Opinion
DOCKET NO. A-3208-12T1
11-08-2013
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. C.M., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF A.M. AND I.M., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Adrienne Kalosieh, Designated Counsel, on the briefs). John J. Hoffman, Acting 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 A.M. and I.M. (Tracye Wilson Elliot, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson, Lihotz and Hoffman.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-146-12.
Joseph E. Krakora, Public Defender, attorney for appellant (Adrienne Kalosieh, Designated Counsel, on the briefs).
John J. Hoffman, Acting 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 A.M. and I.M. (Tracye Wilson Elliot, Designated Counsel, on the brief). PER CURIAM
Defendant C.M. (Carol) appeals from the Family Part order terminating her parental rights to her then twelve-year-old son, A.M. (Adam), and her then nine-year-old daughter, I.M. (Ida). After reviewing the record in light of the contentions advanced on appeal, we affirm, substantially for the reasons stated by Judge Bernadette DeCastro in her cogent written opinion issued on February 19, 2013.
For purposes of this opinion, we have given fictitious names to the appellant and the children at issue.
On August 28, 2012, S.K., the father of Ida, made an identified surrender of his parental rights to E.E., the children's current caretaker who wants to adopt them. J.D., the putative father of Adam, refused to complete a paternity test or participate in any court proceedings, and the court terminated his parental rights to Adam in the judgment under review. Neither S.K. nor J.D. are parties to this appeal. Additionally, Carol has two other children who are not in her care: N.G., born in 1996, who lives with her paternal grandmother, and L.M., born in 2006, who lives with a family friend. These children are not parties to this case.
I.
We derive the following facts from the trial record. Between January 2001 and September 2009, the Division of Youth and Family Services received five referrals about Carol and her family, all alleging neglect. These reports concerned the children's poor attendance at school, poor personal and dental hygiene, and inadequate medical care. In February 2008, Carol admitted she had problems with Adam's dental care; he had not seen a dentist in several years because she did not have Medicaid.
On June 29, 2012, the Governor signed into law A-3101, which reorganizes the Department of Children and Families, which includes the renaming of the Division as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.
On September 15, 2009, Carol's friend, T.J., informed the Division that Carol was giving her custody of Adam and Ida because Carol did not have stable housing or employment. T.J. explained the children had been living with her since August 2009, and she did not know where Carol was living. She further stated that Carol visited the children about once a week. After investigating this referral, and locating Carol, the Division developed a case plan for Carol, including a written list of basic necessities Carol needed to provide for her family. By December 16, 2009, Carol had not yet addressed any items from the list.
On March 17, 2010, the Division received a referral alleging that Carol had been homeless for the last year and appeared to be developmentally disabled. The referral further reported a severe truancy issue with the children.
Because of this report, on March 18, 2010, a Division investigator visited Carol at her cousin's apartment, where she had been residing. Prior to staying with her cousin, Carol and her children resided with her father until he was evicted. Carol informed the investigator that they never had their own apartment; in fact, she and her children frequently moved around to relatives' apartments. She further stated she was unemployed and received welfare in the amount of $322 and food stamps in the amount of $475. Carol also told the investigator she was receiving Supplemental Security Income (SSI) for a learning disability.
The investigator informed Carol that the Division was concerned about Adam and Ida missing school. Carol acknowledged they missed a lot of school and attributed it to her lack of stable housing. The investigator determined that Adam and Ida shared a mattress on the floor of an apartment leased by Carol's cousin. Based upon Carol's candid statements regarding her living situation, the Division became concerned about her ability to get her children to school or otherwise provide their day-to-day needs, including stable housing. Additionally, both children exhibited poor hygiene, needed to see a dentist immediately, and were overdue for immunizations.
Shortly after this visit, Carol's cousin asked her to move out. Carol and her children moved back with her father, who was then living in senior citizen housing. Carol stated she was unable to receive temporary rental assistance because she did not have a recent eviction notice. Carol further noted that she did not have enough cash for a security deposit; consequently, she and her children had no other option but to stay with her father in his senior housing, even though non-residents were not permitted to stay there.
On April 20, 2010, the same reporter from the March 17 referral informed the Division that Adam was still missing school. At this point, the Division substantiated the allegations of educational neglect. The school also informed the Division that both children were in danger of failing because of their substantial absences.
On June 1, 2010, the Division referred Carol to Charles E. Daly, Ph.D. for a psychological evaluation. After interviewing Carol and administering several diagnostic tests, Dr. Daly reported that "[Carol] is extremely deficient in cognitive potential, i.e. her ability to learn and organize data." He stated that Carol is "unable to take care of her children at this point in time and it is quite amazing that nothing serious has happened to them to date." Dr. Daly further indicated his belief that Carol was "depressed, cognitively impaired," had a thought disorder, and kept so much to herself that "she virtually lives a schizotypal existence." Carol admitted in the evaluation that she "can't take care of [the] kids without any help." Additionally, Carol claimed to hear voices and speak to people she sees "in ghost form". Notably, she could not tell Dr. Daly how much money she made each year, even though it was a fixed amount; she did state that "[e]very time I get it, I want to spend it." Dr. Daly determined she had "no conceptualization of money and how to use it properly for her and her family's well-being." Dr. Daly concluded that "the likelihood of [Carol] reaching a level of independence where she can care for children without a strongly structured support system is little to none."
On June 18, 2010, Larry E. Dumont, M.D. completed a psychiatric evaluation of Carol and noted she had some underlying developmental delays. He also expressed concerns about Carol's ability to provide for her children on a consistent basis, especially considering her unstable living situation and limited funds. Dr. Dumont further opined that the children "need a more structured and consistent custodial situation[.]"
On June 29, 2010, the Division filed a complaint seeking custody of Adam and Ida pursuant to N.J.S.A. 9:6-8.21 and N.J.S.A. 30:4C-12. At a hearing held that same day, the court determined that keeping the children in the custody of Carol would "be contrary to [their] welfare . . . due to [Carol] being developmentally delayed and not being able to [exercise] appropriate judgment to ensure the safety of the children." The court granted the Division legal and physical custody of Adam and Ida, who were then placed in foster care.
On June 30, 2010, Division staff met with Carol and explained why her children were removed. They discussed housing instability, hygiene, emotional neglect, money management, and Carol's developmental disability; they further explained the Division's expectations and services, with the goal of reunification. The Division told Carol they would assist with referrals to proper agencies and emphasized the importance of complying with all services.
On July 16, 2010, the Division met with Carol to help her apply to receive services from the Division of Developmental Disability (DDD) and the Division of Vocational Rehabilitation (DVR). The Division contacted Jersey City Medical Center (JCMC) to assist with Carol's mental health services. Carol told the Division she made an appointment with JCMC for August 30, 2010. On July 19, 2010, Carol received a letter indicating her scheduled appointment with DVR to determine her eligibility for services would be on August 25, 2010; however, Carol failed to attend this appointment. Her appointment was rescheduled for September 30, 2010, which she also missed.
On August 17, 2010, DDD notified Carol of her eligibility for services, including housing assistance. That same day, a Division caseworker informed Carol she would be assigned a case manager within thirty days. After several requests from the Division and DDD, Carol refused to meet with the caseworker. As a result, she never signed a DDD housing application.
Between June 2010 and November 2011, Adam and Ida were placed in five different foster homes. Adam has a chronic history of bed-wetting which proved difficult for some caretakers to handle. On August 3, 2010, the children had a pre-placement comprehensive health evaluation which indicated they both had poor oral hygiene and delayed immunization. During this time, the Division evaluated three of Carol's relatives as possible placements for the children; all were ruled out by the Division on August 6, 2010.
Adam was diagnosed with a learning disability and has an Individualized Education Plan at school. Alvaro Gutierrez, M.D., a child psychiatrist, evaluated Adam because of inappropriate emotions, poor academic performance, and behavior problems which included threatening another child with a knife. Dr. Gutierrez noted that Adam "comes from a chaotic family environment"; his diagnoses included post-traumatic stress disorder and oppositional defiant disorder. Ida, additionally, had a behavioral contract at school for acting out in the past. Consequently, both children receive in-home therapy and have mentors to assist them with their issues.
At a dispositional hearing on September 21, 2010, the court ordered Carol to comply with her DDD and DVR services, as well as referred outpatient treatment and mental health services. At the same hearing, Carol waived her right to a fact-finding hearing and stipulated to committing educational neglect by allowing Adam to miss fifty-nine days from school.
Over the next eighteen months, the court entered numerous orders requiring Carol to comply with DDD and DVR services, including outpatient treatment and parenting skills training. During this period, Division workers continually provided Carol with information about DDD and DVR and reminded her to follow up with the programs' requirements. Nevertheless, Carol admitted she was not very active with her DDD or DVR case plans.
On February 2, 2011, Carol completed an application for St. Jude's Oasis Permanent Supportive Housing (St. Jude's), a fully supportive housing community capable of providing Carol therapy and skills training; however, her efforts to enter the program proved unsuccessful when she failed to comply with the program's conditions. Ultimately, both DDD and DVR discontinued Carol's services for noncompliance. Carol reported to caseworker that she did not comply with DDD and DVR services because of the stigma attached to the programs. Carol also never followed through with the Division-recommended and court-ordered mental health services at JCMC.
Carol was also referred to parenting classes with C-Line Community Outreach Services and supervised visitations with Catholic Charities. She completed the classes and obtained a certificate of completion on August 4, 2011; however, it was recommended that she continue taking these classes. Thereafter, Carol was discharged for missing two days and failing to respond to the program's attempts to contact her.
On September 22, 2011, Frank Dyer, Ph.D. conducted psychological evaluations of both Adam and Ida. Dr. Dyer concluded that Adam "is mildly depressed, angry, confused, and insecure." He recommended the Division "provide [him] with security, structure, nurturance, and stability in a permanent placement[.]" Regarding Ida, Dr. Dyer concluded that despite her strong ties to Carol, "reunifying her with [Carol] would expose her to an unacceptably high risk of harm" but noted if she were to be "adopted by a mature, competent individual who responded to her distress and emotional needs in an appropriate manner, the harm caused by severing her relationship with her birth mother would be mitigated." Dr. Dyer also conducted a psychological evaluation of Carol and concluded that her "mild mental retardation disqualifies her as a caretaker for any child, except under close supervision and with a great deal of external support." He further opined that "her inadequate grasp of her problems, and her lack of appreciation of the needs of her children all stand as insurmountable obstacles to reunifying her with either child." Finally, he concluded that Carol's "prognosis for positive change resulting in adequate parenting capacity is extremely poor."
On December 15, 2011, Adam and Ida were placed in the home of E.E., where they remain to date. Caseworker Tania Green testified that E.E. meets all the children's needs. The children also refer to E.E. as "mommy." E.E. has been active in the children's lives, available to their mentors, and allowed Carol to liberally visit them; she also helped set Adam up with the Child Study Team at school.
On March 6, 2012, Carol reported to her caseworker that she had applied for and obtained Section 8 housing. In October 2012, however, Carol had to move to a new apartment when management learned Carol allowed people, who were not on the lease, to stay in her apartment.
On March 28, 2012, the Division filed a complaint for termination of parental rights. At a hearing on April 3, 2012, Judge DeCastro again ordered Carol to comply with the previously-ordered mental health, DDD, and DVR services. The judge also ordered the Division to assist Carol with a security deposit if necessary.
On September 26, 2012, the Division's expert, Barry Katz, Ph.D., conducted a bonding evaluation of Adam, Ida, and E.E. According to Dr. Katz, Adam said he would feel "good" about being adopted by E.E. and both children expressed a "desire for permanency." Finally, while they both related to Carol as their biological mother during the bonding evaluation, Dr. Katz concluded they did not identify Carol as someone who could provide for them. Dr. Katz based this conclusion on his interviews with the children where they spoke positively about continuing to reside with E.E.
The guardianship trial took place over four days, starting on November 8, 2012. During trial, the Division presented testimony of the caseworkers, and Dr. Dumont and Dr. Katz; the defense did not present any witnesses. The Law Guardian supported termination of Carol's parental rights. Following the trial, Judge DeCastro issued her written opinion concluding that the Division had proved, by clear and convincing evidence, that the best interests of Adam and Ida supported termination of Carol's parental rights, so that they could be adopted by their foster parent, E.E.
II.
Parents have a fundamental constitutional right to raise their children, N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 102 (2008), but this right is not absolute. In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). "[T]he constitutional protection surrounding family rights is tempered by the State's parens patriae responsibility to protect the welfare of children." Ibid. The State has the responsibility to protect minor children from serious physical or emotional harm. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986) superseded on other grounds by, In re Adoption of Children by G.P.B., 161 N.J. 396, 404 (1999). This responsibility, in some cases, requires that the parent-child relationship be severed. Ibid.
The best interests of the child is the cornerstone of terminating parental rights. See K.H.O., supra, 161 N.J. at 346. Consequently, "[t]he burden falls on the State to demonstrate by clear and convincing evidence that the natural parent has not cured the initial cause of harm and will continue to cause serious and lasting harm to the child." In re Guardianship of J.C., 129 N.J. 1, 10 (1992). Thus, when a parent challenges the termination of his or her parental rights, the court is required to determine if he or she can care for the child without causing recurrent harm. K.H.O., supra, 161 N.J. at 348. Additionally, "[t]erminating parental rights must be used with caution and care, and only in those circumstances in which proof of parental unfitness is clear." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 447 (2012). In striking a balance between a parent's constitutional rights and the children's fundamental needs, courts engage in the four-part guardianship test articulated in A.W., supra, 103 N.J. at 604-11, and codified as N.J.S.A. 30:4C-15.1(a):
a. The division shall initiate a petition to terminate parental rights on the grounds of the "best interests of the child" pursuant to subsection (c) of section 15 of P.L. 1951, c. 138 (C. 30:4C-15) if the following standards are met:
(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).]
In their application, the four factors above "'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. T.S., 202 N.J. 145, 167 (2010) (quoting N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494,506-07 (2004)).
Our scope of review of a trial court's termination of parental rights is limited to "determin[ing] whether a trial court's decision . . . was based on clear and convincing evidence supported by the record before the court." N.J. Div. of Youth and Family Servs. v. P.P., 180 N.J. 494, 511 (2004). We will not disturb a trial court's factual findings "unless they are so wholly unsupportable as to result in a denial of justice." Ibid. (quoting In re Guardianship of J.N.H., 172 N.J. 472).
III.
On appeal, Carol claims that the trial judge erred in terminating her parental rights because the Division failed to satisfy its burden of proof with regard to all four prongs of the best interests test. We do not agree.
With regard to prong one, Carol argues that the trial judge erred by finding that Adam's and Ida's safety, health or development has been or will continue to be endangered by the parental relationship. Carol asserts that the children never suffered any actual harm.
The first prong requires the Division to consider whether the parent has harmed or is likely to continue to harm the child. N.J.S.A. 30:4C-15.1(a)(1). The harm "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. This standard may be triggered by an egregious single or isolated harm, or by an accumulation of harms over time. Id. at 348. Furthermore, the absence of physical abuse alone is not conclusive because the court also must consider the potential for serious psychological harm to the child. In re Guardianship of R.G. and F., 155 N.J. Super. 186, 194 (App. Div. 1977).
Courts, however, need not wait to act until a child is actually irreparably impaired by parental inattention or neglect. The inability of a parent to provide any nurturing or care for his or her child for a prolonged period constitutes harm under the standard. K.H.O., supra, 161 N.J. at 356. The fact that a parent may be morally blameless is not a sufficient reason to tip the scales in his or her favor. N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 438 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002).
Contrary to Carol's contentions, there was sufficient credible evidence in the record to support the trial judge's conclusion that, under these standards, Adam and Ida suffered harm from the parental relationship. The judge found that because Carol "has failed to complete any of the Division's services which she knew were required for reunification, she has kept her children in a non-permanent foster care setting which has caused the children emotional and psychological harm."
Here, while there was no physical abuse, Carol's mental disability created an environment in which she was unable to adequately care for her children. Carol's lack of stable housing, financial instability, untreated developmental and psychological disorders, and failure to comply with court-ordered services caused the children harm by requiring their placement, and subsequent placements, in foster care.
Although Carol argues that she currently has a home and thus met the Division's requirement to obtain a safe and stable environment for the children, the Division contends there is no reasonable basis to conclude Carol will retain her housing. Dr. Daly and both of the Division's testifying experts, Dr. Dumont and Dr. Katz, believe it is unlikely that Carol will maintain stable housing without first following through with the recommended services.
Additionally, both experts recommended termination of Carol's parental rights because she is incapable of complying with bureaucratic requirements due to a high functioning autistic disorder. The doctors both indicated these disorders inhibit Carol's ability to recognize the problems with her parenting which will prevent her from making the necessary changes to reunify with her children. Consequently, we are satisfied the record clearly and convincingly demonstrates that Carol is unable to accept and comply with required individual therapy and the services from DDD and DVR. Notably, Carol knew she had to complete the Division's services to reunify with her children; because she refused to partake in the services, she caused her children to endure placement in numerous non-permanent foster care homes.
The ultimate consideration is that a "child has a right to live in a stable, nurturing environment and to have the psychological security that his [or her] most deeply formed attachments will not be shattered." F.M., supra, 211 N.J. at 453. Both experts concluded that psychologically, the children will likely sustain emotional harm by staying in foster care while they wait for Carol to comply with the Division. Furthermore, Carol's refusal to take her children to school on a consistent basis has been harmful to their welfare.
Under these circumstances, the health and development of Adam and Ida would be jeopardized if they returned to Carol. Thus, the trial judge correctly held that the Division sustained its burden by clear and convincing evidence as to the first prong. See A.G., supra, 344 N.J. Super. at 436 (holding there was sufficient evidence to support court's finding under first prong that mother was unable to protect and care for the child on a daily basis due to mental illness); Guardianship of R.G. and F., supra, 155 N.J. Super. at 194 (affirming termination of parental rights where parents' mental illnesses created "an environment in which they [could not] adequately care for and raise the children.").
The second prong requires the Division to show that the parent is unable or unwilling to eliminate the harm facing the child. N.J.S.A. 30:4C-15.1(a)(2). The focus of this inquiry is "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." K.H.O., supra, 161 N.J. at 348. Alternatively, the State may show "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." Id. at 348-49. "The question is whether the parent can become fit in time to meet the needs of the child." N.J. Div. of Youth & Family Servs. v. T.S., 417 N.J. Super. 228, 244 (App. Div. 2010), (citing J.C., supra, 129 N.J. at 348), certif. denied, 205 N.J. 519 (2011).
Carol argues that she currently has stable housing and can take care of her children; however, her history of unstable housing and inability to participate in services to help her maintain housing proves otherwise. Specifically, on November 17, 2010, Carol asked the Division for help to be placed in a shelter. However, Carol had already been referred to DDD housing and St. Jude's Oasis housing. Carol admitted she failed to follow the requirements for placement in either of the housing services. When Carol requested help, a Division caseworker helped admit her to St. Lucy's shelter. Although, the Division and the shelter told Carol that she needed to stay there for forty-five days to obtain more permanent housing with St. Jude's Oasis, Carol was unable to meet this requirement and was discharged for failing to stay at the shelter. This is one of the many examples of Carol's inability to take advantage of the Division's services, to help herself and her children, and to eliminate further harm to her children.
Both Dr. Dumont and Dr. Katz agreed that it is unlikely Carol will be able to maintain stable housing for her children. They explained that without the Division's services, supportive housing, or a combination of her own housing and consistent supportive therapy, Carol will be unable to care for her children. Both noted that her history with the Division's services further support their conclusion that Carol cannot maintain a permanent family situation, which the children need for their physical and emotional health.
There is no evidence in the record to show that Carol had the mental status sufficient to ever provide a safe and stable home for Adam and Ida. See K.H.O., supra, 161 N.J. at 353 (holding that drug-addicted mother's continuing inability to care for her child or provide a safe and stable home met standards of parental unfitness). Moreover, the evidence supports the judge's conclusion that the delay in permanent placement caused by Carol's inability to assume a parental role would harm the children. Id. at 354. The expert evaluations established that Adam and Ida have a bond with E.E., and that separation from their foster parent would cause the children further harm. See N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 283-85 (2007) (holding where there was no evidence that the father's situation was improving or would improve in the future, and where the father had failed to create a stable home, the delay in permanent placement would add to the harm). Therefore, the judge's finding that the second prong of the statutory test was satisfied by clear and convincing evidence is fully supported by the record.
Next, Carol contends the evidence presented at trial was insufficient to support the trial judge's finding that the Division made reasonable efforts to provide adequate services and that it considered alternatives to termination. We disagree.
The third prong requires the Division to make reasonable efforts to provide services to assist the parents to correct their circumstances, and to consider alternatives to parental termination. N.J.S.A. 30:4C-15.1(a)(3). A court evaluates, on an individual basis, the efforts undertaken by the Division to reunite a family. In re Guardianship of D.M.H., 161 N.J. 365, 390 (1999). These efforts may include encouraging an ongoing parent-child relationship and regular visitation. Id. at 392-93. "Consistent efforts to maintain and support the parent-child bond are central to the court's determination." Id. at 393.
The record supports the judge's findings that the Division made reasonable efforts to help Carol correct the circumstances that led to the placement of Adam and Ida in foster care. The problem was that Carol did not accept or comply with the services the Division made available. The Division attempted to assist Carol in finding housing, referring her to housing programs through DDD and St. Jude's. The Division repeatedly attempted to help Carol with DDD and DVR referrals and applications assistance. The Division further helped Carol apply for charitable mental health services from JCMC, held numerous family team meetings, arranged for supervised visitation, and provided psychological evaluations to further help her reunify with her children. However, Carol never accepted or complied with these services.
Additionally, Carol admitted during many family team meetings that she failed to do the work required to reunify with her children. Although the Division facilitated appropriate visitation by providing therapeutic supervised visitation through Catholic Charities and also liberal supervised visitation with E.E., the foster parent, Carol only attended the required visitations and did not see her children liberally at E.E.'s home. Thus, the record contains clear and convincing evidence to support the trial judge's finding that the Division had made reasonable efforts to assist Carol and that there were no alternatives to the termination of her parental rights.
The fourth prong requires the court to determine whether termination of parental rights will not do more harm than good to the child. N.J.S.A. 30:4C-15.1(a)(4). This prong "serves as a fail-safe against termination even where the remaining standards have been met." 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." E.P., supra, 196 N.J. at 108.
The ultimate determination under the fourth prong is "whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with [the] natural parents than from the permanent disruption of [the] relationship with [the] foster parents." K.H.O., supra, 161 N.J. at 355. Weighing the potential harm from terminating parental rights against separating the child from foster parents requires expert testimony on the strength of each relationship. Ibid. When a termination action is based on parental unfitness rather than bonding, the proper inquiry under the fourth prong focuses on the child's need for permanency and the parent's inability to care for him or her in the foreseeable future. N.J. Div. of Youth & Family Servs. v. B.G.S., 291 N.J. Super. 582, 593 (1996).
Here, the trial judge found that termination of parental rights would not do more harm than good and concluded that it was in Adam's and Ida's best interests to remain in E.E.'s care. There was ample evidence in the record to support this finding. Dr. Katz said that bonding evaluations indicated a "dual bond" between the children and Carol and E.E., their foster mother; although the children recognize that Carol is their mother, they do not identify her as the person who cares for them. Instead they look to E.E. for nurturing and support. Importantly, Adam stated that he had good feelings about E.E. adopting him and Ida also displayed a strong bond and attachment to E.E.
Based on both the psychological and bonding evaluations, Dr. Katz recommended terminating Carol's parental rights in favor of adoption of both children by E.E. Dr. Katz noted that should Adam or Ida experience any harm from the termination of Carol's rights, E.E. would be able to mitigate the harm through her parenting ability. Dr. Katz came to this conclusion because E.E. had provided Adam and Ida with stability, and a safe and secure home, which Carol failed to provide. Finally, Dr. Dumont and Dr. Katz agreed that Adam and Ida will be further harmed if they remained in the non-permanent foster care setting. "[W]e rely on the trial court's acceptance of the credibility of the expert's testimony and the court's fact-findings based thereon, noting that the trial court is better positioned to evaluate the [expert] witness' credibility, qualifications, and the weight to be accorded [the] testimony." In re Guardianship of D.M.H., 161 N.J. 382.
The recommendations of Dr. Dumont and Dr. Katz would enable E.E., who wants to adopt both children, to continue to provide a stable home for Adam and Ida. Therefore, the judge's finding that the fourth prong of the statutory test, that termination of Carol's parental rights would not cause the children more harm than good, was satisfied by clear and convincing evidence is fully supported by 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