Opinion
DOCKET NO. A-3285-13T3 DOCKET NO. A-3287-13T3
05-08-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. I.G. AND S.P., Defendants-Appellants. IN THE MATTER OF THE GUARDIANSHIP OF J.P. AND J.P., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant I.G. (Angela Rodriguez, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant S.P. (Howard B. Tat, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Julie B. Christensen, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Phyllis G. Warren, Designated Counsel on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer, Hayden and Sumners. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FG-12-59-13. Joseph E. Krakora, Public Defender, attorney for appellant I.G. (Angela Rodriguez, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant S.P. (Howard B. Tat, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Julie B. Christensen, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Phyllis G. Warren, Designated Counsel on the brief). PER CURIAM
In these consolidated appeals, defendants S.P. (Stacy) and I.G. (Ike) seek review of the March 10, 2014 order of the Family Part that terminated their respective parental rights to their sons J.P. (James), now six years old, and J.P. (Joseph), now almost four years old. Defendants contend that the Family Part judge erred as there was no finding of abuse or neglect against them prior to the New Jersey Division of Child Protection and Permanency (the Division) becoming involved with them. Moreover, the Division did not present sufficient credible evidence to prove by clear and convincing evidence the four prongs of the statutory best interests test, N.J.S.A. 30:4C-15.1(a). The Law Guardian joins the Division in supporting the Family Part judge's decision to terminate defendants' parental rights to both children. Having reviewed defendants' arguments in light of the record and applicable law, we affirm.
We use pseudonyms for the parties and their children.
I
The facts adduced from the testimony and documentary evidence introduced at the guardianship trial reveal a long history of involvement between the defendants and the Division. Stacy first became involved with the Division when she was sixteen years old, and she along with her three siblings, came under its "care and custody" due to allegations of neglect, abuse and substance abuse by her parents.
Shortly after being placed under the care of the Division and while living with her mother, Stacy gave birth to her first child, Janice, who is not involved in this litigation. A few months after Janice's birth, the Division took temporary custody of her based upon a report from Stacy's mother that Stacy was not attending school or working, and would leave Janice with her to go out and socialize with her friends. The Division also found that Stacy was not compliant with Janice's well visits to the doctor.
Six days later, Janice was returned to Stacy's care, but on the condition that Stacy remain with Janice in a "Mommy and Me" foster placement through the Union Industrial residential program and undergo parenting training, counseling and schooling. A few months later, however, Stacy left the program and returned with Janice to her mother's home despite knowing that Janice would be taken away from her. Janice was placed in her paternal grandparents' home. Janice's father was subsequently granted legal and physical custody of Janice.
On February 24, 2009, while still a minor, Stacy gave birth to James, the defendants' first child together. Although the Division had concerns over the living situation at her parent's home, Stacy was allowed to return there with James as the Division provided the assistance of a daily home health aide. Two months later, however, Stacy, her three siblings and two-month old James, were removed from Stacy's mother's home. The Division substantiated an allegation that Stacy was caring for her siblings in violation of a Family Part court order, and also discovered that Stacy's older sister, who had been barred from the home until she completed substance abuse services, was at the home. James was placed in a foster home for several months. He was reunited with Stacy through the Children's Home Society Strengthening Adolescent Families though Empowerment (SAFE) "Mommy and Me" program which allowed Stacy and James to live together in a home with a foster mother. Stacy was still a minor and under the care and supervision of the Division at the time of this placement.
On December 6, 2009, Stacy, who was no longer a minor and was not pleased with the SAFE Mommy and Me program, left with James and returned to her mother's home. The next day, a Division investigator who had been informed that Stacy and James were missing, advised Stacy that if she did not return to SAFE, James would be removed from her custody. Despite stating she would return to SAFE, Stacy did not, prompting a police search for kidnapping that ended with the Division removing James from Stacy's care and his placement into an emergency home. As for her rationale, Stacy informed the Division that she wanted to be treated as an adult and wanted to obtain a job and housing so she could raise her children. The Division indicated it could provide services to help Stacy to be independent, but that she would need to be in stable housing and employed before James could be returned to her. James has remained in his Division placement since December 2009, and it is those foster parents who wish to adopt both children at issue here.
The record is sparse as to the following time period as the Title Nine litigation involving Janice, which was amended to include James upon his birth, was not a part of this matter. However, the record does reveal that in March 2011, while pregnant with Joseph, the defendants' second son, Stacy tested positive for cocaine. During a meeting with the Division, Stacy denied using cocaine and "implied that the person who conducted the urine screen may have tampered with her urine."
On May 20, 2011, the Division filed a guardianship complaint against the defendants with regard to James. Joseph was born on July 22, 2011, and the Division obtained custody of him by way of a Title Nine protective services complaint upon his release from the hospital. Joseph was returned to Stacy's physical custody several months later at the Amandla's Crossing Mommy and Me program, but James remained with his foster family.
While the Family Part judge had accepted the Division's plan of termination of both defendants' parental rights to James at the November 17, 2011 permanency hearing, in April 2012, the Division changed its position to reunification and dismissed its guardianship complaint. The Division based its decision upon the report and recommendation of Karen D. Wells, Psy.D., that termination of Stacy's parental rights was not clinically supported. James was added to the Title Nine protective services litigation involving Joseph. The Family Part entered an order permitting Ike visitation with the children on the conditions that he submit a psychological evaluation showing nothing to prevent visitation, and he was in compliance with substance abuse services. The court's order further required Stacy to comply with the following recommendations of Dr. Wells:
A. Compliance with Work First;
B. Compliance with Amandla's Crossing;
C. Compliance with MCS [Multicultural Services];
D. Compliance w[ith] psychiatric counseling, as referred by the Div[ision], and all recs and if [Stacy] has any issue w[ith] recs, she shall notify the Div[ision];
E. Compliance with Future Project, or a ser[vice] as referred by Div[ision], to include individual counseling and education/GED counseling;
F. Visitation with [Stacy] shall be increased[.]
The defendants were given a second chance to be reunited with James and to reunify the family, but failed miserably. In April 2012, while initially denying the allegations and attempting to stall her urine test, Stacy admitted to drinking alcohol at Amandla's Crossing, which was a violation of the program's rules. Moreover, while Stacy indicated Joseph was not under her care when she drank alcohol, she indicated Joseph was with her sister, who was not an approved caretaker.
Then in June 2012, both Stacy and Ike were arrested for failure to pay child support, causing Joseph to be emergently removed as they had sent Joseph to Stacy's mother's house, which was not an approved setting as Stacy's mother had her own open case with the Division and her children were not in her custody. Joseph was placed into the same foster home as James where he has remained since.
Stacy was terminated from the Amandla's Crossing program when she allowed Ike to sneak into her apartment in violation of Stacy's housing contract with the agency, which prohibited men in the facility. This caused Stacy to become homeless and prevented her ability to comply with the Work First program.
Ike was incarcerated for an extended time after June. While he did complete substance abuse treatment with Catholic Charities in October 2012, he failed to comply with parenting skills services and his case was closed in December 2012.
As a result of the defendants' non-compliance with the Family Part's order and Division services, the Family Part entered a permanency order on February 20, 2013, approving the Division's plan of termination of defendants' parental rights followed by adoption. To that end, on May 16, 2013, the Division filed a complaint for guardianship of James and Joseph. An order to show cause set a return date of June 24, 2013, but neither parent appeared despite being served with the order. Default was entered against them, but later vacated.
The guardianship trial began on January 29, 2014. Although the defendants did not appear, their counsel were present and agreed to move forward on the defendants' behalf. The court reserved on the Division's default motion until the afternoon. Stacy appeared in the afternoon, but Ike did not, so the judge entered default against him, noting that default would be vacated if Ike appeared for the next trial date.
The Division presented three fact witnesses, Millagros Munoz, Althea Laswell, and Sasha Dixon, and one expert, Barry Katz, Ph.D. Munoz testified regarding Ike's extensive criminal history. At the time of trial, Ike was on probation for burglary and receiving stolen property, a crime that occurred while Ike was already on probation for drug possession, and which resulted in his probation being extended to August 2015. Ike was arrested twice in 2013 for obstruction of justice and failure to provide child support, and in July 2013, violated his probation by testing positive for cocaine. Ike's frequent incarcerations caused him to be unable to comply with services, although at the time of trial Ike was compliant.
All three Division witnesses testified that Stacy had consistently failed to comply with court ordered services. In December 2011, Stacy was discharged from Journey to Wellness, a substance abuse program, for non-compliance despite having only two classes left to complete. Stacy failed to complete multicultural services by February 2012, and refused to take parenting classes claiming that she had taken them before.
In August 2012, Stacy's psychiatric evaluation resulted in recommendations that she "continue individual counseling to address her impulsivity and [] interpersonal difficulties [and] for poor long term planning . . . [as well as] participat[ion] in psychotherapy on a regular basis [] to deal with coping skills." Despite being provided transportation by the Division, Stacy never completed psychological services, and was repeatedly referred to new programs. Stacy was discharged from the At Home Marital and Family Counseling program for becoming aggressive with the counselor and failing to attend, among other reasons. She was then referred to weekly sessions for individual counseling at Future Project but attended only one session.
Dixon testified as to her efforts to obtain relative placements for the children. Initially, she thought Ike's parents were an option, but repeated personal and written requests to them did not result in any indication they wanted to care for the boys.
As for the status of the boys, Munoz testified that they were doing well with their foster family. She described that they felt it was their "home," smiled and always wanted to be embraced when they were returned to their foster family. In contrast, Munoz noted that when dropping off or picking up the boys for their supervised visits approximately once a month with Stacy they seemed expressionless, withdrawn and not engaging with her. Dixon also testified as to her observations of James with the foster parents and noted that he was "very bonded" with them, always hugging and kissing them, and referring to them as "mom and dad."
The Division's expert witness, Dr. Katz conducted psychological evaluations of the defendants as well as a bonding evaluation of the children with their biological and foster parents. Dr. Katz opined that neither defendant was able to properly parent the children, and would not be able to do so in the foreseeable future.
As for the bonding evaluations, Dr. Katz indicated Stacy was a familiar figure to both boys, but James was resistant to hugging and touching by Stacy for which she was "at a loss" as to the reason for the behavior or how to deal with it. While Joseph did not immediately show open acts of affection to Stacy, he did respond to her show of affection. On the other hand, Ike was "distant for the most part from the interaction," and the boys "didn't show much attention to him." There was no emotional attachment between Ike and his sons.
In contrast, Dr. Katz testified that the boys had "spontaneous emotional interactions with" their foster parents. Dr. Katz opined that the children were "strongly attached" to their foster parents and that their removal from the foster parents would have an adverse impact on the children, especially James, and that neither parent could ameliorate that harm. As for Joseph, Dr. Katz opined that placement with Ike would result in "a high level of problematic behaviors." While Joseph showed more affection towards Stacy, Dr. Katz did not believe she could ameliorate the harm of removal from the foster parents and would not understand the needs of Joseph, who has sickle cell anemia.
Dr. Katz's psychological evaluation of Stacy revealed that Stacy met the criteria for narcissistic personality disorder with histrionic and compulsive features, which he described as "a person who's focusing on their own needs, who has trouble responding to meeting the needs of others, who is somewhat rigid in their defense system and may respond with poorly modulated expressions of emotion." A parenting assessment test revealed Stacy had an "essence of rigidity in parenting" that suggested she would have issues dealing with children, compromising and problem solving. The test also revealed a low level of empathy in terms of understanding children's needs different from her own.
As for the criticism expressed in the report of Stacy's expert, James Reynolds, Ph.D., that Stacy's inability to understand written testing due to a limited education resulted in an inaccurate assessment, Dr. Katz explained that Stacy's reading limitation was not an issue, and that he considered her ninth grade education when he conducted the testing.
As for Ike's psychological evaluation, Dr. Katz testified that Ike's denial of his documented non-compliance with services while maximizing his functioning is "indicative of a person who creates a false façade" with regard to his shortcomings, and indicated this minimization was "at an extreme level." Dr. Katz also opined that Ike was of the belief that children should "be seen but not heard," and would put strict and rigid demands on the boys that they should follow without question. Thus, Dr. Katz's recommendation was termination of both defendants' parental rights to both children followed by adoption by the foster parents.
While Ike did not testify nor present any evidence on his behalf, Stacy testified on her behalf and presented expert testimony by Dr. Reynolds. Stacy explained why she left the SAFE Mommy and Me program with James in December 2009. She testified that she could no longer stand living away from her family in a house with a foster mother who constantly threatened her that "I'm going to kick you out and — and I don't need you in my house." Stacy said she made a "big mistake" and that after she returned to her mother's home she went to the police station as the Division had reported a kidnapping. Stacy acknowledged that James has been with the same foster parents since December 2009, and had bonded with them, but stated "[h]e knows who's his real mother[.]" She also contended that at the end of supervised visits, James will be depressed and told her that he did not want to go back to his foster parents. If James and Joseph were returned to her, Stacy said she would allow the foster parents to visit them.
As for testing positive for cocaine in March 2011, while pregnant with Joseph, Stacy denied using drugs and claimed that she did not even know she was pregnant at the time. Stacy also denied the Division's report that she drank alcohol while at Amandla's Crossing. Stacy admitted that she knew it was a violation of Amandla's Crossing's rules for Ike to be in her room, but testified that Ike snuck into the room, and she told him to leave. Stacy also stated that Joseph should not have been removed from her when she was dismissed from Amandla's Crossing, claiming she was not homeless as she received a letter from a homeless shelter indicating she could live there with Joseph.
As to her current stability, Stacy testified that she and Ike were married in September 2012, and they were living with his parents in a three bedroom apartment. She was also working as a school bus aide. She indicated that she had learned from her mistakes and that she is ready to have her children back.
Stacy's expert, Dr. Reynolds, testified that based upon his psychological evaluation of Stacy and his bonding evaluations of Stacy and the foster parents with both James and Joseph, Stacy should be reunited with the boys. According to Dr. Reynolds, tests revealed that Stacy was reading at a third grade level and that her intellectual functioning was "within the range of borderline intellectual functioning and low average intellectual ability." He did not find that Stacy had any emotional issues that impaired her ability to provide proper parenting by making mature decisions. He agreed that there was a concern that Stacy did not complete Mommy and Me programs, but he was not sure that had any impact on her actual parenting practices. He did, however, acknowledge that her dismissal from Amandla's Crossing when she was caring for a nine-month-old child "potentially" reflected on her parenting ability.
During the bonding evaluations, Dr. Reynolds testified that Stacy interacted with both children in an age-appropriate and developmentally-appropriate manner. He stated that the boys showed no indication of anxiety or discomfort while in her presence. The same was true for Dr. Reynolds' observation of the children with their foster parents: the children were comfortable and the foster parents interacted with them in an age- and developmentally-appropriate manner. Dr. Reynolds was of the opinion "that both children have developed safe, secure attachments to the foster parents and are continuing to do so over time." He also recognized that the boys should maintain contact with their foster parents and that reunification with Stacy should take place gradually over time.
Dr. Reynolds did not evaluate Ike, and acknowledged that it would have been appropriate for Ike to be evaluated given the defendants' plan for the boys to be co-parented at Ike's parent's home. Dr. Reynolds also agreed that the relationship between Stacy and Ike would be a relevant factor with regard to reunification.
Following closing arguments, the Family Part judge issued an oral decision terminating defendants' parental rights based upon the Division's satisfaction of the four prongs of the statutory best interests test, N.J.S.A. 30:4C-15.1(a). The judge found that Stacy and Ike have not successfully completed the numerous services and programs intended to provide them with the necessary parenting skills to raise their children in a safe, secure and stable situation. The judge found Ike had not fully availed himself of any of the services offered and given his history of criminal behavior and unemployment there was no reason to believe his behavior would change.
The judge found Dr. Katz' assessment of Stacy's emotional issues to be credible and consistent with the events testified to by the Division witnesses. The judge was also critical of Dr. Reynolds' failure to assess Ike and his relationship with Stacy in light of their plan to co-parent the children. Thus, he found Dr. Reynolds' opinion lacking credibility. The judge further determined that the children developed a strong bond with their foster parents who are raising them in the proper environment. To remove them from their foster parents would cause further complications. The judge entered the order under review and this appeal followed.
II
On appeal, both defendants contend that the Division failed to prove by clear and convincing evidence all four prongs of the statutory best interests test, N.J.S.A. 30:4C-15.1(a). We briefly review the well-recognized criteria for terminating parental rights and our role on appeal.
"[P]arents have a constitutionally-protected" right to enjoy a relationship with their children. N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 166 (2010); see also N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 102 (2008). Although strict standards have consistently been imposed in the termination of parental rights, these rights "are not absolute." In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). To balance these constitutional rights against potential harm to the child, when applying for guardianship, the Division must "institut[e] a termination proceeding when such action would be in the best interests of the child." N.J. Div. of Youth & Family Servs. v. K.M., 136 N.J. 546, 557 (1994).
To this end, for the Division to terminate parental rights and obtain guardianship of the child, it must satisfy the following four prong test:
(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;These four prongs are not independent of each other; rather, they "are interrelated and overlapping[,] . . . designed to identify and assess what may be necessary to promote and protect the best interests of the child." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006), certif. denied, 190 N.J. 257 (2007). Application of the test is "extremely fact sensitive," requiring "particularized evidence that addresses the specific circumstances of the individual case." Ibid. (internal quotation marks and citation omitted). The Division's burden of proof at trial is to establish its case by clear and convincing evidence. K.M., supra, 136 N.J. at 511.
(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 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.
[N. J.S.A. 30:4C-15.1(a).]
Our review affords deference to the Family Part judge. First, we "defer to the trial court's factual findings so long as they are supported by adequate, substantial, and credible evidence in the record." I.S., supra, 202 N.J. at 185. "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)). Second, we give deference to the judge's credibility determinations. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (citing Cesare v. Cesare, 154 N.J. 394, 411-13 (1998)). Judges who hear the case and see the witnesses are "better positioned to evaluate the witnesses' credibility, qualifications, and weight to be accorded [their] testimony." In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999). Third, there is special deference given to the Family Part's fact-finding based on its expertise in the field of domestic relations. Cesare, supra, 154 N.J. at 413. Nevertheless, "where 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." N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014) (omission in original) (internal quotation marks omitted). Applying these principles, we conclude that the Division satisfied all four prongs of the best interests test.
Both defendants contend that the harm required under the first prong of the best interests test was not satisfied because neither were found to have abused or neglected their children. Defendants contend the Division's involvement with them came as a result of Stacy's mother being investigated by the Division regarding abuse and neglect toward Stacy and her siblings. They assert that the failure to complete services alone does not constitute harm; the statute does not require completion of services, but does require a finding of harm. Both also assert that a delay in permanent placement is not a harm in and of itself, citing to I.S., supra, 202 N.J. at 170-79. Finally, Ike also relies on N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 330 (App. Div. 2011), to contend that his substance abuse alone is insufficient to prove harm.
We are not persuaded. Stacy was a minor and herself under the supervision and care of the Division when she gave birth to Janice and James, who is a subject of this appeal. It is not unusual that Stacy was being provided services by the Division when James was born. However, the manner in which the Division initiated its involvement with Stacy is not relevant to resolving the issues before us. The four prongs of the statutory best interests test are not independent of each other. They "are interrelated and overlapping[,] . . . designed to identify and assess what may be necessary to promote and protect the best interests of the child." R.L., supra, 388 N.J. Super. at 88.
Moreover, the harm required under the first prong of the statutory best interests test can be met by a parent's failure to comply with Division and court-ordered services without any physical harm to the child. The first prong of the best interests test requires a showing that "the child's safety, health or development has been or will continue to be endangered by the parental relationship." N.J.S.A. 30:4C-15.1(a). In N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 450-51 (2012), despite no physical harm to the children, the Court concluded that harm under the first prong of N.J.S.A. 30:4C-15.1(a), was established by a mother's violation of the Division's case plan and court orders to keep the children away from their mentally ill and drug addicted father.
The Court in F.M. relied upon M.M., supra, 189 N.J. at 282, to support its holding. In M.M., the Court concluded there was harm when a father failed to insure that his son was not left with the mother. Ibid. According to the Court, the mother posed a serious risk to the son due to her substance abuse problems, habitual running away from home, and history of falsely alleging domestic violence. Ibid. There was no physical harm to the child. Ibid.
Here, there is substantial credible evidence of the defendants' repeated failures to comply with Division case plan services and violation of court orders. When Stacy was eighteen years old, she unilaterally left the required SAFE Mommy and Me program with James to return to her mother's home, which was subject to Division review and not considered a safe place for her. Contrary to a Family Part court order, Stacy was at her mother's house with James at a time that her older sister, who was alleged to have substance abuse issues and was barred from the home, was present. Stacy also failed to comply with Family Part court orders requiring her participation in parenting skills training, Work First, GED counseling, psychiatric counseling, and a follow-up neurological examination. In addition, she failed to keep Ike away from the children despite court orders barring his visits until he was evaluated for substance abuse. Ike's sneaking into Amandla's Crossing, apparently with Stacy's assistance, caused Stacy to be dismissed from the program and Joseph to be placed into foster care.
As for Ike, we agree that his drug use alone without proof that it harmed his children does not establish harm under the first prong. N.J. Div. of Youth & Family Servs. v. V.T., supra, 423 N.J. Super. at 330; see also In re Guardianship of K.H.O., 161 N.J. 337, 348-51 (1999) (holding infant born addicted to drugs and suffering withdrawal symptoms has suffered harm within meaning of N.J.S.A. 30:4C-15.1(a)(1), although drug use during pregnancy alone does not constitute such a harm).
However, there were numerous other parenting concerns which established the harm inflicted by Ike. His several incarcerations for drugs and other crimes impeded his ability to comply with services and to provide for his children. He failed to be compliant with Journey to Wellness despite a court order and despite the fact that it was required to obtain visitation with the children. He did not complete parenting training and counseling. Ike remained unemployed despite being advised it was a component to reunification, and he was not able to obtain stable housing to keep the children away from Stacy's mother's home and thereby prevent their removal.
The defendants' reliance on I.S. for the proposition that a delay in permanent placement does not demonstrate harm is misplaced. In I.S., the Court determined that a father's eight-month delay in acknowledging paternity of a child born out of an adulterous affair alone did not constitute the harm needed to establish the first prong of the best interests test as there were understandable "life circumstances" causing his delay: his wife would not accept the newborn, meaning he would be raising the child alone, and he had four other children. Id. at 171-74. A significant factor in the Court's decision was that the father had steady employment, stable housing and had arranged for appropriate day care of the newborn. I.S., supra, 202 N.J. at 170-79. Unlike the father in I.S., the defendants here have not obtained steady employment or housing and have not addressed psychological or substance abuse concerns. We conclude that there is substantial and credible evidence to support the Family Part's finding on prong one of the statutory best interests test.
Likewise, the second prong, which involves whether the parents are unwilling or unable to eliminate the harm, was demonstrated by the defendants' repeated failures to comply with the Division case plan services and violations of Family Part court orders. The Division and the Family Part had the legal authority to require that the defendants comply with the varied services intended to give defendants the ability to provide their children a safe, secure, and stable environment in their own family unit.
While Ike contends the housing situation at his parents' home is stable, there is no evidence in the record to support this claim, especially given his mother's failure to respond to the Division's request to be a placement for her grandchildren. The Family Part judge correctly noted that the defendants' plan of co-parenting in Ike's parents' home was flawed as there was no evidence as to how the defendants parented together. Stacy's own expert, Dr. Reynolds, candidly indicated that he could not opine as to Ike's ability to co-parent. On the other hand, the Family Part judge found credible the Division's expert opinion that defendants could not ameliorate the serious harm from removing the children from their foster parents.
Defendants were given ample time and opportunity to take advantage of the services, but failed to do so. We see no reason to disturb the Family Part judge's finding that this prong was met as there was "enough time for either parent, should they be inclined, to change. . . . to do what they have to do to make it better for their kids. They just haven't done it[.]" We conclude that there is substantial and credible evidence to support the family court's finding on prong two of the statutory best interests test.
As for the third prong, Stacy asserts that the Division failed in its mandate to provide individualized services that would actually benefit her by repeatedly sending her to Mommy and Me programs when she had already shown she was not able to cope with this type of program.
Ike argues the Division was focused on placing the children with the foster family and unreasonably kept requiring him to participate in more and more services when he completed programs. He also contends that the Division did not fulfill its obligation to assess whether his parents could be potential caregivers.
We are not persuaded by the defendants' arguments. Division records and Stacy's own testimony reveal that she sought placement at the Amandla's Crossing Mommy and Me program with Joseph. Ike's substance abuse evaluations were required based on his positive test results. The record reveals that Ike did not complete parenting or counseling services. His failure to comply was his own choice. Moreover, it was unrefuted that the Division reached out to Ike's parents with regard to placing James and that the grandparents did not follow up with the Division's inquiry. We conclude that there is substantial and credible evidence to support the Family Part's finding on prong three of the statutory best interests test.
Lastly, as to the fourth prong, Stacy argues that the Family Part judge erred in relying only on Dr. Katz's testimony without considering the testimony of her expert, Dr. Reynolds, to reach his conclusion that termination of parental rights would not cause more harm than good to the children. She contends that the Division cannot dispute that she has a bond with her children. Ike argues the Family Part judge erred in focusing on the length of time that the children were with the foster family rather than the actual relationship with the biological parents.
These arguments are without merit. The Family Part judge considered Dr. Reynolds' testimony, but found Dr. Katz' testimony more credible because his evaluation was more complete by assessing Ike as well as Ike's relationship with Stacy. Both experts agreed that the foster parents had a strong bond with the boys. The difference between their respective opinions was whether defendants could ameliorate the harm caused by removing the children from their foster family. The Family Part judge found more credible Dr. Katz' opinion that defendants could not, a finding we will not overturn and accord great deference. See D.M.H., supra, 161 N.J. at 382. The determination is also supported by substantial credible evidence that neither parent had complied with Division services and there is no evidence as to Ike's ability to ameliorate any harm.
Similarly, Ike's claim that the Family Part judge focused on the children's time in foster care rather his actual relationship has no basis in the record. Ike did not testify nor offer any fact witness or expert as to his bonding with his sons. Pointedly, there was no rebuttal of Dr. Katz' assessment that "neither child showed evidence of having a bond to [Ike] as a parental figure. That there was no signs of any type of emotional attachment that was there." The record supports the view that Ike had minimal involvement with his sons' lives due to incarceration and his failure to undergo substance abuse evaluations.
We conclude that there is substantial and credible evidence to support the Family Part's finding on prong four of the statutory best interests test. Accordingly, there is no basis to overturn the decision of the Family Part terminating defendants' parental rights.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION