NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. I.S. Nos. A-1055-09T4, A-1294-09T4, A-1317-09T4

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. I.S., Defendant-Appellant. NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. L.C., Defendant-Appellant. NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. R.H., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF J.L.S., S.M.A. & L.Y.H., minors.

Superior Court of New Jersey, Appellate Division.
Decided December 14, 2010.
Yvonne Smith Segars, Public Defender, attorney for appellant I.S. as to A-1055-09T4 (Anna F. Patras, Designated Counsel, of counsel and on the brief).
Yvonne Smith Segars, Public Defender, attorney for appellant L.C. as to A-12940-9T4 (Howard Danzig, Designated Counsel, of counsel and on the brief).
Yvonne Smith Segars, Public Defender, attorney for appellant R.H. as to A-1317-09T4 (Mark E. Kleiman, Designated Counsel, on the brief).
Paula T. Dow, Attorney General, attorney for respondent New Jersey Division of Youth and Family Services as to A-1055-09T4, A-12940-9T4 and A-1317-09T4 (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Emily A. Samuels, Deputy Attorney General, on the brief).
Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minors (Nancy P. Fratz, Assistant Deputy Public Defender, on the brief).
Before Judges Baxter and Koblitz.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

This is an appeal by a mother and two fathers from a September 15, 2009 Family Part order that terminated their parental rights to their three daughters, who ranged in age from five to nine. L.C. is the mother of all three: J.L.S., born November 26, 1999; S.M.A., born October 26, 2002; and L.Y.H., born July 5, 2004. I.S. is the father of J.L.S. and S.M.A.2 R.H. is the father of L.Y.H. We reject the mother's contention that: the Division of Youth and Family Services (DYFS or Division) failed to satisfy by clear and convincing evidence the statutory standard for the termination of her parental rights; the judge gave undue weight to the psychological evaluations offered by DYFS; and the judge's findings of fact were insufficient to support the legal conclusions reached. As to I.S. and R.H., we reject their arguments that the judge wrongly terminated their respective parental rights solely because of their protracted periods of incarceration and that the order was against the weight of the evidence admitted at trial. We affirm the order under review.

I.

A. L.C.

After two unsubstantiated referrals in January 2005 and September 2006, DYFS received two referrals on October 10, 2006 that led to the removal of all three children from their mother, L.C. The first referral on October 10, 2006 came from Newark police, who reported to DYFS that the girls were living with their mother, L.C., in a one-room apartment with a front door that was off its hinges and would not lock. Newark police also reported that all three children were sleeping on a single mattress on a floor littered with cigarette butts. The second referral came from a neighbor, who reported that the two older girls, then ages six and four, were playing outside unsupervised while their mother was inside having a sexual encounter with a fourteen-year-old girl. The neighbor also claimed that L.C. sold crack cocaine nearly every day, and that she often grabbed the girls by the hair and punched them in the face.

DYFS caseworkers sent to the apartment found that all three girls had head lice and larvae for which L.C. had not sought medical attention. DYFS also established that L.C. had withdrawn J.S. from school but had failed to enroll her in a new one. At the conclusion of the October 10, 2006 inspection of L.C.'s apartment, the Division instructed her to immediately find other accommodations. Although L.C. placed her daughters with relatives and a family friend, all three caregivers were found unsuitable, either due to a prior history with DYFS, job responsibilities or inadequate living arrangements.

Based upon the deplorable living conditions, the girls' head lice and the six-year-old not being in school, on October 31, 2006, DYFS instituted an emergency removal pursuant to court order, placing the three children together in a foster home. As we shall discuss in greater detail later in this opinion, neither of the two fathers was living with L.C. at the time DYFS removed the three children. I.S. had been incarcerated since March 2005 and R.H. had been incarcerated since June 2006. On December 28, 2006, the children were placed together with their current foster family, where they have remained ever since.

At the time DYFS removed the children from L.C.'s custody, the agency required L.C. to submit to a drug test. She tested positive for marijuana and methamphetamines. In fact, L.C. later tested positive for various illicit substances on October 31, 2006, and on January 4, February 12, March 26, May 22, July 20, September 27, October 1, October 9, October 22, October 30, November 5 and November 6, 2007.

In the nearly three years that elapsed from the time DYFS removed the children in October 2006 and the time the trial was completed in September 2009, DYFS provided a broad array of services to L.C., including referrals for psychological counseling and substance abuse treatment. In particular, in September 2007, after a substance abuse evaluation by a certified substance abuse evaluator at Catholic Charities, the evaluator recommended L.C. attend The Bridge partial hospitalization drug treatment program, diagnosing L.C. with both "PCP abuse" and "cannabis abuse."

At the initial session at The Bridge on September 27, 2007, L.C. tested positive for PCP. On October 10, 2007, The Bridge reported to DYFS that L.C. had attended all of her group and individual counseling sessions for October, but had three positive urine screens for PCP. By November 2007, L.C.'s attendance rate plummeted. The Bridge reported that L.C. had missed seven out of seventeen sessions, arrived late to two of them, and attended only three out of five individual sessions. Of the eight urine screens, five were positive for PCP and two were positive for methadone.

The Bridge terminated L.C. from its program, notifying DYFS that L.C. did not acknowledge her substance abuse problem, and commenting that L.C. needed a higher level of care than The Bridge could provide. The Bridge recommended that L.C. contact Bergen Regional, which was expecting her call; however, L.C. never attended Bergen Regional, and told her caseworker that she would enroll in the drug treatment program at CURA, but never did. In early 2008, L.C. enrolled in The Bridge's GED program, but never completed it. She did, however, complete a parenting skills class in September 2008.

DYFS also referred L.C. to Johnson & Associates, a mental health counseling group, where she was scheduled to start individual therapy in January 2007, but did not, due to a brief incarceration. In March, L.C. told her DYFS caseworker that she did not want to attend counseling because she could be "doing other stuff," but she ultimately agreed to attend. In April, she signed a contract obligating her to attend sixteen consecutive individual counseling sessions, sixteen consecutive substance abuse classes, and parenting skills classes. In June 2007, Johnson & Associates reported that L.C.'s progress was unsatisfactory because she had missed numerous sessions and tested positive for PCP in May. In July, her progress was still unsatisfactory due to positive urine screens in June and July, despite attending sessions more regularly. In October 2007, Johnson & Associates discharged L.C. from the program due to her non-compliance.

In light of L.C.'s lack of cooperation with drug treatment and the lack of any reasonable prospect that L.C. would become cooperative in the near future, at the October 11, 2007 permanency hearing, DYFS sought court approval for abandoning the goal of reunification. The judge approved DYFS's goal of termination of parental rights followed by adoption, and on December 6, 2007, the Division filed a complaint for guardianship and for termination of the parental rights of all three parents.

As we have noted, the Division also provided L.C. with mental health evaluations and attempted to provide her with mental health treatment. L.C. underwent a psychiatric evaluation with Ronald Crampton on October 25, 2007. She told Crampton that she had been abused by both I.S. and R.H., that she used marijuana and PCP, and that she had been arrested on shoplifting and drug charges, for which she received probation. Crampton diagnosed L.C. with depressive disorder (not otherwise specified) and phencyclidine dependence, for which he recommended "comprehensive psychiatric assessment and treatment" and substance abuse treatment. At the conclusion of his report, Crampton opined that L.C. was not presently capable of providing the care and nurturance that her children required and recommended that DYFS not return the children to her custody at that time.

After receiving Dr. Crampton's recommendations, the Division referred L.C. to the University of Medicine and Dentistry of New Jersey (UMDNJ) partial hospitalization program, and, although the judge had ordered her to comply with all of Dr. Crampton's recommendations, L.C. failed to keep her appointments at UMDNJ.

Even though L.C. had essentially sabotaged her mental health treatment at Johnson & Associates and at UMDNJ, DYFS persisted in its effort to secure individual counseling for her, referring L.C. to individual counseling sessions with Nilda Pyronneau. Between August 28, 2008 and January 30, 2009, L.C. skipped eight of her weekly appointments with Pyronneau. Because L.C. missed two consecutive sessions, on January 23 and January 30, 2009, Pyronneau discharged L.C. due to her non-compliance. Pyronneau also reported to the Division that she had been unable to establish any contact with L.C. after L.C. failed to appear for the January 23 and January 30, 2009 appointments.

The Division identified a third risk factor in L.C.'s parental functioning. In February 2007, when S.M.A. was four years old, she told her foster mother that while she was living with L.C., L.C. had sexually abused her. Upon learning of S.M.A.'s report of sexual abuse, the Division caseworker arranged an evaluation of S.M.A. at the Metropolitan Regional Child Abuse Diagnostic and Treatment Center (MRCADTC). The MRCADTC evaluator believed that S.M.A.'s allegations were "probable," given the consistency of her statements and her "sensory knowledge" that the insertion of her mother's finger into her vagina and anus had hurt; however, both police and the evaluator determined that it was impossible to definitively establish abuse in light of S.M.A.'s young age.

In light of S.M.A.'s allegations, the Division required L.C. to submit to a psycho-sexual evaluation with Heather Diamond, a licensed clinical social worker (LCSW) at the Center for Evaluation and Counseling. L.C. denied sexually abusing her daughter but did admit to having engaged in a sexual relationship with a fourteen-year-old girl. Despite the fact that the girl's young age rendered L.C.'s sexual involvement with her a crime, L.C. asserted there was nothing wrong with the relationship, insisting the girl "had a lot of knowledge and a lot of goals herself so we didn't consider it a problem." L.C. also contended that because the relationship lasted only a month, "it's not like there were strings attached, and no one was going to get hurt." L.C. also maintained that her children knew nothing of the relationship because "[w]e didn't do anything in front of them." Contradicting her claim that her children knew nothing of her sexual relationship with the fourteen-year-old, L.C. admitted that her oldest child, J.L.S., asked a lot of questions about it, to which L.C. simply responded "no. She's just my best friend."

Diamond found that L.C. was "an immature, irresponsible and narcissistic parent" who "consistently prioritizes her own needs over the needs of her children." She described L.C. as apathetic and "lack[ing] insight into her problematic behaviors." According to the evaluator, L.S. had "many antisocial characteristics," including her disregard for the law or authority, deceitfulness, impulsivity, irritability, disregard for the welfare of others and lack of remorse. Diamond concluded that L.C. was at high risk for committing child abuse and neglect, and recommended that she be supervised when in the presence of her children.

At trial, DYFS presented the testimony of psychologist Andrew Brown, who evaluated L.C. in February 2007 and again in December 2008. One of Dr. Brown's principal findings was L.C.'s lack of candor concerning the extent of her drug habit, including her tendency to minimize its impact on her life and on her ability to rear her three daughters. In particular, during the 2008 evaluation, L.C. maintained that the only drug she had ever used was marijuana, yet in the 2007 evaluation she admitted to Dr. Brown that she had used marijuana, as well as PCP and Ecstasy.

Dr. Brown also opined that L.C. lacked the ability to accomplish goals she had set for herself, pointing to her February 2007 promises to obtain her GED and complete a substance abuse program, neither of which had been achieved by the time of the December 2008 evaluation. Additionally, because DYFS had offered L.C. numerous opportunities to obtain treatment, L.C.'s failure to address her mental health and substance abuse problems over a period of years demonstrated a lack of insight and a pattern of irresponsibility. Dr. Brown also opined that L.C.'s offhand dismissal of her sexual relationship with a fourteen-year-old as "not a problem" reflected extremely poor insight and judgment. Ultimately, Dr. Brown opined that the combination of all of these factors rendered L.C. unfit to provide a secure and stable environment for her daughters. He recommended that her parental rights be terminated.

L.C. was also evaluated by psychologist Maureen Santina on behalf of the Law Guardian. Like Dr. Brown, Dr. Santina noted that L.C. consistently minimized the extent of her drug problem, saying that she had stopped using marijuana and PCP four to five years earlier, even though in the immediate past, she had tested positive for those two substances, as well as cocaine.

Dr. Santina diagnosed L.C. with polysubstance dependence, personality disorder (not otherwise specified) with borderline, antisocial, narcissistic and dependent features. She described L.C.'s judgment and insight as "extremely poor," with "exceptionally poor knowledge of parenting issues and skills." Dr. Santina opined that L.C. was not capable of providing a safe and secure home or meeting her children's emotional and physical needs. According to Dr. Santina, L.C.'s "pervasive and continuing patterns of irresponsibility, dishonesty, and dependency on men make her a very high risk for neglecting her children." Additionally, when L.C. became frustrated or used drugs, there was a significant risk, in Dr. Santina's opinion, that L.C. would resort to physical abuse of her children. Dr. Santina concluded that it was unlikely that L.C. would become capable of parenting in the "foreseeable future."

When asked at trial whether L.C.'s recent negative drug screens affected her conclusion that L.C. was unable to provide a stable and secure home for her children, Dr. Santina answered "no." She observed that a temporary period of maintaining a drug-free lifestyle is not evidence that the individual has resolved and eliminated his or her drug problem. In particular, Dr. Santina noted that unless a drug user addresses the underlying psychological issues that led to the substance abuse, there is a substantial risk of relapse.

Dr. Santina was also asked about L.C.'s employment. She agreed that finding a job was a positive development, but finding employment did not outweigh the marked pattern of irresponsibility that L.C. had demonstrated by failing to attend the treatment sessions that she was required to complete before being reunited with her children. Dr. Santina also emphasized that parenting involves more than being able to work. She also commented that drug treatment and psychological counseling, which L.C. never completed, are essential if a patient is to gain a recognition of the factors that are likely to lead to relapse and an awareness of how to avoid such a cycle.

At trial, DYFS also presented the results of the bonding evaluations Dr. Brown conducted between L.C. and her daughters in December 2008. Observing the girls with their mother, Dr. Brown reported that they were comfortable with her, yet when he asked her to leave the room so he could observe their reaction to her departure, none of the three voiced any discomfort. The two older girls expressed ambivalence when asked who would be better able to care for them, their mother or their foster parents. Although L.Y.H. did not express an opinion on that subject, her lack of discomfort when her mother left the room led Dr. Brown to conclude that L.Y.H. was not bonded to her mother. He reached the same conclusion concerning the older girls because their willingness to continue living with their foster parents demonstrated the lack of a strong bond with their mother. Ultimately, Dr. Brown opined that any psychological harm the girls might suffer as a result of the termination of their relationship with their mother was more than offset by the benefits to be derived from the security and stability that their foster parents were able to provide.

Dr. Brown also performed a bonding evaluation between the girls and their foster parents, to whom they referred as "mommy" and "daddy." Brown concluded that the girls were well-bonded to the foster parents and perceived them as their psychological parents. He opined that all three girls would suffer "great and enduring" harm if removed from their care. He further opined that the girls were very attached to each other and separating them would not be in their best interest. He concluded by recommending that the foster parents be permitted to adopt all three.

At trial, L.C. testified that she had worked at McDonald's for the past year, and had been a manager for one month, clearing $350 per week. She claimed to be working nine hours a day, five days a week including weekends, but had two days off during the week. She had no health insurance and received no child support. She was living in a two-bedroom apartment that DYFS deemed suitable, for which she paid $700 per month. She determined that daycare would cost $300 per month for L.Y.H.

L.C. denied using marijuana for the past one to two years, and denied ever using cocaine. When confronted with her positive drug screen for cocaine, L.C. explained that because she was bagging and selling cocaine, the residue must have been absorbed into her pores and showed up on her urine screen. She also testified that she had never taken Ecstasy, but admitted telling an evaluator that she had, because she did not want to admit to using PCP. She also admitted to smoking cigarettes laced with embalming fluid, but claimed she had stopped.

During the course of the litigation, L.C. offered the names of three people to permanently care for her children, but none of them responded to the Division's initial contacts.

B. I.S.

As we have noted, I.S. was incarcerated beginning in March 2004, when his daughters J.L.S. and S.M.A. were, respectively, four and one years old. He was not released from prison until January 2009. DYFS caseworker Aneka Hazel, who was assigned to the case in November 2007, testified that the girls were not transported to visit their father in prison. Following his release, I.S. requested visitation, but was required to arrange all visits twenty-four hours in advance. He accomplished two visits with J.L.S., the older of his two daughters, but then missed many of the subsequent weekly visits, which caused the Division to reduce the frequency to alternate weeks. Ultimately, because I.S. did not comply with the twenty-four hour notice requirement, DYFS terminated his visits with J.L.S. Thereafter, he agreed to comply with the advance notice requirement, and his visits were reinstated; however, he was again non-compliant and never responded to Hazel's letter inquiring about his non-compliance. At trial, I.S. claimed that he missed the visits because he was "trying to get [his] future career plans going."

I.S. had a significant drug problem. Three days after his release from prison, he tested positive for marijuana, as he did several times thereafter. At trial, I.S. admitted that he had used marijuana since his release, but claimed he was now drug-free. When asked whether he would use marijuana again, he stated, "I can't say yes and I can't say no," and when asked if smoking marijuana was breaking the law, he stated, "not exactly." I.S. again tested positive for marijuana on April 24, 2009, and he refused to provide a urine sample on May 27, 2009.

I.S. offered his mother as a resource to permanently care for his children, but she was ruled out because she worked long hours, and did not have adequate room in her home for three children.

At the request of the Division, Dr. Brown had performed a psychological evaluation of I.S. while he was in prison. The psychological tests Dr. Brown administered to I.S. demonstrated "excessive use of selected defense mechanisms, such as suppression, repression, denial, rationalization, and lack of insight." Brown diagnosed I.S. with adult antisocial behavior and opined that I.S. was not capable of functioning as a parent because his "psychological status, chronic legal problems, [and] chronic and sustained lack of any parental preparation" were "not conducive" to developing the skills necessary to become a successful parent. Brown opined that I.S.'s "prognosis for parenting" was "poor."

Dr. Brown noted that despite repeated requests from Hazel, I.S. had never provided any plan for where he would live if he were to be reunited with his daughters. This failure, in conjunction with I.S.'s obvious disinterest in visitation, led Dr. Brown to conclude that I.S. was neither prepared nor ready to assume the duties and obligations of parenting.

Dr. Brown also performed a bonding evaluation between I.S. and J.L.S. Although she was excited to see her father, and appeared comfortable with him, Brown opined that the child was essentially "unfamiliar" with I.S. and demonstrated no significant bond with him. Brown concluded that termination of I.S.'s parental rights to J.L.S. would not do more harm than good. No bonding evaluation of I.S. and S.M.A. was conducted.

I.S. was also evaluated by Dr. Santina, who reached conclusions similar to those of Dr. Brown. In particular, Dr. Santina concluded that I.S. had deliberately misrepresented the extent of his drug use and his record of criminal convictions. She opined that his drug use, his failure to take responsibility for his own actions, and his inability to recognize the impact of his behavior on others, created an unfavorable prognosis for his ability to function properly as a parent.

Dr. Santina also performed a bonding evaluation between J.L.S. and her father. Dr. Santina reported that I.S. did not perceive his daughter's discomfort when discussing why her sister S.M.A. did not want to see him. This, in the opinion of Dr. Santina, demonstrated a significant insensitivity to the child's emotional needs. I.S. displayed similar insensitivity when he repeatedly denigrated the foster parents even though J.L.S. was obviously distressed by his comments. When I.S. told J.L.S. he loved her and wanted her to live with him upon his release from prison, J.L.S. did not reciprocate his efforts at affection, merely commenting "okay."

C. R.H.

R.H., who is the father of L.Y.H., had been incarcerated continuously ever since June 2006, when L.Y.H. was twenty-three months old. He incurred three Law Division convictions for narcotics and weapons offenses, and on January 12, 2009, was sentenced on federal robbery charges to a nine-year term of imprisonment, of which seven years and eight months were required to be served without eligibility for parole. By the time R.H. is eligible for parole in July 2016, L.Y.H. will be twelve years old and his incarceration will have spanned five-sixths of her life.

Dr. Brown conducted a psychological evaluation of R.H. in 2008, while he was incarcerated. Brown diagnosed R.H. with antisocial personality disorder and concluded that R.H.'s considerable antisocial personality traits, chronic legal difficulties and lack of preparation for parenthood rendered him an unsuitable caregiver for L.Y.H.

Dr. Santina also evaluated R.H. Notably, when she asked him about the robberies he had committed, R.H. denied any involvement, insisting that others had falsely implicated him. He also denied any record of juvenile adjudications of delinquency even though he had sustained three. When Dr. Santina confronted him with his refusal to take responsibility for his criminal past, R.H. dismissively shrugged off her comment.

Dr. Santina diagnosed R.H. with polysubstance abuse and antisocial personality disorder. She opined that his insight and judgment were poor, and the likelihood of his achieving meaningful and enduring change was virtually non-existent. Dr. Santina concluded that R.H. was not capable of providing a safe and nurturing environment, or of meeting L.Y.H.'s emotional and physical needs; and he presented a "very high risk of neglecting her physically and emotionally because of his pervasive irresponsibility and shallow interest in others." Dr. Santina opined that R.H.'s significant criminal history substantially interfered with his ability to function successfully as a parent because he was a poor role model for his daughter and lacked the ability to conform his behavior to societal norms.

Neither Dr. Brown nor Dr. Santina conducted a bonding evaluation of R.H. with L.Y.H.; however, Dr. Brown testified that no bonding evaluation was necessary to determine that L.Y.H. was not bonded to her father. He explained that there cannot be a parent-child bond unless the parent has assumed a centralized role and physical presence in the child's life for a significant period of time. Because R.H. had established neither, no bond could have been established.

During the course of the litigation, R.H. suggested his mother as a possible placement, but DYFS ruled her out because she had an "extensive background" with DYFS. R.H. also offered his sister L.H. as a resource, but she was interested only in assuming custody of her niece, L.Y.H., causing DYFS to reject her as a possible placement because the Division chose to keep the three girls together in light of their strong attachment to each other.

R.H. also offered his sister-in-law, N.R., as a resource for his daughter. DYFS investigated N.R. and her home, and although her home was found to be appropriate, the Division ultimately ruled her out because she was not a relative of the two older girls and was only related by marriage to L.Y.H. Moreover, according to the testimony of caseworker Aura Cordone, N.R. was interested only in caring for L.Y.H., and had no interest in the other two girls.

Due to his incarceration, R.H. participated in the trial by telephone, which enabled him to hear the portions of the trial proceedings that involved him. In particular, although he was incarcerated in a federal prison located outside of New Jersey, arrangements were made through the prison warden to transfer R.H. to a facility that would enable him to listen to the proceedings. Ultimately, R.H. did not testify.

D. The judge's opinion and order

On September 15, 2009, in both an oral decision and a fifty-six page written opinion, Judge David B. Katz concluded the Division had satisfied, by clear and convincing evidence, the four-prong statutory standard of N.J.S.A. 30:4C-15.1(a) for the termination of parental rights for L.C., I.S. and R.H. The judge signed an order to that effect the same day. On appeal, each of the three parents asserts that the trial judge erred by finding that DYFS satisfied the statutory standard for termination of parental rights. L.C. presents two additional arguments: 1) the psychological evaluations conducted by Drs. Brown and Santina were given excessive weight; and 2) the judge's findings of fact fall short of the requirements of Rule 1:7-4.

II.

"[P]arents have a constitutionally-protected, fundamental liberty interest in raising their biological children, even if those children have been placed in foster care." N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 166 (2010) (quoting In re Guardianship of J.C., 129 N.J. 1, 9 (1992)). However, parental rights are not absolute; the State also has a "parens patrie responsibility to protect the welfare of children" in situations where the child's parent is unfit or the child has been neglected or harmed. Id. at 166 (citation omitted).

DYFS is authorized to initiate a petition to terminate parental rights on the grounds of the "best interests of the child" if the following standards are met:

(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. [N.J.S.A. 30:4C-15.1(a).]

The four prongs of the best interests standard "are not discrete and separate, but relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." I.S., supra, 202 N.J. at 167 (citations omitted). When the child's biological parents resist termination of their parental rights, the "cornerstone of the inquiry" is not whether they are fit, but whether they "can cease causing their child harm." Ibid. (quoting In re J.C., supra, 129 N.J. at 10). DYFS has the burden to prove "that the natural parent has not cured the initial cause of harm and will continue to cause serious and lasting harm to the child." In re J.C., supra, 129 N.J. at 10 (citation omitted).

Given a parent's constitutional right to raise his or her own child, the burden of proof required before that right can be terminated is high — DYFS must prove each of the four prongs by "clear and convincing evidence." I.S., supra, 202 N.J. at 168 (citing N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 612 (1986)). This standard of proof is met where the evidence presented is "so clear, direct and weighty and convincing as to enable the factfinder to come to a clear conviction, without hesitancy, of the precise facts in issue." Ibid. (quoting In re Seaman, 133 N.J. 67, 74 (1993)).

Appellate review of a trial court's decision to terminate parental rights is limited. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). In general, the trial court's findings will not be disturbed on appeal if they are supported by "substantial credible evidence in the record." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (citing In re J.N.H., supra, 172 N.J. at 472); see also Cesare v. Cesare, 154 N.J. 394, 412 (1998).

A. The first prong

To satisfy the first prong of N.J.S.A. 30:4C-15.1(a), the Division must prove that the "child's safety, health or development has been or will continue to be endangered by the parental relationship." In re Guardianship of K.H.O, 161 N.J. 337, 347 (1999). "A parent's withdrawal of solicitude, nurture and care for an extended period of time is itself a harm that endangers the health and development of the child." In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999).

Courts "need not wait to act until a child is actually irreparably impaired by parental inattention or neglect," id. at 383, but that admonition must be "understood, considered, and applied in the context of a clear record showing a pattern of parental inaction and neglect, amounting to unfitness." N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J.Super. 576, 615 (App. Div. 2006), certif. denied, 192 N.J. 68 (2007).

We begin our analysis of the first prong by turning to the judge's findings concerning L.C. He concluded that L.C. had harmed the children because they were "living in deplorable conditions, suffered from head lice and were exposed to their mother's relationship with a 14-year-old minor." He also determined that J.L.S. was not registered for, or attending, school. L.C. argues that the children were removed solely due to untreated lice and failure to attend school, yet the judge failed to make findings of fact concerning how long either of those conditions had existed and improperly terminated her parental rights based on these easily corrected situations. Relying on N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 605 (1986), she argues that a showing of physical abuse or serious emotional injury was required to satisfy the first prong. We do not agree.

L.C. reads the governing caselaw far too narrowly. As the Supreme Court observed in N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 289 (2007), the inquiry under the first prong focuses on the "cumulative effect . . . of harms arising from the home life," and as the Court observed earlier in K.H.O., supra, 161 N.J. at 348, on the harms "arising from the parent-child relationship over time." Thus, contrary to L.C.'s contention, the inquiry under the first prong is not limited to the exact circumstances that led to the removal of the children in the first instance.

L.C. fails to acknowledge that in addition to the judge's findings about head lice and school attendance, he found that the family was living in "deplorable" conditions that included the front door being off the hinges and numerous cigarette butts on the floor near the mattress upon which the children slept. He further found that the children were exposed to their mother's relationship with a fourteen-year-old. On one occasion, while L.C. was engaging in that liaison, J.L.S. and S.M.A. were outside playing in the street without supervision. L.C. does not contest any of these findings. We are satisfied, as was the trial judge, that not enrolling a child in school, forcing the children to live in an apartment that essentially had no front door, exposing the children to their mother's sexual abuse of a fourteen-year-old child, and leaving them unsupervised while that sexual relationship was occurring, in the aggregate established that the children's safety and emotional health were endangered by their mother's conduct, thereby satisfying the first prong.

We turn next to I.S. and R.H., both of whom were incarcerated when their respective children were removed from L.C.'s care and have been absent for the vast majority of their daughters' lives. Relying on Matter of L.A.S., 134 N.J. 127, 137 (1993), both argue that the mere fact of their incarceration was not sufficient to terminate their parental rights. That argument is only partially correct because it ignores the Supreme Court's additional holding that a lengthy period of incarceration can be tantamount to "abandonment" if the incarceration renders the parent unable to perform the "regular and expected functions of care and support" of his or her child. Ibid.

In deciding whether a parent's lengthy incarceration constitutes abandonment that justifies the termination of parental rights, the judge must consider the following factors: (1) the relationship that existed prior to and after the incarceration; (2) financial support; (3) the care, love, and protection the parent provides; (4) contact prior to incarceration; and (5) the efforts at contact that occurred during incarceration. Id. at 137-38. The length of the custodial term is of overwhelming importance. Id. at 140.

We agree with I.S. and R.H. that the judge did not specifically address the L.A.S. factors, instead simply stating the fathers' dates and lengths of incarceration followed by a conclusion that they had "not been able to love, support or nurture their children." We discern from the judge's findings a conclusion that in light of the length of each father's incarceration, the lack of any financial support provided, and the lack of any contact during incarceration, that each man had abandoned his daughter, or daughters, within the meaning of L.A.S., supra, 134 N.J. at 137-38. Thus, we reject I.S.'s and R.H.'s arguments that the judge focused exclusively on the fact of their incarceration. The record demonstrates otherwise and amply supports the judge's conclusion that both I.S. and R.H. failed to supply their children with the love, support or protection that fatherhood requires. We thus reject their arguments that the Division failed to satisfy the first prong of the termination statute.

We likewise reject R.H.'s argument that the judge could not make a finding on the effects of incarceration on L.Y.H. in the absence of a bonding evaluation. R.H.'s reliance on our opinion in New Jersey Division of Youth & Family Services v. S.A., 382 N.J.Super. 525 (App. Div. 2006), is misplaced. There, we reversed the termination of parental rights based upon a period of incarceration lasting less than one year where no bonding evaluation was conducted. Id. at 533. While the lack of a bonding evaluation was one factor that contributed to our reversal of the termination of the mother's parental rights, it was far from the only factor. Ibid. Here, unlike the mother in S.A., R.H., upon his release, will have been incarcerated for eighty percent of his daughter's life, and has been incarcerated since she was two years old. We agree with Dr. Santina's conclusion that a bonding evaluation was not necessary to establish that R.H. was absent from his daughter's life and therefore failed to provide her with the love, support and nurture that is required by the first prong.

B. The second prong

The second prong requires the Division to establish by clear and convincing evidence that the parent has been unwilling or unable to eliminate the harm facing the child. K.H.O., supra, 161 N.J. at 352. The record amply supports the judge's conclusion that L.C.'s refusal to complete the substance abuse and mental health counseling the Division provided presents a continued risk of harm to her three daughters. L.C. tested positive for illegal substances on numerous occasions over a ten-year period. Nonetheless, she obviously lacks any awareness that her failure to complete a drug treatment program has had, and will continue to have, a negative impact on her parenting ability. Dr. Santina's unrefuted testimony establishes that because L.C. had "not addressed the underlying psychological and behavioral issues that are part of an addictive pattern," L.C. was at "much higher risk for relapse even if [she is] currently not using." L.C.'s refusal to obtain mental health and drug treatment — despite the sustained and repeated offers of such treatment by the Division — demonstrates an unwillingness, or an inability, to ameliorate the harm facing her children, thereby satisfying the second prong.

As to I.S., he too was unwilling to obtain drug treatment. Moreover, he was never able to offer his daughters a stable home and had no plan for where he would reside with them were he to be reunited with his daughters. Even though his nearly five-year period of incarceration had prevented him from establishing a relationship with his daughters, he was unwilling to rectify that harm because he failed to appear for visitation, which led the Division to deem his visitation forfeited. Thus, the judge correctly determined that I.S. was unwilling to address the dual harms facing his two daughters, his own drug abuse and his continued withdrawal from their lives, thereby satisfying the second prong.

We turn to R.H., whose continued incarceration until 2016 led the judge to conclude that R.H. would be unable to eliminate the continuing harm to L.Y.H. that results from his complete and total absence from her life. Given the length of R.H.'s sentence, it is beyond dispute that he will be unable to provide a safe and stable home for his daughter at any time in the near future, thereby satisfying the second prong.

We reject R.H.'s contention that his parental rights were adversely affected by the judge's failure to afford due weight to the substantial evidence of the rehabilitation of L.C. As we have already noted, the judge's finding that L.C. had not achieved rehabilitation or stability were amply supported by the record. We therefore reject R.H.'s claims pertaining to the second prong.

C. The third prong

The third prong has two elements, requiring the Division to establish both that it provided an array of services to the parent and that it considered alternatives to termination of parental rights. D.M.H., supra, 161 N.J. at 390. As the record demonstrates, DYFS offered a wide array of services to L.C. despite her obvious disinterest. Not only did DYFS offer treatment at Johnson & Associates, The Bridge, UMDNJ and with Pyronneau, but it also scheduled L.C. for parenting and GED classes, provided bus passes for various evaluations, and referred L.C. to housing, food and social service agencies. The Division also considered the three people L.C. offered as alternatives to termination of her parental rights, but as we have discussed, none of the three responded to the Division's inquiries. Thus, the record fully supports the judge's conclusion that DYFS satisfied the third prong, as it provided a broad array of services and considered alternatives to the termination of her parental rights.

As to I.S., the record demonstrates that he too was offered an array of services by the Division. DYFS notified him of its willingness to provide drug treatment and visitation with his two daughters. I.S. does not specify what other services the Division should have extended to him, other than asserting that services should have been extended to him while incarcerated, a contention that we rejected in S.A., supra, 382 N.J. Super. at 535-36 (recognizing the "difficulty and likely futility of providing services to a person in custody"). We thus reject I.S.'s claim that the Division did not provide him with sufficient services. We likewise agree with the judge's conclusion that the Division considered alternatives to the termination of I.S.'s parental rights, as the agency interviewed the one person I.S. offered, namely his mother, who was ruled out because she worked long hours and had insufficient space for the three children. We thus reject I.S.'s argument that the Division failed to satisfy the third prong.

Last, we turn to R.H., whose arguments respecting the third prong are limited to his claim that the Division did not provide him with adequate services because it did not consider his sister-in-law, N.R., as a relative placement for his daughter, L.Y.H. We cannot fault the Division for ruling out N.R. as she was not a relative and apparently had no interest in assuming custody of the other two girls. We also cannot fault the Division for ruling out R.H.'s sister, L.H., in light of her lack of interest in J.L.S. and S.M.A. Both Dr. Brown and Dr. Santina testified that the girls were very attached to each other and it would not be in their best interest to separate them.3 Thus, we reject R.H.'s claim that the third prong was not satisfied.

D. The fourth prong

Finally, DYFS must show that the termination of parental rights will not do more harm than good. The question under this prong is "[W]hether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with her natural parents than from the permanent disruption of her relationship with her foster parents." K.H.O., supra, 161 N.J. at 355. "[W]here it is shown that the bond with the foster parents is strong and, in comparison, the bond with the natural parent is not as strong, that evidence will satisfy the requirements of N.J.S.A. 30:4C-15.1(a)(4)." Id. at 363. "Inherent in the fourth factor is [a recognition] that a child has a `paramount need for a permanent and defined parent-child relationship' . . . as well as a deep need for a nurturing adult, commonly termed the `psychological parent.'" New Jersey Div. of Youth & Family Servs. v. C.S., 367 N.J.Super. 76, 119 (App. Div.) (quoting J.C., supra, 129 N.J. at 25), certif. denied, 180 N.J. 456 (2004).

With regard to L.C., the judge found that Brown's and Santina's "unrebutted testimony" established that the children were not bonded to her, and concluded that the children are bonded to their foster parents. The judge found that if the bond with the foster parents were to be broken, the resulting harm to the children would be great and enduring and L.C. would not be able to mitigate that harm, whereas the foster parents would be able to mitigate any impact on the girls if their mother's rights were terminated.

Although L.C.'s point IV discusses the general legal principles of the fourth prong, she states only that the judge "failed conspicuously to adhere to the foregoing precepts" without explaining specifically how the judge erred. L.C. fails to make a specific argument based on her circumstances. Consequently, her point IV requires no further discussion. See Miller v. Reis, 189 N.J.Super. 437, 441 (App. Div. 1983).

The record amply supports the judge's conclusion that the termination of L.C.'s parental rights would not do more harm than good, especially in light of both psychologists' opinions that if the girls' bond with their foster parents were to be broken, the resulting harm would be both significant and permanent, and that the harm from a failed placement with their mother, if reunification were to be attempted, would be substanial.

We likewise reject L.S.'s contention that the judge erred by giving undue weight to the expert opinion offered by Drs. Brown and Santina. L.C. provides no authority to support her contention that a sixty-minute bonding evaluation is insufficient to satisfy the requirements of the fourth prong. Nor are we persuaded by the "Cautionary Statement" in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) that the legal definition of mental disease might be different from the clinical definitions found in DSM-IV. The cautionary statement to which L.C. points does not prevent a judge from relying on a diagnosis based on DMS-IV when determining whether a person can safely parent his or her children. Nothing in the DSM-IV Cautionary Statement supports L.C.'s argument that the judge erred by giving undue weight to the expert opinions offered by Drs. Brown and Santina.

L.C.'s remaining claim, that the judge's findings of fact were not sufficiently specific to satisfy the requirements of Rule 1:7-4, lacks sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(A) and (E). We thus reject L.C.'s argument that the fourth prong was not satisfied.

We have carefully considered the arguments of I.S. and R.H. concerning the fourth prong in light of the record and applicable law and are satisfied that their respective arguments lack sufficient merit to warrant discussion in a written opinion. Ibid.

Affirmed.

FootNotes


1. By order of November 23, 2009, we consolidated the three appeals.
2. S.M.A. bears the surname of a man whom I.S. believed to be S.M.A.'s father; however, the paternity testing conducted during the pendency of these proceedings established that I.S. was actually her father.
3. The Supreme Court has recognized the importance of maintaining the sibling relationships, which provide a "sense of stability in the lives of neglected children placed outside of their natural homes." , , 561 (2006).

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