DIVISION OF CHILD PROTECTION AND PERMANENCY v. N.L.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 
 

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

A-1957-14T3

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent.

v.

N.L. and S.B.,

Defendants-Appellants,

and

D.W.,

Defendant.

IN THE MATTER OF THE GUARDIANSHIP

OF J.R.D. and H.A.B.,

Minors.

December 2, 2016

 

Submitted October 27, 2016 Decided

Before Judges Hoffman, O'Connor and Whipple.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FG-08-0030-14.

Joseph E. Krakora, Public Defender, attorney for appellant S.B. (Catherine Reid, Designated Counsel, on the briefs).

Joseph E. Krakora, Public Defender, attorney for appellant N.L. (Victor E. Ramos, Assistant Deputy Public Defender, of counsel and on the briefs).

Christopher S. Porrino, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Mary A. Hurley, Deputy Attorney General, on the brief).

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

PER CURIAM

Defendant N.L. (Nancy) appeals from a judgment of guardianship entered by the Family Part on December 4, 2014, terminating her parental rights to her daughters, J.R.D. (Jennifer) and H.A.B (Holly).1 The same judgment terminated the parental rights of Holly's father, S.B. (Sam), who also appeals from the court's termination decision as to Holly.2

On appeal, defendants individually argue the trial judge erred in finding that the Division of Child Protection and Permanency (Division) satisfied the four prongs of the best interests standard for termination of parental rights. Following our review of the record, we reject these arguments and affirm.

I.

We discern the following facts from the record. In March 2007, Nancy gave birth to Jennifer. Unemployed, Nancy had a long history of mental health issues stemming from a turbulent childhood that included physical and sexual abuse by family members. She received extensive treatment to address these issues, including two hospitalizations. However, she refused to stay on her medications, her mental health issues continued, and she started cutting herself.

In her early teens, Nancy moved in with her grandmother, J.D. (Grandmom), and after dropping out of high school, she earned her GED. Thereafter, Nancy was in a car accident, resulting in chronic pain from degenerative disc disease in her back and nerve damage in her legs. Nancy began taking pain medications, prescribed antidepressants, and anti-anxiety and mood-stabilizing medications. She gained a great deal of weight, and her doctors diagnosed her with hypertension and hypothyroidism, among other ailments.

As an infant, Jennifer's doctors diagnosed her with laryngomalacia (a collapse of the soft cartilage of her upper larynx obstructing the airway), among other health conditions. For a time, Jennifer required in-home nursing care for sixteen hours per day. In June 2007, the Division received a referral from a Children's Hospital of Philadelphia (CHOP) staff member, who expressed concern about releasing Jennifer following her most recent hospitalization. She reported Nancy suffered from bipolar disorder, had limited funds, did not adequately maintain her home, and had a history of domestic violence with a former paramour. In order to keep Jennifer out of the foster care system, and with court approval, Nancy voluntarily transferred physical custody of Jennifer to Grandmom.

On October 17, 2007, Dr. William Ranieri, a psychiatrist, evaluated Nancy and concluded she suffered from major depression, panic disorder, post-traumatic stress disorder (PTSD), and borderline personality disorder (BPD). Notwithstanding these diagnoses, Dr. Ranieri opined Jennifer could return to Nancy's custody if Nancy progressed with therapy.

Nancy attended counseling sessions through November 2007, but then started missing appointments. During this time, Dr. Douglas Crawford completed a psychological evaluation of Nancy and concluded "[s]erious and prolonged clinical symptoms markedly impair [her] functioning and call for psychiatric consultation and psychopharmalogical intervention." Dr. Crawford reported that Nancy likely suffered from bipolar disorder, BPD, and PTSD.

Nancy finally regained custody of Jennifer on August 15, 2008; however, over the next two years, Grandmom continued to provide care for Jennifer at least two days per week, usually every weekend, and Jennifer also stayed with Grandmom after she had more surgery in the fall of 2008.

In September 2008, Jennifer's daily in-home nurses (who were then present in the home eight hours per day) contacted the Division and reported Nancy kept a dirty home, used the nurses as babysitters, and often neglected Jennifer. Although the Division declined to substantiate Nancy for neglect, it reopened her case to provide her with therapy; however, Nancy missed many of her therapy appointments.

On November 9, 2009, a CHOP social worker notified the Division that Nancy had canceled one of Jennifer's surgeries and further advised Nancy was (1) risking Jennifer's health by not making her wear her sleep apnea mask at night, (2) refusing to use some of Jennifer's sixteen hours of daily in-home nursing care for nighttime monitoring of Jennifer's sleep apnea, (3) cancelling many of Jennifer's other medical appointments and leaving it to Grandmom to bring Jennifer to other appointments, and (4) using Jennifer's in-home nurses as daytime babysitters. The social worker explained Jennifer needed the surgery to remove blockages from her airway and also to address gastrointestinal issues.

The Division substantiated Nancy for medical neglect after reviewing Jennifer's medical records and determining that between June 10 and October 4, 2009, Jennifer had missed nine appointments for necessary medical care, including a sleep study and follow-up visits with various specialists. Nancy also failed to schedule an appointment with a medical group that would have helped her coordinate Jennifer's care. Additionally, Jennifer's growth had slowed, and she was no longer thriving.

During this time period, Sam began a relationship with Nancy and moved into her apartment. Jennifer soon referred to Sam as "Daddy." Although previously diagnosed with bipolar disorder, Sam did not take any medication. He had three children with whom he had never resided, and a history that included drug offenses, weapons possession, assault, domestic violence, and violation of parole. On March 2, 2010, the police arrested Sam after he drunkenly tried to break into Nancy's apartment during a domestic dispute.

On May 23, 2010, Grandmom reported to the Division that three-year-old Jennifer told her and a nurse that Sam had hit her with a belt. Jennifer also told Grandmom that she needed to use the bathroom because her "flower" (the name she used for her vagina) hurt. Grandmom informed the Division that Jennifer had been touching and putting objects in her vagina. Division caseworkers investigated and observed bruises and scratches on Jennifer's back. However, Jennifer was evasive in answering questions, and Nancy stated the family dog caused Jennifer's injuries. The Division deemed the allegation of physical abuse unfounded.

On August 1, 2010, Jennifer told Grandmom, "Daddy put his finger in my flower and my butt." In response, Grandmom asked, "[Y]our daddy put his fingers in your flower?" Jennifer replied, "No, G-G, one finger," and asked, "Why did daddy hurt me?" Grandmom informed Nancy, who took Jennifer to the emergency room at Kennedy Hospital. There, Dr. Rachel Burke examined Jennifer and determined she did not have a urinary or vaginal infection, her vaginal mucosa was normal, and her hymen intact. Dr. Burke spoke privately with Jennifer, who told her, "Daddy put his finger in my flower and my butt" and this occurred "today . . . in mommy's room."

Dr. Burke informed the Division of Jennifer's statements and the results of her examination. Division caseworkers responded to Nancy's home; however, Nancy continued to minimize and deny the abuse. Nancy suggested Grandmom had coached Jennifer into fabricating this allegation because she did not like Sam. At Grandmom's home, Jennifer told a caseworker about the sexual abuse, and the Division referred the matter to the Gloucester County Prosecutor's Office. During an interview with an investigator, Jennifer again said Sam had touched her on her "flower" and her butt. The Division substantiated Sam for sexual abuse.3 It also substantiated Nancy for placing Jennifer at risk of further sexual injury and sought to remove Jennifer. Nancy told Jennifer, "They're taking you away because you're saying bad things about your daddy." On August 4, 2010, the Division filed a verified complaint and order to show cause against Nancy, but did not name Sam as a party because he was not Jennifer's father.

At a December 20, 2010 fact-finding hearing, Division caseworker Dawn Carruolo described the events occurring after the Division received the referral from Dr. Burke on August 1, 2010. Although Dr. Burke's physical examination did not show any injury to Jennifer, the Division nonetheless decided to remove Jennifer because she was at risk due to Sam's continued presence in the home and Nancy's attitude towards the allegations. Specifically, Nancy's statements to Jennifer raised concerns she would not protect Jennifer, and she would inhibit her from disclosing further abuse. Carruolo stated it was rare to find any physical evidence of sexual abuse, and that the lack of injury did not necessarily mean no molestation occurred.

In addition, Grandmom testified she grew concerned about Jennifer in April 2010 when she noticed Jennifer "constantly" touching her vagina, using both her fingers and toys. Grandmom believed this was "in excess" of anything normal. She had also discovered Jennifer with barrettes "clamped" on her breasts. This behavior continued through July 2010. Nancy did not testify at the hearing or present any witnesses.

Although not requested to make a Title 9 ruling as to Sam, the judge found Sam had touched Jennifer in the manner she had described to multiple individuals. In the judge's view, Nancy had demonstrated reckless disregard for Jennifer's safety by failing to engage in appropriate safety planning and by interfering with the investigation through her statements to Jennifer at the time of her removal. The judge entered an order finding Nancy committed abuse and neglect because Jennifer "was unable to return home because of [Sam] [being] allowed to stay in the home by [Nancy]" and because "[Nancy] told [Jennifer] you are being taken away because you are saying bad things about your daddy."

Following the hearing, a December 20, 2010 order provided for Jennifer to remain in the custody of the Division and required Nancy to comply with services. No services were ordered for Sam because he was not Jennifer's biological father or a party to the litigation. At a February 10, 2011 compliance review hearing, the judge again ordered Nancy to have only supervised contact with Jennifer and Sam. The judge refused to consider Nancy's request to join Sam as a defendant and provide him with services. At a May 5, 2011 review hearing, the judge denied Nancy's renewed motion to add Sam as a defendant and instructed Nancy to stop referring to Sam as "Daddy" when she spoke to Jennifer and to stop passing messages from Sam to Jennifer.

At a September 9, 2011 permanency hearing, Nancy informed the court that Sam had moved out of her home earlier that summer, and she did not know his whereabouts. The judge signed an order authorizing overnight visitation, conditioned on Nancy completing an in-home parenting program and consenting to an order of protection. The judge also signed a protective order stating: "Under N.J.S.A. 9:6-8.55, [Sam] is prohibited from the home of [Nancy] and prohibited from any contact with the minor child [Jennifer]. [Nancy] must report any attempt to violate or violation of this order to the police and the Division."4

On September 15, 2011, Nancy gave birth to Holly and identified Sam as the father. The Division intervened and in addition to serving Sam with the September 9, 2011 order of protection created a safety plan that involved Sam having no contact with Holly, except for supervised visits at the Division's office. Nancy signed the plan, but Sam refused.

On October 24, 2011, the Division received a call that Sam had been inside Nancy's home in violation of the safety plan; however, the Division was unable to confirm the report. On October 26, 2011, the Division filed a complaint for care and supervision of Holly, with restraints under a separate docket number.

On October 27, 2011, Nancy informed the Division that Sam had been arrested at her home and charged with burglary, criminal mischief, theft, and possession of stolen property. The burglary occurred a few houses down the street from where Nancy resided; the police found Sam hiding in Nancy's attic and arrested him. Nancy admitted to police she assisted Sam in the commission of the burglary by loaning her car to him and by allowing him to hide in her home. Additionally, Nancy acknowledged the presence of stolen property hidden in her home. The Division substantiated both Nancy and Sam for abuse and neglect and removed Holly from Nancy's home on an emergency basis.

On October 31, 2011, the Division filed an amended complaint and order to show cause. That same day, the court awarded custody of Holly to the Division after finding that Sam was in Nancy's home contrary to the September 9, 2011 order and safety plan, and Nancy did not take steps to protect her children.5 Following a November 1, 2011 compliance review, the judge entered orders granting Nancy only supervised visitation with both of her children and Sam supervised visitation with Holly.

On March 6, 2012, in the case of Sam's parental rights, the judge entered an order denying the Division's request for a fact-finding hearing regarding the sexual abuse allegations against Sam. The judge explained Jennifer had been interviewed too often and too much time had passed; thus, she would not consider Jennifer's allegations that Sam abused her.

The judge subsequently held a fact-finding hearing on June 20, 2012, to determine whether Holly had been abused or neglected on October 27, 2011. Division caseworker Jean O'Donnell explained the safety plan had been predicated upon the September 9, 2011 order entered in Jennifer's case and also on the two sexual abuse substantiations against Sam. She further testified Sam had admitted to sexually abusing a four-year-old cousin when he was a child; she also said Sam was substantiated for this abuse. At the hearing, the court learned Sam would receive a three-year prison sentence for his burglary-related charges. The judge did not immediately announce her findings after this hearing.6

On June 21, 2012, the judge entered dispositional orders indicating that because Sam was out of the home and Nancy was cooperating, Jennifer and Holly would return to Nancy's custody on June 29, 2012, with the Division retaining care and supervision. On July 31, 2012, a friend of Nancy reported to the Division that at 4:30 p.m., she had stopped by Nancy's apartment and discovered Nancy asleep, the girls unattended, and the apartment in disarray, with dog urine and feces on the floor and dirty dishes throughout.

Division caseworkers responded and confirmed the uninhabitable condition of the apartment. In addition to general filth, the workers found reeking bags of garbage and almost no food in the kitchen. Holly had been sleeping in a urine-stained Pack 'n Play, rather than her crib. Discovered hiding, Jennifer informed the workers that her mother told her the workers were coming to take her to a foster home, and she would never see her or Holly again. On August 17, 2012, the Division substantiated Nancy for environmental neglect because, between July 31 and August 1, 2012, her home was uninhabitable, with dog urine and feces on the floor, almost no food in the kitchen, and dirty dishes piled high in the kitchen sink.

On November 19, 2012, Nancy gave birth to twins from another father. On November 27, 2012, the Division took custody of all four children on an emergency basis after Division caseworkers discovered Nancy was regularly sleeping through the day, not complying with services, failing to care for the children, and not maintaining her home. The caseworkers also found a fetus, which Nancy had miscarried, in a bag in her refrigerator. Jennifer then five-years-old had not gained any weight since returning to Nancy's custody, and she had missed school and medical appointments. Further, Jennifer told a caseworker that she had to clean up after the dogs, wash her own clothes, prepare bottles for Holly, microwave dinners for herself, watch Holly during the day while Nancy slept, and walk to the bus stop alone. On November 29, 2012, the court entered an order granting the Division custody of the children. The court placed Jennifer with Grandmom, who wanted to adopt her, and returned Holly to her original foster parents, who wanted to adopt her.

On January 9, 2013, the Division again substantiated Nancy for neglect. In addition to the problems Jennifer identified and the discovery of the fetus, the Division also noted Nancy had not taken Jennifer to see her specialists, and Jennifer had missed school and not gained any weight since returning to Nancy's custody.

Following Holly's removal, her foster mother informed the Division she had regressed developmentally during her time with Nancy. In particular, she was extremely behind in her language skills and was not walking. She was also having nightmares, humping furniture, and putting her hands and objects in her vagina.

On Mach 7 and April 2, 2013, Dr. Janet Cahill, a psychologist, performed a parenting capacity evaluation with Nancy and the children in order to determine whether she had the emotional stability to manage her children. Nancy told Dr. Cahill she kept the fetus because she felt "the baby is roaming the earth and can't rest." Nancy denied Sam, who remained her friend, had molested Jennifer. She described daily panic attacks and taking twenty medications.

According to Dr. Cahill, Nancy's unstable moods and relationships, irritability, depression, and periods of intense anger indicated she suffered from BPD. Moreover, her presentation of BPD presented a very high risk to her children because she created chaos, had poor judgment and insight regarding her behavior, was self-absorbed, immature, impulsive, and hostile. Dr. Cahill strongly recommended against returning Nancy's children to her at that time because she failed to demonstrate minimally acceptable parenting. She recommended only supervised visitation; in order to address her BPD, she needed Dialectical Behavior Therapy (DBT), which would help her develop more effective coping skills and emotional stability.

On April 23, 2013, Sam attended a substance abuse evaluation and admitted to past drug use, a history of depression, violent behavior, and suicidal thoughts. Although Sam expressed no interest in treatment, the evaluator determined he met the criteria for admission into a six-week relapse prevention program. He subsequently had an intake appointment with a treatment provider, which recommended level one outpatient treatment.

On May 16, 2013, Sam completed half of a court-ordered psychological evaluation with Dr. Meryl Udell, who concluded Sam did not have good insight or judgment regarding Nancy's parenting abilities, would not protect the children from her, and needed to complete substance abuse treatment. On June 25, 2013, Sam returned to a halfway house after violating his parole. This resulted in the suspension of his visitation with Holly.

Also in May 2013, Jennifer began working with a new therapist, Margaret Ribeiro, who specializes in treating victims of trauma and abuse. In early July 2013, Jennifer disclosed to Ribeiro new incidents of past abuse during the two periods she lived with her mother. Specifically, she related that she had been forced to give and receive oral sex from numerous men, including Sam. Jennifer also described other abuse. Jennifer further said her mother had whispered to her during the most recent visit, on June 27, that she would kill Jennifer and everyone she cared about if Jennifer disclosed the abuse.

On July 8, 2013, Ribeiro informed the Division of Jennifer's newest allegations. She also advised Jennifer was regressing and her PTSD symptoms were becoming much worse; therefore, Ribeiro recommended her visits with Nancy stop immediately, explaining Jennifer was re-traumatized every time she had to see her mother. Ribeiro explained she believed Jennifer was a credible historian because her detailed allegations were beyond the capacity of a six-year-old to invent. Following an emergency hearing on July 11, 2013, the court suspended Nancy's visitation with all four children, citing the abuse Jennifer had revealed to Ribeiro.

At a September 18, 2013 hearing, Nancy voluntarily surrendered her parental rights to her twins. Meanwhile, Sam remained in a halfway house. The same month, after canceling two prior appointments, Nancy attended an intake appointment at Danellie Counseling Center for DBT therapy. However, between September and December 2013, Nancy missed sixteen of twenty-five therapy appointments and continued missing appointments into 2014.

On October 21, 2013, the Division filed a complaint for guardianship of Jennifer and Holly. In December 2013, Jennifer expressed extreme fear of her mother and would only refer to her as "X." In January 2014, Holly still had only four words in her vocabulary and her speech skills did not improve in the months thereafter. That same month, Jennifer said Nancy had shaken Holly.

Pursuant to court order, Sam's weekly supervised visits with Holly resumed in January 2014. Sam, who was still serving his sentence at a halfway house, was required to confirm his visits in advance and was warned that visitation would discontinue if he missed two visits. Sam subsequently missed two visits, resulting in the suspension of his visitation rights in February 2014. He also missed a Family Team Meeting and refused to participate in another. The court reinstated his visitation on March 27, 2014.

In March 2014, Dr. James Loving performed psychological evaluations of both defendants and also bonding evaluations between defendants and Holly, as well as between Grandmom and Jennifer. During her evaluation, Nancy insisted neither she nor Sam had ever abused Jennifer. She claimed Grandmom had coached Jennifer, who had "manipulated" the situation so she could continue to live with Grandmom. According to Dr. Loving, Nancy displayed a "glaring" lack of empathy for Jennifer.

Nancy maintained she did not need a psychiatrist to oversee her then twenty-two medications. She denied abusing the medications or that they impaired her in any significant way. She agreed with her prior diagnoses of bipolar disorder, anxiety disorder, and PTSD, but she denied she had BPD. She made it clear she viewed therapy as a waste of time. Although she admitted having problems, she insisted she was fully capable of caring for her daughters without any professional support. She said she wanted to co-parent Holly with Sam.

Dr. Loving stated Nancy posed an extremely high risk of harming her children if they were returned to her custody, citing her extremely limited insight and her very poor judgment. She took no responsibility for her difficulties, insisting instead that she had been victimized by Grandmom, Jennifer, and numerous professionals who had lied about her.

On April 8, 2014, having completed his sentence, Sam was finally released from the halfway house but failed to provide the Division with his new address. Sam visited with Holly fairly consistently throughout the summer and fall, but he remained homeless and continued to refuse to provide contact information or proof of income through November 2014 (the time of trial).

On April 24, 2014, Holly underwent a sexual abuse evaluation by Dr. Cindy DeLago, a pediatrician. Holly's foster mother had reported Holly was humping furniture and touching her genitals with her hands and toys. Dr. DeLago concluded Holly had been sexually abused and recommended treatment once she became more verbally expressive.

In September 2014, Dr. Pamela Kane performed a psychiatric evaluation of Nancy on behalf of the Law Guardian. Sam never appeared for his evaluation. Nancy admitted to taking twenty-six daily medications, including six pain medications with significant sedative effects and four medications for psychiatric problems.

While speaking with Dr. Kane, Nancy insisted Sam, who remained her good friend, had never abused Jennifer. She admitted she hit Jennifer in the mouth when she would not eat and acknowledged Jennifer had many responsibilities around the house when Nancy was pregnant with the twins. Nancy did not believe keeping a fetus in her refrigerator posed any risk to her children. Nancy blamed her problems on Grandmom and claimed she never needed any services. Dr. Kane diagnosed Nancy with major depression, PTSD, BPD, and possibly bipolar disorder.

The guardianship trial began on November 17, 2014. Dr. Loving testified for the Division, and the Law Guardian presented the testimony of Dr. Kane. A Division case worker also testified. Defendants decided not to testify nor did they present any expert testimony or other witnesses. On December 4, 2014, the trial judge issued his oral decision terminating defendants' parental rights. This appeal followed.

II.

A family judge's factual findings "should not be disturbed unless 'they are so wholly insupportable as to result in a denial of justice,' and should be upheld whenever they are 'supported by adequate, substantial and credible evidence.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Inv'rs. Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)). A family judge's conclusions "should not be overthrown except upon the basis of a carefully reasoned and factually supported (and articulated) determination, after canvassing the record and weighing the evidence, that the continued viability of the judgment would constitute a manifest denial of justice." In re Adoption of a Child by P.F.R., 308 N.J. Super. 250, 255 (App. Div. 1998) (quoting Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977)).

Parents have a fundamental right to raise their biological children. In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999); see also Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394-95, 71 L. Ed. 2d 599, 606 (1982) (stating that parents have a liberty interest in raising their children). Both the Federal and New Jersey Constitutions protect the inviolability of the family unit. Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212-13, 31 L. Ed. 2d 551, 558-59 (1972); N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986).

However, "the right of parents to be free from governmental intrusion is not absolute." A.W., supra, 103 N.J. at 599. While our Supreme Court has recognized the fundamental nature of parental rights and the need to preserve and strengthen family life, "[t]he child's right to a permanent home has gained increasing prominence." N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 505 (2004) (quoting In re Adoption of Children by G.P.B., Jr., 161 N.J. 396, 404 (1999)).

"The balance between parental rights and the State's interest in the welfare of children is achieved through the best interests of the child standard." K.H.O., supra, 161 N.J. at 347. The best interests standard, initially formulated by the Court in A.W., is now codified in N.J.S.A. 30:4C-15.1(a) and requires the State to establish each of the following elements by clear and convincing evidence before parental rights may be severed

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

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

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

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

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

These four criteria "are not '[discrete] and separate,' but relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012) (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 569, 606 07 (2007)). The considerations involved are fact-sensitive and require particularized evidence addressing the specific circumstances present in each case. N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 167 (2010).

III.

A. The First Prong of the Best Interests Test.

To satisfy the first prong of the best interests standard, 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 on the likelihood of it continuing." N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 609 (App. Div.) (quoting In re Guardianship of J.C., 129 N.J. 1, 10 (1992)), certif. denied, 192 N.J. 68 (2007).

Regarding the first prong, we are satisfied the record contains ample evidence to support the court's determination that both defendants' behavior exposed Holly to harm, and Nancy exposed Jennifer to harm. We agree with the judge that the record was "replete" with clear and convincing evidence both defendants had harmed their children.

Regarding Nancy, the judge noted the Division had substantiated her for neglect four times between 2009 and 2013. She had numerous mental health issues that prevented her from properly parenting and protecting her children, and she had made only limited and ultimately unsuccessful efforts to achieve stability. While in her mother's care, Jennifer had experienced severe emotional trauma and suffered from PTSD at the time of the trial, when she was only seven years old. Jennifer could not even hear her mother's name without exhibiting manic emotional behavior, and she would only refer to her as "X."

The judge also found Sam both posed a risk to and had harmed Holly. The judge noted the Division had substantiated him twice for sexually abusing Jennifer, once in August 2010 and again in May 2011.7

Sam argues the trial court's termination was fatally flawed as to him because the court relied "in large measure" upon the supposed existence of two separate substantiations against Sam, a mistake that became apparent when the Division filed its brief in the Title 9 case, on May 19, 2015. We disagree.

Although the Division did not substantiate Sam twice for sexually abusing Jennifer, the one substantiation remains. Moreover, in finding the Division had met its burden under prong one, the trial court also cited the harm to Holly due to Sam's lengthy absence from her life during his incarceration. Our Supreme Court has recognized that the inability of a parent to provide any nurturing or care for his or her child for a prolonged period is a harm cognizable under the best interests standard in guardianship cases. N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 554-55 (2014); In the Matter of the Guardianship of K.H.O., 161 N.J. 337, 356 (1999); N.J. Div. of Youth & Family Servs. v. S.A., 382 N.J. Super. 525, 534 (App. Div. 2006).

Sam had never been a part of Holly's life because he was incarcerated approximately five weeks after her birth, and he did not have his first supervised visit with her until March 21, 2013, when she was eighteen months old. Thereafter, he visited with Holly only eight or nine times. Holly viewed Sam not as her father, but as a "friendly stranger." Citing In re Adoption of Children by G.B., 161 N.J. 396 (1999), an adoption case, the judge found Sam had harmed Holly because his absence prevented her from recognizing him as her father.

B. The Second Prong of the Best Interests Test.

The second prong relates to parental unfitness. K.H.O., supra, 161 N.J. at 352. To establish this prong, the State must show (1) "the child's health and development have been and continue to be endangered," and "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 that the delay in securing permanency continues or adds to the child's harm." Id. at 348-49. We are satisfied the record contains clear and convincing evidence to support the court's determination that the Division satisfied the second prong as to each defendant.

Addressing the second prong, the judge noted Nancy had exhibited a cyclical pattern of initially engaging in services but then not following through. As a result, Nancy remained unable to provide her children with minimally adequate care or to protect them from abuse. As the professionals noted in this case, Nancy risked directly abusing her daughters because of her history, her emotional dysfunction, and the amount of her emotional pain, anger, and rage.

The judge further noted multiple psychiatrists and psychologists had uniformly diagnosed Nancy with, among other conditions, BPD. Nancy, however, denied she suffered from BPD and refused to start DBT, the time-intensive treatment necessary to address this condition. In any event, even if she started DBT, the likelihood of her making progress was "dimmed" due to her severe lack of motivation, which would render the treatment ineffective.

Not only had Nancy proven unwilling to engage in the mental health treatment needed to eliminate the harm her mental illnesses posed to her daughters, but also had refused to permit a licensed psychiatrist to monitor her many medications. Numerous medical professionals were concerned about Nancy's excessive use of prescription medications. In September 2014, Nancy acknowledged to Dr. Kane that she was taking twenty-six medications, all prescribed by her primary care physician. Many of these drugs had sedating effects, and Dr. Kane opined, as had many other psychiatrists and psychologists, that a psychiatrist, rather than a family doctor, should monitor Nancy's use of opioid and psychotropic medications. Nancy, however, refused to even consider this option, regardless of the potential danger to her children.

The court was also persuaded both Jennifer and Holly would suffer serious and enduring emotional and psychological harm if they were removed from their current caretakers and returned to Nancy. Jennifer's PTSD was so severe that, at the recommendation of several evaluators, the court had been forced to sever all contact between her and Nancy to avoid re-traumatizing her. According to Dr. Loving's unrebutted testimony, Jennifer had only an unhealthy and unwanted attachment to her mother and harbored intensely negative feelings toward her. Jennifer had made it clear that she no longer wanted Nancy in her life.

By contrast, Jennifer had a very strong attachment to Grandmom, who had been her caretaker for approximately five years (all but two years of her life). As Dr. Loving testified, Jennifer viewed Grandmom as a source of comfort, support, and enjoyment. Grandmom could help Jennifer overcome the feelings of insecurity she developed while in her mother's care. Grandmom was committed to doing everything she could to help Jennifer recover and have a successful life. The court could not remove Jennifer from Grandmom and return her to Nancy without worsening her PTSD, and delaying permanency would only further harm Jennifer.

Because she had spent nearly all of her life in foster care, Holly had never formed an attachment to Nancy. She viewed Nancy as a "friendly stranger" and was passively receptive to her overtures. With her foster parents, however, Holly appeared affectionate and expressive and actively sought contact and interaction. Holly was positively and securely attached to her foster parents and would suffer emotional and psychological harm if she were removed from them. Because of Nancy's inability to properly care for developmentally-delayed Holly at any point in the foreseeable future, delaying permanency would only harm Holly.

As for Sam, the court found he (1) had not attended even one session of his Division-mandated substance abuse treatment, (2) had not attended the therapy that was recommended following his psychological evaluation, (3) had not made himself available to be interviewed by the Law Guardian's expert, and (4) was jobless, homeless, and living a transient lifestyle.

The court noted Sam's permanency plan for Holly involved Holly's residing with Nancy on a full-time basis. Sam intended to simply visit Holly at Nancy's home and provide for her support by merely giving her food and clothing supplied by welfare and charitable organizations. The court was particularly troubled that Sam had the utmost faith in Nancy's ability to parent and did not believe he or Nancy required services. Sam's plan was not realistic or appropriate, and delaying Holly's permanent placement would only cause her further harm. Holly suffered from several developmental difficulties and, according to the uncontroverted expert testimony presented, viewed her foster parents, who had cared for her from her infancy, as her parental figures. She would suffer emotional and psychological harm if she were separated from them.

C. The Third Prong of the Best Interests Test.

The third prong of the best interests test requires the Division make "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 "consider[] alternatives to termination of parental rights." N.J.S.A. 30:4C-15.1(a)(3). Regarding this element, defendants focus their arguments on the sufficiency of the services provided. They do not contend the court failed to consider alternatives to termination.

Nancy argues the Division did not make reasonable efforts to reunite her with Holly solely because it opposed the resumption of visitation between the two after it was suspended on July 11, 2013. According to Nancy, the suspension of visitation fatally undermined her efforts to build a bond with Holly and directly resulted in Dr. Loving's finding that Holly did not view Nancy as her central parental figure. We disagree.

Contrary to her claims, Nancy did very little to foster a bond with Holly. In making her argument, Nancy disregards the plethora of services the Division offered or provided in an attempt to help her become a safe and fit custodial parent for her children. However, because Nancy refused to acknowledge her mental illnesses and lifestyle choices threatened the wellbeing of her children, she did not take advantage of the proffered services and essentially made no positive changes in her life.

Moreover, during the five months in 2012 when Nancy had custody of Holly, the Division discovered Nancy was leaving Holly, who was not even one year old, to languish in a Pack 'n Play under the supervision of five-year-old Jennifer, while Nancy slept. Nancy continued to delegate parental responsibilities vis- -vis Holly to Jennifer during the visitation following the children's removal on November 27, 2012. Thus, when Dr. Cahill completed her parenting capacity evaluation in April 2013, Nancy had only a poor attachment to Holly, and Holly, who was now developmentally-delayed, was responsive to her sister and indifferent to her mother.

Nancy's argument the Division should not have opposed the motions her counsel made for the resumption of visitation with Holly clearly lacks merit. Given the magnitude of Jennifer's psychological problems, the whispered threats Nancy made to Jennifer during supervised visitation, the evidence that Jennifer was a credible historian, Holly's inability to speak, and Nancy's failure to make any progress with her services, we cannot fault the Division for acting to protect Holly's wellbeing.

As Nancy notes, the Division subsequently deemed Jennifer's July 2013 allegations unfounded. However, this in no way meant the Division was satisfied the alleged abuse never occurred. Rather, it simply meant Jennifer's allegations could not be substantiated because any physical injury had long since healed and no other evidence corroborated her. The parties do not dispute Jennifer's detailed allegations were beyond the imagination of a six-year-old, and her PTSD was real and severe.

Lastly, in making her argument, Nancy overlooks that during this period, the Division was also investigating Jennifer's allegation that Holly had been sexually abused. Holly's foster parents corroborated this allegation when they reported her sexualized behavior after she was returned to them in November 2012. In her April 24, 2014 report, Dr. DeLago stated Holly's sexualized behavior supported the concerns she had been "sexually abused by her mother." Thus, the Division had legitimate concerns about resuming visitation between Nancy and Holly.

In support of his argument the Division did not make reasonable efforts, Sam relies upon R.G., supra, 217 N.J. at 562, urging us to reverse because the Division essentially failed to provide him with any services aimed at reunification with Holly. However, in that case, the defendant-father supported and cared for his daughter for six months prior to his five-year incarceration, spoke to her on the phone every day during the last two years of his incarceration, wrote letters to her on a monthly basis, and had gained his daughter's affection, but was not provided with a bonding evaluation or given time, upon his release, to demonstrate his parental fitness. Id. at 536-41, 562-64.

Here, in contrast, Sam never had a relationship with Holly. Rather, a mere five weeks after Holly's birth in September 2011, Sam began a prison term from which he was first released in March 2013. Thereafter, Sam squandered the visitation he was provided, as well as the psychological evaluation he underwent and the substance abuse treatment he was offered. He violated parole a mere three months after his release, thus causing his return to the prison system until April 2014. During this latter period, Holly was more than two years old and had spent the vast majority of her life in foster care, so the Division filed for guardianship of Holly.

Despite the fact that Sam had essentially no parenting history and, thus, no bond with Holly, and even though it had changed its goal to adoption, the Division nonetheless provided Sam with visitation from January 2014 up to the time of the trial in November 2014. Sam did not, however, consistently visit with Holly during this period.

The Division also provided Sam with a psychological evaluation and offered to provide substance abuse and other treatment. However, Sam did not provide the Division with a way to contact him to arrange these services, and he admitted he was not interested in complying. He also canceled family team meetings. Additionally, because Sam failed to provide proof of income, the Division could not help him with housing, another prerequisite for reunification with Holly. In short, defendant never demonstrated his commitment to Holly by working with the Division to correct the problems in his life.

We are satisfied the record contains clear and convincing evidence to support the court's determination that the Division made reasonable efforts to provide defendants with services to help them correct the circumstances leading to removal, thereby satisfying the third prong of the best interests standard.

D. The Fourth Prong of the Best Interests Test.

The test's fourth prong requires a determination that terminating a defendant's parental rights will not cause more harm than good. N.J.S.A. 30:4C-15.1(a)(4). The court must assess each child's relationships with each biological and foster parent. K.H.O., supra, 161 N.J. at 355. A mere showing the child would be "better off" with an adoptive parent is not sufficient. G.P.B., supra, 161 N.J. at 404. Nor will a showing of a healthy and loving relationship between the child and foster parent suffice. J.C., supra, 129 N.J. at 19. A determination under this prong requires "expert inquiry specifically directed to the strength of each relationship." K.H.O., supra, 161 N.J. at 355 (citation omitted). The fourth prong asks "whether, after considering and balancing the [child's] relationships [with the foster parents and the birth parents], the child will suffer a greater harm from the termination of ties with [his or] her natural parent than from the permanent disruption of [his or] her relationship with [his or] her foster parents." K.H.O., supra, 161 N.J. at 355.

Both defendants argue the trial court erred in concluding termination of their parental rights would not do more harm than good. Notably, Nancy's argument pertains only to Jennifer; Nancy argues the trial court's finding on this prong was fatally flawed because of the absence of a bonding evaluation between her and Jennifer. We disagree.

We have acknowledged that it will be the rare case in which bonding evaluations are not required. See N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 440 (App. Div. 2009). However, in the circumstances of this case, the lack of a comparative bonding evaluation does not require reversal. Here, the record clearly shows Jennifer, who had just turned seven in the months leading up to the guardianship trial, had been severely traumatized while in her mother's custody. Jennifer was receiving intensive therapy and required multiple medications to help her control her PTSD. She had not felt safe while in her mother's custody, was deathly afraid of her, and would not speak her name or allow it to be spoken in her presence. Jennifer expressed to numerous caseworkers and medical professionals that she wished to live with Grandmom.

Both Dr. Ribeiro and Dr. Loving agreed a bonding evaluation between Jennifer and Nancy would likely re-traumatize Jennifer, and Dr. Loving found it was not necessary to support his conclusion that Jennifer's best interests called for her adoption by Grandmom, with whom she held a close bond. No countervailing evidence rebutted the expert opinion that Jennifer's wellbeing required Grandmom adopt her.

Sam contends that it was the Division's fault, not his, that Dr. Loving reached his conclusion, subsequently relied upon by the trial court, that Holly was bonded to her foster parents and needed permanency, so terminating his parental rights would not do more harm than good. We disagree.

Sam made bad decisions that resulted in his absence from Holly's life. In addition to his criminal offenses and resulting incarceration, he failed to complete services after violating parole; he failed to provide the Division with contact information; and he failed to demonstrate sincere interest in establishing a parental relationship with his daughter. While he represented he had a job, he failed to provide proof of income that would have enabled the Division to help him overcome his chronic homelessness. Sam had no plan for Holly's care other than to leave her with Nancy, whose problems as a parent he refused to acknowledge. Due to his lengthy absence from her life, Sam had essentially no relationship with Holly. He even failed to attend a bonding evaluation that might have helped his case.

In contrast, the Division's bonding evaluation showed Holly had bonded with her current caregivers, who were the only parents she had ever really known. Because Holly needed a sense of permanency as soon as possible, the court correctly concluded terminating Sam's parental rights would not do Holly more harm than good.

The record contains clear and convincing evidence to support the trial court's finding that termination of defendant's parental rights would not cause more harm than good, thus satisfying the fourth prong of the best interests test. Defendants' arguments to the contrary lack merit.

We are satisfied the record fully supports the decision to terminate defendant's parental rights. The court applied the correct legal standards to its factual conclusions.

Affirmed.

1 We employ fictitious names to protect the confidentiality of the children and for ease of reference.

2 The judgment also terminated the parental rights of Jennifer's father, D.W., who voluntarily surrendered his rights. He has not filed an appeal.

3 The Division later changed this finding to "unfounded" on March 29, 2011, but never notified the parties of this change until May 2015.

4 A different judge later determined the September 9, 2011 order improperly imposed restraints on Sam as a non-party and vacated that portion of the order.

5 After this date, the court heard both Jennifer's case (Docket No. FN-08-25-11) and Holly's case (Docket No. FN-08-66-12) together.

6 On November 5, 2012, the judge issued an order and an accompanying fact-finding decision determining both defendants had abused and neglected Holly, who had been added to the safety plan in Jennifer's case as a protected child. In her decision, the judge found defendants' violations of the September 9, 2011 court order and safety plan had placed Holly at risk. On February 19, 2016, we affirmed the Title 9 findings of abuse and neglect against defendants, as well as the trial court's factual finding (which carried no sanction) that Sam had sexually abused and posed a threat to Jennifer based upon her July 2010 statements, which were properly corroborated and admissible at the Title 9 hearing. N.J. Div. of Child Prot. & Perm. v. N.L., No. A-1365-13 (App. Div. Feb. 19, 2016) (slip op. at 2-3).

7 Sam correctly notes that, contrary to the court's finding, he was ultimately only substantiated once by the Division for abusing Jennifer.