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

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5041-10T4

A-5042-10T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

J.V. and E.A.G.,

Defendants-Appellants.

IN THE MATTER OF THE GUARDIANSHIP

OF J.A.V.-G., a minor.

-

November 15, 2012

 

Submitted September 25, 2012 - Decided

 

Before Judges Yannotti, Harris and Hoffman.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-0169-10.

 

Joseph E. Krakora, Public Defender, attorney for appellant J.V. (Carol A. Weil, Designated Counsel, on the brief).

 

Joseph E. Krakora, Public Defender, attorney for appellant E.A.G. (Albert M. Afonso, Designated Counsel, on the brief).

 

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

 

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor J.A.V.-G (Noel C. Devlin, Assistant Deputy Public Defender, on the brief).

PER CURIAM

In these consolidated appeals, defendants J.V. and E.A.G., appeal the May 4, 2011 judgment of guardianship entered by the Family Part terminating their parental rights to their then two-year-old son, J.A.V.-G. Both parents contend that plaintiff New Jersey Division of Youth and Family Services (the Division)1 failed to prove by clear and convincing evidence the requisite statutory factors to establish that J.A.V.-G.'s best interests would be served by terminating their parental rights. The Law Guardian for J.A.V.-G. supports the termination of defendants' parental rights.

In his oral opinion, Judge Gary J. Furnari addressed the standards governing termination of parental rights, N.J.S.A. 30:4C-15.1(a)(1) to (4), as well as pertinent case law, and concluded the Division had proven its case by clear and convincing evidence. After careful review of the trial record, we conclude the trial judge's decision is soundly based on substantial credible evidence of record, and, therefore, should not be disturbed on appeal. Accordingly, we affirm.

I.

J.A.V.-G. was born in March 2009, to unmarried parents E.A.G. and J.V. By then, the couple's parental rights to their son X.V., born in 2006, had already been terminated, and he had been adopted. They were also the parents of K.V., who was eight years old at the time of trial, and living with a maternal aunt. In November 2010, the couple had their fourth child together, R.V., who is in the custody of the Division.

J.A.V.-G. has a sensory integration disorder that causes him to bang his head and pull his hair, requiring him to wear a helmet. He receives developmental intervention and speech therapy weekly, and occupational therapy bi-weekly.

Each parent has an extensive history of substance abuse. On the date of X.V.'s birth in December 2006, both infant and mother tested positive for opiates. E.A.G. admitted using drugs during her pregnancy up until the day before X.V.'s birth. During an evaluation, J.V. admitted using heroin and to having been arrested five times "for drugs." J.V. was in prison from 1996-1999 for receiving stolen property. He entered a drug treatment program in January 2007, but left in February 2007.

On the day J.A.V.-G. was born, the Division received a referral from the hospital advising that he and his mother had tested positive for methadone. The Division obtained legal custody of J.A.V.-G. on April 1, 2009. J.A.V.-G. remained in the hospital for nearly seven weeks. Upon discharge, he was placed with the same couple who adopted his brother X.V. J.A.V.-G. remained in this home at the time of trial and the foster parents want to adopt him.

Shortly after J.A.V.-G.'s birth, J.V. suffered a stroke, which left him confined to a wheelchair. E.A.G. became his sole caretaker and said she could not leave him unattended. The Division determined it would not provide services to help E.A.G. care for J.V.

In November 2010, E.A.G. gave birth to R.V. who weighed just over three pounds and tested positive for methadone. E.A.G. admitted that she had been using street methadone during this pregnancy, and had not received any pre-natal care. R.V. was removed by the Division and, with the approval of the court, placed in the same home as X.V. and J.A.V.-G.

During the litigation, the Division offered the parents supervised visitation for ninety minutes each week, and provided bus cards for their transportation. Out of forty-four visitations offered, the parents attended nineteen and were often late when they did attend. Defendants blamed the bus service in their area for their poor attendance.

Before his stroke, J.V. was admitted to the Lennard Clinic in August 2008 for methadone treatment to eliminate his craving for opiates. He tested positive for opiates and methadone in September, October, November, and December 2008. He attended the clinic seven days a week through the time of his stroke. After the stroke, he attended the clinic two days a week. He remained in treatment at the time of trial.

E.A.G. also enrolled in the Lennard Clinic in August 2008, but the clinic placed her on involuntary withdrawal in July 2009 for nonpayment of fees. The Lennard Clinic did not have a contract with the Division, so the costs were not covered.

E.A.G. said she could not afford to pay the fees for both herself and J.V. E.A.G. was readmitted to the Lennard Clinic for methadone treatment in January 2010, after she tested positive for cocaine, opiates and methadone; however, she continued to struggle with substance abuse and had poor attendance. On March 26, 2010, E.A.G. left the clinic against medical advice. At the time of trial, she was not in treatment.

The Division referred both E.A.G. and J.V. for substance abuse evaluations at least seven times. E.A.G. attended an evaluation with Catholic Charities in April 2009. The evaluator recommended that she continue treatment at the Lennard Clinic and attend an intensive outpatient program at the Newark Renaissance House Woman's Program. Although the Division referred E.A.G. to the Renaissance House program, she stopped attending after three sessions and was dismissed in July 2009. When Catholic Charities reevaluated E.A.G. in January 2010, she admitted she continued to use heroin until February 2009.

J.V. attended a substance abuse evaluation on May 4, 2009. The evaluator recommended that J.V. continue at the Lennard Clinic and also attend Family Connections' Strong Fathers program. Although the Division referred him to the Family Connections Program, he did not attend due to his medical condition.

At the request of the Division, psychologist Antonio W. Burr, Ph.D. completed psychological evaluations of defendants as well as comparative bonding evaluations of J.A.V.-G. with defendants, and J.A.V.-G. with his foster parents. The evaluations were completed in September and October 2010. At trial, Dr. Burr testified that psychological testing of E.A.G. showed no organic brain dysfunction and indicated that her intellectual capabilities were in the low-average range. Dr. Burr could not formally score E.A.G.'s Rorschach psychodiagnostic test due to "card rejection," meaning she could not answer at all. According to Dr. Burr, this was a significant finding, as it pointed to her inability to handle unfamiliar stimuli. From this, Dr. Burr concluded that although E.A.G. could think concretely, she was unable to manage more complex or ambiguous problems that arose in daily life. The responses she did give were vague and simple, which also suggested limited problem-solving abilities.

Dr. Burr testified that psychological testing of J.V. showed no sign of neurological brain dysfunction, and an average range of intelligence; however, his problem-solving abilities and coping skills were inadequate to meet most demands of daily life. Dr. Burr said J.V. functioned "at a low, if not marginal level of adaptiveness and adjustment," his insight was "quite limited and superficial," and his judgment was "quite poor, subject to immature, impulsive, and anti-social elements in his personality," and he "engaged in a pervasive pattern of disregard for the rights and well being of others".

Dr. Burr noted that in a typical methadone program, methadone amounts are decreased over time until the body is rid of its craving, but in J.V.'s case, his dosages had increased from 2008 to 2011. Dr. Burr concluded that J.V. was "incapable of taking effective responsibility for the care or protection of any child under his care," and could not "even participate meaningfully in the care of a child such as J.A.V.-G."

II.

J.V. raises the following issues for our consideration:

POINT 1: THE COURT ERRED IN FINDING THAT THE DIVISION SATISFIED THE FIRST PRONG OF THE BEST INTERESTS TEST; THERE WAS NEVER A FINDING THAT DEFENDANT-APPELLANT HARMED HIS CHILD

POINT 2: THE ORDER TERMINATING THE FATHER'S PARENTAL RIGHTS MUST BE REVERSED BECAUSE THE NJ DIVISION OF YOUTH AND FAMILY SERVICES DID NOT MAKE REASONABLE EFFORTS TO PERMIT A PARENT CHILD RELATIONSHIP TO FORM BETWEEN THE FATHER AND HIS BABY

 

POINT 3: THE TRIAL COURT ERRED BY TERMINATING THE FATHER'S PARENTAL RIGHTS BECAUSE ALTERNATIVES TO TERMINATION AND ADOPTION, INCLUDING PLACEMENT WITH A MATERNAL AUNT, WERE NOT CONSIDERED.

 

POINT 4: THE TRIAL COURT ERRED BY TERMINATING THE FATHER'S PARENTAL RIGHTS BECAUSE A FINDING THAT THE FOURTH PRONG OF THE BEST INTERESTS TEST HAS BEEN MET DOES NOT BY ITSELF MEAN THAT THAT PARENTAL RIGHTS SHOULD BE TERMINATED

E.A.G. raises the following issues for our consideration:

POINT 1: THE TRIAL COURT MISAPPLIED THE APPROPRIATE LEGAL STANDARDS AND AS A RESULT ERRED IN TERMINATING E.G.'S PARENTAL RIGHTS WHERE THERE WAS NOT CLEAR AND CONVINCING PROOF SUFFICIENT TO SATISFY THE FOUR PRONGS OF N.J.S.A. 30:4C-15.1(A).

A. THERE WAS NOT CLEAR AND CONVINCING EVIDENCE TO SUPPORT THE TRIAL COURT'S DETERMINATION THAT E.G. WAS UNWILLING OR UNABLE TO PARENT HER CHILD AND THE TRIAL COURT'S DECISION IS NOT SUPPORTED BY SUBSTANTIAL, CREDIBLE EVIDENCE.

 

B. THE DIVISION'S EFFORTS TO REUNIFY THE FAMILY WERE INSUFFICIENT TO SATISFY ITS OBLIGATION UNDER THE THIRD PRONG.

 

C. THE DIVISION FAILED TO ADEQUATELY CONSIDER ALTERNATIVES TO TERMINATION OF PARENTAL RIGHTS IN ORDER TO SATISFY ITS OBLIGATIONS UNDER THE THIRD PRONG.

A parent's right to enjoy a relationship with his or her child is constitutionally protected. In re Adoption of Children by L.A.S., 134 N.J. 127, 132 (1993). "Parental rights, though fundamentally important, are not absolute. The constitutional protection surrounding family rights is tempered by the State's parens patriae responsibility to protect the welfare of children." In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999).

Under N.J.S.A. 30:4C-15.1(a), the Division can initiate a petition to terminate parental rights on the grounds of the "best interests of the child" if the following standards are met:

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

 

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

 

(3) The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and

 

(4) Termination of parental rights will not do more harm than good.

"The four criteria enumerated in the best interests standard 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." K.H.O., supra, 121 N.J. at 348.

Termination of parental rights permanently cuts off the relationship between children and their biological parents. . . . When the biological parents resist the termination of their parental rights, the court's function is to decide whether the parents can raise their children without causing them further harm. . . . 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.

 

[In re Guardianship of J.C., 129 N.J. 1, 10 (1992).]

 

The Supreme Court has recognized, however, that children have a "paramount need" for "permanent and defined parent-child relationships." Id. at 26. There are "strong policy considerations that underscore the need to secure permanency and stability for the child without undue delay." In re Guardianship of DMH, 161 N.J. 365, 385 (1999).

"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) (citation and internal quotation marks omitted). We are obliged to accord deference to the trial court's credibility determinations based upon the judge's opportunity to observe and hear the witnesses. Cesare v. Cesare, 154 N.J. 394, 412 (1998).

III.

A. The first prong of the best interests test.

J.V. argues that the court's finding of endangerment under prong one of N.J.S.A. 30:4C-15.1(a) was not supported in the record. We do not agree.2

To meet the first prong of the best interests of the child test, the Division must show a harm that threatened the child's health and that it will likely have continuing deleterious effects on the child. K.H.O., supra, 161 N.J. at 337. "Although a particularly egregious single harm can trigger the standard, the focus is on the effect of harm arising from the parent-child relationship over time on the child's health and development." Id. at 348. The absence of physical abuse or neglect is not conclusive; the court also must consider the potential for serious psychological damage. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 605 (1986).

A parent's withdrawal of solicitude, nurture, and care for an extended period is itself a harm that endangers the health and development of the child. DMH, supra, 161 N.J. at 379. The "relevant inquiry focuses on the cumulative effect, over time, of harms arising from the home life provided by the parent." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 289 (2007).

"Courts need not wait to act until a child is actually irreparably impaired by parental inattention or neglect," DMH, supra, 161 N.J. at 383, but that admonition "must be understood, considered, and applied in the context of a clear record showing a pattern of parental inaction and neglect, amounting to unfitness." N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 615 (App. Div.), cert. denied, 192 N.J. 69 (2007).

With regard to the first prong, the trial judge noted J.V.'s long history of drug abuse, and found that his serious drug addiction had affected his ability to provide a healthy and stable environment. This included J.V.'s complicity in E.A.G.'s heroin and methadone use, which resulted in J.A.V.-G. being born addicted to methadone. Despite three years of methadone treatment, J.V.'s dosage had increased, not decreased.

J.V. also failed to perform any parenting functions or to provide care or support for two years. He failed to attend more than half of the scheduled visits with his son over a two-year period. When he did attend, he spent little time interacting with his son and focused more on his own issues. The judge cited Dr. Burr's opinions to support his finding that J.V. had failed to conform his behavior to lawful norms, failed to plan, and failed to act responsibly toward his children. Therefore, the judge found that such conduct endangered J.A.V.-G.'s health and development. We are satisfied that the trial judge correctly determined that the Division met its evidentiary burden on prong one.

 

 

B. The second prong of the best interests test.

J.V. contends the trial judge improperly considered his methadone usage in evaluating the second prong as to him. We do not agree.

The second prong of the statute is aimed at determining whether the parent has cured or overcome the initial harm that endangered the health, safety, or welfare of the child, and is able to continue a parental relationship without recurrent harm to the child, or alternatively, that the parent is unable to provide a safe and stable home for the child and that the delay in securing permanency continues or adds to the child's harm. K.H.O., supra, 161 N.J. at 348-49. "[T]he second prong may be met by indications of parental dereliction and irresponsibility, such as . . . the inability to provide a stable and protective home[.]" Id. at 353. The first and second prongs are related to one another, and evidence that supports one may support the other. DMH, supra, 161 N.J. at 379.

In his oral opinion, the trial judge focused on the fact that J.V. was not making progress. His methadone usage was not tapering but had increased significantly since he started the program. Dr. Burr, the only expert to testify at trial, explained that the level of methadone usage is proportional to the amount of "craving" the person is experiencing, i.e. the strength of the addiction. The judge therefore concluded that J.V. would be unable to overcome his addiction within a reasonable amount of time to parent J.A.V.-G.

As for E.A.G., the judge found she had "grave substance abuse issues." E.A.G. failed to attend multiple substance abuse referrals and otherwise failed to participate in therapy. The judge recounted E.A.G.'s explanation that she missed numerous assessments because she wanted to receive treatment at the Lennard Clinic, even though she could not afford it. The judge found that E.A.G.'s goal of staying off of drugs was "not likely to become a reality at any time . . . soon" as evidenced by the November 2010 birth of another child who was born with methadone in her system. The judge found she "lacks consistent motivation to be treated[,]" as evidenced by her non-appearance at five drug evaluations in the past five months. He concluded she was "simply unwilling or unable to overcome the risk to the child," despite ample opportunities to do so.

E.A.G. contends that the court's findings "failed to take into account the fact that the Division refused [both to] allow E.A.G. to attend a [drug] program which worked for her and to provide her with assistance and training to deal with her husband's serious medical issues". The record does not support this claim. The Division did not refuse to allow E.A.G. to continue treatment at the Lennard Clinic. E.A.G. could have continued there if she were able to pay for it, but as the Division did not have a contract with Lennard Clinic, the Division was unable to pay for E.A.G.'s attendance. The Division tried to facilitate E.A.G.'s drug treatment at other facilities, but E.A.G. repeatedly failed to attend drug evaluations and treatment sessions, as well as individual psychotherapy arranged by the Division.

E.A.G.'s request that the Division provide her with "assistance and training to deal with her husband's serious medical issues" was not reasonable, nor does it explain how, even if such assistance had been provided, it would have helped her drug abuse problem. E.A.G. has not cured the initial harm to J.A.V.-G., which was her drug abuse, and she was not able to provide a safe home for him without recurrent harm.

The birth of a third drug-addicted child in November 2010 is clear evidence of E.A.G.'s unwillingness or inability to address her addiction. Her attempts at rehabilitation, beginning in August 2008, have repeatedly failed. The record strongly supports the judge's finding that E.A.G. was unwilling or unable to cure the initial harm to J.A.V.-G. or was able to continue the parental relationship without recurrent harm.

 

C. The third prong of the best interests test.

J.V. argues that the Division failed to make reasonable efforts to permit him to form a parent-child relationship with his son. Specifically, he complains that he was denied the opportunity to learn about J.A.V.-G.'s developmental disabilities and to attend J.A.V.-G.'s occupational therapy sessions. We do not agree.

The third prong that must be proved before terminating parental rights is that 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 the termination of parental rights[.]" N.J.S.A. 30:4C-15.1(a)(3). Both parents contend that reasonable efforts were not made to reunite their family, and that the Division did not properly consider alternatives to termination.

The third prong focuses on efforts concerning "reunification of the parent with the child and assistance to the parent to correct and overcome those circumstances that necessitated the placement of the child into foster care." K.H.O., supra, 161 N.J. at 354. "[A]n evaluation of the efforts undertaken by [the Division] to reunite a particular family must be done on an individualized basis." DMH, supra, 161 N.J. at 390. The diligence of the Division's efforts is "not measured by their success." Id. at 393.

Here, the trial judge noted the numerous services the Division provided to the defendants, including psychological evaluations, substance abuse evaluations, drug treatment, parenting skills classes, and visitation. The Division also gave defendants monthly bus cards so they could utilize the services provided. The judge rejected defendants' contention that the bus cards constituted inadequate assistance for their transportation needs.

J.V.'s claim that buses often refused to pick him up because of his wheelchair was severely undercut by the fact that since his stroke, he still obtained methadone treatment two times per week at the Lennard Clinic and met once a month with a counselor, missing only six appointments over the course of nearly two years from the time of his stroke until the trial. Thus, the record showed that J.V. was capable of transporting himself to places that he wanted to go, and that his lack of attendance at many services offered by the Division was likely not caused by transportation problems. Therefore, the record supports the trial judge's finding that the Division made reasonable efforts that led to the child's removal from his parents' care.

The record shows, however, that the Division attempted to inform the parents of J.A.V.-G.'s condition at team meetings and placement reviews, but the parents never attended. The case worker tried to meet with the parents after a visitation to specifically explain J.A.V.-G.'s condition, but J.V. said he did not feel well and did not want to stay. The case worker attempted to meet with defendants again at their home, but E.A.G. was not there, so the meeting did not take place. While the Division might have made additional attempts to educate defendants about their son's medical problems, there is no indication in the record that defendants were prepared to receive or reasonably act upon this information based upon their own medical problems and serious addiction issues.

E.A.G. argues that the Divisions efforts were not reasonable because it refused to help her pay for the Lennard Clinic. As noted above, the Division made numerous efforts to assist E.A.G. with her drug abuse problem, but E.A.G. failed to attend assessments and psychotherapy. The Division was not obliged to provide services in the manner dictated by the client. It is only required to act reasonably. Because the Division did not have a contract with the Lennard Clinic, it was reasonable for the agency to offer E.A.G. treatment at a program with which it did have a contract.

Both parents maintain that the second part of the third prong was not satisfied because the Division did not adequately explore possible placement of J.A.V.-G. with E.A.G.'s sister, H.P., as an alternative to termination.

The Division has an obligation to identify and assess relatives who may be able to care for the child. N.J.S.A. 30:4C-12.1; N.J. Div. of Youth & Family Servs. v. K.L.W., 419 N.J. Super. 568, 580 (App. Div. 2011). This is so that the court can "assess potential placements that provide permanency for the child without cutting the child off from all family ties, a well-recognized negative collateral consequence of adoption." K.L.W., supra, 419 N.J. Super. at 580. However, the fact that the Division may have violated its statutory obligation in a particular case "should not be misunderstood to provide a last minute defense to termination for a parent who identifies a relative previously unknown and not reasonably known to the Division, after the guardianship complaint has been filed." Id. at 581.

E.A.G. offered her sister H.P. as a placement alternative, but not until over sixteen months after J.A.V.-G. was born, and after the guardianship complaint had been filed. Moreover, despite a court order, E.A.G. never provided contact information for her sister; the Division found H.P. only after discovering that defendants had another child of which the Division was unaware, who was in H.P.'s care. A parent cannot expect the Division to identify and locate a relative with no information. Id. at 582. H.P. did not even know her sister had been pregnant again, which indicated that for at least two years, there had been no contact between the sisters, and presumably no contact between K.V. and her natural parents. Thus, to the extent that the aim of the statute is to prevent cutting off family ties, that goal would not have been met here, as H.P. and K.V. were strangers to J.A.V.-G.

Defendants complain that the Division did not perform a full home investigation of H.P., but rejected her based on the fact that J.A.V.-G. had been with his foster family for nearly two years, and based on H.P.'s immigration status.3 Even if the Division should have performed a more complete evaluation of H.P., such a shortcoming would not warrant reversal. "Delay of permanency or reversal of termination based on the Division's noncompliance with its statutory obligation is warranted only when it is in the best interests of the child." Id. at 581.

Here, J.A.V.-G. had been with his foster parents since he was seven weeks old. He has special needs which were being fully met and he was with his biological brother, who had been adopted by the same family. He did not know H.P., or his biological sister in her care. H.P.'s immigration status presented a legitimate concern. Even though it appears she was in the country legally, she was not a permanent resident and her status had to be renewed every two years. If her right to be in this country were altered, J.A.V.-G.'s future would be uncertain. Therefore, to the extent that the Division should have more fully investigated H.P., we perceive no reasonable possibility that it would have been in J.A.V.-G.'s best interests to disrupt his successful placement with his foster family at such a late time in the process.

D. The fourth prong of the best interests test.

Finally, the Division must show that the termination of parental rights will not do more harm than good to the child.

Prong four "serves as a fail-safe against termination even where the remaining standards have been met." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 609, 926 A.2d 320 (2007). The question ultimately is not whether a biological mother or father is a worthy parent, but whether a child's interest will best be served by completely terminating the child's relationship with that parent. It has been "suggested that [a] decision to terminate parental rights should not simply extinguish an unsuccessful parent-child relationship without making provision for . . . a more promising relationship . . . [in] the child's future." A.W., supra, 103 N.J. at 610, 512 A.2d 438 (alterations in original) (quotation omitted). It also is widely understood that a "child deeply needs association with a nurturing adult" and that "permanence in itself is an important part of that nurture." Ibid.

 

[N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 108 (2008).]

 

"Inherent in the fourth factor is that a child has a 'paramount need for a permanent and defined parent-child relationship' . . . as well as a deep need for a nurturing adult, commonly termed the 'psychological parent.'" N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 119 (App. Div.) (quoting J.C., supra, 129 N.J. at 26), certif. denied, 180 N.J. 456 (2004)). When a parent has harmed a child through abuse or neglect and is unable to remediate the danger to the child, and when the child has bonded with foster parents who have provided a safe and nurturing home, termination of parental rights likely will not do more harm than good. E.P., supra, 196 N.J. at 108. "The 'good' done to a child in such cases in which reunification is improbable is permanent placement with a loving family[.]" Ibid. Even then, however, the Division must show "'that separating the child from his or her foster parents would cause serious and enduring emotional or psychological harm.'" Ibid. (quoting J.C., supra, 129 N.J. at 29).

In this matter, the trial judge pointed to Dr. Burr's evaluation to support the conclusion that "between [E.A.G.] and the child, the bond [is] one of only familiarity and that the attachment is superficial and not substantial . . . [and] there is a clear lack of attachment and bonding between [J.V.] and his son." This is in sharp contrast to the judge's findings between J.A.V.-G. and his foster parents:

[J.A.V.-G.] relates to his foster mother and his [foster] father as primary parental figures from whom he expects nurturing and is focused on them to have his physical and emotional needs met. Both foster parents were attuned and attentive to him. [J.A.V.-G.] smiled often at his foster parents and responded well to their direction and supervision. As supported by Dr. Burr's testimony at trial, there is no doubt that [J.A.V.-G.] is bonded to his foster parents.

 

The judge also cited the foster parents' desire to adopt, their attention to J.A.V.-G.'s special needs, as well as the fact that J.A.V.-G. would be with his older brother X.V., as further support for his conclusion that termination of parental rights would not do more harm than good.

J.V. does not dispute the judge's findings, nor does he claim that termination of parental rights would not do more harm than good. His only argument is that "[s]atisfaction of Prong Four alone is not enough to support Termination of Parental Rights." However, as discussed above, the other three prongs were satisfied as well. Because the other three prongs were satisfied, there is no merit to J.V.'s argument. E.A.G. raises no argument concerning this prong. We are satisfied the fourth prong was firmly established.

A

ffirmed.

1 On June 29, 2012, the Governor signed into law A-3101, which reorganized the Department of Children and Families, including the renaming of the Division as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. July 2, 2012.

2 Esther does not contest the finding against her on prong one. On May 14, 2009, Esther stipulated that she had not obtained pre-natal care and had used drugs during her pregnancy which caused her son to suffer from methadone withdrawal.

3 H.P. is not a United States citizen. She testified that she has a "worker concession card," and explained that she has to renew this card every two years.