In Re the Guardianship of DMH

O’HERN, J.,

concurring.

I concur in the judgment of the Court. My reasoning is essentially set forth in the companion case of In re Guardianship of K.H.O., 161 N.J. 337, 736 A.2d 1246 (1999), also decided today.

In this case, the Appellate Division correctly held that the standard for termination of parental rights had not been established by the requirement of clear and convincing evidence. 309 N.J.Super. at 192, 706 A.2d 1129 (1998). The trial record failed to establish convincingly the third prong of the standard for termination of parental rights, that the Division of Family and Youth Services (DYFS) made “diligent 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).¹

It is clear that any attention given to the father was an afterthought. Again, with the benefit of hindsight derived from the reports received following the Appellate Division decision (and oral arguments before this Court), we can now determine that the statutory standards have been met. The supplementary reports found that the father’s “functioning has deteriorated over the last [six] months during which he said he was highly motivated to gain custody____ Although there is strong caring and affection between [the father] and his children, he has been unable to use this to help him to mobilize his resources for recovery.” As noted in the report, he can neither care for nor protect these children, who have special emotional and educational needs. He has lost his job and his home, in part because he has become readdicted to drugs. The father is “a psychiatrically disturbed substance abuser who has had this condition for many years” and whose recovery is regarded as being “guarded, at best[.]” Even if he were to completely recover, which is unlikely, he would not be able to assume responsibility for any of the children for at least one additional year.

“Despite his love for the children, his chronic emotional disturbance and substance abuse have rendered him incapable of taking care of himself or providing ... minimally adequate care, nurturing, stability, protection or guidance for his children.” These children “have been waiting ... since their births” for their father to attain a level of functioning that would enable him to care properly for them. Their childhoods have suffered long enough. As recommended in the report, their best interests would truly be best served if they were “free to be adopted and achieve the permanence and security they require.”

Concur in result — Justice O’HERN.

For reversal and reinstatement in part; reversal and remandment in part — Chief Justice PORITZ and Justices HANDLER, POLLOCK, O’HERN, GARIBALDI, STEIN and COLEMAN — 7.

Opposed — None.

1 As explained by the majority, the Legislature amended the statute to require reasonable efforts rather than diligent efforts. Ante at 381 n. 5, 736 A.2d at 1269 n.5