*1 termination as of plans the date on which it abandoned reunification, (2) that A.C. comply failed the volun- tary plan. custody

CLIFFORD, J., concurring in result. For reversal and remandment —Chief Justice WILENTZ CLIFFORD, HANDLER, POLLOCK, O’HERN, and Justices GARIBALDI STEIN—7.

Opposed—None.

608 A.2d 1327 K.L.F., IN THE MATTER OF THE GUARDIANSHIP A OF MINOR. Argued December 1991—Decided June 1992. *2 Carlton, Lauren General, Fleischer Deputy Attorney argued appellant Jersey cause for New Division of Youth and (Robert Tufo, Attorney Family J. Del Services General of New Silkowitz, Jersey, attorney; Andrea M. Attorney Assistant General, counsel).

Carol Ann Personnette argued appellant for cause Law Personnette, Guardian for & attorneys). K.L.F. {Personnette Meyer Grace T. argued respondent. the cause for Cecilia M. Zalkind submitted brief on behalf of amicus (Cecilia curiae Association M. Children of Jersey New Zalkind, attorney; Cecilia M. Shirley Zalkind Brand- man, brief). on counsel and

Carl C. Bowman on amicus curiae New Jersey behalf *3 Advisory joined State Child Placement in Council the brief by amicus curiae submitted for Association Children of New Jersey. opinion

The of the Court was delivered HANDLER, J. appeal

This the raises same issues and invokes the same case, In re concerns the companion as N.J. 608 A. 129 2d (1992). case, 1312 voluntarily this the mother placed her newborn infant the Family with Division of Youth and Services (DYFS or Division agency) temporary or for custody and care. Following long period a separation of of mother and child the brought Division action parental an rights terminate in to prepare mother order for permanent placement the child. The trial court refused to terminate the mother’s parental rights, concluding that the mother had not abandoned child, and, further, the child and was fit to raise that the child would not suffer being harm in removed from her foster returned her mother. The Appellate granted Division affirmed. The petition Court for certification. 127 N.J. (1991). A.2d

I having gang- been K.L.F. after pregnant B.F. with became Jersey to have her to New City. in York She came raped New a child, dangerous place too believing City York was New healthy daugh- to a gave She birth in which to raise children. Bergen County Hospital November ter at Hackensack 1988. birth, gave B.F. was homeless. Unable

At the time she a daughter she entered into for herself and find shelter of Youth and custody agreement with the Division temporary temporary placement of Family to the Services consented N.J.S.A. 30:4C-11. agency ar- K.L.F. in foster care. Shelter, facility that did ranged Bergen B.F. to at the for live infants or not allow children. during DYFS

B.F. with K.L.F. twice December visited visit, she came a third in Hackensack. When B.F. offices handling the social worker to see K.L.F. because was unable shelter, thereafter, Shortly B.F. left the case sick. was permanent housing. City in New search returned to York followed, B.F. had neither year half that During the and a At home, friends. shelters nor a and lived work phones in trial, pay DYFS from that she called she testified during period was unable times but New York numerous K.L.F.’s case. who knew about to reach an worker home lived in the In the meantime K.L.F. agencies and various State sent letters to

DYFS caseworkers *4 with B.F. phone unable to communicate made calls but were placed, had been 1990, eighteen after K.L.F. first May months and moved permanent needed a home concluded that she DYFS she parents with whom pre-adoptive set of her to a new currently lives. new case later B.F. reached K.L.F.’s

Less a month than her so that she DYFS, requested see child worker custody. informed B.F. that eventually regain DYFS might bringing a legal guardianship was action for and that she would have wait for a court to decide whether visitation should occur. DYFS also told B.F. that she would have to release undergo psychiatric medical information and later eval- permitted. uation before agen- visitation could be Because the cy child, refused to her her allow to visit B.F. concluded that go she had to to court to obtain visitation. She traveled from Bergen County Staten Island to the Courthouse in Hackensack to file pro Although Bergen County se motion for visitation. venue, was the employees correct at the courthouse sent her to County the Passaic finally Courthouse in Paterson. When B.F. Paterson, permitted arrived in she was not to file her motion there Bergen County. and was directed to return to Frustrat- ed, B.F. returned to having Staten Island without filed a motion for visitation or otherwise obtained assistance. living situation,

B.F. thereafter did find a stable signing a three-year apartment lease on an in Staten Island where she daughter. Nonetheless, 23, now lives with another on March petitioned DYFS guardianship and termination of parental rights on based abandonment and the best interests of the child. N.J.S.A. 30:4C-15. At time K.L.F. had been living with her current foster for ten months. DYFS concluded that K.L.F. had moving bonded with them and that again would cause her and emotional harm. parties

At trial both chronicling introduced evidence foregoing primarily events on the issue of whether B.F. had addition, abandoned her child. In parties presented both expert testimony relating parental to B.F.’s fitness and to harm the resulting child separation from her foster

II legal framework within which the issues must be resolved is set forth in In re .2d N.J. 608 A case, mother, B.F., 1312. inAs voluntarily agreed to place her temporary custody child of DYFS. Under the

37 scheme, place decision to a child voluntary-placement the initial guardian. parent or solely with the child’s in foster care rests However, providing foster care services DYFS actually before endangered is determine that a child’s welfare must itself through either financial child’s cannot be met that the needs family or friends. 30:40 placement or N.J.S.A. assistance placed who have been guardianship over children 11. To obtain care, bring to terminate the agency must an action in foster (section 15). In parents’ rights under 30:4C-15 natural N.J.S.A. case, c and d of section proceeded under subsections this DYFS 15, respectively when guardianship it seek which authorize parent has of the child and when the that is in the best interests Guardianship in an cannot be awarded the child. abandoned itself pursuant 15 unless the court brought action to section under it in the child’s best interest N.J.S.A. determines that is 34:4C-20. explained by this statutory standards were

Those broad Family v. Youth and Services Jersey Court New Division of (1986). A.W., 591, .2d We there noted that 512 A N.J. rights constitutional of statutory must balance the scheme rights of their natural-bom against the interests and 599-60, requires .2d 438. The statute at 512 A children. Id. child’s that the to make an affirmative demonstration DYFS parental if “substantially prejudiced” interests will be best 603, at 512 A .2d 438. That rights terminated. Id. are not convincing ordinarily requires evidence clear demonstration development health or impairment of the child’s of serious rectify inability or parent, the caused delay harm, effects of the detrimental overcome that kind child, placement and the permanent ab arranging for parental rights. to termination sence alternatives A.W.). 8-9, (summarizing 608 A.2d 1312 supra, 129 N.J. Legislature, out in that the pointed We also J.C. 30:4015, governing ac- the statute amended N.J.S.A. 1991, c. 7. parental rights. L. in the termination of § tion *6 adopted substantially Those amendments the in standards A. W. Reflecting important goal preserving an the societal natural unit, family statutory requires as a finding scheme a that the natural would themselves do to substantial harm parental rights the child if are not terminated and child is by returned. The burden falls on the State to demonstrate convincing clear evidence that the natural has not cured cause harm the initial and will continue cause to harm 10-11, to the child. at N.J. 608 A. 2d 1312.

Ill trial,- Following the the court determined that B.F. had never the child. It abandoned found that B.F. had consented to placement of K.L.F. because she believed it was in the interest, child’s best but that she had done under the so impression that she would be reunited with the child a shelter facility stay that allowed mothers to with their Ac children. court, cording to the B.F. had been aware of the “tortuous legal procedures through which she go” would have to to regain custody of the child.

The placed DYFS, court found that after she had K.L.F. with B.F. no had income and no home and was therefore to unable telephone many receive calls or the letters D.Y.F.S. sent her. The court found that had “persist- she made “numerous” and ent,” “ineffectual, paltry, meager” attempts albeit to com- municate with DYFS order to see the child and that those efforts phone included calls to DYFS on numerous occasions. Specifically, phone the court found that no separated calls were year more than a and that “no effort to communicate with the Division or to see child separated were by more than a year.” support finding further of its that B.F. had not abandoned child, placed court noted that after she had K.L.F. care, began prepare she for life with her children.

The rehabilitating court credited B.F. “lifestyle” with neighborhood finding furnishing an in a apartment emphasized she had raising It also that conducive children. child, including a custody of her persistently regain worked at first pro to file a se motion visitation frustrated effort County Bergen County and then the Passaic Courthouse that findings, on the court concluded Courthouse. Based those meager and substan- the “evidence of abandonment [was] [was] tially outweighed by part efforts on the the commendable [B.F].” “amply Appellate Division determined the record daugh finding

support[ed]” a that B.F. had not abandoned her greater “[p]erhaps person fortitude ter. It reasoned *7 obstacles; the sophistication could have overcome those but and were, by only judge, the trial fact efforts as found that B.F.’s of indicate an abandonment ‘meager’ and ‘ineffectual’ does not 438). 615, A.W., 512 2d (quoting N.J. at A. the child” correctly are that the lower courts concluded We satisfied requires a that B.F. did not abandon her child. Abandonment to parents, although physically financially able finding that children, parental responsi- willfully forsook their care for their 30:4C-15(d). concept of abandon- bilities. See N.J.S.A. of abdication or intentional ment entails a willful surrender by rights Adoption Children parental and duties. See In re of 94-95, (1972) (finding D., forsaken 293 A.2d 171 61 N.J. obligation “require[s] past a course of conduct amount- parental of very neglect or ing abandonment substantial to intended claims, expectation with no reasonable parental duties both future”). of near A lack of that conduct the any reversal parent planning that is not fault communication or unfitness, it constitute equate parental nor does does not statutory purposes. for abandonment attempts to abandonment itself forestall the The statute relationships be- encourages It the maintenance of children. though their child even under biological parents and tween 30:4C-15(d) (before See, e.g., N.J.S.A. care of agency abandonment, can diligent find must it make efforts to encourage strengthen parental relationship); see also (Child Rights 9:6B-1 to gives N.J.S.A. -6 Placement Bill of right children foster care to visit with natural effect, siblings regular basis). natural on the Division must abandonment, take steps eventuality affirmative avoid to when, case, particularly expressed as in this parent sincere interest caring her child.

Furthermore, voluntary agreement by under which placed, right K.L.F. was B.F. had the custody to take back her child any time. If the custody wanted to retain despite her request, required it was to seek a court order authorizing it do so. N.J.S.A. 30:4012. To the extent the Division’s decision to refuse B.F. or custody contact with her child was based on its parental fitness, doubts about B.F.’s it obliged by was law authorizing to obtain a court order its own continued and custody exclusive over child. DYFS was not empowered unilaterally displace B.F. aas without judicial approval. See (conditioning N.J.S.A. 30:4012 order taking custody finding “parent grossly of child on ... is unfit.”); immoral or 30:4058 (requiring periodic N.J.S.A. re- view Child Placement Review Board determine whether placement interests); out-of-home is in the child’s best see also Santosky Kramer, 745, 753, 1388, 1395, v. 455 U.S. 102 S.Ct. (constitutional (1982) 71 L.Ed.2d protection afforded to *8 rights parents of natural is not by “they diminished that fact parents have not been model or temporary custody have lost their State”). child to the

When entirety, viewed their the facts indicate that DYFS concluding erred in B.F. that had abandoned her child. The correctly lower rejected courts that determination.

IV The standard invoked the lower courts to determine parental rights whether of B.F. be should terminated was she cause harm her child. courts below whether would psychological test harm applied that in order evaluate the might her from foster separating that result from her the child parents having pre-adoptive K.L.F. to her after parents. came parents eighteen months. another set of foster lived with change testimony explored significance Much of the. her first second foster and between Division, testifying on ac- Page, Dr. Martha behalf apparently adapted successfully to knowledged that K.L.F. had Nevertheless, eighteen months. change caretakers expressed effect of Page concern over the cumulative Dr. disruption in the change Any in K.L.F.’s life. further another risks I expose life her to emotional that would child’s “[would] exposed see to” “could introduce stress prefer not to her and her Dr. prefer to see introduced into life.” that I would breaking suggested the effects of the bond “could be Page that long Page Dr. and term time bombs.” permanent” “would be very loving mutually that had “a warm and also K.L.F. found pre-adoptive parents that she interaction” with her separated psychological harm if were suffer she would B.F. them and reunited with conclusions, expressed Page her for her Dr.

As basis changes impact disruptions on child general views on the stated, Children, consistency and conti- development. she need many spend in care. are transferred times nuity Children who energy and as a result fall acclimating, and efforts below their Moreover, “a child can learn development. children other if predictable place only is he or she is the world a safe and If predictable environment.” safe and [a] distrustful, occur, are often bonding fails to children become difficulties, learning are unable to form disruptive, have lasting relationships. He testified for B.F. concluded

Dr. Jerome Goodman removing from her foster K.L.F. the detrimental effect He would be minimal. placing her with mother *9 explained vulnerability moving that a child in very “the is eighteen concentrated between nine months and months be- cause this is the generally time which the child learns who ][ stranger According is is home who base.” to Dr. Good- man, if the child has successfully primary bonded with a during early years life, caretaker the critical of her in this case during the placements, child acquires a set of adaptive significant skills that allow her changes to absorb successfully. accepted trial testimony

The court of Dr. Goodman that readily any problems K.L.F. could overcome with associated leaving her pre-adoptive emphasized court supported by Dr. Goodman’s were views the Division’s own records. The court noted that those records “clearly unam- biguously articulate that when this child was moved from the family present first custodial to the pre-adoptive so-called fami- ly, adjustment marvelous, her reaction and her appro- was was priate, normal, was persuaded was It suitable.” was Dr. analysis Goodman’s experience K.L.F.’s successful of be- ing transferred one set of foster to another adjust indicated that she similarly being would returned to her natural mother. experts

Both also testified about B.F.’s fitness as as an aspect the assessment of harm to the child on being mother, reunited her natural specifically whether B.F. capability had the to overcome Again, experts such harm. disagreed. Page reported

Dr. “impulsive” “grandiose that B.F. was in her estimates of what she could Dr. Page do.” believed that might perform she well under stress and that she still had a way go “recovery” considerable from chronic home- planning. Page lessness and lack of Dr. also reasoned that personality might engage B.F.’s lead her overindulgence gratification or excessive in the care of her children. *10 parent. Although a fit concluded that B.F. was Dr. Goodman situational, depressed, depression related to the was she was life, especially of her the conflict with DYFS the circumstances custody having over K.L.F. Rather than unrealistic about strong grandiose personality, B.F. a and expectations or had to her Dr. Goodman stated that motivation raise child. sincere history find no illness or rendered B.F. he could mental that raise K.L.F. unable to accept Page, Dr. testimony

The refused to the court finding judgements by personal it distorted and biases. Based unwillingness her to part on demeanor her concede B.F., that anything positive the court concluded Dr. about impartial nor credible. Page’s examination of B.F. was neither discounting significance Page The also Dr. court faulted background and the child’s racial that difference between giving weight parents and for too little to pre-adoptive successfully adjusted K.L.F. she was the fact that had when to home. pre-adoptive moved from the foster home similarly The sufficient evidence in Appellate Division found finding B.F. was support to that a fit the record also only to care for K.L.F. but to ability capacity separating involved K.L.F. her minimize the trauma Appellate was satisfied that there Division K.L.F. convincing returning that to was not clear and evidence psychological cause harm. her natural mother serious would Page’s testimony that even if Dr. were The court determined accepted, support it sufficient to was not credited agency’s proof. burden Page major two had handled with substantial success Dr. found K.L.F. short, young ability she was concerned about the child’s to moves in but life, her legitimate it That concern: would surely to another move. is a well respond yet so But the fact that another such

be for a child not to be disrupted. preferable convincing is not evidence move carries some risk clear inevitably injurious” justify mother would be “so as return of the child rights. A. 103 N.J. at terminating W, 512 A2d 438. the mother’s supra, issue the lower agree with the resolution of We J.C., 129 N.J. 608 A.2d As we noted in courts. 1312, injury to children physical give need not be rise to biological parent-child State termination of relationships. Seri- lasting ous and emotional or harm to children as the result of biological parents the action or inaction of their injury can constitute sufficient to authorize the termination of parental rights. Ibid. acutely are controversy

We mindful of the that surrounds the competing psychological bonding. theories of the effects of Experts assumptions differ over the relating to the adaptability young children. As we observed in the court has a *11 responsibility competing to make sense of the presented views by experts the complete and to assure presenta- and balanced tion of all relevant and material evidence sufficient to enable it to make a sound determination of the child’s best interests. Id. 20-21, 608 A2d 1312.

Here, the trial approach court’s was calculated to reach a balanced and informed light resolution of the evidence in of the contrasting views experts concerning the might harm that Page’s befall K.L.F. Dr. belief that a transfer in custody would cause harm was based assumption on her change However, itself was harmful. supports the record contrary conclusion of the trial court based on Dr. Goodman’s beliefs that age after a certain children can change, absorb particularly if place it takes right under the circumstances. Dr. Page problems also saw in the leaving combination of the child a stable foster home returning might a mother who ability have the However, to care for the child adequately. record indicates that B.F. has steps undertaken substantial prepare a stable and secure home daugh- environment for her addition, ter. the fact that B.F. is currently living with and caring younger for K.L.F.’s sister only indicates that B.F. is not a fit but will also be able to cushion the stress that will inevitably accompany the return of K.L.F. The evidence presented by support DYFS did not or sustain a conclusion that moving will, children under those circumstances to a reasonable psychological certainty, harm, cause serious especially given contradictory testimony by Dr. Goodman. The standard is pain not that the end result cause no or trauma that the but kept parents child only lasting be from its to avoid serious and 1312; 10-11, harm. See 129 N.J. at 608 A.2d In re J.E.D., Guardianship N.J.Super. 524 A.2d 1255 (App.Div.1987); Family see also Division Youth Servs. v. & T.C., 419, 440, N.J.Super. (App.Div.1991) 598 A.2d 899 (“We reject particular cannot ... the thesis that in circum stances, foster-parent bonding may justify parental termination spare grievous irreparable in order to psychologi child harm.”). cal bonding

We noted in C. that risks inhere in the use of J. psychological-parental theories. The theories are abused if routinely keep relied on to children foster care rather than return them to their If 129 N.J. at 608 A.2d 1312. child-placement solely decisions are need based on the for continuity especially care the results can harsh on be resources, put siege by with few who should not be under social agencies. bonding theory welfare The facile use Ibid. militating can increase the risk of institutional bias permanent placement adoption direction of of children in Here, example, foster care. Ibid. the trial court was hostility troubled over what it viewed as toward B.F. *12 agency’s expert. expert’s The court concluded that the testimo- ny analysis facing crossed the line from scientific of the harm personal judgment In K.L.F. about the character of B.F. a process in stability continuity paramount, which are made prejudices may weigh process against unfairly such subtle parents with fewer material resources. perilously a case such as this the risk comes close to the

reality. compelled bonding We are to note that much of the place that has taken in this could if case have been avoided the agency correctly diligence had followed its mandate to use due and its best efforts to reunite children with their natural 30:40-15; parents. requested N.J.S.A. 30:40-58. When B.F. custody, that K.L.F. returned to her the child had be been with parents her current foster only for a month. When DYFS petitioned 1991, for guardianship in March the child had been parents with the foster Regrettably, litigation ten months. period has extended that By encouraging even more. her foster to believe that K.L.F. way was on the to becom child, ing their and to their view interests and those of the child being opposed as to her biological parent, reunification with her may DYFS have increased the bonding amount of that has occurred. That those in the child system tip welfare encourage scales and parent-child a foster bond develop when the natural is regain both fit and anxious to custody Indeed, is suspect essential. we that if the had begun allowed visitation and process a reuniting B.F. with daughter, it could helped have create a bond between the daughter and her mother that greatly mitigated would have any harm being T.C., removed from N.J.Super. However, 598 2dA. 899. we are satisfied that the fairly supports record the conclusion that the in returning harm K.L.F. to her mother is not extensive or irremediable.

V We conclude trial court Appellate Division applied the appropriate legal standards They to the facts. correctly determined that there was no convincing clear and evidence of either willful abandonment lasting or serious and harm justify to the child to parental rights. termination of Because the justify record does not termination on either ground, judgment Appellate Division is affirmed.

The trial originally court ordered to arrange DYFS for a overnight series of leading visits prompt transfer of custody. We remand to the trial implement court to that order.

CLIFFORD, J., concurring judgment. My concerns expressed are in my concurrence in In re J.C., J.C., Guardianship Minors, 129 N.J.

47 (1992) (J.C.), this today. Applying to also decided A.2d C., agree principles relied on in J. I the Court that with case the import statutory of the scheme court followed the the trial after bonding that occurred disregarding evidence of properly (DYFS) improper Family had Division of Youth & Services test psychological refused visitation until B.F. submitted ly evidence, convincing time, ing. At that DYFS had no clear and 30:4C-15(d), that B.F. had aban N.J.S.A. required under as parental rights would be K.L.F. or that termination of doned 30:4C-15(c) and best interests under both N.J.S.A. the child’s W, Family v. A. Jersey Division Youth & Services New (1986). 512 A. 2d 438 N.J. law, (1) DYFS’s efforts at specifically: as a matter of

More preceding its decision during one-year period reunification diligent-efforts plans fell short of the forego reunification (2) 30:4C-15(d), none of the evidence standard of N.J.S.A. damage indicated that the child had suffered below C., B.F., N.J. J. relationship see non-existent Thus, J., 29-30, (Clifford, concurring). because 2d 1312 608 A. pre-adoptive bonding K.L.F. and her between to allow following DYFS’s refusal family during period rights, improper denial of visitation resulted from an visitation similarly bonding by the trial court would consideration of that improper. have been compli- to demonstrate failed

I note as well that Act, N.J.S.A. 30:4C-50 Review the Child Placement ance with -65, provisions requiring periodic review including those proper- Had DYFS agency strategy. See N.J.S.A. 30:40-58.1. case, might Family Part in this that review ly undertaken unjustified bonding occurred after an have thwarted goal statutory of reunification. abandonment and remandment —Chief Justice For affirmance POLLOCK, CLIFFORD, HANDLER, WILENTZ, and Justices O’HERN, STEIN—7. GARIBALDI

Opposed—None.