Opinion
DOCKET NO. A-3719-13T2
02-18-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. A.R., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF A.E.R., A Minor.
Joseph E. Krakora, Public Defender, attorney for appellant A.R. (Adrienne Kalosieh, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Lea C. DeGuilo, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Lisa M. Black, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges St. John and Rothstadt. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FG-18-0107-13. Joseph E. Krakora, Public Defender, attorney for appellant A.R. (Adrienne Kalosieh, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Lea C. DeGuilo, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Lisa M. Black, Designated Counsel, on the brief). PER CURIAM
Defendant A.R. appeals from an April 3, 2014 judgment, entered following a trial, which terminated his parental rights and awarded guardianship to the Division of Child Protection and Permanency (Division) of his minor child, Anna, for the purpose of securing her adoption. Anna's mother, J.R., did not appear during the guardianship trial and her parental rights were also terminated in the same judgment, which she has not appealed.
We use a pseudonym to protect the confidentiality of the minor child.
The trial court also terminated J.R.'s parental rights to her son J.E.R. However, because defendant is not J.E.R.'s father, that portion of the court's decision is not relevant here.
In this appeal, defendant argues the Division failed to prove each of the four requisite statutory prongs contained in N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. The Division and Anna's Law Guardian disagree and urge us to affirm the court's judgment. Upon our review, in light of the record and applicable legal standards, we affirm.
I.
A.
These facts can be found in Judge O'Neill's comprehensive written opinion. Since Anna's mother has not appealed, we limit our focus to the evidence pertinent to the termination of defendant's parental rights.
Anna was born in 2000 while her parents were living in Virginia. When Anna was roughly one-year old, J.R. took her and fled Virginia without defendant's knowledge, settling in New Jersey.
The Division first became involved with the family in 2003, when Anna was removed from J.R.'s custody because of the latter's substance abuse and psychological problems. By thirteen years old, Anna had been in fourteen different resource homes during her near-decade in placement. She has been removed multiple times from J.R.'s custody and has significant behavioral issues that will require ongoing treatment. J.R. has not made contact with the Division, the court or her children since October 2012. Margi Ferguson, a Division caseworker, testified Anna expressed the desire to be adopted "if the right family is found."
Anna was most recently placed with a resource family she met through a "meet and greet." In a letter to the trial court, Anna wrote that she was "doing great with the new foster family," and provided a generally positive report of her daily life. Anna expressed this same sentiment and desire to be adopted to several other witnesses, including defendant.
Over the course of Anna's life, defendant was not involved in her upbringing. He was first incarcerated in 1989 for grand larceny and served a three-year sentence. In 2001, he was incarcerated for grand larceny and eluding police and served a year-and-a-half. Most recently in 2009, defendant was incarcerated on charges relating to grand larceny and a bomb threat. All offenses took place in Virginia.
According to defense counsel's statement at trial, defendant was released from prison on March 17, 2014.
Defendant did not provide any information about his contact with Anna during the first year of her life in Virginia, only that J.R. unexpectedly absconded with her. In 2005, with the aid of Virginia social services, defendant learned J.R. and Anna were in New Jersey. He wrote the pair a letter but never heard back, as J.R. had again moved with Anna to another town. According to Ferguson's testimony, defendant made no further attempts to contact Anna or her mother from 2005 until the initiation of the instant litigation.
When the Division again removed Anna from J.R.'s custody in November 2010, defendant was incarcerated. Defendant testified the Division did not notify him of Anna's removal. Contrarily, a contact sheet dated May 24, 2012, offered by Laura Williams, a Division caseworker, noted defendant was served with the complaint on May 22, 2012, explaining Anna's removal. A subsequent contact sheet stated on July 17, 2012, Williams explained the removal to defendant. The trial court credited the Division's evidence and found Williams had in fact served defendant with the complaint and subsequently explained Anna's removal to him.
Defendant stated he tried to participate in services while incarcerated, but was transferred to another prison before he could successfully complete them. Defendant did not provide the Division with any documentation of these attempts. He did not file for visitation with or custody of Anna in New Jersey. Defendant testified he did so file in Virginia, but again failed to provide any of this information to the Division.
Defendant testified the Division did not adequately explore placing Anna with relatives he had identified as potential caretakers. The trial court also found this statement unsubstantiated. The evidence showed the Division contacted both of defendant's suggested relatives, his sister and his son, in July 2012. Although both initially communicated an interest in taking Anna, nothing came of it: defendant's son did not respond to numerous subsequent Division inquiries, and his sister, while responding, said she did not know Anna and was unable to care for her.
Defendant testified, upon his release from prison, he planned to live in Chesapeake, Virginia with his fiancé. He intended to get a job and to take care of his family, including his fiancé, Anna, and his two adult children. Additionally, defendant was willing to attend parenting classes, reported that local schools in Virginia were good, and was aware of Anna's psychological difficulties and committed to getting her the necessary treatment. However, defendant admitted Anna has never met his fiancé and he has not provided her name or address to the Division. Further, the Division was not informed of defendant's plans prior to his testimony in March 2014.
John Gallus, an investigator with the Office of the Law Guardian, testified that, while Anna desired to be adopted, she would also like to keep writing her father, which she began doing in the months preceding trial. Division caseworker Ferguson testified although Anna had intimated she wants to maintain contact with defendant, she did not specify what level of contact or what type of relationship she wants to have with him. However, Anna's most recent resource family expressed an openness to her continuing writing defendant.
In its brief, Anna's Law Guardian states, subsequent to trial, Anna has been removed from this most recent resource home, but "still desires an opportunity to have a stable, permanent home."
B.
After a four-day trial, on April 1, 2014, the trial court issued its comprehensive written decision. As to defendant, the court held the Division had met its burden by clear and convincing evidence for each of N.J.S.A. 30:4C-15.1(a)'s four prongs. The court adhered closely to the analytical framework provided by the Court in In re Adoption of Children by L.A.S., 134 N.J. 127 (1993), for applying the statutory factors to a situation in which the parent is incarcerated.
As to the first prong, the court concluded there was, excepting the handful of letters between defendant and Anna in the few months preceding trial, "essentially[] no parental relationship" between the two. The court found defendant's repeated incarcerations had harmed Anna by leaving him "unable to assist in her upbringing," particularly in light of the significant struggles she faced. Furthermore, although scheduled to be released in March 2014, the specifics of defendant's plans were not articulated and the court found defendant lacked a coherent plan to establish a lasting parental relationship with Anna.
Regarding the second prong, defendant's unwillingness or inability to eliminate the harm facing Anna, the court found defendant "has not demonstrated an ability to parent [Anna] now or in the future." His history of repeated incarceration, the court found, "reasonably leads to a concern about whether he will be able to maintain a life outside of the prison system." As a result of his lack of any meaningful relationship with Anna now or in the past, defendant "has no insight into [her] needs and offered no plan for addressing them." Equally important, the court concluded any further delay in providing Anna with permanency will likely prolong the harm already caused.
Addressing the Division's efforts to provide defendant with services, the court found the Division kept defendant informed of Anna's removal and progress and adequately explored defendant's proposals regarding potential placement with relatives. Additionally, the court found defendant neither requested visitation nor attended treatment services while incarcerated. Defendant, "through his own criminal activity, [] made himself unavailable to participate in any attempted reunification services."
Finally, as to the fourth prong, the trial court first noted, generally, the Division is "required to produce expert testimony comparing the relationship between the minor and the biological parents to the relationship between the minor and his/her foster parents." However, in this case, the court concluded such analysis "could not have been provided" because: (1) given his lengthy absence from her life, defendant had no meaningful relationship with Anna; and (2) at the time of trial, Anna had only lived briefly with her most recent resource family and had not had sufficient time to develop a lasting bond.
As support, the court observed defendant testified he had not had in-person contact with Anna since she was an infant and Anna does not ever remember meeting him. The court noted Anna informed the Division's caseworker Ferguson she wanted to be adopted, and her current resource family expressed a willingness to have Anna continue contact with her siblings, extended family and even defendant. For these reasons and because Anna "is entitled to the opportunity to join a new, intact, stable family if and when she is adopted," the court concluded the Division met the fourth prong by clear and convincing evidence.
Having determined all requisite prongs were met, the trial court entered judgment terminating defendant's parental rights to Anna.
This appeal ensued.
II.
Review of a trial court's termination of parental rights is limited. See In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). The court must defer to the trial judge's findings if they are supported by substantial, credible evidence, though legal conclusions are subject to plenary review. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007). The family judge's fact-finding is accorded particular deference "[b]ecause of the family courts' special jurisdiction and expertise in family matters." Cesare v. Cesare, 154 N.J. 394, 413 (1998). This deference applies unless the trial court's findings are "'so wide of the mark that a mistake must have been made.'" M.M., supra, 189 N.J. at 279 (quoting Snyder Realty Inc. v. BMW of N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989)).
Termination of "parental rights is a difficult and intentionally rigorous" process, subject to a "heightened burden of proof." N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 151 (2010). The Division must proffer "clear and convincing evidence [] the four statutory criteria are satisfied." M.M., supra, 189 N.J. at 280. Clear and convincing evidence "'should produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.'" In re Perskie, 207 N.J. 275, 290 (2011) (quoting In re Purrazzella, 134 N.J. 228, 240 (1993)).
The standards for terminating parental rights are in keeping with public policy and constitutional doctrine, In re Guardianship of J.C., 129 N.J. 1, 9 (1992), as parents have a fundamental, constitutionally-protected interest in raising their biological children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394-95, 71 L. Ed. 2d 599, 606 (1982). However, these constitutional protections may be tempered by the State's parens patriae responsibility to prevent harm to children. J.C., supra, 129 N.J. at 10. As such, the statutory "best interests" test aims to achieve an appropriate balance between parental rights and the State's duty to children. In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). The State may terminate parental rights only when:
(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).]
The requirements should not be considered separately, but should form a composite picture of what is in the best interests of the child. N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 258 (App. Div. 2005). Applying the four-part test is "'extremely fact sensitive' and require[s] particularized evidence that addresses the specific circumstances of the individual case." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006) (quoting K.H.O., supra, 161 N.J. at 348), certif. denied, 190 N.J. 257 (2007).
Moreover, "the cornerstone of the inquiry is not whether the biological parents are fit but whether they can cease causing their child harm." J.C., supra, 129 N.J. at 10. Therefore, parents in such proceedings should not be presumed unfit, and "all doubts must be resolved against termination of parental rights." K.H.O., supra, 161 N.J. at 347. However, the focus is on the child. N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div.) (holding the law requires an "expeditious, permanent placement to promote the child's well-being" instead of waiting for a birth parent "to correct conditions in anticipation of reuniting with the child"), certif. denied, 180 N.J. 456 (2004).
Finally, "incarceration alone — without particularized evidence of how a parent's incarceration affects each prong of the best-interests-of-the-child standard — is an insufficient basis for terminating parental rights." N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 556 (2014) (citing In re Adoption of Children by L.A.S., 134 N.J. 127, 137 (1993)). Rather, the court must conduct "a broad inquiry into all the circumstances bearing on incarceration and criminality, and must include an assessment of their significance in relation to abandonment or parental unfitness." L.A.S., supra, 134 N.J. at 143.
In that vein, the Supreme Court has identified several factors for consideration when a court is tasked with deciding the termination of an incarcerated parent's parental rights:
[P]erformance as a parent before incarceration, to what extent his children were able to rely on him as a parent, and what effort, if any, he has made to remain in contact with his children since his incarceration. The court should also consider whether [the parent] will be able to communicate and visit with his children;
what effect such communications and visitation will have on the children in terms of fulfilling the parental responsibility to provide nurture and emotional support, to offer guidance, advice, and instruction, and to maintain an emotional relationship with his children. Further, the court must consider the risk posed to his children by [the parent]'s criminal disposition; what rehabilitation, if any, has been accomplished since [the parent]'s incarceration; and the bearing of those factors on the parent-child relationship. The court should, with the aid of expert opinion, determine the need of the children for permanency and stability and whether continuation of the parent-child relationship with [the parent] will undermine that need. Further, the court should determine the effect that the continuation of the parent-child relationship will have on the psychological and emotion well-being of the children.A parent's incarceration does not relieve the Division of its burden of proving each of the four statutory elements by clear and convincing evidence. Id. at 559.
[R.G., supra, 217 N.J. at 555-56 (alterations in original) (quoting L.A.S., supra, 134 N.J. at 143-44).]
Applying these principles, our review of the record satisfies us the trial court's finding that the Division clearly and convincingly proved all four prongs of the best interests test was supported by substantial, credible evidence.
A.
As to the first prong, defendant challenges the trial court's finding his incarceration in Virginia has harmed Anna and he did not have any meaningful relationship with Anna prior to his incarceration.
Under N.J.S.A. 30:4C-15.1(a)(1), the Division must show harm which "threatens the child's health and will likely have continuing deleterious effects on the child." K.H.O., supra, 161 N.J. at 352. Harm to the child in the future and whether the parent is able to eliminate the harm is also considered. N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 440 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002). "Courts need not wait to act until a child is actually irreparably impaired by parental inattention or neglect." In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999).
In addition, the harm does not have to be physical in nature. In re Guardianship of K.L.F., 129 N.J. 32, 43-44 (1992). "Serious and lasting emotional or psychological harm to children as the result of the action or inaction of their biological parents can constitute injury sufficient to authorize the termination of parental rights." Id. at 44.
The trial court found, other than a handful of letters exchanged in the months preceding trial, there was no relationship between father and daughter as defendant "has not had any contact with his daughter in over 12 years, and had no relationship with her prior to his incarceration." Further, the court held defendant's absence from Anna's life rendered him "unable to assist in her upbringing . . . [which] must have had some negative impact on her emotional development."
Defendant's assertions to the contrary are unsubstantiated. First, defendant presented no evidence of any semblance of a relationship with Anna during the first year of her life while she lived in Virginia with her mother. Second, the Division kept defendant informed of Anna's removal and progress, and adequately explored defendant's proposals regarding potential placement with relatives. However, defendant did not seek custody, or, while incarcerated, request visitation or attend treatment services.
As recognized by the Supreme Court, a parent's "withdrawal of [] solicitude, nurture, and care for an extended period of time is in itself a harm that endangers the health and development of the child." D.M.H., supra, 161 N.J. at 379. Finally, the recent decision in R.G., supra, is factually readily distinguishable and does not alter this conclusion.
In R.G., the Court reversed this court's decision holding an incarcerated parent harms his child under N.J.S.A. 30:4C- 15.1(a)(1) "as a matter of law." R.G., supra, 217 N.J. at 535, 544. The Court's decision rested largely on the fact that the father in R.G. "parented [his daughter] prior to his incarceration, communicated with [the mother] about [their children]'s well-being prior to their removal from [the mother]'s custody, and called and wrote to [his daughter] while in prison." Id. at 560. Here, the trial judge found defendant lacked any relationship with Anna either before or during his repeated incarcerations in Virginia. This case is more akin to N.J. Div. of Youth & Family Servs. v. T.S., 417 N.J. Super. 228 (2010), certif. denied, 205 N.J. 519 (2011), where we held the Division satisfied the first prong by showing the father "had physically and financially abandoned [his child and] demonstrated no past parenting of or relationship with the child." Id. at 242-43.
Applying the holdings of R.G. and T.S., the trial court properly concluded defendant's absence harmed Anna. See D.M.H., supra, 161 N.J. at 379. Furthermore, this lack of a sustained relationship prior to and during defendant's incarceration caused harm, which cannot be ameliorated in the foreseeable future. This harm precludes defendant from providing Anna with a safe and stable home. Anna's health and development has been and will likely continue to be, harmed by any relationship with defendant. As such, there was sufficient credible evidence in the record to support the judge's conclusion that the first prong was met because Anna's safety, health, and development has been and will continue to be endangered by the parental relationship with defendant.
B.
Defendant also argues the Division failed to satisfy the second prong because in his testimony he provided a plan for reunification with Anna and demonstrated his willingness and ability to parent her upon his release from prison.
The second prong requires a showing of an unwillingness or inability to eliminate the harm facing the child or to provide a safe and stable home for the child and delay of permanent placement will add to the harm. See K.H.O., supra, 161 N.J. at 352. The two components of harm embodied in the first and second prongs are related, and "evidence that supports one informs and may support the other." D.M.H., supra, 161 N.J. at 379. As with the first prong, we are satisfied the evidence supports the court's finding that defendant was unable to care for Anna due to his lack of any meaningful relationship with her or a concrete plan for reunification.
To the extent defendant argues Anna should have waited in foster care until his release from prison and preparation for her to live with him and his fiancé, his argument ignores the proper focus we employ. Our concern is based on "[t]he strong public policy of New Jersey [that] favors permanency of child placement," C.S., supra, 367 N.J. Super. at 116, and the principle a child should not have to wait for a parent to complete good faith efforts to be capable of parenting. "A child cannot be held prisoner of the rights of others, even those of his or her parents. Children have their own rights, including the right to a permanent, safe and stable placement." Id. at 111.
The law requires children obtain permanency and to limit the amount of time afforded parents to correct conditions that preclude reunification. Id. at 111, 116. For this reason, the law "has shifted from protracted efforts for reunification with a birth parent to an expeditious, permanent placement to promote the child's well-being." N.J. Div. of Youth & Family Servs. v. L.J.D., 428 N.J. Super. 451, 484 (App. Div. 2012). "'Keeping the child in limbo, hoping for some long term unification plan, would be a misapplication of the law.'" Ibid. (quoting A.G., supra, 344 N.J. Super. at 438); see also A.W., supra, 103 N.J. at 611 ("Naturally, there will be circumstances when the termination of parental rights must precede the permanency plan."). A child's need for permanency and the policy to provide it expeditiously can only yield to a parent who is making diligent efforts to be reunited with a child, but who needs a reasonable period of time to complete those efforts. See F.M., supra, 375 N.J. Super. at 258.
The trial court properly found defendant never attempted to make any serious effort to achieve reunification with Anna. Except for sending a single letter sent in 2005, he made no attempts to contact Anna prior to the initiation of guardianship proceedings. He did not file for visitation with or custody of Anna in New Jersey and presented no evidence to support his claims he did so in Virginia. Nor did he participate in services while incarcerated to demonstrate an ability or willingness to parent Anna. Furthermore, in light of his extensive history of incarceration, the judge had reasonable doubts as to whether defendant will be able to sustain a life outside the prison system. Finally, defendant's testimony that he and his fiancé had spoken with some doctors in the area and the local schools are good, is not sufficient to establish a concrete plan for Anna's care, particularly in light of her serious psychological and emotional problems caused by her difficult circumstances.
Therefore, we determine Judge O'Neill relied on substantial, credible evidence in concluding the Division satisfied the second prong as defendant would not be able to parent and provide a stable home for Anna and the delay in securing permanency would only add to the harm. N.J.S.A. 30:4C-15.1(a)(2).
C.
Defendant next challenges the Division's proofs regarding the third prong's "reasonable efforts" requirement, arguing the Division failed to keep him reasonably informed of Anna's progress and treatment or provide him with services. We disagree.
The third prong requires the Division to undertake "reasonable efforts" to provide necessary services to help the parent to correct the circumstances which led to the removal, and requires the court to consider alternatives to termination. N.J.S.A. 30:4C-15.1(a)(3).
Title 30 defines "reasonable efforts" as
attempts by an agency authorized by the [D]ivision 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"The reasonableness of the Division's efforts depends on the facts in each case." A.G., supra, 344 N.J. Super. at 435 (citing D.M.H., supra, 161 N.J. at 390). The Court has stated although "providing services to incarcerated persons is difficult and may be futile . . . , the Division should not avoid providing services to all incarcerated persons, regardless of their seeming unwillingness to improve their parental fitness." R.G., supra, 217 N.J. at 562; see also D.M.H., supra, 161 N.J. at 393 (noting Division may not "ignore or exclude" non-primary caretaker parent).
(4) facilitating appropriate visitation.
[N.J.S.A. 30:4C-15.1(c).]
This case clearly falls within the narrow class of situations in which "providing services to incarcerated persons is difficult and may be futile." R.G., supra, 217 N.J. at 562. As to difficulty, defendant has been incarcerated in Virginia, rendering any attempt by the Division to visit him directly or arrange visitation with Anna much more difficult than if he were in New Jersey. More significant, regarding futility, defendant never requested visitation or contacted the Division regarding Anna, even though the Division informed him of her removal from J.R.'s custody in May 2012. Under these circumstances, the Division was not obligated to do more. Despite his attempt to blame the Division for not trying harder to contact him and provide services, it was defendant who failed to seek contact with his daughter or services necessary to provide for her care.
We are equally satisfied the evidence supported Judge O'Neill's finding as to the Division's efforts to find alternative relative placements for Anna. "[A]lthough there are statutory provisions in Title 30 and Title 9 which refer to relative placements, the statutes do not create a presumption in favor of such placement." N.J. Div. of Youth & Family Servs. v. M.F., 357 N.J. Super. 515, 528-29 (App. Div. 2003). Nevertheless, "the Division is obligated to initiate a search for relatives who may be willing and able to provide the care and support required by the child and the Division's policy is to place, whenever possible, children with relatives." Id. at 529 (citation and internal quotation marks omitted).
The Division satisfied its obligation in this case. It repeatedly contacted the relatives defendant put forward as potential guardians for Anna. Defendant's son failed to respond to the Division's repeated inquiries after he initially expressed an openness to taking Anna. Similarly, defendant's sister told the Division she did not know Anna and would be unable to care for her. Overall, we are satisfied the judge correctly found the Division met its burden for considering all alternatives.
D.
Finally, defendant argues the Division's proofs failed to satisfy the fourth prong because the Division failed to establish that termination would not do more harm than good. Specifically, defendant points to the trial judge's conclusion no expert testimony regarding comparative bonding was required.
Generally, there is an inherent risk of harm to a child associated with termination of parental rights. K.H.O., supra, 161 N.J. at 355. Therefore, under this prong, the Division need not prove that the child will suffer no harm, but rather whether, after considering both relationships, "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." Ibid. Thus, the fourth prong is "related to the first and second" prongs because they all require a consideration of harm to the child caused by the parent-child relationship. D.M.H., supra, 161 N.J. at 384.
This fourth prong "serves as a fail-safe against termination even where the remaining standards have been met." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 609 (2007). The question is "whether a child's interest will best be 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).
Analyzing potential termination generally requires a balancing of the two relationships between terminating the child's ties with the parent or disruption of ties with the resource family. J.C., supra, 129 N.J. at 25. As such, there is usually a need for "expert evaluations and testimony with respect to natural and resource families." N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 440 (App. Div. 2009). As we have also previously observed, comparative bonding valuations are very important:
[W]e can envision very few scenarios in which comparative evaluations would not be required. Indeed . . . it is of great significance in evaluating comparative harm under the fourth prong in showing that termination of parental rights likely will not do more harm than good and in sustaining [the Division's] burden of proof.
[Ibid. (citation and internal quotation marks omitted).]
This case presents one of those rare exceptions. The argument that the fourth prong is satisfied here is not premised on the fact that Anna would be harmed by losing her relationship with her foster parents, which plainly would require comparative evaluations. See J.C., supra, 129 N.J. at 18. Rather, the harm posed is defendant's unfitness as a parent, irrespective of any attachment Anna has to her foster family. Indeed, our courts have long recognized that termination may be warranted where no immediate prospect for adoption exists, A.W., supra, 103 N.J. at 611, and, consequently, where no comparative evaluations with prospective adoptive parents could even be available. This can occur in circumstances where the search for an appropriate adoptive parent cannot be taken until after termination.
Here, the trial court found defendant had no secure bond with Anna. Anna cannot remember ever meeting him and there is no evidence defendant undertook serious, sustained efforts to contact her prior to these proceedings. Multiple witnesses, including defendant, testified to Anna's wish to be adopted. This wish remains unchanged even in light of her removal from her most recent resource home subsequent to trial. Furthermore, allowing Anna to be free for adoption increases the likelihood that she will achieve permanency in the future. Thus, the underlying fundamentals of the best interests test, to provide a child with an opportunity to find a permanent and stable home, were satisfied. See E.P., supra, 196 N.J. at 92.
Because of the absence of a secure bond between defendant and Anna, her recognized need for immediate permanency and the inability of defendant to meet that need in the reasonably foreseeable future, if ever, fully supports the court's conclusion that termination would not do more harm than good. Therefore, sufficient, credible evidence in the record supports the court's conclusions as to the fourth prong of the best interests standard, and defendant's argument to the contrary lacks real merit.
In sum, Judge O'Neill properly concluded the Division proved all four prongs by clear and convincing evidence. We are satisfied the record fully supports the decision to terminate defendant's parental rights.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION