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

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3747-11T3

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,1

Plaintiff-Respondent,

v.

J.L.,

Defendant-Appellant,

and

E.E.,

Defendant.

_______________________________________

IN THE MATTER OF THE GUARDIANSHIP OF

N.L., E.L., K.L., and J.L.,

Minors.

April 18, 2013

 

Submitted March 12, 2013 - Decided

 

Before Judges Fisher, Alvarez and Leone.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FG-16-72-11.

 

Joseph E. Krakora, Public Defender, attorney for appellant (John Albright, Designated Counsel, on the brief).

 

Jeffrey S. Chiesa, Attorney General, attorney for respondent New Jersey Division of Youth and Family Services (Andrea M. Silkowitz, Assistant Attorney General, of counsel and on the brief).

 

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor respondents (Damen J. Thiel, Designated Counsel, on the brief).

 

PER CURIAM

Jane L.2 appeals the February 1, 2012 order terminating her parental rights to four children, Eva L.,3 born March 2003, John L., born September 2004, Ken L., born August 2006, and Nina L.,4 born October 2009. After our review of the extensive record, we affirm.

I

We briefly describe the procedural history which is relevant to the issues on appeal. On March 8, 2010, plaintiff New Jersey Division of Youth and Family Services (Division) filed a verified complaint under Title 9 for custody, care, and supervision of Nina, who was born with serious physical ailments that resulted in her intermittent hospitalization during the first two years of her life. See N.J.S.A. 9:6-8.21 to -8.73; N.J.S.A. 30:4C-12. Thereafter, the Division amended its complaint to add the older three children. A guardian ad litem was appointed to represent Jane, who did not appear. The appointment of the guardian ad litem was limited "to secur[ing] all medical records regarding [Jane]."

The trial court granted the Division custody of all four children on September 27, 2010. The three eldest children were placed with a foster mother who now wishes to adopt them. On December 22, 2010, the court continued the Division's custody, care, and supervision of the four children. The guardian ad litem continued to appear on Jane's behalf; Jane did not. Ultimately, the court entered a permanency order approving the Division's plan to terminate parental rights for all four children because of its conclusion that Jane displayed "severe parenting deficits, . . . [and] failed to comply with any services."

The Division next filed a complaint for guardianship. Consequently, the trial court entered an order terminating the prior litigation and relieving the guardian ad litem from her duties. On May 23, 2011, Jane was personally served with the guardianship complaint. When presented with the form necessary for the assignment of counsel, Jane believed it was a trick and refused to sign. Eventually she did submit the application and counsel was assigned to represent her.

At an October 17, 2011 management conference, Jane's attorney requested the court appoint a guardian ad litem. The trial court, with a different judge presiding than before, expressed its concern about limiting Jane's "absolute right to defend herself the way she perceives it should be done" without certain findings being made as to her mental capacity. At a January 9, 2012 case management conference, the trial court again denied defense counsel's application for a new guardian ad litem. After a bench trial in February 2012, Jane's parental rights to the children were terminated.

II

We now briefly describe the salient facts and circumstances that in our view support the judgment of the trial court. Although the family first came to the Division's attention in 2005, the file was closed in April 2008. It was reopened in August 2008 and "remained open for services." At the time the family lived with Jane's maternal aunt, Ann, who provided for Jane's three older children using her very limited financial resources; Jane had no income. In mid-2009, the Division assisted the family with the purchase of clothing. They were described as "impoverished, but the aunt manages." The family lived in a three-bedroom apartment which although "not cluttered" was "dirty and infested with [r]oaches." Ann was the principal caregiver for the children, despite having physical ailments and trouble walking because of her advanced age.

The current case began on October 30, 2009, when St. Joseph's Regional Medical Center (SJRMC) referred Nina to the Division. She was born suffering from a life-threatening condition which would have been detected had Jane received prenatal care. Nina was born with omphalocele, where the intestine is in-grown into the umbilical cord. Because Nina's bowels were "outside of her body," she required major surgery. The health complications accompanying her condition resulted in Nina "spen[ding] much of her very young life in and out of hospitals."

The hospital initially called the Division because of "concern[] about [Jane's] reactions, her statements about the baby, and her apparent lack of understanding of the baby's medical condition." The hospital social worker informed Jane that the child had surgery and would not be discharged for many weeks. Nonetheless, Jane asked the worker and the nurses "the same basic questions over and over again each day, as if she could not comprehend what was going on."

When the Division caseworkers inquired about Jane's plan to care for Nina after discharge, Jane would not reply and just stared. When she was warned that Nina might not go home with her, she responded that "she knew the child would not go home with her because she was sick and had surgery." When the caseworker explained that even after Nina was well, she might not be able to live with Jane, Jane said that "her child should be able to go home because she was going to be given a car seat from the hospital." The caseworker then reiterated that Nina would need far more than a car seat and asked who would provide for her. When Jane said that she did not understand, the caseworker explained "that the baby was going to need follow up medical care, diapers, formula, clothing, and a place to sleep." Jane replied that "she planned to send the baby to the same pediatrician her other three children went to." When the caseworker tried to confirm that Jane had filled out necessary Medicaid papers to obtain insurance for the baby, Jane stated that "she alrea[d]y picked out a pediatrician for her baby." The workers were concerned that Jane did not grasp Nina's extraordinary medical needs and had no plan for Nina's care.

Nina was still hospitalized in September 2010 at Children's Specialized Hospital (CSH), nearly nine months after her birth. She was briefly placed in a specialized foster home, but returned to the hospital as a result of her continuing "extensive medical issues." In January 2011, Nina was transferred back to SJRMC because her condition worsened. She underwent surgery for the implantation of an unattached feeding tube in September 2011, so that she could learn to walk. In May 2011, a CSH nurse who extensively interacted with Nina while she was hospitalized became Nina's foster mother. She wishes to adopt.

The caseworker who visited Nina once she was placed in her current foster home reported that the changes from October 2011 until January 2012 when she was discharged from the hospital was the difference between "[n]ight and day." She learned to walk and was "very active" despite her special medication and strict feeding schedule. Nina undergoes physical and occupational therapy because she was immobile her first year of life. She suffers from brittle bone disease, receives ongoing speech therapy, and will require significant medical care in years to come.

While attempting to provide for Nina separately, the Division supervised the older children who continued to live in Ann's apartment. Ann grew increasingly concerned because she believed Jane's behavioral issues were worsening, making it more difficult to live with Jane. On February 27, 2010, Jane engaged in a physical altercation with her cousin Oscar A. in front of the children. Either that month or the month following, Jane and Ann also engaged in a physical altercation. During a Division home visit on March 24, 2010, Jane used profanity in front of Ken after she and Ann began to argue. By July 24, 2010, Ann could no longer tolerate Jane remaining in her home. That day, Ann contacted the Division because Jane had been yelling and cursing at her in the children's presence.

As a result, on September 27, 2010, the Division took custody of the older three children and placed them in the foster home where they currently reside. Jane has not seen the children since their removal. The foster home proved to be an immediate success. The caseworker, Suni Brown, testified that the foster mother was "one of the most . . . engaged foster parents [he had] ever seen." The children were doing well in school and participated in many activities that were new to them and that they greatly enjoyed. At all the Division visits, the children expressed their desire to remain in the foster home, their happiness with their new life, and the fact that they were working hard at school. Only John continued to receive therapy. The Division regularly transported Ann to visits with the three children. However, Jane refused to attend. The children never asked to see their mother.

While the guardianship proceedings were pending, the Division attempted to maintain contact with Jane and impress upon her the importance of appearing for court dates. Jane refused to respond; in fact, for several months she refused to provide the Division with her change of address. Instead she called the Division's public access phone lines to complain that a social worker had taken her children, that they were keeping her children hostage, and the like. The adoption unit worker attempted to discuss with Jane the consequences of non-compliance with the Division's services. She did not appear to understand.

It was not until July 2010 that the Division was able to schedule Jane's evaluation. Because of the difficulties in getting her to a Division office or to a professional office, the psychologist went to Ann's apartment for the interview. When he arrived, Ann informed him that Jane had left the building with the children.

When the psychologist, Robert Kanen, Psy.D., appeared on a second occasion, Jane agreed to participate. The psychologist testified that the apartment was "extremely hot and humid," and that Jane was dressed in underwear and a night top. There were no toys, books, paper, pencils, or pens for the children, who appeared to be dirty. The apartment and the clothing scattered on the floor were also dirty. Jane's hygiene was poor.

Kanen reported that Jane, who was thirty-six years old at the time, could not identify who had raised her. She said she attended school to the seventh grade, has never held a job, did not know how she supports herself, and was dependent on others for housing. Jane did not appear to know where then eight-month-old Nina was living. She did not know how to spell the names of the children or understand why the Division had filed proceedings. Jane showed evidence of illogical thinking, had poor contact with reality, "presented as mentally ill with evidence of psychosis and severe depression," and was at risk for involvement with drugs. Kanen estimated her verbal IQ at seventy, and found she read at a fifth-grade level. He concluded that Jane was likely to be unable to deal with the problems of daily life, and that she could not "provide her children with a permanent, safe and secure home."

Kanen conducted another psychological evaluation on November 4, 2011, at a Division office. At that time, Jane reported sleeping at her sister's house. She and her boyfriend had been together for the past year. She stated she was raised by a maternal aunt in Paterson and that her parents would visit her there. Jane reported bathing regularly and that she had worked for a couple of weeks through a city agency. She appeared sad, depressed, confused, and thought that her children were "with strangers" and did not understand why. Kanen found Jane's full scale IQ to be sixty-six, which "place[d] her in the deficient/mild mental retardation range of intelligence." He concluded that her poor judgment to some extent resulted from limits in her ability to reason. Because of Jane's extreme dependence as well as her psychiatric and intellectual issues, he opined that she was simply unable "to adequately understand the needs of her children." The prognosis was poor, the problems chronic. Jane was not motivated to engage in services, although in dire need of them.

As Kanen described it, Jane's level of functioning was so limited that her children were "at risk crossing the street with her." If she was cooking while bathing a child, the child would be at jeopardy.

The Division explored placement with Jane's relatives including not only Ann, but a cousin and Jane's sister. None were willing to take all three older children; therefore, the children would have to be separated. Additionally, both relatives failed to provide important information and their homes were never licensed. After being ruled out as potential placements, no relative other than Ann ever contacted the Division again. Hence these alternatives were rejected.

III

Jane contends first that the trial court erred in denying the motion for the appointment of a guardian ad litem. When the trial judge asked for an example of how a guardian ad litem "would be of assistance," defense counsel replied that one would be "helpful in sifting through what issues are relevant." The trial judge was concerned, however, about having a competency hearing which would result in a determination that a guardian ad litem was required to make decisions in Jane's best interests, while simultaneously entertaining the contradictory argument that despite Jane's mental limitations and need for a guardian, she was still qualified to parent her children.

Furthermore, because the trial judge believed that Jane "ha[d] the absolute right to defend herself the way she perceives it should be done" he thought that "a court of competent jurisdiction has to make [the pertinent] findings" in order to "take that away from her." The judge also heard from the Division and the Law Guardian who supported the appointment of a guardian ad litem. The Division stated that it was unable to refute a report of Reynolds, a psychologist, who found Jane was unfit to stand trial. This report is not in the record on appeal. We do not know if it was specially prepared for the earlier Title 9 litigation.

In his January 9, 2012 opinion, the trial judge wrote: "[a]lthough counsel has characterized his client as an alleged incompetent . . . he has failed to articulate with specificity how or why this litigation requires [the] appointment of a [guardian ad litem]." The judge found the guardian's involvement in the prior litigation "d[id] not establish any precedent binding upon this court." The prior guardian ad litem's function had been limited to obtaining Jane's medical records. The judge concluded that "[t]he appointment of a [guardian ad litem] would not serve any useful function and would be an unwarranted intrusion in the orderly conduct of the litigation."

Upon a party's application, "the court may appoint a guardian ad litem for . . . [an] alleged mentally incapacitated person." R. 4:26-2(b)(3) (emphasis added). The appointment of a guardian ad litem is at the trial court's discretion and is reviewed using an abuse of discretion standard. See In re M.R., 135 N.J. 155, 178-79 (1994).

Rule 4:26-2(a) states that "a . . . mentally incapacitated person shall be represented in an action by the guardian of . . . the person . . . , or if no such guardian has been appointed . . . , by a guardian ad litem appointed by the court in accordance with paragraph (b) of this rule." Rule 4:26-2(b)(3) gives the trial court the discretion to appoint a guardian ad litem for an "alleged mentally incapacitated person."

The use of the qualifier "alleged" to the use of the term "mentally incapacitated person" in subparagraphs (b)(2), (b)(3) and (b)(4) is to make clear that in contradistinction to the appointment of a guardian, which requires an adjudication of mental incapacitation, a guardian ad litem's appointment is dependent only upon the allegation of mental incapacitation. The guardian ad litem's responsibility is to advise the court as to whether a formal competency hearing may be necessary and if so, to represent the alleged mentally incapacitated person at that hearing.

 

[Pressler & Verniero, Current N.J. Court Rules, comment 3 on R. 4:26-2 (2013).]

 

Clearly, an attorney and a guardian ad litem serve different functions. M.R., supra, 135 N.J. at 173; Vill. Apartments of Cherry Hill v. Novack, 383 N.J. Super. 574, 579 (App. Div. 2006). While the attorney acts as a "zealous advocate" of the client's goals, the guardian ad litem "determines for him or herself what action is in the ward's best interests and advocates for that position." Novack, supra, 383 N.J. Super. at 579.

In Novack, a mentally incompetent tenant filled a bathtub with clothing, turned on the water, and left the apartment actions which resulted in flooding and damage. Id. at 577. The trial judge did not appoint a guardian ad litem or adjourn until one could be appointed, and the plaintiff-landlord won possession of the apartment. Id. at 578. We found that "attorney representation alone [wa]s insufficient" and the trial court should have appointed a guardian ad litem "to advocate for Novack's best interests." Id. at 580. Specifically, the tenant would have benefited from a guardian who could have recommended that he not contest the eviction in order to maintain his eligibility for Section 8 housing benefits, lost as a result of the eviction for cause. Ibid.

As a contrasting example, in M.R., an eighteen-year-old woman with mild to moderate retardation expressed a desire to move out of her mother's home and live with her father. M.R., supra, 135 N.J. at 159. On the father's behalf, a psychologist determined that the woman had an intelligence quotient of sixty-six but that she was still "capable of expressing a preference." Id. at 160. The mother's expert witnesses contended the opposite. Ibid. The New Jersey Supreme Court was "concern[ed] . . . with balancing the right of self-determination of developmentally-disabled people with traditional judicial concerns for their best interests." Id. at 165. The court remanded the matter for additional proceedings which would require the judge to determine if M.R. was competent "to express a reliable preference where to live." Id. at 178. But if she was not found to be competent, then a guardian ad litem could be appointed so that individual could "represent her best interests." Ibid. But the court also concluded the trial judge could "protect M.R.'s best interests without appointing a guardian ad litem." Id. at 178-79. Thus the question of whether a guardian ad litem should be appointed was ultimately left to the trial court's "sound discretion." Id. at 179.

Here it is evident that Jane desired to be with her children, despite the fact that she never saw them again after their removal even when offered opportunities to do so. It is equally clear that Jane has no capacity to care for herself, much less the children.

In our view, a guardian ad litem could have done little that would have changed this fundamental fact. Even though Jane wanted to act as a parent to her children, she was utterly unable to make any progress towards providing for them. Thus in contrast to Novack, no clear benefit, other than the addition of another voice to the chorus already attempting to explain the process to her, would have resulted from such an appointment. The purpose would have been for the guardian ad litem to act in Jane's best interests, which even if she was found entirely incompetent, would no doubt have been completely counter to her expressed wishes. Therefore, in our view the judge did not abuse his discretion in refusing to grant the request.

IV

The purpose of a termination proceeding is to determine the best interests of a child. In re Guardianship of J.N.H., 172 N.J. 440, 471 (2002). Because the continued enjoyment of the parent-child relationship is the constitutional right of the parent, such decisions must meet stringent standards. Ibid. They must be based on clear and convincing evidence. Santosky v. Kramer, 455 U.S. 745, 769, 102 S. Ct. 1388, 1403, 71 L. Ed. 2d 599, 617 (1982); N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 611-12 (1986). Because the State has a parens patriae responsibility to protect children, New Jersey courts apply a four-part test to balance that responsibility and the rights of parents in determining whether termination of parental rights is appropriate. In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999).

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

 

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

 

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

 

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

 

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

These four factors "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, 161 N.J. at 348. "The considerations involved in determining parental unfitness are 'extremely fact sensitive' and require particularized evidence that addresses the specific circumstances of the individual case." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006) (quoting In re Adoption by L.A.S., 134 N.J. 127, 139 (1993)), certif. denied, 190 N.J. 257 (2007).

Generally, an appellate court owes no deference to a trial court's interpretation of the law "and the legal consequences that flow from established facts." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). A trial court's fact-findings are binding on the appellate court when supported by substantial, credible evidence. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). "Deference is especially appropriate 'when the evidence is largely testimonial and involves questions of credibility.'" Cesare, supra, 154 N.J. at 412 (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). A "cold record . . . can never adequately convey the actual happenings in a courtroom." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012). A reviewing court "will not overturn a family court's factfindings unless they are so 'wide of the mark' that our intervention is necessary to correct an injustice." Ibid. (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)).

It is abundantly clear that the four statutory factors were met by clear and convincing evidence. We therefore rely essentially on the judge's reasons with the following brief comments.

In the most fundamental sense, Jane lacked the capacity to care for the children. By virtue of her inability to get along with others, and her inability to control her impulsive behavior in front of the older three children, Jane jeopardized, and eventually destroyed, the stability they gained by residing with Ann. Jane did not understand Nina's medical condition and did not sign forms necessary for her treatment, another example of her fundamental inability to parent. The children entered foster care because Jane's conduct threatened her elderly aunt's well-being. The court had ample evidence from which to conclude that the children's safety, health, and development were harmed by Jane.

The first two prongs of the test are "related to one another, and evidence that supports one informs and may support the other." In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999). "The primary focus [of the first prong] is the issue as to whether the parent has harmed the child or may harm the child in the foreseeable future." N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super.76, 113 (App. Div.), certif. denied, 180 N.J.456 (2004). "Although a particularly egregious single harm can trigger the standard, the focus is on the effect of harms arising from the parent-child relationship over time on the child's health and development." K.H.O., supra, 161 N.J. at 348.

In New Jersey Division of Youth & Family Services v. A.G., 344 N.J. Super. 418, 435 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002), the court found that the first prong had been satisfied even though the child had never lived with the biological parents who had "never harmed, . . . [and] would . . . [never] intentionally harm the child." There the court relied on the "sufficient credible expert testimony" concerning the parents' mental conditions in finding harm to the child. Id. at 435-36.

As the expert testified, Jane is unable to eliminate the harm she presently poses for her four children, or to provide a safe and stable home for them at any time in the future. Without Ann's supervision, Jane would have been unable to live with the children as long as she did. Jane will never be able to care for Nina, a medically needy child who requires regular cleaning of her feeding tube and constant monitoring of her diet and other aspects of her physical well-being. As the trial judge found in reliance on Kanen's report, Jane was psychologically and cognitively incapable of parenting the children safely. That incapacity was chronic and unlikely to change.

"Courts need not wait to act until a child is actually irreparably impaired by parental inattention or neglect." D.M.H., supra, 161 N.J. at 383. This "second prong may be met by indications of parental dereliction and irresponsibility" and "the inability to provide a stable and protective home." K.H.O., supra, 161 N.J. at 353. Also, if a biological parent's mental condition is such that the parent does not have the "mental status sufficient to eliminate the risk of future harm to the child," the risk of that future harm is grounds for showing whether the child will be endangered by the parent. A.G., supra, 344 N.J. Super. at 440.

In this case, both prongs of the test are inextricably tied together. Just as Jane was unable to care for her children safely without Ann's help, she has no prospect of ever changing her circumstances such that she can provide a safe and stable home for them independently.

On appeal, defense counsel argues that "defendant's failure to avail herself of the services offered by DYFS is understandable, given that DYFS had removed her children." Counsel proffered that her "numerous phone calls" evidenced her "concern and effort." He characterized "defendant's unwillingness to exercise visitation" as "unsurprising and understandable," a result of Jane's "skepticism [towards] the agency that had taken her children from her." Finally, he claims that the Division should have explored "the possibility of relocating defendant out of A[nn]'s home, and reuniting defendant with the children."

To the contrary, the trial court concluded that the Division made more than reasonable efforts at providing services in the form of "family meetings, counseling, substance abuse assessment, psychological evaluation[s], psychiatric evaluations, visitation, [and] transportation to visitation." Jane "refused the services and, consequently, the Division could do little to convince her to participate in services."

Under the third prong of the best-interests test, "reasonable efforts" are defined in the following way:

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

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

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

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

(4) facilitating appropriate visitation.

 

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

The Division's efforts are not measured by their success, and "the parent's failure to become a caretaker . . . is not determinative of the sufficiency of DYFS's efforts at family reunification." D.M.H., supra, 161 N.J. at 393.

As part of the Division's reasonable efforts, it has an "obligation to identify and assess relatives." N.J. Div. of Youth & Family Servs. v. K.L.W., 419 N.J. Super. 568, 580 (App. Div. 2011). Relative resources were ruled out in this case because the Division did not wish to separate the three older children. No relative was willing to take Nina. Furthermore, the relatives were not committed to adopting the children.

Defense counsel states that the Division should have attempted to find a placement where Jane could live with another adult who would then care for both Jane and the children. But after its initial meeting with relatives, no family member followed up with the Division. Ann was the relative with whom Jane had lived the longest time and even she could not continue to share her home with her niece, particularly in light of her age and health problems.

Our review of the record corroborates the trial judge's conclusion that the Division tried multiple times to engage Jane in counseling, psychiatric evaluations, individual counseling, family team meetings, and visitation opportunities with transportation. But Jane refused such services and missed most scheduled evaluations.

Jane's attorney also contends the court erred by entering judgment in the absence of bonding evaluations. As the trial court concluded, however, this was the rare case where a bonding evaluation is inconsequential because Jane was incapable of safely parenting the children. Bonding evaluations are of paramount importance when parental fitness is not at issue:

In cases in which DYFS seeks termination of parental rights, not on grounds of current unfitness but because of potential harm to the child based on separation from a foster parent with whom the child has bonded, the quality of the proof adduced must be consistent with the interests at stake. To the extent that the quality of the child's relationship with foster parents may be relevant to termination of the natural parents' status, that relationship must be viewed not in isolation but in a broader context that includes as well the quality of the child's relationship with his or her natural parents.

 

[In re Guardianship of J.C., 129 N.J. 1, 18 (1992).]

But, to reiterate, this is one of those rare instances where comparative evaluations are simply not required. See N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 440 (App. Div. 2009).

While the "paramount need" of children in these situations is a "permanent and defined parent-child relationship[]," id. at 442 (quoting J.C., supra, 129 N.J. at 26) (internal quotation marks omitted), this need "must be balanced against the need natural parents have to depend on foster care to 'protect their children during difficult periods, including but not limited to experiences of homelessness and domestic violence,'"id. at 442-43 (quoting J.C., supra, 129 N.J. at 20). In a situation where a "parent has exposed a child to continuing harm through abuse or neglect and has been unable to remediate the danger to the child" while simultaneously "the child has bonded with foster parents who have provided a nurturing and safe home, in those circumstances termination of parental rights likely will not do more harm than good." E.P., supra, 196 N.J. at 108. A court should not delay permanent resolution if termination of parental rights is supported by substantial, credible evidence. In re Guardianship of A.R.G., 318 N.J. Super. 323, 330 (App. Div.), certif. denied, 162 N.J. 127 (1999).

On the question of whether termination of parental rights will do more harm than good, Jane never visited the children after they were placed in foster care, even though Ann continued to do so. Also, Jane never had a relationship with Nina. It is also noteworthy that the three older children never even asked about their mother; in contrast, they felt attached to Ann, asked about her, and wanted to visit with her. Jane has taken no action to work towards reunification and simply does not now or in the foreseeable future, have the capacity to care for her children. Therefore, terminating Jane's rights to Nina, Eva, Ken, and John will not do them more harm than good.

Affirmed.

1 Effective June 29, 2012, the Division was renamed the Division of Child Protection and Permanency. L. 2012, c. 16.

2 For ease of reference and to maintain confidentiality, pseudonyms are used to identify defendant, the children, and family members.

3 E.E., the father of Jane's first three children, does not appeal the order terminating his parental rights.

4 Nina's father is unknown.