Opinion
DOCKET NO. A-2140-15T2
03-27-2017
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. K.T.T., Defendant-Appellant, and W.L.R., Defendant. IN THE MATTER OF THE GUARDIANSHIP OF A.D.T.R., a Minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Robyn A. Veasey, Deputy Public Defender, of counsel and on the brief). Christopher S. Porrino, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Eleanor M. Armstrong, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Noel C. Devlin, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Fuentes, Simonelli and Gooden Brown. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-211-15. Joseph E. Krakora, Public Defender, attorney for appellant (Robyn A. Veasey, Deputy Public Defender, of counsel and on the brief). Christopher S. Porrino, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Eleanor M. Armstrong, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Noel C. Devlin, Assistant Deputy Public Defender, on the brief). PER CURIAM
Defendant K.T.T., the biological mother of A.D.T.R., born in 2013, appeals from the January 12, 2016 Family Part judgment for guardianship which terminated her parental rights to A.D.T.R. The judgment for guardianship also terminated the parental rights of W.L.R., A.D.T.R.'s biological father; he did not appeal. The trial court found that the Division of Child Protection and Permanency (Division) proved all four prongs of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. We agree and affirm.
Pursuant to Rule 1:38-3(d), we use initials to protect the confidentiality of the participants in these proceedings.
I.
According to the record in this case, the Division's first contact with defendant occurred in 1986 when she was five-years-old. Defendant was placed in foster homes and youth shelters from the age of fourteen. Several psychological evaluations diagnosed her as mildly intellectually impaired. She also underwent several psychiatric hospitalizations to treat active psychosis.
Defendant first gave birth to a child in 2001. In 2004, defendant's parental rights to her first-born child were terminated by judgment of the court. In 2003 and 2008, defendant gave birth to her second and third children. Defendant's untreated mental illness and substance abuse, as well as her poor parenting skills, unstable housing and persistent relationship with W.L.R., a convicted sex offender and batterer, led to the removal and ultimate termination of her parental rights to these children by judgment of the court in 2010. That judgment of guardianship was later affirmed on appeal. N.J. Div. of Youth & Family Servs. v. K.I.T. and W.R., Nos. A-3832-09, A-4177-09 (App. Div. May 31, 2011).
W.L.R. is the biological father of defendant's third child as well as A.D.T.R. W.L.R.'s parental rights were terminated to these children as well as others.
Although disputed by W.L.R., a judgment of conviction confirmed that W.L.R. pled guilty in 1993 and was sentenced to a seven-year term of imprisonment for charges arising out of the sexual molestation of the eight- and nine-year-old daughters of his then girlfriend. W.L.R. is a Tier Two registered sex offender, which is indicative of a moderate risk for re-offending. See N.J.S.A. 2C:7-8(c)(2).
Defendant reported being subjected to domestic violence by W.L.R. dating back to 2008.
Defendant gave birth to A.D.T.R., the subject of this appeal, in May 2013. On August 23, 2014, the Division received its first referral regarding A.D.T.R. On that date, Emergency Medical Services (EMS) personnel were called to defendant's home where they found A.D.T.R. with a "very high fever" and described the condition of the home as "deplorable." Hospital staff reported that the infant was "dirty and unkempt," W.L.R. appeared to be intoxicated, and defendant's speech was slurred. The Division's investigation confirmed the description of the infant's appearance and the condition of the home. The investigation revealed that the floors of the home were "sticky with food," a large number of empty beer bottles were observed in a plastic bag on the floor of the kitchen, and "there [were] cockroaches around the apartment" as well as "near the baby's playpen."
In addition, police reported to Division caseworkers that on July 13, 2014, W.L.R. was arrested and charged with assaulting defendant following a domestic dispute.
The Division conducted an emergency removal, which was later approved by the court, and placed A.D.T.R. in a licensed foster home where she remained for the pendency of the litigation. The Division filed a verified complaint alleging defendant and W.L.R. had abused and neglected A.D.T.R. Following a fact-finding hearing, an order entered on December 18, 2014 determined that A.D.T.R. was subjected to environmental neglect and placed at substantial risk of harm due to defendant's and W.L.R.'s alcohol abuse. On the same date, the court entered an order relieving the Division of its obligation to provide reasonable efforts to reunify A.D.T.R. with her parents based on defendant's and W.L.R.'s prior involuntary termination.
During these proceedings, W.L.R. admitted on the record that he was diagnosed with schizophrenia but was not undergoing treatment.
A permanency hearing was held on January 21, 2015, during which the court determined that the Division's goal of termination of parental rights followed by adoption was appropriate. The court based its decision on defendant's and W.L.R.'s long history with the Division and prior termination of parental rights, defendant's alcoholism and cognitive deficits, and W.L.R.'s sex offender status and mental illness. On March 12, 2015, the Division filed a guardianship complaint and order to show cause against defendant and W.L.R. seeking to terminate their parental rights. The guardianship trial was held on January 12, 2016. Division caseworker Latoya Bowers (Bowers) and Dr. Mark Singer (Dr. Singer) testified for the Division. Additionally, numerous documentary evidence was admitted. Defendant presented no witnesses but testified on her own behalf.
The court noted that defendant arrived at 11:40 a.m. despite being informed that the trial would commence at 10:00 a.m. W.L.R. did not appear for the trial but was represented by counsel.
Bowers detailed the Division's investigation leading to A.D.T.R.'s removal and placement in a foster home. She testified that following her removal, A.D.T.R. was evaluated for early intervention services and found to be developmentally delayed. As a result, services were initiated for A.D.T.R., including weekly speech therapy. Bowers testified that A.D.T.R.'s foster home was comprised of a single mother, her two children, ages twenty and seventeen, and her grandchild. Bowers described A.D.T.R. as "extremely attached" to her foster mother, who provided her with stability. Bowers characterized A.D.T.R.'s relationship with her foster family as "very warm," "loving," and "affectionate." According to Bowers, her foster mother was meeting all of A.D.T.R.'s needs, was committed to adopting her, and had provided the Division with a letter memorializing her commitment.
Bowers testified that defendant and W.L.R. continued to reside together and presented themselves as a couple. When Bowers discussed with defendant W.L.R.'s status as a convicted sex offender, defendant explained that she was not concerned because she did not believe that he would harm his own child. Bowers testified further that, during the protective services litigation, the Division conducted family team meetings (FTMs) and offered defendant psychological and substance abuse treatment as well as supervised visitation with A.D.T.R.
At the Division's request, on September 22, 2014, defendant completed a psychological evaluation conducted by Dr. Singer. During the evaluation, defendant admitted daily alcohol use and periodic marijuana use, but denied ever participating in any substance abuse treatment program. Although defendant reported being diagnosed with schizophrenia in the past, she did not exhibit any overt symptoms suggesting a thought disorder during the evaluation. Of concern, was the fact that defendant planned to raise her child with W.L.R. despite his sex offender status, as well as her reports that he drinks daily and does not take his medication for schizophrenia. The evaluation recommended substance abuse treatment, individual therapy, and parenting skills training consistent with defendant's cognitive functioning.
On October 7, 2014, defendant completed an assessment by a certified drug and alcohol counselor (hereinafter CADC assessment). Defendant was diagnosed with alcohol dependence and recommended for short-term residential treatment preceded by detoxification. Despite this recommendation, defendant attended an out-patient substance abuse treatment program for mentally ill substance abusers at New Directions Behavioral Health Center. However, she failed to successfully complete that substance abuse program or any other. From March to November 2015, defendant was repeatedly discharged and readmitted to New Directions because of sporadic attendance and inconsistent progress. When she did attend, often, she was reportedly intoxicated. She was finally discharged on November 20, 2015, with a recommendation that she attend a long-term residential program to better address her clinical needs.
Bowers testified that in March 2015, she was notified by defendant's substance abuse counselor at New Directions that defendant was depressed and suicidal about being reunified with her child. As a result, defendant was transported to the hospital but was not admitted. Defendant later explained to Bowers that she was depressed about leaving the home she shared with W.L.R. because of a physical altercation between them. Defendant, however, continued to use W.L.R.'s address as her mailing address. Thereafter, defendant's communication with the Division was sporadic despite Bowers' efforts to maintain contact through mailings, phone calls and impromptu visits at the visitation site.
Defendant was also afforded weekly supervised visits with A.D.T.R. at Tri-City Peoples Corporation (Tri-City), but she was often late for her visitation and smelled of alcohol. Bowers testified that whenever she interacted with defendant in person, defendant always appeared to be under the influence. When she addressed it with defendant, defendant admitted that she drank one beer to warm up while waiting for the bus, particularly when it was cold outside.
W.L.R. was offered the same services as defendant. However, he did not complete a CADC assessment and his visitation with A.D.T.R. was more sporadic. After missing his initial appointment, W.L.R. completed his psychological evaluation with Dr. Singer on January 6, 2015. W.L.R. acknowledged being diagnosed with schizophrenia in the past and being hospitalized at Greystone. Despite evidence to the contrary, W.L.R. denied ever being convicted of a sex offense. The evaluation confirmed an alcohol use disorder and an untreated thought disorder and recommended a psychiatric evaluation, individual therapy, substance abuse treatment, and parenting skills training once psychiatrically stable. However, W.L.R. failed to attend a psychiatric evaluation the Division repeatedly scheduled for him and failed to maintain contact with the Division.
Bowers also testified regarding the Division's efforts to explore relatives or other resources identified by A.D.T.R.'s parents. Approximately two months after A.D.T.R. was removed, K.G. was identified by defendant as a family friend. However, she was ruled out by the Division and notified accordingly. No appeal was filed. Bowers testified further that defendant would often call her with proposed resources, some of whom she knew and some she had just met. However, none of these individuals were viable options or ever followed up with the Division. When Bowers actually spoke to one of these individuals, it was clear from the conversation that the person did not know the family or A.D.T.R.
In preparation for the trial, psychological and bonding evaluations were scheduled for defendant with Dr. Singer. However, defendant failed to attend despite being provided with transportation assistance. Dr. Singer, who was qualified without objection as an expert in the field of psychology, testified that he previously conducted multiple evaluations of defendant, the most recent being the September 22, 2014 evaluation, in order to assess defendant's parenting ability, mental status and treatment needs. Because defendant failed to appear for her scheduled evaluation in 2015, Dr. Singer reviewed her prior evaluations as well as a November 20, 2015 report from New Directions. Based on his review, Dr. Singer opined within a reasonable degree of psychological certainty that defendant was not "in a position to be able to function as a minimally adequate parent for [A.D.T.R.]" and was not "likely to become a viable parenting option in the foreseeable future[.]"
Based on the January 6, 2015 evaluation of W.L.R., Dr. Singer's assessment of W.L.R.'s parenting ability was equally poor. Dr. Singer also determined that based on W.L.R.'s untreated substance abuse issues combined with "an untreated chronic thought disorder, he [was] likely to continue to decompensate over time" and "have significant [difficulty] continuing to care for himself over time never mind the child." Dr. Singer opined that placing "a child into his care would be exposing the child to an unacceptable risk of harm."
Dr. Singer also testified about the bonding evaluation he conducted between A.D.T.R. and her foster mother. According to Dr. Singer, A.D.T.R. viewed her foster mother "as being her central psychological parent" and, given A.D.T.R.'s age, severing that relationship "would likely create both significant [and] enduring harm to the child." Because neither parent appeared for their bonding evaluation, Dr. Singer acknowledged having no comparative data. Nonetheless, Dr. Singer opined that "if A.D.T.R. lost what appears to be her only consistent significant parental relationship, she would likely experience both significant and enduring harm[,]" which would cause her "to regress emotionally and behaviorally" in the short term and "experience low self-esteem, feelings of insecurity, feelings of sadness" and "difficulty forming meaningful attachments" in the long term.
Dr. Singer defined the term "psychological parent" as any individual "who a child has come to see as being a central secure attachment figure. It's the person . . . [who nurtures] the child, that the child looks to for security and, ideally, helps the child make sense out of his or her world."
Even assuming an equal or stronger attachment with defendant, Dr. Singer opined that A.D.T.R.'s need for permanency and consistency was paramount and "would produce more good than harm for [A.D.T.R.]" particularly in light of defendant's continued parenting deficits. According to Dr. Singer, every day that A.D.T.R. is denied "the opportunity to achieve permanency and consistency, there's an increased risk of harm to the child."
Dr. Singer's opinion in this regard applied equally to W.L.R. --------
Regarding her efforts to address her substance abuse problem, defendant testified that after she stopped attending New Directions, on December 20, 2015, she moved into Eva's Village, an inpatient treatment program in Paterson, which she purportedly found on her own. She admitted that she falsely reported to Bowers on January 8, 2016, that she was living in Newark and that she was going into a detoxification program.
Based on the evidence presented, the trial court determined in an oral opinion from the bench that the Division had satisfied the statutory criteria for termination of defendant's parental rights. Initially, the court found Bowers' and Dr. Singer's testimony to be "extremely credible." The court noted that Bowers was "well aware of the situation, knew the parties well, knew the situation well" and Dr. Singer "had the advantage of being involved in this case for a long period of time . . . having done previous evaluations of [defendant]." Although there was a gap of a little over a year since the last evaluation, the court observed that "there was no real change. If anything, there may have been some deterioration since that date."
After referencing W.L.R.'s sex offender status, untreated mental illness, severe alcohol problem, and inconsistent visitation, the court noted that defendant was "the more stable of the two" as far as her mental state. Nevertheless, according to the court, defendant "still has mental health issues" and "substance abuse issues" that "she has addressed to a very limited degree." Despite being offered services by the Division, the court found that "the Division met the criteria for entering a no reasonable efforts requirement." Regarding the Division's efforts to explore other resources, the court noted that K.G. was "ruled out" and "[t]here's no indication of any appeal of that rule out[.]"
The court concluded:
It is clear that the parents created harm to this child, were not caring for this child appropriately. The child was found dirty, the home not appropriate. They both . . . had mental health issues they hadn't addressed, were not being medicated, not being treated. They were both using alcohol and other substances, marijuana. There were, clearly, indications that they were incapable of parenting and . . . clearly prong one was met by clear and convincing evidence in this case.
With regard to prong two, the parents continue to be non-compliant with Division services and made no efforts, did not get any
stability, did not get stable housing, did not deal with their mental health, did not deal with their substance abuse, never did anything to alleviate the harm that was initially found in this particular case and prong two was also met by clear and convincing evidence in . . . that they were unable or unwilling to alleviate the harm that was initially found with regard to the child.
Prong three, despite the no reasonable efforts, the Division offered services to both defendants. They offered CADC's. They offered mental health treatment. They offered the services that these parents needed. They were not compliant. . . . [W.L.R.] never got a CADC and [defendant] never complied with the treatment programs. The last one being New Directions. She was on again and off again and finally discharged from that program in November.
To come into court today and say that I'm in a Mommy and Me program allegedly with Eva's Village, but tell her attorney she's coming from Secaucus even though the place is in Paterson, to tell the caseworker that she was going into a detox center which . . . admittedly Eva's Village was not, there's just no credibility here.
There's no indication that she's really in Eva's Village. I don't know whether it's true or not, but it doesn't change the nature of this case . . . anyway. It's clearly far too little, far too late in this particular case. And you can't ignore the Division and ignore the services and ignore the situation and the need for services for so many . . . years and come back into court and say, oh, last week I went into Eva's Village . . . having told the Division totally different information before that. Clearly, this is not credible in any way. . . .
Unfortunately, with regard to prong four, I think Dr. Singer's evaluation of defendants shows clearly they are not capable of parenting. They're not even close to being capable of parenting. It is unreasonable to expect that they would be capable of parenting in the future based on their limitations, mental health, substance abuse issues that have not been addressed for so long. . . . [Defendant] has clearly been involved with these issues since at least 12 years. The Division has been involved since the first child was born. And, apparently, [W.L.R.] has a 25-year history of . . . alcohol abuse . . . . [T]hese are issues that are not easily addressed or easily dealt with. There are mental health issues. There's cognitive limitations that [defendant] has.
Dr. Singer's evaluation and decisions and conclusions in this case are rather [logical] and expected considering the nature and extent of the history of these two defendants and their incapacity to parent these children . . . . [N]either of these parents can possibly . . . even come close to providing a safe, stable environment for this child.
It is not a leap of faith to look at the bonding evaluation and see how close and attached and how well the child behaves with the foster mother. That we have testimony from the caseworker as to how well the child is doing in the household, how the siblings are . . . close and bonded to the child, how well the child is doing, how the child's needs and services are being met . . . this child has special needs on top of that . . . , clearly, the defendants would not be able to meet.
I am satisfied that the conclusion that termination of parental rights could not do more harm than good is so clear and convincing in this particular case knowing the history
of defendants, their inability to parent, and the fact that the child is being cared for as well. And, basically, the child was only a little over a year when removed from . . . the parents. This child probably has really no recollection of ever living with the parents. This is probably the only home that this child really knows and . . . that this child is now bonded and attached to the foster mother would be expected. . . .This appeal followed.
Based on all these facts . . . and [defendant] . . . still [has] . . . unstable housing, has no job, has not addressed any of the substance abuse or mental health issues, has cognitive limitations on top of that and still believes that [W.L.R.] is a viable option [and] still doesn't even find that he presents an unsafe environment to this child based on his sex offender status and . . . that she could clearly not protect this child with that type of belief.
I'm satisfied the Division has met all four prongs by clear and convincing evidence in this case. As a result, I will grant guardianship of A.D.T.R. to the Division and terminate the parental rights of [defendant] and [W.L.R.].
II.
Our Supreme Court has established the standard of review in parental termination cases as follows:
Our task as an appellate court is to determine whether the decision of the family court in terminating parental rights is supported by substantial and credible evidence on the record. We accord deference to factfindings of the family court because it has the superior ability to gauge the
credibility of the witnesses who testify before it and because it possesses special expertise in matters related to the family . . . . We 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. It is not our place to second-guess or substitute our judgment for that of the family court, provided that the record contains substantial and credible evidence to support the decision to terminate parental rights.
[N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012) (citations omitted).]
However, the "traditional scope of review is expanded" where an appeal is focused on "'alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom[.]'" N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014) (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188-89 (App. Div. 1993)). A trial judge's "'interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.'" Ibid. (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
It is well-settled that a court should terminate parental rights when the Division proves by clear and convincing evidence that:
(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 [D]ivision 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).]
The four prongs of N.J.S.A. 30:4C-15.1(a) "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." F.M., supra, 211 N.J. at 448 (citations omitted). The Division need not demonstrate actual harm in order to satisfy prong one. N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 440 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002). "Courts need not wait to act until a child is actually irreparably impaired by parental inattention or neglect." In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999) (citation omitted). The test is whether the child's safety, health, or development will be endangered in the future and whether the parent is or will be able to eliminate the harm. A.G., supra, 344 N.J. Super. at 440.
Prong one can be satisfied by establishing the serious psychological damage to the child caused by the parental relationship, as well as the potential for emotional or psychological harm resulting from the parent's actions or inactions. In re Guardianship of K.L.F., 129 N.J. 32, 44 (1992); N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986). A parent's failure to provide a "permanent, safe, and stable home" engenders significant harm to the child. D.M.H., supra, 161 N.J. at 383. Likewise, a parent's failure to provide "solicitude, nurture, and care for an extended period of time is in itself a harm that endangers the health and development of the child." Id. at 379.
"The second prong, in many ways, addresses considerations touched on in prong one." F.M., supra, 211 N.J. at 451. The focus is on parental unfitness. D.M.H., supra, 161 N.J. at 378-79; In re Guardianship of K.H.O., 161 N.J. 337, 352 (1999). In considering this prong, the court should determine whether it is reasonably foreseeable that the parent can cease to inflict harm upon the child. A.W., supra, 103 N.J. at 607. The second prong may be satisfied
by indications of parental dereliction and irresponsibility, such as the parent's continued or recurrent drug abuse, the inability to provide a stable and protective home, the withholding of parental attention and care, and the diversion of family resources in order to support a drug habit, with the resultant neglect and lack of nurture for the child.
[K .H.O., supra, 161 N.J. at 353.]
As we have noted, "parents dabbling with addictive substances must accept the mandate to eliminate all substance abuse" and "[s]uch unabated behavior . . . causes continuing harm by depriving their children of necessary stability and permanency." N.J. Div. of Youth & Family Servs. v. T.S., 417 N.J. Super. 228, 245 (App. Div. 2010), certif. denied, 205 N.J. 519 (2011). "Prong two may also be satisfied if 'the child will suffer substantially from a lack of . . . a permanent placement and from the disruption of [the] bond with foster parents.'" F.M., supra, 211 N.J. at 451 (quoting K.H.O., supra, 161 N.J. at 363).
"The third prong [of the best interests test] requires an evaluation of whether [the Division] 'made reasonable efforts to provide services to help the parent' remedy the circumstances that led to removal of the children from the home." F.M., supra, 211 N.J. at 452 (quoting N.J.S.A. 30:4C-15.1(a)(3)). The emphasis on the third prong
is on the steps taken by [the Division] toward the goal of reunification. The diligence of [the Division's] efforts on behalf of a parent is not measured by whether those efforts were successful. Reasonable efforts may include consultation with the parent, developing a plan for reunification, providing services essential to the realization of the reunification plan, informing the family of the child's progress, and facilitating visitation.
[Ibid. (citations omitted).]
In determining whether the Division has made reasonable efforts at reunification, the court must consider "the parent's active participation in the reunification effort." D.M.H., supra, 161 N.J. at 390. The failure or lack of success of the Division's efforts does not mean it failed in the reunification process, particularly where the parent refused to cooperate. Id. at 393; K.H.O., supra, 161 N.J. at 364. "Experience tells us that even [the Division's] best efforts may not be sufficient to salvage a parental relationship." F.M., supra, 211 N.J. at 452.
As part of its analysis, "the court must consider the alternatives to termination of parental rights and whether the Division acted reasonably." A.G., supra, 344 N.J. Super. at 434-35. "The reasonableness of the Division's efforts depends on the facts in each case." Id. at 435. The Division is only obligated to assess "each interested relative's ability to provide the care and support[.]" N.J.S.A. 30:4C-12.1(a). Even where a relative has been identified and is an appropriate placement, the law does not create a presumption in favor of relative placement. N.J. Div. of Youth & Family Servs. v. J.S., 433 N.J. Super. 69, 82 (App. Div. 2013), certif. denied, 217 N.J. 587 (2014); N.J. Div. of Youth & Family Servs. v. M.F., 357 N.J. Super. 515, 528-29 (App. Div. 2003).
The fourth prong of the best interests tests seeks to determine whether "[t]ermination of parental rights will not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4). The fourth prong serves as a "'fail-safe' inquiry guarding against an inappropriate or premature termination of parental rights." F.M., supra, 211 N.J. at 453. "The question ultimately is not whether a biological mother or father is a worthy parent, but whether a child's interest will best be served by completely terminating the child's relationship with the parent." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 108 (2008). The court must determine "whether . . . the child will suffer a greater harm from the termination of ties with [his or] her natural parents than from the permanent disruption of [his or] her relationship with [his or] her foster parents." K.H.O., supra, 161 N.J. at 355.
Because harm to the child stemming from termination of parental rights is inevitable, "the fourth prong of the best interests standard cannot require a showing that no harm will befall the child as a result of the severing of biological ties." Ibid. Rather, the court's inquiry is one of comparative harm, for which the court must consider expert evaluations of the strength of the child's relationship to the biological parents and the foster parents. Ibid. Thus, "to satisfy the fourth prong, the [Division] 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 (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 281 (2007)). "Under this prong, an important consideration is '[a] child's need for permanency.' Ultimately, a child has a right to live in a stable, nurturing environment and to have the psychological security that his [or her] most deeply formed attachments will not be shattered." Ibid. (citing M.M., supra, 189 N.J. at 281).
Applying these standards, we discern no reason to disturb the court's ruling. In lieu of restating the "prong-by-prong" analysis conducted by the court, we incorporate by reference the court's findings and legal conclusions reflected in the oral opinion delivered from the bench on January 12, 2016. Defendant argues that the evidence did not rise to the clear and convincing standard for all four prongs of the best interests test, and, "[i]nstead, the Division relied almost entirely on the Appellate Division opinion" terminating her parental rights to other children. Defendant argues that "the law of the case doctrine should not have been applied to separate cases" and the court's reliance on the Appellate Division opinion "was an abuse of discretion."
Citing the law of the case doctrine, at the Division's request, the court moved into evidence a copy of the previous Appellate Division decision dated May 31, 2011, regarding defendant's and W.L.R.'s termination of parental rights to other children in order to establish the Division's history with the family. In addressing defense counsel's objection, the court agreed that the decision was not dispositive but that the Division was still required to prove all four prongs of the best interests test with respect to this case. While defendant is correct that the law of the case doctrine is inapplicable in these circumstances, the court was permitted to consider the history of the parents' unfitness from the quality of care given to other children in their custody. See N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 573 (App. Div. 2010) (holding that in civil proceedings for the protection of a child, a parent or guardian's past conduct towards other children in their custody can be relevant and admissible in determining risk of harm to the child in question). Indeed, N.J.S.A. 9:6-8.46(a)(1) states that "proof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child of . . . the parent or guardian."
Contrary to defendant's assertion, the court's focus was not solely upon evidence relevant to the termination of defendant's rights to her other children. Rather, the court comprehensively and extensively addressed the additional evidence arising thereafter as well as its evaluation by an expert. See N.J. Div. of Youth & Family Servs. v. S.A., 382 N.J. Super. 525, 535 (App. Div. 2006) (criticizing the court's focus solely upon evidence relevant to the termination of defendant's parental rights to her other child rather than addressing additional evidence arising thereafter).
Further, defendant argues that the court abused its discretion in entering a "[n]o [r]easonable [e]fforts order" based solely on the prior termination of defendant's parental rights. Defendant continues that the court's determination that the entry of the order fulfilled the third prong of the best interests test was an abuse of discretion. We disagree. N.J.S.A. 30:4C-11.3(c) provides that the Division need not engage in reasonable efforts to reunify parent and child where "[t]he rights of the parent to another of the parent's children have been involuntarily terminated." That was the case here and no more was required for the entry of the order. Cf. S.A., supra, 382 N.J. Super. at 537 (recognizing that under N.J.S.A. 30:4C-11.3, the termination of parental rights to one child does not conclusively establish the parent's ineligibility for Division services to reunify the parent with a different child, if the Division or the court determines that family reunification is in the child's best interests). Further, despite being relieved of its obligation, the Division provided services to defendant nonetheless. In evaluating prong three, the court considered those services and defendant's noncompliance as well as the Division's assessment of individuals identified for placement by defendant, none of whom proved viable or interested.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION