NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. M.W.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NOS. A-04056-12T4

A-4067-12T4

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

M.W. and W.W.,

Defendants-Appellants.

__________________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF D.M.W., W.C.W. and A.M.W., minors.

__________________________________________

July 7, 2014

 

Submitted May 28, 2014 - Decided

 

Before Judges Sabatino, Hayden and Rothstadt.

 

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-101-13.

 

Joseph E. Krakora, Public Defender, attorney for appellant M.W. (Eric R. Foley, Designated Counsel, on the brief).

 

Joseph E. Krakora, Public Defender, attorney for appellant W.W. (Shepard Kays, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent Division of Child Protection and Permanency (Lewis A.

Scheindlin, Assistant Attorney General, of counsel; Nora P. Pearce, Deputy Attorney General, on the brief).

 

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Janet L. Fayter, Designated Counsel, on the

brief).

PER CURIAM

Defendants M.W. (Mary) 1 and W.W. (Warren) appeal from the Family Part's guardianship judgment, entered after a trial, that terminated their parental rights to their children, D.M.W. (Debbie), born in 2008; W.C.W. (Walter), born in 2010; and A.M.W. (Andy), born in 2012.2 The two older children suffer from developmental delays, including delayed speech, and the youngest child was born with a significant physical problem that can impact his ability to see and cause intellectual disabilities, among other maladies.

Mary and Warren contend that their parental rights should not have been terminated, because the New Jersey Division of Child Protection and Permanency (Division)3 failed to prove each of the four statutory prongs contained in N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. The Division and the children's Law Guardian disagree and urge us to affirm the court's judgment. Having considered the record in light of the parties' contentions and applicable legal standards, we affirm, essentially for the reasons stated by Judge Linda G. Baxter in her comprehensive April 9, 2013 oral opinion.

I.

A.

The record discloses the following facts and procedural history. Warren, age forty-seven, and Mary, age twenty-six, are a married couple with an extensive history of mental health issues, substance abuse, criminal behavior, and domestic violence. Mary's history includes convictions for terroristic threats, N.J.S.A. 2C:12-3(a), aggravated assault, N.J.S.A. 2C:12-1(b)(2), and resisting arrest, N.J.S.A. 2C:29-2(a)(3), among other offenses. Warren's includes convictions for burglary, N.J.S.A. 2C:18-2, criminal sexual contact, N.J.S.A. 2C:14-3(b), criminal trespass, N.J.S.A. 2C:18-3, writing bad checks, N.J.S.A. 2C:21-5(c)(4), harassment, N.J.S.A. 2C:33-4(b), and violation of probation, among other offenses.

Prior to the Division's involvement with their family, the two had been treated for mental illness. In fact, they met for the first time as patients in the same psychiatric hospital. Warren was admitted to the hospital in April 2006 after a suicide attempt, and also experienced auditory hallucinations. He was prescribed medication to treat a bipolar disorder. However, he occasionally sold his medication in exchange for drugs, as he also had a long standing addiction to controlled substances, including crack-cocaine. Mary was admitted to the hospital after being accused of stabbing her brother.

The Division first became involved with the family in 2010, a few weeks after Walter's birth, when it received a referral about Mary's treatment of Walter in the hospital. It was reported that she spent only five minutes with Walter after his birth, opting to send him to the nursery. She was also agitated and angry, and had a disruptive verbal argument with Warren at the hospital. She subsequently signed herself out, against her doctor's advice.

Based on the referral, the Division investigated Mary's home, and determined that it was clean and safe. However, defendants were both agitated that the Division even came to their home. When questioned, Warren denied that he and Mary had substance abuse problems or mental health concerns. Mary admitted that she was on probation until September 2010 for a disorderly persons offense. They refused to sign any Division paperwork, to provide information about the children's pediatrician, or to allow the caseworker to interview Debbie. Defendants also declined services. As a result, the Division closed the case.

On August 2, 2010, the Division received another referral about the family. It was reported that Mary had mental health problems, and had been in jail. It was also reported that defendants had a violent physical altercation, and had left Debbie with a friend, without providing enough food or supplies for the child. Furthermore, defendants would "often" lock Debbie in an infant seat, give the child a bottle, and tell her to "shut up."

Upon investigation, the Division substantiated defendants' abuse and neglect of Debbie and Walter. It specifically determined that on July 30, 2010, defendants had a physical altercation when Mary became upset that Warren was in the family car with an alleged drug dealer. Mary ran down the street to chase after the car, leaving her children unattended in the home. Thereafter, she stayed at a friend's home, because she was concerned that Warren would hurt her. Mary later left Walter and Debbie in the care of another friend (Susan). Mary called her friend the next day, claiming she was in the hospital. She asked her friend to take Walter to an upcoming pediatrician appointment, as Mary believed that Warren had not returned home and was abusing drugs.

The Division interviewed Mary at the hospital. While she initially denied having a psychiatric disorder, Mary eventually conceded that she had received treatment for mental health issues in the past. She said she first met Warren in a psychiatric hospital, while he was being treated for mental health and substance abuse issues. She believed that Warren had resumed abusing cocaine, based on his history of substance abuse, his recent behavior, and his being in the car with a known drug dealer. She also said that during fights, they called each other racial slurs. She further disclosed that defendants had recently had an argument with Susan, and that Mary did not know where the children were during the exchange.

The Division also interviewed Warren, who admitted he suffered from mental health issues, and had not taken his medicine for the past three years. He said he had previously abused crack cocaine, but had been sober for approximately three to four years. He said he and Mary fought daily, and that the police were frequently called. He denied riding in a car with a drug dealer, and complained that Mary had attempted to jump onto the vehicle while it was moving. Subsequent to that incident, he said he stayed with a friend for several days.

Susan confirmed to the Division that Mary did not leave enough supplies for the children, including food, diapers, and clothes. She also said that Mary told her to lie to the Division about the surrounding events. The Division determined that Susan did not have proper sleeping areas for the children. Accordingly, it removed Debbie and Walter, pursuant to N.J.S.A. 9:6-8.29, and placed the children in a resource home. Mary called the Division hotline several times to report that she was a good mother.

On August 4, 2010, the court granted the Division temporary custody, care, and supervision of Debbie and Walter after it determined that Mary was mentally unstable and Warren had abandoned the family, tested positive for cocaine, and was diagnosed with cocaine dependence and alcohol abuse. The court ordered that Mary and Warren comply with Division-recommended services for substance abuse and marriage counseling. Warren was specifically required to attend an intensive outpatient substance abuse program. The court also approved visitation between defendants and children.

On November 22, 2010, the Division referred the family to an agency for therapeutic visitation services with parenting skills instruction. The agency reported that during a January 2011 visit, Warren became agitated when a Division worker instructed him to take Debbie to the restroom, as he believed that only Mary needed to improve her parenting skills. During a February 16 visit, Warren struck Debbie, then age two, with an open hand.

On March 21, 2011, defendants regained custody of Debbie and Walter, while the Division retained care and supervision. The litigation was terminated by June 14, 2011, but defendants were required to continue services. One month later, Mary called the Division to report that Warren had used crack cocaine while caring for the children. He then left the home, and did not return. She also stated that their bank account was overdrawn, and their rent was due. In response, the Division advised Mary to contact them in the event that Warren returned, and to prevent him from supervising the children. Mary agreed to the plan, and assured the Division she would call the police upon Warren's return.

On August 8, 2011, Mary contacted the Division again about Warren's drug use. A Division worker reported that Mary was noticeably upset during the call, while Warren could be heard yelling at her in the background. The Division called the police. Upon their arrival, defendants were found yelling at each other in front of the children, and refused to stop. Warren screamed that he would not submit to a drug test, despite not being asked to do so at that time. As the altercation progressed, Mary refused to reenter the home, and would not comply with the officers' instructions. At one point, while holding Walter, she attempted to strike one of the officers. This nearly caused the child to fall out of her arms. Four additional officers were called to control the scene, and Mary was arrested. The Division removed the children again, and placed them in a resource home, and filed a new complaint for custody.

In its complaint, the Division alleged that the children had been endangered by their proximity to defendants' domestic violence. The court entered an order continuing the Division's custody of the children on September 20, 2011. It ordered defendants to receive mental health evaluations and counseling, and Mary to receive individual counseling, marriage counseling, and parental skills training.

By October 5, 2011, defendants had been evicted from their home. In November, Mary's therapy provider closed her file, because she failed to appear for two sessions, and arrived late for another two. It was reported that defendants continued to engage in verbal disputes. Warren also informed the Division that he had been using crack cocaine. As a result, the Division obtained a consent order allowing only supervised visitation between Warren and the children. Meanwhile, the Division investigated and ultimately ruled out defendants' proposed relatives as possible caretakers.

On December 2, 2011, Debbie, then age three, underwent a child study team evaluation which found her to be developmentally delayed, particularly with regard to speech and language skills. She was also physically aggressive with her brothers. Based on the evaluation, she was classified as pre-school disabled, and began participating in therapy and special education services.

Psychologist Gregory Gambone evaluated Mary and Warren on December 6, 2011. He indicated some personality and psychological deficits that would impact Mary's ability to parent, including her poor decision-making, her anger management problems, and her tolerance for domestic violence. The doctor diagnosed her with adjustment disorder with mixed anxiety and depressed mood, and dependent personality disorder. He opined that she could not independently parent her children at that time. As to Warren, the doctor noted his history of domestic violence, substance abuse, psychiatric issues, and noncompliance with psychiatric medication. He diagnosed Warren with alcohol and cocaine abuse, mood disorder not otherwise specified, and dependent personality disorder with antisocial features. He concluded that Warren was also incapable of independently parenting his children.

Also in December 2011, psychologist Janet Cahill conducted parenting capacity evaluations of defendants. The doctor diagnosed Mary with mild retardation. She also said Mary failed to show a minimally acceptable level of parenting skills, and had poor judgment and problem-solving skills. The doctor noted that Mary did not properly monitor her children's behavior or act in an age-appropriate manner. The doctor also noted Mary's history of conflict with Warren. Dr. Cahill stated that Mary's condition would not improve with therapy, and she would be unable to learn how to properly parent. She concluded that Mary could not independently parent, and that her mental limitations would place the children at risk of harm. Dr. Cahill did not support the reunification of Mary with the children.

The doctor diagnosed Warren with bipolar disorder and cocaine dependence. She noted his problems with controlling the children, and that he became increasingly irritable. He also had poor problem-solving skills, and failed to protect the children from Mary. Dr. Cahill concluded that the children should not be returned to him either.

Mary gave birth to Andy in January 2012. He was born with an abnormally-shaped head, as a result of craniosynostosis.4 The hospital notified the Division of the birth. Mary disclosed to the Division that she and Warren had resolved their past issues, and that they were living together in a motel. A Division caseworker reached out to Warren, and scheduled a meeting for the following day to evaluate defendants' living situation. On the next day, Mary checked herself out of the hospital, against medical advice. Warren then cancelled his meeting with the Division.

Defendants visited with Andy at the hospital once, for thirty-five minutes. Upon discharge, the Division took custody of Andy and placed him in a resource home. On the same day, Mary called the Division to complain that Warren was again using crack cocaine. The Division followed up with Warren, who denied any drug use but refused to submit to a urine screening.

On January 9, 2012, the Division amended its complaint to seek care, custody, and supervision of Andy. The court entered an order on January 12 continuing the Division's custody of all three children. Defendants both denied needing services. Nonetheless, the court ordered Warren to attend substance abuse treatment and to submit to a hair follicle test, and Mary to attend therapy. It also ordered the Division to pay defendants' security deposit and first month's rent for a new apartment.

Mary began therapy with social worker Rachel Margolin on January 9. While Margolin found Mary was candid, she concluded that Mary did not fully accept responsibility for the Division's involvement in her life, and had little understanding of child development. Meanwhile, Warren repeatedly refused to submit to a hair follicle drug test. On March 9, 2012, the Division again requested that Warren participate in the test, but he refused to be "rushed" into the process. Three days later, Warren finally appeared, but the technician was unable to perform the test. Warren had shaved off the hair from his entire body.

On March 14, 2012, the court held, after a fact-finding hearing, that defendants had abused and neglected Debbie and Walter. In support, it noted defendants' domestic violence, Warren's use of crack cocaine and his refusal to submit to drug testing, and a separate act of violence in which Warren punched a window.5 The court also ordered that Andy remain in the Division's custody, and required defendants to continue to participate in services.

On May 24, 2012, the court approved the Division's permanency plan to terminate defendants' parental rights to their children followed by adoption. The court found the plan appropriate, as the children had been in resource homes for an extended period of time, and defendants had failed to complete the court-ordered services. It found that the Division provided reasonable efforts to reunify the family. Defendants also stipulated to the court's findings that Mary was unable to parent due to mental illness, and Warren was unable to parent because he still needed to complete substance abuse treatment.

On the same day, Mary was discharged from her therapy service for noncompliance. In the next month, during a supervised visitation session, Warren became extremely angry, and started calling Mary by various names and epithets in front of the children. His outburst lasted for nearly an hour. However, Warren denied his reaction was inappropriate because he was not physically violent.

The visitation service reported that defendants frequently fought in front of the children, and that they still had not acknowledged why the children had been removed from their care. In July 2012, the service reported that Mary continued to struggle with parenting the children. It also reported that Warren believed he had heard demonic voices that caused him to remove the battery from his cell phone. Defendants' therapeutic visitation services were cancelled on July 16, 2012, due to a lack of progress.

On July 5, 2012, the Division filed a guardianship complaint seeking termination of parental rights. By August 2012, all three children had been placed in the same resource home under the care of J.S. (Jake) and A.S. (Abby), who wanted to adopt them. The children remained with them throughout the trial.

On August 16, 2012, psychologist Linda Jeffrey evaluated Mary and Warren individually, and conducted a bonding assessment between defendants and their children. On December 4, 2012, psychologist Ronald S. Gruen evaluated Mary individually, and conducted a bonding assessment of her and the children. On January 30, 2013, Dr. Gruen evaluated Warren individually, and conducted a bonding assessment of him and the children. On February 19, 2013, Dr. Gruen conducted a bonding assessment between the children and their resource parents. On February 23, 2013, Dr. Jeffrey also conducted a bonding assessment between the children and their resource parents.

B.

The Family Part conducted a guardianship trial in March and April 2013. Division caseworker Charmain Bryant testified that the Division provided defendants numerous services, including psychological and psychiatric evaluations, domestic violence assessments, marriage counseling, individual counseling, mental health treatment, and visitation. It provided substance abuse services for Warren. It also provided defendants bus passes.

Bryant also testified that she had received threatening phone calls, advising her to "stop f'in with [defendants]." She believed the caller was Warren, changing the tone of his voice to hide his identity. When confronted about the calls, according to Bryant, Warren blamed them on a "ghost."

Albert Newkirk, a Division intake investigator, testified about the details of the August 2010 referral. It advised that the youngest child was not being fed properly, that the children were not properly supervised, and that one of the parents was abusing drugs. He described meeting with Mary, who told him that Warren might be abusing cocaine. She said she had participated in a program in the past to address her mental health issues. Newkirk also spoke with Mary's friend Susan, and determined that the children could not remain with her because she lacked appropriate sleeping arrangements.

Division worker Katrina Ingram, who had been assigned to the family from December 2011 to March 2012, testified that defendants refused to participate in domestic violence counseling, believing they did not need it because their confrontations were not physical. She said defendants felt that there were no problems in their marriage. She said that defendants were inconsistent in their visitation. In addition, the Division provided them with rent money when they became homeless. Ingram, too, received calls from someone claiming to be a "ghost," as well as someone claiming to be Warren's father. However, Ingram recognized the voice to be that of Warren.

Officer Michael Clark, a Winslow Township patrolman, testified that police had been dispatched to defendants' home "numerous times. . . . [t]oo many times." The police sometimes received multiple calls in one day. The calls often related to marital problems or a domestic disturbance. However, defendants sometimes denied that they had dialed 9-1-1, and blamed the calls on "ghosts."

Dr. Jeffrey testified as an expert in clinical psychology, domestic violence and substance abuse. Based on her psychological evaluation, she diagnosed Warren with substance dependence disorder, not otherwise specified; adjustment disorder; and personality disorder, not otherwise specified, with narcissistic and paranoid features. She noted his previous bipolar disorder diagnosis after reviewing his record. According to the doctor, at his evaluation, Warren reported that his substance abuse had been in remission for one year. However, the doctor did not find his report credible, as Warren did not participate in a formal relapse prevention program, and refused to cooperate in drug testing. She said that his shaving his entire body before hair follicle testing led her to seriously doubt that his substance abuse was in remission.

Dr. Jeffrey said Warren's adjustment disorder made him fall below developmental expectations for a person his age. In addition, Warren's self-report of his issues with the law and psychiatric history were not consistent with the record she reviewed. According to the doctor, the record of police calls alone measured "probably three inches." Based on her assessment, she opined that Warren was unlikely to detect a need for personal change, and not motivated to engage in treatment. She concluded that he was unable to meet minimum safe parenting standards.

Dr. Jeffrey diagnosed Mary with adjustment disorder with mixed disturbance of emotion and conduct; attention deficit hyperactivity disorder; and narcisstic personality disorder with dependent and antisocial features. She further concluded that Mary had borderline intellectual functioning, and some learning disability. She said that Mary's form of adjustment disorder impacted her development as an adult, as she had difficulty managing her emotions and personal conduct. Her narcissism made her emotionally immature, and self-absorbed. The doctor maintained that many people with borderline intellectual functioning and learning disabilities were able to parent, but that they had to develop compensating skills to do so.

As to defendants' bonding evaluation, Dr. Jeffrey testified that the children had an insecure attachment to their parents.6 While the children had an emotional and affectionate tie to their parents, she noted that they were not responding to defendants' parental authority, nor were they using their parents as a secure base. Warren attempted to leave the room five times, which was consistent with his behavior in previous visitations, based on Dr. Jeffrey's review of his record. The parents had difficulty establishing structure during the interaction as a whole. The doctor also noted that defendants could not control the children's increasing noise level.

Defendants did not feel any responsibility for the Division's involvement in their family. In addition, both completed a parenting alliance measure independently, to assess how each felt about his or her ability to co-parent with the other. In response to categories such as, "being able to communicate, problem solve, being a good parenting team, having the same goals, having the same notions about what behavioral limits were for the children," defendants consistently responded "agree" or "strongly agree." They therefore indicated that they had no problems with co-parenting. However, at least as to Mary, Dr. Jeffrey did not view these responses as honest or accurate disclosures in light of their record:

Because in the review of documents there were indications that there were chronic problems between [defendants] and that these problems rose to the point of [Mary] frequently talking to other people, including calling the police, calling [the Division], displaying serious concern about [Warren's] behavior, indicating that he was abusing substances. In other words raising very serious questions about him but not disclosing it in the parenting alliance measure which raised concerns about social desirability responding test defensiveness and lack of candor.

In assessing the bonding evaluation between the children and their resource parents, Dr. Jeffrey noted that the parents were skillful in structuring the interaction, and organizing the children as a group. She said they were paying attention to each child. They worked well as a team, and capable of multitasking. The children were more relaxed with their resource parents than with defendants, and maintained closer proximity with their resource parents. In addition, the resource parents were more aware of the children's special needs, and displayed a mature and empathetic attitude toward their birth parents.

Based on the assessment, Dr. Jeffrey concluded that within the six to seven month period of living together, the children had developed a secure attachment with the resource parents. She observed an affectionate tie between the children and the resource parents; that the children responded to their parenting authority; and that the children used them as a secure base. The doctor testified that the severance of an insecure attachment could cause some harm, but was unlikely to cause "serious and enduring harm." She said the severance of a secure attachment would cause harm, and that defendants could not provide the stable environment needed to mitigate that harm.
Dr. Gruen testified on behalf of the law guardian. He explained that defendants' individual evaluations and bonding assessments were originally scheduled for the same day. However, Warren did not attend the first scheduled date, as defendants had argued the night before and Warren had left. Dr. Gruen evaluated Mary on her own, and conducted a bonding assessment with her and the children. Warren later called Dr. Gruen to complain that the interview with Mary had prejudiced the doctor against him. In response, Dr. Gruen encouraged Warren to appear for his own psychological evaluation. Warren ultimately did appear for his evaluation.

However, as Warren explained, Mary had tried to come with him on the morning of his rescheduled evaluation, and he asked her to leave. Mary still insisted on going with him, and the two had an argument in the Division's office. When Warren tried to get away from her, Mary started "acting out" and the police were called. Warren said that she was arrested for making a scene, but that he was glad to be there without her.

In his evaluation of Mary, Dr. Gruen noted she had intellectual deficits that would impact her ability to take care of her children. He testified that she was dependent on Warren, and had difficulty handling herself and the children without his assistance. Warren reported that he is the primary caregiver for the children, and assumed most of the household responsibilities. Dr. Gruen said this was corroborated by the children, who asked, "Where's daddy?" when Warren was absent from the bonding evaluation. The children said that their father is usually the one who takes care of them.

Dr. Gruen noted that Mary was unable to control the children during the bonding evaluation. The children did not listen to her. She experienced a "role reversal" with Debbie, who was whiny and often bossed her mother around. Walter was hyperactive. Andy was asleep throughout most of the assessment, and Mary was glad for this, because she was having such difficulty controlling the children. When asked about their developmental delays, Mary acknowledged that the children were in early intervention. Dr. Gruen opined that she was simply "parroting" what she had heard, and that Mary did not really understand what "early intervention" meant, or the extent of her children's delays.

Dr. Gruen observed that Warren does a marginally better job at parenting. However, he said that Warren's habit of leaving would have a destabilizing effect on the children. Warren blamed Mary for not taking on more responsibility in raising the children and doing household work. He said he stays with Mary for the sake of the children, and that if she does not improve, he plans to leave her and raise the children himself. However, he also said that he does not make arrangements for the children whenever he leaves Mary.

Dr. Gruen further noted the instability and dysfunction in defendants' relationship. He testified that Mary is highly dependent on Warren, and she prioritizes her relationship with him over the children's needs. She was determined to stay with Warren, even if it meant tolerating his drug use. Dr. Gruen also described their cycle of conflict:

A. . . . I think they play a little game, it's a dance . . . the dance of anger. And he tries to get away from her, and he wants peace, and she does annoy him according to what he says, but he also knows that by leaving he's punishing her because she'll panic.

 

And then he feels that . . . she really needs him, and when he feels that she's been punished enough he comes home.

 

Q: And what does that look like from her angle?

 

A. She's being rejected and abandoned. Because neither one really understands why they do it.

As to the resource parents, Dr. Gruen noted that the children had been with them for six months. While he would generally not talk about a deep psychological bond until a year had passed, he said the resource parents obviously loved the children, they put their needs first, were very organized and nurturing. He testified that their bond with the children was developing "rapidly." Moreover, they were well aware of the children's special needs, and better equipped to address them than defendants.

In particular, Dr. Gruen noted that Warren would not even address his own bipolar issues properly, and was essentially self-medicating with alcohol and drugs. He opined that the children would be medically neglected if they remained with defendants, and would be emotionally scarred by the dysfunction. Dr. Gruen recommended termination of defendants' parental rights, and opined that the children would experience "no harm whatsoever" by the severance. He said that the children felt more secure with their resource parents, and that the resource parents were better able to meet their needs.

Mary testified that she met Warren in 2006, while both were being treated in the same hospital for mental health problems. They married in November 2006. At the time of trial, she was working part-time at Arby's, and Warren was working part-time at Red Robin. Defendants each received $545 per month in social security insurance benefits and food stamps, and they lived at a local Days Inn.

In her testimony, Mary maintained that she had a normal marriage, and minimized the significance of her fights with Warren. She said she was committed to staying with Warren and had no intention of divorcing him. She denied that she ever left her children unattended while fighting with Warren. She at first claimed that she attended all of her visits with the children, but later admitted that defendants did not attend all of the appointments. She said she only called the police to deal with marital problems, and was not concerned about Warren's drug use. She was aware that Warren blamed the 911 calls on "ghosts." However, Mary attributed the excessive calls to the telephone lines being "crossed."

Warren testified that he was treated for mental health problems in 2006, because he was depressed and suicidal, and suffered from substance dependence. He denied he was in a car with a known drug dealer. Warren clarified that the person in question only associated with drug dealers, and that he himself was not a drug dealer. He admitted to leaving home for several days at a time after fighting with Mary, and that in March 2013 he left home for approximately one day. However, he characterized their conflict as "little ups and downs." He said that defendants were living in a motel. Before finding his current job at Red Robin, he had spent several months unemployed. He said he frequently changed jobs, and that he had filed for bankruptcy. He denied claiming that a demon contacted him over the phone. He also blamed "crossed wires" for the 9-1-1 calls.

On April 9, 2013, in an oral opinion placed on the record, Judge Baxter found that the Division proved by clear and convincing evidence, all four required elements under N.J.S.A. 30:4C-15.1, and terminated defendants' parental rights. These appeals followed.

II.

Before proceeding to defendants' specific arguments, we set forth the standards that guide our review. Parents have a right "to raise a child and maintain a relationship with that child, without undue interference by the state[.]" N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 102 (2008). That right is fundamental, and protected under both the United States and New Jersey Constitutions. Ibid. Thus, the courts "have consistently imposed strict standards" in such cases, In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999), as termination of parental rights is considered an "extreme form of action," E.P., supra, 196 N.J. at 102, and "a weapon of last resort in the arsenal of state power." N.J. Div. of Youth and Family Servs. v. F.M., 211 N.J. 420, 447 (2012). However, that right is not absolute, but is "tempered by the State's parens patriae responsibility to protect children whose vulnerable lives or psychological well-being may have been harmed or may be seriously endangered by a neglectful or abusive parent." Ibid. (citing E.P., supra, 196 N.J. at 102).

"The focus of a termination-of-parental-rights hearing is the best interests of the child[,]" and the Division must "satisfy by clear and convincing evidence four factors, known as the best-interests-of-the-child test, set forth in N.J.S.A. 30:4C-15.1(a)." Id. at 447-48 (citing N.J. Div. of Youth and Family Servs. v. R.D., 207 N.J. 88, 110-11 (2011)) (internal citation omitted). Those four statutory standards are:

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

 

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

 

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

 

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

 

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

 

These four "prongs" require a fact-sensitive analysis, and "are neither discrete nor separate [but] overlap to provide a composite picture of what may be necessary to advance the best interests of the children." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 280 (2007) (quoting N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 258 (App. Div. 2005)) (internal quotations omitted). In applying these standards, we bear in mind New Jersey's strong public policy in favor of placing the child in a permanent and stable situation. K.H.O., supra, 161 N.J. at 357-58.

"We will not disturb the family court's decision to terminate parental rights where there is substantial credible evidence in the record to support the court's findings." E.P., supra, 196 N.J. at 104 (citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). We accord deference to the family court's findings of fact and credibility, in light of its opportunity to assess witnesses first-hand, and to develop a "feel of the case." Ibid. (quoting M.M., supra, 189 N.J. at 293). Moreover, we accord particular deference to the judge's fact finding in light 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 v. Cesare, 154 N.J. 394, 413 (1998)) (internal quotations omitted). "Only when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark' [will we] intervene and make [our] own findings to ensure that there is not a denial of justice." E.P., supra, 196 N.J. at 104 (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007)).

Applying these standards to the instant matter, we are satisfied from our independent review of the record that substantial, clear and convincing evidence existed to support Judge Baxter's conclusions about the children's best interests.

A.

Defendants argue that there was insufficient evidence to support the court's finding as to the first prong - that they had endangered their children's health or development, or that defendants would endanger their health or development going forward. Specifically, they argue that Judge Baxter primarily and erroneously relied on defendants' ongoing domestic issues to find that the children would be harmed, and they cite to our decision in N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551 (App. Div. 2010)7 for the proposition that the children's mere exposure to their parents' domestic violence disputes cannot be the basis for a court's finding of the harm required under this prong. We disagree with defendants' application of our holding in that case to the facts here because the judge relied on much more than defendants' episodes of domestic violence to support her decision.

Under the first prong, the Division must demonstrate harm to the child resulting from the parental relationship, "that threatens the child's health and will likely have continuing deleterious effects on the child." K.H.O., supra, 161 N.J. at 352. The Division must proffer adequate evidence of "actual harm or imminent danger" to the child. N.J. Dept. of Children & Families v. A.L., 213 N.J. 1, 29 (2013). When determining whether or not a parent will harm a child in the future, the court may consider evidence of past neglect of the subject child or other children, In re Guardianship of J.C., 129 N.J. 1, 10 (1992), because the abuse of one child in the home is also relevant to the safety of the other children. N.J. Div. of Youth & Family Servs. v. Robert M., 347 N.J. Super. 44, 68 (App. Div.), certif. denied, 174 N.J. 39 (2002).

A court does not have to wait until a child has actually suffered irreparable harm to intervene. F.M., supra, 211 N.J. at 449. "Harm" in this context is not limited to physical harm, In re Guardianship of R.G.& F., 155 N.J. Super. 186, 194 (App. Div. 1977), but includes emotional and psychological harm as well. N.J. Div. of Youth & Family Servs. v. W.W., 103 N.J. 591, 605 (1986). It can be established by proof of a parent's failing to provide day-to-day nurturing and a safe and caring environment for a prolonged period of time. A.W., supra, 103 N.J. at 604-07. It can exist even where the parent is "morally blameless." N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 440 (App. Div. 2001) (citing R.G. & F., supra, 155 N.J. Super. at 194-95); see also A.W., supra, 103 N.J. at 616 ("Parents are not judged unfit because they lack recourses or intelligence, but only by reason of conduct detrimental to the physical or mental health of the child, specifically in the form of actual or imminent harm.").

"Harm" under the first prong includes a parent's inability to provide a safe and stable home for the child, N.J. Div. of Youth & Family Servs. v. H.R., 431 N.J. Super. 212, 223 (App. Div. 2013), which includes a parent permitting his or her children to be exposed to harm caused by another parent. M.M., supra, 189 N.J. at 288-90. "A parent has the obligation to protect a child from harms that can be inflicted by another parent." F.M., supra, 211 N.J. at 449. Thus, the fitness of one parent is relevant to the fitness of another, even though both parents are analyzed separately. M.M., supra, 189 N.J. at 288-89.

A child may also be harmed by exposure to his or her parents' domestic violence. I.H.C., supra, 415 N.J. Super. at 557. However, a court cannot simply "take judicial notice of the fact that domestic violence begets emotional distress or some other psychic injury in child witnesses." N.J. Div. of Youth and Family Services v. S.S., 372 N.J. Super. 13, 25 (App. Div. 2004). There must be credible, clear and convincing evidence that a parent's conduct repeatedly exposed a child to a substantial risk of harm, which may be presented by expert testimony. See I.H.C., supra, 415 N.J. Super. at 584-85.

A parent's untreated mental illness may also pose a risk to the child, F.M., supra, 211 N.J. at 450-51, as will the failure to understand or provide for a child's needs because of the parent's emotional or psychological struggles. N.J. Div. of Youth & Family Servs. v. L.J.D., 428 N.J. Super. 451, 481-83 (App. Div. 2012). "'A psychiatric disability can render a parent incapable of caring for his or her children.'" I.H.C., supra, 415 N.J. Super. at 585 (quoting N.J. Div. of Youth and Family Servs. v. I.Y.A., 400 N.J. Super. 77, 94 (App. Div. 2008)), or create a negative environment that prevents the children from receiving proper care. R.G.& F., supra, 155 N.J. Super. at 194. Such limitations may prevent a parent from rendering proper care, and place a child at high risk for abuse and neglect. See A.W., supra, 103 N.J. at 616.

Judge Baxter found that the defendants exposed their children to a substantial risk of harm based on multiple factors. Contrary to defendants' arguments, Judge Baxter did not "primarily" rely upon the children's exposure to defendants' domestic problems but, rather, she relied upon the "chaos and dysfunction" in their lives caused by a combination of Mary's limited cognitive abilities, Warren's drug dependency, and especially upon both of their tendencies to abandon their young children when the stress they caused each other was too much. As the judge explained:

[Warren and Mary] have an extremely volatile and tumultuous relationship. And while I find that they care deeply for each other and are committed to each other, nonetheless the relationship between them, as I said, is volatile and tumultuous. . . .

 

[T]he record shows that they argue constantly over household chores or when the children were with them they argued about how to care for the children and the arguments tend to escalate with neither [Warren nor Mary] able to defuse the situation. He typically becomes so frustrated by her anger that he actually leaves the house, sometimes for days at a time.

 

She in turn typically panics at being left alone with the children and has become completely overwhelmed by the responsibility of caring for them. So fearful is [Mary] at being left alone, even for brief periods of time, that she has followed [Warren] to work and has run after his friends' car, banging on the windows as he and the friend drove away. And he, believing that she is not capable of caring for the children herself, has continually left her alone with the children.

Therefore, while the judge could have focused on a single event egregious enough to satisfy the first prong of the analysis, K.H.O., supra, 161 N.J. at 348, she considered instead the cumulative effects of defendants' conduct that exposed the children to a substantial risk of harm arising from the children's relationship with defendants. See, M.M., supra, 189 N.J. at 289.

In reaching her decision, Judge Baxter also relied on the unrefuted testimony of experts who identified the risk of harm to the children if they were to be left in their parents' care. See I.H.C., supra, 415 N.J. Super. at 584-85. As the judge found:

Every psychologist who has evaluated [Warren and Mary] has found them to be suffering from deficits and disorders that substantially interfere with their ability to provide minimal levels of safe parenting for their children. And all three psychologists have recommended that neither parent be reunified with the children.

 

The judge then identified with particularity each expert's finding as to both defendants and found that "[f]our psychologists have concluded that [Warren] suffers from substance abuse, namely cocaine, that he has been using cocaine for 25 years and that he is not in remission. . . .[and] as also suffering from bipolar disorder which is the disturbance of mood." As to Mary, the judge found that "all four psychologists opined that [she] lacks the capacity to safely raise her children and to meet their basic needs. . . . [and] recommend in no uncertain terms that [Mary] should not be reunified with the children."

The judge then described the deficits from which the children suffered and concluded that defendants could not care for their special needs children:

Each parent has significant deficits in parenting skills. As I've noted, [Warren] suffers from substance abuse, bipolar disorder. . . .[H]e has a chaotic relationship with his wife and has a tendency to simply walk out of the door when things get tough. [Mary] suffers from cognitive impairments, a history of neglecting her children to chase after her husband, she suffers from difficulty regulating her moods and difficulty handling even the most basic aspects of child care such as diaper changing.

 

In light of those deficits and their chaotic lifestyle which includes periods of homelessness, her incarceration and severe marital strife, I specifically find that neither parent or even the two of them together are capable of following through with the medical and other professional care to make sure that the children receive the specialized care that they need which in [Andy's] case could involve surgery.

 

The experts' opinions and Judge Baxter's reliance on them were well supported by the evidence in the record. For example, Mary harmed the children by exposing them to "prolonged protracted heated arguments" with Warren, and the court accepted the testimony of Drs. Gruen and Jeffrey that verbal violence damages a child's emotional wellbeing because it demonstrates improper behavior; the harm to the children was exacerbated because oftentimes the police were called; and these experiences were likely to frighten children. Moreover, Mary would leave the children unattended to fight with Warren, and would also leave them with other caregivers without providing the necessary supplies. There was also evidence that Mary endangered Walter by feeding him improperly; and by referring to Warren with a racial slur in front of the children. She was unable to control her rage, which frequently led to her incarceration and caused the children to be left in the care of Warren, whom she believed was abusing drugs.

The court appropriately cited to Mary's mental limitations that prevented her from understanding and addressing her children's needs. Mary lacked the cognitive skills and emotional stability to care for her children who had special medical needs. Furthermore, she lacked stable housing, living in a motel at the time of trial. After the Division obtained custody, she allowed the parental bond with the children to weaken by failing to visit regularly. Finally, she was emotionally dependent and immature, which prevented her from safely parenting her children.

As to Warren, the evidence demonstrated that he frequently chose to leave the children in the sole care of Mary, who he believed was not capable of caring for them. Also, Warren's decision to engage in an "anger-filled" relationship with Mary harmed the children by setting a poor example for them to follow especially when he could not control his anger. Furthermore, his use of racial slurs directed at Mary harmed the children by undermining their respect for their mother. He, too, had maintained unstable housing, and a nomadic lifestyle. He was emotionally unstable and was unable to provide a nurturing environment for the children. Significantly, Warren remained addicted to cocaine and refused to receive treatment for his bipolar disorder, which interfered with his ability to meet his children's special needs.

Also, Warren only visited with the children intermittently, which allowed the parental bond to weaken. He directly endangered Walter by failing to feed him properly. Both defendants lacked adequate sleeping arrangements for Walter, and as a result, the child was forced to sleep in a car seat instead of a crib. Significantly, there was credible evidence presented in this case that Walter was nearly physically injured during a domestic dispute between defendants and that the children were witnesses to the events and Mary's arrest.

Mary argues that she did everything she needed to be a good parent. In fact, according to her, the Division presented testimony that she was compliant with her parenting time and that she diligently attended her visits, and thus it was an error to terminate her rights. Moreover, she alleges that the supervised therapeutic visitation service's records suggest that she was a loving and affectionate parent. Warren contends that the court erred by finding that he did not attend visitation regularly and that he allowed the parental bond to weaken.

The record indicates otherwise. Both defendants were inconsistent in their visits and such inconsistent visitation is harmful. In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999); see also In re Adoption of Children by G.P.B., 161 N.J. 396, 414 (1999) (O'Hern, J., concurring) (harm occurs when a parent does not see the child enough for the child to recognize the individual as a parent). Moreover, the therapeutic visitation agency's records showed that Mary struggled with parenting, verbally fought with Warren in front of the children, and still did not comprehend why the children had been removed by the Division. Importantly, by July 2012, the agency was forced to terminate defendants from services due to a lack of progress.

The record in this case is fraught with evidence that defendants are not competent to parent. Mary's psychological problems clearly caused her to make poor decisions regarding the safety of her children. For example, during an altercation with Warren in August 2010, Mary left the children unattended and ran down the street in an effort to jump on the vehicle that Warren was driving. Subsequently, Mary left Debbie and Walter in the care of a friend, Susan, but failed to provide an adequate amount of food, diapers, and clothing. Significantly, Mary's determination to place Warren's interests ahead of the children's also proved to be harmful. As to Warren, his bipolar disorder had been untreated for several years, and the record revealed several instances when he could not control his anger towards Mary and the children such as when he hit one of the children during supervised visitation. In addition, Warren did nothing to protect the children from Mary's poor treatment of them as he would repeatedly abandon them to her care, knowing that she was not capable of providing for them without his help.

We have no cause to disagree with Judge Baxter's conclusions as there was sufficient, credible evidence in the record to support the judge's conclusion that the children's safety, health and development had been and would be endangered by placement with defendants as contemplated by N.J.S.A. 30:4C-15.1(a)(1).

III.

Defendants also argue that the Division failed to prove by clear and convincing evidence that they were unwilling or unable to address the potential harm facing their children, in satisfaction of the second prong. N.J.S.A. 30:4C-15.1(a)(2). They say they took steps to demonstrate their willingness to prevent any potential instability or harm by participating in services provided by the Division. Specifically, defendants contend that clear and convincing evidence did not exist to prove that their respective psychological limitations prevented them from parenting. Additionally, Warren argues that his substance abuse problems did not make him unable or unwilling to parent. Again, we disagree with their contentions, as we are satisfied that the court properly found that the Division met its burden as to the second prong.

The court found that the Division satisfied the second prong of the analysis as to Mary based on her refusal to take prescribed medication, her cognitive limitations which were permanent and contributed to her lack of sound judgment, and her lack of insight into the harm caused by her behavior. Also, service providers closed her case due to missed appointments, which indicated she was unwilling to remediate the problems that led to the Division's decision to remove the children.

The court held that the second prong was also satisfied as to Warren because he had been addicted to cocaine for twenty-five years and refused to attend substance abuse treatment. He lacked insight into his poor behavior in his relationship with Mary and continued to leave the home, knowing that Mary could not care for the children Also, he refused to take medicine to treat his bi-polar disorder.

To satisfy the second prong, the Division must demonstrate that 1) "the parent is 'unwilling or unable to eliminate the harm'", or 2) "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." K.H.O., supra, 161 N.J. at 352 (quoting N.J.S.A. 30:4C-15.1(a)(2)). The Division may also present evidence that "the child will suffer substantially . . . from the disruption of [his or her] bond with [the] resource parent." N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 118-19 (App. Div.) (quoting K.H.O., supra, 161 N.J. at 363), certif. denied, 180 N.J. 456 (2004).

The second prong compels an assessment of "parental unfitness," based on "indications of parental dereliction and irresponsibility." K.H.O., supra, 161 N.J. at 352-53. The court should consider "the parent's continued or recurrent drug abuse, the inability to provide a stable and protective home, the withholding of parental attention and care, and the diversion of family resources in order to support a drug habit, with the resultant neglect and lack of nurture for the child." Ibid. The court should also consider any "[c]oncern and efforts by a natural parent after his or her child has been removed from the home, and [the parent's] genuine and successful efforts to overcome the cause of the removal." N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 437 (App. Div. 2009). Such efforts are "of enormous significance" in the court's assessment. Ibid.

However, a child's best interests cannot be sacrificed because of a parent's inability to address potential future harms, despite his or her willingness to try. See N.J. Division of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div.), certif. denied, 180 N.J. 456 (2004). The focus is on whether the parent has sufficiently overcome the initial harm that endangered the child's health, safety, or welfare, and is able to continue the parent-child relationship without recurrent harm. J.C., supra, 129 N.J. at 10.

Here, Judge Baxter considered substantial, credible expert testimony that defendants' psychological limitations prevented them from parenting. Each of the experts who testified or supplied reports stated that the parties' psychological problems and Warren's drug addiction prevented them from parenting independently. The experts opined that Mary could not even demonstrate a minimally acceptable level of parenting ability, and also had poor judgment skills and an inability to solve problems. Importantly, her condition would not improve with services, and she would never develop the skill set required to independently parent. In addition, Warren's ongoing and un-rehabilitated drug abuse demonstrated his unwillingness to provide a safe and stable home for the purposes of the second prong. Moreover, both defendants lacked insight into their own behaviors and the circumstances that led to the Division's involvement. For example, Ingram testified that defendants refused domestic violence counseling because they believed the service was unnecessary since their altercations were not physical. Also, they maintained that there were no problems in their marriage despite the litany of calls to the police regarding domestic disputes and the ensuing altercations with each other and the police that jeopardized the children's safety.

In sum, we are satisfied that Judge Baxter did not abuse her discretion in accepting the experts' opinions and that her decision in finding that the Division satisfied the second prong, was supported by substantial credible evidence. N.J.S.A. 30:4C-15.1(a)(2).

IV.

Defendants also argue that the court erred when it held that the Division satisfied the third prong of the analysis because the Division should have referred defendants to parenting skills training classes. Defendants therefore challenge the trial court's finding that the Division made reasonable efforts towards reunification, in satisfaction of the third prong. We find no merit to this argument.

The third prong requires clear and convincing evidence of the Division's reasonable efforts toward reunification. N.J.S.A. 30:4C-15.1(a)(3). "Reasonable efforts" are defined as "attempts . . . to assist the parents in remedying the circumstances and conditions that led to the placement of the child and in reinforcing the family structure." N.J.S.A. 30:4C-15.1(c). 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) informing the parent at appropriate intervals of the child's progress, development and health; and

 

(4) facilitating appropriate visitation.

 

[Ibid.]

 

The court must also consider whether there were 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). However, reunification is not a viable alternative if it will cause harm to a child. A.W., supra, 103 N.J. at 605.

"Consistent efforts to maintain and support the parent-child bond are central to the court's determination[,]" but whether the Division provided reasonable efforts is not measured by a defendant's success in his or her services. In re Guardianship of D.M.H., 161 N.J. 365, 393 (1999). Moreover, "a child cannot be held prisoner of the rights of others, even those of his or her parents." C.S., supra, 367 N.J. Super. at 111. "Children have their own rights, including the right to a permanent, safe and stable placement." Ibid.

Judge Baxter found "that the Division satisfied its burden by providing reasonable efforts to reunify the family." The Division consulted with defendants, developed a plan for reunification, provided services aimed at reunification, facilitated visitation and kept defendants apprised of the children's progress. M.M., supra, 189 N.J. at 281. Defendants were provided with marriage counseling, visitation, psychological evaluations and therapy, parenting capacity assessments, money for housing, bonding evaluations, psychiatric evaluations, domestic violence assessments, substance abuse assessments, counseling, and mental health treatment. Defendants were also given bus passes to attend the services offered.

While defendants concede that the Division referred them to many services, they believe that the Division's decision to not refer them to parenting skills training warrants a reversal of the decision below. However, the record reflects that as part of their therapeutic visitation, defendants did receive parenting skills training provided by the supervised visitation agency as early as November 22, 2010. Defendants, however, failed to implement the skills that they were taught through the services they received. Moreover, as recently as January 2012, defendants each maintained that they did not need services, and tried to decline the services the Division attempted to provide.

In sum, there was substantial and credible evidence in the record that allowed the court to hold that the third prong of the best interest test was proven by clear and convincing evidence. N.J.S.A. 30:4C-15.1(a)(3)

V.

Finally, defendants claim the Division did not meet its burden as to the fourth prong, requiring proof that termination of parental rights would not do more harm than good. N.J.S.A. 30:4C-15.1(a)(4). They specifically contend that a secure bond did not exist between the children and their resource family. They argue that the bonding evaluations presented below were inadequate and stale. In particular, defendants note that six months had passed between their own bonding evaluations and the bonding evaluations between the children and the resource family. Again, we find no merit to this argument.

The fourth prong "is a fail-safe inquiry guarding against an inappropriate or premature termination of parental rights." F.M., supra, 211 N.J. at 453. It requires proof that "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. Its "crux . . . is the child's need for a permanent and stable home, along with a defined parent-child relationship." H.R., supra, 431 N.J. Super. at 226 (citing C.S., supra, 367 N.J. Super. at 119).

This standard does not require a showing of no harm arising from the severing of biological ties, but that "the child will suffer a greater harm from the termination of ties with her natural parents than from the permanent disruption of her relationship with her foster parents." K.H.O., supra, 161 N.J. at 355. To this end, the court must assess the child's bond with both her biological and resource parents, ibid., based on "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." F.M., supra, 211 N.J. at 453 (quoting M.M., supra, 189 N.J. at 281) (internal quotations omitted). The fourth prong is satisfied "where it is shown that the bond with foster parents is strong and, in comparison, the bond with the natural parent is not as strong." K.H.O., supra, 161 N.J. at 363. However, a court is permitted to proceed with the termination of parental rights when the parents are unfit to care for the child, even in the event there is no bond with an alternative caregiver, See N.J. Div. of Youth & Family Servs. v. B.G.S., 291 N.J. Super. 582, 593 (App. Div. 1996), because children should not be allowed to "languish indefinitely" in a resource placement while a defendant tries to correct the problems that led to the Division's involvement with the family. N.J. Div. of Youth & Family Servs. v. S.F., 392 N.J. Super. 201, 209-10 (App. Div.) (citing C.S., supra, 367 N.J. Super. at 111), certif. denied, 192 N.J. 293 (2007).

Judge Baxter held that the fourth prong was satisfied as to Mary based on the findings of Drs. Gruen and Jeffrey that Mary lacked the ability to care for the children, she was overwhelmed, and she lacked the skills to discipline her children. The judge further accepted the testimony of Dr. Jeffrey that the children were insecurely attached to Mary, but were starting to develop secure attachments with their resource parents.

The court also held that the fourth prong was satisfied as to Warren based on the testimony of both Drs. Gruen and Jeffrey that Warren had only an acquaintanceship relationship with the children, that the termination of rights would not harm the children, and that Warren had had difficulty controlling the children during his bonding evaluation, he was unable to address the children's special needs, and was not attuned to them. In contrast, the resource parents were developing the foundation for secure relationships with all three children.

The Division demonstrated here that the children had been harmed by both defendants and that neither defendant corrected the circumstances that led to their removal. Neither defendant was able to cope with the children's special needs, nor were they able to manage the children during the evaluation. Two independent experts provided unrefuted opinions that the children were not bonded to defendants but were developing secure bonds with their resource parents. The experts concluded that the children were at best insecurely attached to defendants, and that defendants could not provide a safe and stable home. In contrast, the resource parents were loving and affectionate. The children were as securely attached to them as they could be after residing together for only six months. Thus, the children were forming connections to nurturing adults who could provide them with the permanency and long term care which their parents could not provide under any circumstances.

We are satisfied that Judge Baxter carefully examined the children's relationship with the resource parents in a broad context that included an evaluation of the children's relationships with defendants, J.C., supra, 129 N.J. at 18-19, and that the judge relied upon ample substantial evidence to hold that the fourth prong of the best interest test was satisfied. N.J.S.A. 30:4C-15.1(a)(4).8

Affirmed.

 

 

1 We have fictionalized the names of those involved to maintain their privacy.

2 On May 10, 2013, we consolidated their appeals.

3 A reorganization of the Department of Children and Families included the renaming of the New Jersey Division of Youth and Family Services as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012. We will refer to it as the Division.

4 Craniosynostosis is a birth defect that causes one or more of the sutures of a baby's skull to close earlier than usual. MedlinePlus, U.S. National Library of Medicine, National Institutes of Health (June 19, 2014), www.nlm.nih.gov/medlineplus/ency/article/001590.htm. A common symptom of craniosynostosis is an abnormally-shaped head. Ibid. Its cause is unknown. Ibid.

5 Subsequently, defendants appealed this decision. We affirmed the court's ruling as to Mary, but overturned the decision as to Warren based on a lack of evidence that he placed his children at risk of harm due to his alleged drug use.

6 In her assessment, she focused primarily on the behaviors of Debbie and Walter, as Andy was still a baby at the time.

7 In I.H.C. we held that evidence of prior domestic violence between parents is admissible to prove that a risk of harm to the children was present, as long as the harm is not presumed but established by competent evidence. Id. at 557. Defendants argue that their children were not harmed by their arguments because, unlike the children in I.H.C., supra, the children were not displaying signs of learned violent behavior. We, however, are not persuaded by that distinction because Judge Baxter cited numerous other causes of harm and also, here, there was expert testimony to support her findings. For that reason, to the extent Judge Baxter relied on evidence of domestic violence in the home, it was relevant, properly considered, and aided the court in determining whether the children were at risk of harm.

8 We reject defendants' argument that Judge Baxter should have disregarded the bonding evaluations because several months passed between evaluations with defendants and the bonding evaluations with the resource parents, primarily for the reason that defendants offered no expert testimony or other evidence to establish the findings were in any manner stale and therefore unreliable. We simply note that Dr. Gruen performed bonding evaluations with Mary in December 2012, Warren in January 2013, and the resource family in February 2013. Dr. Jeffrey evaluated defendants in August 2012, the month in which the three children were placed with the resource parents. The doctor waited until February 2013 to perform a meaningful bonding evaluation with the resource parents. Under these circumstances we find no error in Judge Baxter's reliance upon these bonding evaluations.