Opinion
DOCKET NO. A-2199-11T3
02-26-2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. J.L.S., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF J.L.S., Jr. and D.F.S., Minors.
Carleen M. Steward, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Steward, on the brief). Nora P. Pearce, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Pearce, on the brief). Olivia Belfatto Crisp, Assistant Deputy Public Defender, argued the cause for minors (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Crisp, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, Sapp-Peterson and Haas.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-191-11.
Carleen M. Steward, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Steward, on the brief).
Nora P. Pearce, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Pearce, on the brief).
Olivia Belfatto Crisp, Assistant Deputy Public Defender, argued the cause for minors (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Crisp, on the brief). PER CURIAM
Defendant J.L.S. appeals from an October 25, 2011 judgment of guardianship of the Family Part terminating his parental rights to his then almost two-year-old son, J.L.S., Jr. (Jimmy), and nine-month-old daughter, D.F.S. (Debbie). He argues the Division of Youth and Family Services (Division) did not prove by clear and convincing evidence the four prongs of the termination statute. The Law Guardian supports the termination on appeal as it did before the trial court.
Fictional names are used to protect the privacy of the children and for ease of reference.
On June 29, 2012, the Governor signed into law A-3101, which reorganized the Department of Children and Families, including the renaming of the Division as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.
Based on our review of the record and applicable law, we are satisfied the evidence in favor of the guardianship petition overwhelmingly supports the termination of defendant's parental rights. See, e.g., N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2009) (holding that a reviewing court should uphold the factual findings respecting the termination of parental rights if they are supported by substantial and credible evidence in the record as a whole). Accordingly, we affirm.
I.
Defendant is the biological father of Jimmy, born January 8, 2010, and Debbie, born January 10, 2011. The children's mother R.M.F. (Rita) voluntarily surrendered her parental rights to them during the trial and is not a party to this appeal.
The Division has been involved with defendant and Rita since 2003. At the time of Jimmy's birth, defendant and Rita's six other children had already been removed from their custody, and the court had concluded they had abused or neglected them. They took Jimmy home from the hospital, but upon the Division's direction, they promptly brought him to the Division's office. A Division caseworker explained to defendant that Jimmy was being removed from their home, in part, based on his and Rita's prior noncompliance with services. Defendant executed the paperwork for an emergency removal.
Defendant's parental rights to five of these children, V.L.S., G.L.S., N.L.S., F.M.S., and I.T.S., were terminated on August 26, 2010. Rita completed an identified surrender to their respective resource parents. The children had been removed from the household due to medical neglect, emotional abuse, and grossly unsanitary conditions in the home. Additionally, the parents had a history of PCP use, no stable housing, and noncompliance with services. On November 28, 2011, we affirmed the termination of defendant's parental rights to these five children. N.J. Div. of Youth & Family Servs. v. J.L.S., No. A-0700-10T1 (App. Div. Nov. 28, 2011) (slip op. at 3). A sixth child, D.M.S., was dismissed from the earlier complaint for guardianship but continues in the care, custody, and supervision of the Division in a specialized treatment program. Defendant had hit D.M.S. with a belt in the face as punishment, and on February 25, 2009, he pled guilty to an accusation charging him with third-degree endangering her welfare, for which he was sentenced to four years probation, conditioned on incarceration in the county jail for 270 days. Id. at 10-11.
On January 14, 2010, the Division filed an order to show cause to appoint a law guardian with temporary custody. The Division argued the removal of the child was required because defendant's six other children were previously removed from his custody due to abuse and neglect. Pursuant to court order that same day, Jimmy was placed in the custody, care, and supervision of the Division in a Division resource home. The judge also ordered the Division to investigate all relatives not previously ruled out for placement, and directed new substance abuse and psychological referrals and follow-ups for defendant and Rita and anger management counseling for defendant.
During a February 16, 2010 review, the court directed twice weekly visitation, and ordered defendant to participate in anger management classes, psychological and substance abuse evaluations, and parenting skills training. Subsequent orders continued Jimmy in the custody of the Division and directed defendant to attend parenting and anger management at Delaware Valley Psychological Services (DVPS).
On February 17, defendant and Rita visited their children at the Division office, including one-month-old Jimmy. The Division worker reported the visit as "chaotic." A February 24 visit was similar, and the report stated the children "seemed out of control." During a May 12 visit, a Division worker reported that the parents were very defensive when told to be careful with Jimmy. During three unremarkable visits in June, defendant showed affection towards Jimmy by kissing him and feeding him his bottle. At various times through December defendant's visitation was sporadic and there were several times that the children were brought to the visits and nobody showed up.
Defendant did not appear for his appointment on March 9 at DVPS. On March 12, the Division case manager met with defendant and Rita before their scheduled visit with Jimmy, and informed defendant that he had not completed the anger management and domestic violence classes, which caused defendant to start arguing that he "does not need to do it and he has no anger issues." Defendant further refused to participate in domestic violence classes because they had not been court-ordered. Defendant also failed to attend a rescheduled appointment for a substance abuse evaluation in May.
After a fact finding hearing on May 17, 2010, the judge entered an order finding defendant and Rita abused or neglected Jimmy. The judge also entered a disposition order keeping Jimmy in the Division's custody and compelling defendant to attend a substance abuse evaluation, anger management, and parenting classes. Jimmy's maternal grandmother's application for custody was denied. It was further ordered that Jimmy be placed in the custody of his paternal aunt A.S., which occurred in July 2010. Jimmy has remained in that placement, and A.S. has expressed a desire to adopt him.
On May 14, the parents reported to a caseworker that neither had a job, income, or a place to live. Defendant did not attend his parenting session at DVPS scheduled for May 18. Defendant also missed appointments at DVPS in November, December 7 and 14, but came in for individual therapy on December 21. Defendant advised he had been in a horrible car accident and was unable to go to work or get around.
Dawn Brach, the Division supervisor, testified at trial that defendant was hit by a car in front of the Howard Johnson's and Rita told her "he broke his foot and that his toes were hanging off." Brach observed him with a crutch.
A Division worker arrived at the hospital shortly after Debbie's birth in January 2011 and interviewed Rita. She advised that she was living with defendant at the Howard Johnson Motel in Blackwood. Defendant expressed a desire that Debbie stay with him and Rita at the motel, or they could all stay with his mother.
Nevertheless, on January 18, 2011, the Division filed a verified complaint and order to show cause seeking custody of Debbie and to appoint a law guardian for her. The court held it was contrary to Debbie's welfare to stay in her parents' house because of allegations concerning the older children and the parents' failure to successfully complete various court-ordered services. Debbie was placed in a Division approved home where she has remained and her caregivers have expressed a desire to adopt her. In subsequent compliance reviews, the court continued Jimmy and Debbie in the custody of the Division and continuously directed defendant to attend psychological and substance abuse evaluations and complete parenting and anger management programs.
On May 3, 2011, the Division filed a complaint for guardianship of Jimmy and Debbie. On June 3 defendant's attorney offered the name of a close family friend as a possible placement for Debbie. When the individual subsequently returned the caseworker's phone calls, she advised she was about to give birth in September and did not believe she could handle Debbie.
At the October 4, 2011 case management conference, defendant submitted certificates that he had completed his parenting and anger management classes on August 9 and l8, respectively. He was still required to find housing independent of Rita and undergo a parenting capacity evaluation.
On October 24 and 25, 2011, the guardianship trial was held before Judge John A. Fratto, who had terminated defendant's parental rights to his older children. The Division presented the testimony of Division employees, Dawn Brach, a supervisor; Akeia Wright, a caseworker; and Tara Sinclair, an adoption case manager. The Division also presented the expert testimony of James Loving, Psy.D. Rita and defendant testified on their own behalf. The Law Guardian supported the plan for termination of defendant's parental rights, followed by adoption by the foster parents. At the conclusion of Dr. Loving's testimony, Rita entered an identified surrender of her parental rights to the children's current caretakers.
Accordingly, we reference the testimony regarding Rita only to the extent it is relevant to defendant.
Brach testified about her involvement with defendant and Rita since May 2008 and the removal of defendant's other children from the home. She explained that domestic violence counseling had been recommended because Rita told the Division "there was serious domestic violence between her and [defendant]" – he broke her eye socket and jaw and tried strangling her – and this was done in front of the children. Rita, however, had not sought a restraining order against defendant. Brach related that when interviewed by the service providers, defendant denied there had been any domestic violence and thus would not participate in domestic violence counseling. She also related that Rita told her she was doing defendant's homework for him for the parenting and anger management classes because "she wanted to make sure that he finished the program."
Wright testified as to her observations of a positive, loving relationship between Jimmy and Debbie and their respective caregivers. She also testified that during visitations defendant usually has Debbie on his lap, feeding her, burping her, and putting her to sleep, and he talks with Jimmy.
Dr. Loving testified about the psychological evaluations he performed on Rita and defendant on October 5 and 12, 2011, respectively. He noted the discrepancies in their reporting of domestic violence in their relationship and assessment of their current relationship. Rita reported that there had been a remote history of domestic violence during which defendant had broken her jawbone and broken a bone in her face by throwing a cable box at her but denied there had been any domestic violence during the past eight years. She also reported that they had ended their relationship and neither had any desire nor intention to reconcile. In contrast, defendant "just flatly denied that there had been any history of domestic violence" or that there had been any physical violence on his part, although he acknowledged that about eight years prior he had "grabbed, or gripped up" Rita after she had punched him during an altercation. He also stated that his and Rita's intention was ideally to resume living together with Jimmy and Debbie.
Dr. Loving reported Rita's acknowledged criminal history, noncompliance with services, prior mental health treatment, and anti-depressant medications. He testified that the clinical findings of defendant's Child Abuse Potential Inventory (CAPI) test suggested risk for physical child abuse and, in fact, he had a substantiated history of physical abuse of his daughter D.M.S. On the AXIS II testing, Dr. Loving assigned defendant a diagnosis of personality disorder not otherwise specified with anti-social features, which essentially includes a disregard of rules or other people's rights and resulting irresponsibility. He did not find defendant to have any major mental health issues in terms of depression, anxiety, or distress, but based on his "very longstanding attitudes and personality features that make it difficult to change," Dr. Loving expressed overall concerns about defendant's parenting-related risks that would interfere with safe and effective childcare.
Dr. Loving was not convinced defendant had learned to accept responsibility for many of his problems and issues in his life despite having completed anger management and parenting classes. Dr. Loving expressed the concern that defendant had simply gone "through the motions" in the treatment services without applying what he could have learned to his actual situation or that defendant did not feel he actually did anything wrong so he would not change his behavior when faced with the same situation in the future.
Dr. Loving reported:
[T]here is a very compelling history of allegations that suggest substandard childcare, turbulent relationships, and unstable living arrangements. After many years of these conditions, it seems that these are ways of life that [defendant] tolerates or even perpetuates but does not recognize as being problematic.
Defendant was not employed at the time of the evaluation, was living with his mother and, although he generally advised he would like to live "independently," he had no definitive housing plans. Dr. Loving opined that whether defendant and Rita were in a relationship or not, "they would not be able to safely, consistently and effectively parent" Jimmy and Debbie. He explained,
[T]here would be a risk for one or both of the kids to find themselves in a housing situation that's unstable. I think this is important . . . there would be risks in terms of them moving around or living in situations that don't feel safe and stable to them. And I mean that even for very young kids. Even though they couldn't articulate this, that would be their experience living day by day.
There would also be risks in terms of their basic needs not being taken care of adequately in terms of, again, whether it's medical appointments, eventually school obligations, mental health services that these kids may need for behavioral or emotional issues as they get older potentially. There would also be those sorts of risks. And if [Rita] were also in the picture, . . . then there would be risks of the kids being exposed to domestic violence or extreme conflict and those would be the sorts of risks that the kids would face.
Although Dr. Loving was of the impression from talking with defendant that "he genuinely cares about" Jimmy and Debbie and "wants to be a part of their lives," and recognized that defendant had "taken part in certain treatment services that would ideally help him to address the parenting-related risks[,]" Dr. Loving's report concluded that defendant had "a poor prognosis for making real and lasting changes." Accordingly, the psychologist "regretfully but strongly support[ed] a plan that would allow both [children] to remain with their current caregivers and to move toward adoption with those respective caregivers."
Dr. Loving reported that during the October 5, 2011 bonding evaluation between Jimmy, one year and nine months, and his current caregiver, paternal aunt A.S., Jimmy called her "mommy." The two also shared significant casual physical contact while they played together, which appeared mutually comfortable and natural. Dr. Loving concluded that Jimmy "shares a positive and fairly strong emotional attachment" with his aunt, who he views as his primary and most central parent figure. Dr. Loving testified that this was "the only home that he has ever known" as he was with his aunt for the past fourteen months of his life and it was "his day-to-day routine."
Based on the October 12, 2011 bonding evaluations between Jimmy and his parents, Dr. Loving testified that the child also had a "fairly positive and strong attachment" with them, although his stronger attachment was with Rita. He candidly acknowledged that "whatever the outcome [of the trial], if [Jimmy] were to lose a relationship or relationships with one or more of these three adults, he's going to be at increased risk of harm because he's going to be losing relationships and attachments that are important to him." However, Dr. Loving opined that the difference would be that if Jimmy were moved out of his aunt's house and moved to Rita's, defendant's, or with them together, they would not be "in a position to help him overcome those risks . . . because of the risks . . . of housing instability and in terms of insufficient child care and so on." In contrast, if parental rights were terminated, Jimmy would still be at increased risk of harm but he would have "a better chance of overcoming those risks by staying in his current home and moving towards adoption" because "he would be remaining . . . in the same home with the same caregiver" and "because of the relationship that he has with his aunt and her ability to meet his needs over time."
Debbie, nine months old, had her bonding evaluation with defendant on October 5, 2011. Dr. Loving testified that the infant seemed to be "fully familiar and comfortable" with defendant, who fed and held her, and she rested on him. She interacted similarly with her foster parents except the psychologist did not observe "any immediate response and recognition on her part when she greeted [her parents but] it was striking that she lit up and became animated when she saw the foster parents." He found she had "positive relationships" with her parents, but opined they were "fairly week" in comparison to the "strong healthy positive attachments" Debbie had to the caregivers with whom she had been with since birth, and which he expected would continue to grow over time.
Similar to his testimony regarding Jimmy, Dr. Loving opined that Debbie would not suffer serious and enduring harm if her parents' rights were terminated. He elaborated in his report that if Debbie were to lose contact with defendant, she would not be at increased risk for suffering long-term emotional harm. However, if she were removed from her current caregivers, she would have an increased risk of harm. Dr. Loving concluded that defendant "cannot provide the sense of safety and stability that [Debbie] would need to overcome those risks." Accordingly, he opined that Debbie's "best prognosis for long-term social and emotional health would be remaining in her current home and working toward a permanent custodial arrangement."
Defendant testified that he "quit [his] job in 2007" to "assist [Rita] with the children in the home." He testified about the incident with D.M.S. that resulted in the child endangerment conviction, in which he hit her with a belt in the backside, and she "mistakenly" got hit in the face "because she moved." Defendant admitted he then sent her to his mother's house so she would not be found by the Division or the authorities, and his parents kept her there despite seeing her visible injuries. D.M.S. was then removed by the Division. Defendant denied Rita's allegations of domestic violence and denied he had "any kind of violent relationship" with her.
Defendant acknowledged that the first time he went to anger management, he went to a number of sessions but refused to participate in the recommended domestic violence counseling because it was not court ordered. He did, however, recently graduate from anger management and graduated from parenting classes twice. He had not been to therapy since the accident on December 23, 2010. He had been employed waxing and stripping floors for three to four months before the accident but had not worked since then and relied on general assistance for income. Defendant testified that he hoped his health would improve sufficiently by the following month to return to work and that the manager advised him he would be able to resume his schedule and pay of forty to eighty hours a week and take home $600-$700 a week. Defendant presented no medical documentation or documentation from his former employer.
Defendant also generally stated he was "looking" for housing and planned to raise the children with Rita. When confronted on redirect with the fact that Rita had surrendered her parental rights to Jimmy and Debbie, and though acknowledging her problems, defendant advised that his plan was to have his children with him and Rita "in their life."
Following closing arguments of counsel on October 25, 2011, the judge issued an oral opinion on the record. He concluded that the Division had proved the four statutory prongs of the best interests test set forth in N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. The judge entered an order terminating defendant's parental rights to Jimmy and Debbie. This appeal ensued.
II.
The law governing our analysis is well known. "The burden rests on the party seeking to terminate parental rights 'to demonstrate by clear and convincing evidence' that risk of 'serious and lasting [future] harm to the child' is sufficiently great as to require severance of parental ties." In re Adoption of a Child by W.P. & M.P., 308 N.J. Super. 376, 383 (App. Div. l998) (alteration in original) (quoting In re Guardianship of J.C., 129 N.J. 1, 10 (1992)). The question for the court "focuses upon what course serves the 'best interests' of the child." W.P. & M.P., supra, 308 N.J. Super. at 383.
In evaluating the best interests of the child, courts follow a four-prong standard, articulated in N.J. Division of Youth & Family Services v. A.W., 103 N.J. 591, 604-11 (1986) and codified in N.J.S.A. 30:4C-15.1(a). This standard allows for termination when the Division proves, by clear and convincing evidence, that:
(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;These criteria are neither separate nor discrete. In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). They overlap to provide a composite picture of what may be necessary to advance the best interests of the child. Ibid. "The considerations involved in determinations of parental fitness are 'extremely fact sensitive' and require particularized evidence that address the specific circumstances in the given case." Ibid. (quoting In re Adoption of Children by L.A.S., 134 N.J. 127, 139 (l993)).
(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).]
The scope of our review of a trial court's decision to terminate parental rights is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). Because of the Family Courts' special jurisdiction and expertise in family matters, we accord deference to the trial court's fact-finding and the conclusions that flow logically from those findings of fact. Cesare v. Cesare, 154 N.J. 394, 413 (l998). We are further obliged to defer to the trial judge's credibility determinations and the judge's "'feel of the case' based upon the opportunity of the judge to see and hear the witnesses." N.J. Div. of Youth & Family Servs. v. A.R.G., 361 N.J. Super. 46, 78 (App. Div. 2003) (citing Cesare, supra, 154 N.J. at 411-12; Pascale v. Pascale, 113 N.J. 20, 33 (l988)), aff'd in part and modified in part, 179 N.J. 264 (2004). "When the credibility of witnesses is an important factor, the trial court's conclusions must be given great weight and must be accepted by the appellate court unless clearly lacking in reasonable support." N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 259 (App. Div. 2005) (citing In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999)).
When the trial court's findings of fact are supported by adequate, substantial, and credible evidence, they are binding on appeal. See Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (l974) (holding an appellate court is not to disturb the factual findings and legal conclusions of the trial judge unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice"). Reversal is required only in those circumstances in which the trial court's findings are "so wide of the mark that a mistake must have been made." M.M., supra, 189 N.J. at 279 (internal quotation marks omitted). Applying this standard, we discern ample evidence in the record to support the judge's conclusions that Jimmy and Debbie's best interests required termination of defendant's parental rights.
Although defendant challenges all four statutory prongs, his primary arguments are that the judge solely relied on his findings from the prior trial regarding defendant's older children and did not take into consideration defendant's maturation, participation in services, and current progress; the services provided by the Division were insufficient to assist him; and the judge gave insufficient weight to the bonding evaluations and failed to address the fact that the children's caregivers could assist in the reunification process. We are not persuaded by these arguments.
To meet the first prong of the termination statute, the Division must show there is a harm that threatened the children's health and that such harm will likely have continuing deleterious effects on the children. K.H.O., supra, 161 N.J. at 352. Even though "a particularly egregious single harm can trigger the standard, the focus is on the effect of harms arising from the parent-child relationship over time on the child's health and development." Id. at 348.
Prongs one and two are related, as the second prong considers the parent's failure to provide even minimal parenting to his or her children. D.M.H., supra, 161 N.J. at 379. The second prong of the statute is "aimed at determining whether the parent has cured and overcome the initial harm that endangered the health, safety, or welfare of the child, and is able to continue a parental relationship without recurrent harm to the child," or alternatively, "that the parent is unable to provide a safe and stable home for the child and that the delay in securing permanency continues or adds to the child's harm." K.H.O., supra, 161 N.J. at 348-49. This prong "may be met by indications of parental dereliction and irresponsibility, such as . . . the inability to provide a stable and protective home[.]" Id. at 353.
The judge found the first two prongs were met by clear and convincing evidence. The judge properly relied, in part, upon defendant's past history in considering defendant's fitness to parent his young children. We have held:
Predictions as to probable future conduct can only be based upon past performance. . . . We cannot conceive that the Legislature intended to guarantee parents at least one chance to kill or abuse each child. Evidence of parents' fitness or unfitness can be gleaned not only [from] their past treatment of the child in question but also from the quality of care given to other children in their custody.
[N.J. Div. of Youth & Family Servs. v. Robert M., 347 N.J. Super. 44, 68 (App. Div.) (alteration in original), certif. denied, 174 N.J. 39 (2002).]
That, however, was not the sole basis for the judge's decision. Based on the evidence presented at this guardianship trial and his assessment of the witnesses, including the expert presented by the Division and defendant himself, Judge Fratto concluded that defendant posed a risk of harm to Jimmy and Debbie's "safety, health or development," and he would be unable to provide them with a safe and stable home in the near future. The judge credited Dr. Loving's opinion, based on his review of defendant's history and his clinical evaluation, of defendant's inability to change his longstanding pattern of poor parenting and child neglect even after completion of parenting skills and anger management classes, his risks for physical child abuse under the CAPI test, his personality disorder diagnosis, and his continual denial of any domestic violence and refusal to accept domestic violence training. The judge also referenced the risks testified to by Dr. Loving of defendant's inability to care for the basic needs of his older children, including his abusive treatment of his daughter resulting in a criminal conviction, and his continuing inability to obtain stable housing.
Moreover, as noted by both Dr. Loving and Judge Fratto, defendant's testimony that he planned to raise Jimmy and Debbie with Rita, who is also unfit to parent, demonstrates that he has not learned from his prior behavior or classes. Just as alarming is the fact that defendant continued to call the incident where he hit his daughter with a belt in the face rather than in the backside a "mistake" because she had moved, instead of being remorseful or acknowledging that he should never have been using a belt for discipline in the first place. The judge also noted a disconcerting comment by Brach that Rita was doing defendant's anger management and parenting homework for him, which reflected to both him and to Dr. Loving a "go through the motions . . . without, in fact, learning anything" attitude on defendant's part.
Defendant's position regarding his residence was inconsistent; he wavered between intending to raise his children at his mother's house or moving into a house with Rita. Defendant had only been employed for about three or four months before his accident in December 2010 and had been out of work for almost a year as of trial, relying on public assistance. Although he testified about expecting to be medically fit to return to that job within the month and earn a significant salary, he presented no medical or employment documentation.
The third prong of the statutory test "contemplates efforts that focus on reunification of the parent with the child and assistance to the parent to correct and overcome those circumstances that necessitated the placement of the child into foster care." K.H.O., supra, 161 N.J. at 354. The judge found the Division made reasonable efforts over the years to provide services to the family, and to help defendant correct the circumstances that led to losing custody of his children. The record is replete with services being offered to defendant throughout this litigation, such as anger management, parenting skills, domestic violence counseling, and supervised visitation twice a week with Jimmy and Debbie. The expert determined that although defendant completed the majority of the services, he was still unfit to parent Jimmy and Debbie. "[The Division's] efforts to provide services is not measured by their success." N.J. Div. of Youth & Fam. Servs. v. A.R., 405 N.J. Super. 418, 441 (App. Div. 2009) (internal quotation marks and citation omitted).
Defendant argues the trial court improperly concluded the Division satisfied the third statutory prong because his visits with Jimmy and Debbie were not sufficient to enable him to form a stronger bond and claims he should have been given the opportunity for additional visits. We disagree. The court granted defendant supervised visitations, which he exercised for the most part. Although the Division's reports noted that many of these visits were "chaotic," defendant did demonstrate affection towards both children and, as testified to by Dr. Loving, both children had a "positive attachment" to their father.
Nevertheless, they had stronger bonds with their caregivers, whom they viewed as their psychological parents, and with whom they had spent most, if not all of their lives. Based on the credible expert testimony, however, there was ample evidence in the record for the judge to conclude that a delay in permanent placement of the children would add to the harm. Thus, there comes a time when a child's need for permanency outweighs the parent's right to maintain a relationship with his or her child. N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div.), certif. denied, 180 N.J. 456 (2004).
Pursuant to the fourth prong, the Division must show that the "termination of parental rights will not do more harm than good to the child." K.H.O., supra, 161 N.J. at 354-55. This prong "'serves as a fail-safe against termination even where the remaining standards have been met.'" N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 108 (2008) (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 609 (2007)). The Supreme Court has stated that "[t]he question ultimately is not whether a biological mother or father is a worthy parent, but whether a child's interest will best be served by completely terminating the child's relationship with the parent." E.P., supra, 196 N.J. at 108.
Judge Fratto adopted Dr. Loving's opinion that while termination of parental rights will do some harm, it will not do more harm than good because both Jimmy and Debbie's caregivers would be able to provide each of them with the necessary nurturing and stability to overcome the loss. Because of defendant's past history, risk factors, and current situation, however, he would not have been able to compensate for his children's loss of their respective psychological parents.
Defendant contends the judge failed to address the fact that the children's caregivers could assist in the reunification process. See A.R., supra, 405 N.J. Super. at 444 (stating that "loving-caring foster parents worthy of that role would assist in a gradual and beneficial reunification in the best interests" of the child). In A.R., however, the trial judge denied the termination and guardianship after trial as to the mother, finding the Division had satisfied its burden as to only two of the four statutory prongs, and dismissed the complaint. Supra, 405 N.J. Super. at 426, 432. The Division appealed, the law guardian supported the trial court's ruling, and we affirmed the judgment, remanding for implementation of a "prompt and appropriate reunification," with the assistance of a professional, if necessary. Id. at 445. The present case is factually inapposite, and thus there was no reason for Judge Fratto to address this issue.
We are also satisfied that the judge's reference to the "caregiver's rights," when read in context, was intended to mean the rights of Jimmy and Debbie in the care of each of their resource families. The judge was explaining that defendant would be unable to overcome the harm that would result if the current placements were terminated and the children were removed from their caregivers, as opposed to the caregivers' abilities to compensate, over time, for the harm that would be caused by the termination of defendant's parental rights.
We have no doubt that defendant loves his children and sincerely wishes to parent them. While Jimmy and Debbie will undoubtedly suffer from some degree of loss from the termination of their father's parental rights, they cannot and should not be expected to wait for their father to "get [himself] together." C.S., supra, 367 N.J. Super. at 114. Three-year-old Jimmy and two-year-old Debbie, who have spent most, if not all of their lives with their current caregivers, are entitled to the permanency and stability that can only occur at this juncture by terminating defendant's parental rights and freeing them up for adoption by their current caregivers.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION