of Alice's life, the father "had absolutely no involvement with the child and/or with the mother"; and that, until recently, the father "was not willing, ready, and able to do whatever had to be done in order to parent [Alice.]"

The judge regarded Dr. Fleming's opinions as the most comprehensive and persuasive of those presented by the three experts. Echoing Dr. Fleming's ultimate assessment, the judge concluded that Alice "wants little or nothing to do with her father." The judge also concluded that the mother had the potential to parent but that the potential "is going unrealized" and that, thus, the mother was currently unable to care for Alice.

Furthermore, the judge found that Alice's foster parents "are best equipped to handle whatever trauma the termination with [the mother] will deal with." The judge reasoned that Alice's "need[] for stability, for security, for safety, and for permanence . . . [are] best accomplished by terminating the parental relationships between mom and dad and [Alice] and putting the child up for adoption."

C.

Defendants requested an immediate stay of the trial court's final judgment to allow their visitation with Alice to continue during the pendency of an appeal. The trial judge denied their requests. Both parents promptly appealed the final judgment.

In November 2010, the father moved before this court for a limited remand to the trial court, seeking enforceable visitation rights with Alice during the pendency of the appeal or, alternatively, summary disposition of the visitation issue in this court. The motion for summary disposition was denied. We initially denied the father's motion for such a limited remand, without prejudice premised on the Law Guardian's representation that the foster parents and the father apparently had attained an informal visitation agreement. Our order noted that "[i]f that arrangement changes, [the father] may renew the motion."

In April 2011, the father filed a motion for reconsideration of this court's prior ruling. That motion was initially denied. The father then filed a new motion for a temporary remand on the issue of visitation pending appeal apparently because the father and the foster parents were unable to maintain their informal visitation schedule. We granted that motion on May 20, 2011 and remanded the case to the trial court in order to "fashion an appropriate order pending appeal." The Division then filed a motion to stay the appellate proceedings pending the remand, which we denied.

On September 26, 2011, the same Family Part judge who had presided over the guardianship trial conducted a remand hearing, specifically addressing the issue of visitation between Alice and her father. Prior to the remand hearing, the trial judge interviewed Alice, as permitted by Rule 5:8-6. See N.J. Div. of Youth & Family Servs. v. T.S., 417 N.J. Super. 228, 250 (App. Div. 2010), certif. denied, sub nom. N.J. Div. of Youth & Family Servs. v. K.G., 205 N.J. 519 (2011). Following that interview, the judge reported on the record that Alice was "very clear" that "[s]he would like to have a relationship with her father." The judge underscored that Alice's request was "a complete turnaround from where [Alice] was fifteen or sixteen months ago[.]"

The following passages from the transcript of the in camera interview most pointedly illustrate Alice's apparent change in attitude towards her father:

Q: [BY THE COURT]: Okay; how do you feel about your dad?

 

A: [BY A.A.S.]: Fine.

 

Q: You feel fine?

 

A: Mmm-hmm.

 

Q: Are you comfortable with him?

 

A: Yeah.

 

Q: The question I guess is the big one, -- do you really want to visit with him?

 

A: Yes.

 

Q: Okay; the last time you got together with him, how did it go?

 

A: Good.

 

Q: Pretty good?

 

A: He, umm -- well, we went to the park and, umm, we -- I don't remember what we did. We played, umm, -- I think we played hide and seek.

 

. . .

 

Q: About a year -- oh maybe a little bit more -- than a year ago, maybe May or so of last year, you came here and we had a discussion about your relationship with your dad. And at that time, you told me who he was; you knew who he was; and that you really didn't like him, that you weren't happy with him. Do you remember?

 

A: No, I don't remember.

 

Q: You also told me, at that time, that you really didn't want to have anything to do with your father . . . Do you remember that?

 

A: I didn't --

 

Q: Okay; about that time, you were still living with your [foster parents]?

 

A: Yes.

 

Q: And you had indicated that you had seen your dad, maybe, a month or so before we got together . . . how do you feel about your dad now?

 

A: Fine.

 

Q: Fine. Do you want to see him?

 

A: Yes.

 

Q: How often would you like to see him?

 

A: Once a month.

 

Q: For how long?

 

A: Like an hour -- (inaudible) -- an hour and a half.

 

. . .

 

Q: So you want to continue to have some contact with your father?

 

A: Yes.

 

Q: Do you want to live with your dad?

 

A: Yes.

 

Q: You do?

 

A: Yes.

 

Q: Now, that's a real surprise -- it's a real surprise. Based on the last time, you and I talked, you wanted to have absolutely nothing to do with -- (in audible) --

 

A: I think you've talking about my [foster mother] because, umm, --

 

Q: No, I'm talking about you.

 

A: -- you're talking about my [foster mother] because she is -- is not a big fan about my dad.

 

. . .

 

Q: You were not happy with your father. You didn't like him, and you didn't want to have any contact with him. You wanted nothing to do with him. Are you surprised at that?

 

A: -- (inaudible) -- because I don't remember that.

 

Q: Okay; that's fair; that's fine. But now you're telling me that you would like to have . . . some contact with your dad.

 

A: Yes.

 

Q: That someday, maybe, you even want to go live with him?

 

A: Yes.

 

Based upon what had emerged from the court's interview with Alice, the Law Guardian conceded at the remand hearing that it was in Alice's best interests to continue having visits with her father pending the appeal. The Law Guardian suggested that the visits resume "with a therapist in place, either before or after the visits, so that [Alice] can process what will happen, or what will not happen."

Given this representation from the Law Guardian, the trial judge found that "it would seem . . . that it has to be in [Alice's] best interests to have visitation with her father; as much as that seems to be diametrically opposed to the order that's in place now, which terminates his parental duties and responsibilities to the child."

Consequently, the judge ordered on September 26, 2011, apparently with the consent of the parties, that the father be allowed supervised visits with Alice the first Wednesday of each month for two hours. In addition, the judge ordered that Alice be permitted to communicate with her two half-brothers and sister through technology.

Prior to oral argument in this court in November 2011, we were furnished with transcripts of the September 2011 remand hearing and of the in camera interview with Alice. We invited and received post-argument supplemental briefs from all parties to address the implications of Alice's apparent change in her feelings towards her father that emerged at the remand hearing.

II.

We now consider these proofs in light of the applicable law. When seeking the termination of a parent's rights under N.J.S.A. 30:4C-15.1(a), the Division has the burden of establishing, by clear and convincing proof, each of the following criteria:

(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) [DYFS] 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); see also N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-12 (1986) (reciting the four controlling standards later codified in Title 30 and enunciating the "clear and convincing" standard of proof to be applied).]

 

If these four criteria are clearly satisfied, the law deems it in the child's best interests to terminate the parental relationship. See N.J.S.A. 30:4C-15.1. The Supreme Court has noted that these four criteria "are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999).

In reviewing the application of these statutory criteria, we are mindful that the termination of a parent's right to raise his or her child is a matter of constitutional magnitude. In re K.H.O., supra, 161 N.J. at 346-47; In re Guardianship of J.C., 129 N.J. 1, 9-10 (1992). Even so, our appellate review of a trial court's decision to terminate parental rights is limited, and the "trial court's factual findings 'should not be disturbed unless they are so wholly unsupportable as to result in a denial of justice.'" In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974)).

A.

Applying these well-known standards, we have no difficulty sustaining the trial court's termination of the mother's parental rights. All four statutory criteria with respect to the mother are amply satisfied by the record and sufficiently addressed in the trial judge's oral opinion.

With respect to the first prong, we fully agree with the trial judge's observation that the mother's irresponsible conduct harmed Alice. Specifically, she continued in an abusive relationship with F.G. and left the home without Alice when the couple's domestic violence escalated. The trial judge also appropriately considered the mother's history of drug abuse. As the judge aptly noted, "at the time the Division bec[a]me involved with this matter . . . [Alice] was in danger, not necessarily physically but she certainly was psychologically and[] emotionally being harmed[.]" See N.J.S.A. 30:4C-15.1(a)(1).

The second prong was likewise sufficiently demonstrated by the proofs as to the mother because she was both unwilling and unable to eliminate the harm to Alice and provide her with a safe and stable home. As noted, the mother persisted in her abusive relationship with F.G. She also lagged in obtaining drug and alcohol treatment after Alice was removed from her care, taking nearly two years to complete substance abuse treatment. Despite that treatment, the mother resumed using alcohol, which led to a referral to the Division less than a month before trial. The mother also refused to complete therapy in earnest. On the whole, the mother was generally indolent in her efforts to become a fit caretaker for Alice, and the trial judge's conclusion that the second prong was met has abundant evidential support. See N.J.S.A. 30:4C-15.1(a)(2).

The third prong was also readily established as to the mother. As the trial judge found, the Division provided "all of the services that were necessary" to enable the mother, as well as the father, to resume parenting Alice "as quickly as possible." The Division provided the mother with myriad treatment programs, most of which she failed to pursue or complete. She was offered counseling, parenting classes, job training, housing assistance, professional evaluations, transportation, and visitation opportunities. The Division's efforts to help the mother were clearly reasonable, and the mother offered no realistic alternatives to Alice's ongoing placement in foster care. See N.J.S.A. 30:4C-15.1(a)(3).

Lastly, the fourth prong, sometimes described as the "best interests" prong, was amply proven with respect to the mother. The trial judge recognized that the mother and Alice did have a "fairly solid" if not a "good" relationship and that the mother had some "potential" to serve as a caregiver. However, that potential was, as of the time of trial, unrealized, despite the passage of more than two years since Alice's removal from the mother's care. Since that removal, the record shows that the foster parents have capably performed their roles as caregivers. The trial judge appropriately considered Alice's need for permanence and stability in concluding that terminating the birth mother's parental rights would not do her more harm than good. See N.J.S.A. 30:4C-15.1(a)(4).

For these reasons, the final judgment terminating the mother's parental rights is affirmed.

B.

The statutory analysis with respect to the father is more difficult. The circumstances that led to Alice's removal by the Division are largely the fault of the mother rather than the father. Moreover, although the father has his own history of substance abuse and irresponsible behavior and delayed in taking and pursuing parental responsibility for Alice, he presented, on the whole, as a more promising potential parent.

We are satisfied that the Division proved one of the four termination factors as to the father the third prong by generally providing him with reasonable services. The Division provided the father with psychological and substance abuse evaluations as well as parenting classes. Unfortunately, the father's work and school schedules did not mesh with the meeting times arranged by the Division. Nevertheless, the Division's efforts in that regard were reasonable. Most importantly, the Division secured visitation time with Alice, something that the father would not likely have obtained from the foster parents without the Division's assistance. The Division also adequately explored whether the father's own parents could serve as caretakers, before ultimately ruling them out because of the grandmother's history of abuse.

However, we cannot conclude with confidence that the first, second, and fourth prongs of the statute are satisfied as to the father given the present record and the limited findings of the trial court. With respect to the first and second prongs, the trial judge largely focused upon the father's delay in taking affirmative steps towards serving as Alice's ultimate caretaker. To be sure, the father can and should bear responsibility for impregnating a young woman while on a trip from a distant state and leaving her to fend for herself. However, we are also mindful that the father was not notified of Alice's existence or her whereabouts until several years after her birth. Although the father did not immediately present or offer himself as a caregiver, he did endeavor to develop a relationship with Alice and to stabilize his own life, securing employment, housing, and sobriety. Part of his delay in stepping forward was attributable to waiting for the Division and the court to evaluate his own parents as potential caregivers and also to ascertain whether Alice's mother would regain custody of her. When those possibilities evaporated, the father took a stronger interest in his daughter and became more consistent in attending visitations. Given those circumstances, the father's delay alone might not necessarily satisfy the first two prongs of the statute. Compare N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 170-76 (2010) (noting that a father's eight-month delay in offering himself as a caregiver was insufficient to satisfy prongs one and two), with In re Guardianship of D.M.H., 161 N.J. 365, 373, 379-80, 383 (1999) (concluding that a father's delay of over two years, including a six-month period of not contacting his children following hospitalization for heroin detoxification, satisfied prongs one and two).

Our difficulty in evaluating the father's status under the first and second prongs of the statute is that the trial court's oral analysis of those prongs largely focuses on the mother and is rather terse with regard to the father, only making a generalized allusion to his delay in taking action. Rather than speculate as to the trial court's specific reasoning concerning prongs one and two regarding the father, we deem it preferable to remand this matter to afford the judge an opportunity to provide a more detailed analysis as to those prongs. In ordering such a remand, we do not foreclose the trial judge from re-evaluating those prongs in light of the totality of the circumstances and the applicable law.

We also have serious doubts about whether the fourth prong "best interest" test has been proven against the father by clear and convincing evidence, particularly in light of Alice's most recent statements to the trial judge during her September 2011 in camera interview. The trial judge's initial analysis in his June 2010 bench opinion repeatedly noted and relied upon the perception that Alice did not like her father and did not want a relationship with him. As the trial judge described it then, the father was "not even a blip on [the] radar" for Alice. That assumption may have been unfounded. Even Alice's own therapist, Gold, acknowledged at the time of trial that Alice had backed off from her earlier statements that she hated her father. Alice's repeated statements at the remand hearing that she now wants to see her father and perhaps even live with him, represent, as the trial judge recently noted, a complete turnaround. We cannot in good conscience finalize the analysis of Alice's best interests and permanently terminate the father's parental rights without the trial court more fully exploring her current attitude toward and relationship with her father.

The Division and the Law Guardian argue that Alice's statements during the in camera interview are inconsequential. They maintain that Alice's responses were skewed by the judge's leading questions. They also contend that Alice has special developmental needs that cast doubt upon her ability to express herself. We disagree. We do not discern that the trial judge unduly led Alice in interviewing her; if anything, the judge was genuinely and understandably surprised by her statements and reasonably attempted to clarify her answers.

Nor is it clear from the record that Alice has special needs that make her interview responses necessarily unreliable. At the 2010 trial, no serious concerns were raised about Alice's mental health or her development. In fact, her therapist Gold testified that she did not suffer from behavioral problems and that Alice "just seemed to be a frightened child about new [] experiences, making friends, that [] sort of thing." Furthermore, the Division's testifying caseworker reported that Alice was doing well in school and that, aside from a lazy eye that required a patch, she did not present with any special needs. It may well be that Alice has been diagnosed with developmental delays since the 2010 trial, but if that is the case, the record must be developed in that regard before Alice's recent favorable statements about her father are completely discounted.

Accordingly, we order a remand for further proceedings with respect to prongs one, two, and four as to the father. As part of that remand, the trial court in its discretion may order additional expert evaluations and take additional lay and expert testimony. The trial court shall retain discretion to issue such interim orders concerning visitation and other matters respecting Alice's welfare as it sees fit. The remand proceedings and the trial court's decision shall be completed no later than March 15, 2012. We do not preordain the outcome of the remand in any way. Rather, the trial judge should evaluate the proofs and the three open statutory criteria anew. Following the court's issuance of a remand decision, the losing party or parties may each file a supplemental brief and appendices, along with the post-appeal remand transcripts, within thirty days, and opposing counsel shall have thirty days thereafter to file responding papers.12 Thereafter, the matter will be recalendared by this court if appropriate.

We do not issue a remand as to the father lightly. We fully recognize that the child has a strong and important interest in attaining permanency. See In re K.H.O., supra, 161 N.J. at 357-59. But the question of whether that permanency is best attained for Alice with or without her father's care should be reserved for a future day, after a deeper and updated exploration of the pertinent facts and Alice's current circumstances and feelings.

The final judgment of guardianship as to A.S., the mother, is affirmed. The matter is remanded as to H.F., the father, for further proceedings consistent with this opinion. Jurisdiction is retained.

1 We refer to A.A.S. by the fictitious name of "Alice" for ease of reference, particularly in light of the similarity between her initials and those of her birth mother, A.S.

2 As of the time of the trial in 2010, M.P. was living with Alice and Alice's foster parents, T.C. ("the foster father") and H.G. ("the foster mother"). A.S. has apparently made an identified surrender of her parental rights concerning her son M.P. to H.G. The record provided to us does not indicate whether M.T.P.'s parental rights as to M.P. have been terminated or surrendered.

3 The Division asserts in its brief that the mother also named H.F. as Alice's birth father, although it does not cite to any documentation in the record in support of that assertion.

4 The father is required to pay child support for his and I.F.'s two children. At the time the father discovered that Alice was his child, he was having difficulty paying child support to I.F. As of the time of this trial, he had an unspecified amount of outstanding child support payable to I.F.

5 According to a report in the record, the father told a psychologist that the mother relocated to Pennsylvania after giving birth to Alice. That assertion is not contested by any party.

6 Other caseworkers from the Division were also involved in this matter, but they did not testify at trial. We do not refer to the testifying caseworker by name because her surname, coincidentally, is the same as that of one of Alice's parents.

7 This testimony was contradicted by the Division's expert, who noted in his bonding evaluation report that the father "admitted that he maintained only sporadic contact" with the mother and Alice during that time frame.

8 The mother has lived in at least three different residences since the Division filed its order to show cause in October 2007. She was evicted from at least one of those residences. As of the time of the 2010 guardianship trial, the mother was living with her sister.

9 The mother eventually obtained employment at a Taco Bell. As of the trial, she had been employed there for over a year.

10 According to the caseworker notes in the record, the father missed two of the drug-screening appointments. The notes reflect, however, that the father stated he could not keep those morning appointments because he had to attend welding classes.

11 The visits with the father were eventually restored by the trial court in February 2010.

12 Our disposition makes it unnecessary for us to address the suggestion made by the Law Guardian that the court consider the possibility of court-ordered post-adoption visitation of Alice with one or both of her parents, other than to note that no published case in our state to date has construed the applicable statutes to authorize such compelled visitation by birth parents after a child has been adopted by non-relatives. See In re Adoption of a Child By W.P., 163 N.J. 158, 172 (2000) (reiterating our State's legal policy against "open" adoptions); cf. In re D.C., 203 N.J. 545, 573-74 (2010) (recognizing a limited exception for ordering post-adoption visits by an adopted child's sibling).