RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5542-08T4

A-5543-08T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

B.M. and T.B.,

Defendants-Appellants.

_________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF Z.T.T.B., a minor-respondent.

_______________________________________________________

April 29, 2010.

Argued March 16, 2010 - Remanded

R

November 16, 2010

Reargued October 26, 2010 - Decided

Before Judges Skillman, Yannotti and Espinosa.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-174-08.

Carol Willner, Designated Counsel, argued the cause for appellant, B.M. (Yvonne Smith Segars, Public Defender, attorney; Ms. Willner, on the brief).

Anthony J. Van Zwaren, Designated Counsel, argued the cause for appellant, T.B. (Yvonne Smith Segars, Public Defender, attorney; Mr. Van Zwaren, on the brief).

Emily Weisslitz, Deputy Attorney General, argued the cause for respondent, New Jersey Division of Youth and Family Services (Paula T. Dow, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Weisslitz, on the brief).

James A. Louis, Deputy Public Defender, argued the cause for minor-respondent, Z.B. (Yvonne Smith Segars, Public Defender, Law Guardian, attorney; Christopher A. Huling, Assistant Deputy Public Defender, of counsel and on the brief).

PER CURIAM

This termination of parental rights appeal is back before us after completion of the remand we ordered in our prior opinion. N.J. Div. of Youth & Family Servs. v. B.M., 413 N.J. Super. 118 (App. Div. 2010). In that opinion we concluded that the trial court had committed reversible error in admitting into evidence the part of Dr. Uvay Mehta's report which concluded that Z.B. suffers from fetal alcohol syndrome. Id. at 126-34. Therefore, we reversed the judgment terminating parental rights and remanded the case for rehearing and reconsideration. Id. at 134. Because the sole ground for reversal was the erroneous admission of Dr. Mehta's report, we indicated that the parties could rely on the record of the original trial on remand, except for Dr. Mehta's report and any testimony based on that report. Ibid. We also indicated that although we assumed the primary focus of any new evidence presented on remand would be directed at whether Z.B. suffers from fetal alcohol syndrome, the parties were not precluded from "offering other relevant evidence." Ibid.

Dr. Mehta testified at the continuation of the trial on remand regarding the alleged fetal alcohol syndrome suffered by Z.B. However, it became evident during the course of that testimony that his conclusions regarding this subject in the report erroneously admitted into evidence at the original trial were based on what had been told to him by others. Consequently, the parties entered into a stipulation that any references in the record to fetal alcohol syndrome would be stricken and that the Division of Youth and Family Services (DYFS) would not rely upon Z.B.'s alleged fetal alcohol syndrome as a basis for the termination of defendants' parental rights.

Testimony was heard regarding other subjects, including in particular testimony by T.B. and Nicole Drake, the director of a drug rehabilitation program in which T.B. participated, concerning T.B.'s continued sobriety during the period between the original trial and the continuation of the trial on remand. Dr. Elizabeth Smith, a psychologist appointed by the court to conduct an independent evaluation of the parties, also testified. Consequently, the record before us on this appeal consists of the evidence presented at the original trial, except for Dr. Mehta's report and any testimony based on that report, as supplemented by the evidence presented at the continuation of the trial on remand.

Z.B. was born on March 9, 2006, and is now four-and-a-half years old. As a result of his mother T.B.'s long history of drug and alcohol abuse, neglect of her nine other children, admitted use of cocaine during her pregnancy with Z.B., and positive test for cocaine use two days after his birth, DYFS took custody of Z.B. before his discharge from the hospital after filing for an emergency "Dodd Removal."1 Since that removal, Z.B. has never been in the custody of T.B. or his father, B.M.

In January 2007, DYFS placed Z.B. in the care of M.B., with whom he has remained for the last nearly four years. M.B. also has an eighteen-year-old son, K.B., who lives with her. The bonding between Z.B. and both M.B., who wishes to adopt him, and K.B., will be discussed in more detail later in this opinion.

T.B. is a forty-one-year-old woman, who became addicted to cocaine approximately twenty years ago. She has ten children, including Z.B. As a result of T.B.'s addiction, five of her children were born drug exposed.

T.B. has not independently raised any of her children. As of the time of the original trial, none of T.B.'s other children were in her care: one was residing with the child's father; six were under kinship legal guardianships with T.B.'s mother and other relatives; and two had reached the age of majority. As of the time of the continuation of the trial on remand, one of T.B.'s daughters, who had previously been in her father's custody without DYFS's involvement and was then fifteen years old, was in T.B.'s care. In addition, T.B.'s seven-year-old son, who was under DYFS's legal custody and the physical custody of an aunt, was temporarily residing with T.B. over the summer. All of T.B.'s other unemancipated children continued to be under the care of relatives.

DYFS had been involved with T.B. on a regular basis for a period of fifteen years before Z.B.'s birth. On May 29, 1991, DYFS received a referral from her first child's school that the two-year-old was playing with a bottle of pills and that T.B. appeared to be under the influence of drugs. In 1992, DYFS received a second referral after T.B.'s third child was born with cocaine in his system. In 1993, DYFS received a third referral for neglect after the birth of T.B.'s fourth child when the hospital reported that both mother and child tested positive for cocaine and that T.B. had not received prenatal care. Between February 23, 1999 and June 3, 2002, DYFS received four additional neglect referrals, including referrals resulting from the births of two additional drug exposed children on September 9, 2000, and on June 1, 2002. DYFS substantiated all of these referrals, verifying T.B.'s neglect of her children. As a result of these substantiated neglect referrals, on December 19, 2002, the Family Part granted DYFS's motion to have the seven children who were then living with T.B. placed under DYFS's supervision and placed each child with a kinship legal guardian.

B.M., who is fifty-one years old, is the father of T.B.'s five youngest children, including Z.B. He also is the father of five other children, born of other women, who are now emancipated or deceased. He has not played a significant role in raising any of his children, but has provided support. B.M. does not drink or consume drugs. However, he has a substantial criminal record, which includes convictions for robbery, receiving stolen property, and aggravated assault. He was incarcerated for more than ten years for the aggravated assault.

The most significant witness at the continuation of the trial on remand was Dr. Smith, the psychologist appointed by the trial court to evaluate T.B., B.M., Z.B. and Z.B.'s foster mother, M.B. Dr. Smith prepared a comprehensive report that was admitted into evidence and then testified concerning her report. Her opinions were based not only on her clinical examinations of T.B., B.M. and M.B., but also DYFS's record and the reports of the psychologists who testified at the original trial. In addition, Dr. Smith observed Z.B. interact with T.B., B.M. and M.B.

Dr. Smith expressed the opinion that Z.B. suffers from attention deficit hyperactivity disorder, which "negatively impacts upon his behavior, social skills, and ability to learn." He is currently prescribed Resperadol and attends a special education school due to his behavioral problems. With the benefit of the medication and special education school, he is making "steady progress."

Dr. Smith concluded that M.B. is Z.B.'s "psychological parent" and that Z.B. is also "deeply attached" to her son, K.B., who he considers to be his older brother. Dr. Smith concluded that the removal of Z.B. from M.B. and placement with T.B. and B.M. "would cause severe and long lasting trauma to a child whose special needs make him more vulnerable than other children."

Dr. Smith stated that T.B. "displayed histrionic and dependent personality features" and that B.M. "presented with histrionic and narcissistic personality features." Dr. Smith also concluded that T.B. and B.M. "did not present as a couple with an honest and mature relationship," and that she had concerns about the stability of their relationship. In addition, Dr. Smith noted that T.B. and B.M. had "abdicated" responsibility for the care of all their children to relatives. She further concluded that T.B. and B.M. did not appreciate Z.B.'s special needs or "how profound his attachment is to [M.B.]." Consequently, T.B. and B.M. would not "be able to mitigate the harm [Z.B.] would suffer in being separated from [M.B.]." For all these reasons, it was Dr. Smith's opinion that Z.B.'s "best interests would be served by achieving permanency via adoption by [M.B.]."

In its oral opinion reaffirming the decision to terminate defendants' parental rights to Z.B., the trial court heavily relied upon Dr. Smith's report and testimony. Based on that evidence as well as all the other evidence presented at the original trial and further trial proceedings after the remand, the trial court found that DYFS had established the statutory grounds for the termination of parental rights.

In her supplemental brief, T.B. presents the following arguments:

I. THERE WAS A CHANGE IN CIRCUMSTANCES

IN THE MOTHER'S RECOVERY THAT HAS

REMOVED THE SOURCE OF HARM TO THE

CHILD AND SHOULD SERVE AS GROUNDS

FOR VACATING THE JUDGMENT TERMINATING

PARENTAL RIGHTS.

II. THE COURT ERRED IN NOT EXAMINING

WHETHER PRONG THREE HAD BEEN

SATISFIED WITH REGARD TO SHOWING

THAT DYFS MADE REASONABLE EFFORTS

TO PROVIDE SERVICES TO THE PARENTS.

In his supplemental brief, B.M. presents the following arguments:

I. ON REMAND THE TRIAL COURT DID NOT

ESTABLISH BY CLEAR AND CONVINCING

EVIDENCE THAT IT IS NECESSARY TO

TERMINATE B.M.'S PARENTAL RIGHTS

IN ORDER TO PROTECT Z.B.'S BEST

INTERESTS.

II. THE TRIAL COURT ERRED IN FINDING

THAT A STRONG BOND WITH THE FOSTER

FAMILY UNDER THE FOURTH PRONG

ALONE IS SUFFICIENT TO TRUMP THE

REMAINING PRONGS OF THE BEST

INTEREST TEST IN N.J.S.A. 30:4C-15.1a.

III. THE REMAND COURT'S FINDING THAT

DYFS MET PRONG 1 OF N.J.S.A.

30:4C-15.1a BY CLEAR AND CONVINC-

ING EVIDENCE WAS NOT SUPPORTED BY

THE EVIDENCE.

We reject these arguments and affirm the termination of T.B.'s and B.M.'s parental rights with respect to Z.B. substantially for the reasons set forth in the trial court's oral opinion.2 We add the following supplemental comments.

N.J.S.A. 30:4C-15.1(a)(1) requires DYFS to prove by clear and convincing evidence that the "child's safety, health or development has been or will continue to be endangered by the parental relationship." Under this standard for the termination of parental rights, a parent's abuse or neglect of his or her other children may provide sufficient evidence that a newborn child is also endangered by the parental relationship. See N.J.S.A. 9:6-8.46(a)(1). Thus, in New Jersey Division of Youth and Family Services v. A.W., 103 N.J. 591 (1986), DYFS brought an action for the termination of a couple's five children, including a newborn. See id. at 598. All of DYFS's proofs related to the four older children. See id. at 616 n.14. However, despite the absence of any evidence of abuse or neglect of the newborn, the Court concluded that "it would make no sense to wait until he has been injured to decide the issue." Ibid.

T.B. does not challenge the sufficiency of the evidence to establish that Z.B.'s "safety, health or development has been or will continue to be endangered by the parental relationship." N.J.S.A. 30:4C-15.1(a)(1). In any event, her neglect of her other children and continued substance abuse during her pregnancy with Z.B. provided a sufficient foundation for this finding. At the time of Z.B.'s birth, none of T.B.'s children were under her care, and most had not been in her care for more than a couple of years. DYFS also had substantiated a substantial number of allegations of neglect against T.B. during the fifteen years before Z.B.'s birth. Therefore, Z.B. would have been seriously endangered if DYFS had left him in T.B.'s care and custody after his birth.

Although B.M. challenges the sufficiency of DYFS's proofs under N.J.S.A. 30:4C-15.1(a)(1) as to him, we are satisfied DYFS showed that Z.B.'s safety, health or development would be endangered by the parental relationship with B.M. Neglect may consist of a parent's failure to take any action to ameliorate the effect of the abuse or neglect of a child by the other parent. See In re Guardianship of D.M.H., 161 N.J. 365, 371-72 (1999). B.M. had knowledge of T.B.'s drug addiction as evidenced by two of his previous three children with T.B. being born drug exposed, but he took no steps during T.B.'s pregnancy with Z.B. to protect Z.B. from the effects of that addiction. Moreover, like T.B., B.M. did not actively care for any of his prior children with T.B., allowing them to be placed in the immediate care of others. Thus, like the parent in D.M.H. B.M.'s "withdrawal of . . . [parental] solicitude, nurture, and care" for his other children can be imputed to Z.B. and is considered "in itself a harm that endangers the health and development of the child." 161 N.J. at 379.

The second showing that DYFS must make to justify the termination of parental rights is that "[t]he 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." N.J.S.A. 30:4C-15.1(a)(2). Pertinent to this case, "[s]uch 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." Ibid.

In arguing that DYFS failed to establish this precondition for the termination of parental rights, both T.B. and B.M. rely upon the fact that T.B. successfully completed the drug rehabilitation program at Integrity House and has now been drug-free for two years. T.B. also relies upon the fact that she has had a part-time job for the last two years and that she now has custody of her fifteen-year-old daughter.

N.J.S.A. 30:4C-15.1(a)(2) "focuses on the parent's ability to overcome the harm to the child" from the parent's past abuse or neglect. In re Guardianship of K.H.O., 161 N.J. 337, 352 (1999). This precondition for the termination of parental rights can be satisfied by showing that "there is clear and convincing evidence that the child will suffer substantially from a lack of stability and a permanent placement and from the disruption of [his] bond with [a] foster parent[]." Id. at 363. Thus, this precondition may be satisfied if a natural parent fails to fully appreciate the child's needs or is unwilling to take steps to mitigate the child's loss of his or her foster parent. See N.J. Div. of Youth and Family Servs. v. M.M., 189 N.J. 261, 283-85 (2007).

The trial court found that DYFS had established this precondition for the termination of T.B.'s and B.M.'s parental rights to Z.B. Dr. Smith's report and testimony provided the required evidential support for this finding. It is questionable whether T.B. and B.M. are now capable of providing a safe and stable home for any young child, and in view of the evidence of Z.B.'s irrevocable bonding with M.B. and K.B. as well as T.B.'s and B.M.'s inadequate appreciation of Z.B.'s profound attachment to M.B. and special needs, the record clearly demonstrates that Z.B. would suffer "serious and enduring emotional or psychological harm" if he were separated from M.B. N.J.S.A. 30:4C-15.1(a)(2).

The third showing that DYFS must make to justify the termination of parental rights is that "[DYFS] 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." N.J.S.A. 30:4C:15.1(a)(3). T.B. argues that the trial court failed to address this requirement in its opinion following our remand. However, the court noted in its remand opinion that this requirement had been addressed in its original opinion and that no additional evidence had been presented on the remand that required further discussion. We agree. We are also satisfied, substantially for the reasons set forth in the trial court's original opinion, that DYFS satisfied this requirement.

The final showing that DYFS must make to justify the termination of parental rights is that "[t]ermination of parental rights will not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4). T.B. and B.M. correctly point out that parental rights cannot be terminated based solely on a showing that the child would suffer serious psychological or emotional harm as a result of his or her removal from the care of a foster parent with whom the child is deeply bonded. See N.J. Div. of Youth and Family Servs. v. C.M., 202 N.J. 145 (2010); N.J. Div. of Youth and Family Servs. v. D.M., 414 N.J. Super. 56 (App. Div. 2010). Parental rights may be terminated only if DYFS establishes each of the four preconditions for the termination of parental rights set forth in N.J.S.A. 30:4C-15.1(a). C.M., supra, 202 N.J. at 169.

We have previously concluded that the trial court correctly ruled that DYFS had established the first three of those preconditions. Consequently, this is not a case in which DYFS seeks to terminate parental rights based solely on a showing of bonding between a foster parent and the child who is the subject of a termination proceeding. When DYFS has made the other showings required for the termination of parental rights, a child's bonding with a foster parent, and the foster parent's willingness to provide the stability that would be provided by adoption, may be significant factors in determining whether "termination will . . . do more harm than good." N.J.S.A. 30:4C-15.1(a)(4); see M.M., supra, 189 N.J. at 291-92.

The record in this case provides overwhelming support for the trial court's finding that there is deep bond between Z.B. and M.B. and that Z.B. would suffer serious and enduring emotional or psychological harm if he were separated from her. Moreover, M.B. wants to adopt Z.B. Therefore, this is a case in which "termination of . . . parental rights [will] secure for [Z.B.] a safe, loving home and the care of a stable adult who is intent on assuring the child's psychological and physical well-being." N.J. Div. of Youth & Family Servs. v. T.S., ___ N.J. Super. ___, ___ (App. Div. 2010) (slip op. at 28).

Moreover, there is "clear and convincing evidence that the parent[s'] actions or inactions substantially contributed to the forming of [Z.B.'s] bond" with M.B. and therefore "the harm [that would be] caused to the child from severing that bond rests at the feet of the parent[s]." D.M., supra, 414 N.J. Super. at 80. At the time of Z.B.'s birth, T.B. and B.M. were unable to care for him and acquiesced in his removal by DYFS and placement with foster parents. Neither parent made any effort to obtain custody of Z.B. until January 2008, when B.M. notified a DYFS caseworker that he wished to obtain custody, which was nearly two years after Z.B.'s birth and a year after DYFS initiated permanency proceedings and placed Z.B. in M.B.'s care.

1 See N.J.S.A. 9:6-8.29, -8.30.

2 We note that that opinion contains several confusing references to Rule 4:50. This rule governs a motion for relief from a judgment on any of the grounds set forth in Rule 4:50-1. Because our prior opinion reversed the original judgment terminating parental rights, there was no need for T.B. or B.M. to seek relief from that judgment and Rule 4:50 had no applicability to the proceedings on remand that we ordered. However, notwithstanding the trial court's erroneous references to Rule 4:50, it ultimately concluded that DYFS had established each of the four grounds for termination of parental rights set forth in N.J.S.A. 30:5C-15.1(a) by clear and convincing evidence. Therefore, we conclude that the court's references to Rule 4:50 did not affect its findings supporting the termination of parental rights.