Opinion
DOCKET NO. A-5326-12T4
06-09-2014
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. E.R. and G.J.G., Defendants-Respondents. IN THE MATTER OF THE GUARDIANSHIP OF G.G., Minor-Appellant.
Joseph E. Krakora, Public Defender, Law Guardian, attorney for appellant (David B. Valentin, Assistant Deputy Public Defender, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Division of Child Protection and Permanency (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Tara Beth LeFurge, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, attorney for respondent G.J.G. (Catherine Reid, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for respondent E.R. (Mary Potter, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Ashrafi, St. John and Leone.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FG-20-27-12.
Joseph E. Krakora, Public Defender, Law Guardian, attorney for appellant (David B. Valentin, Assistant Deputy Public Defender, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Division of Child Protection and Permanency (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Tara Beth LeFurge, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, attorney for respondent G.J.G. (Catherine Reid, Designated Counsel, on the brief).
Joseph E. Krakora, Public Defender, attorney for respondent E.R. (Mary Potter, Designated Counsel, on the brief). PER CURIAM
In this appeal, the Law Guardian challenges an order entered by the Family Part denying the Division's petition to terminate the parental rights of defendant E.R. (Mother) to G.G., terminating the guardianship litigation, and vacating the conditional voluntary surrender of parental rights entered by G.J.G. (Father). Based on our standard of review, we affirm.
I.
At the seven-day trial, the evidence showed the following. Mother became pregnant with G.G. at age sixteen, and gave birth in May 2008. In the evening on December 1, 2010, Mother became upset, placed G.G., then two-and-a-half-years-old, into the passenger seat of her boyfriend's car without securing her in a car seat or seatbelt, and drove away. Mother had no driver's license at the time. The car Mother was driving collided with another vehicle, hit a tree, and then landed in an embankment.
G.G. was found on the floor under the passenger-side dashboard of the vehicle. G.G. had a severe facial laceration, a pulmonary contusion, and fractures in her right clavicle and left femur. Mother had two broken ankles. Both Mother and G.G. were hospitalized and required surgery. G.G.'s facial laceration required multiple surgeries, and resulted in disfiguring scarring on her upper lip.
Sergeant Ernesto Hernandez investigated the crash. He noted that it was "dry and clear," and there were no skid marks on the road. He observed that the seatbelts did not appear to have been used, and the headlights apparently were not on at the time of the crash. Witnesses reported that Mother had been driving without her headlights on, traveling at a high speed, and passing motorists over the double-yellow line.
Hernandez went to the hospital the night of the accident to interview Mother, but was unable to speak to her because she was sedated. He noticed "the odor of burnt marijuana on [Mother's] clothes." The hospital toxicology report showed that Mother tested positive for marijuana use.
Hospital staff reported the incident to the Division. A Division caseworker interviewed Mother after Mother's surgery. Mother admitted that she had smoked marijuana that day. Mother claimed that while she was bathing G.G. at her boyfriend B.D.'s house while B.D. was not there, she noticed G.G. placing her fingers on or in her vagina. Mother asked G.G. if someone had touched her there, and G.G. indicated that her paternal step-grandfather had. Mother became upset, and left intending to take G.G. to the hospital. Mother later told the caseworker that she was not sure who had molested G.G.
When Hernandez interviewed Mother in the hospital five days later, Mother denied having smoked marijuana. She now claimed G.G. told her that B.D. "taught her to rub herself down there," that B.D. was at the house, and that she and B.D. argued. Mother claimed she was driving at the speed limit, with the headlights on, and G.G. was seat-belted in the back seat.
The Division investigated Mother's molestation allegations against B.D. and the paternal step-grandfather, and determined they were unfounded. Mother later denied having any suspicions that the paternal step-grandfather molested G.G.
On December 8, 2010, while Mother and G.G. were still hospitalized, the Division conducted an emergency removal of G.G., and filed an order to show cause seeking custody of G.G. under Title Nine, N.J.S.A. 9:6-8.21 to -8.73, and Title Thirty, N.J.S.A. 30:4C-12 to -15.4. The Family Part approved the Division's removal of G.G. When G.G. was released from the hospital, the Division placed her in the care of her paternal grandmother and paternal step-grandfather (paternal grandparents).
Mother was arrested and incarcerated from January 19, 2011 to March 16, 2011. She was charged with third-degree assault by automobile and third-degree child endangerment. Mother pled guilty to assault by automobile, and was sentenced to three years of probation.
While Mother was incarcerated, a dispositional hearing was held under the Title Nine abuse or neglect (FN) docket. Mother obviated the need for a fact-finding hearing by stipulating to endangering G.G.'s welfare by placing G.G. in the front seat of a vehicle without restraints. Dr. Brett Biller conducted a psychological evaluation of Mother, and recommended she receive psychotherapy, drug screening and parenting skill classes.
After her release from jail on March 16, 2011, Mother resided in Plainfield. Mother completed a substance abuse evaluation in which she admitted to using marijuana "regularly" for two years, but denied using any drugs since the day of the crash. The evaluation concluded that Mother met the criteria for cannabis and alcohol abuse, and recommended substance abuse treatment.
Mother was admitted into the Steps Recovery Center in Plainfield for substance abuse treatment on June 13, 2011. Mother tested positive for marijuana use on June 27. She was discharged from Steps on June 28 for failure to attend. She was then referred to the Substance Abuse Initiative (SAI) in Plainfield, but failed to show up for her assessment on September 13, 2011. Mother missed her SAI assessments on January 3 and 19, 2012, and her SAI case was closed.
The family court mistakenly believed that "there is no evidence" that Mother continued to use marijuana after the accident, and had "consistently tested negative for drugs" since then.
The caseworker reported that Mother was "discharged [from the program] because of [Mother's] disruptive behavior," but did not describe that behavior.
The Division initially referred Mother for certain parenting classes, but she was ineligible for those classes because she was under twenty-one-years old. After two months, the Division re-referred Mother for individual therapy, parenting classes, and therapeutic visitation with Family & Children's Services (FCS), located in Elizabeth. Because Mother lived in Plainfield, was unfamiliar with Elizabeth, and had difficulty moving because of the injuries to her legs, she failed to attend these services.
On October 6, 2011, the Division referred Mother to United Family and Children Society (UFCS), in Plainfield, for individual counseling and parenting classes. Mother was arrested again on November 7, 2011, according to Mother because she failed to pay traffic tickets. UFCS, by letter dated November 21, 2011, notified the Division that Mother was terminated from the program because she had missed her November 3 and November 10 appointments, and that Mother was "a bit confused about the expectations of therapy," "cognitively did not understand what was being discussed," and "was somewhat resistant to the therapeutic process."
Mother was released from jail on December 2, 2011. At a compliance hearing on December 6, 2011, the court ordered Mother to reinitiate substance abuse treatment, and approved the Division's plan to terminate Mother's rights. The FN litigation was terminated, and the Division filed its guardianship complaint on or about January 19, 2012.
On February 24, 2012, Mother was incarcerated a third time after Mother and Father were arrested together for drug possession, resisting arrest, assault, and possession of a weapon. Mother claimed that she was arrested because Father blamed her for drugs that he possessed. While incarcerated, Mother enrolled in an eight-week alcohol and drug program, in which she was reportedly "an active member of the group" and had "very good attendance." Mother was released from jail on April 1, 2012, four weeks after enrolling in the eight-week program.
The Division caseworker testified that he received a letter upon Mother's release from the program stating that Mother had "completed the program."
By letter dated May 3, 2012, UFCS again terminated Mother from its programs for non-attendance. The letter acknowledged that Mother missed her appointments due to her incarceration.
On May 14, 2012, Mother was arrested a fourth time and incarcerated until October 18, 2012. Mother was charged with third-degree aggravated assault and resisting arrest. Mother said she had gotten into an argument with her new boyfriend, took his car, and was later accused of "backhand[ing]" a police officer. She eventually pled guilty to third-degree aggravated assault, and was sentenced to an additional three years of probation.
Dr. Robert Latimer and Dr. Frank Dyer, respectively the expert psychiatrist and psychologist for the Division, conducted evaluations of Mother while she was incarcerated. Dr. Latimer opined, "within a reasonable degree of psychiatric certainty," that Mother suffers from personality disorders "which present a barrier to healthy parenting." He diagnosed Mother with a "borderline personality disorder," characterized by an "unstable personality" that causes a person to "frequently do things that hurt them[self] or others." Dr. Latimer testified Mother is not capable of parenting at this time. He found that Mother's prognosis for treatment is "very guarded" because "personality disorders are deeply ingrained personality traits that are very hard to change," and Mother "doesn't have any insight" or "motivation" to change. He opined that Mother would need "[o]ne to two years [of therapy] in order to address [her] pervasive issues."
Dr. Latimer stated that Mother gave a "confusing" account of the accident that was inconsistent with the records he reviewed. When he asked Mother clarifying questions, she "los[t] her patience and became hostile." He found that "[t]he only fact that [he] could clearly attest to is that [Mother] has a very short temper and runs out of patience easily."
Dr. Latimer also noted that Mother admitted she had smoked marijuana since she was sixteen, and had been drinking on the night of the accident. He diagnosed her with a substance abuse problem. He opined that Mother was "a poor historian," that her "excuses have a paranoid flavor," that Mother's "judgment and insight are poor," and that Mother "prefers to blame circumstances [on] others[] rather than to accept responsibility."
Dr. Dyer similarly concluded that Mother has "extremely poor" impulse control, "seems to be struggling with a good deal of poorly controlled anger," and "does not possess any genuine insight into her problems." He opined that Mother "is too immature emotionally, behaviorally unstable, self-centered, and lacking in insight to be able to protect a young child from dangerous situations." He testified that Mother's "character defects add up to somebody who is extremely egocentric," and that Mother "is manifestly incapable" of putting G.G.'s needs above her own "to an appropriate degree." He noted Mother minimized her role in the accident by claiming that the other driver was driving "really fast," and that the other driver "had the nerve to lie" about the accident. Mother also characterized her failure to secure G.G. in the car as "just [a] little downfall." Mother denied smoking marijuana on the night of the accident, but admitted to smoking marijuana that week and stated: "Out of all the days I go out by myself and get wasted, I get into a car accident with my daughter."
Dr. Dyer found that, although Mother's testing indicated that she was in "the mildly retarded range," she was "in satisfactory contact with reality and is free of thought disorder and current mood disorder." He diagnosed Mother with cannabis abuse, and "personality disorder not otherwise specified with histrionic and borderline features."
Dr. Dyer concluded that Mother's "prognosis for profiting from services to the point of achieving adequate parenting capacity is . . . extremely poor." He opined that Mother, because of her low "level of intellectual functioning," requires "a minimum [of] two years" of therapy before she could become able to safely parent a child, and that G.G. needed permanency to help her heal from the physical and emotional trauma. Dr. Dyer was doubtful Mother would cooperate in any event because of her failure to acknowledge that she had any problems.
After Mother's release from jail on October 12, 2012, Dr. James Reynolds conducted a psychological evaluation of Mother at the request of Mother's attorney. Like Dr. Latimer and Dr. Dyer, Dr. Reynolds also found that Mother shows "poor insight and judgment," and also suggested Mother suffered from possible underlying paranoid delusions. Dr. Reynolds was particularly troubled by Mother's claim that the other driver had caused the accident because she was jealous that Mother was driving a Mercedes Benz.
Dr. Reynolds found that Mother's "intellectual level is at the cusp of the low average," and that she "currently presents with apparent psychological impairments that may compromise her ability to adequately care for her daughter." However, Dr. Reynolds determined that Mother "possess[es] at least minimally adequate parenting skills," that her "thought processes appeared logical and coherent," and that "[t]he clinical barriers to reunification at this time are amenable to intervention services."
Dr. Reynolds reported that Mother's responses to the Adult Adolescent Parenting Inventory-2 test indicated that she "may lack sufficient empathic awareness of children's emotional needs, and . . . does not adequately understand appropriate parent-child roles and responsibilities." However, the responses also suggested that Mother "possesses adequate parenting characteristics in the areas of using alternatives to corporal punishment and empowering children's independence in an age-appropriate manner." Finally, Dr. Reynolds found that Mother was amenable to services, and it would be apparent if she were benefitting from those services within "three to six months."
On November 28, 2012, Father executed an identified surrender of his parental rights to the paternal grandparents contingent upon the termination of Mother's parental rights and the paternal grandparents' adoption of G.G. The guardianship trial commenced that day, and ended on January 9, 2013.
In a written opinion issued on June 11, 2013, the court credited the testimony of the Division's caseworker, Sergeant Hernandez, and the paternal grandmother. The court found that Mother's impulsive negligence had caused G.G. serious physical harm and may result in permanent scarring and further surgery. The court also found that Mother had been incarcerated for about eight months during the two years between the accident and the trial. The court acknowledged that all experts agreed that Mother was not ready to parent G.G. at the time of trial. Nonetheless, the court found that the Division failed to satisfy any of the four statutory prongs of N.J.S.A. 30:4C-15.1(a). The court issued an order denying the Division's guardianship application, dismissing the guardianship litigation, reopening the FN litigation, and vacating Father's voluntary identified surrender of his parental rights. The Law Guardian appeals from the June 11 order.
II.
"A parent's right to enjoy a relationship with his or her child is constitutionally protected." In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). However, this protection "is tempered by the State's parens patriae responsibility to protect the welfare of children." Id. at 347; see N.J.S.A. 30:4C-1(a).
The Division may bring an action under Title Thirty "[t]o terminate parental rights and obtain guardianship of a child who has been placed in foster care." N.J. Div. of Youth & Family Servs. v. D.M., 414 N.J. Super. 56, 60 (App. Div. 2010). If as here the complaint is brought under N.J.S.A. 30:4C-15(c), "'[g]uardianship cannot be awarded . . . unless the court itself determines that it is in the child's best interests.'" D.M., supra, 414 N.J. Super. at 60 (quoting In re Guardianship of K.L.F., 129 N.J. 32, 37 (1992)). The Division must clearly and convincingly prove all four prongs of the "best interests test" set forth in N.J.S.A. 30:4C-15.1(a). N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012).
Thus, the Division must clearly and convincingly show that:
(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;"Importantly, those four prongs 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. G.L., 191 N.J. 596, 606-07 (2007).
(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).]
Appellate review of a family court's findings with respect to these prongs is "limited." In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). Our task is to determine whether the decision "is supported by substantial and 'credible evidence on the record.'" F.M., supra, 211 N.J. at 448. "We ordinarily defer to the factual findings of the trial court because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a 'feel of the case' that can never be realized by a review of the cold record." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008).
Further, "[b]ecause of the Family Part's special jurisdiction and expertise in family matters, we accord particular deference to a Family Part judge's fact- finding." N.J. Div. of Youth & Family Servs. v. T.M., 399 N.J. Super. 453, 463 (App. Div. 2008) (citing Cesare v. Cesare, 154 N.J. 394, 413 (1998)). Thus, "[w]e will not overturn a family court's factfindings unless they are so wide of the mark that our intervention is necessary to correct an injustice." F.M., supra, 211 N.J. at 448 (quotation marks omitted).
In this case, the family court denied the Division's request for termination of Mother's parental rights, and it is the Law Guardian who appeals that denial. See N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 433-34 (App. Div. 2009) (finding "the Law Guardian's position of particular significance" because he "has to advocate for the best interests of a child too young to speak for [her]self, and represents neither adversary in the case"). Our "scope of review remains the same." Id. at 433; N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 112 (App. Div.), certif. denied, 180 N.J. 456 (2004). However, we must affirm the family court's decision if it correctly found that the Division failed to prove by clear and convincing evidence any one of the four prongs. We hew to that standard of review.
The Division, while not appealing, supports the Law Guardian's request for reversal.
III.
The Law Guardian argues the Division presented sufficient clear and convincing evidence to satisfy all four prongs of N.J.S.A. 30:4C-15.1(a). Because we find the court's determination that the Division failed to prove prong four by clear and convincing evidence, we need not review the court's decisions with respect to prongs one, two and three. See A.R., supra, 405 N.J. Super. at 440-41, 444 (affirming because the Division failed to prove the fourth prong).
Prong four acts "as a fail-safe against termination even where the remaining standards have been met." G.L., supra, 191 N.J. at 609. It requires the Division to prove that "[t]ermination of parental rights will not do more harm than good" to the child. N.J.S.A. 30:4C-15.1(a)(4). The family court must discern "whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with her natural parents than from permanent disruption of her relationship with her foster parents." N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 181 (2010) (quotation marks omitted).
Here, by all accounts, Mother's interactions with G.G. were positive. The Division caseworker testified that, while Mother missed some visitation, when visitation occurred G.G. "was engaged with [Mother] and oftentimes excited to see her." The paternal grandmother testified that G.G. was "interested in seeing her mom" for visitation, returned happy from visitation, and that Mother is "an important part of [G.G.'s] life." Dr. Reynolds testified that G.G., upon seeing Mother, "immediately recognized her, ran to her," and was very "positive, happy, [and] joyful." He further testified that Mother was "very attentive, very loving [and] very responsive to" G.G. during the evaluation. The trial court cited this testimony in finding prong four was not satisfied.
Regarding prong four, "'the State should offer testimony of a well qualified expert who has had full opportunity to make a comprehensive, objective, and informed evaluation of the child's relationship with both the natural parents and the foster parents.'" F.M., supra, 211 N.J. at 453. Both Dr. Dyer and Dr. Reynolds conducted comparative bonding evaluations. However, neither expert expressed an opinion on the ultimate issue of whether termination of Mother's parental rights would not do G.G. more harm than good.
As Dr. Latimer did not observe the child or perform a bonding analysis, his opinions are of limited relevance to the fourth prong. Furthermore, the family court found Dr. Latimer's "opinions to be of little value," as they appear to be "highly colored by the unpleasantness" of his encounter with Mother "and not based on an in depth or meaningful examination." We defer to that finding, as an expert's "credibility is for the trial court to assess." A.R., supra, 405 N.J. Super. at 438.
Dr. Dyer found it "clear that [G.G.] loves her mother" and "continues to have a residual attachment to her in spite of the fact that she has been in placement [with the paternal grandparents] for nearly two years." He also found G.G. has "a deep attachment to her paternal grandparents, whom she calls Mommy and Daddy," and who she views as her "primary attachment figures." He predicted that if G.G. were to be removed from her paternal grandparents, she "would suffer a very painful loss," but opined that G.G.'s "attachment to [Mother] would serve to mitigate," if not "completely undo," the harm. He then opined that, if G.G. were cut off from Mother, she "would suffer a very painful loss," which G.G.'s attachment to the paternal grandparents "would mitigate . . . to a very substantial degree." Ultimately, he recommended the Division "pursue a case goal of adoption of [G.G.] by her paternal grandparents."
Dr. Reynolds similarly opined that G.G. "has developed safe and secure relationships" with both Mother and the paternal grandparents, and would "likely experience severe and enduring harm if contact with either party is terminated. However, in addition to clinical intervention services, the strength of the relationships she has developed with each person will likely mitigate the harm [G.G.] experiences." He commented that the strength of the bond between Mother and G.G. was "remarkable" considering Mother's incarcerations. He was concerned that severing G.G.'s ties to Mother "could certainly interfere with [G.G.'s] capacity for developing close intimate relationships . . . as she gets older," and recommended against termination of Mother's parental rights. He acknowledged that a goal of reunification will delay G.G.'s permanency, but opined that "[t]his is not necessarily an insurmountable barrier . . . as long as [Mother] actively and meaningfully engages in all recommended therapeutic services."
In finding prong four was not established, the family court emphasized that both experts agreed that Mother and G.G. share a strong bond, and that neither expert testified that G.G. had bonded more strongly with the foster parents. The court cited Dr. Reynolds' opinion that Mother was amenable to treatment. The court found that, "given the strength" of that bond and Mother's "young age," it "would seem reasonable to afford [Mother] more time" rather than sever that bond. The court concluded that "[s]everance, more than delay, will most assuredly do more harm to" G.G.
The Law Guardian contends that the family court did not discredit Dr. Dyer's testimony and recommendation that the Division should pursue a case goal of adoption. To the contrary, the court stated that "Dr. Dyer never adequately explained why such a draconian action was necessary."
The Law Guardian notes that Dr. Dyer testified that it is "highly unlikely" that Mother would be able to mitigate the harm G.G. would suffer if her relationship with her paternal grandparents is severed. However, that testimony is inconsistent with the finding in his report that Mother could mitigate that harm, if not completely. Moreover, as the family court found, if Mother was to have custody of G.G. "there is no reason to assume that [the paternal grandparents] would not see [G.G.], just as they had before," "particularly as [Father] would retain his parental rights." Thus, the court could properly find that, if Mother's parental rights are not terminated, G.G.'s relationship with the paternal grandparents would remain intact.
The Law Guardian correctly points out that any consideration of G.G.'s best interests must include her need for permanency. See N.J. Div. of Youth & Family Servs. v. L.J.D., 428 N.J. Super. 451, 483 (App. Div. 2012) ("Also included in this inquiry is whether delay in permanency will cause further harm[.]"); see also F.M. supra, 211 N.J. at 453 ("Under this prong, an important consideration is '[a] child's need for permanency.'"). A lack of stability, in and of itself, may constitute harm. N.J. Div. of Youth & Family Servs. v. H.R., 431 N.J. Super. 212, 224 (App. Div. 2013). Such a lack of stability "prevent[s] the child from having a sense of permanency." Ibid.
Similarly, under prong two, 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 In re Guardianship of J.C., 129 N.J. 1, 10 (1992)), certif. denied, 205 N.J. 519 (2011). "[T]he standard is whether it is 'reasonably foreseeable' that a parent can 'cease to inflict harm upon' the child and demonstrate adequate parenting that would not place the child's physical or mental health in 'substantial jeopardy[.]'" L.J.D., supra, 428 N.J. Super. at 483 (quoting N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 607 (1986)).
The Law Guardian argues this case is analogous to H.R., a case in which we affirmed the family court's finding that a father had not become fit in time to meet his child's needs. Id. at 228. The experts there agreed that the father had a bond with the child. Id. at 227. The child in that case also "shared a secure and comfortable bond with her caretaking parents, who were open to having the father visit with his daughter, provided that he was not using drugs." Id. at 227. Because the father had failed to show any progress in treating his drug addiction for two years since the child's removal, we held the family court could properly find that the father was "not entitled to yet additional time" to remediate the problems that led to the removal of his child. Id. at 227.
Unlike in H.R., Mother has shown improvement by not testing positive for marijuana use since June 2011, and by enrolling in and attending a drug treatment program on her own while incarcerated. Further, the family court noted the paternal grandparents took G.G. to state prison to visit Father but would not take her to county jail to visit Mother. The court properly found it was "not certain that, if [Mother's] rights are terminated," that G.G. would still be permitted to see Mother.
The family court found that G.G.'s permanency needs at the time of trial did not outweigh the harm that would be caused to G.G. by severing her bond with Mother. That conclusion is supported by the experts' agreement regarding the strong bond Mother had with G.G., and Dr. Reynolds' opinion that Mother is amenable to treatment. Given these facts, and that no expert opined that it would not do G.G. more harm than good to terminate Mother's parental rights, we cannot say the family court erred in finding the Division "failed to prove, by clear and convincing evidence, that terminating [Mother's] parental rights would not do more harm than good." A.R., supra, 405 N.J. Super. at 444. We cannot say that the "findings made by the trial judge are unsupported by substantial, credible evidence in the record." C.S., supra, 367 N.J. Super. at 113.
Of course, the bond between G.G. and Mother cannot permanently bar termination of Mother's parental rights if Mother remains incapable of parenting G.G. The court acknowledged Mother was not ready to parent G.G. at the time of trial, but found there was "no substantial indication that [Mother] will not engage in appropriate services" going forward. The court cited "the 'painful loss' [G.G.] would suffer" if Mother's parental rights were "severed to provide permanency" for G.G. with the paternal grandparents.
The court also commented that "[r]ecent reports reveal that she is meaningfully engaging in services." However, those reports were not in evidence at the trial because they were generated during the hiatus between the trial and the court's opinion. The court could not properly consider those reports in its guardianship decision without giving the parties the opportunity to test the reliability of the reports by cross-examination or by introducing contrary evidence. In re Guardianship of Cope, 106 N.J. Super. 336, 343-44 (App. Div. 1969) (reversing because reports were not in evidence). Because the court's comment was not made in regard to its ruling on the fourth prong, it does not require reversal. See R. 2:10-2.
However, the "harm [that] will befall the child as a result of the severing of biological ties" must be weighed against "'the paramount need [a child has] for [a] permanent and defined parent-child relationship[].'" K.H.O., supra, 161 N.J. at 355. Courts must be "mindful of strong policy considerations that underscore the need to secure permanency and stability for the child without undue delay." In re Guardianship of DMH, 161 N.J. 365, 385 (1999). "The trend over the last thirty years has been towards foster care reforms that place limits on the amount of time a parent may have to correct conditions at home in anticipation of reunification." K.H.O., supra, 161 N.J. at 358.
"'[C]hildren must not languish indefinitely in foster care while a birth parent attempts to correct the conditions that resulted in an out-of-home placement.'" L.J.D., supra, 428 N.J. Super. at 483-84. Because instability is a harm that grows with time, our focus "has shifted from protracted efforts for reunification with a birth parent to an expeditious, permanent placement to promote the child's well-being." Ibid.
Given our standard of review, we affirm the court's June 11, 2013 order. However, more than three years have passed since G.G. was removed from Mother's care. We trust that going forward the family court will weigh the child's increasing need for permanency, and expeditiously move the matter towards a permanent conclusion consistent with G.G.'s best interests.
As noted above, Father made a voluntary identified surrender of his parental rights contingent on termination of Mother's parental rights. When the family court dismissed the termination proceedings, it vacated Father's voluntary identified surrender. He argues that any disposition other than affirmance must involve reinstatement of his voluntary identified surrender. Because we affirm, we uphold the vacation of Father's voluntary identified surrender.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION