DIVISION OF YOUTH AND FAMILY SERVICES v. H.M. and J.C., II IN THE MATTER OF THE GUARDIANSHIP OF J.C., III a Minor

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5483-09T1

A-5520-09T1

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

H.M. and J.C., II,

Defendants-Appellants.

_________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF J.C., III,

a Minor.

___________________________________

January 13, 2012

 

Submitted December 7, 2011 - Decided

 

Before Judges Fuentes, Harris, and Koblitz.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FG-05-08-09.

 

Joseph E. Krakora, Public Defender, attorney for appellant H.M., (Anthony J. Vecchio, Designated Counsel, on the brief).

 

Joseph E. Krakora, Public Defender, attorney for appellant J.C., II, (Evelyn F. Garcia, Designated Counsel, on the brief).

 

 

 

 

Paula T. Dow, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Alison A. Reynolds, Deputy Attorney General, on the brief).

 

Joseph E. Krakora, Public Defender, Law Guardian, attorney for J.C., III, a minor (Aleli M. Crawford, Assistant Deputy Public Defender, on the brief).

PER CURIAM

In these consolidated guardianship/termination of parental rights appeals, a mother (Helen) and father (James),1 appeal from an order entered on May 26, 2010, terminating their parental rights. The child involved is Jamie, who was four years old at the time of the guardianship trial. The law guardian for the child supports the termination of Helen's and James's parental rights. We affirm.

I.

Helen gave birth to Jamie in early April 2005. The day after the delivery, a nurse at the hospital made a referral to the New Jersey Division of Youth and Family Services (the Division), advising, among other things, that Helen had a history of depression and bipolar disorder. The Division learned that during a September 2004 prenatal visit, Helen had informed hospital staff that she had been taking medication for her bipolar disorder until February or March of 2004, and that she had been sexually abused "a long time ago." Helen denied drug and alcohol use at that time, but three weeks later, she admitted using marijuana two to three times per week. Several drug tests over the next few months proved negative for substance abuse.

A Division employee spoke to Helen at the hospital. Helen described her relationship with the child's father James, indicating that once she had a fight with him that caused her to obtain a restraining order. They also frequently consumed illegal drugs together. Helen represented that although she had used controlled dangerous substances in the past, including marijuana and crack, she was free of the substances since September 2004, and that James was likewise since December 2004, when he was arrested on a sexual assault charge.

Helen informed the caseworker that her symptoms of bipolar disorder ended when she stopped using illicit drugs. She had received that diagnosis in 2002, when she was hospitalized after being raped by an unnamed assailant. Before that, she claimed that her mother's boyfriend had sexually abused her, which consequently led her to live with her grandmother.

The Division took custody of Jamie because of the parents' history of drug use and domestic violence, and on April 7, 2005, Jamie was placed with a resource family.2 The Division contacted James's mother to serve as a resource for her grandson, but she declined custody because she had given birth in December 2004 to "a child about the same age and [she] had been out of work for a number of months and was unable to take any other time off and her life was just too hectic at that point."

The Division continued its investigation of the family. James told a caseworker that the incident underlying the sexual assault charge involved only a consensual sexual encounter. He reported that he last used marijuana a month earlier, that he used cocaine in the past, and that he was using alcohol. He said that Helen sought the restraining order because he pinned her to the floor when she was "acting strange" after ceasing to take her bipolar disorder medication.

In May 2005, James admitted that he had smoked marijuana daily since age fourteen, and that he had also ingested cocaine two or three times a month from age seventeen. Helen was also evaluated for drug use at the end of April 2005. She reported two involuntary hospitalizations for mental health issues. She claimed that she used to drink two glasses of wine per month, and that she had not consumed alcohol since May 2004. She further indicated that although she had ingested marijuana and crack, and "has taken Percocet recreationally on occasion," her last use of a controlled dangerous substance was in August 2004. After considering that Helen might not have been entirely truthful in reporting her prior drug use, the evaluator recommended on-going counseling.

Between May and October 2005, James and Helen participated in drug treatment and counseling programs. James failed to comply with his recommended outpatient treatment and was terminated from the program. Helen was reported as successfully completing a substance abuse program by complying with therapy, remaining drug free, staying employed, not showing "overt symptoms" of bipolar disorder, and not requiring medication.

On October 28, 2005, James was sentenced to six months imprisonment and three years probation for his guilty plea to fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b).

On November 4, 2005, Jamie was returned to Helen's custody.3 James was then incarcerated, but he was granted supervised visitation rights upon release, subject to the Division's selection of an appropriate supervisor, who expressly could not be Helen.

James was released from jail on March 5, 2006.4 Because Helen worked several jobs, caregivers regularly cared for Jamie, sometimes for weeks at a time. Then, in June 2007, the Division was advised that Helen was using marijuana and was coming home from work intoxicated. The Division also learned that James visited Jamie at Helen's residence when she was not present. It was further reported that Jamie was left unsupervised in the home while Helen slept.

On June 20, 2007, the Division was told by Helen that she had moved Jamie out of New Jersey to live with a relative elsewhere. Helen refused to meet with a caseworker unless she was ordered to do so by a court. Helen also refused to divulge the whereabouts of James, who was unable to be reached by his parole officer. On June 29, 2007, the Division filed a Title Thirty investigation complaint seeking the aid of the court in directing Helen and James to cooperate in the search for Jamie.

On July 2, 2007, Helen told a caseworker that she and Jamie were "now staying ten states away from" New Jersey and refused to say where she and her son were living. On July 3, 2007, the Division filed a new Title Nine protective services complaint based upon Helen's "ongoing substance abuse, non-compliance with court order regarding [James]'s contact with [Jamie], refusing to speak with the Division, and leaving the state with the child."5

By July 17, 2007, James turned himself in, admitted that he and Helen had gone out of state, and was jailed for violating parole. Near the end of August 2007, the Division located Jamie and Helen in Missouri. On August 24, 2007, Missouri authorities took custody of Jamie, and three days later the Division brought Jamie back to New Jersey and placed him again with his resource family.

Helen returned to New Jersey to live with her father. In a meeting with a Division caseworker shortly after arriving, Helen admitted that James's main residence was her home, and that she allowed James to be alone with Jamie because he sometimes cared for the child while she was at work. She acknowledged one occasion when she went to bed after work under the misimpression that Jamie was being supervised.

The Division immediately referred Helen to counseling services, which she utilized on several occasions. James started substance abuse counseling, but he did not attend regularly.

In early November 2007, David London, a clinical psychologist at Cape Counseling Services, performed a psychological evaluation of Helen, and one week later he issued his report. He found that Helen had adjustment and personality disorders. He believed that she had the ability "to parent and protect the safety and well-being of her child" and "just needs to examine herself, take responsibility for her choices regarding her son, work within the rules, and cooperate with services." Her noted weaknesses were that she could "be na ve and cynical, minimize problems and faults, cast herself in an overly positive light, and be blind to personal flaws."

Dr. London recommended counseling and parenting classes to help Helen "gain insight and adopt pro-social ways to resolve problems and parent her son," as he believed that she had a "fair" prognosis for benefiting from them. He further recommended continuing substance abuse screening "for some time," and a "very slow" relaxation of supervision at visitation in accordance with her progress.

In late November 2007, Janet Cahill, a psychologist and the director of the Rowan University Child & Family Assessment Clinic, evaluated Helen. Dr. Cahill found "evidence of significant psychopathology" that would likely "interfere with safe and effective parenting." Helen had poor life skills and poor problem-solving abilities, which accounted for her allowing James to move in with her despite the court order, for relying too much on the resource family, and for the possible neglect of certain medical conditions of her son.

Dr. Cahill diagnosed Helen as exhibiting dysthemic disorder, but she did not find any symptoms of bipolar disorder during her multiple sessions with Helen. She recommended "time limited therapy" for Helen's "possible depressive symptoms and her coping skills," and called Helen a "good candidate for a cognitive behavioral approach" if she were motivated to pursue it.

In late April 2008, Dr. Cahill performed a follow-up evaluation of Helen. She noted that Helen had moved in with James, who was described by a Rowan caseworker as "making significant and positive changes in his life" by being compliant with treatment and remaining "clean and sober." James was further considered to be "able to safely interact with Jamie." The caseworker found that Helen exhibited "significant" changes, namely, being "more thoughtful and reliable with [Jamie]," being willing to take responsibility for him, and recognizing that she needed to change her behavior instead of blaming others for her problems. In addition, Helen's father "had become more active and was a major support" for her.

While Helen still exhibited "significant psychopathology that is expected to interfere with safe and effective parenting," she had made "significant progress" in "both her insight and overall functioning." She "used her therapy effectively to gain insight into her traumas." Dr. Cahill concluded that Helen's improvement made her capable "of taking, over time, primary responsibility for [Jamie]."

By mid-May 2008, James successfully completed a substance abuse program at the Nancy C. Crafts Counseling Service. The program lasted four months, during which James's urine samples tested negative for drug use. Crafts Counseling noted that successful completion still had to be followed by weekly aftercare. On May 19, 2008, James completed his counseling program at Crafts Counseling for anger management and individual counseling program.

On June 6, 2008, James was arrested for driving while intoxicated, and his urine sample tested positive for marijuana and an unnamed central nervous system depressant. On June 9, 2008, Helen informed the Division about James's arrest, represented that she would not let him back in the house, and stated that she wanted to pursue sole custody in order to avoid prejudicing her chance for reunification with Jamie.

On July 16, 2008, the Family Part entered a permanency order in which the goal was termination of parental rights followed by adoption. The order recited the Division's contention that Helen "was aware of [James's] use of alcohol . . . and did not report the situation until after [he] had been arrested." The next day, James's mother contacted the Division to inquire about obtaining placement of Jamie.

On October 15, 2008, the Division filed its complaint for guardianship, seeking to terminate both Helen's and James's parental rights. That same day, the Division sent James's mother a rule-out letter. It explained that she was ineligible for custody because the Division had "determined that [she], a relative of the child(ren), [is] either not willing or not able to provide a home for the child(ren). This determination is based on [Jamie]'s best interest." The letter advised how to seek a review of that determination.

On October 23, 2008, James's mother protested that she had contacted the Division repeatedly since July 2008 about custody of Jamie. She further stated that she had been in her job for seventeen years, owned her own home, was regularly involved in Jamie's life, and wanted to care for him while Helen and James "do what [the Division] want[s] them to do" in order to "earn . . . back" custody. On October 31, 2008, the Division replied by apologizing for having misinformed her that a rule-out based on the child's best interests could be appealed.

On January 28, 2009, the Division sent another rule-out letter. Its explanation at that time was that Jamie had been "in the same home where he has resided since he was six weeks old, where he can remain permanently," so "we feel it is in his best interest for him to continue to remain with the family with whom he currently resides."

Pursuant to court order, psychologist Linda Jeffrey evaluated Helen. In the questionnaire that Helen completed for the evaluation, she wrote that she was "always" alcohol-free and drug-free, and she denied receiving treatment for an alcohol or drug problem. She denied any history of domestic violence or of being assaulted. She further denied ever having depression or other mental health issues, suicide attempts, admission to a psychiatric hospital, taking medications on a regular basis, or receiving psychological counseling beyond what the Division ordered. She denied that the Division ever lacked knowledge of her whereabouts while Jamie was in her care, but admitted taking the child to Missouri. Helen reported that Jamie's removal was mostly James's fault, for having "a long history of noncompliance."

Dr. Jeffrey's report stated that Helen scored "very much above average" in tests of a patient's tendency to give socially desirable responses rather than accurate ones, which would reflect narcissistic tendencies or concern about the evaluator's impressions. Her scores on other tests did not indicate significant personality disorders, but they did not eliminate the possibility of a substance dependence disorder.

Dr. Jeffrey believed that Helen's withholding and inconsistency about her history of mental health issues and substance abuse raised "serious questions about her current functioning." Helen's violation of court orders raised "concerns about her ability to conform to rule-governed behavior." Dr. Jeffrey concluded that Helen had "significant unresolved issues related to mental health functioning and substance abuse," and she did not recommend reunification.

Dr. Jeffrey also evaluated James. He denied having depression or other mental health problems, or having received counseling. He denied a history of alcohol or drug abuse, reported that he was drug-free without indicating for how long, and reported that he had been alcohol-free since July 2008 (except for drinking a six-pack of beer on Fridays). Nonetheless, he received substance abuse treatment and counseling at Crafts Counseling from February through May 2008, together with anger management counseling. He did not follow up with any relapse-prevention program.

James admitted to the domestic violence incident with Helen, the 2004 sexual offense, the arrest for driving while intoxicated, and a juvenile offense of drug possession with intent to distribute. He also admitted living with Helen and Jamie when he was prohibited from doing so by court order.

Dr. Jeffrey found that James was "a troubled, insecure, and forlorn individual who has difficulties with chronic depressive tendencies and anger management." He had "problems with self-esteem" and "difficulties forming stable, reciprocal relationships," and he might "engage in self-sabotage and be overwhelmed by ordinary responsibilities of self-care." She found it "reasonable to assume" that James had "a moderately severe mental disorder that may require further psychological intervention."

Dr. Jeffrey diagnosed James as suffering from several mental health disorders. She opined that the problems were significant and that they "seriously decrease his parenting capacity to provide a minimum level of safe parenting." The likelihood that he would "display significant problems with egocentrism, immaturity, a lack of empathy, instability, poor parenting judgment, impulsivity, and poor personal responsibility" made him unlikely to provide "reliable, consistent, attuned care" or "serve as a positive role model for [Jamie] for rule-governed behavior, appropriate emotional adaptation, or nonviolent conflict resolution." Consequently, Dr. Jeffrey did not recommend reunification.

In March and April 2009, while James was attending a Crafts Counseling program that he had started earlier in the year, he submitted three urine specimens that tested positive for marijuana. On March 19, 2009, he and four others were arrested for possession of heroin, cocaine, and marijuana. On March 30, 2009, James told the Division that he should not have been arrested, because only one arrestee, his then-current girlfriend's adult daughter, was selling drugs at their house. Not long thereafter, Crafts Counseling reported that James dropped out of the program.

On September 10, 2009, Dr. Jeffrey did a follow-up evaluation of Helen. In the questionnaire for that evaluation, Helen admitted that she had been using heroin at the time of the first evaluation. She reported other parts of her history that she had not previously told Dr. Jeffrey, namely, several psychiatric hospital admissions, her history of depression, and a more-recent detoxification program. She also reported the domestic violence with James and stated that she had moved away from him in July 2008. She planned to co-parent Jamie with her current boyfriend, who had no children of his own and did not accompany her to visitation.

In this evaluation, Dr. Jeffrey wrote that "a sustained full remission from substance dependence" required a period of at least twelve months, which Helen had not achieved. Helen reported achieving the first four steps of a twelve-step program, which she recognized as representing the beginning steps of recovery. Dr. Jeffrey found that Helen had "long-term and significant" psychiatric and substance abuse problems, and that she displayed denial, minimization, projection, and manipulation. Helen was considered unlikely to distinguish between her needs and Jamie's. The child needed a parent who could be a model for "identification[,] adherence to rule-governed behavior," and "emotional adaptation and coping skills," and thereby serve as "a reliable source of stability and security." Dr. Jeffrey had "a grave concern" about Helen's ability to "role model the skills and emotional maturity to form safe, stable and reciprocal relationships." She concluded to a reasonable degree of psychological certainty that Helen was "not prepared to provide a minimum level of safe parenting," and that Jamie was "likely to be at risk for harm in her care," so she did not recommend reunification.

Dr. Jeffrey also performed a bonding evaluation of Jamie and Helen. When Helen arrived and greeted Jamie, he did not greet her "enthusiastically" or "display spontaneous affection." He told Helen a story about one of his foster parents and referred to her as "my Mommy." While Jamie "appeared to understand that [Helen] is his birth mother, to be very familiar with" her, "and to have an affectionate tie with" her, he "displayed more emotional distance from" her than at an earlier bonding evaluation, and "appeared to be less interested in spending the hour with her." For her part, Helen "displayed an even-tempered, affectionate style of child management" and she was attentive to Jamie and "able to redirect and reinforce his behavior."

Dr. Jeffrey expressed "significant concern" that Helen's apparently strong emotional tie to Jamie had not motivated her to recover him from foster care by avoiding opiates and "sustain[ing] abstinence." It was "highly questionable whether [Helen could] provide a stable and secure parenting context." Dr. Jeffrey concluded that Jamie "did not present as grounding his sense of belongingness or stability in his relationship with" Helen and that Jamie considered his home to be with his resource family.

Dr. Jeffrey also evaluated Jamie's bonding to his foster parents. She found that Jamie was "relaxed, affectionate, smiled at the foster parents, and oriented his activities to their location. He maintained close proximity to them and displayed spontaneous affection to them." He treated the foster parents as his psychological parents because he "used them both as secure bases, and responded to their parenting authority." They "displayed child management skills and a warm, authoritative parenting style." Dr. Jeffrey concluded, to a reasonable degree of psychological certainty, that Jamie had a secure attachment to the foster parents, and that removing him from them was "likely to place him at risk for serious and enduring harm." She recommended that Jamie remain in their care.

Dr. Jeffrey scheduled an evaluation session to update her psychological and bonding evaluations of James, but he did not appear. She rescheduled the appointment for one week later, but James again failed to attend.

On November 23, 2009, James was admitted to the John Brooks Recovery Center on a referral from drug court. As of January 5, 2010, he had attended all required sessions, and he was working on the first three steps of Narcotics Anonymous, improving his life without drugs, and avoiding the drug culture. He was working on relapse prevention because he had "never completely stop[ped] using drugs, he always moved to another type of drug." He was also working on "becoming more productive as a parent."

At trial, Dr. Jeffrey testified as an expert witness in psychology and substance abuse. She opined that for someone who combined substance dependence and "a mental health profile" similar to Helen's, a year of abstinence was needed to establish "the process of change" that would let her "address the trauma and relationship issues that serve as a trigger to relapse and make fundamental change there." That work required a year of counseling by itself, according to Dr. Jeffrey, so two years in total was "the yardstick that is typically used in the field" for a person in Helen's condition. She added that Helen's "amazing ability to give misinformation" meant that treatment and counseling would be complicated by the need to corroborate what Helen reported on important matters.

Dr. Jeffrey concluded that Helen's being at step four of a twelve-step program meant that she still needed "to do the fundamental behavior change and attitudinal change about how she deals with emotion, relationships, and substances," which "is an intensive long process." The nature of Helen's personality, addiction, and emotional adjustment problems, along with her history of relapse after achieving some progress, combined with her delay in following treatment protocols even when custody was at stake, meant that Helen did not have a good prognosis for making the necessary "fundamental change" in her life on her own.

Dr. Jeffrey believed that Jamie would not benefit from waiting for Helen to make more progress in recovery, because he needed a caretaker who could serve the parental function "right now," not "[twelve] months from now."

Dr. Jeffrey determined that James "had significant mental health adjustment and substance dependence problems" that "serious[ly] decreased his parenting capacity" below the minimum level needed for safe parenting. He was "likely to display problem[s]" with "centerism, immaturity, a lack of empathy, instability, poor parenting judgment, impulsivity, and poor responsibility." The "fundamental issue" was his inability to recognize Jamie's needs and to organize his life in order to provide for them, which would put Jamie at risk of harm and further put his development "at risk of being derailed." Like Helen, James would have to abstain from drugs for one year outside of a controlled environment like drug court for his remission to be sustained. Dr. Jeffrey saw no benefit to Jamie from waiting any longer for James to achieve that milestone.

On the subject of bonding, Dr. Jeffrey opined that severing a secure attachment is "a highly negative experience for a child," and much more harmful than severing an insecure attachment. If Jamie were separated from his foster parents, it would be "a significant loss" and place him "at risk for serious and enduring harm." His best interest was to immediately resolve permanency, which outweighed waiting for his parents to make more progress.

In its written opinion, the Family Part explicitly "adopt[ed] the Law Guardian's Statement of Facts as found on pp. 1-12 . . . of her brief and [the court] incorporate[d] them . . .

by reference."6 It then went on to analyze each of the four factors of N.J.S.A. 30:4C-15.1(a) and found that the Division had satisfied each by clear and convincing evidence as to both parents. The court concluded that the Helen's and James's parenting of Jamie, since his birth, had to be characterized as "nonfeasance" because it did not deserve any of the positive connotations of the word "performance." The court found that the parental relationship had "visited harm on [Jamie] over an extended period" and therefore endangered his health and development. Finally, it found termination of parental rights "will not do more harm than good."

This appeal ensued.

II.

"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) (citations omitted). Such appellate deference is particularly appropriate in termination of parental rights cases because the findings reflect the court's assessments of witness credibility and its "feel of the case." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 108 (2008); see also Cesare v. Cesare, 154 N.J. 394, 412-13 (1998).

Helen and James challenge the sufficiency of the trial evidence supporting guardianship. They argue generally that the trial court erred in concluding that the Division had satisfied the elements of each of the four factors of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. A more highly focused criticism of the Division's evidence related to factor three, N.J.S.A. 30:4C-15.1(a)(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"), is raised insofar as the Division ruled out James's mother as an alternate placement. Prior to undertaking our review of the record to discern whether the Family Part rightly found that the Division sustained its burden of proof, we recite the well established principles that guide and inform our analysis.

"[A] parent's right to raise a child and maintain a relationship with that child is constitutionally protected under the federal and state Constitutions." N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 434 (App. Div. 2009) (internal quotations and citations omitted); see also In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). However, those rights "are not absolute, and 'must be balanced against the State's parens patriae responsibility to protect the welfare of children.'" N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 397 (2009) (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007)). In order to terminate parental rights and advance the State's interest in protecting the welfare of children, courts are to apply the "best interests of the child standard." K.H.O., supra, 161 N.J. at 347. Pursuant to N.J.S.A. 30:4C-15.1(a), parental rights may be terminated when 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.

 

These four factors are not "'discrete, but rather relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests.'" A.R., supra, 405 N.J. Super. at 434 (quoting E.P., supra, 196 N.J. at 103). The Division has the burden to prove by clear and convincing evidence that the parental rights should be terminated. E.P., supra, 196 N.J. at 103; see also In re Guardianship of J.N.H., supra, 172 N.J. at 464.

The first factor, N.J.S.A. 30:4C-15.1(a)(1), focuses "on the effect of harms arising from the parent-child relationship over time on the child's health and development," K.H.O., supra, 161 N.J. at 348, and the harm "'must be one that threatens the child's health and will likely have continuing deleterious effects on the child.'" N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 281 (2007) (quoting K.H.O., supra, 161 N.J. at 352). This concept does not necessarily require an act of physical abuse but encompasses psychological and developmental injury. In re Guardianship of R. G. and F., Minors, 155 N.J. Super. 186, 194 (App. Div. 1977). Moreover, it is not necessary to wait "until a child is actually irreparably impaired by parental inattention or neglect" before action should be taken. In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999).

Here, the record chronicled Helen's long and persistent substance abuse and mental health problems. Part of her condition was the minimization and denial of any substance abuse or psychiatric intervention, which hindered her counselors from designing adequate treatment programs. This history, coupled with her reliance on the resource family to care for Jamie for extended periods between the first and second removals, supported the Family Part's finding that Helen had clearly and convincingly endangered Jamie's safety by being unable to care for him on multiple occasions.

As for James, his admitted drug and alcohol use during the twenty months between the two removals, and his failure to complete any treatment program during periods when he was living with Helen, were noted by the court. We are satisfied that Jamie would thus have been at risk of harm in James's care, which is the import of the trial court's conclusions. That result does not change because James did not actually have legal custody or provide substantial care during that period.

The second statutory factor focuses our inquiry to determine "not only whether the parent is fit, but also whether he or she can become fit within time to assume the parental role necessary to meet the child's needs." A.R., supra, 405 N.J. Super. at 434-35 (quoting N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 87 (App. Div. 2006)), certif. denied, 190 N.J. 257 (2007). This factor "is aimed at determining whether the parent has cured and overcome the initial harm that endangered the health, safety, or welfare of the child[.]" K.H.O., supra, 161 N.J. at 348.

Helen argues that the trial court improperly relied on her past substance abuse and ignored her months of abstinence. She argues that she did not harm Jamie, even by taking him to Missouri; she completed all prior services, which impressed Dr. Cahill as significant progress; and she was compliant with current services. Termination was therefore argued to be the Division's "way to punish [Helen] for defying" the order not to let James have unsupervised contact with Jamie.

James makes a similar claim. He argues that his turnaround as of trial demonstrated his intention to address his substance abuse problem, which was the only risk of harm to Jamie that he could have posed. James claims that Dr. Jeffrey falsely depicted him as a dysfunctional and incompetent parent, even though his visitations and bonding evaluation were positive, and she failed to give him sufficient credit for completing a prior drug treatment program, notwithstanding his acknowledged relapse soon thereafter. Lastly, James contends that the court was biased against him by assuming without foundation that his only motive for abstinence was to avoid prison.

The Family Part concluded that under the second factor, neither Helen nor James demonstrated "anything close to the kind of fundamental life-reform that would be required" for Jamie to be safe in the care of either parent. More specifically, Helen's compliant attitude at trial stood in stark contrast to what the court found was her admission "that she has lied or misrepresented reality many times over many years to a myriad of agencies and treatment providers. Or, as she seemed to prefer to put it, she 'embellished' certain facts in order to get attention and skipped over certain other facts because she was 'embarrassed' by them." The court found that Helen's apparent sobriety starting three years after Jamie's second removal "offers only minimal reassurance." For James, the court observed that he was abusing alcohol, marijuana, cocaine, and heroin after the second removal. He was just finishing the "first stage" of the program imposed by drug court, and the timing implied that his motivation was avoiding prison rather than regaining custody.

Turning to mental health issues, the court observed that Dr. Jeffrey's evaluations of Helen and James remained unrebutted. James suffered from borderline personality disorder with self-defeating, avoidant, and negativistic traits. Moreover, he was still found to be working on "achieving sobriety," and was "far from even beginning to address these issues in treatment."

Dr. Jeffrey found in Helen "a deep-seated and longstanding co-occurrence of substance abuse and mental health problems that admitted of no basis for confidence" that her apparent success with her treatments was any more real than her past apparent successes, which were not enough for her to "integrate and sustain fundamental change" and avoid relapse.

The court then found that further delay would have added to the harm that Jamie suffered from his biological parents' failure to provide adequate and consistent parenting. Dr. Jeffrey believed that Jamie needed permanency immediately, and Helen and James were nowhere near that point, and they were "entirely unlikely" to be near it "in a time frame that has any meaning for this child or any relevance to his life." The clear and convincing evidence was that Helen and James lacked the will or ability to address their drug abuse and mental health problems with the seriousness needed to eliminate the risk of harm that they would pose to Jamie if either of them regained custody. The Family Part correctly parsed the law, and properly applied it to the facts as it found them.

Next, Helen claims that the trial court erred by finding, pursuant to N.J.S.A. 30:4C-15.1(a)(3), that the Division made sufficient efforts to provide services that would have helped her to resume custody and avoid termination. She argues that the Division offered her insufficient services, but she does not describe the insufficiency beyond the conclusory suggestion that it was calculated to prevent reunification. She further argues that the Division violated its own policy of favoring placement with relatives by failing to consider her father and James's mother as possible caretakers, under a spurious "best interests" determination that did not reflect any established policy. James echoes these claims and also argues that his due process rights were violated by not giving his mother an avenue to administratively appeal the turn-down decision. We find these arguments to be without merit. R. 2:11-3(e)(1)(A) and (E). However, we will briefly address them.

The trial court found that the Division made reasonable efforts to provide services to correct the circumstances that led to removal, because they were "rationally geared" toward that end. However, Helen and James never complied with them "in good faith and in a timely fashion." The court found that James's mother had initially disclaimed an interest in seeking custody of Jamie, and she did not explicitly assert an interest until one year after the second removal, by which time it was appropriately concluded that maintaining Jamie's "long-standing placement with his foster parents" was in his best interests. The court found that such circumstances also justified denying custody to Helen's father.

N.J.S.A. 30:4C-15.1(a)(3) requires the Division to make reasonable efforts to provide the services that will "enable [a mother or father] to become a functioning parent and caretaker of her child." K.H.O., supra, 161 N.J. at 354. The Division, however, does not have to attempt more than "reasonable efforts under the circumstances to accommodate [a parent]'s disabilities," and a court may not find the efforts unreasonable simply because they "did not bear fruit." A.G., supra, 344 N.J. Super. at 442.

We have "previously acknowledged with approval 'the Division's policy to place children with relatives whenever possible.'" N.J. Div. of Youth & Family Servs. v. K.L.W., 419 N.J. Super. 568, 579 (App. Div. 2011) (quoting N.J. Div. of Youth & Family Servs. v. M.F., 357 N.J. Super. 515, 527 (App. Div. 2003)). The Division is not expected to locate relatives if the parents provide no information about them, or to consider relatives whom the parents do not identify "until the eve of the guardianship trial." K.L.W., supra, 419 N.J. Super. at 582. Conversely, the statute "does not permit willful blindness and inexplicable delay in assessing and approving or disapproving a relative known to the Division." Ibid.

Nonetheless, there is no statutory or common law "presumption in favor of an award" of custody "to a relative as opposed to a third party." M.F., supra, 357 N.J. Super. at 528-29; see also K.L.W., supra, 419 N.J. Super. at 580. Courts generally eschew any presumption concerning custody because to employ such a supposition "'might serve as a disincentive for the meticulous fact-finding required in custody cases.'" M.F., supra, 357 N.J. Super. at 528 (quoting Beck v. Beck, 86 N.J. 480, 488 (1981)).

Here, the Division did not shirk its responsibility to locate and evaluate relatives. Notwithstanding the attributes of James's mother, they did not outweigh the firm parent-child bond that had already been established between Jamie and his foster parents. We find nothing amiss in the Division's handling of the matter, nor do we have a basis to second-guess the findings of the Family Part on this factor.

Helen claims that the trial court erred by finding, pursuant to N.J.S.A. 30:4C-15.1(a)(4), sufficient evidence that termination of her parental rights would not do more harm than good. She argues that the amount of time that Jamie spent with the resource family was an improper measure of attachment.

James makes a similar claim. He argues that Dr. Jeffrey's bonding evaluation of the foster parents was inadequate because it was insubstantial, and that Dr. Jeffrey favored them because they knew as much about Jamie as one would expect from the amount of time he spent in their care. James also faults Dr. Jeffrey for failing to make a "direct evaluation" of Jamie, such as by interviewing him.

The trial court found that Jamie was bonded to the foster parents with a secure attachment, whereas he had an insecure attachment to Helen and just a friendship with James. Delaying permanency by removing Jamie from the foster parents would only deepen the harm that he has already suffered from a lack of adequate parenting.

The court acknowledged that Jamie knew that Helen and James were his birth parents, that he was fond of them, and that if he stopped seeing them, he would experience "the loss of a human connection that he once enjoyed." However, the court found those factors to be outweighed by Dr. Jeffrey's unrebutted findings that the loss was unlikely to cause Jamie "serious and enduring harm."

To the contrary, Jamie was likely to suffer serious and enduring harm if his secure attachment to the foster parents was severed. The trial court found the foster parents "have been his nurturers for most of his life" and were committed to adopting him, whereas Helen and James "have effectively abdicated their roles and are not even close to being in a position to have him back." The court concluded on that basis that termination of Helen's and James's parental rights clearly and convincingly would not do more harm than good.

N.J.S.A. 30:4C-15.1(a)(4) "serves as a fail-safe against termination even where the remaining standards have been met." G.L., supra, 191 N.J. at 609. The question is "whether a child's interest will best be served by completely terminating the child's relationship with that parent." E.P., supra, 196 N.J. at 108.

The ultimate determination to be made under the fourth factor "is whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with [the] natural parents than from the permanent disruption of [the] relationship with [the] foster parents." K.H.O., supra, 161 N.J. at 355. "'Weighing the potential harm that terminating [the child's] relationship with [the parent] against that which might come from removing [the child] from [the] foster home is painfully difficult, but it is a decision that necessarily requires expert inquiry specifically directed to the strength of each relationship.'" Ibid. (quoting J.C., supra, 129 N.J. at 25).

The balance of arguments that Helen and James present to attack Dr. Jeffrey are unfounded and unpersuasive. Dr. Jeffrey based her opinions about the nature and degree of Jamie's attachments on direct observation of his interactions with Helen, James, and the foster parents, not on the length of time that Jamie had spent in anyone's care. She opined on the comparative harm that would be suffered from severing those attachments. She supported her findings, even if she provided less description of the activity in the foster parents' bonding session than she had for the parents' sessions, and we are unpersuaded that Dr. Jeffrey was obliged to interview Jamie. The trial court's reliance upon Dr. Jeffrey's opinions was appropriate and does not warrant appellate intervention.

Affirmed.

1 We choose to avoid the use of initials and to alter the names of the child and parents. Helen is appellant H.M.; James is appellant J.C., II; and Jamie is J.C., III.

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2 The Division commenced a Title Nine proceeding, which resulted in Helen being ordered to submit to psychological, psychiatric, and substance abuse evaluations and to attend domestic violence counseling. The court ordered James to submit to a substance abuse evaluation and an anger management assessment. Both parents were required to comply with random urine screenings.

3 On January 11, 2006, the Family Part entered an order terminating the protective services litigation.

 

4 At some point, James violated the conditions of probation, and in December 2006, he was sentenced to 364 days in the Cape May County Jail.

5 The court appointed a law guardian for Jamie and gave the Division custody of the child. On July 18, 2007, the court entered an order similar to the earlier ones that required Helen and James to submit to evaluations and drug testing and to comply with services. The court continued to enter similar orders through August 2009.

6 Because the trial court was explicit in its reliance on the findings proposed by the Law Guardian, we do not reject its conclusions as violative of Rule 1:7-4(a). See In re Trust Created by Agreement Dated Dec. 20, 1961, by & between Johnson, Hoffman, Lienhard & Perry (Johnson Trust), 399 N.J. Super. 237, 253-54 (App. Div. 2006) (citing Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 1:7-4 (2011)), aff'd by In re John Seward Johnson 1961 Charitable Trust, 194 N.J. 276 (2008); see also Vartenissian v. Food Haulers, Inc., 193 N.J. Super. 603, 612, (App. Div. 1984). The trial court made clear the extent of its agreement with, and reliance upon, the Law Guardian's proposed findings of fact. The balance of the court's ten-page written opinion provides clear evidence that it vigilantly considered the evidentiary record and did not relinquish its decision-making duties. Additionally, the adoption of the Law Guardian's proffered facts in no way has hampered our ability to review the proceedings, and neither Helen nor James has challenged the Family Part's modus operandi.