Opinion
DOCKET NO. A-5206-10T1
08-08-2012
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. S.Z., Defendant, and A.Z. Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF S.Z., N.Z. and M.Z., minors.
Joseph E. Krakora, Public Defender, attorney for appellant A.Z. (Angelo G. Garubo, Designated Counsel, on the briefs). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel and on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors S.Z., N.Z. and M.Z. (Elahna Strom Weinflash, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher, Nugent and Carchman.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FG-14-70-10.
Joseph E. Krakora, Public Defender, attorney for appellant A.Z. (Angelo G. Garubo, Designated Counsel, on the briefs).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel and on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors S.Z., N.Z. and M.Z. (Elahna Strom Weinflash, Designated Counsel, on the brief). PER CURIAM
Defendant A.Z. appeals from a Family Part judgment terminating his parental rights to his three children. The children's mother, S.Z., entered into an identified surrender of her parental rights to the children so that their maternal grandmother could adopt them. We affirm.
I.
Married in 1997, A.Z. and S.Z. have a daughter, Sally, now twelve years old, and two sons, Noah and Michael, ages eight and five. When the Division of Youth and Family Services (the Division) became involved with the family in October 2008, Sally and Noah suffered from developmental, emotional, or other impairments, and required substantial attention and assistance. Sally was learning disabled and Noah was "globally delayed," suffering from attention deficit hyperactive disorder and autism. S.Z. largely ignored the children, and A.Z. worked from 7:00 a.m. to 10:30 p.m. daily, so he rarely saw them.
We refer to the children by fictitious names.
The Division first became involved with the family on October 28, 2008, after receiving a referral that the parents were neglecting and abusing the children. According to the referral, A.Z. had hit the children with a serving spoon and his hand; S.Z. had verbally abused the children; and the boys had sustained burns for which they had received no medical attention.
The next day, Division caseworker Ashley King interviewed Sally, Sally's teacher, and Sally's school counselor before proceeding to the family's apartment. When King and a coworker arrived at the apartment, they knocked on the door several times before S.Z. told them to enter. S.Z. was sitting near the front door, but had not diverted her attention from her computer to open the door. The home had a foul odor and was dirty. The carpet was littered with food crumbs and the children's toys; the sink and toilet bowl in the downstairs bathroom were stained brown, and the floors had "a darker mold color"; the shower and tub in the upstairs bathroom had "a dark, mold[y,] dirty color"; and the walls were covered with the children's drawings. There was a gate to keep Noah out of the kitchen, but holes in the wall near the gate evidenced Noah's ability to push the gate out of his way and enter the kitchen.
More disconcerting than the condition of the home was the condition of the boys. Noah had burns on his wrist and back and a circular contusion on his right shoulder, which as he explained in single-word sentences, were caused by the stove, his sister, and a spoon. Michael, then age two but more articulate than Noah, had a bump on his forehead above the right eye, and burns under his chin and on his right wrist. Michael pointed to the burn marks and said "fire." When asked about her children's burns, S.Z. initially denied knowing anything about them. She subsequently explained that Sally had accidentally burned the children while using a lighter, then told a story about Noah turning on the stove. S.Z. was either on the computer or in the bathroom when the children were burned.
The Division workers prompted S.Z. to take the boys to the doctor, where they were diagnosed with second-degree burns that were healing. During the visit, Noah was screaming, hitting Michael and S.Z., and throwing books. He did not respond when S.Z. told him to stop.
Caseworker King testified at trial that S.Z.'s lack of supervision of the children was evident when she and a nurse visited the home the following day, October 30, 2008. While King and the nurse were visiting, Sally asked to leave the home and play, and S.Z. told her to be back by 6:00 p.m. Later that evening, when King and the nurse were leaving, they did not see Sally. They found her helping another woman with gardening. The woman did not know S.Z. and did not know where Sally lived.
King also observed Michael climbing on a desk to get cream that was used for his eczema, while S.Z. ignored him; and observed that Noah, who despite his age was not toilet trained, had soiled his pants and remained in them because S.Z. made no attempt to change his clothes. King directed her to do so. King also watched Noah push the kitchen gate out of his way so that he could enter the kitchen, where he carried on until S.Z. gave him food. A.Z. was hardly ever at home because of his work schedule.
Based upon the burns suffered by the children and the safety issues raised by S.Z.'s lack of supervision, the Division substantiated a finding of neglect against S.Z. and thereafter removed the children from the home. The Division placed Sally and Noah with their maternal grandmother, C.G., and Michael with his paternal grandparents.
A "substantiated finding" is one "where 'the available information, as evaluated by the child protective services investigator, indicates by a preponderance of the evidence that a child is an abused or neglected child as defined in N.J.A.C. 10:133-1.3 because the alleged child victim has been harmed or placed at risk of harm by a parent or guardian.'" N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 607 n.1 (App. Div. 2010) (quoting N.J.A.C. 10:129-1.3).
The Division served S.Z. and A.Z. with a notice of emergency removal. On November 5, 2008, the trial court signed an order that, among other things, placed the children under the care, custody and supervision of the Division; recited the Division's assessment "that without constant and intensive in-home supports, the mother is unable to maintain a safe environment for her children"; and ordered A.Z. and S.Z. to show cause on December 4, 2008, why the order should not be continued. On December 4, the court continued the children under the Division's care and ordered that A.Z. and S.Z. undergo psychological evaluation.
It is unnecessary to review the services provided to S.Z. between the time the children were removed from their home and the day S.Z. entered into the identified surrender of her parental rights; however, her inability to develop adequate parenting skills has some relevance to A.Z.'s inability to recognize the harm to their children. S.Z. remained incapable of safely providing a nurturing atmosphere for her children. In January 2009, the Center for Evaluation and Counseling reported the results of cognitive assessments of both S.Z. and A.Z. The testing disclosed that S.Z. was "in the Extremely Low range of intellectual functioning," and demonstrated deficits in "comprehension, judgment, abstract reasoning, daily living skills, and problem-solving abilities." In addition, she "exhibited difficulties with processing visual information and organizing her adult responsibilities." As a consequence of those deficits, S.Z. had difficulty "comprehending her children's needs, maintaining an orderly house, and learning from service providers . . . ."
S.Z. made little or no progress with her inability to parent her children. At the guardianship trial in March 2011, two experts testified about S.Z.'s inability to parent. The Division's expert testified that S.Z.'s "prognosis for acquiring adequate parenting capacity through any form of therapy, counseling, education, or training is regarded as very low." The expert retained by the law guardian testified that due to S.Z.'s many deficits caused by her level of cognitive functioning, she could probably care for her children "for an hour here and there." The expert did not believe that S.Z. was capable of "negotiating the needs of the three children unsupervised for any extended period of time," but believed her "lack of motivation to challenge herself emotionally or intellectually . . . [was] entirely consistent with a mental age of 9-10 years [old] . . . ."
Following the removal of the children from their home, the Division arranged for A.Z. to receive services that included parenting classes, individual therapy, psychological evaluations, and therapeutic supervised visitation. A.Z. was assessed by a forensic team for the Center for Evaluation and Counseling in December 2008 and January 2009.
The report of the forensic team's assessment stated that A.Z. was "an unmotivated and cognitively limited adult who has lacked insight into the risk issues in his home due to these limitations. He failed to view the condition of his home as problematic or to recognize that he has been neglecting his children's medical, physical, hygiene and emotional needs."
A.Z. demonstrated a "lack of motivation to parent and . . . disinterest in household responsibilities." The report also noted that A.Z. had "failed to learn that the parenting techniques he use[d] were not successful as his children continue[d] to act in the same manner." Testing revealed that A.Z. possessed a "below average to average level of knowledge of appropriate parenting in comparison to the normative population," and that he had "a tendency to have a poor understanding of children's age-appropriate capabilities, and to treat children as confidantes and peers rather than as children." The forensic team determined that A.Z. was "in need of concrete parenting education services with repeated feedback and hands-on demonstration[,]" but that the "prognosis for learning is poor." The team was concerned, however, about A.Z.'s resistance to services, and his lack of understanding "that the services are needed." The team concluded that A.Z. was a "high risk parent[] for child neglect," and was "not viewed as an appropriate candidate to supervise his wife's parenting due to his inability to recognize child neglect."
A.Z. participated in a therapeutic supervised visitation program and parenting skills training. Those programs gave him considerable insight into the problems that led to the removal of his children, and improved his parenting skills. Despite those gains, clinicians at the program attended by A.Z. expressed concern in an October 23, 2009 report that "the extent to which he is capable of making significant long term changes is questionable."
In October 2009, the Center for Evaluation and Counseling evaluated C.G. and concluded that she was an appropriate caretaker for her grandchildren, committed to providing a permanent home for them. Thereafter, Michael was placed with C.G.
Following a series of case management reviews in the Family Part, on March 15, 2010, the Division filed a complaint for guardianship of the three children. Psychological and bonding evaluations of all parties were completed. The guardianship trial took place on March 14, 15, and 16, 2011.
The Division introduced more than 100 exhibits at the trial, including reports of the psychological and bonding evaluations of A.Z., S.Z., C.G., and the children. In addition to the testimony of caseworker King, the Division presented the testimony of Sally's therapist; a psychologist from Sally's school's child study team; and a learning consultant who participated on both Sally's and Noah's schools' child study teams. Those witnesses testified about the assessments and needs of Sally and Noah, and about the programs in which the children participated. The Division, the Law Guardian and A.Z. each presented the testimony of an expert. A.Z. testified on his own behalf and called C.G. as his witness.
The Division's expert, Dr. Frank J. Dyer, and the Law Guardian's expert, Dr. Rachel Jewelewicz-Nelson, both psychologists, testified that A.Z. was incapable of parenting his children. Dr. Dyer explained that A.Z. "had a very deficient understanding of the children's psychological or special needs" because of his limited cognitive capacities, and that it was "critical that [A.Z. did] not have an understanding of his children's special needs." The doctor further explained that A.Z.'s cognitive capacity was "somewhat below the threshold where we would feel confident about entrusting full-time unsupervised care of a child to such an individual," and noted that A.Z. worked approximately seventy hours per week. Dr. Dyer concluded that when A.Z. was home, "he would really not be able to supervise [S.Z.] adequately or intervene adequately because under [his] proposed arrangement, the care of the children would devolve upon [S.Z.] due to [A.Z.'s] heavy work schedule."
Though Dr. Dyer believed that A.Z. and S.Z. loved their children, and that A.Z. had the capacity "to be very appropriate with the children," he also believed that trusting A.Z. with the responsibility of the children's care was unfeasible. A.Z. should not, in Dr. Dyer's opinion, "be considered as a viable candidate for custody of them nor should [S.Z.] be considered a viable candidate for custody of these children."
Dr. Jewelewicz-Nelson explained that A.Z. was cognitively limited, although he functioned at a much higher level than S.Z. Nevertheless, there were essentially three reasons why he was incapable of parenting the children. First, he worked seventy to seventy-five hours per week. The doctor believed that he worked those hours not only because he needed the money, but because "the external expectations and structure that are imposed on him by his work enable[d] him to function really quite well so that if he was to work fewer hours, . . . he might not function nearly as well."
Second, though attentive to the children, his cognitive level rendered him "incapable of extrapolating from one set of learned experiences to another." Consequently,
if three children make three different demands on him at the same time, he would have a hard time prioritizing which child's request is the most important and needs to be addressed first and which one could wait. If all three of them run in different directions, he would have a very hard time corralling them back and controlling them.In short, A.Z. "would be unable to ensure their safety in a number of situations."
Third, A.Z. "would have a hard time recognizing the needs of the children if they were not explicit in articulating those needs." Dr. Jewelewicz-Nelson concluded that A.Z. was incapable of providing the children with the consistency and predictability they required, and recognizing and attending to their needs.
A.Z.'s expert, Dr. James Reynolds, acknowledged that due to A.Z.'s cognitive limitations his parenting ability would be more limited than someone with a higher cognitive or intellectual level. The doctor also agreed that A.Z. functioned within a range between "low-average functioning and mild mental retardation." Consequently, there would be deficits in both A.Z.'s parenting skills and his ability to acquire new parenting behaviors. Dr. Reynolds recommended interventions "that are provided by persons who are specifically trained and experienced in working with the . . . intellectually disabled population." He concluded:
[M]y findings were that [A.Z.] . . . could adequately be a parent to his children, that he continued to require some ongoing services in that regard, but that at that time he could still be considered an appropriate parent resource and then possibly have a [kinship legal guardian] placement with regard to the maternal grandmother with whom the children had been placed.
The experts also offered opinions concerning the bonding evaluations between the children and A.Z., and the children and their maternal grandmother. Dr. Dyer testified that Noah and Michael were attached to their grandparents. Sally was somewhat equivocal, though she had adjusted very well to the home of C.G. and regarded C.G. as a person who could meet her needs, understand her, and be interested in her. Dr. Dyer explained that those were "all aspects of attachments." Sally also had "some continuing attachment to her parents," but would look to C.G. for protection and to meet her basic needs.
Dr. Dyer also testified that Noah is clearly attached to his grandmother and expresses a clear preference for remaining permanently with her. Similarly, Michael is attached to his grandmother with whom he has "pretty much been with . . . for all of his conscious memory[.]" Michael looks to C.G. "as his primary love object and the . . . figure who is going to meet his basic needs . . . and who provides him with nurturance and protection."
Dr. Dyer also explained that a failed reunification between the children and A.Z. would be catastrophic in terms of Noah's regression, and Sally would also suffer significant regression. Michael, too, would suffer. Dr. Dyer concluded that the goal for all three children should be adoption by C.G.
Dr. Jewelewicz-Nelson also concluded that the children had bonded with C.G. and that separation from her would be adverse to their interests. The doctor testified that the children's relationship with C.G. was "the most secure and the most stable." The doctor opined that terminating A.Z.'s parental rights would not cause more harm than good, and that it would be in the children's best interests to have parental rights terminated and to have them adopted by C.G. Dr. Jewelewicz-Nelson noted that two of the children had been with C.G. for two years and that the youngest, Michael, had been with her for a year. C.G. is capable of managing them, and as a result, the children have stability.
Dr. Jewelewicz-Nelson opined that the children were not as emotionally connected to their birth parents as they were to their grandmother. Consequently, the children would not suffer much harm if A.Z.'s parental rights were terminated. On the other hand, significant harm would befall the children if they were separated from their grandmother and reunified with their father. If that happened, Sally would deteriorate and regress in her functioning. Noah would probably suffer the most, because he was the most attached to C.G. and had made the most progress, and Michael would suffer the least because of the three, he had the fewest special needs.
Dr. Reynolds disagreed with the opinions of the other experts. He testified that the children had an attachment or a bond to A.Z., and looked to him for guidance, direction, support, and comforting. Dr. Reynolds also testified that terminating A.Z.'s parental rights would have a very strong negative impact on the children's ability to feel safe, secure, predictable in relationships, and trusting in relationships. Those insecurities might in turn interfere with the children's ability to subsequently develop close, secure relationships of their own outside of the family. Dr. Reynolds recommended reunification as the option that best served the interests of the children. Alternatively, he recommended a kinship legal guardianship.
C.G. appeared in response to a subpoena issued by A.Z.'s attorney. She testified that she would adopt the children if A.Z.'s legal rights were terminated. She acknowledged that she needed help caring for the children, and that her own son had problems that caused her additional stress. She also testified about the behavioral improvements that Sally and Noah had made since coming to live with her.
A.Z. testified on his own behalf. He denied physically harming the children, acknowledged Sally's and Noah's problems, and said he understood that he would have to alter his work schedule if the children were returned to him. He explained that his older two children would be in school, and that after-school care could be provided for them through 6:00 p.m. Michael could be enrolled in daycare. A.Z. intended to reduce his work schedule so that he could be home with his children when they were not in school.
On May 16, 2011, the court entered an order terminating A.Z.'s parental rights to his children. This appeal followed.
II.
A.Z. raises the following issues for our consideration:
POINT I
THE DIVISION FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT THE CHILDREN'S HEALTH AND DEVELOPMENT HAVE BEEN OR WILL CONTINUE TO BE ENDANGERED BY THE CONTINUATION OF THE PARENTAL RELATIONSHIP WITH A.Z.
THE DIVISION FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT THE CHILDREN'S HEALTH AND DEVELOPMENT WILL BE ENDANGERED BY THEIR PARENTAL RELATIONSHIP WITH A.Z.POINT II
THERE WAS NO EVIDENCE THAT A.Z. CAUSED THE CHILDREN TO BE HARMED OR SUBJECTED THEM TO A SUBSTANTIAL RISK OF HARM.
THE DIVISION HAS FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT A.Z. IS UNWILLING OR UNABLE TO ELIMINATE THE HARM FACING THE CHILDREN OR IS UNABLE OR UNWILLING TO PROVIDE A SAFE AND STABLE HOME FOR THE CHILDREN.
POINT III
THE DIVISION FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT IT MADE REASONABLE EFFORTS TO PROVIDE SERVICES TO HELP A.Z. CORRECT THE CIRCUMSTANCES WHICH LED TO THE CHILDREN'S REMOVAL.
THE DIVISION COULD HAVE PROVIDED SERVICES TO THE DEFENDANT SIMILAR TO THOSE PROVIDED TO THE CHILDREN'S GRANDMOTHER BUT FAILED TO DO SO.POINT IV
THIS CASE RQUIRED A TAILORED RESPONSE TO THE DEFENDANT'S NEEDS.
THE COURT BELOW ERRED IN FINDING THAT TERMINATION WOULD NOT DO MORE HARM THAN GOOD AND THE DIVISION FAILED TO SHOW THAT A DELAY OF PERMANENT PLACEMENT WOULD CAUSE OR ADD TO THE HARM.
BASED UPON THE TESTIMONY REGARDING THE BONDING BETWEEN THE CHILDREN AND A.Z. AND [C.G.], TERMINATION OF A.Z.'S PARENTAL RIGHTS WILL DO MORE HARM THAN GOOD.
IN ADDITION TO THE ISSUES SURROUNDING BONDING[,] THE BALANCING OF HARM TO THE CHILDREN IN OTHER RESPECTS MUST BE EXAMINED.
Our standard of review in a termination of parental rights case is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). A reviewing court must defer to the family court's findings of fact and conclusions of law based on those findings. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007); N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 433 (App. Div. 2009). We also defer substantially to the trial court's assessment of expert evaluations and credibility determinations. In re Guardianship of DMH, 161 N.J. 365, 382 (1999). "[I]n reviewing the factual findings and conclusions of a trial judge, we are obliged to accord deference to the . . . court's credibility determination[s] and the judge's 'feel of the case' based upon [the court's] opportunity to see and hear the witnesses." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006) (quoting Cesare v. Cesare, 154 N.J. 394, 411-13 (1998)), certif. denied, 190 N.J. 257 (2007).
We also recognize the special expertise of those judges assigned to the Family Part. Cesare, supra, 154 N.J. at 412-13. "We will not disturb the family court's decision to terminate parental rights when there is substantial credible evidence in the record to support the court's findings." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008). "Only when the . . . court's conclusions are so 'clearly mistaken' or 'wide of the mark' should an appellate court intervene and make its own findings to ensure that there is not a denial of justice." Ibid. (quoting G.L., supra, 191 N.J. at 605).
When seeking termination of parental rights under N.J.S.A. 30:4C-15.1(a), the Division has the burden of establishing the following standards by clear and convincing proof:
(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.
The four subsections of the statute are "not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). The considerations involved are extremely fact-sensitive and require particularized evidence that addresses the specific circumstances present in each case. Ibid.
A.Z. first argues that the Division failed to prove the first two statutory prongs by clear and convincing evidence. To establish the first prong, the Division was required to "'demonstrate harm to the child by the parent' and . . . '[h]arm, in this context, involves the endangerment of the child's health and development resulting from the parental relationship'." N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 170 (2010) (quoting K.H.O., supra, 161 N.J. at 348). Although a particularly egregious single harm can trigger the standard, "the focus is on the effect of harms arising from the parent-child relationship over time on the child's health and development." Ibid. (internal quotation marks and citations omitted).
The inquiry under the second prong
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. Alternatively, under this second criterion, it may be shown that 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.
[K.H.O., supra, 161 N.J. at 348-49 (citations omitted).]
There is virtually no dispute that S.Z.'s indifference to, and lack of supervision of the children, caused them harm and exposed them to additional harm. Each of the boys sustained at least two second-degree burns. There was evidence that their sister had inflicted some of the burns on one occasion; Noah and Michael may have sustained the other burns by coming into contact with the kitchen stove. S.Z. made no attempt to keep the boys from entering the kitchen, except by putting up a gate that Noah easily pushed aside. The Division clearly and convincingly established that both boys had suffered second-degree burns as a direct result of S.Z.'s lack of supervision. Further, the condition of the home, combined with S.Z.'s lack of supervision, were adverse to the children's hygiene and exposed them to additional physical and developmental harm.
Indisputably, A.Z. was not present when the children sustained their second-degree burns. Nonetheless, A.Z. failed to recognize the children's daily needs, failed to recognize that leaving them in the care of S.Z. posed significant risks of physical and developmental harm, and failed to make any attempts to remediate the children's harmful home environment. As a consequence, the children were living in dirty conditions without appropriate supervision. The danger posed to the children was evidenced by the burns the boys sustained, either accidentally or at the hands of their sister; and by Sally wandering off. A.Z. had a parental responsibility to provide a home in which the children were not in constant danger. See N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 282 (2007). A.Z.'s failure to appreciate and remediate the harmful home environment resulted in "harm" to the children within the meaning of the first statutory prong. See ibid.
The Division also established the second statutory prong by clear and convincing evidence. A.Z. had shown improvements in his parenting skills as the result of the therapeutic services, parenting classes, and other services that were made available to him. Nevertheless, it took him a considerable amount of time before he was willing to concede that S.Z. could not properly parent and supervise the children. Both Dr. Dyer and Dr. Jewelewicz-Nelson opined that due to A.Z.'s cognitive limitations, it was unfeasible to trust him with the responsibility of the children's care, and that he would be unable to ensure their safety. Even A.Z.'s own expert was equivocal as to whether A.Z. could properly parent the children without a kinship legal guardianship. In view of those circumstances, the court justifiably rejected A.Z.'s contention that he could eliminate the potential harm to the children by becoming their primary provider with the assistance of services made available through the Division. The court's determination that the Division had proved the second prong was supported by clear and convincing evidence.
Further, the testimony of Dr. Dyer and Dr. Jewelewicz-Nelson amply establish the bonds the children had developed with C.G., and the harm that they would suffer if removed from her custody and care. Stated differently, the Division produced clear and convincing evidence not only that A.Z. was incapable of providing a safe and stable home for the children, but also that removing them and thereby delaying their permanent placement would cause them to suffer significant and likely irreparable harm.
We also reject A.Z.'s argument that the Division did not prove the third statutory prong because it did not make reasonable efforts to provide services to help A.Z. correct the circumstances that led to the children's removal. "Under the third prong, [the Division] must make reasonable efforts to provide services to help the parents correct the circumstances that led to the child's placement outside the home." Id. at 281 (citing N.J.S.A. 30:4C-15.1(a)(3)). The Division arranged for A.Z. to participate in a wide variety of services beginning almost immediately after the children were removed from his and S.Z.'s care and custody. The extent that A.Z. benefited from those services was evident from the testimony of the Division's caseworker and from the testimony of the three experts. Yet, two of the experts believed that, due to his cognitive deficits, A.Z. was incapable of parenting the children notwithstanding the benefits he had received from the services provided to him. The experts adequately explained their reasons for concluding that A.Z.'s inability to parent the children would not substantially improve.
Finally, the court's conclusion that terminating A.Z.'s parental rights would not do more harm than good is amply supported by the testimony of two experts. Although A.Z.'s expert's opinion differed from those of the other two experts, the court found credible the opinions of the experts presented by the Division and the Law Guardian. We find no reason to disturb that credibility determination.
The trial court comprehensively reviewed all of the trial evidence and concluded that the Division had established the four statutory criteria by clear and convincing evidence. The court's opinion analyzes the statutory requirements and is amply supported by clear and convincing evidence in the record.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION