RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3931-15T2 A-3933-15T2
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
A.A. and E.L., Sr.,
Defendants-Appellants. __________________________________
IN THE MATTER OF THE GUARDIANSHIP OF E.L., Jr. and N.L., minors. __________________________________
Argued May 31, 2017 – Decided July 11, 2017
Before Judges Koblitz, Rothstadt and Sumners.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-0110-16.
Beatrix W. Shear, Designated Counsel, argued the cause for appellant A.A. (Joseph E. Krakora, Public Defender, attorney; Ms. Shear, on the briefs).
Stephen Edward Miklosey, Designated Counsel, telephonically argued the cause for appellant E.L., Sr. (Joseph E. Krakora, Public Defender, attorney; Mr. Miklosey, on the brief). Sarah K. Bennett, Deputy Attorney General, argued the cause for respondent (Christopher S. Porrino, Attorney General; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Bennett, on the brief).
Karen A. Lodeserto, Designated Counsel, argued the cause for minors (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Lodeserto, on the brief).
PER CURIAM
In this consolidated appeal, defendants A.A. (Amy)1 and E.L.,
Sr., (Edgar) appeal from the April 27, 2016 Judgment of
Guardianship terminating their parental rights to their sons,
E.L., Jr., (Eric) and N.L. (Neil). We remand Edgar's case for a
supplemental hearing and affirm the termination of Amy's parental
rights, with the proviso that she may reopen the matter if Edgar's
parental rights are not terminated after remand.
I
Eric, born in 2012, and Neil, born two years later, are the
biological children of Amy and Edgar. Edgar is also the father
of N.J. (Natalie), born at the end of 2009, and I.L., born in
2006, who are not a party to the guardianship action under appeal.
Amy is also the mother of N.A., born in 2007, who is not a party
to this action and is in the custody of his paternal grandfather.
1 We use pseudonyms and initials to refer to the parties pursuant to Rule 1:38-3(d)(12). 2 A-3931-15T2 The Division of Child Protection and Permanency (Division)
became involved with the family following multiple unsubstantiated
referrals beginning in April 2012 alleging abuse to Edgar's
daughter Natalie, who was being cared for by Amy. In December
2013, Natalie's daycare reported abuse that was substantiated.
Daycare staff reported Amy had shaken four-year-old Natalie,
slammed her into a chair and onto the floor, and punched her on
the legs. Amy admitted hitting Natalie. In January 2014, the
Division supplied parent aide services to the family.
Amy and Edgar were evaluated by Dr. Leslie J. Williams in
February 2014. Dr. Williams recommended psychotherapy and
parenting classes for both parents as well as anger management for
Edgar. Dr. Williams stated Amy would "benefit from psychotherapy
to address her low self-esteem and increase her problem solving
ability."
The Division received another substantiated referral
concerning Natalie in June 2014. During a visit by the Division,
the worker observed that Natalie had two black eyes. When
questioned, Edgar stated that Natalie was hit in the left eye
during a football game on Memorial Day weekend. He first stated
the bruise to her right eye was caused by Natalie falling down and
hitting a radiator, and then said the eye became swollen by a
mosquito bite. A medical examination of Natalie revealed a
3 A-3931-15T2 healing, child-sized bite mark on her back, two black eyes, linear
and patterned marks and scars on her legs that suggested multiple
impacts with a linear or patterned object, multiple insect bites,
and lesions on her left hand and back. The Division substantiated
the allegation due to the unexplained physical injuries with
contradictory explanations, medical neglect, and inadequate
supervision. Medical records further corroborated a pattern of
neglect: Natalie was brought to the emergency room seven times
between 2011 and 2014. Both Eric and Natalie were removed from
the home on an emergent basis in June 2014.
Dr. Williams conducted another psychological evaluation of
Amy and Edgar in July 2014. Dr. Williams found Edgar scored in
the "low average range" of intelligence, and Amy scored in the
"borderline intellectual functioning" range. Dr. Williams renewed
his earlier recommendations, adding that services should take into
account the defendants' level of intelligence. He concluded both
parents were unable to provide adequate parenting. In August
2014, defendants began therapy and parenting skills classes.
During the ensuing Division investigation, Amy stated the
cause of Natalie's unexplained injuries were nearly daily beatings
administered by her and Edgar. She said she beat Natalie with her
hand. The bruises to Natalie's eyes were the result of Natalie
not staying still while Edgar beat her with a belt. In addition,
4 A-3931-15T2 Edgar would at times fail to feed Natalie. Amy stated that she
was also victimized by Edgar; however, she refused to discuss the
matter with a domestic violence liaison. On October 17, 2014, Amy
and Edgar voluntarily stipulated to inadequate supervision of
Natalie.
Later that month, Neil was born and custody was granted to
the Division five days after his birth. Neil was placed directly
from the hospital. After initial placement with non-relatives,
the two boys were placed with their paternal grandmother in
November 2016, where they remain.
Dr. Samiris Sostre conducted a psychological evaluation of
Amy in November 2014. Amy told Dr. Sostre she spanked Natalie,
and Edgar hit the child with a belt. Amy also related domestic
violence issues with Edgar, but maintained the issues had been
resolved. Dr. Sostre found that Amy had impaired judgment and
concentration and poor insight. She opined Amy's cognitive
disabilities would not improve and her dependent personality would
hinder her ability to act in the children's best interests,
concluding "prognosis for improvement [is] guarded."
In February 2015, Dr. Williams evaluated Amy for a third
time. He stated Amy required lifelong treatment that is "focused
and direct, and geared to [her] intellectual capacity," and that
her unaddressed domestic violence issues constituted a risk to any
5 A-3931-15T2 child in her care. The same month, Dr. Sostre evaluated Edgar.
Edgar denied being violent to Amy or Natalie. Dr. Sostre opined
that Edgar's impulse control, denial, and lack of parental concern
demonstrated a lack of progress on his part, rendering
reunification unadvisable.
At the request of Edgar's counsel, Dr. James R. Reynolds
evaluated Edgar the following month. Dr. Reynolds stated in his
report that, while Edgar possesses knowledge of "children's
developmental capabilities and emotional needs," he "may be overly
restrictive of children becoming autonomous in an age- and
developmentally-appropriate manner," and he "may also conflate
parent and child roles, possibly expecting children to provide a
level of emotional support to their parents which is not
appropriate." Dr. Reynolds concluded, however, that Edgar
"appears to possess the capacity to benefit from parenting classes
and other types of parental assistance" as long as those services
were modified to accommodate [his] cognitive limitations."
In April 2015, Amy told the Division during a visit about an
incident when Edgar pulled her hair and put his hands around her
neck to choke her. Both parents were referred for domestic
violence counseling and parenting classes. The parties separated
four months later.
6 A-3931-15T2 In September 2015, Dr. Jonathan H. Mack, a licensed doctor
of psychology with expertise in neuropsychology, conducted a
neuropsychological and psychological evaluation of Edgar on behalf
of the Division. Dr. Mack's report stated, "[Edgar's] personality
features that make him overly reactive, inclined to domestic
violence, incapable of holding a job, and markedly over reactive
in his personal life" were the result of traumatic brain injury
and seizure disorder stemming from a car accident in 2008 or 2009.
Dr. Mack opined: "[Edgar] is not capable of being a minimally
effective parent in the foreseeable future, regardless of any
interventions that were to be taken."
From November 2015 to January 2016, Dr. Sean P. Hiscox
conducted separate bonding and psychological evaluations of Amy
and Edgar. In an interview, Edgar admitted to a 2007 simple
assault charge against him by a prior girlfriend and instances of
mutual aggressiveness between him and Amy.
In her interview with Dr. Hiscox, Amy reported moving in with
her unemployed, twenty-two-year-old boyfriend of one month and his
family. In bonding evaluations, Dr. Hiscox observed loving
behavior by both parents toward the boys, but stated, "their
relationship is more reflective of a positive relationship often
found with an extended family member . . . not a central attachment
figure."
7 A-3931-15T2 In July 2016, the court conducted a two-day guardianship
trial. The Division offered the testimony of a Division caseworker
and psychologist Dr. Hiscox as well as voluminous records. Amy
testified as did her expert, Dr. Reynolds. Edgar did not testify
and did not attend the second day of trial.
II
Both of the Division's witnesses testified to the unstable
living conditions of Edgar and Amy. The caseworker testified that
at the time of trial defendants were unemployed, and neither party
had stable housing. Amy was living with a friend, while Edgar had
no fixed address. During the first three months of 2016, Amy
missed five therapeutic visits with the children and was late to
two. Edgar missed two visits. During one visit, Amy
inappropriately pinched Eric as a form of discipline.
Dr. Hiscox expressed strong concerns stemming from the
parents' poor judgment, lifestyle instabilities, and relationship
instabilities. He noted Edgar was "transient," staying with a
friend for a week or two before moving on, and that he was
unemployed, surviving on money from friends and family. Edgar
told Dr. Hiscox that "he was not looking for employment," then
altered his story to say he actually had a good job opportunity
lined up working at a grocery store. Edgar estimated he would be
in a position to care for the children by winter 2016, at which
8 A-3931-15T2 time "he planned on moving out of New Jersey and moving to a place
where nobody knows who he is so that he can start fresh."
Dr. Hiscox had concerns about Amy's stability as well, noting
that the day he interviewed her, she was moving in with a boyfriend
whom she had known for only a few weeks. She admitted knowing
little about him, other than he was unemployed and receiving
governmental benefits. She did not know why he received the
benefits. Dr. Hiscox stated his concern was heightened by the
fact that Amy's plan for her children was to bring them into a
home with someone whom she had just met. Amy was unemployed.
Dr. Hiscox also testified regarding defendants' intellectual
limitations, stating "low intellectual ability often leads to
poorly thought out choices, difficulty with delaying gratification
and impulsivity in that regard in terms of decision-making."
Dr. Hiscox concluded termination of Amy and Edgar's parental
rights was appropriate and it would not do more good than harm,
as he could not "foresee a situation where they would ever be in
a position to be fit enough to care for these boys." Termination
would give the children a chance to achieve permanency. He stated
that termination of parental rights "would not result in severe
and enduring harm to the children."
Amy's expert, Dr. Reynolds, testified there was a parental
bond between the children and Amy. He did express concerns about
9 A-3931-15T2 Amy's stability, testifying that in the short time between his and
Hiscox's evaluations, "she changed her residence, quit her jobs,
[and] she moved in with her boyfriend." Dr. Reynolds noted Amy
presented a different explanation to Dr. Hiscox regarding how she
met the new boyfriend, contradicting her account to Dr. Reynolds.
Amy's history of employment, residential, and relationship
instability was symptomatic of a dependent personality disorder,
as diagnosed by Dr. Sostre.
Dr. Reynolds concluded that although Amy was not currently
capable of parenting, "if [she] was provided additional parenting
services and additional psychotherapy services that account for
her intellectual limitations" it would be possible to tell "within
the foreseeable future . . . whether or not she would be able to
parent in the future." Reynolds stated he thought "[t]he
Division's done a really good job . . . of identifying particular
services that she requires and from which she could benefit." Amy
testified she had completed parenting classes and individual
therapy.
The judge rendered an oral decision, finding by clear and
convincing evidence all four prongs of the best interests test,
N.J.S.A. 30:4C-15.1(a), and that termination of defendant's
parental rights was in the children's best interests. As to the
first prong, the judge found Amy and Edgar caused the physical
10 A-3931-15T2 abuse endured by Natalie. As to the second prong, the judge found
defendants "have not stabilized in any way" in the two years since
the Division first became involved and "appear to be incapable
. . . of being able to correct the deficiencies and problems that
led to the removal." The judge pointed to Edgar's plan to "runaway
to someplace" where he is unknown in order to start over with the
kids as evidence of his unwillingness or inability to provide
permanency. The judge stated Edgar's transient living situation
demonstrated instability. Amy's own expert testified Amy could
not presently parent the children, and the expert could not predict
whether additional services would be effective.
As to the third prong, the judge found the Division had made
reasonable efforts, and, in some instances, "services have been
repeated."
As to the fourth prong, the judge relied on Dr. Hiscox's
testimony characterizing the parental relationship as similar to
a relationship among "extended family member[s]" or "playmates,"
lacking a deep parent-child bond. The judge found "Dr. Hiscox['s]
description of the bond . . . as an extended family type of bond
. . . makes sense just from the standpoint of the time that they've
spent together and the types of activities they've done together."
He found the children did not believe they could "rely on these
particular parents to be the ones that care for them on a day to
11 A-3931-15T2 day basis or [that defendants were capable of] form[ing] that type
of bond." The judge found that any harm from severing the bond
would "be mitigated . . . by placing them in a stable permanent,
loving relationship where they are well cared for." The judge,
therefore, found termination of parental rights would not do more
harm than good.
III
"We will not disturb the family court's decision to terminate
parental rights where there is substantial credible evidence in
the record to support the court's findings." N.J. Div. of Youth
& Family Servs. v. E.P., 196 N.J. 88, 104 (2008). In light of the
Family Part's "special jurisdiction and expertise in family
matters" and its opportunity to assess witnesses first-hand and
develop a "feel of the case," we accord deference to the Family
Part's findings of fact and credibility. N.J. Div. of Youth &
Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (first quoting
Cesare v. Cesare, 154 N.J. 394, 413 (1998); then quoting E.P.,
supra, 196 N.J. at 104). "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)).
12 A-3931-15T2 EDGAR'S INABILITY TO CALL HIS EXPERT
At the outset of trial, Edgar's counsel indicated she would
not be calling Dr. Reynolds as an expert, nor entering his report
into evidence. She intended to reference statements made by Dr.
Reynolds during his March 2015 evaluation that were included in
Dr. Hiscox's report. The judge found it improper to "get in [Dr.
Reynold's] opinions through [Dr. Hiscox's testimony]." The judge
also forbade eliciting information about Dr. Reynolds' evaluation
of Edgar during cross-examination when Dr. Reynolds testified on
behalf of Amy. Edgar's counsel then tried to offer the report
into evidence, but the judge precluded it, as trial had already
commenced.
Edgar argues that his counsel's failure to call Dr. Reynolds
as an expert, ask Dr. Reynolds to update the report, or enter his
March 2015 report into evidence constituted either an abuse of the
judge's discretion or ineffective assistance of counsel under the
two-part test set forth in Strickland v. Washington, 466 U.S. 668,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); N.J. Div. of Youth &
Family Servs. v. B.R., 192 N.J. 301, 307-09 (2007).
To establish an ineffective assistance of counsel claim,
(1) counsel's performance must be objectively deficient--i.e., it must fall outside the broad range of professionally acceptable performance; and (2) counsel's deficient performance must prejudice the defense--i.e., there must be a "reasonable probability that
13 A-3931-15T2 but for counsel's unprofessional errors, the result of the proceeding would have been different."
[B.R., supra, 192 N.J. at 307 (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).]
This standard is "highly deferential," and "a court must
indulge a strong presumption that counsel's conduct falls within
the wide range of reasonable professional assistance." Ibid.
(citation omitted).
The issue of ineffective assistance of counsel is properly
raised in the direct appeal of a termination of parental rights
case. Id. at 311. "[A]ppellate counsel must provide a detailed
exposition of how the trial lawyer fell short and a statement
regarding why the result would have been different had the lawyer's
performance not been deficient. That will include the requirement
of an evidentiary proffer in appropriate cases." Ibid. We may
resolve the question of ineffective assistance of counsel on the
appeal record alone, unless a genuine issue of fact is present,
in which case it must remand for an expedited hearing before the
trial court on the factual question. Ibid. Such a hearing is
appropriate here, given the importance of the expert's opinion.
Alternatively, Edgar asserts it was error for the judge to
preclude Dr. Reynolds as his expert witness and exclude the report.
Edgar cites Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S. Ct.
14 A-3931-15T2 893, 902-03, 47 L. Ed. 2d 18, 33 (1976) in support of his argument
that Edgar was denied due process. He argues "[t]his is not a
situation where the court and the other parties were blind-sided
by a call for an expert witness and the submission of an expert
report into evidence." Edgar asserts the emergent hearing held
on January 19, 2016, put everyone on notice of Edgar's intention
to use Dr. Reynolds as an expert. Moreover, "the report in
question was already presented and known to [the Division] and the
court from previous FN [abuse or neglect] litigation."
Whether viewed as ineffective assistance of counsel or a
misapplication of discretion, we are convinced that Edgar and his
children were entitled to have the judge review Dr. Reynolds's
testimony and report. The Division had received a copy of the
report well before trial and Dr. Reynolds testified on behalf of
Amy. His reported findings with regard to Edgar were hopeful for
the most part, although not up-to-date. As we have said, the
children as well as the parent benefit from the court's review of
all available evidence potentially favorable to the parent. See
N.J. Div. of Child Prot. & Permanency v. K.S., 445 N.J. Super.
384, 392 (App. Div. 2016) (remanding the termination of parental
rights to allow the mother to testify, in spite of her non-
appearance in court until after the close of evidence). The judge
should allow Dr. Reynolds to update his report with regard to the
15 A-3931-15T2 neurological findings, domestic violence occurrences and any other
development. The court should then hold a hearing, in an
abbreviated timeframe. The same judge who decided this case should
preside over the hearing and reconsider the decision to terminate
Edgar's parental rights in light of the additional evidence.
DEFICENCIES IN THE COMPLAINT
Amy asserts "this case is legally improper" because "[t]he
guardianship complaint filed in this matter did not allege a 'best
interests' cause of action under N.J.S.A. 30:4C-15(c)" and the
complaint "was not properly verified." Amy asserts Rule 1:6-6
requires verification based on personal knowledge, which is
lacking here as the caseworker swore only to the best of her
knowledge, information, and belief. R. 5:12-1(b); R. 4:67; R.
1:6-6.
The complaint refers to "terminating parental rights . . .
pursuant to N.J.S.A. 30:4C-15 through N.J.S.A. 30:4C-20." It also
incorporates the initial abuse and neglect complaint and ensuing
orders. The Court in N.J. Div. of Youth & Family Servs. v. F.M.,
211 N.J. 420, 442 (2012) provided that "[t]o initiate a
guardianship petition with the goal of termination of parental
rights, at least one of the five grounds set forth in N.J.S.A.
30:4C-15(a) to (f) must be met." N.J.S.A. 30:4C-15(c) provides a
petition for guardianship may be filed when "it appears that the
16 A-3931-15T2 best interests of any child under the care or custody of the
division require that he be placed under guardianship." An award
of "care or custody" of a child to the Division "is a stand-alone
basis for filing a guardianship complaint under N.J.S.A. 30:4C-
15(c)." F.M., supra, 211 N.J. at 443.
Neither the issue of the substantive deficiencies in the
complaint nor improper verification was raised before the trial
judge and we decline to address the issues for the first time on
appeal. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234-35
(1973).
TERMINATION OF AMY'S PARENTAL RIGHTS
Amy contends that the court erred in terminating her parental
rights, arguing the court's findings as to the four prongs of the
best-interests analysis were not supported by clear and convincing
evidence. Parents have a right "to raise a child and maintain a
relationship with that child[] without undue interference by the
state." E.P., supra, 196 N.J. at 102. That right is fundamental,
and protected under both the United States and New Jersey
Constitutions. Ibid. That right is not absolute, however, and
is "tempered by the State's parens patriae responsibility to
protect children whose vulnerable lives or psychological well-
being may have been harmed or may be seriously endangered by a
neglectful or abusive parent." F.M., supra, 211 N.J. at 447. As
17 A-3931-15T2 termination of parental rights is considered an "extreme form of
action," E.P., supra, 196 N.J. at 102, and "a weapon of last resort
in the arsenal of state power," F.M., supra, 211 N.J. at 447, the
courts "have consistently imposed strict standards" in such cases.
In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999).
"The focus of a termination-of-parental-rights hearing is the
best interests of the child," and the Division must "satisfy by
clear and convincing evidence four factors, known as the best-
interests-of-the-child standard, set forth in N.J.S.A. 30:4C-
15.1(a)." F.M., supra, 211 N.J. at 448. Those four statutory
factors are:
(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 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.
18 A-3931-15T2 [N.J.S.A. 30:4C-15.1(a).]
The above requirements should not be considered separately,
but should form "a composite picture" of what is in the best
interests of the child. N.J. Div. of Youth & Family Servs. v.
M.M., 189 N.J. 261, 280 (2007). "[T]he cornerstone of the inquiry
is not whether the biological parents are fit but whether they can
cease causing their child harm." In re Guardianship of J.C., 129
N.J. 1, 10 (1992). Parents in such proceedings should not be
presumed unfit, and "all doubts must be resolved against
termination of parental rights." K.H.O., supra, 161 N.J. at 347.
Because the trial judge must reconsider the termination of
Edgar's rights in light of Dr. Reynold's testimony, we review only
the termination of Amy's rights. Amy argues the court erred in
finding the Division proved any of the four prongs. She argues
the proofs as to prong one fail because her sons were taken away
from her only because of her treatment of Edgar's daughter Natalie.
Under the first prong, the Division must demonstrate harm to
the child resulting from the parental relationship "that threatens
the child's health and will likely have continuing deleterious
effects on the child." Id. at 352. The Division must proffer
adequate evidence of "actual harm or imminent danger" to the child.
N.J. Div. of Youth & Family Servs. v. A.L., 213 N.J. 1, 30 (2013).
"Harm" in this context is not limited to physical harm, In re
19 A-3931-15T2 Guardianship of R.G. & F., 155 N.J. Super. 186, 194 (App. Div.
1977); rather, it includes emotional and psychological harm, New
Jersey Division of Youth & Family Services. v. W.W., 103 N.J. 591,
605 (1986), a parent permitting his or her children to be exposed
to harm caused by another parent, New Jersey Division of Child
Protection and Permanency v. J.L.G., ___ N.J. Super. ___, ___
(App. Div. 2015) (slip op. at 10), aff'd o.b., ___ N.J. ___ (2017);
M.M., supra, 189 N.J. at 288-90, and a parent's inability to
provide a safe and stable home for the child, New Jersey Division
of Youth & Family Services. v. H.R., 431 N.J. Super. 212, 223
(App. Div. 2013), including the failure to provide day-to-day
nurturing and a safe and caring environment for a prolonged period
of time. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J.
591, 604-07 (1986).
The first prong may also be satisfied by expert evidence
demonstrating that a parent's untreated mental illness poses a
risk to the child, F.M., supra, 211 N.J. at 450-51, or that a
parent's mental illness prevents him or her from meeting a child's
daily needs. N.J. Div. of Youth & Family Servs. v. L.J.D., 428
N.J. Super. 451, 481-83 (App. Div. 2012).
The judge's findings as to prong one were adequately supported
by the record. Amy's argument that her treatment of Natalie has
no bearing on Eric and Neil is without merit. The Division need
20 A-3931-15T2 not wait until a child is harmed before intervening. F.M., supra,
211 N.J. at 449. Amy admitted on multiple occasions to taking
part in the physical abuse directed at Natalie.
To satisfy the second prong, the Division must demonstrate
that 1) "the parent is 'unwilling or unable to eliminate the
harm'", or 2) "the parent has failed to provide a 'safe and stable
home for the child' and a 'delay in permanent placement' will
further harm the child." K.H.O., supra, 161 N.J. at 352 (quoting
N.J.S.A. 30:4C-15.1(a)(2)).
The second prong compels an assessment of "parental
unfitness," based on "indications of parental dereliction and
irresponsibility." K.H.O., supra, 161 N.J. at 352-53. The court
should also consider any "[c]oncern and efforts by a natural parent
after his or her child has been removed from the home, and [the
parent's] genuine and successful efforts to overcome the cause of
the removal," as such efforts are "of enormous significance" in
the court's assessment of the second prong. N.J. Div. of Youth &
Family Servs. v. A.R., 405 N.J. Super. 418, 437 (App. Div. 2009).
Amy argues the evidence showed that, by the time of trial,
she "had corrected the parenting skills deficits [the Division]
had identified as harmful to [Natalie] and potentially harmful to
[Eric and Neil]." Amy contends she should be allowed to complete
an additional six-months of therapy, as recommended by her expert,
21 A-3931-15T2 Dr. Reynolds, "to see if additional services would held her achieve
stability."
A child's best interests cannot be sacrificed because of a
parent's inability to address potential future harm despite his
or her willingness to try. See N.J. Div. of Youth & Family Servs.
v. C.S., 367 N.J. Super. 75, 111 (App. Div.), certif. denied, 180
N.J. 456 (2004). The focus is on whether the parent has
sufficiently overcome the initial harm that endangered the child's
health, safety, or welfare and is able to continue the parent-
child relationship without recurrent harm. J.C., supra, 129 N.J.
at 10.
While Dr. Reynolds recommended additional services, he did
not state that those services would ameliorate Amy's parental
deficiencies. At the time of trial, all experts were in agreement
that Amy was then unable to parent safely. She had been engaged
in Division services for twenty months, from the beginning of
parenting classes until trial.
The third prong of the analysis requires the Division to make
reasonable efforts to provide services to help the parent correct
the circumstances that led to the child's removal, and requires
the trial court to thoroughly explore alternatives to termination
of parental rights. A.G., supra, 344 N.J. Super. at 434.
22 A-3931-15T2 Amy asserts the Division did not make reasonable efforts, as
she was not provided with "psychotherapy to address low self-
esteem," or problem-solving issues as per Dr. Williams'
recommendation. Amy also argues that the judge erred in not
considering kinship legal guardianship (KLG). N.J.S.A. 30:4C-
15.1.
Whether the Division provided reasonable efforts is not
measured by a defendant's success in his or her services. In re
Guardianship of D.M.H., 161 N.J. 365, 393 (1999). Withholding
permanency from a child with the hope that a parent will benefit
from services is not an option. "Children have their own rights,
including the right to a permanent, safe and stable placement."
C.S., supra, 367 N.J. Super. at 111.
"[W]hen the permanency provided by adoption is available,
kinship legal guardianship cannot be used as a defense to
termination of parental rights." See N.J. Div. of Youth & Family
Servs. v. P.P., 180 N.J. 494, 513 (2004); see also N.J.S.A. 3B:12A-
6(d)(3) (instructing that a KLG is only proper when "adoption of
the child is neither feasible nor likely"); N.J. Div. of Youth &
Family Servs. v. T.I., 423 N.J. Super. 127, 137 (App. Div. 2011)
(recognizing that the potential availability of a KLG does "not
provide a basis for defeating the termination of parental rights").
23 A-3931-15T2 The Division provided Amy with therapeutic supervised visits,
evaluations, referrals for domestic violence counseling,
individual psychotherapy and parenting classes. Dr. Hiscox
testified at trial that no services, no matter how tailored to
Amy's intellectual limitations, would facilitate her ability to
parent independently in the foreseeable future. Permanency cannot
be withheld with the hope that a parent will comply and benefit
from services. See C.S., supra, 367 N.J. Super. at 111. The
third prong was supported by sufficient evidence in the record.
Amy points to the positive bond that existed between her and
the children. Dr. Hiscox testified that the lack of a strong
attachment to a guardian may result in significant psychological
and relationship issues in children. Moreover, Dr. Hiscox
testified termination of parental rights would not do more harm
than good. The Law Guardian points out that the bonding evaluation
determined that while Eric may experience some minor disturbance
that would result from termination, it would not be lasting and
would not do more harm than good.
"[A] child's need for permanency is an extremely important
consideration" under the fourth prong. R.G., supra, 217 N.J. at
559. "Ultimately, a child has a right to live in a stable nurturing
environment and to have the psychological security that his [or
her] most deeply formed attachments will not be shattered." F.M.,
24 A-3931-15T2 supra, 211 N.J. at 453; see also D.M.H., supra, 161 N.J. at 385
(recognizing the "strong policy considerations that underscore the
need to secure permanency and stability for the child without
undue delay").
The fourth prong "is a 'fail-safe' inquiry guarding against
an inappropriate or premature termination of parental rights."
F.M., supra, 211 N.J. at 453. It requires proof that "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.
Its "crux . . . is the child's need for a permanent and stable
home, along with a defined parent-child relationship." H.R.,
supra, 431 N.J. Super. at 226.
A court is permitted to proceed with the termination of
parental rights when the parents are unfit to care for the child,
even in the event there is no bond with an alternative caregiver,
see New Jersey Division of Youth & Family Services v. B.G.S., 291
N.J. Super. 582, 593 (App. Div. 1996), because children should not
be allowed to "languish indefinitely" in a resource placement
while a defendant tries to correct the problems that led to the
Division's involvement with the family. N.J. Div. of Youth &
Family Servs. v. S.F., 392 N.J. Super. 201, 209-10 (App. Div.),
certif. denied, 192 N.J. 293 (2007). After trial, Eric and Neil
were placed with their grandmother, who wishes to adopt them. In
25 A-3931-15T2 his April 2016 report, Dr. Hiscox concluded, "it is clearly in the
best interest[s]" of Eric and Neil to have Amy's "parental rights
terminated to them so they can be legally freed for adoption."
Dr. Hiscox found that termination of the parties' parental rights
"would do much more good than harm." We affirm the termination
of Amy's parental rights.
Should the judge who tried the case, after conducting the
remand hearing, determine that the Division has not demonstrated
that Edgar's parental rights should be terminated, Amy may move
for reconsideration of the termination of her parental rights,
because it is not the policy of our State to terminate only one
parent's rights, leaving children with one rather than two parents.
"Two parents are better than one, even if one parent falls far
below the ideal." N.J. Div. of Youth & Family Sec'ys v. D.S.H.,
425 N.J. Super. 228, 242 (App. Div. 2012).
We affirm as to Amy, A-3931-15. We reverse as to Edgar, A-
3933-15, and remand for forty-five days to allow Edgar's expert
to testify, the parties to inform the trial court of any
significant updates in the situation, and the judge to decide anew
whether the Division has proved its case. We retain jurisdiction.
26 A-3931-15T2