Opinion
DOCKET NO. A-3453-10T4
01-31-2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. J.Y., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF B.Y., E.M., AND J.M., minors.
Michael C. Wroblewski, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Wroblewski, on the brief). Jane S. Blank, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Kristina Miles, Deputy Attorney General, on the brief). Jeffrey R. Jablonski, Designated Counsel, argued the cause for minors (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Jablonski, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti, Harris and Hoffman.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FG-02-55-07.
Michael C. Wroblewski, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Wroblewski, on the brief).
Jane S. Blank, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Kristina Miles, Deputy Attorney General, on the brief).
Jeffrey R. Jablonski, Designated Counsel, argued the cause for minors (Joseph E.
Krakora, Public Defender, Law Guardian, attorney; Mr. Jablonski, on the brief). PER CURIAM
For the third time, defendant J.Y. appeals from a final judgment of guardianship entered by the Family Part terminating her parental rights to her three children. She argues that the trial court erred by denying her request for visitation with her children while the case was pending. She also contends plaintiff, New Jersey Division of Youth and Family Services, (the Division) failed to satisfy all four prongs of N.J.S.A. 30:4C-15.1(a), the best interests test.
We will refer to our earlier published opinion in Division of Youth and Family Services v. J.Y., 352 N.J. Super. 245 (App. Div. 2002), when we reversed a custody order based upon a finding of abuse or neglect in a Title 9 action involving J.Y, as J.Y. I. We will refer to our first unpublished opinion remanding this matter for adequate findings of fact, Division of Youth and Family Services v. J.Y., Nos. A-0641-07T4 and A-0654-07T4, (App. Div. August 6, 2008), as J.Y. II. We will refer to our second unpublished opinion reversing and remanding for a new trial as to J.Y., N.J. Div. of Youth & Family Servs. v. J.Y., Nos. A-1841-08T4 and A-1858-08T4, (App. Div. June 23, 2009), as J.Y. III.
Effective June 29, 2012, the Division was renamed the Division of Child Protection and Permanency. L. 2012, c. 16.
Following a fourteen-day trial, Judge Bonnie Mizdol issued a comprehensive forty-nine page written opinion on February 1, 2011, and entered a judgment of guardianship terminating defendant's parental rights the same day. Following careful review of the trial record, we discern no basis to disturb the trial judge's decision. The judge's opinion addressed the standards governing termination of parental rights, N.J.S.A. 30:4C-15.1(a)(1) to (4), as well as pertinent case law. In reaching her conclusions, the judge appropriately applied the controlling legal principles to the lay and expert evidence of record. Defendant's claims to the contrary lack merit. Consequently, we affirm the judgment of the Family Part.
I.
We derive the following facts from the trial record. Defendant is the biological mother of three children, Bobby, born in June of 1995, Ethan, born in February of 1997, and Jane, born in March of 1998. A.J. is the biological father of Bobby. E.M. is the biological father of Ethan and Jane.
The names of the children in this opinion are fictitious. To avoid confusion, we use the same fictitious names used in J.Y. I.
A.J. was incarcerated in 1997 to serve a fourteen-year sentence for the manslaughter of a two-year-old child. We affirmed the termination of his parental rights to Bobby in J.Y. III.
The Division first became involved with J.Y. and her family in 1996 when it received a referral after J.Y. filed a domestic violence complaint alleging that A.J. attempted to kill her and Bobby. Numerous other referrals followed. In 1997, the Division entered into a case plan with defendant. Under the terms of the plan, defendant agreed not to leave Bobby in E.M.'s care. After providing services to J.Y. and her family, the Division closed its file on August 18, 1999.
On September 13 1999, the Division received an unsubstantiated referral regarding the family after Jane was hospitalized with a fractured femur due to falling down a flight of stairs. The Division again entered into a case plan with defendant. On November 3, 1999, the Division closed its file.
On June 22, 2000, the Division was informed that E.M. was sexually abusing the children. Although the allegations were not substantiated, a caseworker's visit to the family's home found it in poor condition, which placed the children in danger. The Division referred the family for homemaking services.
On October 25, 2000, the Division substantiated allegations of physical abuse regarding all three children. Specifically, Bobby was bruised, and he told the Division that E.M. abused him and his siblings. The following day, defendant entered into a consent agreement which allowed Bobby to be placed with his maternal aunt and uncle, A.Y. and T.Y. The agreement also allowed for Ethan and Jane to be placed with their maternal grandparents, C.Y. and R.Y.
On June 1, 2001, the Division filed a complaint against defendant, E.M., and A.J., requesting that the Division be awarded custody, care, and supervision of all three minor children. J.Y. I, supra, 352 N.J. Super. at 248. The trial court granted the Division's request. Id. at 249-50. Defendant and E.M. appealed the custody decision. Id. at 248.
On June 11, 2002, we remanded the custody decision to the trial court to develop the factual record because, in addition to other mistakes, the court failed to properly examine witnesses and review evidence. Id. at 264-68.
On September 24, 2002, the trial court placed Bobby in the legal and physical custody of T.Y. and A.Y. in Florida. The court returned Ethan and Jane to defendant and E.M., and then dismissed the complaint.
On February 11, 2004, Jane's school contacted the Division because she had complained that her home lacked food and heat. She also claimed that E.M. hit her. During the Division's investigation, it discovered trash piled in the family's trailer home, and also a broken window, which supported Jane's claim that the house had insufficient heat. The Division also learned that Jane was having seizures at night.
On September 23, 2004, the local police department reported that Ethan and Jane had been left unsupervised for three hours. Division records show that neglect was substantiated.
On September 29, 2004, T.Y. and A.Y. returned Bobby to defendant's custody after their Florida home was damaged by a hurricane. Neither T.Y. nor A.Y. informed the Division, which resulted in their subsequently being ruled out as caregivers.
On December 2, 2004, Ethan's school contacted the Division regarding suspected physical abuse after noticing bruises on his arms. Although the claim of physical abuse was unsubstantiated, the Division determined that the children's living conditions were deplorable and hazardous. The Division prepared a case plan, and provided after-school care, therapy, and parenting skills classes.
On March 1, 2005, a Division caseworker visited the residence of defendant and E.M. and found it cluttered, with the oven used as a heat source, creating a fire hazard.
On March 3 and 4, 2005, the Division made substance abuse referrals, contacted the utility company regarding the heating problem, contacted a food bank to provide the family with supplies, and continued defendant's and E.M.'s enrollment in counseling, parenting classes, and abuse programs.
On March 9, 2005, Jane's school contacted the Division due to her claims that E.M. beat Bobby with a belt and belt buckle, resulting in bruises and injuries to his face. The allegations were substantiated when E.M. admitted to hitting the children. Defendant admitted she was aware of the abuse. The Division removed the children pursuant to N.J.S.A. 9:6-8.29 and placed them with E.M.'s adoptive parents, C.M. and Y.M. E.M. was arrested, and charged with child neglect and abuse.
On March 11, 2005, the Division again filed a complaint against defendant, E.M., and A.J. seeking the care and custody of all three children. The court granted the relief. On April 1, 2005, the Division referred defendant to a supervised visitation program. On May 12, 2005, defendant stipulated that she had failed to protect her children from harm.
On June 14, 2005, Mary Ellen Fisher, a nurse with the Child Health Program, reported that all three children were receiving appropriate care from C.M. and Y.M.; however, her report also noted that C.M. and Y.M. advised that they could not continue to provide care for them.
On August 9, 2005, the children were removed from C.M. and Y.M.'s care and placed with a paternal cousin, S.M., where Ethan and Jane remained at the time of trial. Bobby would stay in this placement as well until December 2009.
As a result of comprehensive health evaluations in September 2005, psychotherapy was recommended for all three children at Audrey Hepburn Children's House (Children's House).
Audrey Hepburn Children's House is a state-designated Regional Diagnostic Center for Child Abuse and Neglect serving Bergen, Passaic, Hudson, Morris, Sussex and Warren counties.
In November 2005, Children's House reported that Bobby discussed how E.M. had physically abused him and that he did not want to see E.M. Bobby did not want to live with defendant because he feared that she would not protect him from E.M.
On December 7, 2005, Children's House reported that the children were thriving in their placement with S.M.; in contrast, defendant was not making progress in improving her parenting skills.
On February 22, 2006, Children's House reported that Bobby disclosed additional instances of physical abuse by E.M. and of exposure to sexual activity between defendant and E.M. According to Children's House, defendant minimized the severity of the abuse and neglect the children experienced; furthermore, she lacked insight into the experiences that led to the removal of the children. Her prognosis was listed as "poor."
On May 10, 2006, Children's House submitted a progress report that detailed Bobby's fears of returning to defendant based on his belief that she would not protect him. He was also showing symptoms of Post-Traumatic Stress Disorder. Ethan reported an incident where E.M. had punched a hole in a door because Ethan was singing in the shower. The report also stated that defendant's relationship with E.M. presented a barrier to her reunification with the children, because she did not support the children's disclosures regarding E.M.'s behavior. In contrast, S.M. was attending therapy sessions to help the children improve their behavior and provide a nurturing home environment. Finally, the report indicated that Ethan and Jane stated that they did not want to be returned to defendant and that they showed signs of increased anxiety when discussing the possibility of reunification.
On May 16 and 17, 2006, Children's House evaluated defendant's parents, C.Y. and R.Y., as caregivers, and ruled them out because they lived in Florida and also planned on having defendant live with them.
On June 12, 2006, the court accepted the Division's permanency plan for termination of parental rights followed by adoption. The Division again referred the family for visitation, despite defendant's failure to consistently and punctually attend in the past.
On August 9, 2006, the Division filed a guardianship complaint to terminate the parental rights of defendant to all three children, of E.M. to Ethan and Jane, and of A.J. to Bobby.
On August 16, 2006, Children's House reported that the children were sad because of defendant's failure to attend visitation. In addition, she had not attended therapy since July 17, 2006. The Division notified defendant that her case would be closed if she did not attend therapy. When defendant did visit, she informed the children that she was trying to "get them back."
On October 5, 2006, Children's House reported that the children were flourishing with S.M.; in contrast, defendant appeared as an unlikely caregiver for the children on a long-term basis due to her history of relationships with abusive men.
On December 22, 2006, Children's House recommended that the children remain with S.M. At that point, defendant had only attended two of eleven therapy sessions.
On January 5, 2007, E.M. made an identified surrender of his parental rights to Ethan and Jane in favor of S.M.
On April 5, 2007, Children's House documented the family's progress. Bobby did not want to attend therapy with defendant because he felt she was not honest with the children. Ethan recognized that defendant and E.M. were responsible for abusing him. Jane viewed S.M. as her psychological parent. Defendant, who had been living with her grandmother, R.A., moved out of R.A.'s home after one month due to personality conflicts. During individual therapy sessions, defendant minimized her role in the children's abuse, which Children's House determined would cause the children to become confused and frightened. As a result, Children's House determined family therapy with defendant and the children would not be appropriate until defendant made progress in her individual therapy.
In May 2007, Children's House recommended that defendant's visitation be decreased to once a month due to her inconsistent attendance coupled with her statements to the children that she was working hard to be reunified with them. According to the children's therapist, defendant's actions were creating a sense of instability and a lack of closure for the children.
On August 6, 2007, the court terminated defendant's parental rights to all three children. That same day, the court terminated A.J.'s parental rights to Bobby. Defendant and A.J. appealed.
On August 6, 2008, we remanded the case to the trial court for further findings of fact and conclusions of law. J.Y. II, supra, Nos. A-0641-07T4 and A-0654-07T4, (slip op. at 14). On October 31, 2008, the trial court issued a decision again terminating defendant's and A.J.'s parental rights. Defendant and A.J. again appealed.
On June 23, 2009, we affirmed the termination of A.J.'s rights to Bobby, but reversed and remanded for a new trial, with a new judge, regarding defendant's parental rights to all three children. J.Y. III, supra, Nos. A-1841-08T4 and A-1858-08T4, (slip op. at 33).
On July 6, 2009, the Division and the children's law guardian requested updated bonding evaluations. Defendant requested reinstatement of her visitation. The judge determined that psychological evaluations needed to be completed on defendant and the children before the court could properly consider resuming visitation.
On July 30, 2009, Dr. Frank J. Dyer conducted a psychological evaluation of defendant at the request of the Division. He described defendant as "essentially an immature, emotionally needy, and dependent individual" who formed relationships with abusive men that resulted in her being unable to protect her children. He determined that she was in denial regarding her role in the Division's involvement in her life, and downplayed the significance of E.M.'s abuse of Bobby in 2005. In fact, she said she would consider providing E.M. with visitation if any children were returned to her. Dr. Dyer concluded that any child placed in defendant's care would be at a "substantial risk" of suffering abuse and neglect. Overall, he believed that the children should not be returned to defendant, that she was not a viable candidate for custody, and that she could not adequately parent.
On various dates in July and August, 2009, defendant underwent a psychological evaluation with her own expert, Dr. Curtis Branch. At the time, defendant was unemployed, but was recently trained to work as a medical billing clerk. According to Dr. Branch, while defendant tried to minimize her past experiences, she was self-critical and accepted responsibility for the removal of her children. He did not find that she posed a danger to the children. Dr. Branch supported visitation between defendant and her children, and also recommended that she be reunified with them.
On August 11, 2009, Dr. Dyer conducted a psychological evaluation of then fourteen-year-old Bobby, who stated he enjoyed living with S.M., wanted her to be his mother, and did not want to be reunited with defendant. He admitted to being preoccupied with sexual thoughts, explained that he lived an active fantasy life, and was both oppositional and hyperactive. Dr. Dyer found that Bobby benefited from living with S.M. because of the structure she provided; in contrast, he predicted Bobby would regress if he were reunited with defendant. S.M. was interested in adopting Bobby, and addressed his behavioral problems by engaging in conversations with him and asking him to write about his feelings. Dr. Dyer recommended termination of defendant's rights so that Bobby could be adopted by S.M.
On August 19, 2009, Dr. Dyer performed a psychological evaluation of then twelve-year-old Ethan, who stated that he enjoyed living with S.M., and wanted to remain with her permanently; he did not want to see defendant again. Dr. Dyer determined that Ethan had an anxious and insecure personality with obsessive compulsive traits, related to his past history of abuse. Dr. Dyer recommended the termination of defendant's rights so that Ethan could be adopted by S.M.
On August 19, 2009, Dr. Dyer conducted a psychological evaluation of then eleven-year-old Jane, who stated that she liked living with S.M. and did not want to be reunited with defendant. She has cerebral palsy, and suffers from seizures and a heart condition. Dr. Dyer found Jane emotionally immature, with anxiety problems. Dr. Dyer recommended the termination of defendant's rights so that Jane could be adopted by S.M.
On September 8, 2009, the judge reviewed letters from each child indicating that they did not want to see defendant. The judge also heard oral argument regarding whether defendant should have bonding evaluations with the children. The judge determined that the children would experience harm if exposed to defendant, and therefore ordered that bonding evaluations between the children and defendant not be completed.
In November 2009, Dr. Branch performed a psychological evaluation of Bobby. In regard to his relationship with defendant, Bobby said he felt as though he was more like the parent and that defendant acted like the child. Nevertheless, Dr. Branch claimed that Bobby was enthusiastic about having limited, regular contact with defendant. Dr. Branch also conducted abbreviated psychological screenings of Ethan and Jane on various dates in October and November of 2009. According to Dr. Branch, Jane missed defendant, but acknowledged that defendant did not care for her properly, provide food, or keep the home clean. Ethan did not want defendant to regain custody. However, according to Dr. Branch, both children later showed a "pronounced ambivalence" when asked if they wanted to see defendant.
Based on his overall evaluation of the family, Dr. Branch determined that defendant did not pose a threat to the children. He believed that the children were coached with regard to their negative feelings about defendant. In Dr. Branch's opinion, the termination of defendant's parental rights would do more harm than good because defendant was compliant with services. He supported supervised visitation between defendant and the children, and also defendant's ultimate reunification with them.
At a December 15, 2009, case management conference, defense counsel again requested visitation. The law guardian opposed visitation because the children had again stated their desire not to visit with defendant. Due to the conflicting opinions of Dr. Dyer and Dr. Branch, the law guardian sought additional evaluations. Bobby, meanwhile, had recently been removed from his placement with S.M. because of his behavioral problems, and had been placed with Y.M. (E.M.'s mother).
Due to Bobby's placement change, in December 2009 Dr. Dyer conducted a new psychological evaluation of Bobby and also a bonding evaluation among Bobby, Y.M., and B.M. (Y.M.'s sister). Y.M. explained that B.M. was going to be Bobby's permanent placement. B.M. wanted to adopt Bobby, and believed that one of her son's friends who also lived with her would be a good role model for him. In the event that Bobby could not be placed with B.M., Y.M. informed Dr. Dyer that she would adopt him. Y.M. admitted that Bobby was overly focused on sexual issues and was interested in pornography. Bobby explained to Dr. Dyer that he had engaged in a verbal altercation with S.M. that required police intervention. While he had previously stated that he liked living with S.M., he now resisted her level of control over his life. He admitted to enjoying pornography and that he was focused heavily on sex. Bobby did not want to have any interactions with defendant. Overall, Dr. Dyer determined that B.M. was committed to helping Bobby with his sexual problems. Again, Dr. Dyer recommended the termination of defendant's rights to Bobby and that the Division pursue Bobby's adoption with either B.M. or Y.M.
On January 4, 2010, defendant obtained a restraining order against her then-paramour, R.C.
On January 11, 2010, Dr. Dyer again recommended against any visitation. He believed that the children would suffer if exposed to defendant, and would gain no benefits from visitation. After hearing argument on January 12, 2010, the court continued the suspension of defendant's visitation. In an in camera interview the previous day, the children told the judge they did not want visitation with defendant, and expressed anxiety about its possibility. All three children said they wanted to be adopted by their current caregivers.
That same day, the law guardian's expert, Dr. Alice Nadelman, conducted a psychological evaluation of defendant. According to Dr. Nadelman, defendant admitted that there may have been additional instances of child abuse other than the March 2005 incident. Nevertheless, defendant believed that she and the children shared a "strong bond" that would allow them to overcome past problems. Dr. Nadelman, however, believed that defendant would not be able to help the children with their feelings. The results of defendant's personality test revealed that she did not have the traits needed to parent, to empathize with children, and to control her own aggressive impulses.
Defendant explained to Dr. Nadelman that she was currently living with her grandmother, R.A. Defendant believed that the children could live in R.A.'s home and that she would be inheriting all of R.A.'s assets through R.A.'s will. However, when Dr. Nadelman spoke with R.A., she indicated different sleeping arrangements which, coupled with a prior failed attempt at living with R.A., caused Dr. Nadelman to question the viability of the arrangement. Dr. Nadelman also spoke with defendant's father, who revealed that defendant had previously lived with a paramour named R.C. because she was homeless. The revelation of defendant's homelessness contradicted defendant's statements to Dr. Nadelman that she had been living in an apartment in Waldwick since 2006, prior to moving in with R.A. Dr. Nadelman was troubled that defendant had not revealed her relationship with R.C. in her prior evaluations with Dr. Dyer and Dr. Branch.
Dr. Nadelman determined that defendant lacked the psychological resources to provide a safe and stable home for the children and that she could not care for them in the foreseeable future; she did not understand the children's needs and would not place them ahead of her own. Furthermore, Dr. Nadelman found that defendant accepted no responsibility for not protecting the children from E.M. and would not protect the children, offer stability, and provide guidance. According to Dr. Nadelman, defendant refused to comprehend that regardless of whether the Division had substantiated abuse regarding particular incidents, the children remembered what was done to them and that she had failed to protect them. Dr. Nadelman concluded that the children should not be removed from their current caregivers.
In a second in camera interview, on April 6, 2010, all three children again informed the court that they did not want to be reunified with defendant. Ethan further articulated that they felt defendant was selfish and did not have their best interests in mind. None of the children wanted kinship legal guardianship, and asked the court to "order" defendant out of their lives. Finally, they expressed their concern regarding additional delays surrounding their case and worried that additional appeals would prevent them from achieving permanency and postpone their adoption.
II.
Defendant first argues that the court erred when it denied her request to have visitation with the children after the case was remanded in June 2009. Specifically, defendant complains that there was a delay between defendant's request and the court's decision, that the court erred by failing to hold an evidentiary hearing regarding whether the children would be harmed by the visitation, and that circumstances did not exist to justify denying her parenting time.
In response to defendant's July 2009 request for parenting time, the judge ordered psychological evaluations of defendant and the three children. In September 2009, the judge reviewed letters from the children which indicated that they did not want to appear in court and that they were happy with their caregivers. After hearing argument that same day, the court determined that the children would not undergo bonding evaluations with defendant because they would experience harm if they were exposed to her. In doing so, the court cited In the Matter of D.C. and D.C., No. A-1608-08T4 (App. Div. Sept. 3, 2009) (slip op. at 1-7), rev'd, 203 N.J. 545 (2010), in which we affirmed a trial court decision that denied visitation between infant children and a half-sibling wishing to adopt them.
In December 2009, the court stated that it was going to make a pendente lite determination as to whether visitation would occur, and also acknowledged having reviewed Dr. Branch's and Dr. Dyer's expert reports. The following month, the court interviewed the children jointly and also Bobby individually, pursuant to his request. The court determined that all three children were articulate and possessed strong opinions. Bobby specifically requested that visitation not occur with defendant, and also informed the court that he wanted to be adopted. Both Ethan and Jane were similarly clear about their desire not to have parenting time with defendant and their desire to be adopted. The judge further determined that the children would be "overwhelmed" and would experience "a lot of anxiety" with any type of visitation with defendant. The judge found that the letters the children wrote to her were
the product of their own feelings . . . they could not be more clear in what it was that they said and - and the moment - each moment that there was any reference to having any parenting time, the angst and anxiety level in the room was palpable.
Dr. Dyer's report and conclusions mirrored the feelings that the children had conveyed independently to the court. The judge found that no one had coerced the children into writing their prior letters to the court, and they were not coached regarding what to write. On January 12, 2010, after hearing further argument on the matter, the court continued the suspension of visitation.
The Child Placement Bill of Rights Act (Act) states that a child has certain rights "consistent with the health, safety and physical and psychological welfare of the child and as appropriate to the individual circumstances of the child's physical or mental development." N.J.S.A. 9:6-4. In regard to parental visitation, the Act states that a child has a right:
e. To visit with the child's parents or legal guardian immediately after the child has been placed outside his home and on a regular basis thereafter, and to otherwise maintain contact with the child's parents or legal guardian, and to receive assistance from the applicable department to facilitate that contact, including the provision or arrangement of transportation as necessary;Furthermore, the Act provides that a child shall be "free from physical or psychological abuse and from repeated changes in placement before the permanent placement or return home of the child." N.J.S.A. 9:6B-4(h). Also, the child is entitled "[t]o have a placement plan, as required by law or regulation, that reflects the child's best interests and is designed to facilitate the permanent placement or return home of the child in a timely manner that is appropriate to the needs of the child[.]" N.J.S.A. 9:6B-4(j). Finally, the child shall receive "services of a high quality that are designed to maintain and advance the child's mental and physical well-being[.]" N.J.S.A. 9:6B-4(k).
[N.J.S.A. 9:6B-4(e).]
The purposes of visitation for children placed outside of the home are to:
1. Reinforce the child's identity;To deny visitation, clear and convincing evidence must demonstrate that visitation will cause physical or emotional harm, or that the parent is unfit. V.C. v. M.J.B., 163 N.J. 200, 229, cert. denied, 531 U.S. 926, 121 S. Ct. 302, 148 L. Ed. 2d 243 (2000).
2. Promote the child's need for stability, consistency, and permanency;
3. Maintain or establish family relationships;
4. Assess the parent's and other relative's motivation and ability to care for the child;
5. Provide an opportunity to model appropriate parenting behavior and skills; and
6. Facilitate the case goal of return home.
[N.J.A.C. 10:122D-1.1(a).]
At the outset, we address the trial court's reliance on In the Matter of D.C. and D.C., where we affirmed the denial of visitation between infant children and a half-sibling pursuing their adoption. Subsequent to the trial court's opinion, our Supreme Court reversed D.C, holding that sibling visitation can be ordered if necessary to avoid harm. In the Matter of D.C. and D.C, 203 N.J. 545, 551 (2010). The Court held that if the Division opposes sibling visitation, it bears the burden of showing that visitation would endanger the health, safety, and welfare of the children. Ibid. The standards set forth in the Act, N.J.S.A. 9:6B-4(f), must be overcome to show that sibling visitation is contrary to a child's welfare. Ibid.
Defendant argues that the Court's reversal of D.C. is now grounds for a reversal of the decision to terminate her parental rights because she was denied visitation during the pendency of trial. However, the trial judge did not solely rely on D.C. when rendering her decision. We are satisfied that the judge correctly focused upon the issue of harm to the children, and that the record provides clear and convincing evidence that granting defendant visitation would have caused emotional harm to the children. Moreover, we note that the Court's decision in D.C. was focused on the importance of sibling visitation, which was not an issue here. Ibid.
Next, defendant complains that there was an unreasonable delay between the time defendant requested visitation with her children, and the court's ultimate decision. Defendant first made her request for visitation in July 2009, at which time the court concluded that evaluations of the children first needed to be completed to determine how visitation would affect the children. The Division's evaluations were completed by September 8, 2009. Defendant's expert, Dr. Branch, did not complete his evaluation until December 7, 2009. Within approximately one month of Dr. Branch issuing his report, the judge interviewed the children, heard oral argument on defendant's request, and issued her ruling. This chronology of events does not indicate undue delay by the court or the Division in addressing defendant's request.
Next, defendant argues that the trial judge erred by failing to conduct an evidentiary hearing to determine whether or not visitation should occur. We conclude that a plenary hearing was not required because the court was presented with substantial credible evidence, including the reports of Dr. Dyer and the results of the interviews with the children regarding harm to the children that would likely occur if visitation were reinstated.
We note that in his report, Dr. Branch did not address defendant's failure to make progress in her parenting skills classes, her failure to attend therapy, and her failure to attend visitation. Also, because some of the allegations could not be substantiated by the Division, he was dismissive of the fact that the children did experience abuse. He accordingly failed to acknowledge any of the substantiated abuse that the children did experience and to address whether or not the children would be at risk with defendant.
In contrast, the report of Dr. Dyer echoed the children's sentiments as presented to the judge during their in camera interview. Dr. Dyer explained that all three children would regress behaviorally if reunited with defendant, that they did not want to be reunited with her, and that they were happy in their foster placements. Dr. Dyer determined that the children would be at risk if returned to defendant because she pursued relationships with abusive men, had low self-esteem, was in denial regarding the Division's role in her life, and discounted the significance of the abuse the children experienced.
Although Dr. Branch's report differed from that of Dr. Dyer, after speaking with each child prior to making her ruling, the judge was able to determine that the children's feelings were consistent with Dr. Dyer's report. At that time, the children were old enough to articulate their desires, and none of them elected to exercise their right to have visitation with defendant. The Act defines rights that belong to the child in a placement outside of the home; it does not delineate the rights of biological parents who are facing a trial to terminate their parental rights.
In fact, while the Act states that a child has a right to visit with a parent, the focus of the Act is to protect the health, safety, and physical and psychological welfare of children. N.J.S.A. 9:6B-4. It would undermine the spirit and intent of the Act to elevate defendant's wishes over those of the children where, as here, the children were old enough to clearly express their concerns and desires, and where expert opinion confirmed the risk of harm to the children.
Defendant further argues that a plenary hearing should have been conducted and visitation reinstituted because she had never been accused of personally abusing the children. Although defendant did not physically abuse the children, she failed to protect them from harm. For example, she conceded to being present in the trailer in 2005 on the day that Bobby was abused by E.M., but was dismissive of her ability to protect the children or stop the abuse. Furthermore, she continued to engage in a relationship with E.M. after the removal of the children, and later engaged in a relationship with a new paramour who was abusive towards her. Although defendant did not physically abuse the children, her behavior placed the children in dangerous situations and her passivity allowed them to be injured by others.
Significantly, defendant informed Dr. Dyer as recently as July 2009 that she contemplated providing E.M. with visitation if the children were returned to her. This statement demonstrated an alarming failure to understand the children's feelings and needs, while also exposing them to a substantial risk of harm. Because of the compelling evidence that defendant's behavior would have endangered the welfare of the children, a plenary hearing was not required. See Hand v. Hand, 391 N.J. Super. 102, 105-06 (App. Div. 2007) (the moving party must make a prima facie showing that a plenary hearing is necessary when the need for one is not evident).
Next, defendant asserts that the court erred because exceptional circumstances did not exist to justify the court's decision to deny her visitation. In this regard, defendant relies heavily on Wilke v. Culp, 196 N.J. Super. 487, 503 (App. Div. 1984), certif. denied, 99 N.J. 243 (1985), to support her argument that exceptional circumstances must exist to deny visitation.
We find Wilke distinguishable. In that case, the court was concerned with the enforcement of a fit parent's visitation rights that an ex-spouse was arguably trying to undermine. We stated that the plaintiff's rights should not have been denied unless it "was one of those exceptional cases where visitation would have caused physical or emotional harm to the children, or where it was demonstrated that the non-custodial parent was unfit." Id. at 503. The present case, however, is a situation where it was clear the children would have experienced psychological harm and distress if they were reunited with defendant.
Furthermore, unlike Wilke, in the present case the trial judge had the benefit of current psychological reports before rendering her decision. Although Dr. Branch and Dr. Dyer's reports differed, the judge observed that Dr. Dyer's report mirrored the feelings that the children expressed to her. While Dr. Branch claimed that the children were "coached" into saying that they did not want to visit with defendant, he offered no examples to support his conclusion. Nor did he otherwise explain the basis for his opinion. In contrast, both Dr. Dyer and the court concluded that the children had not been coached and that their feelings were their own.
We are satisfied the trial court did not unnecessarily delay addressing defendant's visitation request, nor did the court err by failing to hold a plenary hearing. Further, exceptional circumstances were present to warrant denying defendant visitation.
III.
A parent's right "to enjoy a relationship with his or her child . . . is constitutionally protected." In re Adoption of Children by L.A.S., 134 N.J. 127, 132 (1993). "Parental rights, though fundamentally important, are not absolute. The constitutional protection surrounding family rights is tempered by the State's parens patriae responsibility to protect the welfare of children." In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999).
Under N.J.S.A. 30:4C-15.1(a), the Division can initiate a petition to terminate parental rights on the grounds of the "best interests of the child" if the following standards are met:
(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;sepa
(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
rating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;
(3) The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and
(4) Termination of parental rights will not do more harm than good.
"The four criteria enumerated in the best interests standard are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." K.H.O., supra, 161 N.J. at 348.
Termination of parental rights permanently cuts off the relationship between children and their biological parents. . . . When the biological parents resist the termination of their parental rights, the court's function is to decide whether the parents can raise their children without causing them further harm. . . . The burden falls on the State to demonstrate by clear and convincing evidence that the natural parent has not cured the initial cause of harm and will continue to cause serious and lasting harm to the child.
[In re Guardianship of J.C., 129 N.J. 1, 10 (1992).]
The Supreme Court has recognized, however, that children have a "paramount need" for "permanent and defined parent-child relationships." Id. at 26. 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).
"Appellate review of a trial court's decision to terminate parental rights is limited, and the trial court's factual findings should not be disturbed unless they are so wholly unsupportable as to result in a denial of justice." In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002) (internal quotation marks and citation omitted). We are obliged to accord deference to the trial court's credibility determinations based upon the judge's opportunity to observe and hear the witnesses. Cesare v. Cesare, 154 N.J. 394, 412 (1998).
IV.
A. The first prong of the best interests test.
Defendant argues that the court's finding of endangerment under prong one of N.J.S.A. 30:4C-15.1(a)(1) was not supported in the record. We do not agree.
To meet the first prong of the best interests of the child test, the Division must show a harm that threatened the child's health and that it will likely have continuing deleterious effects on the child. K.H.O., supra, 161 N.J. at 352. "Although a particularly egregious single harm can trigger the standard, the focus is on the effect of harm arising from the parent-child relationship over time on the child's health and development." Id. at 348. "The absence of physical abuse or neglect is not conclusive[;]" the court also must consider the potential for serious psychological damage. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 605 (1986) (internal quotation marks and citation omitted).
"A parent's withdrawal of solicitude, nurture, and care for an extended period is itself a harm that endangers the health and development of the child." D.M.H., supra, 161 N.J. at 379. "[T]he relevant inquiry focuses on the cumulative effect, over time, of harms arising from the home life provided by the parent." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 289 (2007).
"Courts need not wait to act until a child is actually irreparably impaired by parental inattention or neglect[,]" D.M.H., supra, 161 N.J. at 383, but that 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.), cert. denied, 192 N.J. 68 (2007).
Defendant argues that she never harmed the children and that the children will not be endangered by a continued relationship with her. Specifically, she complains that the court's reliance on the opinions of experts was inappropriate because the factual history on which the experts relied was unsubstantiated. She also contends that the court's conclusion that defendant was in "denial" regarding the harm the children experienced was erroneous, because there is no evidence of a history of abuse. Finally, defendant alleges that her continued cohabitation with E.M. after the removal should not have been used as a reason for the termination of parental rights because she was no longer in a relationship with him at the time of trial.
The trial judge held that defendant could not provide for the emotional or physical needs of the children and that a continued relationship with her would have caused serious and lasting harm. Based on defendant's experiences with E.M. and the Division from October 2000 through March 2005, the judge concluded that defendant should have had a heightened awareness that abuse could be occurring. Also, defendant failed to intervene to protect the children and continued to reside with E.M. after the children were removed. The judge found defendant in denial regarding: her responsibility for the children's injuries; her knowledge of the abuse; the children's desire to be adopted; and problems that may occur if the children were returned to her. The judge noted that Children's House indicated that family therapy was not appropriate, inasmuch as it would have caused injury to the children and defendant's denial of the abuse that they experienced would have created more emotional instability.
Defendant further claims that the judge erred by relying on Division referrals that were unsubstantiated. While the experts may have taken into consideration the children's representations that additional abuse occurred, the judge explained that when making her decision she only considered the substantiated allegations of abuse occurring from October 2000 until March 2005. She considered all of the testimony presented, including that of defendant, and her expert, Dr. Branch. The judge found that "[defendant's] responses are made to fit - they are something less than candid and forthright and sometimes out and out implausible." She further found that Dr. Branch's conclusions were not credible.
Defendant also claims that because there was no history of abuse by her, the court erred by finding that she was in "denial." Defendant's characterization of the evidence is incorrect. The record clearly reflects that the children were abused by E.M. Although defendant claims that she was not aware of the abuse, her claims lack credibility. Abuse and neglect were substantiated in October 2000, September 2004, and March 2005. At the time of the March 2005 incident, defendant admitted she was aware of the abuse. At trial, she also admitted to being aware of other abuse regarding E.M. and the children. She conceded to seeking orders of protection from E.M. prior to March 2005.
In addition, defendant entered into a case plan with the Division in December 2004. Even though defendant did not physically abuse the children herself, her conduct was still a relevant factor when analyzing the first prong of the analysis. Specifically, a mother's relationship with a potentially dangerous paramour is a valid consideration if the relationship poses a clear danger to the children. M.M., supra, 189 N.J. at 288-89 (2007).
We reject defendant's contention that, because she was not involved with E.M. at the time of trial, the court erred when it took into account her prior cohabitation with him. In New Jersey Division of Youth & Family Services v. G.L., 191 N.J. 596, 608-09 (2007), the Court reversed the termination of parental rights of a woman who continued her association with a dangerous father. However, in that case the mother did not live with the father, did not allow unsupervised visits, and did not expose her child to risk. Id. at 609. This case is distinguishable from G.L., because as recently as 2009 defendant informed Dr. Dyer that she would consider providing visitation to E.M. if the children were returned to her. Also, defendant has a history of engaging in relationships with abusive men, as further evidenced by the restraining order defendant obtained against her then-paramour, R.C., just before the start of trial. The likelihood that a child could become injured can satisfy this prong of the analysis. A.W., supra, 103 N.J. at 605.
Recently, the Court held that a mother's parental rights can be terminated if she is incapable and unwilling to protect her children from an abusive father. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 450-52 (2012). In F.M., while the mother was at low risk for abusing the child she was not in a position to parent because of her bad judgment regarding the father and because she minimized his domestic violence and drug problems. Id. at 450-51. As a result, she did not have the capacity to protect her children from harm and she was unable to provide a safe home. Id. at 451. Moreover, her credibility was undermined by the mother's denials regarding her ongoing relationship with the father and her recantation of instances of domestic violence. Id. at 437-38. This case is analogous to F.M., because in both situations the mother was at low risk for abusing the children but failed to protect them from a violent father. Like the mother in F.M., defendant has discounted the significance of her role in the abuse and the impact of the abuse on the children.
Other evidence supported the conclusion that the children were continuing to be harmed in their relationship with defendant. For example, defendant was inconsistent with her visitation with the children even when it was permitted. Our Supreme Court has deemed inconsistent visitation harmful. D.M.H., supra, 161 N.J. at 379. She did not consistently attend or learn from the services provided to her at Children's House. The testimony of Dr. Dyer, and the court's interviews with the children, strongly support the judge's conclusion that "the children and the caretakers have created strong, loving and permanent bonds." There was ample credible evidence from the Division's witnesses that the children were thriving in their current placements, that they wanted to be adopted, and that their respective caregivers wanted to adopt them.
In summary, the judge relied on substantial credible evidence when she held that the first prong of the best interests test was satisfied. The judge did not rely on unsubstantiated referrals. Also, there was a history of child abuse, and even though defendant was not involved with E.M. at the time of trial, her poor judgment still exposed the children to harm. The first prong was clearly established.
B. The second prong of the best interests test.
Defendant claims that she was willing and able to eliminate the harm facing the children. Specifically, she alleges that the court improperly based its decision on defendant's denial of past abuse which was premised on a history of unsubstantiated allegations. Defendant also claims that the record is clear that she had not denied the existence of problems in her home. Finally, she contends that she can parent her children. We do not agree.
The judge found that Dr. Dyer and Dr. Nadelman credibly testified that defendant was not fit to parent because her denial of her problems prevented rehabilitation; defendant would rather hide the children's problems than help them obtain therapy; and her behavior would only exacerbate the children's emotional problems. Furthermore, the judge recognized that defendant had not provided the children with any support or care since the 2005 removal, and that she had a lack of sensitivity to their struggles. Overall, the judge found defendant was unable to eliminate the psychological harm that the children suffered, while the bonding evaluations with the children's caregivers showed that adoption was in the children's best interests.
Under this part of the best interests test, the Division must demonstrate that the parent cannot overcome the issues that required the children to be placed outside of the home, or that the parent is unable or unwilling to provide a safe and stable home for the children which causes a delay to the child's sense of permanency. K.H.O., supra, 161 N.J. at 348-49.
Here, defendant was aware the children could be experiencing abuse when she entered into a case plan with the Division in 1997 based on unsubstantiated referrals. She entered into a second case plan under similar circumstances in 1999. Due to the Division's intervention regarding inadequate food, a lack of heat, a dirty home, and a substantiated referral that Ethan and Jane were left unattended, she was aware that there were additional problems in the home, beyond the possible child abuse.
Importantly, defendant did not take advantage of opportunities provided to her to develop her relationship with the children and to help them overcome the harm they experienced from E.M.'s abuse. For example, in 2005, Children's House reported that defendant was not making progress with her parenting skills classes. In 2006, Children's House reported that, during her therapy sessions, defendant discounted the significance and severity of the abuse that the children suffered, and lacked insight into their experiences. In fact, throughout 2006, defendant failed to support the children's revelations of abuse by E.M. Also in 2006, defendant failed to routinely and punctually attend visitation.
During therapy sessions in 2007, defendant minimized her role in the children's abuse, which presented a serious risk of causing them to become confused and frightened. As a result, Children's House determined that it was in the children's best interests to forego family therapy with defendant until progress was made in her individual treatment. While defendant complains that it was an error for Children's House to have failed to provide family therapy, the therapists reasonably conditioned family therapy on defendant making progress in individual therapy. Defendant alone is responsible for her failure to progress in therapy, and the record indicates that Children's House was open to providing family therapy as soon as defendant was in a position to help the children, instead of causing them harm or confusion.
Moreover, defendant's failure to attend visitation on a consistent basis in 2007, led to Children's House's request that her visitation be decreased. In contrast to defendant's lack of interest in therapy, S.M. attended therapy at Children's House to help improve the children's behavior, and also to gain insight into providing the best possible environment for them. Therefore, the record is clear that defendant was not taking the necessary steps to eliminate the harm that caused Division involvement. Defendant was not expressing a consistent desire to work towards reunification and to help the children overcome their concerns regarding their safety.
Furthermore, the Court has held that the second prong will be satisfied if the children will suffer from the lack of permanent placement and from a disruption of the relationship with his or her foster family. K.H.O., supra, 161 N.J. at 363. Ethan and Jane were flourishing in their placement with S.M., and likewise Bobby was happy in his placement. Dr. Dyer and Dr. Nadelman both provided testimony that the children should not be removed from their foster placement. Notably, Children's House never recommended reunification between defendant and the children.
While defendant claims that the judge erred by not giving full credit to Dr. Branch's opinion, the trial court's opinion fully explained the reasons for not accepting Dr. Branch's findings, which failed to refute the evidence presented by the Division. In contrast, the judge found the testimony of Dr. Dyer and Dr. Nadelman to be credible, and consistent with the other credible evidence of 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." F.M., supra, 211 N.J. at 448. We see no merit to the claim that the court erred when it rejected Dr. Branch's findings and recommendations.
In summary, substantial, credible evidence supported the court's finding that defendant was unable and unwilling to correct the conditions that led to Division involvement. Contrary to defendant's claims, the record reveals that she cannot successfully parent the children. The second prong was clearly established.
C. The third prong of the best interests test.
Defendant argues that the Division did not provide reasonable services to correct the circumstances that led to the children's placement outside of the home. Specifically, she alleges that the Division failed to provide family therapy as ordered by the court on March 9, 2006. Also, she complains that the Division failed to assist her with locating suitable housing. Finally, she argues that the Division failed to provide services prior to the March 2005 removal. We do not agree.
The judge started her analysis by recognizing the court's duty to consider alternatives to the termination of parental rights, but then explained that in this case no such alternatives existed. She observed that the children were thriving, that they were already placed with family members, and that kinship legal guardianship was not feasible as adoption was likely. The judge discussed the extensive services that the family had been provided over the course of ten years, satisfying the Division's duty to meet its statutory burden. The judge explained that while defendant was initially attending therapy, she later stopped attending and ultimately made no progress.
The third prong of the best interests test centers on the efforts that the Division made to help the parent correct his or her problems that led to Division involvement, and also to help the parent reunite with the children. K.H.O., supra, 161 N.J. at 354. Reasonable efforts are defined as including:
(1) consultation and cooperation with the parent in developing a plan for appropriate services;The court can take into account the level of participation of the parent in the required services, and does not gauge the adequacy of the Division's efforts based on the parent's success. D.M.H., supra, 161 N.J. at 393. The court must take into account alternatives to the termination of parental rights. N.J.S.A. 30:4C-15.1(a). However, when reunification could cause grave injury to the children, reunification is not an alternative. A.W., supra, 103 N.J. at 605.
(2) providing services that have been agreed upon, to the family, in order to further the goal of family reunification;
(3) informing the parent at appropriate intervals of the child's progress, development and health; and
(4) facilitating appropriate visitation.
[N.J.S.A. 30:4C-15.1(c).]
With respect to the judge's holding that kinship legal guardianship was not viable, kinship legal guardianship allows an individual to become the legal guardian of a child without stripping the biological parent of his or her parental rights. N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 508 (2004). But it is only an alternative when adoption is neither feasible nor likely. Id. at 509; N.J.S.A. 3B:12A-6(d). Here, Bobby's caregivers and S.M. wanted to adopt. The children themselves also explained that they were not interested in kinship legal guardianship, and wanted to be adopted. Therefore, the judge correctly held that kinship legal guardianship was not a possibility.
Contrary to defendant's claims that the Division failed to provide her with services prior to the 2005 removal, the record demonstrates otherwise. In 1997, the Division provided parenting skills training, participation in a child abuse program, a referral for subsidized housing, a housing subsidy, and services at the Mental Health Clinic of Passaic. It provided defendant with case plans in 1997 and 1999. It provided homemaking services in 2000 after there were reports that the children were living in filthy conditions. In 2004, when the Division was informed that the home was again in a deplorable condition and that the children might be experiencing abuse, it provided a case plan, after school care, therapy, and parenting skills classes.
Furthermore, in 2005, the Division provided substance abuse referrals, it contacted the local utility to assist with heating issues, it asked that a food bank give the family supplies, and it continued defendant's enrollment in counseling, parenting classes, and abuse programs. Subsequently, it provided defendant with therapy, visitation, evaluations, and parenting skills classes. The Division also tried to place the children with other family members as an alternative to termination.
With regard to defendant's claim that Children's House erred by failing to provide her with family therapy, the record again does not support defendant's position. For example, in a therapy progress report dated December 22, 2006, Children's House noted that defendant was informed family therapy sessions could proceed. However, defendant was resistant to family therapy, and did not want to accept S.M. as a maternal figure in the children's lives. Nevertheless, Children's House agreed to provide family therapy contingent upon defendant's attendance and participation in her individual therapy sessions.
A Children's House progress report dated April 5, 2007, noted that family sessions were not possible due to defendant's failure to resolve her individual issues pertaining to her role and responsibility in ensuring the children's safety. The children had revealed that they were confused, frightened and upset regarding defendant's refusal to intervene in E.M.'s abuse of them, and as a result, Children's House determined that defendant's failure to accept responsibility for her passivity would only cause the children harm. Thus, the record indicates that Children's House reasonably conditioned participation in family therapy upon defendant's progress in individual therapy.
Also, in an undated letter from Children's House with a May 29, 2007, facsimile mark, Children's House again addressed the issue of defendant's progress therapy. Specifically, it explained that defendant was non-compliant with her individual therapy, which in turn had a negative impact on the children. Defendant's failure to attend therapy coupled with her statements to the children that she was working hard at reunification caused confusion and a sense of instability among the children. As a result, Children's House requested a decrease in visitation.
In summary, the judge did not err when she held that the Division met its burden to show it had provided reasonable services to defendant. Nor was there error in holding that kinship legal guardianship was not feasible. The third prong was firmly established.
D. The fourth prong of the best interests test.
Defendant alleges that the Division failed to demonstrate that the termination of parental rights would not cause more harm than good. Specifically, defendant argues that the judge erred by relying on the desires of the children, and by failing to order bonding evaluations. Defendant also contends that the Division failed to show that adoption was in the best interests of the children. We disagree.
The judge held that the Division provided comprehensive, objective and informed testimony that the children were flourishing in their current foster placements. Each of the children told the judge and Dr. Dyer that they wanted to be adopted. Specifically, the judge said that during both conversations she had with them in January and April 2010, the children's desires were "absolute" and "unwavering." In discussing why no new bonding evaluation was ordered between defendant and the children, the judge cited New Jersey Division of Youth and Family Services v. A.R., 405 N.J. Super. 418, 440 (App. Div. 2009), explaining that a bonding evaluation was not required because the record was more than adequate. Finally, the judge stated that a strong bond with the foster parents existed, that the respective foster parents wanted to adopt, and that the children were doing well in their stable placements. Neither Dr. Branch nor defendant provided any substantial evidence to the contrary.
In regard to the fourth prong of the analysis, the court balances the harm that a child might suffer if parental rights are terminated against the harm that may occur if the child is removed from his or her foster placement. K.H.O., supra, 161 N.J. at 354-55. The court can examine the bonds the children have with their respective foster families. Id. at 363. If a strong bond exists between the children and their foster placements, and the bond with the natural parent is not as strong, the fourth prong is established. Ibid.
Here, Dr. Dyer testified that Bobby suffered from being physically abused and that he did not want to be reunified with defendant. Bobby was in a safe and stable placement with Y.M. and B.M., both of whom were committed to helping him overcome his problems. Ethan did not want to be reunified with defendant, and was at risk for developing aggressive behaviors if exposed to her. Jane's behavior had improved since being placed with S.M., she wanted to live with S.M. on a permanent basis, and she did not want to be reunified with defendant.
According to Dr. Dyer, defendant has the propensity to become involved with abusive men, which would expose the children to further harm. Likewise, Dr. Nadelman testified that defendant has "virtually no capacity" to form an emotional bond with the children, empathize with their experiences or meet her obligations to provide care for the foreseeable future.
Importantly, the Court has held a child is entitled to have "the psychological security that his [or her] most deeply formed attachments will not be shattered." F.M., supra, 211 N.J. at 453. Here, under S.M.'s care Jane no longer needed special education classes. Ethan performed well in school, and played baseball and the violin. Bobby's behavior improved due to having a structured life with S.M. Also, B.M. and Y.M. demonstrated a consistent commitment to helping Bobby with his emotional problems and behavioral concerns.
When a child suffers harm and the parent has not corrected the circumstances that led to the harm, and when that child has bonded with his or her foster parents, the fourth prong is satisfied. E.P., supra, 196 N.J. at 108. As such, the fourth prong was satisfied here because the children developed strong bonds with their caregivers and there was no likelihood that defendant would be able to care for the children in the future.
Moreover, the children have been in their respective foster placements for an extended period. None of the children has lived with defendant since March 2005. At the time of trial in 2010, Bobby was fifteen years old, Ethan was thirteen years old, and Jane was twelve years old. While it is not the fault of defendant that the resolution of this matter has been complicated by various appeals, the children have a right to a sense of permanency and stability in their lives, and their desire to be adopted should be given due consideration.
We reject defendant's argument that the judge erred by taking the desires of the children into account. It is important to emphasize that the judge interviewed the children a second time on April 6, 2010. In that interview, the children expressed the same opinions and wishes as they had previously expressed when the judge was determining whether defendant would have visitation during the pendency of the trial. The children were clear — they did not want to be reunified with defendant, they wanted the court to "order" defendant out of their lives, and they were concerned that additional appeals and delays would prevent them from achieving permanency and postpone their adoptions. As a result, the court did not err in obtaining the opinions of the children, and the record does not indicate that the court placed undue weight on the children's desires.
In summary, the judge did not err in holding that the fourth prong of the best interests test was satisfied. Termination of defendant's parental rights will not do more harm than good. The fourth prong was clearly established.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION