Opinion
DOCKET NO. A-5342-11T2
05-30-2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. J.R., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF R.R., A minor.
Christine Olexa Saginor, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Saginor, on the brief). Martin B. Gandelman, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Mr. Gandelman, on the brief). Todd Wilson, Designated Counsel, argued the cause for minor R.R. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Wilson, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano, Ostrer and Mantineo.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FG-02-77-11.
Christine Olexa Saginor, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Saginor, on the brief).
Martin B. Gandelman, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Mr. Gandelman, on the brief).
Todd Wilson, Designated Counsel, argued the cause for minor R.R. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Wilson, on the brief). PER CURIAM
Defendant, J.R., appeals from the Family Part's order terminating his parental rights to his son, R.R. (Randy). Defendant contends that the Division of Youth and Family Services (the Division) failed to prove by clear and convincing evidence all four prongs of the statutory best interests test, N.J.S.A. 30:4C-15.1a.
We have fictionalized the names of those involved.
On June 29, 2012, the Governor signed into law A-3101, which reorganized the Department of Children and Families and renamed the Division as the Division of Child Protection and Permanency. See L. 2012, c. 16, eff. June 29, 2012.
We have considered the arguments in light of the record and applicable legal standards. We affirm.
I.
Defendant and F.C. (Fran) had been in a lengthy relationship prior to Randy's birth in June 2005. Fran has six other children from previous relationships. At the time the Division commenced its action for care and supervision in June 2009, Fran had legal and physical custody of Randy and four of her other children: E.C. (Elaine), D.C. (Diana), B.R. (Beth), and D.F. (Daniel). M.F. (Melissa) was residing with her father, and D.C. (Dana) was living with her paternal grandfather.
Defendant has an older son by a prior relationship who did not reside with defendant and was not a subject of the litigation.
Prior to Randy's birth, the Division received numerous referrals regarding Fran's actions toward her children. On July 15, 2005, a neighbor alleged that defendant's family "did not have food and that the home was disheveled." Upon visiting the home, the worker "observed . . . insufficient food" and "garbage on the floor." The Division subsequently provided the family with "groceries and bedroom sheets," and requested that defendant and Fran sign a case plan "agreeing that the children needed to have primary needs[,] such as food, clean clothing, adequate shelter, and adequate supervision." The Division continued to monitor the family.
We cite to the allegations contained in the Division's verified complaint for care and supervision because the record does not contain contact sheets from referrals occurring prior to December 2006.
On September 28, the Division received a report that Randy "was diagnosed with a hernia." Because the family lacked health insurance, the child had not been taken to a follow-up medical appointment scheduled for August 30. After some difficulty, the Division located the family in Lodi living with defendant's father. Defendant and Fran signed another case plan requiring them to take Randy for a medical appointment upon receipt of their insurance benefits.
In October 2005, the Division received another report that the children were "dirty, hungry, and went to school with dirty clothes on." Investigation proved the allegation to be unsubstantiated. On October 11, all the children were taken to see a pediatrician, though an appointment with a second doctor to address Randy's hernia could not be made until November 23, 2005. Three days later, the doctor "reported that she had many concerns regarding the . . . family," particularly "that [Randy] was at a high risk of [Sudden Infant Death Syndrome] because of people smoking in the home." On October 17, Fran reported to the Division that she had taken Randy to the hospital and that "there was nothing wrong with him."
Referrals by several of the children's caregivers regarding their hygiene continued into 2006, though none of the allegations were substantiated by the Division. On November 21, 2006, the Division learned from a school nurse that Elaine, who was "communication impaired and ha[d] mild asthma," had suffered from "hygiene problems since September of [that] year." The school nurse reported that Elaine "d[id] not seem to be taking . . . shower[s]," "ha[d] an odor on her" and had "wor[n] the same clothes three days in a row." The nurse tried contacting defendant and Fran about the issue, but they never responded.
Further investigation revealed that defendant and Fran owed nearly two thousand dollars to the utility company, and electricity had been shut off to their apartment for nearly two weeks. Two Division workers went to the apartment and met with Fran and the children. Although "moderately clean," the apartment smelled of cat urine, was inappropriately furnished and lacked electricity. Defendant and Fran signed another case plan in which they agreed to have Elaine see a therapist and not use candles to light the apartment.
On May 15, 2007, a Division worker met with Randy's daycare provider. Both Randy and his brother Daniel had "arrived at her home with a black eye one day apart from each other." Daniel reported being beaten by his sisters and locked in a closet. He claimed his parents slapped his hand, and Randy "was hit with a belt . . . because he was playing outside when it was dark." Workers spoke to Diana and Beth about these allegations, and while Diana claimed she accidentally kicked her brother in the face when removing her shoe, Beth claimed to be unaware of Daniel's injuries. No further action was taken.
The Division continued to monitor the family's situation through regular visits to the home in 2007 and 2008. It provided furniture, and household items and assisted in payment of the family's security deposit and rent.
On July 22, 2008, a Division worker visited the family and observed an overfilled garbage bag in the apartment hallway and "[cockroaches] going in and out of the ceiling tile and up the walls." The worker also observed Randy "jump[ing] off the kitchen chair and bump[ing] his head on the wall," causing swelling on his forehead. The Division decided to keep the family's file open and continue monitoring the situation.
On September 4, the Division received another report after Garfield police were called in response to a physical altercation between Fran and Elaine. An ambulance took Elaine to the hospital after she complained of back pain. At the hospital, Fran left with Elaine because she did not want to wait, although she later returned with her daughter, who was provided with a neck brace. During the investigation, defendant told workers that Fran drank alcohol "on occasion" but was not intoxicated at the time of the altercation.
The Division referred the family for in-home counseling services. When it was discovered that Elaine and Diana had been cutting themselves, the family was referred for more "intense" services through Families First, as "issues between [Fran] and [defendant] were affecting the children." Fran was also asked to submit to a substance abuse evaluation.
The Families First counselor relayed concerns to defendant and Fran regarding the relationship between Diana, who was twelve at the time, and J.R. (John), defendant's brother, whom the children called "uncle." Defendant and Fran denied anything inappropriate was occurring.
In October 2008, Fran went to the Garfield Police Department to obtain a restraining order against John, claiming that "something of a sexual nature happened between [John] and her daughter [Diana]." Diana denied the allegation, and the Bergen County Prosecutor's Office conducted an investigation. Defendant told the Division worker that the children were very close to his brother, there was nothing inappropriate happening and he could not understand why Fran would make such accusations. Despite the issuance of a restraining order, the younger children reported that John continued to visit the home to see Diana and Elaine.
In March 2009, the Division received another referral regarding Fran's drinking. Workers interviewed defendant, Fran, John and the children. After initially denying her alcohol consumption was excessive, Fran acknowledged having "relapse[d]." Several of the children confirmed Fran drank on a daily basis, while home alone with Randy and while driving. Defendant, after initially telling the worker that he did not want to get involved, thanked her for conducting spot visits to the home and having Fran admit to her problem.
Diana, meanwhile, reported being the victim of a sexual assault several years earlier in Paterson. She claimed her mother knew the perpetrator. Fran admitted knowing who it was, and told the Division that she gave his name to John, who was going to handle it. The Division workers interviewed John at length. He denied engaging in any inappropriate behavior with Diana and reported that Fran was a member of the "Latin Queens" and drank on a daily basis around the children. John believed Diana and her sister Elaine had been "pimped out" to gang members by defendant and Fran. John admitted he intended to go to Paterson and "beat[] the man" who had sexually assaulted Diana; he decided against it, however, "after realizing it wouldn't do any good." No one reported the incident to law enforcement.
In April 2009, the Division substantiated allegations of neglect against Fran "based upon her alcohol use while supervising the children and her past history." Following another referral in May, Fran and defendant executed another case plan. They agreed that John was to have no contact with the children.
The Division filed a verified complaint seeking care and supervision of the children on June 17, 2009. The judge granted the Division's request. Following a hearing on July 16, the judge entered an order requiring any contact between Fran and the children be supervised by defendant.
Meanwhile, on July 13, a home visit revealed that Fran and John were home alone with Elaine and Randy; defendant was not there. Fran had recently tested positive for cocaine use. The Division again referred the family for counseling through Families First. In September, Fran entered a stipulation of abuse and neglect in lieu of a fact-finding hearing.
On December 12, the Division was informed that John physically assaulted Diana after breaking into the home. During the incident, John punched Diana in the face and sprayed her sisters with mace. Randy was present and observed the assault. Diana later disclosed that "she had sex with her step-uncle on [two] separate occasions." John was arrested.
On January 13, 2010, the Division received an anonymous call reporting that Fran had "[come] home at 4:30 in the morning over the weekend drunk." The caller told the Division worker to "go to the house later on in the day unannounced and 'catch her.'" The caller also stated that Fran "'[was] not stupid' and [wouldn't] drink before the upcoming court date." Before ending the call, "[t]he man said he [was] concerned 'that she ha[d] everyone fooled' into thinking she [didn't] drink." It was later revealed that defendant made the call.
A Division worker paid an unannounced visit to the family home later that day. Fran was not present. Defendant expressed frustration regarding Fran's drinking. He told the worker that he was "considering leaving . . . and taking [Randy] with him" because "th[i]ngs ha[d] been strained within the home since the arrest of [John]." When asked how he felt about John's arrest, defendant said he was "in the middle," and "ha[d] trouble believing" Diana, claiming she had lied about sexual abuse in the past. Throughout the conversation, defendant stated he was "in jeopardy of having his entire family cut him off by continuing to stay with [Fran]." Defendant played an angry early-morning voicemail message in which Fran threatened, "It's fuckin' on when I get home!"
Defendant reported that "he [was] always left to watch the children and cook for them[,] as well as provide money for the home. . . . [Fran] [did] not work and basically [did] not contribute to the functioning of the home even though she claim[ed] to do so." Defendant asked the worker not to tell Fran that he shared this information because, in the past, Fran had "threaten[ed] to call the police on him . . . if she [did] not get what she want[ed] or [was] angry with him" and "[had] even . . . slash[ed] his tires in fits of anger."
On January 14, 2010, J.F. (Jeff), Diana's and Melissa's biological father, told the Division he was willing to have the girls live with him "at his parents' home." That same day, a Division worker spoke with Melissa, who claimed that defendant had hit Daniel and "[left] bruises on the child," and Fran "s[old]/pawn[ed] the children's belongings." Melissa also shared with the Division worker a letter Diana wrote "for [Melissa's] eyes only," in which Diana told of defendant's "physical abuse towards her and her siblings; as well as [Fran's] drinking and violent behavior towards the children." Melissa also reported that Fran and defendant "responded to [Diana's] behavior by saying, 'that's why [John] did what he did to you.'"
The Division filed an amended verified complaint for custody on January 26, 2010, and the judge ordered the immediate removal of the children. Randy was placed with defendant's aunt, N.S. (Natalie). Subsequent evaluation revealed that Randy required oral surgery and displayed developmental delays.
On March 5, defendant was psychologically evaluated by Dr. Brett Biller at the Audrey Hepburn Children's House (AHCH). Biller found "[d]enial [to be] a prominent feature within [defendant's] personality" and observed defendant to be "defensive about admitting difficulties within his inter-[]and intrapersonal functioning." In his report, Biller stated:
While acknowledging the Division involvement, [defendant] denied the validity of most of the referrals and externalized blame for others. . . . [Defendant] minimized the severity of [Fran's] alcohol abuse and identified an incident in which he was protective and informed the Division of her becoming intoxicated. [Defendant] acknowledged he was conflicted in [being] supportive [of] [Diana's] sexual abuse disclosure. He provided [Diana] having had several previous disclosures which were not substantiated, as well as the fact that his brother was identified as a perpetrator as reasons for his lack of support.While acknowledging defendant's concern and interest in Randy's well-being, Biller concluded that "[a]bsent [defendant's] ability to provide a parenting plan, acknowledge[] his inappropriate parenting history, and demonstrate an understanding of the risk present in his functioning[,] he will continue to remain a parenting liability." It was recommended that defendant receive individual psychotherapy, attend parenting classes and live apart from Fran for at least six months.
On April 12, 2010, Randy underwent a psychosocial evaluation at AHCH by licensed social worker Sarah Michalowski. Michalowski also interviewed Natalie, who reported Randy had difficulty with "hygiene issues" and suffered from eneurisis. Michalowski noted the clinical evidence supported a conclusion that Randy was neglected and suffered psychological abuse from exposure to his mother's substance abuse. She recommended family therapy, individual therapy for Randy and supervised visits with defendant and Fran.
On May 28, Division workers met with defendant and Fran to advise of their intention to pursue a dual track plan of reunification and termination. When told it was recommended that defendant undergo psychotherapy, he "became very defensive." Although "[t]he more he talked the angrier he became," defendant ultimately stated that "he would do whatever he had to do in order to be reunited with the children."
Defendant and Fran attended parenting classes during summer 2010; defendant missed only one meeting and earned a certificate evidencing his satisfactory completion of the course. In July, defendant began individual therapy at AHCH.
A Division worker visited defendant's home in September 2010. The apartment smelled of urine, and defendant apologized, telling the worker that the water had been shut off due to a leak in the building. Defendant also admitted that he and Fran were "back two months" on their utility bill and owed their landlord $1,250.00, although defendant claimed the landlord owed them money.
In October 2010, the Division learned that defendant had missed two sessions of therapy in the first two months. Defendant told the worker that he intended to look for a private therapist because he did not like Sean Conlon, the therapist at AHCH.
In January 2011, Fran was residing with her mother. In February, although she denied living with defendant, Fran acknowledged that she still relied on defendant to "drive[] her to and from her visits and [he] continue[d] to pay her bills."
Defendant testified at trial that he moved into a new apartment without Fran in October 2010.
On February 22, 2011, AHCH completed its report of the family's progress in therapy. The treatment team identified "several major areas of concern" to be addressed before reunification could be considered. These included defendant's
difficulty in acknowledging, understanding and taking responsibility for his lack of functioning in a protective parental role with [Randy] and the other . . . children; his failure to understand and protect the children from exposure to [Fran's] long-standing pattern of alcohol and drug abuse; his failure to intervene in a long-standingThe treatment team concluded that defendant was "not ready for reunification with his son" because "numerous therapeutic goals" remained outstanding.
pattern of physical and violent conflicts between [Fran] and her older daughters in a manner that effectively establishes a non-violent household; and his failing to adequately address allegations by [Fran's] older daughters . . . of physically and verbally punitive behavior by him toward them.
On April 13, 2011, the Division filed its guardianship complaint. By June, AHCH had terminated defendant's therapy because he had "not been compliant with therapy appointments." Defendant never continued therapy with any other provider. In July, the Division learned that defendant and Fran were again living together.
Robert James Miller, Ph.D., psychologically evaluated defendant and Fran, and conducted bonding evaluations with defendant and Randy, and Randy and Natalie. Miller had difficulty conducting the evaluations of defendant and Fran because they failed to present themselves for scheduled sessions. When defendant first saw Miller, apparently in May, he acknowledged he was again living with Fran.
Miller found that defendant had "invested in an enabling relationship with [Fran]." Defendant "denied awareness of the impact of several years of alcohol abuse, psychiatric problems, and instability on the developmental well[-]being of older and younger children in th[e] case." Miller concluded that defendant "pursued his relationship with [Fran] to the detriment of providing a safe and stable environment for the children . . . including his son [Randy]."
Defendant told Miller that despite all that had occurred, he believed "[Fran] could parent the children independently if he was not present in the home." Miller also concluded that defendant "ha[d] demonstrated no change in his behavior as the result of provided services."
Regarding the bonding evaluations, Miller found defendant's interactions with Randy to be "awkward," and defendant became "increasingly frustrated and demonstrated inability to set limits or redirect his son's behavior." Miller contrasted this with Randy's relationship with Natalie and her husband, which demonstrated "warmth, cooperative play, and structured interactions."
Miller's report concluded with his recommendation that Randy remain with Natalie "with the goal of adoption to achieve permanency." Because defendant and Fran "ha[d] not demonstrated sufficient remediation of parental deficits or underlying psychological problems in order to provide minimal parenting for the children[,]" Miller believed reunification "would result in further harm . . . ."
On December 7, 2011, the judge conducted a permanency hearing. Defendant presented his mother as a potential resource parent for Randy. The Division and the Law Guardian opposed the request and argued that, since Randy had been in Natalie's custody for nearly two years, the plan for termination followed by adoption by Natalie was preferable. The judge approved the Division's plan.
Prior to trial, which took place over several days during March and April 2012, Fran surrendered her parental rights to Randy, Beth and Daniel.
Fran has not participated in this appeal.
At trial, the Division presented two witnesses, case worker Cristina Keresztes and Miller. Keresztes's testimony essentially set forth much of the family history we have cited. Miller testified regarding the psychological and bonding evaluations he completed in a manner that was consistent with the reports referenced and in greater detail.
Defendant testified that none of the referrals made to the Division between 2004 and 2010 were substantiated against him. He noted that the Division, through the various case plans entered, approved him as a supervisor of Fran's contact with Randy and the other children. Defendant described his home life with Randy before the child's removal.
Defendant admitted that he and Fran began living together again in January 2012. Defendant further testified that when he learned, a few days before trial, that Fran's hair follicle test resulted in a positive finding for cocaine, he asked her to move out of his apartment.
The judge issued a written opinion on May 2, 2012, finding that the Division had met its burden of proving all four prongs of the statutory best interests test. He entered judgment terminating defendant's parental rights that same day, and this appeal ensued.
II.
Our review of an order terminating parental rights is limited. "We will not disturb the family court's decision . . . when there is substantial credible evidence in the record to support the court's findings." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). "We ordinarily defer to the factual findings of the trial court because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a 'feel of the case' that can never be realized by a review of the cold record." Ibid. (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007)).
We accord particular deference to the judge's factfinding because of "the family courts' special jurisdiction and expertise in family matters." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (internal quotation marks and citation omitted). "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 N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007)).
"[W]here the focus of the dispute is . . . alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom, the traditional scope of review is expanded." M.M., supra, 189 N.J. at 279 (internal quotation marks and citations omitted). Yet, "even in those circumstances[,] we will accord deference unless the trial court's findings went so wide of the mark that a mistake must have been made." Ibid. (internal quotation marks and citations omitted).
"The focus of a termination-of-parental-rights hearing is the best interests of the child[,]" and the Division must "satisfy by clear and convincing evidence four factors, known as the best-interests-of-the-child test, set forth in N.J.S.A. 30:4C-15.1(a)." N.J. Div. of Youth and Family Servs. v. F.M., 211 N.J. 420, 447 (2012) (citations omitted). Those statutory prongs are:
(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;See also In re Guardianship of K.H.O., 161 N.J. 337, 347-48 (1999). The four prongs require a fact-sensitive analysis, and "are neither discrete nor separate. They overlap to provide a composite picture of what may be necessary to advance the best interests of the children." M.M., supra, 189 N.J. at 280 (quoting N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 258 (App. Div. 2005)) (internal quotation marks omitted).
(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-15.1a.]
(A)
Defendant argues that the Division failed to prove prong one by clear and convincing evidence. In particular, he argues that the judge erred by relying upon Fran's "bad conduct" and imputing her actions to him; although the family home may have been temporarily "messy" and strewn with dirty clothing, that did not amount to harm under the statutory test; and all referrals prior to Randy's initial removal were unsubstantiated and should not have been considered. We disagree.
"Under prong one of the best-interests test, [the Division] must show that the alleged harm 'threatens the child's health and will likely have continuing deleterious effects on the child.'" F.M., supra, 211 N.J. at 449 (quoting K.H.O., supra, 161 N.J. at 352) (citation omitted)). The Division need not "wait until a child is actually irreparably impaired by parental inattention or neglect." Ibid. (internal quotation marks and citation omitted). "[H]arm caused by circumstances attendant to the parent-child relationship is as pertinent as any harm caused directly by a parent." M.M., supra, 189 N.J. at 289. As the Court recently reiterated, "[a] parent has the obligation to protect a child from harms that can be inflicted by another parent." F.M., supra, 211 N.J. at 449.
The judge concluded that "[a]ll of the evidence presented under the first prong . . . clearly indicate[d] that the safety, health, and development of the child ha[d] been and w[ould] continue to be in danger by his relationship with his biological father." The judge found that, at times, Randy and his siblings "did not have food" and lived "in a dirty home." The children were repeatedly observed to have hygiene issues. The judge also focused on defendant's relationship with Fran, noting that despite her history of substance abuse, defendant "refused to leave [Fran] even though [the family] lived in a deplorable state of housing." He also concluded that the "children witnessed domestic violence and the substance abuse[,]" and "helped each other rather than being helped by their mother and father."
The judge also accepted Miller's finding that "defendant's personality characteristics of 'impulsivity and apparent lack of empathy [we]re significant risk factors for the children . . . [,]'" and defendant "lack[ed] understanding of child development." He also noted Miller's findings that "defendant [was] committed to a co-dependent relationship with [Fran]." The judge concluded that "[t]he home . . . defendant ha[d] provided for his son was a continuous source of endangerment."
These findings and conclusions were amply supported by the record. The judge did not improperly "rely upon [Fran's] 'bad conduct'" to reach his conclusions. Instead, the judge found defendant's conduct independently presented the risk of harm to Randy because defendant was unable to sever his ties from Fran and provide Randy with a safe and secure home. See M.M., supra, 189 N.J. at 290 (noting "the trial court was correct when it evaluated the father's parental rights in light of his cohabitation with the mother"). Moreover, the judge did not rely upon the messy state of the home, nor the unsubstantiated referrals, to find the prerequisite risk of harm to Randy.
(B)
Defendant next argues that the Division failed to prove prong two of the statutory test because the judge relied solely upon the testimony of Miller, and, because Miller based his opinion upon "limited and biased information[,]" he "was not credible." We again must disagree.
"The second prong, in many ways, addresses considerations touched on in prong one." F.M., supra, 211 N.J. at 451. It "relates to parental unfitness," which may be established by demonstrating that: (1) "the parent is 'unwilling or unable to eliminate the harm'"; or (2) "the parent has failed to provide a 'safe and stable home'" and "a 'delay in permanent placement' will further harm the child." K.H.O., supra, 161 N.J. at 352 (quoting N.J.S.A. 30:4C-15.1a(2)). The inquiry is "whether that parent can raise the child without inflicting any further harm." Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 87 (App Div. 2006) (citing In re Guardianship of J.C., 129 N.J. 1, 10 (1992)), certif. denied, 190 N.J. 257 (2007). "Concern and efforts by a natural parent after his or her child has been removed from the home, and making genuine and successful efforts to overcome the cause of the removal is of enormous significance" when determining fitness. N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 437 (App. Div. 2009).
The judge found "overwhelming" evidence that defendant was "unable and unwilling to provide a safe and stable home" for Randy. The judge observed, "If it were left to [defendant] to decide, the harm would never be eliminated. It [wa]s not only his action but his inaction that sp[oke] louder than words."
Referring to Miller's report, and concluding the doctor was "a totally credible witness[,]" the judge found that defendant had "denied awareness of the impact of several years of alcohol abuse, psychiatric problems, and instability on the developmental well[-]being of [the] older and younger children in this case." Defendant "ha[d] pursued his relationship with [Fran] to the detriment of providing a safe and stable environment for the children in this case[,] including his son [Randy]."
Defendant argues most of the information Miller relied upon was "very limited and one-sided." He contends, based upon his own testimony, that Miller's reports were riddled with factual inaccuracies.
First, we note that Miller's report and testimony was not based upon limited information. He conducted multiple psychological tests on defendant and interviewed him at length. The judge was in the pre-eminent position to assess the credibility of both Miller and defendant. See E.P., supra, 196 N.J. at 104 (noting the required deference due "to the factual findings of the trial court because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand").
(C)
Defendant contends that, because his request for a different therapist went unheeded, the Division failed to make reasonable efforts toward reunification under prong three. 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-15.1a(3)). "The emphasis here is on the steps taken by [the Division] toward the goal of reunification." Ibid. "The diligence of [the Division]'s efforts on behalf of a parent is not measured by their success." In re Guardianship of D.M.H., 161 N.J. 365, 393 (1999). Rather, reasonableness "must be assessed against the standard of adequacy in light of all the circumstances of a given case." Ibid.
The judge found the evidence regarding the Division's provision of services was undisputed and demonstrated "that substantial efforts were made to help [defendant] achieve rehabilitation and improvement." The judge concluded that "defendant failed to take advantage of the Division's efforts to resolve his issues and effect reunification."
Defendant claims that the Division failed in its responsibility because it did not refer him to another counselor when defendant voiced his objection to Conlon. He admitted during his testimony, however, that he simply stopped going after his requests went unheeded, and he never sought counseling elsewhere. The argument that the Division failed to make reasonable efforts simply lacks merit. R. 2:11-3(e)(1)(E).
(D)
Lastly, defendant argues the proofs regarding prong four were insufficient because the Division relied upon Miller's "flawed" opinions. We must again disagree.
The statute's fourth prong mandates a determination as to "whether a child's interest will best be served by completely terminating the child's relationship with that parent." E.P., supra, 196 N.J. at 108. It "serves as a fail-safe against termination even where the remaining standards have been met." Ibid. (citation and quotation marks omitted). The court must examine the child's bond with both biological and foster parents. K.H.O., supra, 161 N.J. at 355. "[W]here it is shown that the bond with foster parents is strong and, in comparison, the bond with the natural parent is not as strong," termination may be appropriate. Id. at 363. "[A]fter considering and balancing the two relationships," the question becomes whether "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." Id. at 355.
The judge relied upon Miller's expert report and testimony. See J.C., supra, 129 N.J. at 25 (noting that consideration of the fourth prong "necessarily requires expert inquiry specifically directed to the strength of each relationship"). He determined defendant's relationship with Randy displayed an "insecure bond." The judge noted Miller's conclusion that "psychotherapeutic support and competent foster care will enable [Randy] to overcome the effects of separation from [his] parents." The judge also accepted Miller's conclusions that Randy had developed a secure bond with Natalie and that adoption would supply a safe, secure and permanent home to the child.
The specific objections defendant raises to Miller's reports and testimony are limited and essentially ignore the major thrust of the expert opinions. We cannot conclude the judge erred in relying upon this evidence in reaching his determination that severing defendant's parental ties was in Randy's best interests.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION