Opinion
DOCKET NO. A-4457-11T3
03-19-2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. K.C., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF S.K., a minor.
Ryan T. Clark, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Clark, of counsel and on the brief). Sara M. Gregory, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Gregory, on the brief). Noel C. Devlin, Assistant Deputy Public Defender, argued the cause for minor S.K. (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NOT FOR PUBLICATION WITHOUT THE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 Axelrad, Haas and Happas.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FG-16-76-11.
Ryan T. Clark, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Clark, of counsel and on the brief).
Sara M. Gregory, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Gregory, on the brief).
Noel C. Devlin, Assistant Deputy Public Defender, argued the cause for minor S.K. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Devlin, on the brief). PER CURIAM
Defendant K.C. appeals from the March 19, 2012 judgment of guardianship of the Family Part terminating her parental rights to her daughter, S.K. (Susan). She argues the Division of Youth and Family Services (Division) did not prove the four prongs of the termination statute by clear and convincing evidence. The Law Guardian supports the termination on appeal as it did before the trial court.
Where appropriate, fictional names are used to protect the privacy of the child and for ease of reference.
On June 29, 2012, the Governor signed into law A-3101, which reorganizes the Department of Children and Families, which includes 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 K.C.'s parental rights. See, e.g., N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)(holding a reviewing court should uphold the factual findings respecting the termination of parental rights if they are supported by substantial credible evidence in the record as a whole). Accordingly, we affirm.
I.
The Division has been involved with K.C. and Susan since the child was ten-months old. On February 5, 2009, the Division received a referral after K.C. was admitted to a hospital with suicidal ideations, brought on by a "very severe drug habit." Because the child was with her biological father, C.K., at that time, the Division did not substantiate abuse or neglect. The parties entered into a case plan and K.C. agreed to participate in substance abuse services. On March 10, 2009, however, both K.C. and C.K. tested positive for opiates and cocaine and the Division conducted an emergency removal of Susan from the home and placed the child with her paternal grandparents.
At the beginning of the trial, C.K. surrendered his parental rights to the child's paternal grandfather and is not involved in this appeal.
Because the paternal grandmother, I.K. (Iris), has a debilitating medical condition, the paternal grandfather, C.K., Sr. (Charles) is the child's primary foster parent.
The Division arranged for substance abuse services for K.C. She entered Sunrise House and was treated there from March 20 to April 17, 2009. Upon her release, she was referred to an aftercare program. On May 20, 2009, K.C. again tested positive for opiates. The next day, K.C. was examined by Dr. Robert Kanen, a psychologist. Because of K.C.'s substance abuse, Dr. Kanen opined that returning Susan to K.C.'s care "would expose the child to an unnecessary risk of harm."
On August 11, 2009, K.C. entered an in-patient program and Susan was able to join her there on November 30, 2009. At that point, the Division's plan was to reunify the family. When K.C. was discharged from the program on May 3, 2010, she and Susan lived with Charles and Iris.
The Division referred K.C. to an aftercare program. However, she missed four appointments in June and July 2010. She told the Division she had again been hospitalized for suicidal thoughts. K.C. tested positive for alcohol on July 12, 2010. Between that date and September 2010, K.C. submitted twelve diluted urine samples which could not be tested. On other dates, however, the test results were negative for drugs.
K.C. missed three more assessment appointments. The Division again referred K.C. to the Division's Certified Alcohol and Drug Counselor. On January 20, 2011, K.C. tested positive for morphine as the result of an "instant urine screen" ordered during a compliance hearing. The Division then executed a second emergency removal of Susan and she was again placed with her grandparents.
Between January and March 2011, K.C. did not maintain contact with the Division. In April 2011, the Division located K.C. in the county jail, where she was serving time following an arrest for unpaid fines for motor vehicle violations. At that point, the Division determined to move forward to terminate K.C.'s parental rights to Susan. Charles and Iris advised the Division they were committed to adopting and caring for Susan.
It was subsequently learned that K.C. had also been arrested on a charge of drug possession with intent to distribute. This charge was still pending at the time of trial.
Dr. Kanen qualified as an expert in psychology and testified on behalf of the Division. In addition to his May 7, 2009 evaluation, he held a second session with K.C. on September 20, 2011. He also performed a bonding evaluation.
K.C. told Dr. Kanen she had a long-term substance abuse problem. She had smoked marijuana daily since she was twelve years old and started using cocaine and ecstasy when she was seventeen. When she was twenty-four, she began taking heroin, Oxycodone, and other prescription drugs. K.C. admitted she had deliberately overdosed on heroin at the time of her hospitalization in February 2009. She told Dr. Kanen she used heroin every day until the Division became involved in the case on March 20, 2009. She and C.K. sold drugs to support their addictions.
Based upon his testing, Dr. Kanen opined that K.C. had "difficulty coping with the demands of daily life," primarily because of her substance abuse history, but also due to "underlying personality issues" which caused her to function far below her potential. He characterized K.C.'s substance abuse as a "cycle," meaning she repeated it "over and over again" since she was a pre-teen. Dr. Kanen testified that K.C. could not provide Susan with a permanent, safe and secure home. He stated:
Because of her deep involvement with drugs, her struggle with addiction, her . . . relapses . . . this is a chronic problem that needs to be taken very seriously with abstinence, long-term counseling, going to meetings, completing programs, taking urine screens. It needs to be monitored very closely over a long period of time.
Dr. Kanen concluded K.C.'s prognosis was poor and that she was at a high risk for relapse. He explained:
There's about 60 to 80 percent of addicts relapse very quickly, within a year. She's been at it for many years. She hasn't had many long periods of sobriety. She had recently relapsed, which is an indication that she's . . . even if she used a couple of times, it's still there, you know . . . she is struggling with this issue, and it's a chronic problem. And sometimes, there - - oftentimes, there are numerous relapses before somebody quits for good, but that could go on for years.According to Dr. Kanen, even if K.C. were able to demonstrate that she had remained drug-free for one year, this would not constitute a "remission." He testified that the one-year mark is a "very minimum standard" and explained:
[W]hen a person meets the challenges after that year of working and supporting themselves and dealing with the issues of daily life that create stress and challenges and emotional upset, because of the predominance in addicts of difficulty regulating their emotions, when people who are non-addicts deal with these events, they manage to regulate their emotions somehow,
either dealing with it, they have other activities.
But addicts, to regulate their emotions, they go to either alcohol, pills or illegal drugs. And so it takes a long time to get to the point where you can deal with the actual[] demands of daily living without reaching for a substance. So it could take three to five years.
In addition, K.C.'s living situation would add to her risk of relapse. Dr. Kanen testified that, because K.C. lived at a shelter, she had less demands than she would if she was living on her own. He explained that supporting oneself independently comes with stressors, which would create more demands on K.C. and that adding a child to that equation would lead to "a lot of challenges" for K.C., which would increase the risk of a relapse.
Based upon his bonding evaluation, Dr. Kanen found that Susan had a bond with K.C. because the child knew K.C. as her mother and had a relationship with her. However, he found this was an "insecure" attachment because Susan continued to question whether she would be living with K.C. or her grandparents. Dr. Kanen opined that a secure parent-child relationship is "critical for future functioning" because the child learns how to regulate his or her own emotions, which is an "inoculation . . . against future substance abuse issues."
While Susan would have "a separation and grief reaction" if K.C.'s parental rights were terminated, Dr. Kanen testified Charles and Iris "could ameliorate the harm" caused by K.C.'s inability to care for the child due to her substance abuse. On the other hand, Dr. Kanen found Susan was bonded with her grandparents, who had been caring for her for two years at the time of his evaluation. According to Dr. Kanen, Susan would suffer harm if she was removed from their care and K.C. would not be able to adequately address that harm.
Dr. James Reynolds testified as an expert in psychology for the defense. Based upon his evaluation of K.C., Dr. Reynolds opined she did not have any formal thought or behavioral disorders that would impair her ability to parent a child. He stated that, if K.C. could remain abstinent, she could adequately parent Susan.
However, Dr. Reynolds did not recommend that K.C. and Susan be reunited at the time of trial. Instead, he stated:
I believe that [K.C.] needs to continue to focus on reinforcing her own abstinence and her own stability. She's coming up on that magical 12-month mark with regard to abstinence being considered in full remission. That's not a magic bullet. There's no guarantee that the 12 months mean she will remain abstinent, but people who do remain abstinent for a year do have a better outcome than those who don't.According to Dr. Reynolds, if K.C. could demonstrate an additional six to nine months of sobriety, the child could be returned to K.C. If K.C. was unable to remain sober, however, Dr. Reynolds recommended the Division proceed to terminate her parental rights.
Dr. Reynolds also conducted a bonding evaluation. He found that Susan had a "very safe and secure relationship" with Charles, who provided the child with a safe and loving relationship. Dr. Reynolds opined that Susan would experience "severe and enduring harm" if she were separated from her grandparents. He also testified, however, that the child would suffer this same harm if she were separated from K.C. He believed "the better outcome here would be for [Susan] to continue to have contact with her grandparents as opposed to having that severed[,]" if the child were returned to K.C.
K.C. testified she had been attending an outpatient drug treatment program and, after June 2011, had provided urine screens that were negative for drugs. K.C. stated that she had lived in a shelter since October 2011. She was not employed, although she stated she hoped to attend cosmetology school after the trial was over. Although she claimed she was looking for work, K.C. was not able to provide any details of her job search. K.C. testified she had been granted temporary rental assistance for a studio or one-bedroom apartment. She supported herself through public assistance and food stamps.
Following the bench trial, Judge George Sabbath issued an order and an extensive oral decision terminating K.C.'s parental rights to Susan. The judge found that the Division had proved its case by clear and convincing evidence. This appeal followed.
II.
K.C. raises the following issues on appeal:
I. THE DIVISION FAILED TO PROVE ALL FOUR PRONGS OF THE BEST INTEREST TEST BY CLEAR AND CONVINCING EVIDENCE.
A. The Division's Argument that K.C. was Unable to Eliminate the Harm to her daughter was not Based on a Reasonable or Credible Risk of Harm to Her.
B. The State Failed to Prove, by Clear and Convincing Evidence, that DYFS Made Reasonable Efforts to Provide Services to Help K.C. Correct the Circumstances which Led to Her Daughter's Placement Outside Her Home.
C. There was no Clear and Convincing Evidence that Termination Would not do More Harm than Good.
The law governing our analysis is well-known. Parents have a fundamental constitutional right to raise their children. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 102 (2008) (citing Stanley v. Ill., 405 U.S. 645, 651-52, 92 S. Ct. 1208, 1212, 31 L. Ed. 2d 551, 558-59 (1972)). However, the constitutional protection surrounding family rights is not absolute and may be tempered by the State's parens patriae responsibility to protect the welfare of children. In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). In some cases, severance of the parent-child relationship may be required to protect the child. E.P., supra, 196 N.J. at 102.
"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, 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;
(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).]
"These standards 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." N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 258 (App. Div. 2005) (citing K.H.O., supra, 161 N.J. at 348). The considerations involved in determining parental fitness are "extremely fact sensitive and require particularized evidence that address[es] the specific circumstances in the given case." K.H.O., supra, 161 N.J. at 348 (citation omitted) (internal quotation marks omitted).
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." F.M., supra, 375 at 259 (citing In re Guardianship of DMH, 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 unsupportable 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 and citation omitted). Applying this standard, we discern ample evidence in the record to support the trial judge's conclusion that Susan's best interests required termination of K.C.'s parental rights.
A.
The first statutory prong involves an inquiry into whether there has been an "endanger[ing] of the child's health and development resulting from the parental relationship[,]" and whether there will be future harm to the child's safety, health, or development if the parental relationship is not terminated. K.H.O., supra, 161 N.J. at 348. The harm "must be one that threatens the child's health and will likely have continuing deleterious effects on the child." Id. at 352. This standard may be triggered by a single or isolated harm, or by an accumulation of harms over time. Id. at 348. The absence of physical abuse alone is not conclusive, because the court also must consider the potential for serious psychological harm to the child. In re Guardianship of R., 155 N.J. Super. 186, 194 (App. Div. 1977).
Courts, however, need not wait to act until a child is actually irreparably impaired by parental inattention or neglect. The inability of a parent to provide any nurturing or care for his or her child for a prolonged period constitutes a harm under this standard. K.H.O., supra, 161 N.J. at 356. The fact that a parent may be morally blameless is not a sufficient reason to tip the scales in his or her favor. N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 438 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002).
On appeal, K.C. does not dispute that Susan's safety, health or development has been endangered by the parental relationship. As Judge Sabbath found, K.C.'s abuse of drugs and her psychological issues harmed Susan because she had to be removed on two separate occasions from her mother's care. K.C. was hospitalized twice because her addictions led her to contemplate suicide and she was incarcerated for an unspecified period of time after Susan was removed from her care for the second time. As a result, four-year-old Susan had only been in K.C.'s care for approximately one year since her birth and the judge reasonably found that "[t]he only place that this child found security and continued care and sustenance was with the paternal grandfather." Under these circumstances, the child's safety, health and development was jeopardized by K.C. Thus, the trial judge correctly held that the Division sustained its burden as to the first prong.
B.
Closely related to the first prong, the second statutory prong requires the Division to show that the parent is unable or unwilling to eliminate the harm facing the child. N.J.S.A. 30:4C-15.1(a)(2). The focus of this inquiry is to determine "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." K.H.O., supra, 161 N.J. at 348. Alternatively, the State may show "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." Id. at 348-49. "The question is whether the parent can become fit in time to meet the needs of the child." N.J. Div. of Youth & Family Servs. v. T.S., 417 N.J. Super. 228, 244 (App. Div. 2010), certif. denied, 2 05 N.J. 519 (2011). The withdrawal of nurture and care for an extended period of time is itself a harm that endangers the health and development of the child. DMH, supra, 161 N.J. at 379.
K.C. argues the trial judge erred in finding the Division met this prong by clear and convincing evidence. She asserts she abstained from drugs for several months leading up to the trial, as evidenced by her negative urine screens during this period. Based upon Dr. Reynolds' testimony, K.C. contends she should have been given at least six to nine more months to establish she would not relapse before her parental rights were terminated. We disagree.
Children are entitled to a permanent, safe and secure home. We acknowledge "the need for permanency of placements by placing limits on the time for a birth parent to correct conditions in anticipation of reuniting with the 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). As public policy increasingly focuses on a child's need for permanency, the emphasis has "shifted from protracted efforts for reunification with a birth parent to an expeditious, permanent placement to promote the child's well being." Ibid. (citations omitted). That is because "[a] child cannot be held prisoner of the rights of others, even those of his or her parents. Children have their own rights, including the right to a permanent, safe and stable placement." Ibid.
The question then is "whether the parent can become fit in time to meet the needs of the child[]." F.M., supra, 375 N.J. Super. at 263; see also N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 512 (2004) (indicating that even if a parent is trying to change, a child cannot wait indefinitely). There is ample evidence in the record to support Judge Sabbath's finding that Susan has waited long enough for permanency.
As a result of K.C.'s drug use, four-year-old Susan had been in foster placement with her grandparents for three years prior to trial. During this period, K.C. continued to relapse. She produced diluted urines on twelve occasions during 2010, a time when she also alleged she was abstaining from drugs. She tested positive for morphine in January 2011 and admitted to using drugs as late as June 2011.
Both Dr. Kanen and Dr. Reynolds testified K.C. could not safely parent Susan at the time of trial and would not be able to do so for a considerable period of time. Dr. Kanen predicted K.C. would need three to five years to enter remission and he predicted she would ultimately relapse. Based upon K.C.'s long history of addiction, the judge accepted Dr. Kanen's opinion.
On the other hand, Dr. Reynolds felt K.C. should be given six to nine more months to see if she maintained her sobriety and, if she did not, her parental rights could be terminated at that time. K.C. contends the judge should have accepted the opinion of Dr. Reynolds and given her up to nine months more to attempt to demonstrate she would not return to drugs. Contrary to K.C.'s argument, however, the judge was not required to accept her expert's recommendations over Dr. Kanen's opinion. "[W]e rely on the trial court's acceptance of the credibility of the expert's testimony and the court's fact-findings based thereon, noting that the trial court is better positioned to evaluate the [expert] witness' credibility, qualifications, and the weight to be accorded to [the] testimony." DMH, supra, 161 N.J. at 382.
Judge Sabbath fully explained why he rejected Dr. Reynolds's recommendation that K.C. be given additional time to demonstrate she could remain sober. He stated:
Dr. Reynolds indicates, give [K.C.] six to nine months. And then he states, and if she hasn't remediated by that time, then terminate her parental rights. He did not testify with sufficient clarity and conviction that based upon her history and her record, that there was a reasonable probability . . . that [K.C.] could remediate her drug issues.
So, where does that leave the child? Dr. Reynolds says no place; it's okay, because the child has a strong relationship with her paternal grandfather. So strong that he can remediate and that the child, therefore, would not be at risk.
But it appears that Dr. Reynolds is not mindful of the pain and suffering that the child went through during the last removal. And one could only conclude that if six to nine months expired, with continuing efforts under the FN, if I were to remand it, and placement with [K.C.] again for weekend visitation, that she will, undoubtedly relapse. That's a very high probability. And the child would then, once again, be removed.
The judge concluded that, "in order to accommodate Dr. Reynolds's suggestion or opinion, one would have to virtually ignore the . . . concept of permanency." We perceive no basis to disturb the judge's decision to give greater weight to Dr. Kanen's opinion. DMH, supra, 161 N.J. at 382. The record supports the judge's conclusion that the second prong of the statutory test was met by clear and convincing evidence.
C.
K.C. next argues the record does not support the trial judge's finding that the Division made reasonable efforts to provide adequate services and that it considered alternatives to termination. This argument also lacks merit.
The third statutory prong requires the Division to make reasonable efforts to provide services to assist a parent to correct his or her circumstances, and to consider alternatives to parental termination. N.J.S.A. 30:4C-15.1(a)(3). A court evaluates on an individual basis the efforts undertaken by the Division to reunite a family. DMH, supra, 161 N.J. at 390. These efforts may include the encouragement of an ongoing parent-child relationship and regular visitation. Id. at 393. "Consistent efforts to maintain and support the parent-child bond are central to the court's determination." Ibid.
K.C. was given many opportunities to engage in, and comply with, multiple services. She received substance abuse testing and counseling, psychological and bonding evaluations, supervised parenting time, parenting skills classes, psychiatric treatment and family team meetings. She has received assistance with her housing needs and, at the time of trial, lived in a shelter. However, she had also received rental assistance, although she had neither obtained an apartment or a job.
The Division also explored relative placement and the only relatives interested in taking care of the child were her grandparents, Charles and Iris, who expressed a strong interest in adopting Susan. K.C. argues the Division should have explored kinship legal guardianship (KLG), instead of terminating her parental rights, because Charles did not foreclose the possibility of that option if it were necessary to protect Susan. We disagree.
The potential availability of KLG cannot be used as a defense to the termination of parental rights. P.P., supra, 180 N.J. at 512-13. As the Supreme Court explained:
The plain language of the [KLG] Act, as well as its legislative history, establish [KLG] as a more permanent option than foster case where adoption "is neither feasible nor likely" and "[KLG] is in the child's best interest." Conversely, when the permanency provided by adoption is available, [KLG] cannot be used as a defense to termination of parental rights.
[Ibid. (internal citations omitted).]
The record fully supports Judge Sabbath's finding that the Division clearly and convincingly established it made more than reasonable efforts to help K.C. with her addiction and it attempted to achieve reunification. Susan has been with her grandparents for three years and is clearly bonded with them. Under these circumstances, the judge was not required as a matter of law to compel the grandparents to proceed with KLG.
D.
Finally, the fourth statutory prong requires the court to determine whether termination of parental rights will not do more harm than good to the child. N.J.S.A. 30:4C-15.1(a)(4). This prong "serves as a fail-safe against termination even where the remaining standards have been met." Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 609 (2007). The question is "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.
The ultimate determination to be made under the fourth prong is "whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with [the] natural parents than from the permanent disruption of [the] relationship with [the] foster parents." K.H.O., supra, 161 N.J. at 355. Weighing the potential harm from terminating parental rights against separating the child from foster parents requires expert testimony on the strength of each relationship. Ibid. When a termination action is based on parental unfitness rather than bonding, the proper inquiry under the fourth prong focuses on the child's need for permanency and the parent's inability to care for him or her in the foreseeable future. N.J. Div. of Youth & Family Servs. v. B.G.S., 291 N.J. Super. 582, 593 (1996).
Here, the trial judge found that termination of parental rights would not do more harm than good and concluded that terminating K.C.'s parental rights was in Susan's best interests. Susan has only an insecure bond with K.C. The child recognizes K.C. as her mother, but her stronger bond is with her grandparents, particularly Charles. The judge accepted Dr. Kanen's opinion that breaking Susan's bond with her grandparents would be devastating to the child and that K.C. would not be able to ameliorate the harm that would occur. Thus, the record fully supports the judge's conclusion that termination of K.C.'s parental rights will not cause Susan more harm than good.
Affirmed
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION