Opinion
DOCKET NO. A-0327-11T3
02-08-2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES,1 Plaintiff-Respondent, v. C.S., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF C.S., Minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Howard Danzig, Designated Counsel, on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel and on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Todd Wilson, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Alvarez, Waugh and St. John.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-122-10.
Joseph E. Krakora, Public Defender, attorney for appellant (Howard Danzig, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel and on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Todd Wilson, Designated Counsel, on the brief). PER CURIAM
C.S. appeals the termination of her parental rights in her son, referred to as "Carl," born December 25, 2004. She challenges the Family Part judge's conclusion that the Division, by clear and convincing evidence, met the four-part statutory test embodied in N.J.S.A. 30:4C-15.1(a). We affirm.
I
We glean the following facts and circumstances from the record. On January 3, 2005, the Division filed a verified complaint and order to show cause seeking custody, care, and supervision of Carl after C.S. came to the Division's attention when, three days after Carl's birth, the hospital reported that C.S. was exhibiting bizarre behavior. This included refusing to allow nurses to touch Carl, lying on another person's bed, and using another patient's phone without permission. The hospital also reported that C.S. was homeless and not taking her prescribed medications. The Division confirmed that C.S. had been previously committed to a psychiatric facility for bipolar mood disorder as a result of a September 2003 arrest for loitering and prostitution in New York state.
Initially, C.S. complied with the Division's case plan requiring her to obtain mental health treatment and accept services. The Division offered C.S. a temporary twenty-four-hour homemaker, a visiting nurse, and parenting classes. However, due to continuing concerns regarding C.S.'s mental health, the Division sought and obtained legal custody of Carl.
Carl was placed with C.S.'s aunt, G.H., upon his release from the hospital. C.S. would visit the aunt's home every day from 9:00 a.m. until approximately 8:00 p.m., essentially spending the day with Carl. Although she was appropriate with him, she and her aunt had daily altercations. The aunt eventually requested that Carl be removed because of C.S.'s threatening conduct towards her and her daughter. Carl was therefore placed with a foster family in early February 2006.
C.S. stopped taking her medication again in February 2006 because she was assessed by a psychiatrist who allegedly indicated that she did not require medication, even though a psychologist had opined she did need medication to be stabilized. As a result of the conflicting recommendations, the Division referred C.S. to a third expert, a psychiatrist, who concluded that C.S. should be on medication.
The court suspended C.S.'s visitation on March 15, 2006 because C.S. refused to comply with her medication regimen. Meanwhile, C.S.'s attorney arranged for her to see yet another psychiatrist, who prescribed Depakote to treat her bipolar disorder. C.S. also began treatment at the Bayonne Community Mental Health Center (Center) in May 2006. Her visitation was reinstated on May 23, 2006.
In October 2006, the court signed a permanency order preparing for reunification once C.S. disposed of a pending criminal matter in New York. Unfortunately, C.S. was arrested on a warrant from that jurisdiction for an alleged parole violation. Although ultimately released, as she had never been placed on parole and no warrant should have issued, C.S. was incarcerated in New York until May 2007, and was then transferred to two different psychiatric facilities until August 2007. The Division continued to pay for C.S.'s apartment and took Carl to New York to visit with his mother.
After her release, the Division again referred C.S. to the Center for treatment. However, she was so disruptive and combative in group settings that she was switched to individual therapy. At the Center's recommendation, the Division urged her to obtain the services of a "mental health advocate" at the Mental Health Association of Hudson County, but she refused.
In October 2007, C.S. submitted to a parenting assessment by a psychologist, Charles Daly. She reported that she had been born drug-addicted and shortly after birth had been removed by Child Welfare officials. C.S. was raised by her grandmother and three different foster families, and attended school only through sixth grade. At age sixteen, she was incarcerated for robbery and assault.
Daly's testing revealed that C.S. would not ever deliberately harm Carl, but had "highly significant indicators of histrionic traits coupled with narcissistic and compulsive features." Additionally, she had a "severely elevated" paranoia score. When asked, C.S. could not name the drugs she had been prescribed nor articulate a plan for the care of Carl.
Daly concluded that "under no circumstances" was C.S. able to parent Carl independently, and that to return him to his mother "would be an irresponsible and dangerous act." She had the potential to parent adequately after years of preparation, but she did not presently "have the knowledge or emotional maturity/stability necessary" to be the decision-maker for her son. Daly recommended that C.S. attend individual psychotherapy at least twice a week, receive vocational training, and undergo yet another psychiatric evaluation.
On April 29, 2008, the court approved another plan of reunification contingent upon C.S.'s co-parenting with a relative. This relative, however, ultimately said he was unable to help. Other family members were contacted, but none were willing to become involved.
Carl's stay at his first foster home, from February 2006 until May 2009, ended as a result of C.S.'s conduct. Within a week of that first placement, C.S. called in a referral alleging Carl had lost three pounds and that he had been scratched. Over the course of the litigation, regarding this and other placements, C.S. called in a total of 108 allegations of abuse to the Division hotline; none were substantiated. C.S. had been instructed to call the office with her concerns, as opposed to the hotline, which was reserved for emergencies.
At first, C.S. visited Carl twice weekly for two hours per session at the Division's office. Then commencing in August 2006, Carl would visit in C.S.'s home from Thursday night until Monday morning, supervised by a twenty-four-hour homemaker. Although at trial C.S. produced one homemaker who reported that she always acted appropriately with Carl, C.S.'s conduct resulted in the Division hiring a total of four different homemaker services, and having to pay a higher rate to induce the last service to continue to provide an aide. C.S. refused to let the homemakers use her bathroom, refused to let them sit or sleep on her furniture, and requested that they take her and her baby out in the homemaker's private vehicle, sometimes out- of-state, a practice which was forbidden. During the time frame in which C.S. had overnight visits, the Division gave her $100 per month for food, increased to $150 in April 2008.
Carl's first resource family had an adult daughter nicknamed "Ray Ray," with whom Carl was very close. C.S. seemed troubled by the relationship, and convinced Carl to claim that Ray Ray had sexually molested him. After the report, he was immediately evaluated, and no evidence of abuse was found. Carl repeated the story verbatim in a "sing song" voice to anyone who asked. Carl was interviewed at the Hudson County Child Advocacy Center by a detective but was unable to identify male genitals using the same language in which he reported the abuse allegedly inflicted by Ray Ray.
Also referred to as "Ra Ra."
When the Division arranged for Carl to be evaluated at a counseling center the following week, and C.S. learned this was to take place during her scheduled visitation, she refused to let him go, even if the Division made up the visitation time. Police were eventually called to handle the confrontation. C.S. told an officer, in front of Carl, to "shut up you white ho slut," and refused to allow Carl to attend unless she could accompany him, resulting in the cancellation of the appointment.
A Division caseworker, Rashon White, testified that on one occasion when he picked Carl up from a visit with C.S., Carl told him that although he missed his first foster mother, he no longer wished to live with that family because "my mommy is always trying to get them in trouble." Carl also told White that "mommy says that they always hit me and I keep telling her no." He also said that C.S. made him report the abuse. Carl asked White to tell the police that Ray Ray did not do anything to him because he did not want her to go to jail, but expressed fear that his mother would go to jail for lying.
Upon Carl's removal from the first foster home, C.S. urged the Division worker to place him with a "white family" because they "would never want to adopt a n----r." If the Division could not find "crackers" with whom to place him, she asked that it locate a Hispanic family but immediately changed her mind, saying "they are freaks." C.S. reiterated that she wanted Carl placed in a home where "they will not want to adopt [him]."
Carl was placed in a second foster home in May 2009, where he resided through the time of trial. That family wishes to adopt him. While Carl stayed in that home, C.S. alleged that another child in the foster home tried to touch Carl's buttocks. C.S. told Carl that "[n]obody's ever going to love you like I do" and "bashed" his new foster parents to him.
The Division's permanency plan recommending termination of parental rights was approved on August 17, 2009. On October 13, 2009, the Division filed a complaint for guardianship and the protective services litigation was dismissed.
On June 4, 2009, C.S.'s in-home visits were suspended because she threatened to kill her attorney. When she testified, C.S. did not deny the threats, but merely excused them.
C.S. continued to visit with Carl at the Division office twice a week. During visitation, she routinely called Carl a "n----r," despite being asked not to do so. C.S. made fun of her son's voice, saying that he sounded like "a little bitch" and telling him he needed to speak in a deeper voice. She also made fun of his clothing, saying that his foster parents should be buying him name brand clothes. At some visits, C.S. would gather up her things and threaten to leave, telling Carl that "I'm never going to see you again," and "[t]hey're taking you away from me." Carl would become upset and run after his mother, pleading "don't leave." She also continued to braid his hair even after workers explained that a dermatologist attributed aggravation of Carl's scalp condition to the braiding.
C.S. was verbally abusive towards a deputy attorney general assigned to her case, a caseworker named Shannon Fields, and a forensic social worker named Thomie Belton. She called these individuals foul and vulgar names, and swore at them. On one occasion, Belton had to obtain police assistance in order to remove Carl at the end of a visit, and C.S. continued using foul and abusive language towards her even after the police arrived.
In April 2010, C.S. repeatedly called Carl's daycare even though she had been previously informed that the school could not release information about him. When she did not receive the response she wanted, she called the daycare forty-five times in less than an hour. Although informed that they would call police if she did not cease calling, she did not stop until the police spoke with her.
The Division provided C.S. with parenting classes, and even a DVD player, so that she could have visual aids in her home when the Volunteers of America visited. The Division also gave her a bus card every month.
In September 2010, G.H., C.S.'s aunt, testified that although she had not previously wanted to be responsible for Carl, she was then willing to become involved in kinship legal guardianship (KLG) because she had heard that Carl was being mistreated and molested. Even if untrue, she was still willing to take part in a KLG. She acknowledged telling C.S. that she would have to "change her ways" in order for her to be willing to reenter Carl's life. At that juncture, G.H. had not seen Carl for four years.
C.S. interrupted the guardianship trial on several occasions, including by making derogatory comments addressed to the judge. As the trial proceeded, due to C.S.'s ongoing conduct, the Division suspended C.S.'s visitation on September 1, 2010. The Division became increasingly concerned about C.S.'s "inappropriate behavior," including telling Carl to "act gangster" in the foster home so that he could live with her. After being told that her visits were suspended, C.S. appeared at the Division office and attempted to attack one of the workers physically and threatened to go to Carl's second foster home to remove him. In January 2011, C.S. was readmitted to a psychiatric hospital for several weeks.
During the trial, several experts testified on behalf of the Division as well as C.S. Marc Friedman, a psychologist, evaluated C.S. at the request of her attorney and conducted bonding evaluations. He met with C.S. in November 2008, July 2009, and June 2010. He concluded that C.S. showed "severely narcissistic and paranoid traits." C.S. had "difficulty in trusting others" and "may be delusional in her beliefs that others mean her harm." Friedman reported that she showed signs of psychiatric illness including bipolar disorder and a personality disorder, with paranoid and narcissistic features. He opined that C.S. would require therapy and medication before custody could be considered. Without ongoing psychiatric treatment, Friedman found her to be likely "to become periodically delusional and this type of thinking could interfere with her ability to appropriately raise her son." With weekly treatment and continued compliance with medication, however, she could "adequately" function as a parent. Despite his opinion that after some years with support C.S. could eventually parent alone, he admitted that her prognosis was "probably not good."
Friedman found C.S. and Carl to have a close bond, although during their meeting C.S. asked Friedman if he was the one who reported that she was mentally ill, not understanding that to be an inappropriate topic to raise in front of Carl during the evaluation. She also reiterated her sexual molestation allegations regarding Ray Ray in Carl's presence, which upset him.
Despite his concerns, Friedman opined that severing the bond between mother and child could result in "extreme negative consequences." He also thought it "unwise" to disrupt Carl's current placement and recommended continued weekly supervised visits with his mother while Carl remained in the current foster home. In Friedman's view, the benefits to be gained from permanency would not outweigh the negative effects of termination of parental rights.
Richard Klein, a psychologist, also testified on C.S.'s behalf. He described her as suffering from "severe psychopathology," in remission as a result of medication. He admitted that C.S. "may never be able to parent," and that any time frame such as the one he suggested of five years for improvement was no more than a guess. Klein conducted a bonding evaluation, reporting that when asked outside of his mother's presence with whom he would like to live, Carl said he would like to live with C.S. The interaction during the bonding session was loving and appropriate, although when it ended, C.S. delayed and was inappropriately loud. Klein opined that a termination of parental rights would do more harm than good because of the psychological trauma that Carl would suffer. He did not observe Carl with his foster parents, but nonetheless said that they could not mitigate the damage that would be inflicted as a result of the termination of parental rights.
Frank Dyer, a psychologist, also conducted bonding evaluations at the Division's request. C.S. accused him of having already made up his mind about her, and was therefore very hostile during the evaluation. While being interviewed, C.S. acknowledged being mentally ill, but insisted that her illness had no impact on her ability to parent. According to Dyer, if C.S. understood the effect her illness had on her ability to parent, she would cooperate with treatment, however, her lack of insight indicated a poor prognosis as she simply does not accept the two things are related.
C.S. admitted to Dyer that she had called her caseworker some foul names, although she denied others. She also admitted threatening to kill her former attorney. In Dyer's view, C.S.'s poor impulse control made it difficult for her to work with the professionals attempting to assist her.
Dyer diagnosed her as suffering from bipolar disorder as well as personality disorder, with paranoid, histrionic, and anti-social features. These character traits would make it difficult for her to deal with others in Carl's life such as teachers and doctors.
Because C.S. took no responsibility for her son's placement in foster care, the prognosis was poor as to her ability to parent. It was not parenting skills that she lacked, but the ability to understand the effect her distorted perceptions had on Carl. Dyer believed that C.S. does not have the capacity to parent because she is "too inappropriate, negativistic, defiant, confrontational[,] and paranoid" to provide a nurturing home. Furthermore, she models "aggressive[,] confrontational, and coercive" behaviors that would hamper Carl from forming an "independent and well-defined[,] mature self-concept."
Clearly Carl was happy to see C.S. and was attached to her, and said he wanted to live with her "[b]ecause she takes good care of me." Dyer noted that during the interview, however, C.S. held Carl on her lap and fed him by hand even though he resisted, and he responded in baby talk.
The foster parents, on the other hand, were "mature, competent, [and] emotionally stable." Carl was emotionally responsive to their affection. In Dyer's view, Carl had begun to form an attachment to the foster parents. Some harm would result from separating him from them, because they offered a more rational and consistent environment than his mother. Furthermore, his mother would not understand his distress and not be able to ameliorate the loss. However, there was no "optimal outcome" for Carl that would protect him against harm. Because of his multiple placements, he was not resilient. Dyer did not doubt that loss of contact with his mother would result in "a very painful loss." Nevertheless, he opined that she simply was not a viable candidate for custody of her son, and that returning Carl to his mother would threaten his emotional development. If he were placed with C.S. and removed again, it would be very damaging. In his view, the foster home adoption was in Carl's best interest.
Carl underwent yet another psychological evaluation at the law guardian's request with Dr. Karen Wells. Wells opined that C.S.'s use of pejorative terms to Carl was "emotionally scarring." C.S.'s limited insight into her own behavior greatly hampered her ability to benefit from treatment. Wells concluded that C.S. suffered from bipolar disorder (in remission) and borderline personality disorder with histrionic features.
If returned to C.S., there was a high probability that Carl would inevitably be returned to foster care. In other words, although C.S. benefited from medication, it did not assist her in parenting. Neither would therapy enable her to engage in personal growth or behave in a socially acceptable manner.
Wells agreed that C.S. and Carl had a strong bond. Although Wells acknowledged that Carl would suffer severe, enduring psychological harm from the termination of his mother's parental rights, she believed Carl's foster family would be able to mitigate the harm. She noted that Carl had not shown behavioral difficulties as a result of the reduction in C.S.'s visitation.
Wells concluded that the foster parents and Carl were bonded, and that they were his psychological parents. Carl would suffer if separated from them and the continuity of their care, and C.S. would not be able to mitigate that harm as she would not even be able to acknowledge the loss was a harm at all. Wells did not recommend KLG, as she opined C.S. would sabotage it. In her opinion, the only option and the best plan for Carl's emotional well-being was termination of parental rights and adoption by the current foster parents.
II
After reviewing the record, the testimony, and reports of those expert witnesses that we have described, the Family Part judge found that the Division had readily established by clear and convincing evidence the four statutory factors necessary for termination of parental rights. See N.J.S.A. 30:4C-15.1(a). She did not find C.S.'s expert witnesses credible, as they seemed to discount the effect C.S.'s behavior had, and would have, on Carl.
As to prong one, the court found that C.S.'s bipolar disorder was "a minor factor." The disorder improved significantly with medication, but C.S.'s "histrionics, defiant behavior, poor impulse control, poor judgment and most significantly her paranoia and mistrust of everyone," did not decline, had already harmed Carl, and would continue to do so in the future. For example, C.S.'s conflicts with her aunt, who had supervised very liberal visitation, eventually resulted in Carl's removal to the home of a resource family. As the court noted, "[b]eing unable to appreciate this lesson, [C.S.] initiated false accusations of sexual abuse against the [first] foster family causing yet another removal of [Carl]." Still not appreciating the harm she was inflicting on Carl, C.S. made false allegations against the current foster family. The court observed, "[C.S.'s] belief that she has never intentionally caused damage to [Carl,] or ever will intentionally cause damage to [him] [is] credible, that is the point. She simply doesn't understand it and . . . she never will understand it." Additionally, while in Carl's presence, C.S. used inappropriate language and engaged in violent behavior. She made 108 phone calls to the Division hotline and forty-five calls to the daycare facility. Thus the judge concluded that the Division had readily demonstrated that Carl's safety, health, or development was endangered by the parental relationship.
The court found that prong two was also satisfied. In the six-and-a-half years after Carl's removal, C.S. has not progressed despite treatment, services, and medication. C.S.'s "inability to recognize herself as the cause of harm to [Carl] will continue indefinitely and this precludes mere attendance at therapy sessions from having any significant beneficial effect on her." C.S. cannot "set proper standards in behavior, thought, discussion and how to handle adversity" in contrast with the foster family.
As to prong three, the court said that over many years the Division attempted to provide C.S. with every possible service in the hopes of reuniting her with Carl. She enumerated those efforts, including psychological and psychiatric evaluations, treatment, the offer of a mental health advocate, parenting classes, bus passes, homemakers, cash for food as well as rental payments, and even visitation while C.S. was institutionalized in New York state. The court described the Division's recognition that because of C.S.'s mental health and unique personality issues, she was an unusual "challenge." Therefore Division workers tolerated insults including "gay bashing, racial taunts and other slurs," in the hopes that ultimately the child and mother could be reunited. At C.S.'s request, the Division evaluated family members in Florida and New York, attempted to locate additional relatives, and initially placed Carl with kin, C.S.'s aunt, G.H. The court specifically found that G.H.'s change of heart regarding KLG was irrelevant because "nothing will stop [C.S.] from again sabotaging any new arrangement . . . involving custody of [Carl]."
The court engaged in thoughtful analysis of the question of whether termination of parental rights will do more harm than good, prong four of the statute:
The court finds that separation from [C.S.] will cause [Carl] to suffer a severe and painful loss of significant duration. This cannot be denied. The inquiry however does not end here. It is one factor when balancing the relative harms. Separation from [C.S.] provides enormous benefits. [Carl] will not be taught (directly and indirectly) to mistrust the world, to respond to adversity with defiance, to use vicious language or bad behavior. He will not be subject to insulting and demeaning criticism of himself by [C.S.]. He will not suffer yet another devastating removal which he almost certainly would if he was returned to [C.S.]. Her limitless ability to provoke authority or cause a crisis would result in [an emergent] removal sometime in the not too distant future. In short, [Carl] will not turn into his mother, who herself had to suffer through the child welfare "system" without the benefit of permanency; adoption.
The bonding evaluations of [Carl] with the foster parents that were actually observed by psychologists show a strong bond and no irregular or suspicious behavior by either child or foster parent. [Carl] is doing well with his foster parents. They will be able to mitigate much of the harm caused by the separation from [C.S.]. That shortfall will more than be made up by his becoming a permanent part of a stable and healthy family as opposed to what would befall him if returned to his well meaning, but extremely dangerous mother.
The Division has met its burden of proof. The best interests of [Carl] will be served by terminating [C.S.]'s parental rights and allowing [Carl] to be adopted. The court is also satisfied that the rights of K.H. or [Carl]'s father, whoever he may be, should be terminated pursuant to N.J.S.A. 30:4C-15.1b(1)(b) as the Division provided an Affidavit of Diligent Inquiry and an Affidavit of Non-Military Service both dated April 27, 2010 evidencing their reasonable efforts to locate [the father].
We affirm essentially for the reasons expressed in the trial judge's opinion with the following comments.
III
Our review of fact finding in a termination case is limited. We do not disturb such findings "unless 'they are so wholly unsupportable as to result in a denial of justice,' and are upheld whenever they are 'supported by adequate, substantial and credible evidence.'" Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 475 (1988) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)). This trial judge's findings of fact were indeed "'supported by adequate, substantial and credible evidence.'" Ibid.
Additionally, a child has a "paramount need" for permanent and defined parent-child relationships. In re Guardianship of J.C., 129 N.J. 1, 26 (1992). There are "strong policy considerations that underscore the need to secure permanency and stability for the child without undue delay." In re Guardianship of D.M.H., 161 N.J. 365, 385 (1999). It is this need for permanency that drives the decision made by the trial judge, as the record so clearly demonstrates that C.S. is unable to care for Carl in light of her conduct over the last six-and-a-half years.
IV
The absence of physical abuse or neglect is not conclusive; the "potential for serious psychological damage" must also be taken into account. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 605 (1986); see also N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 439-40 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002); In re Guardianship of R., G. & F., 155 N.J. Super. 186, 194 (App. Div. 1977). And in that regard, courts need not wait to intervene until a child is "irreparably impaired." D.M.H., supra, 161 N.J. at 383. The admonition must be "understood, considered, and applied in the context of a clear record showing a pattern of parental inaction and neglect, amounting to unfitness." N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 615 (App. Div.), certif. denied, 192 N.J. 68 (2007).
Despite these well-established principles, C.S. contends that the absence of evidence that Carl has been physically harmed in any way, or is likely to be physically harmed in the future, undermines the trial court's determination as to prong one. This contention lacks merit.
There was, as the trial judge noted, substantial evidence — clear and convincing evidence — that C.S.'s conduct had already psychologically harmed this child. In the course of achieving her goal of Carl's removal from his foster families, C.S. encouraged Carl to engage in inappropriate behavior, including convincing him to falsely accuse a member of his first foster family, to which he was very attached, of sexual misconduct. C.S. could not control her behavior towards Division workers and homemakers even in Carl's presence.
C.S.'s visitation was interrupted when she threatened to kill her attorney, and stopped when she became physically aggressive towards Division personnel. Intentionally or not, she effectively withdrew her solicitude, nurture, and care, thus endangering Carl's health and development. See D.M.H., supra, 161 N.J. at 379. These disruptions, according to the experts, can affect, will affect, and to some degree have already affected, Carl's self-esteem, ability to trust and to form attachments.
One of C.S.'s own experts, Klein, concluded that her "explosive" and "hostile" behavior in front of her son "would have an adverse and negative effect." Wells, the law guardian's expert, specifically described an incident in which C.S. informed Carl that the Division wanted to "tear them apart" as adversely affecting Carl's perceptions and ability to trust; "he would come to see anyone else who was providing care as part of the . . . conspiracy to tear [them] apart." Friedman, C.S.'s other expert, said that her "paranoid orientation towards life" would be "very detrimental" to Carl.
Dyer, the State's witness, to whom the trial judge gave great credence, testified that C.S.'s personality disorder put Carl at risk due to lack of nurturance, structure, stimulation, and physical protection. He also believed that the "aggressive[,] confrontational [and] paranoid" behaviors that C.S. modeled for her son would affect his ability to form an "independent and well-defined, mature self-concept" and would hamper his development of "a proper capacity to regulate mood, regulate anxiety, and formulate mature, rational judgments about situations that he would encounter in reality, separate and apart from this skewed view of reality that his mother is trying to impart in him."
Finally, a child's unfulfilled need for a permanent home and identity is harm in itself as demonstrated by "serious emotional injury or developmental delay." N.J. Div. of Youth & Family Servs. v. B.G.S., 291 N.J. Super. 582, 591-92 (App. Div. 1996). At the time of trial, Carl had been out of C.S.'s care since his birth, for six years, and C.S. still could not provide him with a safe and stable home. Dyer explained that the "limbo state of foster care" was "in and of itself a handicapping condition" that affected Carl's "self-esteem, sense of security, anxiety level and a number of other psychological characteristics." The lack of permanency itself would be "destructive" for Carl.
The trial judge observed that every expert testified that at the time of the trial, it was not safe to return Carl to his mother. At a minimum, it would take several years of treatment before C.S. could successfully parent Carl. Although the court agreed that C.S. did not have to be "cured," she had to at least not pose a risk of harm to Carl. Yet, despite intermittent mental health treatment and other services over the years, C.S. made no real progress. Since she does not recognize herself as the potential source of harm to Carl, she is not motivated to change her behavior. C.S. is unable to overcome the risk that she poses to the health, safety, or welfare of Carl.
The record also supported the trial judge's conclusion that separation from the foster parents would cause serious and enduring emotional and psychological harm. C.S.'s character would prevent her from ameliorating that harm.
We also agree with the court's conclusion regarding the third prong. Over six-and-a-half years, the Division made extraordinary efforts to attempt to reunite parent and child. This contention does not warrant further discussion in a written decision. See R. 2:11-3(e)(1)(E).
Insofar as the final prong, it is undisputed that Carl has a strong attachment to his mother. The question, however, is not whether he has an attachment. To the extent possible, the "harm [that] will befall the child as a result of the severing of the biological ties" must be assessed. In re Guardianship of K.H.O., 161 N.J. 337, 355 (1999). The real question "is whether, after considering and balancing the two relationships [between the child and the natural parent and the child and the foster parent], the child will suffer a greater harm from the termination of ties with her natural parents than from the permanent disruption of her relationship with her foster parents." Ibid.
Prong four "serves as a fail-safe against termination even where the remaining standards have been met." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 609, 926 A.2d 320 (2007). 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 that parent. It has been "suggested that [a] decision to terminate parental rights should not simply extinguish an unsuccessful parent-child relationship without making provision for . . . a more promising relationship . . . [in] the child's future." A.W., supra, 103 N.J. at 610, 512 A.2d 438 (alterations in original) (quotation omitted). It also is widely understood that a "child deeply needs association with a nurturing adult" and that "permanence in itself is an important part of that nurture." Ibid.
[N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 108 (2008).]
Separation from his mother will no doubt cause Carl harm, and as the trial judge characterized it, "a severe and painful loss of significant duration." But the jeopardy Carl faces if parental rights are not terminated is far greater. Termination of parental rights will, as the trial judge said, have this effect:
[Carl] will not be taught (directly and indirectly) to mistrust the world, to respond to adversity with defiance, to use vicious language or bad behavior. He will not be subject to insulting and demeaning criticism of himself by [C.S.]. He will not suffer yet another devastating removal which he almost certainly would if he was returned to [C.S.]. Her limitless ability to provoke authority or cause a crisis would result in a DODD removal sometime in the not too distant future. In short, [Carl] will not turn into his mother, who herself had to suffer through the child welfare "system" without the benefit of permanency; adoption.The foster parents, as the trial judge observed, are better equipped to ameliorate Carl's loss and by adoption offer him the prospect of "a stable and healthy family as opposed to what would befall him if returned to this well meaning, but extremely dangerous mother."
All of the experts conducted the bonding evaluations prior to the reduction and ultimate cessation, of C.S.'s visitation. Testimony was taken in the guardianship hearing as late as March 2011, and yet C.S. presented no proof establishing that Carl suffered any negative consequences from not seeing his mother over the prior six months.
The fourth prong requires a finding that termination will not do more harm than good, not that there will be no harm. Clearly there is no "optimal outcome" for Carl. Nonetheless, "[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." N.J. Div. of Youth & Family Servs. v. S.F., 392 N.J. Super. 201, 209 (App. Div.), certif. denied, 192 N.J. 293 (2007).
Thus we concur with the trial judge's conclusion that the Division met the statutory test by clear and convincing evidence. Termination is the only alternative.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION