NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. J.R.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

A-2934-12T2

A-3275-12T2

NEW JERSEY DIVISION OF

CHILD PROTECTION AND

PERMANENCY,

Plaintiff-Respondent,

v.

J.R., K.F., and C.D.,

Defendants-Appellants.

____________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF V.D. and A.R.,

Minors.

____________________________________

May 8, 2014

 

Submitted April 8, 2014 - Decided

 

Before Judges Sapp-Peterson, Lihotz and Hoffman.

 

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FG-02-67-12.

 

Joseph E. Krakora, Public Defender, attorney for appellant J.R. (Deric Wu, Assistant Deputy Public Defender, on the brief).

 

Joseph E. Krakora, Public Defender, attorney for appellant K.F. (Anna F. Patras, Designated Counsel, on the brief).

 

Joseph E. Krakora, Public Defender, attorney for appellant C.D. (Jared I. Mancinelli, Designated Counsel, on the brief).

 

John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Division of Child Protection and Permanency (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Jane S. Blank, Deputy Attorney General, on the brief).

 

Joseph E. Krakora, Public Defender, Law Guardian, attorney for the minors, V.D. and A.R. (Melissa R. Vance, Assistant Deputy Public Defender, on the brief).

 

PER CURIAM

These three appeals consolidated for our review and opinion, present challenges by C.D., the biological mother of V.D., a daughter born July 2005, and A.R., a son born July 2009, together with K.F., the biological father of V.D., and J.R., the biological father of A.R., appeal from the Family Part order terminating their respective parental rights to V.D. and A.R, and, in turn, granting guardianship to the Division of Child Protection and Permanency (Division). Each defendant urges the trial court erred in finding, by clear and convincing evidence, termination of their respective parental rights was in the best interests of V.D. and J.R. The law guardian supported termination of defendants' parental rights and continues to do so in this appeal. We affirm.

 

 

I.

The Division's involvement with V.D. and A.R. (or "the children") commenced in March 2010, when it received a referral alleging that J.R., with whom C.D. was living along with V.D. and A.R., had abused V.D. The Division's investigation substantiated the abuse, which C.D. had not reported to authorities because, as she explained to the Division, she could never get time alone to call anyone for help; J.R. would never leave her side, and was very controlling. J.R. was arrested and

charged with second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4. Following J.R.'s arrest, C.D. signed an in-house case plan with the Division, agreed she would not permit J.R. to have access to the home, and obtained a restraining order against J.R. The Division offered homemaker services to C.D., which C.D. refused to accept. V.D. reported C.D. was aware that she had touched J.R.'s penis and that she had also touched "mommy and [A.R.]'s private parts." C.D. told the Division V.D.'s statements were untrue. In light of the allegations of sexual abuse and because C.D. refused homemaker services, the Division instituted an emergency removal of both V.D. and A.R. two days after it first commenced its investigation.

J.R. ultimately pled guilty to the endangering offense on September 9, 2010. He was sentenced to a four-year custodial term. The sentencing judge additionally ordered J.R. not to have contact with V.D. or her family. Also on September 9, both C.D. and J.R. stipulated they had abused and neglected V.D.

Following their removal from C.D.'s custody, V.D. and A.R. were placed, together, with J.R.'s cousin, R.R.1 The Division commenced to provide numerous services to C.D., including psychological evaluations, individual and joint therapy, and parenting classes. She progressed over the next year and on June 21, 2011, the Division returned V.D. and A.R. to her custody. This reunification, however, was short-lived. A mere two months later, during a visit by a Division caseworker, C.D. appeared overwhelmed because V.D. reportedly would not listen to her. The caseworker spoke to V.D., who reported that her mother had taken her and A.R. to a park at night to meet a male she had just met over the internet. Believing that C.D. had once again placed the children at risk, they were removed from C.D.'s custody and placed with a resource family.

On November 2, 2011, the Division filed its guardianship complaint against C.D., K.F., and J.R. The trial was conducted on non-consecutive days between August 2012 and January 2013. Numerous witnesses testified. The Division produced its supervising caseworker, Haydee Zamora-Dalton, who recounted the Division's involvement with the children and defendants; Debbie Gomez, an adoption specialist from the Division's permanency and adoption unit, who reviewed the Division's efforts at reunification and other placement alternatives for the children; its expert, Elaine Weitz, Psy.D., a licensed psychologist who performed psychological evaluations of each defendant and bonding evaluations of the parents with their children; and Joane Glaeser, a licensed clinical social worker at Children's House, who treated C.D. for individual, family and group therapy. The law guardian produced Frank Dyer, Psy.D., a licensed psychologist, who performed a psychological evaluation of C.D. as well as a bonding evaluation of C.D. with the two children. Each defendant also testified on their own behalf. In addition, on behalf of C.D., the court qualified, without objection, Dr. Kenneth Schulman, as an expert in psychology. Dr. Schulman performed a psychological evaluation of C.D. and a bonding evaluation between C.D. and the children.

Upon conclusion of the trial, the court issued a 134-page written opinion in which it reviewed the evidence and made detailed findings of facts and conclusions of law in determining termination of defendants' parental rights was in the best interests of the children. The court concluded the Division had established by clear and convincing evidence all four prongs of the statutory standards for terminating parental rights as set forth in N.J.S.A. 30:4C-15.1(a) (Act). The court entered its order terminating their parental rights and granting guardianship to the Division, from which the present appeals followed.

On appeal, C.D. and J.R. contend the Division's proofs fell short of establishing the requisite second and fourth prongs for terminating their parental rights under the Act. K.F. urges the Division failed to satisfy any of the Act's four statutory prongs for terminating his parental rights. We reject each contention advanced by defendants and affirm substantially for the reasons expressed by Judge John Conte in his thoughtful and well-reasoned February 13, 2013 written opinion.

II.

The law guiding our review is well-established. Parental rights, while constitutionally protected, are not absolute. In re Adoption of a Child by W.P. & M.P., 308 N.J. Super. 376, 382 (App. Div. l998) (citation omitted), vacated on other grounds, 163 N.J. 158, 176 (2000). The government "is not without constitutional control over parental discretion in dealing with children when their physical or mental health is jeopardized." Parham v. J.R., 442 U.S. 584, 603, 99 S. Ct. 2493, 2504, 61 L. Ed. 2d 101, 119 (1979) (citing Wisconsin v. Yoder, 406 U.S. 205, 230, 92 S. Ct. 1526, 1540, 32 L. Ed. 2d 15, 33 (1972)). Accordingly, the State, as parens patriae, may sever the parent-child relationship when necessary to protect a child from serious physical and emotional injury. W.P. & M.P., supra, 308 N.J. Super. at 382.

When a child's biological parents resist termination of parental rights, the court's function is to decide whether the parents can raise the child without causing further harm. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). The cornerstone of this inquiry is whether parents can "cease causing their child harm" and become fit to assume the parental role within time to meet the child's needs. Ibid. "The analysis . . . entails strict standards to protect the statutory and constitutional rights of the natural parents." Ibid.

In a guardianship matter, a trial court's examination focuses upon what course serves the "best interests" of the child. In re Guardianship of K.H.O., 161 N.J. 337, 343 (1999). Our Legislature requires satisfaction of the "best interests of the child" test, codified in N.J.S.A. 30:4C-15.1(a), by clear and convincing evidence before termination of parental rights can occur. See N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 612 (1986) ("The correct standard is 'clear and convincing' proof."). Specifically, the four-prong test set forth in N.J.S.A. 30:4C-15.1(a) requires the Division to prove:

(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 that 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 factors are neither discrete nor separate; rather, they "'relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests.'" N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 103 (App. Div. 2008) (quoting K.H.O., supra, 161 N.J. at 348). Whether the State has satisfied each prong by clear and convincing evidence is an "extremely fact sensitive" inquiry, which must be based on "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) (internal quotation marks and citations omitted), certif. denied, 190 N.J. 257 (2007).

A. The First Prong

Only K.F. challenges the Division's proofs under the first prong. Proof that V.D.'s safety, health or development has been or will continue to be endangered by her parental relationship with K.F. requires the Division to establish by the requisite standard that K.F, as a parent, has threatened her health and well-being, and, in all likelihood, will continue to do so. K.H.O., supra, 161 N.J. at 352. Significantly, actual physical abuse or neglect is not required for satisfaction of this prong. In re Guardianship of R.G. & F., 155 N.J. Super. 186, 194 (App. Div. 1977). Rather, "[s]erious and lasting emotional or psychological harm to children as the result of the action or inaction of their biological parents can" be sufficient to warrant termination. In re Guardianship of K.L.F., 129 N.J. 32, 44 (1992). "[T]he 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. However, to satisfy this prong, it is not necessary to wait "until a child is actually irreparably impaired by parental inattention or neglect." In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999).

Generally, the proofs in termination cases "focus on past abuse and neglect and the likelihood of it continuing." J.C., supra, 129 N.J. at 10. Indeed, because this prong requires consideration of possible future harm, it is necessary to make predictions as to a parent's possible future conduct, which "'can only be based upon past performance.'" N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 616 (App. Div. 2007)(quoting J. & E. v. M. & F., 157 N.J. Super. 478, 493 (App. Div.) (noting that "[e]vidence of parents' fitness or unfitness can be gleaned not only from their past treatment of the child in question but also from the quality of care given to other children in their custody"), certif. denied, 77 N.J. 490 (1978)). Moreover, "[a] parent's withdrawal of . . . solicitude, nurture, and care for an extended period of time is in itself a harm that endangers the health and development of [a] child." D.M.H., supra, 161 N.J. at 379.

Judge Conte found the Division clearly and convincingly established that K.F. has a serious substance abuse problem. The record established he is an admitted marijuana smoker, testifying that he does so to help him sleep. He also acknowledged that he grows his own marijuana. Notwithstanding his awareness that marijuana possession is illegal and that he was required to refrain from its use if expected to gain custody of V.D., he refused to permanently do so. The judge listed the recommendations given to K.F., which were necessary to follow in order to obtain custody of his daughter, including: continuation of parenting skills training, compliance with drug treatment and rehabilitation, the need for indoor plumbing in his home, a plan to keep employment, and attendance at individual and joint therapy. K.F. offered no expert report or testimony refuting or contradicting the recommendations. Moreover, the judge observed that "at least two years elapsed in which [K.F.] had no communication or contact with his daughter. He made no attempt to establish a safe and stable home for her or to investigate whether she was living in a safe and stable environment." The record therefore supports Judge Conte's conclusion the Division satisfied the first prong of the best interests test under the Act.

 

B. The Second Prong

All three defendants contend Judge Conte erred in finding the Division established by clear and convincing evidence they are unwilling or unable to eliminate the harm to V.D. and A.R., they are unwilling or unable to provide them with a safe and stable home, and any further delay in placement would add to their harm. We disagree.

"The second prong of the statutory standard relates to parental unfitness." K.H.O., supra, 161 N.J. at 352. The Division may satisfy this prong by demonstrating the parent is "'unwilling or unable to eliminate the harm' that has endangered the child's health and development." Ibid. (quoting N.J.S.A. 30:4C 15.1(a)(2)). Alternatively, this prong is proved if the Division establishes the parent has failed "to provide a 'safe and stable home for the child' and a 'delay in permanent placement' will further harm the child." Ibid. "In other words, the issue becomes whether the parent can cease causing the child harm before any delay in permanent placement becomes a harm in and of itself." N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 434 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002).

Under the first alternative, the "inquiry is aimed at determining whether the parent has cured and 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." K.H.O., supra, 161 N.J. at 348. Thus, the focus of the inquiry is to determine whether the child will suffer substantially from a lack of stability and permanent placement as well as from the disruption of his or her bond with the foster parents. Id. at 363.

In addressing this prong, however, judges must be "cognizant of New Jersey's strong public policy in favor of permanency," which requires consideration of "the child's age, [his or her] overall health and development, and the realistic likelihood that the parent will be capable of caring for the child in the near future." Id. at 357. "Concern and efforts by a natural parent after his or her child has been removed from the home, and making genuine and successful efforts to overcome the cause of the removal is of enormous significance." N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 437 (App. Div. 2009).

1. K.F.

While maintaining no harm befell V.D. as a result of his relationship with her, K.F. argues Judge Conte's assessment he was unwilling and unable to cease his marijuana use is "simply belied by the record." K.F. contends "[t]he drug screens and his successful completion of a treatment program show that he was not using from at least July of 2010 through September of 2011." The judge's decision reflects that he was not persuaded by this brief hiatus from illicit use of marijuana, and expressly noted in his decision that K.F. had resumed his use of marijuana and had no intention of discontinuing his use of the drug going forward. The record reflects K.F. expressed an inability to understand how his use and growing of marijuana would impact his ability to parent V.D. Further, in addition to his continued drug use Judge Conte found K.F.

made no attempt to establish a safe and stable home for her or to investigate whether she was living in a safe and stable environment. He has presented no rebuttal testimony to establish that a bond has been created between him and his daughter and that he is capable of raising a child who has ADHD. He has failed to establish how he would care for the child on a daily basis and attend to her psychological, hygienic, and educational needs while he is working full time.

 

The evidence in the record supports Judge Conte's determination the Division met its burden under the second prong. As Judge Conte found, K.F. has not remedied his substance abuse issues and has no desire to do so, has demonstrated a lack of commitment to V.D. by failing to comply with the Division's recommendations, has failed to establish suitable housing for V.D., and presented no plan for her care while he worked full-time.

2. C.D.

C.D. contends she "dutifully engaged in the services the Division provided for her," and the "bare fact that the trial judge felt that [she] was not helped by [those] services does not merit a finding on Prong 2." Moreover, she argues "the fact that [her] parenting skills may be unequal to those of the current foster parents does not satisfy the requirements of Prong 2." She urges that she "has complied with virtually all of the services offered to her by [the Division], has obtained housing, is looking for better housing . . . and is gainfully employed," and, therefore, Judge Conte's conclusion that "'[i]f it were left to [C.D.], the harm would never be eliminated' is simply not true."

In his decision, Judge Conte focused upon the fact that C.D. went from one abusive relationship, with K.F., to another abusive relationship with J.R. The court noted that in addition to the domestic abuse to which she was subjected, she failed to report the abuse to which J.R. was subjecting V.D., leading Judge Conte to conclude that "she supported a relationship with J.R. over the safety, well[-]being and development of the children." The judge additionally concluded the record was replete with examples of C.D.'s inability or unwillingness to eliminate harm facing V.D. and A.R. He noted the fact that C.D. has four other children, none of whom are in her custody, her refusal of assistance from a homemaker in March 2010, and her continued exhibition of poor judgment in her choice of partners. Finally, Judge Conte found that V.D. and A.R. were in need of permanency "without further delay," and C.D. could not promise such relief. "She cannot and has not provided her children with a safe and stable home."

There was substantial credible evidence in the record to support Judge Conte's findings. The experts who testified, including Dr. Schulman, concluded she had not made sufficient progress in therapy to eliminate the substantial risk of harm she poses to her children. Notwithstanding her compliance with court ordered services, she still demonstrated the same behaviors that placed her children at risk: poor judgment and impulse control, lack of insight, her inability to place her children's needs above her own, and her poor relationships with men. All of those behaviors were clearly demonstrated by the fact that C.D. engaged in unprotected sex and became pregnant during the pendency of the guardianship trial. She then started a relationship with a man who was not the biological father of her twins, born in October 2012, and subsequently became pregnant again by that man during the pendency of this appeal. All three of those children have since been removed from her custody because she could not care for them. The record established, clearly and convincingly, that C.D. has shown a consistent pattern of poor judgment, lack of insight and risky behavior, which has placed her children at substantial risk of harm. There was nothing in the record to demonstrate she was willing or able to change, and thereby eliminate the harm that endangered her children's health and development.

3. J.R.

J.R. argues that he was "highly motivated" to correct the issues that led to A.R.'s removal. While he acknowledges the court was correct that he had not participated in the Division's programs, he contends "it is not true that he did not participate in rehabilitative programs." He points to the domestic violence prevention, parenting, and criminality courses in which he participated at his own initiative while incarcerated. He argues the court's criticism he did not see his youngest child, is unwarranted because he was incarcerated prior to her birth and she lived with C.D.'s parents in Vermont. He urges the Division presented no evidence it offered visitation to him and that he declined the offer.

Judge Conte found the Division's proofs clearly and convincingly established the second prong as to J.R. He noted J.R. "has a history of domestic violence and child abuse but no current evidence of programs toward rehabilitation." He credited the opinion expressed by Dr. Weitz that the "best indicator of whether [J.R.] can be granted custody," was her finding that "'any child placed in his care would be at risk of abuse and neglect since he has not yet proven that the pattern of behavior associated with his incarceration has truly been eliminated.'" The judge noted

[t]he record is filled with examples of [J.R.] being unable or unwilling to eliminate the harm facing [A.R.]. To begin with, he has three other children, none of whom are in his custody. He became the father to [A.R.] and thereafter to [a daughter]. As previously indicated[,] he has never seen [this daughter], nor has he taken any steps to provide for her nurturement. There is no evidence that he ever provided for his other daughters.

While crediting Dr. Weitz's opinion that J.R.'s prognosis for reentry into society was good, Judge Conte noted the doctor nonetheless concluded J.R. was "not fit to parent [A.R.] at the present time." The judge concluded the evidence established, clearly and convincingly, J.R. "currently has no income, no housing, no employment and may still be on parole."

The overwhelming amount of evidence presented by the Division clearly and convincingly establishes that J.R. is unable or unwilling to eliminate the harm he has brought upon A.R. It is apparent from Judge Conte's decision that J.R.'s participation in parenting and domestic violence prevention programs while incarcerated did not outweigh the evidence the Division presented, which the judge credited. Specifically, Dr. Weitz opined that J.R.'s unfitness to parent A.R. was based upon his history of child abuse and domestic violence, the fact that he has never parented A.R., and had not fully cooperated in completing rehabilitative programs. Thecourt's consideration of the other evidence and the fact that he, on his own, participated in programs while incarcerated does not outweigh the evidence presented by the Division.

Once again, we accord deference to the judge's factual findings which are supported by the record. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). The evidence in the record supports Judge Conte's determination that the Division met its burden on prong two. Dr. Weitz testified J.R. was unfit to parent A.R., and that A.R. would be at great risk of abuse or neglect if reunified with J.R. J.R. presented no expert report or testimony to rebut or refute Dr. Weitz's expert opinion. J.R. has never been the sole custodial parent of A.R., and there is no evidence he is capable of doing so. Moreover, as Judge Conte pointed out, J.R. has a history of child abuse and domestic violence and presented no evidence he completed rehabilitation programs. J.R. has also failed to present any evidence that he is willing to, and capable of, providing a safe and stable home for A.R. Thus, the record contains clear and convincing evidence establishing the second prong.

C. The Third Prong

Neither C.D. nor J.R. challenge the court's determination related to the third prong. K.F., however, contends the court considered improper factors in reaching its conclusion the Division made reasonable efforts to reunify him with V.D. Specifically, he points to the court's consideration of his failure to "install adequate sanitary facilities in his dwelling." He urges that his living conditions were acceptable under Vermont laws and the Division's recommendations as to his living arrangements, essentially amounted to the Division telling him to get a "nicer" place to live and the "court's condemnation of him for not doing so is not evidence of his parental unfitness." He also criticizes the court's failure to address V.D.'s placement with her paternal grandmother. He additionally contends the court should not have given consideration to the Interstate Compact on the Placement of Children (ICPC), which does not apply when children are being placed with family members. Finally, he contends the Division routinely made recommendations presumably intended to benefit his reunification with A.R., but beyond making recommendations, "offered little or no assistance to him in accomplishing those recommendations."

The third prong requires an evaluation of whether the Division "made reasonable efforts to provide services to help the parent" remedy the circumstances that led to the removal of the children from the home. N.J.S.A. 30:4C 15.1(a)(3). Also, the court must consider alternatives to the termination of parental rights. N.J. Div. of Youth & Family Servs. v. K.L.W., 419 N.J. Super. 568, 580 (App. Div. 2011); N.J.S.A. 30:4C-12.1.

Reasonable efforts will vary with the circumstances. F.H., supra, 389 N.J. Super. at 620. This factor requires the Division to make diligent efforts to make it possible to reunite the family. K.H.O., supra, 161 N.J. at 354. Such efforts include but are 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) providing services 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 emphasis is placed upon the steps taken by the Division toward the goal of reunification. K.H.O., supra, 161 N.J. at 354. It is critical that the Division "encourage, foster and maintain the bond between the parent and child as a basis for the reunification of the family." D.M.H., supra, 161 N.J. at 390. However, the diligence of the Division's efforts is not measured by whether those efforts were successful. Id. at 390. Indeed, "even [the Division's] best efforts may not be sufficient to salvage a parental relationship." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 452 (2012).

Judge Conte found the Division clearly and convincingly established the third prong as to K.F., stating:

The Division has taken more than ample steps toward reunification of [K.F.] with [V.D.]. They have assisted him in obtaining psychological evaluation and parenting assessments, recommended individual and joint therapy . . . , recommended parenting classes and therapy. An interstate evaluation was done to determine whether his mother could be granted custody. . . . He was referred to a [drug abuse rehabilitation] program in Vermont. . . . A psychological evaluation was conducted . . . . The Division also made recommendations on how to improve his dwelling in order to be granted custody of the child. They recommended he develop a plan for indoor plumbing in his dwelling and discontinue using marijuana for at least one year. These recommendations were proposed as directives to follow in order to gain custody of his daughter. . . .

 

The judge also explained there were no alternatives to termination:

Nothing in the law negates or suggests that reunification is appropriate, especially in light of the fact that this defendant is not now or will be in the future fit to parent the child. He has failed to comply with the recommendations to stop using marijuana, failed to install adequate sanitary facilities in his dwelling and has not presented any evidence indicating he is capable of parenting his daughter. He has not shown that now or in the future he will be fit to parent the child. As a result, it is clearly and convincingly shown that the Division has presented sufficient evidence to prove the third prong of the statute.

There was sufficient credible evidence clearly and convincingly satisfying the "reasonable efforts" requirement of the third prong. K.F. was provided with psychological and bonding evaluations, supervised visitation with V.D., gas money to facilitate those visitations, joint and individual therapy, substance abuse assessments, drug screenings, and a substance abuse treatment program in Vermont. The Division also made further recommendations to improve his residence so that he could obtain custody of V.D.

Even assuming Vermont permitted outdoor sanitary facilities does not mean the Division's recommendation that he install indoor sanitary facilities was unreasonable. He testified that Vermont receives approximately 100 inches of snow annually and there is no electricity in the outhouse. Had K.F. complied with other recommendations, including discontinuing his marijuana use and participating in drug treatment and rehabilitation, continuing with parenting skills training, and attending individual and joint therapy, his failure to install indoor plumbing, standing alone, may not have been a reasonable condition upon which to pursue termination of his parental rights. That, however, is not what happened. K.F. failed to comply with all of the recommendations.

K.F. additionally contends "the trial court never even discussed the opportunity to order placement of V.D. with his mother in Connecticut," but, instead, simply concluded "there are no alternatives to termination of parental rights." He additionally urges the Division erroneously relied upon the ICPC to rule out his mother, which does not apply when children are being placed with family members. We find no merit to either contention.

First, K.F. opposed placing V.D. with his mother stating she was "old fashioned" and expressed his fear that V.D. would be subjected to mental abuse if placed with his mother. Second, although K.F.'s mother initially expressed an interest in having V.D. placed with her, she failed to follow through with attempts by Connecticut authorities to arrange child specific training, personal interviews, and complete paperwork which had been forwarded to her concerning V.D.'s possible placement with her. We agree, as K.F. contends, proceeding through ICPC is not required when children are being placed out-of-state with family members. See N.J. Div. of Youth and Family Servs. v. K.F., 353 N.J. Super. 623, 625-26 (App. Div. 2002). The issue here, however, is not, as was in K.F., a challenge to the trial court's out-of-state custody transfer without an ICPC approval. Rather, the issue here was that the paternal grandmother failed to follow through with her initially expressed interest to take custody of V.D. For a myriad of reasons she conveyed to Connecticut authorities her reluctance to take custody of V.D., including her belief that A.R. and V.D. should not be separated and her feeling overwhelmed by the situation. K.F. presented no other placement alternatives and expressly disapproved his mother as a placement. Further, V.D.'s maternal grandmother and stepfather refused to cooperate with the Division's request to submit to psychological evaluations.

In short, the record contains clear and convincing evidence establishing that the Division made reasonable efforts to provide services to help K.F. correct the circumstances that led to V.D.'s removal, N.J.S.A. 30:4C 15.1(a)(2). Likewise, the evidence is equally clear and convincing that alternatives to termination were considered, but no viable alternative to termination of K.F.'s parental rights exists.

D. The Fourth Prong

C.D., K.F. and J.R. all contend Judge Conte erred in finding the Division established, by clear and convincing evidence, the fourth prong of the best interest of the child standard under the Act, namely, termination will not cause more harm than good. The record does not support their contention.

The focus of the fourth prong is on the effect of termination upon the child. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 609 (2007). This prong serves as a fail-safe against termination even where the remaining standards have been met. Ibid. To satisfy its statutory burden of proof as to this prong, the State is not required to show that termination will not result in any harm to the children. K.H.O., supra, 161 N.J. at 355. Rather, the objective under the fourth prong is to identify "'the least harmful or least detrimental alternative.'" A.W., supra, 103 N.J. at 616. "The question ultimately is not whether a biological mother or father is a worthy parent, but whether a child's interest will be best served by completely terminating the child's relationship with that parent." E.P., supra, 196 N.J. at 108. Thus, if a child can be returned to the parent without endangering the child, the parent's right to reunification takes precedence over the permanency plan. A.W., supra, 103 N.J. at 608.

Satisfaction of the fourth prong requires the State to "offer testimony of a 'well qualified expert who has had full opportunity to make a comprehensive, objective, and informed evaluation' of the child's relationship with both the natural parents and the foster parents." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 281 (2007) (quoting J.C., supra, 129 N.J. at 19). Courts must also consider "[a] child's need for permanency." Ibid. "Ultimately, a child has a right to live in a stable, nurturing environment and to have the psychological security that his most deeply formed attachments will not be shattered." F.M., supra, 211 N.J. at 453. Because of the importance of permanence to a child's well-being and development, limits have been placed "on the amount of time a parent may have to correct conditions at home in anticipation of reunification." K.H.O. supra, 161 N.J. at 358.

The fact that the child has bonded with the foster parent does not alone justify the termination of parental rights. F.M., supra, 375 N.J. Super. at 263-64. However, "[w]hen a parent has exposed a child to continuing harm through abuse or neglect and has been unable to remediate the danger to the child, and when the child has bonded with foster parents who have provided a nurturing and safe home," the termination of parental rights will not do more harm than good. E.P., supra, 196 N.J. at 108. Moreover, if the separation of the child from the foster parent will cause serious harm, then the fourth prong is fulfilled. Ibid.

1. K.F.

K.F. contends that while Judge Conte references his parenting deficits, all that can be gleaned from the judge's reasoning is that some theoretical foster parent would be "better" able to provide for V.D. than her own father in the eyes of the court. We find no merit to this contention. Judge Conte found that

[K.F.] has failed in the past to comply with therapy programs and most likely will not comply in the future. He has not shown that there is a bond or attachment between him and [V.D.]. Consequently, termination of parental rights will not do more harm than good. The evidence corroborates the fact that it is not in the best interests of [V.D.] to be placed in the custody of [K.F.]. He is a repeat drug abuser with no interest in stopping. He breaks the law every time he engages in marijuana use.

V.D. was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and the court credited the expert testimony that K.F. had not demonstrated knowledge and understanding of the various specific strategies to be exercised when handling someone with that condition. In particular, the judge credited Doctor Weitz's conclusion that K.F.'s contacts with V.D. should be supervised. While Dr. Weitz acknowledged there was a positive relationship between K.F. and V.D., she found they did not have a strong bond and termination would not result in severe or enduring harm. K.F. did not present any expert report or testimony demonstrating otherwise.

2. C.D.

C.D. contends the evidence before the court clearly established the existence of a strong bond with her children and the court's decision constitutes reversible error as it does not offer permanency for V.D. and A.R. in a manner that keeps them together, which the court agreed was necessary. Additionally, C.D. points to the fact that while the children's current foster mother may be interested in adopting A.R., she is unwilling to adopt V.D.

 

 

Judge Conte found:

There is no question that a bond exists between [C.D.] and her children, or that she is trying to improve her standard of living. However, there was insufficient evidence presented to show she can provide safe and stable housing for herself and the children. No matter how hard she is trying at the present time, her sordid past and failed re-unifications must be given weighty consideration. The doctors all either state, or do not dispute, the fact that permanency is needed and it must be achieved now. The children cannot wait any longer, cannot languish any longer while [C.D.] attempts to cure her prior difficulties. There has been no testimony that while the children were living with her, their safety and well[-]being was promoted, especially in light of the fact that the reunification only lasted six weeks. However, there was abundant testimony that the children are doing so much better now than they had been throughout their entire lives.

 

The evidence presented under this fourth prong unquestionabl[y] shows that continuing the relationship with [C.D.] is far outweighed by the risk of harm that may be perpetrated on the children. She lacks the capacity to meet the needs of the children. She has demonstrated her inability to provide structure, positive role modeling, emotional security, and affection on a consistent basis. . . .

 

Contrary to C.D.'s contentions, the evidence supports the court's determination that the Division met its burden under the fourth prong. The expert testimony established that termination of parental rights would not do more harm than good, and that both V.D. and A.R. were in need of permanency. Although Dr. Weitz expressed the opinion that terminating C.D.'s parental rights would cause severe and possibly enduring harm to V.D., and some harm to A.R., she testified the children desperately needed permanency and that reunification with C.D. was far too risky. Moreover, she opined their need for permanency and competent caretakers outweighed the harm from terminating C.D.'s parental rights. She concluded the harm from termination can be overcome by the security of placement in a safe and stable home. Similarly, Dr. Dyer opined that reunifying V.D. with C.D. would cause a greater degree of harm than termination of parental rights.

Dr. Schulman, who provided expert testimony on behalf of C.D., agreed that C.D. was not ready to parent her children and reunification would not be appropriate at that point. He noted that more than two years after the children had been removed from her custody, she failed to accept responsibility for their removal, which he opined she would need to do before reunification could be a possibility.

Finally, even after services were provided to her, she still demonstrated poor judgment, lack of insight, an inability to properly care for her children, and a complete failure to place the needs of her children over her needs. From the record, the only conclusion that can be reached is that she poses a substantial risk of harm to both V.D. and A.R. Consequently, the record establishes clearly and convincingly that termination of C.D.'s parental rights to V.D. and A.R. will not do more harm than good.

3. J.R.

J.R. contends that "[b]y all accounts, [he] has an excellent relationship with A.R., and has no issues caring for A.R." He additionally contends "[n]othing in the record suggests that A.R. was not healthy and happy." He acknowledges, however, that no expert opined he had bonded with A.R., but points to Dr. Weitz's testimony during which she noted a relationship was developing with A.R. even during the period of his incarceration. Additionally, he urges that termination serves no purpose because the Division, at the time of trial, had not commenced searching for a new home for A.R.

In finding the Division established the fourth prong against J.R. with clear and convincing evidence, Judge Conte stated:

[J.R.] never parented his son without someone assisting him. Nothing has been shown that he possesses the parenting skills and knows what to do and how to raise the boy. There is no doubt that [A.R.] has been abused and neglected. He needs a safe and stable home where he does not have to worry about being removed to a new home. There is no doubt that [J.R.] cannot promise such stability. He has spent much of the child's life behind bars and not enough time to establish a bond with his son. It is apparent that [J.R.] would benefit from therapy programs but considering the fact that he has failed to comply in the past, it is mo[s]t likely that he will not comply in the future. There is no bond or attachment between him and his son. It is apparent that separating [A.R.] from his father will not cause him significant psychological and emotional harm. . . . No evidence has been presented on his behalf, nor did he testify, that he is ready to make such a commitment of providing a safe and nurturing home for his son.

 

As a result of the foregoing, termination of parental rights will not do more harm than good. It is apparent that the Division has presented clear and convincing evidence to prove the fourth prong of the statute.

 

There was sufficient credible evidence to establish that termination of his parental rights would not do more harm than good. Judge Conte credited Dr. Weitz's findings that there was no "true and enduring bond" between J.R. and A.R., and therefore terminating J.R.'s parental rights would not have much of an emotional impact on A.R. or cause him severe or enduring harm. On the other hand, she opined that removing him from his resource family, J.R.'s cousin, could possibly cause severe and enduring harm. J.R. presented no expert report or testimony to rebut or refute Weitz's opinion, or show that termination of his parental rights would do more harm than good.

Moreover, J.R. has not demonstrated that he is capable of caring for A.R. by himself. At the time of the court's decision, J.R. was unemployed and had no income or housing. He did not present a plan for the care of A.R., and there was no evidence that he adequately addressed his history of domestic violence and child abuse.

Finally, J.R. pled guilty to second degree child endangerment in connection with the abuse of V.D., A.R.'s half-sister, evidence Judge Conte could not disregard in assessing J.R.'s possible future conduct. F.H., supra, 389 N.J. Super. at 616. The evidence supported the conclusion that J.R. posed the risk of future harm to A.R., and "[c]ourts 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.

Our review of Judge Conte's factual findings and credibility determinations is limited. M.M., supra, 189 N.J. at 278-79. See also Cesare, supra, 154 N.J. at 411-12 ("The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." (citations omitted)); F.M., supra, 375 N.J. Super. at 259 ("When the credibility of witnesses is an important factor, the trial court's conclusions must be given great weight and must be accepted by the appellate court unless clearly lacking in reasonable support." (citation omitted)). Particular deference is accorded "'[b]ecause of the family courts' special jurisdiction and expertise in family matters,'" N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (quoting Cesare, supra, 154 N.J. at 413), and because the trial judge "has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand[.]" E.P., supra, 196 N.J. at 104. This "'feel of the case' . . . can never be realized by a review of the cold record." Ibid. (quoting M.M., supra, 189 N.J. at 293). Nonetheless, we recognize that a trial judge's "interpretation of the law and the legal consequences that flow from established facts" are subject to our de novo review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). Reversal, however, is warranted only when a trial judge's conclusions have swayed "so wide of the mark that a mistake must have been made." M.M., supra, 189 N.J. at 279 (internal quotation marks and citations omitted).

Measured under this standard of review, we discern no basis to disturb the decision reached by Judge Conte as to each defendant, which was supported by clear and convincing evidence in the record and comported with the statutory requirements for terminating their parental rights. Termination of their respective parental rights was in the best interests of V.D. and A.R.

Affirmed.

1 Subsequent to trial, V.D. was placed back into a resource home for a selected home adoption, which involves the Division searching for adoptive parents who are neither a child's relative nor the child's current foster family. A.R. continues to reside with R.R., who is committed to adopting him.