NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. S.L.K.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1937-11T1

A-1938-11T1

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,1

Plaintiff-Respondent,

v.

 

S.L.K.,

 

Defendant-Appellant.

 

_____________________________

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

 

K.L.M.,

 

Defendant-Appellant.

 

_________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF K.L.K., a minor.

________________________________________________________________

S

November 26, 2012

ubmitted October 15, 2012 - Decided

 

Before Judges Graves, Espinosa and Guadagno.

 

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-88-11.

 

Joseph E. Krakora, Public Defender, attorney for appellant S.L.K. in A-1937-11T1 (William J. Sweeney, Designated Counsel, on the brief).

 

Joseph E. Krakora, Public Defender, attorney for appellant K.L.M. in A-1938-11T1 (Markis M. Abraham, Designated Counsel, on the brief).

 

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Kendra Andrews, Deputy Attorney General, on the brief).

 

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor K.L.K. (Lisa M. Black, Designated Counsel, on the brief).

 

PER CURIAM

Defendants, K.L.M. ("Keisha")2 and S.L.K. ("Steve"), appeal from an order that terminated their parental rights to their son, K.L.K. ("Kip"), who was born on April 8, 2010. We affirm.

At the trial of this guardianship matter, the Division of Youth and Family Services (DYFS or the Division) relied upon the testimony of Rosalyn Moulton, who had been defendants' caseworker since December 2010, and a psychologist, Daniel Bromberg, Ph.D., as well as documentary evidence that was admitted without objection. Keisha testified on her own behalf. Steve presented no evidence. No experts were presented on behalf of either Keisha or Steve.

DYFS's involvement in this case was initiated when Keisha, pregnant with Kip, told a hospital social worker that she was unable to care for an infant independently. The social worker referred Keisha to DYFS and requested Child Welfare Services for her. In addition to Keisha's stated concern regarding her ability to care for her baby, due on April 12, 2010, the social worker reported that she was "developmentally delayed and cognitively impaired" and "not capable of caring for a newborn/child." Keisha did not expect to have any help caring for the new child from friends or family members and was living with the unborn baby's father, Steve, who is also developmentally delayed. Keisha also suffers from a seizure disorder but was not taking her prescribed medication consistently. Her failure to do so had resulted in her losing housing at the supervised setting where she had lived. Keisha had been referred to New Starts for parenting classes, but was not attending with sufficient frequency. The DYFS worker who followed up on this referral stated that Keisha "did not appear to be as 'slow' as initially reported[,]" and further reported that Keisha said she stopped taking her seizure medication because it made her drowsy.

Neither Keisha nor Steve had custody of their other children. Keisha voluntarily surrendered her parental rights to her first child, S.M., in November 2000, when he was six years old. Steve has a sixteen-year-old daughter who resides with one of her maternal grandparents.

The second referral advised DYFS that Keisha had given birth to Kip. At this time, there were no concerns regarding substance abuse by Keisha and there were indications that, although cognitively impaired and suffering from a seizure disorder, Keisha had been "appropriate while caring for the child" in the hospital.

Home health aide services began on April 20, 2010. During this time, the health aide visited the family for four-hour periods five days per week. The aide suggested the parents might need parenting skills services and noted that on some days Kip was in soiled clothes and had not been cleaned. However, the reports were favorable overall.

On April 26, 2010, a DYFS worker was sent to defendants' home to check on the family. The worker reported that Keisha "appeared to be appropriately caring for her newborn" and that "the newborn did not appear to be in any discomfort." The worker also noted that the apartment had working utilities and that defendants had a sufficient supply of formula for the baby.

During the April 26 visit, the worker informed defendants they were scheduled to have psychological evaluations in May and that DYFS would provide transportation for them. Steve told the worker they would both be available. Defendants signed a case plan, which stated that DYFS would be providing home health aide services.

The third referral to DYFS was made on May 11, 2010 by an anonymous reporter who claimed that an infant in defendants' apartment was crying for hours at a time and that the father yells at the baby to "shut up." The reporter stated that the baby's cries then become louder, as if in response to being hit. A DYFS worker and supervisor went to defendants' home to investigate on May 13, 2010. Both defendants denied the allegations in the report, as well as any instances of domestic violence.

During this visit, the DYFS worker and supervisor observed an incident in which Steve manifested a failure to understand how to properly handle a baby. After Keisha handed Kip to him, Steve held the baby by his buttocks and had to be instructed several times on the proper way to hold the baby and support his head. Keisha had to be reminded to schedule a follow-up appointment for the baby. The worker created a "Safety Protection Plan," which prohibited Keisha from leaving the child home alone with Steve. Both defendants agreed and signed the plan.

Keisha also stated that she had not been to her parenting classes in a few weeks because she did not have enough money to purchase a bus card to get there. The worker observed

the couple to be very limited in the things they are capable of doing while carry [sic] the baby and caring for him in general. Although . . . the couple is limited they cared for the child in a loving manner. The baby was dressed appropriately, and was clean. There was plenty of formula in the home for the baby and the baby's sleeping arrangements were appropriate. The apartment overall was clean and all utilities were working.

On May 14, 2010, DYFS transported defendants to their scheduled psychological evaluations with Bessie Duncan, Ph.D.

On May 20, 2010, the DYFS worker called defendants' home and spoke with Steve, who informed her that Keisha was not home. The worker spoke to the parent aide, who stated she did not realize Keisha was not home because on other occasions Keisha did not come out of her bedroom with the child until two hours into the aide's shift. The worker told the aide that this was unacceptable, as Keisha and Steve need to be taught how to parent. On the same date, DYFS referred Steve to parenting skills services.

On May 24, 2010, the worker again visited defendants' home. Keisha told the worker that the parent aide had been coming to the home, that she resumed going to parenting classes, and that she took Kip for his follow-up examination.

Dr. Duncan issued her reports on Keisha and Steve in June 2010. With respect to Keisha, Dr. Duncan stated:

[Keisha] loves her child. Her capabilities seem adequate but she is unable to care for him long term without complete assistance from DYFS in the home, with parenting classes, regular daily assistance, periodic evaluations and checkups for the entire family, monitoring of her behavior and general supportive counseling. As the child matures there is [a] strong question as to [Keisha's] ability to handle the complexities of an older child's needs. Without the guidance and support of DYFS [Keisha] would not be able to care for her son. With support there would be major difficulties as the child grew up. Unless DYFS can arrange such assistance she would not be able to parent.

 

Dr. Duncan also concluded that although

[Steve] loves his son[, he] is not capable of parenting without major assistance. He is not able to care for him with the emotional and psychological pressures parenting demands. . . . His temperamental issues and deficiencies, which can cause outbursts, strong reactive behavior, along with his intellectual weakness suggest that the child be placed.

 

Dr. Duncan's ultimate conclusion was that defendants would require constant DYFS supervision in order to retain custody of Kip, and if DYFS could not provide such constant supervision, the child would be better off placed outside defendants' home.

Following this recommendation, the DYFS worker called defendants' home on June 11, 2010, and was informed by Steve that neither Keisha nor the parent aide were in the home, and that he was alone with the baby in violation of the safety plan. When the worker followed up two hours later, Keisha still had not returned home. Approximately six hours after the initial call, DYFS workers visited the apartment, and Keisha was still not there. It was determined that an emergency removal of Kip pursuant to N.J.S.A. 9:6-8.29 and 9:6-8.30, was necessary. Keisha returned to the apartment an hour and a half after the DYFS workers' arrival, after Steve called to tell her DYFS was there to remove the baby. The workers explained to defendants that they were taking the baby because Steve had been left alone with the child for a very long period of time in violation of the safety plan. They also explained the conclusions in Dr. Duncan's reports and advised them that DYFS was unable to provide the level of service defendants needed.

On June 15, 2010, DYFS initiated protective custody litigation by filing an order to show cause and to appoint a Law Guardian with temporary custody. The trial judge granted DYFS custody of Kip and he was placed in a foster home. He was approximately ten weeks old at the time he was removed from defendants' custody.

At the time Kip was removed, the Division's concerns regarding Keisha were that she had cognitive impairment, that she lacked an ability to independently care for Kip long-term, and that she abused drugs. Although he did not abuse drugs, Steve also had severe cognitive impairment. He also had a low tolerance for frustration that manifested itself in a short temper. DYFS was concerned that he was also unable to independently parent Kip.

DYFS's initial goal for defendants was family stabilization. A home health aide was provided five days a week. Keisha was referred to services for drug treatment, parenting skills and psychological evaluations.

Following Kip's removal, Keisha was assigned a Clinical Alcohol and Drug Counselor (CADC). In a July 2010 assessment, Keisha admitted to a history of marijuana use starting at age fifteen. A toxicology screening on August 4, 2010, revealed use of cocaine. However, she denied knowingly using cocaine and claimed that her cigarette must have been laced with cocaine. She started yelling and cursing at the DYFS worker when told that she would have to attend drug treatment programs. Over the course of this case, Keisha was referred to several substance abuse programs, including Integrity House, WISE Women and the Bridge Program but was discharged for non-attendance.

On July 14, 2010, Andrew P. Brown, III, Ph.D., performed a neuropsychological evaluation on Keisha and concluded that she "is not able to parent her child independent of supervision [] due to the extent and pervasive nature of her neuropsychological deficits[,]" which he identified as "permanent." Even with training in parenting skills, Dr. Brown found it likely that "the magnitude of [Keisha's] deficits will overwhelm benefits that may be derived" from such a course, and that her deficits "will not be lessened or altered with efforts aimed at remediation."

On September 21, 2010, DYFS filed an Amended Verified Complaint, to include Keisha's long history of substance abuse. The trial court granted DYFS continued custody of Kip on September 27, 2010, after a fact-finding hearing.

Defendants were provided an opportunity to visit Kip on a weekly basis. They were consistent in exercising visitation and the caseworker described the visits as "fairly appropriate," although defendants were frequently tardy and had some difficulty in responding with patience to Kip when he cried. Of greater concern was Keisha's apparent continued drug use. On one occasion, Keisha was nodding off during the visit and then refused to take a urine screen. The court then ordered that Keisha take a drug test before her next visitation. In September 2011, DYFS informed the court that Keisha had failed a drug test on August 18, 2011, prior to a scheduled visit with Kip, and that her visitation was suspended as a result. Keisha failed to attend all of the subsequently scheduled visits in August and September. DYFS did not hear from her during this time until the September 2011 hearing.

Moulton testified that DYFS changed its goal from "family stabilization" to adoption because Keisha "continued her drug use as she continued to test positive for cocaine in her program[,]" and Steve "fail[ed] to attend any recommended services that [DYFS] required." Defendants offered two persons as potential resource placements for Kip. The first refused to give the information necessary to become a resource. The second was ruled out after a background check.

Following a hearing, the trial court entered an order on December 8, 2010, designating the permanency plan as adoption. Kip was placed in a second foster home in January 2011, because his previous foster parent did not wish to adopt. He has remained with these foster parents, who are eager to adopt him.

On January 18, 2011, DYFS filed an order to show cause and a verified complaint for guardianship against defendants, seeking to terminate their parental rights to Kip, then nine months old.

During a February 2, 2011 hearing, Keisha was ordered to submit to a random drug screen and tested positive for both marijuana and cocaine. The court subsequently ordered Keisha to attend a new CADC assessment and ordered Steve to attend parenting classes. Both defendants were ordered to submit to psychological evaluations by Dr. Bromberg. Keisha completed her psychological examination but failed to attend her CADC appointments. Steve failed to attend the parenting classes. As for the psychological examination, Steve attended the first session but did not complete it and then failed to attend the rescheduled session. The session was again rescheduled for the following month and completed then.

Moulton testified that she visits Kip in his foster home once a month, but often sees him and his foster family more frequently than that because she occasionally transports him for visits with defendants, which occur weekly. Moulton stated that Kip does not currently have any special needs or require any services. She described Kip's interactions with his foster family as

very positive. [Kip] has many foster brothers [and] foster sisters. During my visit I observed the children playing peek-a-boo . . . . I observed [Kip] laughing. His demeanor is very bright and engaging. He is considered the baby of the family and he knows it. In terms of his interaction with the foster mom he latches onto her as if she were, you know, his actual mom. He climbs on her lap and grabs her and doesn't want to let go. He hugs -- they hug and kiss. They show genuine affection towards each other.

Moulton testified that Kip's current foster parents are "very committed to adoption[,]" and that DYFS's plan is to have them adopt him if awarded custody. She testified that the foster mother is a "very experienced parent[,]" that she and Kip "appear to have a wonderful bond[,]" and that Kip "appears happy [and is] thriving, definitely" in this "stable home" with this "stable family."

As a result, Moulton testified that DYFS believes adoption is the best and "most permanent plan" for Kip. She further stated that Kip should not be returned to defendants' custody because he would be at risk, as Keisha continues to use drugs and both defendants cannot care for him without "long term assistance or services" that are beyond DYFS's capabilities.

Dr. Bromberg testified that from his evaluations of defendants, he concluded they "cannot parent [the] child at this time, nor would [they] be able to do so within the foreseeable future[,]" as their prognosis for change is "poor."

Dr. Bromberg stated that Keisha "didn't perceive or did not appear to perceive any difficulty or any problem in leaving [Kip] with [Steve,]" despite her agreement to the safety plan which prohibited her from doing so. She told him, "that's his father, so why not leave the baby with him?" Dr. Bromberg was also concerned by Keisha's discontinuing her anti-seizure medication against medical advice; her practice of placing Kip in a face-down position for sleeping, which increases the risk for Sudden Infant Death Syndrome; and an apparent lack of understanding of disciplinary strategies.

Dr. Bromberg also testified that Keisha described experiences of "severe physical and sexual abuse" from her childhood and a history of significant behavioral problems involving aggressive behavior at school. As recently as February 2011, she had been arrested for assault and battery. Dr. Bromberg stated it was a matter of concern that she never received psychological treatment for either of these issues. Despite a denial of cocaine use, Keisha later described "a pretty long history of cocaine use[.]" Dr. Bromberg opined that her prognosis for discontinuing that use is poor in light of her long history of cocaine use. When told that Keisha had tested positive for cocaine in August 2011 before a scheduled visit with Kip, Dr. Bromberg stated this reflected her "extremely poor judgment."

Dr. Bromberg administered three tests to Keisha: the Personality Assessment Inventory, the Adult Adolescent Parenting Inventory, Second Edition, and the Child Abuse Potential Inventory. Dr. Bromberg testified that Keisha responded to the questions "in a random manner" and that she scored "well below average," but that he could not discern whether this was the result of "below average parenting attitudes and beliefs" or due to her reading difficulties and/or failure to follow directions. Dr. Bromberg administered the same tests to Steve, which came out "invalid as well." Despite spending an excessive amount of time on the first test alone, he "produced something that was essentially uninterpretable[.]"

Dr. Bromberg testified that, throughout the course of the interview, Steve demonstrated a lack of understanding of the proceedings against him, including why his parental rights were being terminated and the roles of the attorneys and the judge in the proceedings. Dr. Bromberg opined that Steve would "be unable or have a severely impaired capacity to support his son and to look out for his son's welfare . . . ."

Steve was also unable to explain why it was problematic that Keisha had stopped taking her seizure medication, why Keisha had been instructed not to leave him alone with the child, and why it would be a concern if the parent of a baby used marijuana or cocaine. Steve also displayed no understanding of the necessity of child-proofing the home.

According to Dr. Bromberg, Steve appeared to have "very limited experience" with his child, and "didn't seem to have much attachment to his child[.]" During the course of the interview, Steve "became quite agitated" in response to being asked questions, and generally failed to provide responses to very important questions that shed light on parenting capabilities.

Dr. Bromberg concluded that defendants' "overall psychological functioning and ability to parent" is "extremely poor[,]" and that Steve is "more impaired" than Keisha. Neither Keisha nor Steve provided him with a "good plan for how they would provide their son with a safe and stable environment." When he asked Keisha what services she would need if Kip were returned to her custody, she said that she would need a home health aide five days a week from 8 a.m. to noon "to assist with different parenting tasks, bathing [Kip] and doing food shopping." He considered this an admission that she could not parent independently and needed assistance to perform basic parenting tasks.

Dr. Bromberg testified that Kip "really needs permanency at this point[,]" and that this "need is for permanency sooner rather than later." He stated that "the longer permanency is delayed the more the opportunity for psychological problems to arise, and the worse the psychological outcomes tend to be[,]" and thus that termination of defendants' parental rights "would be in [Kip's] best interest" since defendants could not achieve such permanency any time in the foreseeable future.

Dr. Bromberg testified that before defendants could provide even "minimally adequate parenting[,]" they would need to successfully complete parenting classes, complete a course of psychotherapy that addresses parenting issues, learn what is necessary to provide a safe environment for a child, provide a parenting plan, and learn how to appropriately discipline and care for a child. In addition, Keisha would need to successfully complete a substance abuse program and be clean for at least one year. He stated that defendants would "absolutely not" be able to parent Kip before accomplishing all of those requirements, which, he testified, could take as long as four years. Even then, he could not say with reasonable certainty that defendants would be able to provide Kip with "a safe and stable environment."

Keisha testified that she loves her son and wanted him returned to her custody. She stated that if he were returned to her, she would "make sure [her] house is baby proof [sic] and take care of [him] as best [she] can." She testified she would cooperate if DYFS were to instruct her not to leave the child alone with Steve. When asked what supplies she needed in order to take care of her one-and-one-half-year old son, Keisha answered, "[j]ust milk and Pampers." Steve did not testify.

The trial court concluded that the Division had presented clear and convincing proof of all four prongs of the "best interests" test, N.J.S.A. 30:4C-15.1(a), and entered an order terminating defendants' parental rights. Defendants' appeals from this order have been consolidated.

Steve presents the following argument in his appeal:

POINT I

 

THE ELEMENTS OF N.J.S.A. 30:40C-15.1 WERE NOT PROVEN BY CLEAR AND CONVINCING EVIDENCE

 

A. STEVE'S MENTAL LIMITATIONS DID NOT RESULT IN ANY HARM TO THE CHILD

 

B. NO EVIDENCE WAS PRESENTED TO SHOW A LACK OF ABILITY AND WILLINGNESS ON THE PART OF STEVE TO RESUME PARENTING HIS CHILD

 

C. THE LEGAL CONCLUSION THAT THE DIVISION MADE "REASONABLE EFFORTS" TO PROVIDE SERVICES TO STEVE WAS ERRONEOUS

 

D. TERMINATION OF PARENTAL RIGHTS WILL CAUSE MORE HARM THAN GOOD

 

Keisha presents the following arguments on appeal:

POINT I

 

THE JUDGMENT AT TRIAL SHOULD BE REVERSED BECAUSE THE EVIDENCE PRESENTED AT TRIAL DID NOT SHOW, CLEARLY AND CONVINCINGLY, THAT IT WAS NECESSARY TO TERMINATE [KEISHA'S]'S PARENTAL RIGHTS IN ORDER TO PROTECT [KIP'S] BEST INTERESTS

 

A. DYFS FAILED TO ESTABLISH THE REQUIRED ELEMENTS OF PRONG FOUR OF THE 'BEST INTERESTS' TEST UNDER N.J.S.A. 30:4C:15.1(a) BECAUSE IT FAILED TO OFFER ANY BONDING EVALUATION FROM AN EXPERT DEMONSTRATING A BOND BETWEEN [KIP] AND HIS FOSTER PARENTS TO SUPPORT A FINDING THAT TERMINATING [KEISHA'S] PARENTAL RIGHTS TO [KIP] WOULD NOT DO MORE HARM THAN GOOD

 

B. THERE WAS NOT CLEAR AND CONVINCING EVIDENCE IN THE TRIAL RECORD THAT THE SAFETY, HEALTH OR DEVELOPMENT OF [KIP] HAS BEEN OR WILL CONTINUE TO BE ENDANGERED BY A PARENTAL RELATIONSHIP WITH [KEISHA]

 

C. DYFS FAILED TO ESTABLISH PRONG FOUR OF THE 'BEST INTERESTS' TEST N.J.S.A. 30:4C-15.1(a) BECAUSE THE TRIAL RECORD DID NOT CONTAIN CLEAR AND CONVINCING EVIDENCE THAT [KEISHA] COULD NOT PROVIDE A SAFE, STABLE HOME FOR [KIP], OR THAT A DELAY OF PERMANENT PLACEMENT WOULD HARM [KIP], OR THAT SEPARATING [KIP] FROM HIS RESOURCE [FAMILY] WOULD CAUSE [KIP] SERIOUS AND ENDURING EMOTIONAL OR PSYCHOLOGICAL HARM

 

1. THERE WAS SUBSTANTIAL EVIDENCE AT TRIAL TO SUPPORT [KEISHA'S] WILLINGNESS AND ABILITY TO PARENT

 

2. THE TRIAL COURT DID NOT FIND THAT [KIP] WOULD SUFFER SERIOUS AND ENDURING PSYCHOLOGICAL HARM. ANY HARM RESULTING FROM [KIP'S] SEPARATION FROM HIS FOSTER PARENTS WAS SPECULATIVE BECAUSE NO BONDING EVALUATION WAS CONDUCTED

D. PRONG THREE OF THE N.J.S.A. 30:4C-15.1(a) TEST WAS NOT ESTABLISHED BECAUSE DYFS MADE SUPERFICIAL, NOT REASONABLE, EFFORTS TO IDENTIFY THE ISSUE [KEISHA] NEEDED TO ADDRESS TO ACHIEVE REUNIFICATION WITH [KIP] AND TO ASSIST [KEISHA] IN PROCURING SERVICES THAT WOULD ADDRESS THOSE ISSUES

 

We first review the legal principles that govern our review. Termination of parental rights is warranted when DYFS establishes clear and convincing evidence that all four prongs of the "best interests" test have been met:

(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;

 

(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;

 

(3) The [D]ivision 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); N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 167-68 (2010).]

 

Harm, as addressed in the first prong of the statutory test, "involves the endangerment of the child's health and development resulting from the parental relationship." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). "[T]he focus [of this prong] is on the effect of harms arising from the parent-child relationship over time on the child's health and development." Ibid.

Under the second prong, the "Division must demonstrate that the parent is 'unable to eliminate the harm facing the child or is unable . . . to provide a safe and stable home for the child,' . . . before any delay in permanent placement becomes a harm in and of itself." N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 434 (App. Div. 2001) (quoting N.J.S.A. 30:4C-15.1(a)(2)), certif. denied, 171 N.J. 44 (2002). "No more and no less is required of [the parents] than that they will not place their children in substantial jeopardy to physical or mental health." N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 607 (1986).

To satisfy the third prong of the "best interests" standard, DYFS must make "'reasonable efforts to provide services to help the parent' remedy the circumstances that led to removal of the child[] from the home." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 452 (2012) (quoting N.J.S.A. 30:4C-15.1(a)(3)). DYFS must

encourage, foster and maintain the bond between the parent and child as a basis for the reunification of the family. DYFS must promote and assist in visitation and keep the parent informed of the child's progress in foster care. DYFS should also inform the parent of the necessary or appropriate measures he or she should pursue in order to continue and strengthen that relationship and, eventually, to become an effective caretaker and regain custody of his or her children.

 

[In re Guardianship of D.M.H., 161 N.J. 365, 390 (1999).]

Such efforts should include:

(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).]

 

DYFS's efforts are measured not by their success but by whether they are adequate in light of the family's needs in a particular case. D.M.H., supra, 161 N.J. at 393. In some cases, "even DYFS's best efforts may not be sufficient to salvage a parental relationship." F.M., supra, 211 N.J. at 452. The efforts are evaluated on an individualized basis "with reference to the circumstances of the individual case before the court, including the parent's active participation in the reunification effort." D.M.H., supra, 161 N.J. at 390.

Lastly, the fourth prong addresses whether "[t]ermination of parental rights will not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4). The focus of this prong is whether the child will suffer a greater harm from the termination of ties with the natural parents than from the permanent disruption of the child's relationship with the foster parents. K.H.O., supra, 161 N.J. at 354-55.

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." Id. at 348. Notably, the "best interests" standard is applied in light of "New Jersey s strong public policy in favor of permanency." Id. at 357. Accordingly, "[i]n all our guardianship and adoption cases, the child's need for permanency and stability emerges as a central factor." Ibid.; see also In re Guardianship of J.C., 129 N.J. 1, 26 (1992).

We afford great deference to the Family Part's findings of fact and conclusions of law based on those findings. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007); N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278-79 (2007); N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008). The family court's decision to terminate parental rights will not be disturbed "when there is substantial credible evidence in the record to support the court's findings." Ibid.; see also In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). "Only when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark' should an appellate court intervene and make its own findings to ensure that there is not a denial of justice." E.P., supra, 196 N.J. at 104 (quoting G.L., supra, 191 N.J. at 605). We are satisfied that the trial court's decision was supported by substantial, credible evidence and summarize the salient evidence in support of each prong as follows.

Both defendants have expressed their love for Kip. Sadly, their very substantial cognitive impairment, which is even more pronounced in Steve's case, and compounded by Keisha's continued drug use, presents a danger to Kip's safety, health, and development if left in their care. Thus, there was sufficient evidence to support a finding that the first prong was satisfied.

Before Kip was born and even during her psychological evaluation, Keisha recognized that she was unable to parent him independently. She had an apparent awareness that her cognitive deficits limited her abilities, but remained resistant to acknowledging her drug abuse despite repeated positive drug tests. Keisha also manifested an inability to comprehend how her continued drug use further impaired her ability to parent and was either unwilling or unable to address her drug use through treatment. Further, by using drugs prior to her scheduled visitations, she placed her right to visitation at risk. Although Keisha agreed to a case plan that prohibited leaving Kip in Steve's care, she failed to appreciate why his deficits precluded him from safely caring for Kip alone and violated the case plan.

Although Steve did not have any drug use issues, his cognitive deficits limited his parenting ability even more profoundly. His observed behavior revealed that he did not know how to hold a baby properly and had a low tolerance for frustration. Despite being told of the need for parenting classes and psychological evaluation, which would have assisted him in both addressing the harm that led to Kip's removal and providing evidence possibly helpful to him in this litigation, Steve failed to attend classes and was less than fully cooperative in getting the evaluation completed.

The evidence thus clearly and convincingly showed that defendants were unable or unwilling to eliminate the harm facing Kip. Moreover, although he voiced skepticism as to the ultimate success of even fully compliant efforts by defendants, Dr. Bromberg opined that it would take at least four years of such efforts before defendants could reach a level of competence that would permit a return of Kip to their custody. To delay a permanent placement for so long would add to the harm presented by this parent-child relationship, with little prospect that defendants' efforts would be more committed or productive than they have been to date. We are therefore satisfied that the second prong of the best interest test was satisfied by clear and convincing evidence.

As noted, the Division developed a case plan with defendants with family stabilization as the goal. Initially, the plan called for home health aide services. This was followed by a "Safety Protection Plan," which prohibited Keisha from leaving the child home alone with Steve. Keisha was referred to several drug treatment programs and both Keisha and Steve were referred to parenting programs and psychological evaluations. An aide was provided, five days a week, to assist them in learning how to parent independently. The goal of reunification had to be abandoned because defendants' need for constant, supervisory assistance exceeded the Division's capacity to provide services and because defendants failed to take advantage of the services that were offered. The Division set up a suitable visitation plan, which was curtailed only by defendants' tardiness and Keisha's drug use. The Division also considered the alternative placements offered by defendants. We are therefore satisfied that the evidence clearly and convincingly satisfies the third prong.

No bonding evaluations were done in this case. Kip was only ten weeks old when he was removed from defendants' custody. His contact with them thereafter was limited to weekly supervised visits. At the time of trial, Kip was approximately eighteen months old and had lived with the resource family that wished to adopt him for approximately ten months. Although there are "very few scenarios" in which comparative bonding evaluations are not required, N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 440 (App. Div. 2009), this case presents such a scenario. The argument that the fourth prong is satisfied here is not that Kip would be harmed by losing his relationship with his foster parents, which plainly would require comparative evaluations. See J.C., supra, 129 N.J. at 18. Here, the harm posed is defendants' unfitness as parents, irrespective of any attachment Kip has to his foster family. The evidence showed that the foster family can provide a stable, permanent home for Kip now, and that defendants would not be able to parent him, under the best of circumstances, for at least four years, adding to the harm he would suffer. Moreover, there was no evidence that termination of defendants' parental rights would do any harm to Kip, let alone more harm than good. As a result, evidence of comparative bonding is of little value to the analysis. We are satisfied that Moulton's testimony about her observations of Kip with defendants and with his resource family was sufficient to provide the trial court with appropriate information and context regarding Kip's relationships for the court's analysis and that this prong was satisfied as well.

Affirmed.

 

1 On June 29, 2012, the Governor signed into law A-3101, which reorganizes the Department of Children and Families, which includes the renaming of the Division as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.

2 Fictitious names are used to protect the privacy of the parties.