Opinion
DOCKET NO. A-3354-13T4 DOCKET NO. A-3355-13T4
04-13-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. E.D. and J.D., SR., Defendants-Appellants. IN THE MATTER OF THE GUARDIANSHIP OF R.V., K.V., C.V., J.D., JR., A.D., G.D., and T.D., minors.
Joseph E. Krakora, Public Defender, attorney for appellant E.D. (Albert M. Afonso, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant J.D., Sr. (Carol A. Weil, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Victoria A. Galinski, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for the minor respondents (Noel Devlin, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes, Ashrafi, and O'Connor. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FG-19-0023-13. Joseph E. Krakora, Public Defender, attorney for appellant E.D. (Albert M. Afonso, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant J.D., Sr. (Carol A. Weil, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Victoria A. Galinski, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for the minor respondents (Noel Devlin, Assistant Deputy Public Defender, on the brief). PER CURIAM
E.D. and J.D., Sr., appeal from the judgment of the Family Part terminating their parental rights, respectively, to five and four children. We affirm.
From 1997 to 2010, defendant E.D. (mother) gave birth to nine children with three different biological fathers. Defendant J.D., Sr., (father) is the biological father of the four youngest children, now four to eight years old. The oldest of mother's nine children, now almost eighteen, is not named in this case. Mother's ten-year-old child has been in the custody of his biological father since 2007 and is also not part of this case. Of the seven children named in this case, the court did not terminate mother's parental rights to the two oldest ones, but they remain in foster homes and in the custody of the Division of Child Protection and Permanency (the Division).
From 1997 to 2012, the Division received more than fifty referrals about the family. This guardianship case resulted from the Division's removal of the children from the family's Sussex County home in May 2012 after numerous efforts to address the filth, squalor, and chaos in which they lived. Despite the Division's efforts, the parents were unable and unwilling to improve the conditions of the children's lives.
The Division's first involvement with mother occurred in 1997 shortly after the birth of her oldest child. The Division (then known as DYFS) received a referral that mother abused alcohol and marijuana in the presence of the baby. That first referral was not substantiated. A 2003 referral was substantiated that mother and the now-deceased father of four of the children engaged in domestic violence in the home.
In 2006, the five children born through that time were removed from the home and placed by order of the Family Part in the custody of the Division. Mother admitted she could not care for the five children. In May 2007, the first of the children born to defendants in this guardianship case was also removed and placed in the custody of the Division. The children remained in the Division's custody until October 2007, when the case was terminated. The youngest child was reunited with mother and father while the older ones were placed in the custody of their biological fathers. By 2009, mother had given birth two more times, and three of the previously removed children were returned to her custody. After the biological father of four of the children died in 2011, the last of the children among the ones identified in this case was also returned to defendants' custody.
In March 2010, the Division prepared a case plan for the family after receiving allegations that there was physical abuse in the home. After visiting the home, the Division helped the family purchase furniture to accommodate bedding for all the children and eventually facilitated the family's move into a larger home. Despite counseling provided through Family Preservation Services, mother and father still struggled with their parenting duties and with establishing rules and order in the home.
In April 2011, a Division worker made an unannounced visit to the home and discovered unsanitary conditions. Many rodents were kept as pets in cages, discarded food and beverage containers were on the floor, and clothes and clutter were thrown around the home. The Division arranged for family team meetings, but mother cancelled the initial appointment.
In May 2011, when Division workers arrived at the home, the kitchen was littered with trash and its table was unrecognizable under numerous food boxes. The master bedroom had a pile of laundry several feet high and as large as a full-sized bed. In addition to a cat, the home was littered by rodents. Mother insisted she did not want services offered by the Division and avoided family team meetings.
In June 2011, a Division worker observed that windows leading to a deck roof were accessible to the children, and at least one room had food, plates, clothes, books, and toys strewn about. By this time the Division had also provided the family with assistance through Family Intervention Services.
In visits to the home in July and August 2011, Division workers observed that the children had poor hygiene and used inappropriate language, that there were at least twenty-four cages in the home (each containing multiple rodents), and that rodent feces covered the floor of the toy room. Rooms occupied by the children were cluttered and smelled bad. At least one bed lacked sheets.
In September 2011, father showed the Division worker a photograph of the children swimming in flood waters in their backyard. He did not understand the danger of this activity to the young children. Also, a roof leak was creating mold in the home. The children's bedrooms were cluttered and covered with food and clothes, and again mattresses lacked sheets. A dirty diaper was left on the bathroom floor. A baby's crib smelled so bad of vomit and spilled food that the Division worker could not get near it for more than a few moments. Defendants declined to clean the crib. The baby's diaper had not been changed in approximately twelve hours, and the baby had diaper rash. There was no diaper cream in the home.
Later in the fall of 2011, three of the children were discovered to have lice. In December 2011, the oldest child told a Division worker that dinner consisted of crackers with ranch dressing and cheese and that mother did not cook. The children resorted to eating whatever they could find in the kitchen. Parts of the home still smelled of body odor and other foul smells.
After twenty-seven counseling sessions, Family Intervention Services reported that mother and father struggled with addressing minor crises in the home and properly communicating with each other and the children. Also, drug paraphernalia had been found in the home.
In January 2012, two of the younger school-age children told Division workers that neither parent helped them get ready for school. They had no clean clothes because the laundry was not done, and one of the children only bathed once per week. He had eaten a cheese sandwich for dinner the night before. At this time, the Division also became aware that two other adults unrelated to the children were living in the home.
In the early part of 2012, the Division arranged psychological evaluations of the parents and some of the children by clinicians at the Center for Evaluation and Counseling (CEC). Mother refused to take responsibility for the family's problems, instead claiming that the children were lying. She blamed the children for the Division's involvement with the family. She admitted, however, that she spent long periods locked in her room and away from the children. She acknowledged having bipolar disorder, a personality disorder, a conduct disorder, depression, anxiety, fibromyalgia, and a history of drug abuse.
The clinician who evaluated father found him to be immature and irresponsible. Father worked part-time collecting shopping carts at a store. He had anger management problems and denied the children were neglected. He refused to recognize the problems plaguing the family and claimed the children bathed daily and the home was "spotless." The clinician concluded that father did not contribute to the welfare of the family.
The twelve-year-old girl had poor hygiene and was obese, lethargic, depressed, and withdrawn. She confirmed that unrelated adults lived in the home. The eleven-year-old boy had poor hygiene and smelled strongly of body odor. The boy said mother spent a lot of time in bed when she was not feeling well and mother and father often yelled at each other. The child's life had been affected by instability and domestic violence. He had tendencies to be impulsive and unpredictable, and to outbursts of explosive anger.
The six-year-old boy also smelled of body odor and had severe bad breath because he did not brush his teeth very often. He was emotionally needy and starved for attention. He was in a special education program at school and possibly had an auditory processing disorder. He suffered emotional scars from his biological father's death, having been present at the time, and he often pretended to speak with his dead father. He reported that both his biological father and defendant-father abused him physically and mother did nothing to stop the abuse. He said both defendants were mean to him, and he did not want to be reunited with them. He wanted to be placed in the care of his paternal grandparents, whose home, as it turned out, was not suitable for the task.
Overall, the CEC clinicians believed that the children had special needs associated with neglect and that defendants were unable to meet those needs.
In February 2012, mother was injured in a domestic violence incident with father. At a later time, she admitted a physical altercation occurred in the home that involved mother pulling another person's hair.
In April 2012, several non-family members were living in the home. The home was filthy, and there were many choking hazards present that could endanger the smaller children. The two youngest children desperately needed diaper changes. Mother was uncontrollably upset during the Division's home visit. She complained that father refused to help with the children unless she had intercourse with him. At some point, the Division also learned that father spent long hours playing video games.
On April 17, 2012, a Tuesday, mother and all but one of the school-aged children were still in bed at 12:20 p.m. The children said that mother would spend the entire day upstairs. On that day, she had consumed more of her prescription drugs than the proper dosages. There were dog feces in the kitchen and a dirty diaper on the floor in mother's room.
On May 2, 2012, the Division appeared at the house unexpectedly and found similar unsanitary and dangerous conditions. The six-year-old boy was covered in filth, and the three- and four-year-olds were sitting in wet diapers. When the Division worker informed mother about the children's need for dry diapers, mother criticized the worker, did not change the diapers, and sat on the couch smoking cigarettes. She declared the children would be changed after father came home from work, but father had not even left home to begin his work day. The following day, May 3, 2012, the home still had not been cleaned.
On May 10, 2012, mother underwent an evaluation at New Bridge Child and Family Services with Dr. Valeria Verde, a psychiatrist. Mother revealed that she had twice tried to kill herself, had drug problems since she was a teenager, and had attended rehabilitation approximately six times. She complained that father did not help with the children.
On May 16, 2012, the Division filed a verified complaint under N.J.S.A. 9:6-8.21 and N.J.S.A. 30:4C-12 for custody of the eight children in the home, then ages one through fourteen. The court granted the application and ordered defendants to participate in psychiatric evaluations and psychotherapy. The children were divided up and placed in two resource homes.
Over the next year, the Division arranged for psychological and psychiatric evaluations of mother and father, bonding evaluations with the children, and therapeutic and counseling services for the family. The Division continued to visit the home periodically and found many of the prior conditions not to have been adequately remedied. On some occasions, no one would answer the door when Division workers arrived unexpectedly, although the workers could tell that someone was present.
In the months after the children's removal, mother's drug screenings tested positive several times. She admitted use of prescription drugs that contained opiates. Father refused to follow the advice of Division workers as to family and therapeutic counseling unless it was ordered by the court.
CEC clinician Christopher Friedrich evaluated mother two more times in 2012 and concluded that she had not improved since her earlier evaluation. In fact, he believed her ability to parent had worsened and the parenting deficits were not attributable to her lower IQ but to her incapacity to deal with problems in the home. The neglect of the children included inadequate supervision and lack of attention to medical, dental, and disciplinary needs.
On December 12, 2012, the home was still in poor condition. The electricity had been cut off for several months. Defendants said they were moving, but there was no evidence they had started to pack their belongings. Father blamed the Division and his landlord, among others, for the living conditions.
On December 13, 2012, Family Intervention Services reported that mother was ineffective in caring for the children because of her relapses with substance abuse. Although father had attempted to improve his parenting skills, he still lacked proper housing and transportation.
At the Family Part's compliance review hearing on January 4, 2013, the court continued the children in the custody of the Division and required defendants to participate in mental health and drug counseling. Afterwards, the Division conducted a home visit and observed that no positive changes had occurred. For example, dishes appeared not to have been washed for several weeks. By the end of January, defendants had moved into a new home. By the middle of February 2013, the new home was already in disarray and littered with garbage.
On February 12, 2013, Dr. Mark Singer, a psychologist, conducted a bonding evaluation among mother, father, and the children. The children played in a chaotic fashion and did not regularly respond to the parents' attempts to provide structure. When the children acted out, neither parent was able to follow through with discipline. Based on his observations, Dr. Singer recommended the use of an in-home aide.
On April 2, 2013, Dr. Singer conducted psychological evaluations of both parents. The evaluation of father was modified because he had trouble reading. Father claimed he was an active participant in the children's lives by helping with homework, bath times, and bedtime. He denied playing video games excessively. His responses throughout the evaluation indicated he had anger management problems, was defensive, and lacked an understanding of normal childhood development. He admitted he had not completed a co-dependency program although he was aware this omission hindered reunification with the children.
Mother said she did not know why she was meeting with Dr. Singer and blamed the removal of her children on her inability to get along with the Division caseworker. She said the children were removed from the home because they were unwilling to clean their rooms. She had been unemployed since 2004. She admitted she had used heroin and opiates at age fifteen and said the longest she had ever abstained from use of drugs was one year. Her personality style indicated she craved attention and engaged in dramatic displays. She claimed she was compliant with the services to which the Division had directed her.
Overall, Dr. Singer concluded that neither parent could provide a healthy environment for the children. Both lacked a meaningful understanding of the children's needs, which was especially problematic because several of the children had special problems and required extra attention.
At an unannounced home visit in April 2013, the Division found the house filthier than it had been at previous visits.
On April 26, 2013, the Family Part approved the Division's plan of termination of both defendants' parental rights, followed by adoption for the four youngest children. The court disapproved the Division's plan of termination of mother's parental rights to the three older children because the children wished to be reunited with their mother. However, the court did not accede to the children's desire because of mother's substance abuse, mental health, and lack of parenting skills.
On May 3, 2013, mother tested positive for drugs. On May 23, 2012, she started therapy but was discharged for non-compliance a short time later.
On November 12, 2013, Dr. Singer again evaluated the parents and conducted further bonding evaluations. Father blamed the six-year-old boy's grandparents for the Division's involvement in the family's life. He admitted giving mother money for drugs. He admitted using drugs and alcohol himself in the past, which was contrary to his earlier denials made to Dr. Singer. He denied any current drug use.
Mother claimed the Division was involved with the family for various reasons, including the condition of her home which she characterized as "cluttered but not filthy." She claimed to have completed parenting skills classes but admitted she had stopped going to therapy.
During the bonding evaluations, mother had trouble controlling, disciplining, and monitoring the children. Father was more effective, but the children were still aggressive and unruly in his presence.
By then, the six-year-old had been placed in a resource home together with the youngest child, and that foster family wanted to adopt both. The six-year-old wanted to live with his paternal grandparents but he also liked his foster parents with whom he would like to stay if his first wish was not possible. The resource parents were attentive and loving to both boys and provided structure for them.
The five-year-old boy and four-year-old girl lived with another resource family that wanted to adopt them. The two children expressed desires either to return to a previous foster home or to defendants.
A girl who was almost three years old was happy and comfortable with her foster family, which wanted to adopt her.
Of the two remaining older children, the thirteen-year-old girl wanted to be reunited with defendants, and the twelve-year-old boy did not want to be adopted but wanted to move to Canada. That child had displayed significant problems and had been in three foster homes since his removal.
Overall, Dr. Singer believed defendants had not benefited from services and the family dynamic had not improved. Both defendants lacked the capacity to provide the children with a safe and stable environment. They were unlikely to become viable parenting options for the foreseeable future. Dr. Singer supported the termination of parental rights to all seven children.
On December 19, 2013, Dr. Leslie A. Trott, a psychologist, evaluated both defendants after reviewing records of the case. Mother appeared for the evaluation in flannel pajama bottoms, a sweatshirt, a knit hat, and a white parka. She had poor oral hygiene, several missing teeth, and disheveled hair. She said she did not know why the children had been removed. She did not mention any family members who might be resources for the family. Dr. Trott believed she was mentally impaired and chemically addicted. Although she possessed the cognitive ability to perform as a parent, she failed to take responsibility for the problems her family was experiencing and did not fully comprehend the seriousness of her situation. Dr. Trott recommended the termination of her parental rights.
Father arrived on time for the evaluation but was dressed "in a slovenly fashion." He had difficulties with the test, and was unable to spell the words "kids" and "with." He read on a second-grade level and would not be able to comprehend more advanced materials, such as warnings on medications. He was impulsive and had poor planning and memory skills. Dr. Trott opined that father was on the borderline of cognitive competence. He would not be able to solve average day-to-day problems with the children, would not be able to perform complex parenting tasks, and would always require assistance in caring for his children. The doctor believed that father should not be reunited with the children.
Dr. Trott also performed bonding evaluations in two groups. The three older children were disheveled. The session was chaotic, neither defendant could control the children, and both defendants failed at disciplining them. The children did not respect defendants' authority and had little expectation that defendants were responsible for their caregiving. Dr. Trott believed these three children would not experience distress or suffer enduring harm if defendants' parental rights were terminated. Dr. Trott opined that the children would "slowly dissolve into the incompetence displayed by [defendants]" if reunification occurred and therefore supported the termination of parental rights as to both defendants.
The four younger children were dressed appropriately and were groomed adequately. For the most part, the oldest of the four ignored defendants and played a video game. At first, the three younger ones played with father. For her part, mother sat on the couch and did not interact much with the children. Dr. Trott believed the four younger children should not be reunified with defendants because defendants were unable to meet their needs. Dr. Trott believed these children would not suffer enduring harm if defendants' parental rights were terminated.
Dr. Trott also performed a bonding evaluation of the three-year-old child and her resource parent. A significant emotional bond existed between the child and her foster family, and the child's welfare was improving significantly. She would suffer enduring harm if separated from her foster family.
Shortly before the guardianship trial began in January 2014, mother again tested positive for drug use.
At the guardianship trial, the Division presented testimony from Division caseworkers and many of the mental health evaluators. In addition to Drs. Singer and Trott, five CEC clinicians testified in accordance with their observations, evaluations, and reports. Both Drs. Singer and Trott concluded that defendants could not meet the needs of the children and that, while some of the older children would suffer distress from the termination of defendants' parental rights, none would be more harmed by termination than by reunification with defendants. No witnesses testified on behalf of either defendant.
On March 13, 2014, the court issued its decision terminating father's rights to his four children and mother's rights to those four and the six-year-old boy whose biological father had died. The court did not terminate mother's rights to the twelve- and eleven-year-old children because it concluded there were possible alternatives to the termination of parental rights. Nevertheless, the court was clear that reunification of the two oldest of the seven children was not in their best interests. Those two children remained in Division custody, and the court directed the Division to explore kinship legal guardianship and independent living for them.
As for sibling visitation, the court encouraged the Division to discuss the matter with the families who would ultimately adopt the five younger children, at the same time, placing limitations on potential contact with defendants. The court denied father's request for a stay and for continued visitation during the appeal.
Both defendants appeal termination of their parental rights, and father also appeals from the provision of the court's order barring contact between him and the two older children, who are not his biologically. Defendants argue the evidence presented at the guardianship trial did not meet the clear and convincing standard of proof as to three of the four prongs of N.J.S.A. 30:4C-15.1(a).
N.J.S.A. 30:4C-15.1(a) provides that parental rights may be terminated 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 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 Division bears the burden of proving the statutory criteria by clear and convincing evidence. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 606 (2007). The four prongs 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 Family Part's inquiry is extremely fact-sensitive. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 280 (2007).
As an appellate court, we review the record to determine if the Family Part's decision is supported by substantial and credible evidence. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012). We accord deference to the trial judge because he had the opportunity to "make first-hand credibility judgments" and to gain a "feel of the case" over time, thus providing a level of factual familiarity that cannot be duplicated by an appellate court reviewing a written record. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010); N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008).
Unless the trial judge's factual findings are "so wide of the mark that a mistake must have been made," they should not be disturbed. M.M., supra, 189 N.J. at 279. In E.P., supra, 196 N.J. at 104, the Court said: "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." Accord In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). "Only when the trial 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." E.P., supra, 196 N.J. at 104 (quoting G.L., supra, 191 N.J. at 605).
Here, the Family Part's findings and conclusions were not wide of the mark but well-supported by the evidence presented at the guardianship trial.
There is no question that the conditions of the home and the lack of parental skills of defendants harmed the children. The evidence clearly satisfied the first prong of the statute.
With respect to the second prong, the Family Part concluded that both parents were either unwilling or unable to provide a safe and stable environment or to eliminate the harm to the children. Mother lacked the skills to parent independently, failed to learn from the services arranged through the Division, and refused to take responsibility for her actions and neglect. She continued to abuse drugs and isolated herself from the children. Father had an incomplete understanding of the children's needs and was not able to learn enough from the services the Division arranged. At best, he could occasionally be an adequate parent to some of the children, but his learning disabilities made it difficult for him to overcome his parenting deficiencies. He failed to contribute to the family and even added to the poor conditions of the home by his irresponsible and volatile conduct. The bonding evaluations with the children demonstrated that neither parent had the ability to control the children and to provide structure and rules for them.
The evidence overwhelmingly showed that defendants were unable or unwilling to make the home environment suitable for the children. See K.H.O., supra, 161 N.J. at 348-49. The Division's assistance in getting the family into a larger home and purchasing furniture so that the children would have beds did not significantly change the clutter and filth of the home. Both parents failed to take sufficient advantage of the counseling and therapeutic services made available to them to learn how to function better. Both failed to understand the reasons for the Division's involvement in the family's life and generally denied the children's needs were neglected despite the vast evidence of an unhealthy home. After years of services and the Division's attempts to reunify the family, it became clear that neither parent would develop the capacity to provide care and nurture to the children for the foreseeable future.
Moreover, the experts testified that the children would benefit from permanency, and it would be unfair to deny them a permanent placement while mother tried to resolve her addictions and while both parents struggled to learn how to maintain a home and to care for the children. See N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 512 (2004); N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div.), certif. denied, 180 N.J. 456 (2004). In sum, the court correctly held that the second prong of the best interests analysis was proven by clear and convincing evidence.
With respect to the third prong, mother argues the Division failed to provide outpatient substance abuse treatment after she was released from her inpatient program. She complains the Division's services were uncoordinated and failed to provide clear treatment goals. She also asserts her therapy was impeded because the therapist was not available to treat her.
For his part, father contends he never received couples counseling, but the record indicates that mother refused to participate and that couples counseling actually was started but then postponed until the parties made progress in individual counseling sessions. More significantly, father contends the Division did not search for family members and assess their availability to take the children under their care. He complains that the children were placed with five separate non-relative families and contends the court did not consider kinship legal guardianship for the five youngest children.
The court held that the Division provided ample services to the family including CEC evaluations, special developmental and behavioral services, housing, furniture, family team meetings, substance abuse evaluations, drug screenings, transportation services, psychological and psychiatric evaluations, bonding evaluations, and enrollment in special programs for both defendants and the children.
The court also found that the Division explored alternatives to the termination of parental rights. For example, the parents of the deceased biological father were ruled out because of criminal background checks, and because they were only interested in caring for one of the children. The maternal grandmother was unable to care for the children, and was not a viable placement alternative because she had a tense relationship with father.
The court considered but decided against extending the time the parents were given to comply with the services to which they were referred because the record was replete with evidence that they failed to learn from services and the children needed permanency. Kinship legal guardianship was considered as an alternative for the older children because they were not in a situation where adoption was a viable resolution, as were the younger children. See N.J. Div. of Youth and Family Servs. v. S.F., 392 N.J. Super. 201, 213 (App. Div.) (kinship legal guardianship is to be considered when adoption is not a viable alternative), certif. denied, 192 N.J. 293 (2007).
The court correctly concluded that the Division made "reasonable efforts" aimed at the reunification of the family, as required by N.J.S.A. 30:4C-15.1(a)(3) and as directed in K.H.O., supra, 161 N.J. at 354. Alternatives to the termination of parental rights were considered. See N.J. Div. of Youth & Family Servs. v. K.L.W., 419 N.J. Super. 568, 580 (App. Div. 2011). Reunification of the family was not an acceptable alternative because harm would likely befall the children. See N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 605 (1986). The Division proved the third prong of the statute.
The fourth prong of the statute requires that the termination of parental rights not do more harm than good. N.J.S.A. 30:4C-15.1(a)(4). Defendants allege that the placement of the children in different foster homes harm them. Also, the two older children do not have identified plans for their permanent placements, and defendants object to their not having contact with their younger siblings. Father adds that he should be permitted to visit the two older children.
The bonding evaluations, however, clearly showed that the children do not have a normal parent-child relationship with defendants and the harm from separation is not likely to do more harm than good. Dr. Singer predicted the children's conditions would only worsen over time if reunification were to occur. Some of the children may experience negative reactions to losing contact with defendants, but those reactions would be alleviated by having a suitable parental figure, stability, and some permanency in their lives.
The court also accepted Dr. Trott's opinion that the older children have an unhealthy relationship with defendants, and that the younger children will not notice the absence of defendants from their lives. The court appropriately focused on the children's needs for permanency and a nurturing relationship with capable and willing adults. N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 119-20 (App. Div.), certif. denied, 180 N.J. 456 (2004). Again, children should not "languish indefinitely" in a resource placement while a parent tries to correct the problems that led to the Division's original involvement. S.F., supra, 392 N.J. Super. at 209.
Here, several of the children displayed marked improvement since they were removed from defendants' home and eventually placed with pre-adoptive families. While some of the children were not so fortunate, defendants presented no evidence that their prospects for a healthy, stable life were better with defendants. The fourth prong of the best interests test may be satisfied in part by showing that a parent has not corrected the problems that led to the Division's initial involvement. See E.P., supra, 196 N.J. at 108.
Father implies that all seven children should have been placed in one resource home, but that was not possible because of their number and because several of them have special needs. See S.M. v. A.W., 281 N.J. Super. 63, 71 (App. Div.) (the Division should consider placing siblings together but joint placement is not required), certif. denied, 142 N.J. 571 (1995). Here, the Division tried to keep the children together to the extent possible as evidenced by two siblings living together in some of the adoptive homes.
As to defendants' complaints that there were no permanency plans for the oldest two children, the court did not terminate mother's parental rights to them but determined based on the expert testimony that those children would not benefit from reunification and independent living was a better alternative. The court continues to have jurisdiction over the placement of those children after the conclusion of the guardianship trial. It can monitor their best interests. See In re Guardianship of C.W., 183 N.J. Super. 47, 53-54 (App. Div. 1982).
We also reject father's contention that he should have contact with those two children. He is not their biological father and cites no statute or case law to support his claim to continued visitation. More important, his request might interfere with the Division's efforts to place them permanently. We find no abuse of discretion in the Family Part's decision.
In sum, all four prongs of N.J.S.A. 30:4C-15.1(a) were proven by the clear and convincing evidence standard of proof. Under our deferential standard of review, we see no basis for disturbing the Family Part's conclusions that defendants' parental rights to five of the seven children should be terminated, and that father is not entitled to maintain contact with the two oldest of the seven children.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION