Opinion
DOCKET NO. A-5871-12T4 DOCKET NO. A-5872-12T4
04-23-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. D.D. and T.C., Defendants-Appellants. IN THE MATTER OF THE GUARDIANSHIP OF I.C. and E.D., minors.
Eric Foley, Designated Counsel, argued the cause for appellant D.D. in A-5871-12 (Joseph E. Krakora, Public Defender, attorney; Albert M. Afonso, Designated Counsel, on the brief). Carleen M. Steward, Designated Counsel, argued the cause for appellant T.C. in A-5872-12 (Joseph E. Krakora, Public Defender, attorney; Ms. Steward, on the brief). Elizabeth S. Sherwood, Deputy Attorney General, argued the cause for respondent in A-5871-12 and A-5872-12 (John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Sherwood, on the brief). Todd S. Wilson, Designated Counsel, argued the cause for minor E.D. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Wilson, on the brief). Noel C. Devlin, Assistant Deputy Public Defender, argued the cause for minor I.C. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Devlin, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Hayden. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FG-02-52-12. Eric Foley, Designated Counsel, argued the cause for appellant D.D. in A-5871-12 (Joseph E. Krakora, Public Defender, attorney; Albert M. Afonso, Designated Counsel, on the brief). Carleen M. Steward, Designated Counsel, argued the cause for appellant T.C. in A-5872-12 (Joseph E. Krakora, Public Defender, attorney; Ms. Steward, on the brief). Elizabeth S. Sherwood, Deputy Attorney General, argued the cause for respondent in A-5871-12 and A-5872-12 (John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Sherwood, on the brief). Todd S. Wilson, Designated Counsel, argued the cause for minor E.D. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Wilson, on the brief). Noel C. Devlin, Assistant Deputy Public Defender, argued the cause for minor I.C. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Devlin, on the brief). PER CURIAM
When the State seeks to terminate parental rights, the Division of Child Protection and Permanency (the Division) must prove by clear and convincing evidence each prong of the statutory best-interests-of-the-child test, specifically that:
(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;
(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;
(3) The [D]ivision has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and
(4) Termination of parental rights will not do more harm than good.
[N.J.S.A. 30:4C-15.1(a); see also In re Guardianship of K.H.O., 161 N.J. 337, 347-48 (1999).]
In these consolidated appeals, defendant, T.C. (Toni), the mother of two sons, I.C. (Ike), born in 2000, and E.D. (Eddie), born in 2009, seeks our review of the Family Part's order terminating her parental rights to the two children. Eddie's father, defendant D.D. (Dave), challenges the same order terminating his parental rights to his son. Both defendants argue the Division failed to prove all four prongs of the statutory test, and Toni also argues the judge relied upon evidence that was not admitted at the guardianship trial.
We have fictionalized the names of those involved to protect their privacy interests.
Ike's father was a defendant in the litigation, but he died while the proceedings were pending. In the Family Part, Dave argued that he was the "psychological parent" of Ike. That argument was rejected by the trial judge, and Dave has not contested that determination on appeal.
The Division and Eddie's Law Guardian contend the evidence was clear and convincing as to all four prongs of the statutory test and ask us to affirm. Ike, who was placed in a residential mental health treatment facility during the litigation and remains there, filed a cross-appeal. His Law Guardian urges us to vacate the judgment and remand the matter to the Family Part for further proceedings.
At oral argument, the parties advised that the resource parents, a same-sex female couple with whom the children had been placed since their emergency removal in 2010, and who had indicated their willingness to adopt both boys, recently changed their minds. They remain willing to adopt Eddie but not Ike.
Having considered the arguments raised in light of the record and applicable legal standards, we affirm the termination of Dave's parental rights to Eddie. We also affirm the trial court's findings and conclusions as to the first three prongs of the statutory test regarding Toni, and for reasons explained below, the fourth prong as it relates to Eddie. Therefore, we affirm the order terminating Toni's parental rights to Eddie. However, the foster parents' sudden unwillingness to adopt Ike significantly undermines the trial court's findings and conclusions with respect to prong four of the statutory test as it relates to Ike. We therefore vacate the order terminating Toni's parental rights to Ike, and remand the matter to the Family Part for further consideration.
I.
Events leading to the removal of the children
The Division's involvement began shortly after Ike's birth, when Toni called to say she was depressed and felt isolated. She was already in counseling, but her behavior remained erratic. In 2004, for example, Toni arrived to take Ike home from daycare and began screaming that the janitor was trying to kill her. The facility called the Division and it was discovered Ike was suffering from behavioral issues, for which he was referred to counseling.
The relationship between Toni and Dave was sporadic but always tumultuous. In September 2008, Toni called the police to have Dave removed from her apartment. In March 2010, police reported to the Division that Toni had placed thirty-two calls that year alone, frequently asking officers to remove Dave after having invited him to stay. Police observed the children upset and crying after some of these verbal altercations.
In October 2009, Toni took Ike to the emergency room because of suicidal threats he made while at school. The Division's investigation revealed that Ike had made similar threats ten or twelve times before, and, on October 21, the school indicated it would not let Ike return without psychiatric clearance.
Over the next several months, the discord at home increased. Ike accused Dave of hitting him and putting him in a chokehold; Toni claimed to have witnessed it. The Division's investigation determined the allegation was unfounded. Toni would call the Division to report she could not control Ike, felt overwhelmed and believed someone else should care for the child. Although the Division had arranged for Care Plus, a private mental healthcare agency, to provided assistance, Toni would not attempt to use the behavioral modification techniques it provided, but rather simply called Care Plus repeatedly for help.
Ike was hospitalized for depression in January 2010; however, in February, his school reported that he was seemingly more acclimated to the classroom. The Division observed Eddie at home and found him to be healthy and "very well cared for." Toni was seeing a psychiatrist monthly and was also attending Families First, an "intensive, short-term, crisis intervention and family education" program, which reported Toni was making progress with Ike but needed continuing services.
However, on February 26, 2010, Toni reported to the hospital emergency room stating she felt overwhelmed and was admitted to the psychiatric unit. In April, she called the Division requesting foster care for the children because she was "nervous and anxious," and her family would not help her. Families First reported that, while Toni was "capable of meeting her children's needs," she needed a long-term plan for support due to severe and repeated paranoid thoughts that sometimes led to hospitalization. Two days before the report was issued, Toni told the Division that she wanted Ike placed in foster care "for good." On June 10, Toni told the Division that she felt threatened by Ike, was concerned for her and Eddie's safety, and wanted Ike removed from her home.
On June 17, 2010, Toni called Ike's school and left a message that she wanted Ike sent to the Division and not returned home. On the same day, the Division affected the removal of both children and placed them in the care of the resource parents. On the return date of the order to show cause, however, the judge returned Eddie to Toni's custody, but continued Ike in the care, custody and supervision of the Division.
In an August 2010 psychiatric evaluation performed for Care Plus, Dr. Young Lee noted Toni's three or four prior psychiatric hospitalizations for paranoid delusions, as well as prior diagnoses of bipolar affective disorder and depressive disorder. Dr. Lee believed continued counseling and psychotherapy would be beneficial. However, in October, Toni called the Division's hotline to request the removal of Eddie from her care. The Division removed Eddie and placed him with the foster parents.
Developments after the children's removal
We digress from a strict chronology to briefly set forth the events regarding Ike's mental health since the June 2010 removal. On August 5, 2010, Ike was hospitalized after the resource parents reported he attempted to jump from a second-floor window and was verbally and physically aggressive. He was discharged two weeks later, but thereafter underwent a series of hospitalizations because of suicidal ideations and threats, as well as aggressive behaviors. Following a sixth hospitalization, from March 28 to April 26, 2012, Ike was discharged directly to Somerset Hills Residential Treatment Center, where, we have been advised, he remains.
Meanwhile, the Division continued to provide services to Toni and Dave. It referred Dave to Preferred Behavioral Health (PBH), which assessed him and found no need for substance abuse treatment. Dave was unemployed and receiving Social Security for a "psychiatric disability." He had separated from his wife and claimed to be living alone for the past three years. Dave told the Division that he could parent Eddie because he had raised other children, and he saw no problem with Toni's parenting ability.
However, on March 16, 2011, Dave told the Division he had other family commitments, including caring for his elderly mother, and the children should be returned to Toni. Dave believed the children had many relatives who were ready to care for them, but he also indicated he would do whatever was needed in the absence of any other solution. In fact, the Division's repeated efforts to place the children with Toni's and Dave's relatives were unsuccessful.
Throughout the litigation, Toni attended the majority of scheduled supervised visitation sessions with Ike and Eddie. Dave did not begin supervised visits with Eddie until March 2011, and his attendance was less consistent.
In April 2011, Toni told the Division that she and Dave were not getting along, and he was "verbally abusive and . . . very dangerous around the children." She recanted the next day, explaining her true concern was that Dave was residing in New York while caring for his mother, and he might reunite with his wife. In July, police were summoned to Toni's apartment and took her to the emergency room because she was depressed and took medication in an attempt to "hurt herself." In January 2012, Toni told the Division that she was no longer involved with Dave and could not co-parent with him; yet, a month later, police again responded to Toni's call regarding Dave's abusive, non-physical behavior during an altercation.
Dave, meanwhile, told the Division in November 2011 that he was going to live in New York City with his mother and was pursuing a divorce. However, in February 2012, Dave was arrested for a violation of probation, and was sentenced on April 27 to 275 days in jail. Care Plus closed Dave's case because his incarceration prevented him from attending further therapy sessions and appearing for a psychiatric evaluation. His therapist at Care Plus stated that Dave might suffer from bipolar disorder or a personality disorder and was not stable enough to be a good candidate for therapy.
When he was released from jail in August 2012, Dave reunited with Toni. He resumed visitations with Eddie in September and joined Toni for visitations with Ike at his residential treatment facility. Dave did not, however, re-engage in any therapeutic counseling.
On November 20, 2012, Toni was admitted to the emergency room for suicidal ideations based on Dave's report that she was holding a knife and planned to hurt herself. Toni felt depressed because of Dave's lack of attention, and she admitted threatening harm to herself to secure his attention. After an overnight stay at the hospital, Toni refused further assistance and was discharged. Approximately one week later, police again responded to Toni's apartment because of an unsubstantiated report that Dave hit her.
At a meeting with the Division's case manager in early December 2012, Toni acknowledged a history of false accusations against Dave, and admitted "she would do anything to get [Dave's] attention." On Christmas Day, Toni was admitted to the hospital as an emergency inpatient because of an intentional drug overdose. She denied it was a suicide attempt but admitted being depressed because she "cheated on [Dave]."
During her hospitalization, Toni reported to attending medical personnel that she had been sexually preoccupied and was sexually involved with more than thirty-five men during the preceding few months. Evaluations conducted during the hospitalization opined Toni had little insight into her mental illness. On December 31, 2012, accompanied by Dave, Toni was discharged against medical advice.
Although initial reports were that Toni was compliant with recommended psychotherapy following her release, in March 2013, Dr. George Kruse of Care Plus, advised the Division that Toni's overdose was symptomatic of "increasingly erratic behavior" and bipolar disorder, and warned that another impulsive misuse of her medication would result in administration solely by injection. Care Plus was attempting to "stabilize" Toni.
The Testimony at Trial
We need not recount the tortured procedural history of the guardianship trial, the testimony of which began in June 2012 and was not complete until May 2013. Nor do we need to recapitulate the testimony from the Division's caseworkers and supervisors, much of which set the foundational predicates for documentary evidence reflecting the above narrative.
The Division's expert, Dr. Elizabeth Smith, Psy.D., testified regarding her psychological evaluations of Toni and Dave, as well as the bonding evaluations she conducted with the children and Toni, the children and Dave, and the children with their foster parents. As documented in her earlier reports, Dr. Smith explained Toni's history established her personality disorders were not transitory, but rather "long-term chronic problems," "more pervasive and more difficult to change" even with treatment and medication. Toni was dependent on others, easily overwhelmed, and prone to depression. Toni displayed "childlike reasoning," evidenced by explanation of her threats of suicide, which she said were only attempts to get attention, or her calls to the Division for assistance, in which she overstated her distress. Dr. Smith noted these tendencies persisted, even after Toni had received numerous interventions, therapy and parenting classes.
Dr. Smith's observations and opinions regarding Dave's relationship with Ike were contained in her reports and testimony. However, as already noted, any issue regarding Dave's role as a "psychological parent" of Ike is not before us.
While Toni was cooperative with services and therapy and motivated to get better and care for her children, Dr. Smith opined that Toni could maintain her mental health for a while with support but would then regress. Toni needed to have another competent parent serve as the primary caregiver for her children. Noting Toni's numerous calls to police, making false complaints about Dave, and Dave's description of Toni as "psychotic" and "jealous," Dr. Smith opined there was "a very high level of conflict" in the relationship, even without actual domestic violence.
The doctor testified that Dave was "obviously intelligent" and "presented as a reasonable person" who sincerely cared for the children. But, he led an unstable life, was unable to appreciate the mental health issues that faced Ike and Toni, and took no responsibility for failing to follow through with Division recommendations for himself that included individual counseling.
Dr. Smith observed that Dave had not raised any of his six adult children independently "or been there consistently for them." She opined that Dave's parenting history, his narcissistic personality disorder and his parenting inventory scores showing a risk of child abuse or neglect militated against giving him sole custody of Eddie.
Dr. Smith opined that Dave lacked the empathy to realize Eddie's primary attachment was to his foster parents, and that Dave would be unable to understand and mitigate the loss that Eddie would feel if separated from them. Eddie could, hypothetically, develop an attachment to Dave if placed in his custody, but that potential existed with any caregiver.
Turning to Ike, Dr. Smith opined that while his "psychiatric condition . . . was exacerbated by some parenting practices," Ike suffered from an organic mental illness. She saw no indication that Ike would recover from it anytime soon. Dr. Smith believed that a child as "vulnerable" as Ike would be "devastat[ed]" and "very damag[ed]" by the experience of another removal if returned to Toni. The doctor recognized Ike's desire to reunite with his mother, but she believed Ike had an idealized version of his relationship with Toni, during which his behavior and Toni's response permitted the child to receive whatever he wanted.
Dr. Smith was impressed with the quality of the foster parents' interactions with Ike. She ultimately concluded, to a reasonable degree of psychological certainty, that adoption offered "the best probability of things going better." She understood that the foster parents' promise of allowing Toni a continued relationship with Ike was not legally enforceable, and that only Kinship Legal Guardian (KLG) status would provide a legally enforceable right to continued contact. Nonetheless, she believed that adoption would be more beneficial to Ike.
Dr. Smith candidly considered the effect on both children if each was in a different status, i.e., one adopted and one in KLG. She was concerned Ike might "be upset that he was not adopted too." She described her thought process regarding both boys:
[T]hese two kids have been living together. It's not like they've been in separate foster homes or anything like that. I mean, they're being raised as brothers and should continue to do so, so if the Court finds that they should stay with their foster parents, they would be staying together as siblings, so that was a compelling piece.In any event, Dr. Smith opined that Ike "needs to see his mother," and that he would experience "an intense sense of loss" if he did not. The harm would be irreparable, and, if the court believed KLG was best for Ike so as to ensure he retained access to Toni, Smith could "certainly understand doing that."
Eddie's Law Guardian called Dr. Eric Kirschner, Ph.D., a clinical psychologist, as an expert witness. Dr. Kirschner had conducted bonding evaluations with Eddie and Dave, and with Eddie and his foster parents. It suffices to say that, relying upon his evaluation of the relative strengths of those bonds, Dr. Kirschner opined that termination of Dave's parental rights was in Eddie's best interests and the appropriate outcome.
During cross-examination by Dave's attorney, Dr. Kirschner acknowledged that he considered the foster parents' willingness to adopt both Ike and Eddie as "a factor" in reaching his opinion. However, the most significant factor in Dr. Kirschner's opinion was "the status of the adult bonds" with the children. In his view, allowing the two brothers "to maintain contact together is a positive development, as far as [Eddie] is concerned, but the sibling bond [did] not trump the status of the adult bonds."
Toni did not testify or present witnesses on her behalf. Dave did testify and also presented the expert testimony of Dr. Curtis Branch, Ph.D., a clinical psychologist, who had evaluated Dave, and conducted bonding evaluations with Dave and the children, and the foster parents and the children.
Dave testified that he had been living with his mother in New York since early 2011. His plan was to remain there or obtain his own housing, but he described living with Toni as his last option. Dave's application for housing assistance from the Department of Social Services and the Veteran's Administration (VA) had been approved, but he wanted to wait and see what the result of the litigation was before selecting an apartment. Dave planned to support himself and both children through his disability benefits and assistance from the VA. Although separated from his wife since 2005, Dave was awaiting the outcome of the litigation before finalizing his divorce. Dave acknowledged having six children with other women, excluding his wife and Toni, but he had not lived with any of their mothers for a substantial period of time.
The Division wanted Dave to pursue joint therapy with Toni, but for unknown reasons, Dave claimed it had not yet been arranged. Dave understood the recommendation that he participate in individual counseling, but he viewed it only as a suggestion and did not believe it was required. When his therapy was interrupted by his incarceration in 2012, Dave called the Division upon his release but claimed that no one told him to continue with his counseling.
Dave admitted that he declined to visit Eddie for five months following the child's removal in October 2010 because he did not want to see his own child "in a supervised setting." He noted, however, that Eddie enjoyed the time he spent with Dave during the current visitations. Dave agreed that his current plan was to "independently parent the children on [his] own and determine what contact [Toni] ha[d]" with them. While recognizing Ike's need for professional help, Dave believed that reunification would immediately alleviate "at least [fifty] percent of what's going on with him."
Dr. Branch recommended therapy for Dave "as one of the first steps towards reunification" but recognized that Dave's premature termination of therapy was an issue that needed to be addressed. Dr. Branch believed Dave's persistent engagement with the children and his willingness to participate in services were positive. The doctor acknowledged that Dave did not present a parenting plan for him to assess, but, regarding Dave's desire to continue parenting the children with Toni, the doctor stated "[t]here's no reason to believe that they can't do better than they've done in the past" by complying with therapy, medication, and the Division's requirements. The doctor opined that Eddie had a definite bond with Dave and there was "movement in the direction of a secure attachment."
Dr. Branch concluded it was preferable to keep the children together with Dave, because their bond to one another helped each of them "remain fairly stable," notwithstanding disruptions by Ike's placements. The children's initial sense of loss upon being removed from their foster parents could be mitigated by "pediatric psychology and pediatric psychiatrists." Noting that the foster parents were both female, Dr. Branch opined that a child who had a model of gender constancy, meaning a role model of the same gender, had an increased probability of "a healthy outcome."
Post-trial developments
After considering summations of counsel, the trial judge issued a written opinion on July 17, 2013, rejecting Dave's claim of being a psychological parent to Ike, terminating his parental rights to Eddie and Toni's parental rights to both children. The judge entered a conforming order the same day. The order also denied defendants' application for a stay and visitation pending appeal. However, on July 24, 2013, the court granted the Law Guardian's motion for Toni to have visitation with Ike pending appeal, permitting one supervised session per month and telephone contact supervised by the resource parents.
The order also terminated Ike's father's parental rights to Ike.
Given Ike's continued residential treatment, it is unclear if any telephone contact has occurred.
II.
A.
We are mindful of the well-known principles that guide our review. "We will not disturb the family court's decision to terminate parental rights when there is substantial credible evidence in the record to support the court's findings." 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 defer to the factual findings of the trial judge, who had "the opportunity to make first-hand credibility judgments about the witnesses . . . [and] 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)).
Because of "the family courts' special jurisdiction and expertise in family matters," we accord even greater deference to the judge's fact finding. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (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 (second alteration in original) (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," assessed through application of the four statutory standards contained 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). Those 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).
B.
When considering the first prong, the court's focus is not "on a single or isolated harm or past harm," but rather "on the effect of harms arising from the parent-child relationship over time on the child's health and development." K.H.O., supra, 161 N.J. at 348. The Division must show "that the alleged harm threatens the child's health and will likely have continuing deleterious effects on the child," but it "does not have to wait until a child is actually irreparably impaired." F.M., supra, 211 N.J. at 449 (internal quotation marks and citations omitted).
Toni argues that she caused no harm, nor did her conduct threaten the likelihood of harm to either child. She contends that she demonstrated reasonable parenting skills by asking for the Division's help, only to be thwarted by having her children removed. Dave contends that he caused no harm and posed no risk of harm to Eddie.
However, the evidence clearly and convincingly demonstrated that Toni's mental illness and erratic behavior posed a risk of harm to both children. Her relationship with Dave was toxic and their spats, albeit without physical violence, often played out in front of the children. The expert testimony credited by the trial judge was that whatever progress Toni made through provision of substantial services, she repeatedly regressed.
Despite recognizing Toni's parental deficiencies, Dave persisted in believing he was able to co-parent the children with her. Dave's conduct during the litigation — his initial recalcitrance in attending supervised visitation with Eddie, his subsequent incarceration, his "on-again, off-again" living arrangements with Toni — as well as his absence from the early lives of his other children, supported the judge's conclusion that Eddie's well-being was endangered.
The second prong "relates to parental unfitness," which may be established by demonstrating that "the parent is 'unwilling or unable to eliminate the harm'" or "the parent has failed to provide a 'safe and stable home'" and "a 'delay [of] permanent placement' will further harm the child." K.H.O., supra, 161 N.J. at 352 (quoting N.J.S.A. 30:4C-15.1(a)(2)). The inquiry is "whether that parent can raise the child without inflicting any further harm." N.J. 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).
Toni argues the trial judge relied solely upon her inability to control Ike's mental illness in finding sufficient proof under prong two. Dave contends that the judge based his conclusions only upon the expert testimony without citing any factual basis for the legal conclusions regarding the second prong.
It suffices to say that we disagree with Toni's characterization of the evidence and the trial judge's conclusions. The judge determined that, despite the Division's provision of significant resources to her, Toni was unable to mitigate the risk that her own mental illness posed to both children. The record clearly and convincingly supports this conclusion.
We have said that the "[c]oncern 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 under the second prong. N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 437 (App. Div. 2009). Contrary to defendant's arguments, the trial judge focused on Dave's post-removal behavior, not just the expert opinion of Drs. Smith and Kirschner, in deciding the Division satisfied its burden with regard to prong two.
N.J.S.A. 30:4C-15.1(a)(3) requires the Division to make "reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home," and that the court "consider[] alternatives to termination of parental rights." Provision of services under the third prong "contemplates efforts that focus on reunification." K.H.O., supra, 161 N.J. at 354. "Experience tells us that even [the Division's] best efforts may not be sufficient to salvage a parental relationship." F.M., supra, 211 N.J. at 452.
Toni concedes that the Division provided significant services to her and the family. She essentially argues only that the judge should have considered KLG as an option since, even at the time of trial, it was unlikely that the foster parents would adopt Ike since he was in a residential mental health facility.
Dave essentially argues the Division's efforts were limited only to supervised visitation for approximately one hour per week. The record, however, amply supports the trial judge's findings that the Division provided psychological evaluations, parenting skills training, drug screenings and referral to PBH. Dave was provided with supervised visitation, which he refused to attend early in the litigation, and the Division evaluated other placement options.
Subject to our discussion below, we conclude the Division's proofs as to the first three prongs of the statutory best-interests-of-the-child test were clear and convincing as to both defendants.
C.
We consider the proofs regarding satisfaction of the fourth prong of the statutory test, which, under the particular circumstances of this case, poses an exquisitely difficult issue for resolution. We are mindful of the special problems posed for parents, the Division and the court whenever a child suffers from significant mental illness, as does Ike. Moreover, at the time of trial, the Division's plan for adoption of both children by the foster parents was firmly supported by the expert testimony, and, therefore, the judge's conclusions on the fourth prong were on solid ground. In light of developments since, solid ground has turned to shifting sands, at least for Ike.
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. Prong four "serves as a fail-safe against termination even where the remaining standards have been met." G.L., supra, 191 N.J. at 609.
In most circumstances, 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 will "the child [] 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. Answering that question "necessarily requires expert inquiry specifically directed to the strength of each relationship." Ibid. (quoting J.C., supra, 129 N.J. at 25).
Moreover, and particularly applicable here, "courts have recognized that terminating parental rights without any compensating benefit, such as adoption, may do great harm to a child." E.P., supra, 196 N.J. at 109 (citing N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 610-11 (1986)). "Such harm may occur when a child is cycled through multiple foster homes after a parent's rights are severed." Ibid.
As to Eddie, we conclude the Division met its burden of proof as to both Toni and Dave. We reject the arguments made by both defendants that the trial judge based his conclusion solely on the strength of the bond between Eddie and his foster parents. We acknowledged that in some circumstances, proof that emotional harm would result from the rupture of foster parent bonds may be insufficient. See, e.g., N.J. Div. of Youth & Family Servs. v. D.M., 414 N.J. Super. 56, 80 (App. Div. 2010).
In this case, the judge discredited Dr. Branch's testimony. The judge credited the expert testimony of Drs. Smith and Kirschner, who noted the friendly relationship Eddie enjoyed with Dave, but neither of whom believed the bond was currently strong. The judge credited Dr. Smith's testimony regarding the strength of the bonds between Eddie and his resource parents. Dr. Smith noted only the hypothetical possibility that, based on the child's young age, Eddie and Dave would form a lasting, nurturing bond. Rupturing the bond with his resource parents would cause lasting harm to Eddie that Dave could not ameliorate.
The proof as to Toni was also clear and convincing. The undisputed facts are that Eddie was barely one year old when the litigation commenced, and approximately seventeen months old when removed from Toni's care. Although Toni faithfully attended visitation sessions, Dr. Smith opined that Toni's inability to overcome her own mental illness made it unlikely she could effectively parent so as to establish a sense of permanent security in either child. See E.P., supra, 196 N.J. at 110-11 (discussing permanency as the Division's paramount goal in Title 30 litigation).
At trial, the lay and expert testimony reflected the then-present state of affairs, in particular that Ike's and Eddie's fates were inextricably intertwined. Although Drs. Smith and Kirschner viewed continuation of the sibling relationship in a positive light, it is clear that the relationship forged between Eddie and his foster parents was the most significant factor. Dr. Kirschner expressly said so. We see no principled reason why Eddie should be denied the permanency to which he is entitled, and which, based upon the proofs at trial, is the proper result. We affirm the termination of Toni's and Dave's parental rights to Eddie.
However, the evidence at trial regarding Ike's best interests presumed a fact that no longer exists, i.e., that his foster parents would adopt him and some level of permanency could be achieved. Dr. Smith candidly acknowledged the strong attachment Ike had with Toni, and that he would suffer emotional harm if she was no longer part of his life. That was the rationale behind permitting visitation while this appeal was pending. The circumstances that currently exist no longer support the trial court's finding as to prong four of the statutory test because, at least for the moment, "[t]he termination of [Toni's] parental rights does not appear to have any real compensating benefit." Id. at 109.
At argument before us, the Division urged us to affirm nonetheless so it could begin the process of select home adoption. We are sensitive to the fact that delay in such efforts will be caused by our reversal. However, Ike will be fifteen years old at the end of this calendar year, and the window of opportunity in that regard is quickly closing. See ibid.
Based upon the particular circumstances of this case, we reverse the order terminating Toni's parental rights to Ike and remand the matter to the trial court for further proceedings. The Division must consider the current situation of Ike and Toni before determining the appropriate course of action. See id. at 112. In its considered judgment, it may begin to provide services again to Toni with an eye toward reunification, or pursue KLG or select home adoption.
If the Division decides termination of parental rights is still warranted, the judge shall conduct a hearing, the primary focus of which should be the adequacy of the current evidence regarding prong four of the statutory best-interests test. As noted, we are satisfied that the proofs regarding prongs one through three were clear and convincing, and the remand hearing need not address them again, except to the extent those proofs may bear on the prong four determination. We leave the conduct of any such future proceeding to the sound discretion of the Family Part.
That portion of the order terminating Dave's and Toni's parental rights to Eddie is affirmed; that portion terminating Toni's parental rights to Ike is reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION