Opinion
DOCKET NO. A-3172-12T3
03-26-2014
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. K.S., Defendant-Appellant, and M.W., Defendant. IN THE MATTER OF THE GUARDIANSHIP OF M.S., a minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Catherine Reid, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Jacobine Dru, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Olivia Belfatto Crisp, Assistant Deputy Public Defender, 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NOT FOR PUBLICATION WITHOUT THE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 Superior Court of New Jersey, Chancery Division, Family Part, Salem County, Docket No. FG-17-14-12.
Joseph E. Krakora, Public Defender, attorney for appellant (Catherine Reid, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Jacobine Dru, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Olivia Belfatto Crisp, Assistant Deputy Public Defender, on the brief). PER CURIAM
Defendant-mother K.S. appeals from an October 4, 2012 judgment of the Family Part terminating her parental rights to her youngest daughter M.S. The child is almost four years old now and has lived most her life with her paternal grandmother, who wishes to adopt her. The child's father, M.W., has not appealed from the termination of his parental rights. We affirm.
I.
Defendant was twenty years old at the time of her daughter's birth in April 2010. She has given birth to four children altogether, each with a different father. None of the children are in her custody. Defendant voluntarily gave up custody of the three older children to relatives. The oldest, a boy born when defendant was fifteen, is in the custody and care of defendant's mother, with whom defendant also lives from time to time.
This case began on August 14, 2010, when defendant's mother anonymously called the Division of Child Protection and Permanency ("DCPP" or "the Division"), and reported that M.S., then four months old, was left unattended in a carrier on her back porch. The Division investigated immediately and commenced an emergency removal of the child. The grandmother told DCPP caseworkers that she heard a baby crying for fifteen to twenty minutes before she went outside and found the child. She said she could not care for the baby because she was already caring for other children, including defendant's oldest child. She said she did not know where defendant was, and she believed defendant and the child's father had recently been living in the paternal grandmother's home. The maternal grandmother did not want defendant living with her together with her new baby. Her home was too small, and defendant did not take care of her own children. The grandmother did not have the wherewithal to care for yet another child.
The same day, a caseworker interviewed the child's paternal grandmother. She said she had not seen her son, M.W., since he left earlier that day with the child. She, too, expressed unwillingness to care for the baby, but she changed her mind after learning that the alternative was foster care. DCPP would not allow her to take the child at that time because M.W. lived with her, having been recently released from jail, and there was also a domestic violence restraining order in effect against him for the protection of defendant. The child was placed temporarily in the care of her paternal great-grandmother. She remained there for several months until the great-grandmother could no longer care for her.
The day after the initial referral, a caseworker spoke with the child's father. He said he had met with defendant at the maternal grandmother's home and turned over care of the child to defendant. He denied leaving the child unattended.
The following day, a caseworker spoke with defendant. She said the father had cared for the child for a few days, and then dropped her off with defendant at the maternal grandmother's house. Defendant claimed she took the baby inside the house and asked the maternal grandmother to babysit for a "few seconds" while she went to a store. She said she was gone for about an hour when a family member called to tell her that DCPP had removed the child from the home. When the caseworker questioned defendant about inconsistencies in her version, defendant became hostile and ended the conversation. Later, the maternal grandmother claimed that defendant was not telling the truth about the father's role in abandoning the baby on the back porch because she was afraid of him and was protecting him.
At a later time still, when defendant was interviewed by a psychologist, she changed her version of what had happened. She said she was not at her mother's home on that day but was away for a few days and the child's father had agreed to care for the baby during her absence. She claimed the father called her to take the child, but she was not available to do so. She said the father must have assumed she was with another man, and maliciously left the child on the porch because he was jealous.
On August 17, 2010, the Division filed a verified complaint for custody of the child under both Title 9, N.J.S.A. 9:6-8.30, and Title 30, N.J.S.A. 30:4C-12. The complaint alleged the parents had abused or neglected the child. After a hearing, the court placed the child in the care and supervision of the Division, also providing an opportunity for supervised visitation by the parents. Defendant only visited the child sporadically during the ensuing months. From September 2010 through January 2011, the court held several status hearings and repeatedly ordered both parents to undergo psychological evaluations. They did not comply.
On January 24, 2011, the court issued a Title 9 fact finding order, which was based on written reports rather than live testimony. The court found that DCPP had proved a prima facie case that both parents had neglected the child by leaving her unattended on the grandmother's porch and that it was the parents' burden to disprove personal responsibility. Since neither parent presented evidence, the court found them both civilly guilty of neglecting the child.
The father moved for reconsideration, and he was permitted to testify at a March 29, 2011 hearing. Defendant was present at the hearing but did not testify. As a result of the father's testimony, the court set aside its original Title 9 fact finding determination and issued a new one finding that only defendant had neglected the child.
Defendant appealed that finding. In January 2013, we reversed the Family Part's Title 9 finding, without discussion or analysis in our opinion because the Division had conceded error. N.J. Div. of Youth & Family Servs. v. K.S., No. A-2610-11 (App. Div. Jan. 31, 2013) (slip op. at 1). The primary focus of our opinion was that other issues raised by defendant were moot but might be considered in a separate appeal from continuing proceedings in the Family Part under Title 30. Id. at 2.
In the meantime, the paternal grandmother took custody of the child beginning in April 2011, since M.W. was no longer living with her, and the child has remained with her since then. The home is suitable and healthy for the child, and the grandmother has demonstrated she is a capable caregiver.
The Division continued its referral of defendant and the child's father for services with a goal of reunification. The services included psychological evaluations, parenting classes, supervised visitation, couples and individual therapy, and vocational training. The father was non-compliant with all services except job training. Defendant initially missed appointments but eventually completed psychological evaluations and parenting classes. She did not consistently attend or complete any other therapy or counseling services. She also did nothing to advance her education (she had dropped out of high school after the eleventh grade), or to improve her unemployment situation (she could not keep low-level jobs) or her housing (she moved frequently from the home of one relative to another).
Eventually, the father lost interest in the case and could not be found. The mother's non-compliance with services and the child's thriving in her grandmother's home prompted the Division to seek approval of a permanency plan for termination of the parents' rights and guardianship of the child leading to adoption by the paternal grandmother. The court approved the permanency plan and dismissed the Title 9 case. On September 2, 2011, the Division filed its complaint for guardianship.
In the summer of 2012, Family Part Judge Kevin Smith conducted the guardianship trial. Both parents were represented by court-appointed counsel, but neither attended the trial. A Division caseworker and a psychological expert, Linda Jeffrey, Ph.D., testified on behalf of the Division. Defendant presented the testimony of her own psychological expert, Kenneth Goldberg, Ph.D. On September 28, 2012, Judge Smith issued a sixty-five page written opinion detailing his findings of fact, credibility determinations, and conclusions leading to termination of parental rights.
In the current appeal, defendant contends the Division did not prove the four prongs of N.J.S.A. 30:4C-15.1(a) to justify termination of her parental rights. She also contends that her due process rights were violated because the Title 9 abuse or neglect finding was unjustified and because the trial judge improperly excluded her expert's testimony. We reject these contentions.
II.
We find no basis in the record to disagree with Judge Smith's findings of fact and conclusions of law. We affirm the judgment terminating defendant's parental rights substantially for the reasons stated in the judge's comprehensive written decision. We add the following to highlight the law that guides our review on appeal and some prominent points of the judge's decision pertinent to defendant's arguments on appeal.
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 defer to the Family Part's findings of fact and the conclusions of law that are based on those findings. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). We afford 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 supporting 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. E.P., 196 N.J. 88, 104 (2008) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007)). In E.P., the Supreme 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." Ibid.; 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 conclusions were not clearly mistaken or wide of the mark but well-supported by the evidence.
Pursuant to N.J.S.A. 30:4C-15.1(a), 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;DCPP bears the burden of proving the statutory criteria by clear and convincing evidence. G.L., supra, 191 N.J. at 606. The Family Part's inquiry is extremely fact-sensitive. M.M., supra, 189 N.J. at 280. The four subsections of the statute are "not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999).
(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide for 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) [DCPP] 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.
Defendant argues there was no evidence that the child was ever harmed, in particular, because we reversed the Title 9 order, and she has not been found to have left the child unattended on her mother's back porch. She adds that Judge Smith found the baby did not suffer physical or psychological harm in that incident. In his decision, Judge Smith stated:
[O]ne of the parents purposefully left the child on the maternal grandmother's porch unattended. . . . [The parent] did so in the midst of their own disagreement or argument and used the child as a weapon in that argument. Thus, it was purposeful. While the Court finds that an actual and potential harm to the child existed, it is not clear [the child] suffered any harm during those 20 minutes or that the potential rose to the degree necessary under N.J.S.A. 30:4C-15.1(a)(1). Yet because this Court finds by clear and convincing evidence that [the child] is in danger of future harm, the findings as to who did it have no impact on this decision.
[Footnotes omitted.]
The judge's finding that defendant was a risk of future harm to the child was based on the testimony of the Division caseworker and Dr. Jeffrey regarding the ongoing conduct and psychological deficits of defendant as a caregiver rather than whether or not she was personally responsible for leaving the baby unattended on August 14, 2010.
The caseworker testified and records showed that defendant had a record of criminal arrests and convictions, including for assaultive conduct. She had assaulted her own younger siblings, and she was both the victim and the perpetrator of assaults in domestic violence incidents with the father of this child. In addition, defendant was not able to keep a job, and she did not have stable housing. She was compelled to live with her mother and other family members in a small home, and she did not get along with her relatives or those of her children's fathers. Her sporadic visitation with this child and her older children revealed little interest in being a responsible mother to them. She made excuses for infrequently seeing two of her children, and did not have good relationships with the relatives who had agreed to care for them.
The Division's expert, Dr. Jeffrey, conducted psychological and bonding evaluations in January 2012. She testified at the trial that defendant had untreated adjustment and personality disorders that made her unable to care safely for a child. Dr. Jeffrey came to this conclusion after performing several objective psychological tests that are commonly used to assess parents in contested custody and guardianship matters. In Dr. Jeffrey's opinion, defendant had many negative traits that would make reunification harmful to the child, such as emotional immaturity, self-absorption, and impulsivity. Defendant spoke in harsh terms about her oldest son, with whom she lived but who was in the custody of the maternal grandmother. To Dr. Jeffrey, defendant's remarks revealed that she had little understanding of the development and needs of a small child. Dr. Jeffrey concluded that defendant's narcissistic personality disorder caused her to reject mental health treatment and other types of counseling and that she was unlikely to overcome her parental deficits in the reasonably foreseeable future.
In the bonding evaluation, Dr. Jeffrey observed that the child was not affectionate and did not display trust towards defendant, and that defendant's actions and words to the child showed a lack of understanding of the child's developmental stage and needs. On the other hand, the paternal grandmother and the child had a positive, secure relationship.
Defendant's expert, Dr. Goldberg, came to different conclusions. After performing his own testing regiment, Dr. Goldberg concluded defendant was raised in a highly dysfunctional family that may have affected her personality and development, but she did not show signs of severe mental illness that would prevent her from being a reasonably capable parent. Because of differences in the tests the psychologists performed, no direct comparison could be made between the results. Dr. Goldberg generally agreed with Dr. Jeffrey's bonding evaluation, concluding that there was a "lack of affect in the relationship" of defendant and the child. Nevertheless, Dr. Goldberg ultimately concluded that the Division should terminate its involvement in the case and allow defendant to resume parenting responsibilities.
Dr. Goldberg acknowledged that his approach to evaluating defendant was informed by his own thoughts and experiences gained through many previous psychological evaluations in parental rights cases. He also admitted on cross-examination that he was uninformed as to some aspects of the Division's investigation.
Defendant argues that the Family Part inappropriately focused on allegations made in the Title 9 action. She contends her due process rights were violated because the Division obtained negative psychological evaluations based on the Title 9 action that could not be sustained. She also argues that the Division did not follow the procedures prescribed by N.J.S.A. 30:4C-12 for a Title 30 action and that the Division provided unnecessary and unhelpful services to remedy her problems. We are not persuaded by these arguments.
In the prior appeal, we disagreed with defendant's contention that the Family Part lacked jurisdiction to order psychological evaluations because it had improperly made a finding of abuse or neglect under Title 9. K.S., supra, slip op. at 2-3. We concluded the Division did not lose jurisdiction of the matter and could pursue consideration of the best interests of the child because Title 30 provided an independent basis for its intervention. Ibid.
The Family Part's decision in the guardianship action was based on its findings that defendant had an untreated mental condition, severe narcissism, and that the condition affected her relationships and her parenting capabilities. In addition, defendant's prolonged financial and housing instability placed the child at the risk of harm if reunited with defendant. Those findings were determined in the Title 30 litigation from evidence gathered several months after the permanency order of August 2, 2011, and dismissal of the Title 9 action. While Judge Smith referred to a prior psychological evaluation from the earlier Title 9 litigation, he relied on the evidence gathered during the Title 30 litigation to conclude that the child's best interests required termination of defendant's parental rights.
Citing New Jersey Department of Children & Families v. I.S., 214 N.J. 8, 35, cert. denied, ___ U.S. ___, 134 S. Ct. 529, 187 L. Ed. 2d 380 (2013), defendant argues that referral of defendant for psychological services was not justified since the Title 9 order was not sustained. But even if the Division could not prove which parent neglected the child by leaving her unattended on the porch, the fact that the child was endangered authorized the Division's intervention. The Division learned information independent of the August 14, 2010 incident demonstrating that the child was in danger of future harm if left in the care of one or both parents.
We reject defendant's argument that the information gathered as a result of the August 14, 2010 investigation must be ignored for the purposes of the Title 30 litigation. The Title 9 and Title 30 actions are distinct, and the latter also grants jurisdiction to the Family Part to evaluate the child's best interests. Id. at 38-39; see also N.J. Div. of Youth & Family Servs. v. K.M., 136 N.J. 546, 555 (1994) ("Abuse-or-neglect and termination proceedings are brought under separate statutory schemes, require different burdens of proof, and allow for different remedies."); M.M., supra, 189 N.J. at 292 ("[U]nlike Title 9 inquiries, a parent's fitness is not the touchstone under the best-interests standard [of Title 30]. Rather the court is obligated to assess the best interest of the child." (citation omitted)); N.J. Dep't of Children & Families v. A.L., 213 N.J. 1, 25 (2013) ("Title 30 guardianship cases . . . often address long-term problems that affect a child's welfare. Title 9, by contrast, allows for immediate intervention when a single instance of conduct harms or threatens substantial harm to a child."). Reversal of the Title 9 order did not negate the relevance of the evidence for purposes of the Title 30 proceedings that followed.
Defendant contends that the Division's focus on the Title 9 proceedings caused it to take inadequate steps to find defendant separate housing from her mother where she could care for the child. Considering defendant's parental deficits, however, independent housing would not have made reunification safe for the child. The Division attempted to help defendant gain steady employment so that she could become financially independent. Her therapist helped review employment applications. But defendant quickly lost any jobs she obtained because she was late going to work or for other undetermined reasons that were not caused by the Division's removal of the child from her custody. The Division also tried to lead defendant to obtain therapy for her emotional and psychological problems, but defendant missed appointments and was terminated from the programs or individual therapy sessions. When defendant attended counseling, the therapist reported little if any progress. Independent or improved housing alone was not the solution to defendant's problems.
N.J.S.A. 30:4C-12 provides that the Division may seek a court order requiring a parent to undergo treatment or other relief if the best interests of the child so requires. I.S., supra, 214 N.J. at 33. Here, the Division requested the psychological evaluations as part of its attempt to reunite defendant with her child. The orders for psychological evaluations and therapy were not a violation of defendant's due process rights.
Defendant argues that the Family Part also erred and violated her due process rights when it excluded Dr. Goldberg's testimony after conclusion of the guardianship trial. She argues the court's surprise ruling deprived her of the opportunity to present a defense.
Judge Smith did not exclude Dr. Goldberg's testimony as evidence in the record. Rather, he evaluated that testimony and concluded it was not credible. The judge fully explained the reasons that he discredited Dr. Goldberg's conclusions. He was critical of Dr. Goldberg because of his "predisposition" against the role of DCPP in such cases and his admission that "his view of psychology's role in child protection services cases may not be widely held in the profession." The judge noted that "Dr. Goldberg . . . offered his personal views of circumstances of this case," and that "[n]othing was offered to suggest that his 'opinions' go anywhere beyond his personal impressions and views."
In his written opinion, Judge Smith stated: "The findings of the psychological and bonding evaluations were contained in one report issued by Dr. Goldberg. The Court has reviewed the report and considered Dr. Goldberg's testimony." In fact, Dr. Goldberg's report was admitted in evidence. Later in the opinion, however, the judge wrote: "For all these reasons, this Court will not consider the testimony of or the opinions offered by Dr. Goldberg." The judge described Dr. Goldberg's testimony as a "net opinion" and thus inadmissible in accordance with the analysis in Pomerantz Paper Corp. v. New Community Corp., 207 N.J. 344, 373 (2011). Defendant argues this was improper suppression of her expert testimony, but the judge did not strike or exclude the evidence from the record.
In context of the decision as a whole, the judge's statements indicate he was performing his proper function of evaluating the credibility of Dr. Goldberg as an expert witness and determining the weight, if any, to give to his testimony. Those are proper functions of the judge as the factfinder. We defer to the trial court's assessment of expert evaluations. In re Guardianship of DMH, 161 N.J. 365, 382 (1999).
Having concluded that the Family Part did not violate defendant's due process rights by considering the psychological evaluations compelled upon defendant and rejecting those of Dr. Goldberg, we next address defendant's argument that the evidence was insufficient to meet the four prongs of N.J.S.A. 30:4C-15.1(a).
With respect to the first prong, the Division "must prove harm that 'threatens the child's health and will likely have continuing deleterious effects on the child.'" A.L., supra, 213 N.J. at 25 (quoting K.H.O., supra, 161 N.J. at 352). The focus of the inquiry under the first prong is the "harms arising from the parent-child relationship over time on the child's health and development," and whether the harm "will likely have continuing deleterious effects." K.H.O., supra, 161 N.J. at 348, 352. Furthermore, the first prong "addresses the risk of future harm to the child as well as past physical and psychological harm." N.J. Div. of Youth & Family Servs. v. H.R., 431 N.J. Super. 212, 222 (App. Div. 2013).
Although physical and sexual abuse are "[p]aramount examples" of harm, N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604 (1986), they are by no means exclusive. Others include untreated mental illness that poses a risk to the child, F.M., supra, 211 N.J. at 449, the inability to provide a safe or stable home for the child, H.R., supra, 431 N.J. Super. at 223, or the failure to understand or provide for a child's needs because of one's own emotional or psychological struggles, N.J. Div. of Youth & Family Servs. v. L.J.D., 428 N.J. Super. 451, 481-82 (App. Div. 2012). "The trial court . . . must consider the potential for serious psychological damage to the child." A.W., supra, 103 N.J. at 605 (citing Sorentino v. Family and Children's Soc'y, 72 N.J. 127, 131-31 (1976)). The judge's findings in this case fit within these categories of serious risks of future harm to the child determined by evidence of defendant's current deficiencies as a parent.
DCPP and the court do not have to wait until the child is irreparably harmed before taking action to protect her. F.M., supra, 211 N.J. at 449. Defendant argues the court may intervene before a child is irreparably harmed, but not before there is an actual physical or psychological harm. In DMH, the Supreme Court stated:
Courts need not wait to act until a child is actually irreparably impaired by parental inattention or neglect. The trial court found that a delay in establishing a stable and permanent home will cause harm to both these children. The lack of a permanent, safe, and stable home has already engenderedThus, the Court considered both actual harm that had already occurred and prospective harm before it occurred.
significant harm to C.H. There is every indication that similar harm may befall R.H.
[DMH, supra, 161 N.J. at 383 (citations omitted)(emphasis added).]
Defendant cites In re Guardianship of K.L.F., 129 N.J. 32, 36 (1992), and argues that her lack of housing and inability to care for a child temporarily, while the child was safely in foster care, does not rise to the level of threatened harm that would satisfy prong one. The facts of K.L.F. are very different from this case. In K.L.F., the parent found "a stable living situation." Ibid. By contrast, defendant has never shown any signs that she will be able to procure adequate housing, in part, because she is not adequately motivated to take personal action to improve her circumstances. Considering her emotional immaturity, and her lack of effort with respect to her older children, she is simply not interested enough in being a parent to engender any confidence that she can care for a child over a sustained period of time.
There was substantial credible evidence to support the judge's conclusion that the child's safety, health and development would be endangered by a continuing parental relationship with defendant. Although the back porch incident did not warrant termination of parental rights, a continued threat of harm existed because defendant and the child's father were unstable and did not provide a reliable home or source of income for raising the child, and they showed no inclination to become more responsible parents.
With respect to the second prong of the statute, the judge found that defendant was unwilling to accept that she had problems, and was either unable or unwilling to take steps necessary to correct them. The judge credited the opinion of Dr. Jeffrey that defendant suffered from a serious narcissistic personality disorder that interfered with her recognizing her deficits and the needs of a child. Despite the Division's efforts to direct her to therapy to manage her condition, defendant did not attend regularly and did not benefit much from the few times that she attended. For the most part, her personality disorder remained untreated.
Defendant points to the fact that she eventually completed parenting classes, submitted to psychological testing, and participated in several months of therapy. Also, she was employed from time to time. But defendant's efforts were hardly sufficient to make her a reliable caregiver for the child. At no point was she able to hold a job for more than four months. While she may have eventually recognized that she needed to learn vocational skills and self-discipline, she did not actually do anything to improve herself, such as enroll in skills courses or obtain a GED. She did not and could not secure a stable home where she might raise a child, and at the same time, she could not or would not abide by the basic social requirements of living with others for a continuing period of time in their homes. She submitted to psychological testing only after several court orders directed her to do so, but she did not follow-up with couples or individual therapy. She attended a few sessions of individual therapy but could not maintain the effort and her therapist terminated the sessions because of defendant's lack of attendance. In sum, the record supported the court's conclusion that the second prong of N.J.S.A. 30:4C-15.1(a) was satisfied.
To satisfy the third prong of the statute, the Division must make "reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home," and the trial court must have "considered alternatives to termination of parental rights." N.J.S.A. 30:4C-15.1(a)(3). This subsection "contemplates efforts that focus on reunification of the parent with the child." K.H.O., supra, 161 N.J. at 354. The reasonableness of the Division's efforts depend heavily on the circumstances and facts of the particular case. L.J.D., supra, 428 N.J. Super. at 488. The efforts by the Division may be reasonable even when reunification is unsuccessful because the Division's "best efforts may not be sufficient to salvage a parental relationship." F.M., supra, 211 N.J. at 452.
Judge Smith found by clear and convincing evidence that the Division made reasonable efforts to eliminate the threat of harm and reunite defendant with her daughter. As we have stated, the Division provided psychological and bonding evaluations, a referral for vocational rehabilitation, parenting classes, couples and individual therapy sessions, and supervised visitation with the child.
The court also noted that the Division explored alternatives for placement of the child. Caseworkers considered the maternal grandmother, but she was unable to accommodate yet another child. They discussed the possibility of a kinship legal guardianship, but the paternal grandmother preferred adoption. Since the paternal grandmother was an approved in-family placement, there was no need for the Division to explore still other options. Thus, the court's conclusion that the third prong of N.J.S.A. 30:4C-15.1(a) was satisfied is supported by the record.
The fourth prong, which requires that termination will do no more harm than good, is intended to act as a final check against "an inappropriate or premature termination of parental rights." F.M., supra, 211 N.J. at 453 (citing G.L., supra, 191 N.J. at 609). To determine comparative harms, the court "necessarily requires expert inquiry specifically directed to the strength of each relationship." K.H.O., supra, 161 N.J. at 355 (quoting In re Guardianship of J.C., 129 N.J. 1, 26 (1992)). This prong is concerned primarily with "the child's need for a permanent and stable home, along with a defined parent-child relationship." H.R., supra, 431 N.J. Super. at 226. Thus, courts should be sensitive to whether refusing termination would "expose the [child] to the dangers and instability" of the parental bond, or "disrupt any permanency" that the child may have established elsewhere. M.M., supra, 189 N.J. at 287.
Judge Smith found that the only harm that might come to the child was from a continued relationship with her parents. The court noted that Dr. Jeffrey conducted a bonding evaluation and concluded that the child displayed a secure attachment to her paternal grandmother with whom she had been living for some time. By contrast, Dr. Jeffrey determined that the child displayed an insecure bond with defendant, an "affectionate tie" but no sense of trust. Dr. Jeffrey concluded that separating the child from her paternal grandmother would cause her substantial psychological harm, and that defendant was not able to mitigate that harm. Based on this record, the judge reasonably concluded that termination of parental rights would not do more harm than good.
The four subsections of the termination statute were proven at the guardianship trial by clear and convincing evidence. Judge Smith carefully reviewed the evidence and stated his findings of fact and conclusions of law in accordance with the requirements of N.J.S.A. 30:4C-15.1(a). He concluded by the clear and convincing standard of proof that the best interests of the child require termination of defendant's parental rights. His findings and conclusions are supported by substantial evidence in the record, and there was no violation of defendant's due process rights.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION