NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. C.M.T.Annotate this Case
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-0
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
IN THE MATTER OF THE GUARDIANSHIP
OF J.J.J., Jr., a Minor.
October 28, 2014
Argued September 17, 2014 Decided
Before Judges Alvarez, Maven, and Carroll.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-182-12.
Beatrix W. Shear, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Shear, on the briefs).
Thomas Ercolano, III, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Cristina E. Ramundo, Deputy Attorney General, on the brief).
Linda Vele Alexander, Designated Counsel, argued the cause for minor J.J.J., Jr. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Alexander, on the brief).
Defendant C.M.T.1 (Ann) appeals2 the June 18, 2013 judgment terminating her parental rights in J.J.J., Jr. (Ben), born in April 2010. We affirm, relying in principal part on Judge Craig R. Harris's detailed and thoughtful oral decision.
Having reviewed the voluminous record, we deem the following information relevant to Ann's contentions of error. As a result of plaintiff Division of Child Protection and Permanency's (Division's) investigation into a report that Ann used drugs while pregnant, she admitted on March 1, 2010, that she had used heroin early in her pregnancy. At birth, however, Ben and his mother both tested negative for drugs. Because of the Division's concern regarding Carl's drug use, Ann agreed to reside with her mother, and not with Carl, until he completed a substance evaluation. By that point, the Division had filed a complaint for care and supervision, and Ann agreed that Carl would have only supervised contact with Ben.
On May 27, 2010, while visiting Ann and the baby, Division workers noticed Ann had a black eye and bruised arms bearing suspected needle tracks. The Division effected a Dodd emergency removal the following day.3 Two days later, Ann tested positive for cocaine and benzodiazepine. This led the Division to amend its complaint to seek custody. In June 2010, Ann stipulated that she had used cocaine and that her use placed Ben at substantial risk of harm.
Ben was placed with his maternal aunt and uncle, with whom he has lived since the May 2010 removal. Since the removal, Ben has lived with his mother only from August 26, 2011, to December 1, 2011. During that time, Ann regained custody of Ben as she was compliant with drug treatment, had completed a parenting class, and had begun psychotherapy with Elizabeth E. Grossier, J.D., Psy.D.
All the Division's experts opined that Ann minimized her drug use. While the guardianship trial was ongoing, Ann did not return for two court-ordered drug screens, knowing that her failure to do so would result in the judge presuming that the results would have been positive. At trial, Ann attributed her failure to submit to testing to her lack of motivation "because every time I do take a drug test, it doesn't matter to anyone. They just don't care that it's clean anyway. It doesn't help the case at all."
After missing two scheduled appointments, on September 15, 2010, Ann submitted to a psychological evaluation by Mark Singer, Ed.D. Among other things, Ann told Dr. Singer that she and Carl had been together for four years and that she intended to raise Ben with him. She also admitted allowing Carl to have unsupervised contact with Ben, contrary to both the court's order and her signed commitments made in two family case plans. To summarize the overwhelming proofs in the record, Carl's drug use, despite occasional compliance with Division-funded drug treatment interventions, has continued unabated at least since the inception of the abuse-and-neglect proceedings.
When the child was returned to Ann in August 2011, she was informed that Ben needed an evaluation for a possible neurological disorder as well as an appointment with a urologist for treatment of an undescended testicle. On October 20, 2011, she agreed in writing to obtain the necessary medical assessments. At trial, when asked the reason she did not follow through, Ann claimed it was not her fault because no doctor would take the child's insurance. Ann also complained that although the Division helped the resource family obtain medical care for Ben, the agency did not help her. In any event, at a November 4, 2011 hearing, custody was formally transferred to Ann with the Division retaining care and supervision. The order stated that she or a relative would supervise Carl's contact with Ben. During this time, Ann had continued her weekly psychotherapy sessions with Dr. Grossier. She stopped after regaining custody of her son.
On December 1, 2011, Ann's neighbor heard a baby crying for over an hour and called the police. Responding officers discovered Carl asleep in bed surrounded by multiple heroin packets, some of which were empty, and hypodermic needles. He admitted to using at least ten bags of heroin and said he thought that the baby was asleep on the bed with him, thought he had locked the door, and did not know where he was. Carl also told police that Ann was working at a gentleman's club in Paterson.
When Ann was contacted, she went to the police station. There she was processed and released on her own recognizance for outstanding Newark municipal warrants and then driven home. The baby, who had been taken in by a neighbor, was initially returned to her. The following day, however, the Division again placed Ben with the resource family.
This loss prompted Ann to resume therapy with Dr. Grossier: she attended regular sessions from February 2012 until January 2013. During this time, Dr. Grossier described Ann as both sorrowful at her separation from Ben and angry at the Division for twice removing him. Dr. Grossier enumerated this misplaced anger among a number of Ann's "self-defeating" habits, including her failure to terminate relations with Carl. After her session on January 25, 2013, Ann ceased treatment without explanation.
At trial, Ann claimed that the December incident was not her fault and should not be held against her. She said she had left the baby with her sitter, A.V., before leaving for work. She testified that A.V., who had been "assessed" by the Division, had called her at work and told her she had an emergency which required her to leave the apartment. Ann explained to A.V. that she could not return immediately but had called for a taxi; she was waiting for it to arrive when the police reached her. She also stated that since A.V. had been cleared by the Division to serve as her babysitter, she thought it was permissible for Carl to be present when A.V. watched the child. Ann vigorously denied leaving the child alone with Carl.
The Division incident report introduced as evidence at the guardianship trial states that A.V. had called Ann and said that she was going to make a quick trip to a store, which Ann said was okay. She did not know that A.V. had not returned until contacted by police. Ann only knew A.V.'s phone number, and said the sitter was not returning her calls.
While at the home because of the December incident, the Division caseworker spoke to Ann about Ben's diet, as all Ann had in the refrigerator was a bottle of iced tea and cooked food in plastic and Styrofoam containers. Ann did have baby food, cereal, and bread in the cupboards. She explained to the worker that she had just run out of milk and that the baby drank iced tea. Ann said that her mother cooks her meals. She also claimed the child was last seen by his pediatrician in Clifton the week before. Ann could not remember his name, but claimed he was the same doctor the Division used when the child was in foster care. Ann had never discussed the child's diet with the pediatrician.
Ben's early intervention evaluation, completed shortly thereafter on January 8, 2012, found he was developmentally delayed in communication, cognition, and gross motor skills. He was provided a host of services as a result, including in-home therapy, occupational therapy, physical therapy, speech therapy, and a specialized preschool program.
Patrice Armatrudi, the Division worker who testified during the guardianship proceeding, said that when re-evaluated in early 2013, Ben showed such "amazing improvement" that he was no longer eligible for specialized preschool. She also noted that Ben's resource parents were required to follow up with his treatment at home. During home visits, Armatrudi had observed the resource parents working with Ben, at least in the area of speech. She also noted that Ben refers to them as "mommy" and "daddy." The resource family, Ann's sister and brother-in-law, wish to adopt.
On March 13, 2012, after the second removal, Ann signed a case plan in which she agreed to "not spend time with" Carl and to live independently of him.
Armatrudi testified that after this agreement was reached, she saw Ann and Carl arrive together for the few visits which she supervised. Carl gave Ann's address as his own to various service providers. First class mail addressed to Carl but sent to Ann's home address was not returned as undeliverable. In addition to her hour-long weekly supervised visits with Ben, Ann at first had visits arranged by the resource family. During those contacts, the resource family said Carl drove her to the visits.
After the second removal, Ann became more hostile and less willing to cooperate with Armatrudi. When Armatrudi was in the room, for example, Ann kept her back to her. When Armatrudi would try to call, Ann would not answer.
The Division filed its guardianship complaint on April 13, 2012, after the trial court's finding of abuse and neglect by clear and convincing evidence. That finding was substantially based on the December 2011 incident: the trial judge concluded that Ann had failed to protect Ben by leaving him unsupervised with a heroin addict who, while caring for the child, used drugs and passed out.
Prior to the guardianship trial in 2013, the Division scheduled a psychiatric evaluation for Ann. She failed to attend.
Frank J. Dyer, Ph.D., testified as the Division's expert psychologist in the guardianship trial. He found that Ann was defensive regarding her drug use and her relationship with Carl. Dr. Dyer considered her, based on testing, to be anxious, clinically depressed, and "deeply resentful over  perceived mistreatment by other[s]." She told Dr. Dyer that therapy was useless.
Overall, Dr. Dyer opined that Ann not only lacked insight into her own situation, but she also misperceived the pending litigation as "her sister  maliciously attempting to steal her child away from her." Because of her inability to take responsibility for her behavior, "her prognosis for achieving adequate parenting capacity in response to training, counselling, or other interventions is regarded as poor." Dr. Dyer did not consider her to be a viable candidate for custody. Although he did not doubt that Ben was bonded with his mother, he also found him to be bonded with his aunt and uncle. He concluded that the aunt and uncle were Ben's "primary source of nurturance, affection, emotional stability, and protection. He is profoundly attached to these caretakers."
Dr. Dyer's report also stated that he did not believe that reunification was either possible or in the child's best interest. Ben's developmental delays improved while in his aunt and uncle's home, and he would likely not receive comparable care if returned to his birth parents. Even if contact with the birth parents did not occur after adoption, he concluded that the child's loss would not result in "significant psychological harm" because, for the child, "the aunt and uncle [were his functional parents], and have been so for the majority of his life."
While testifying, Dr. Dyer reiterated these opinions while stressing that Ann's propensity for denial and "pattern of  evasiveness" made it virtually impossible for her to achieve any goals in therapy. Ann simply did not understand the threat that Carl posed to Ben, and seemed to have more of a narcissistic investment in her child than a real grasp of his needs. Dr. Dyer believed that Ann lacked the requisite maturity, judgment, emotional stability, and understanding of Ben's needs necessary to provide him with a nurturing home environment.
Gerard Figurelli, Ph.D., submitted a report and testified as Ann's expert psychologist. He believed her substance abuse problem was in remission and that her depression was not clinically significant. Dr. Figurelli opined that Ann would have successfully engaged in therapy had she had been offered cognitive behavioral therapy rather than psychodynamic or insight-oriented therapy. He also concluded that the bonding evaluation between the child and the biological parents indicated a "significant attachment." Because of the strength of that bond, he also opined that terminating Ann's parental rights would do more harm than good, triggering abandonment and anger issues. Dr. Figurelli seemed to agree that if Ann was unable to completely sever her relationship with Carl, she could not adequately parent Ben.
Dr. Figurelli neither made a recommendation as to whether Ann could safely parent Ben nor did he endorse an immediate return home. He offered no timetable with regard to such a return.
While testifying, Ann characterized the Division as having unfairly taken away her child and as failing to offer her the means for regaining his custody. Furthermore, she complained that because she had begun to dance at a bar, she had lost respect from others.
Ann stressed that the December incident was not her fault, as she had attempted to come home when A.V. contacted her, but was unable to get home before A.V. left. Ann mistrusted Dr. Grossier, her therapist, because she reported "every little thing" to the Division, including "stuff that is not true."
Ann claimed that her child, who would have been approximately three-and-a-half at the time, would tell her at the end of visits that he wanted to go with her but understood that he could not, and that he was "sorry that he [couldn't] go with me." She said he talked to her "more than anyone else." Although acknowledging the strength of his bond to her sister, Ann insisted that her child understood she was his mother and that he could "talk to [her] about anything. . . . [h]e knows that he can always go to me for anything."
When asked about the threatening texts she was reportedly sending her sister, Ann denied them. When invited to spend Thanksgiving and Christmas with Ben at her sister's house, she had refused, she explained, in order to prevent Ben from witnessing family fights. Ann claimed that her sister lied to the Division about the texts in order to justify not providing her with additional visitation.
Ann also said that the Division workers lied, as did her brother-in-law. She acknowledged that her child had a "temper problem," but said that when he was with her, she "sat him down" and explained that he could not have everything he wanted from her.
When Ben allegedly told her that her sister always gives him what he wants, Ann explained that she would not be so permissive. In discussing the December incident on cross-examination, Ann also said the police lied to her on the phone, as they instructed her to go to the police station because her son was there.
During her testimony, Ann acknowledged that Carl at times drove her to visitation, therapy, and to court, but denied that he had done so recently. Since she did not have a romantic relationship with him any longer, she believed this should suffice. While admitting that Carl visited her, she insisted that it was only in Ben's absence.
Judge Harris found that the Division had met the statutory test for termination by clear and convincing evidence. See N.J.S.A. 30:4C-15.1(a). As to the first prong, he stated that Ann basically disregarded the recommendations of her service providers, thereby failing to provide Ben with either permanency or stability for more than a year. He noted that the circumstances surrounding the two removals exposed the child to risk of harm, and that Ann's continuing relationship with Carl demonstrated her inability to provide Ben with stability.
As to the second prong, he found that Ann was unwilling or unable to eliminate the risk of harm her conduct posed because of her failure to take responsibility, and her consistent campaign of deception and evasion. The judge mentioned, for example, Ann's contention that Ben being left alone with his incapacitated father was A.V.'s doing, not her own.
The judge noted Dr. Dyer's conclusion that Ann lacked the emotional judgment and maturity to safely raise a child, a conclusion well-supported by her inability to terminate her relationship with Carl. The judge observed that Dr. Figurelli, Ann's own expert, neither endorsed Ben's immediate return nor Ann's present ability to parent. Indeed, the expert gave no prognosis for Ann's future ability to parent Ben, nor did he propose a timeframe. Hence the court accepted Dr. Dyer's "conclusions as being convincing based upon facts and solid reasoning."
As to the third prong, the judge enumerated the services made available to Ann. He noted that kinship legal guardianship was not an option since the resource family was willing to adopt and rejected the alternative.
As to the fourth prong, he concluded that termination would not do more harm than good since, despite Ben's attachment to his mother, his greater attachment was to his resource family: they were the only ones able to offer him a stable home with sufficient attention and care to support his healthy development.
On appeal, Ann challenges all the court's conclusions
I. The trial court's clear and convincing finding on prong one of the N.J.S.A. 30:4C-15.1(a) test was not adequately supported.
A. [Ann]'s past drug use is not a proper basis for a prong one finding against her.
B. There was no clear and convincing evidence that [Ann] has not ended her relationship and contact with her son's problematic father.
C. There was no evidence presented at trial that proved that the December 1, 2011, incident was [Ann]'s fault.
D. Findings from the underlying child abuse/neglect case cannot be used in this guardianship case.
E. Passage of time in foster care cannot support a prong one finding against [Ann].
II. The trial court's clear and convincing findings on prong two of the N.J.S.A. 30:4C-15.1(a) test were not adequately supported.
A. [Ann] cannot be held to be unwilling or unable to eliminate or to add to harm her son sustained or will continue to sustain if the finding that she caused or is causing the harm is error in the first place.
B. The trial judge's conclusions that [Ann] did not cooperate with and complete services is contradicted by the record.
C. Findings concerning the December 1, 2011, incident and vague conclusions not based on particularized evidence cannot be used to support findings on prong two of the termination test.
D. The trial judge's reliance on DCPP's expert was misplaced.
III. The trial court's clear and convincing findings on the two sub-parts of prong three of the N.J.S.A. 30:4C-15.1(a) test, the reasonable efforts requirement and the requirement to consider alternatives, were not adequately supported.
A. DCPP did not make reasonable efforts to reunify [Ann] with [Ben].
1. DCPP should have changed the therapist it provided for [Ann], but it did not do so.
2. DCPP did not offer [Ann] a psychiatric evaluation to deal with her symptoms of depression in time to help her reunify with her son.
3. DCPP was hostile to [Ann] and wanted termination and adoption, not reunification.
4. DCPP did not facilitate appropriate visitation.
B. The private custody alternative was not considered.
IV. The trial court's clear and convincing finding on prong four of the N.J.S.A. 30:4C15.1(a) test, that termination will not do more harm than good, was not adequately supported.
"Our review of a trial [court's] decision to terminate parental rights is limited." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). We defer to a trial judge's findings of fact and the decision to terminate parental rights, where supported by "adequate, substantial, and credible evidence." Ibid. We give particular deference to decisions regarding credibility. Ibid. Nonetheless, because guardianship cases are so fact-sensitive, and the stakes so high, "intense scrutiny is mandated." N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 112 (App. Div.), certif. denied, 180 N.J. 456 (2004).
Whenever possible, children should remain with their natural parents and care and custody problems should be resolved within the family. N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 165 (2010). Parents have a constitutionally-protected interest in raising their biological children, even if the children have been placed in foster care. Id. at 166. Consistent with that principle, the State's responsibility to protect the welfare of children is limited to situations in which the State has demonstrated that the child's parent or custodian is unfit, or that the child has been neglected or harmed. Ibid.
The standards that must be met before parental rights can be terminated are as follows
(1) The child's safety, health[,] or development has been or will continue to be endangered by the parental relationship;
(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;
(3) The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and
(4) Termination of parental rights will not do more harm than good.
These four statutory factors are not "discrete and separate" but "rather relate to and overlap with one another," providing a composite picture of what may be necessary to further the best interests of the child. In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999); N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 280 (2007). The Division must prove each of the four factors by clear and convincing evidence: evidence that produces in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established. I.S., supra, 202 N.J. at 168. The first two prongs are interrelated; thus, evidence that supports one may support the other. In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999).
Under the first prong, the harm shown by the parental relationship must be one 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. Generally, the proofs focus on past abuse and neglect and the likelihood of continuation. N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 60910 (App. Div.), certif. denied, 192 N.J. 68 (2007). The focus is not on a single or isolated harm, but 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. Moreover, where there is a clear record showing a pattern of inaction and neglect, a court 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; F.H., supra, 389 N.J. Super. at 615.
With these principles in mind, we cannot agree with Ann's characterizations of the judge's findings as to prong one. It is not so clear that Ann no longer has a drug problem, as with the exception of Dr. Figurelli, the experts who evaluated her opined that she minimized her own substance abuse problem. And early in the abuse and neglect action, she stipulated as to cocaine use. While the guardianship proceedings were pending, Ann failed to appear for two drug screens. In any event, Judge Harris relied upon the past documentation of Ann's drug use as the context in which he considered her ability to provide for the child's safety, health, and development.
With respect to this prong, however, Ann's admission to ongoing contacts with Carl is the most consequential. The potential here is of harm to Ben resulting from Ann's ongoing relationship with Carl, inability to terminate her relationship with Carl, and dishonesty regarding their contacts. If Carl was receiving mail at her home and driving her to visits with the child, it is not unreasonable to conclude that he was actually living with her despite her assertions to the contrary. Furthermore, it is well-established that "a mother's relationship with her child's potentially dangerous father may be an appropriate consideration if that relationship poses a clear threat to the child." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 449 (2012). That Carl is a "potentially dangerous father" is well-established in this record.
Ann also asserts that the judge improperly relied upon the length of time Ben had lived with his resource family, one year. It is well-established that a child's residence outside the biological home is not determinative. N.J. Div. of Youth & Family Servs. v. I.S. & C.M., 202 N.J. 145, 169-70 (2010). But Judge Harris actually found Ann's failure to detach from Carl over the course of a year, failure to comply with drug testing, and failure to complete counseling were the determining factors on the first prong.
The second prong relates to parental unfitness. K.H.O., supra, 161 N.J. at 352. There are two ways to establish this prong: the State must show that (1) "the child's health and development have been and continue to be endangered" and that "the harm is likely to continue because the parent is unable or unwilling to overcome or remove the harm;" or (2) "the parent is unable to provide a safe and stable home for the child and  the delay in securing permanency continues or adds to the child's harm." Id. at 348-49.
The first approach 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." Id. at 348. The second approach focuses on 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 foster parents. Id. at 363.
Ann argues that Dr. Dyer claimed that Dr. Figurelli uncritically accepted whatever she told him. We do not agree with this characterization, and in any event find there was ample support for the judge's acceptance of Dr. Dyer's opinion, as opposed to that of Dr. Figurelli. See D.M.H., supra, 161 N.J. at 382. For Dr. Dyer, like others involved in this case, the focus was Ann's total inability to understand the risk that Carl poses to the child. That failure of understanding precludes Ann from having the ability to protect Ben and provide him with a safe and stable home. See N.J. Div. of Youth & Family Servs. v. S.A., 382 N.J. Super. 525, 535 (App. Div. 2006).
Ann discontinued therapy in January 2013 without explanation. Instead of viewing therapy as having the potential to help her regain custody of Ben, she saw her therapist as an enemy. Her argument that the outcome would have been better had she been offered cognitive therapy as opposed to psychodynamic therapy, is specious. Ann completed substance abuse treatment and a parenting class early on, but other than those milestones, completed no other service. From our review of the record, it appears that she basically withdrew from involvement with the Division after the second removal, viewing Division workers with hostility, as her enemy, and mistakenly believing herself helpless to change the outcome. The Division met its burden of proof as to the second prong as well.
The third prong requires the Division to make reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home. "Reasonable efforts" are defined as
attempts by an agency authorized by the division to assist the parents in remedying the circumstances and conditions that led to the placement of the child and in reinforcing the family structure, including, but not limited to
(1) consultation and cooperation with the parent in developing a plan for appropriate services;
(2) providing services that have been agreed upon, to the family, in order to further the goal of family reunification;
(3) informing the parent at appropriate intervals of the child's progress, development[,] and health; and
(4) facilitating appropriate visitation.
Reasonable efforts will vary with the circumstances. F.H., supra, 389 N.J. Super. at 620. This prong requires the Division to make diligent efforts to make it possible to reunite the family. K.H.O., supra, 161 N.J. at 354. The efforts should not be measured by their success, nor by whether they were a "perfect model." M.M., supra, 189 N.J. at 286. Efforts must be assessed in light of all the circumstances of a particular case. D.M.H., supra, 161 N.J. at 393.
The Division offered Ann psychological counseling, parenting classes, drug treatment programs, and provided for visitation at both its offices and Adoption House. Thus, the Division offered the requisite "array of services." M.M., supra, 189 N.J. at 285.
Ann also argues that the Division waited too long to obtain a psychiatric evaluation, which could have resulted in a better outcome had she been placed on anti-depression medication. The record indicates, however, that she failed to appear for a psychiatric evaluation when it was offered in 2013.
Ann also complains that her one-hour weekly visits were inadequate. It bears mention that additional time was to be provided by Ann's sister. That arrangement unfortunately deteriorated, due to conflicts between Ann and the resource family. Ann took no steps to formally increase the amount of visitation the Division offered her. Despite this limited visitation, Ann did have a bond with Ben. Because the child actually lived with the resource family essentially his entire life, however, it was not surprising that his bond with them was stronger.
We consider Ann's arguments regarding placement in the Mommy and Me program, a private custody arrangement with the resource family, or kinship legal guardianship to be so lacking in merit as to not warrant discussion in a written decision. R. 2:113(e)(1)(E). The third prong of the statutory test was met as well.
Finally, Ann asserts that termination of her parental rights will do her child more harm than good. On this score, we also disagree.
As our Supreme Court has pointed out, "[t]he 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." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 108 (2008). 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. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 608 (1986). A concomitant finding of parental fault is also required. N.J. Div. of Youth & Family Servs. v. D.M., 414 N.J. Super. 56, 74 (App. Div. 2010).
If Ben were to be removed from the resource family and returned to his mother, Dr. Dyer opined that the child's communicative and other developmental skills would regress, and that he would become vulnerable to depression and personality disorder. He did not opine that Ben would suffer major or long-term harm if Ann's parental rights were terminated. Thus there was substantial credible evidence supporting the trial court's conclusion that the Division established by clear and convincing evidence that terminating Ann's parental rights would not cause Ben more harm than good. Ann's unwillingness or inability to take responsibility, to set aside her anger at the Division and the resource family, and to work towards reunification, make this conclusion inescapable. The Division established this prong of the statutory test by clear and convincing evidence as well.
1 For clarity, we refer to the family by pseudonyms.
2 The father, J.J., Sr. (Carl), did not appeal the decision terminating his parental rights.
3 N.J.S.A. 9:6-8.28(a)(2) authorizes the Division to remove children "to avoid imminent danger to the child's life, safety[,] or health."