Opinion
DOCKET NO. A-4118-14T1
03-17-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. A.M.P.J., Defendant-Appellant, and R.J.H., Defendant. IN THE MATTER OF THE GUARDIANSHIP OF J.A.A.J., J.J.J., I.J.J-C., I.J.C-J., S.J.J-C, and R.P.O.C-J., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Catherine Reid, Designated Counsel, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Elizabeth S. Sherwood, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors J.A.A.J., J.J.J., and I.J.J-C., (Lisa M. Black, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors I.J.C-J., S.J.J-C., and R.P.O.C-J., (Noel C. Devlin, Assistant Deputy Public Defender, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Carroll. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-192-14. Joseph E. Krakora, Public Defender, attorney for appellant (Catherine Reid, Designated Counsel, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Elizabeth S. Sherwood, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors J.A.A.J., J.J.J., and I.J.J-C., (Lisa M. Black, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors I.J.C-J., S.J.J-C., and R.P.O.C-J., (Noel C. Devlin, Assistant Deputy Public Defender, of counsel and on the brief). PER CURIAM
Defendant A.J. appeals from the Family Part's April 29, 2015 judgment terminating her parental rights to her six sons, J.A.A.J. (John), J.J.J. (Jim), I.J.J.C. (Ike), I.J.C-J. (Ivan), S.J.J-C. (Sam), and R.P.O.C-J. (Rob). At the time of the guardianship trial, John was age eleven; Jim was ten; Ike was almost seven; Ivan was five; Sam was three; and Rob was two. Defendant argues that the Division of Child Protection and Permanency (the Division) did not prove the four prongs of the statutory "best interests of the child" test under N.J.S.A. 30:4C-15.1(a). Separate Law Guardians, representing the three older boys and the three younger boys, opposed termination in the trial court and, on appeal, join defendant in urging us to reverse.
We use fictitious names for defendant's children for ease of reading and to protect their privacy.
Defendant R.H., the children's father, has not appealed the judgment terminating his parental rights.
For the reasons that follow, we affirm the trial court's findings as to prongs one and two of the statute, N.J.S.A. 30:4C-15.1(a)(1) and (2), concerning defendant's infliction of harm upon the children and the risks of future harm. However, we order a remand concerning prong three, N.J.S.A. 30:4C-15.1(a)(3), to allow the record to be developed further as to alternatives to termination, and for reconsideration of prong four, N.J.S.A. 30:4C-15.1(a)(4), in light of any post-judgment developments regarding the Division's efforts to place the children for adoption.
I.
In January 2010, the Division learned that Ivan, defendant's fourth child, tested positive for marijuana at birth. Although defendant initially denied using marijuana, she subsequently informed a Division worker that she did smoke marijuana. When asked why she previously denied it, defendant explained that she was scared. "She stated that she only took a couple of puffs but it was not frequent, she smoked once every two months." Defendant did not inform her OB/GYN that she was smoking. Additionally, "she did not know that smoking marijuana would affect her child but now she knows."
Defendant informed the Division caseworker that "she will do whatever it takes to keep her children." The caseworker informed her supervisor that defendant "was very honest about smoking marijuana and both her and [R.H.] are very willing to participate in services." She also noted that defendant and R.H. agreed to have a Family Team Meeting to address services appropriate for them.
The Division conducted a home investigation, during which the caseworker made the following observations:
Worker noticed that the entire apartment was clean but there was no furniture in any part of the house. Worker noticed that all three children appeared healthy. Worker spoke with [John] and asked how he was. He stated fine. Worker asked if he's in school. He stated no but he was and his mother is working on getting him back in. Worker asked [Jim] how he was. He stated fine. Worker asked if he's in school. He stated that he was but not anymore. Both boys stated that they want to go back to school. Worker asked both if they liked living in the home with their parents. They both stated yes. Worker asked about discipline. Both boys stated that they are beaten with belts on their hands when they do something bad . . . . Both [the water and gas] were working and there was electricity in the home. The family did have can food and juices for the children. They however did not have a fridge.Following this initial investigation, the Division concluded that although defendant and Ivan both tested positive for marijuana, Ivan did not experience any withdrawal symptoms, and that the allegations of neglect were unfounded.
From April through July 2010, the Division referred an Apostles' House parent-aide to provide defendant with services. In May, the aide reported that at the time of her visit, John was in school but the other children were home and appeared healthy. She also reported that defendant attended a "drug program on Tuesdays from 9 a.m. to 1 p.m. at Step by Step Health." The aide observed that defendant's "housekeeping skills are good. The home is usually clean and organized but does not have much furniture [or food]. The house smells clean and it does not appear that the client smokes in the home." Her report also noted: "[t]he client is complying well with the parent-aide visitations. The client appears to be motivated and self-sufficient."
By letter dated August 12, 2010, Curtis A. Stalks of Greater Essex Counseling Services advised that defendant had participated in that program since June 10, 2010, and that her "participation and progress is in good standing. [Defendant] shows evidence of a positive attitude and she shows motivation toward her recovery and it is recommended that her [] case be closed." Accordingly, the Division closed its case.
The Division received a second referral in September 2011, reporting that the meconium of Sam, defendant's fifth child, tested positive at birth for marijuana. Defendant advised the Division that this was the result of secondhand smoke she inhaled from neighbors smoking outside her bedroom window. Later, during a psychological evaluation conducted by Dr. Leslie J. Williams at the Division's request, defendant informed Dr. Williams that "she last smoked marijuana when she was pregnant with [Sam]" because she did not know she was pregnant until month six.
The purpose of the November 14, 2011 psychological evaluation was to assess defendant's parenting ability. Dr. Williams' "summary and conclusions" stated:
[Defendant] did not present with any overt, severe psychological symptoms . . . . [Defendant] noted having smoked marijuana in the past, stopping during her pregnancy with [Sam]. She said that she had completed substance abuse treatment in 2010. As noted above, I did not see any substance abuse treatment records on [defendant] and, obviously, [she] relapsed in 2011 . . . .
[Defendant] denied any problems in her relationship with [R.H.]. She indicated that they were engaged to be married . . . . She described [R.H.] as an involved father. I have not met [R.H.] since he failed to keep a scheduled appointment for a psychological evaluation.
In my professional opinion, within a reasonable degree of psychological
certainty, [defendant] is capable of providing adequate parenting of her children provided she fully complies with any, and all, recommendations of [the Division] and the Court. I do not believe that the children would be at risk in [defendant's] care. She needs to return to substance abuse treatment and follow the treatment plan recommended by her substance abuse professionals. [Defendant] should participate in, and complete, parenting classes. If [defendant] does not comply, consideration should be given to removing the children from her care until she demonstrates an appreciation of the seriousness of [the] situation. [R.H.] should not have unsupervised access to the children until he cooperates with [the Division].
[(Emphasis added).]
The court conducted a fact-finding hearing on March 14, 2012, and concluded that the Division proved by a preponderance of the evidence that defendant abused and neglected Sam. The judge reasoned:
[Sam's] meconium tested positive for marijuana. Based on the levels found, this exposure could only have occurred by [defendant] using marijuana during the last four to five months of her pregnancy. It could not have occurred through passive inhalation. [Defendant's] use of marijuana during her pregnancy, exposed her child to potential harm.
On June 1, 2012, the Systems Coordinator for the Substance Abuse Initiative (SAI) emailed the Division to inform them that defendant "failed to show for [her] scheduled assessment on [May 31, 2012]." She also failed to appear for a Certified Alcohol and Drug Counselor (CADC) appointment on June 7. On June 5, the Parent Education Program Coordinator for the Mental Health Services and Counseling (MHSC) program sent a discharge letter informing the Division that defendant "has been discharged from Babyland Family Services Parent Education Program for . . . never attend[ing] any sessions" beyond the initial intake process.
On June 12, 2012, the Division learned that defendant violated an earlier court order that required her to supervise R.H.'s contact with the children until R.H. complied with services. This prompted the Division to perform a Dodd removal of the children. The older three children were placed in the same resource home, where they remain to date. The younger children were placed together in a separate resource home.
Emergency removals of children from their homes are authorized in limited circumstances pursuant to the Dodd Act, N.J.S.A. 9:6-8.21 to -8.82. --------
After interviewing John and Jim, the Division caseworker reported that:
they were eating and sleeping well[,] . . . that all the children appeared to be in good physical health[,] [that she] did not observe any bruises or marks on the children[,] [and that] [t]hey were groomed and dressed in clean and appropriate
clothing. Worker did not interview [Ike, Ivan, and Sam] due to their [young] ages.In her "Summary of Conclusions," the caseworker noted that defendant continued to be non-compliant with Division services, including her parenting classes and SAI treatment. She further noted:
[b]oth parents continue to use drugs and they both tested positive for marijuana on 6/14/2012. [John and Jim] . . . miss[ed] [forty-five] and [forty-three] days[,] [respectively,] of school and [defendant] refuse[s] to take responsibility for her actions . . . . [Defendant] put her children at risk of safety because she left her [five] children with [R.H.] who is not allowed to have unsupervised contact with the children as per [a] court order dated 3/14/12.
Defendant was referred to the Youth Development Clinic (YDC) on August 20, 2012, following the children's removal. Although she scheduled seven appointments with YDC, she only reported twice. Defendant explained that she missed five sessions without giving YDC adequate notice "because of life stressors such as homelessness, no access to a telephone, feeling ill, and searching for employment opportunities." Due to her non-attendance, YDC closed defendant's case on October 15, 2012.
On February 11, 2013, the resource parents for the three older children made a referral to the Division, stating that John had informed them of inappropriate belt whippings administered by defendant as punishment, sexual behavior of defendant and R.H. he had witnessed, and his own sexual behavior with his brother Jim. Ultimately, the Division concluded that the allegations of neglect and abuse arising from this referral were unfounded.
Defendant had begun participating in the Strong Mothers Intensive Outpatient Program at Family Connections on October 23, 2012. On February 13, 2013, Family Connections wrote to inform the Division that defendant had attended seven group sessions and tested positive on all five drug tests she had taken. Around this time, the Division and Family Connections became aware that defendant was approximately six months pregnant with Rob. The Division recommended that defendant relocate to the Mommy and Me program at Renaissance House. Defendant complied with this recommendation and, while at Renaissance House, the results of her drug tests were consistently negative. There were no drug-related complications in connection with Rob's birth in April, and Rob was placed with defendant at Renaissance House upon his discharge from the hospital. In May, Ivan and Sam were returned to defendant's care and began residing with defendant and Rob at Renaissance House. Around this time, defendant was also engaging in unsupervised visits with her three older sons. In June, Dr. Williams completed an updated evaluation of defendant and concluded "[i]n my professional opinion, within a reasonable degree of psychological certainty, [defendant] is capable of providing adequate parenting of her children. Reunification is a viable option."
Defendant completed the Renaissance House and then moved into Harmony House, a homeless shelter, with the three youngest boys. However, on October 18, Harmony House informed the Division that defendant had been evicted on September 4, for non-compliance with the rules of the shelter and welfare. The referral also alerted the Division that, over the preceding few months, defendant tested positive three times for alcohol, and failed to consistently attend her drug treatment sessions. As a result, the Division executed a second Dodd removal of the three younger boys, placed them in foster care, and obtained care, custody and supervision of the children three days later.
In March 2014, the Division's unrebutted psychological expert, Dr. Eric Kirschner, conducted a psychological evaluation of defendant along with a bonding assessment between defendant and the children. Defendant told Dr. Kirschner that "her main drug of choice was marijuana." She reported that she first used marijuana at age fifteen or sixteen, and that she used it on a daily basis up to six times a day. According to defendant, she had not used marijuana or drank alcohol since February 19, 2012, which conflicted with documentation reviewed by Dr. Kirschner indicating that defendant tested positive for alcohol on multiple occasions between August 2013 and February 2014 despite involvement in treatment.
Dr. Kirschner noted that defendant lacked stable housing, and had not worked since 2013. He diagnosed defendant with alcohol dependence, early remission; cannabis dependence, sustained remission; and major depressive disorder, not otherwise specified. He concluded that defendant "lacks the psychological capacity to adequately meet her children's needs for safety, nurturance, stability, and guidance at this time."
With respect to the bonding evaluation, Dr. Kirschner's May 8, 2014 report states:
The behavioral observation was somewhat chaotic given the number of children, although [defendant] did her best in terms of [dividing] her attention between the children. She remained calm and patient throughout. The behavioral observation suggested that each of the children had formed a parent-child bond with their mother. Other than [Rob], the other five children were at least [two-and-a-half] years old, when most often, children have developed the cognitive and emotional capacity to internalize a mental representation of an attachment figure. As a result, if that relationship was to be severed, they are vulnerable to experience
psychological harm or trauma manifested in the short-term as feelings of loss, sadness, anxiety and behavioral regression, as well as in the long-term as impairment of cognitive, affective and interpersonal functioning with particular problems developing the capacity to trust others and form healthy attachment relationships across the life span.
A comparative bonding evaluation was not conducted. Therefore, it is not possible to say whether the presence of another bond with a caregiver could adequately offset or mitigate the impact of the harm that would be expected if the children's relationships with their mother was to be severed. In addition, [John] and [Jim], the two oldest children[,] expressed a preference to reside with their "real parents" and would feel "sad" if they were not reunified.
While [defendant's] children certainly deserve permanency, it is [my] opinion based on a reasonable degree of psychological certainty that termination of [defendant's] parental rights would do them more harm than good.
Dr. Kirschner provided a number of recommendations "to assist [defendant] to become a more viable placement option in the future." These included a referral to Consumer Friends, a dual diagnosis intensive outpatient program. Defendant participated satisfactorily in the Consumer Friends program from April through September 2014, returning negative drug tests during most of this period except for an August 2014 hair follicle test that was positive for alcohol. Defendant completed the Consumer Friends program in November.
At a court hearing on November 13, 2014, defendant provided a drug screen that tested positive for marijuana. On November 24, she tested negative for marijuana but positive for ETG, an alcohol metabolite. On December 2, 2014, the Division presented a permanency plan to terminate defendant's parental rights, although it had not yet secured an adoptive home for any of the six children. The trial court approved the Division's permanency plan of termination followed by select home adoption.
Dr. Kirschner conducted an updated psychological evaluation of defendant on February 12, 2015. During the interview defendant conceded that she was a "drug addict." She was now working as a secretary for a printing company, but her living arrangements were transient since her previous evaluation. In his March 16 report, Dr. Kirschner opined:
In conclusion, while it is understood that [defendant's] children desire to be reunified with their mother, it is [my] opinion based on a reasonable degree of psychological certainty that they would be at heightened risk of harm if they were to be placed in her care at this time as questions continue to exist regarding her capacity to adequately meet their needs for consistency, stability, protection, [and] guidance. While all children are in need of permanency, this is especially true for [defendant's] children, who have been removed from their mother's care on multiple
occasions. The available data suggested that the children's emotional functioning and behavior had likely been negatively impacted by the inconsistency and uncertainties in their lives as a function of [defendant's] inability to provide them with permanency. Unfortunately, the children's foster parents are not interested in adoption to help the children to attain permanency. Despite any psychological harm that the children experienced as a result of termination of [defendant's] parental rights, it is now [my] opinion based on a reasonable degree of psychological certainty that termination of parental rights would not do the children more harm than good as nearly one year has now passed since [defendant's] previous evaluation . . . and yet the data indicated that she could not be considered a viable option to provide her children with permanency at this time or in the foreseeable future. That being said, there does not appear to be any other alternative to termination of [defendant's] parental rights followed by select home adoption to enable the children to attain the permanency that they deserve and are desperately in need of.
So as to mitigate the harm to the children, it is recommended that in the short-term, they remain in their existing resource placements, if possible[,] and continue to receive current mental health services, in addition to adoption counseling to help them cope with their loss and express their thoughts and feelings. In the longer-term, the development of a bond with a resource caregiver can help to mitigate the impact of harm as well.
The guardianship trial took place over three non-consecutive days in April 2015. In addition to Dr. Kirschner, the Division presented the testimony of Division caseworker Carolyn Cammock and adoption supervisor Olga Fuentes. Notably, Cammock testified that the resource parents of the three older boys had expressed interest in kinship legal guardianship (KLG), although they had also wavered back and forth between entering into a KLG arrangement and adopting some or all of the three boys. Fuentes indicated that, following termination of parental rights, the Division had additional resources it can use to locate homes for children that are not available to the Division prior to termination. Also, if a family member is offered as a placement resource, the Division will continue to explore placement with the family member even after termination.
Defendant testified on her own behalf. She indicated that she had employment and was arranging for housing, although she was unable to produce paystubs or a lease. She also indicated that two relatives had recently come forward as proposed placements for the children. The Law Guardians did not present any witnesses or evidence, but both joined in advocating that defendant's parental rights not be terminated.
II.
In an oral decision, the trial judge noted this was a "somewhat difficult" case because the plan presented by the Division was for select home adoption. He attributed part of defendant's problem to "her association with [R.H.] for the last ten or twelve years." Although defendant indicated she was no longer involved with R.H., the judge expressed "serious concerns with the fact that she continues to be involved with his sister, his family."
The judge found defendant was not a credible witness. He reasoned:
There is no testimony that I heard from her that had any credibility. I don't believe she has an apartment. I don't believe her cousin paid for a year's rent in advance. I don't believe she has a job. . . . [S]he told Dr. Kirschner that she worked for, I forgot where she said she worked, for somebody else. She tells the Division she worked here. She listed [twenty] jobs when she was on the stand. In five years she's never come up with a pay stub. She's never shown any information or proof that she's ever worked for anybody. And this part time internet job I just don't find that credible. She's never produced any evidence.
The fact that she allegedly faxed an[] email to the Division on these occasions doesn't make any sense. She hasn't come into court with any proofs. I don't believe her attorney would have not brought in these documents if they really existed. I cannot believe with any credibility [] that she has a stable home, stable job. And I don't believe any of that testimony. And it's just not before me. There's nothing credible . . . before me that any of those things are true. To argue that she has stability in the way of home or job is just not credible at all.
Nothing she said was very credible. The only credible statement she made on the stand was that she loves her children. That I do believe. But how much does she love her children? Did she love her children [enough] to give up alcohol . . . to give up drugs . . . to get to visitation on time . . . to come every week instead of having the Division change to every other week? And [she] still couldn't get there on time.In contrast, the judge found the testimony of the Division caseworkers credible, based on their "first hand knowledge" and "the actual documents." He also found the Division's expert, Dr. Kirschner, to be credible.
It's one thing to love your children and go visit them for two hours every other week and play games and bring them snacks. It's something else to love children enough to make sacrifices to get yourself drug free, to give up alcohol, to get yourself straightened out, to find a stable environment, to make a home available for these children, to present some type of plan for these children in five years of instability come up with something [] that will convince this [c]ourt that this is a viable option. It is not.
The judge then addressed the absence of any expert evidence that defendant is capable of parenting her six sons. He explained that he could not place six children, some of whom have special needs, with a mother who was not even capable of taking care of herself. The judge found that placement of the children with defendant would not happen now or in the foreseeable future. Moreover, "[i]t will never happen probably. But I can't wait . . . [Defendant] has been involved with the Division for five years. And we're not in any more stable [a] position now than when we started. We have no future. There's no plan. There's no way of returning these children to her."
Addressing the first and second prongs of the statutory "best interests of the child test," the trial judge found that the Division established risk of harm to the children and defendant's unwillingness or inability to eliminate the harm facing the children. In reaching this determination, the judge cited: defendant's use of drugs; her instability; her involvement with R.H.; the two prior occasions when the Division had to remove the children from her custody; her non-compliance with Division-provided services; her loss of housing; the length of time the children were already out of her care; and her lack of any future parenting plan. The judge explained that after five years of Division involvement and court appearances, "[w]e're back in 2010. We have the same issues, the same problems, stability, drug and alcohol use. We're really not any further along."
Turning to the third prong of the statute, the judge expressed frustration with the number of programs defendant had been involved in, but failed to complete. He noted that even when defendant successfully completed a program, she would revert back to her old habits shortly thereafter. The judge elaborated:
I think Dr. Kirschner bent over backwards in this report in 2014 saying let's give her one more shot. And the Division went a year . . . . I mean the Division has made every possible effort. They tried the reunification. It didn't work. They tried another program, and they were even considering another plan for reunification about six months ago. And [defendant] sabotaged that by continuing to test positive for the drugs and alcohol that . . . she had just completed a program for.
The judge concluded: "I think the Division has been more than patient in this case. They have made every effort whatsoever to try to keep this family together. They have gone through an awful lot in attempting to get [defendant] to a point where she can care for all of these six children, or at least start taking some of these children. But it just hasn't worked."
With respect to the third prong's second component, the judge acknowledged the impermanent nature of the Division's plan of select home adoption, but concluded that his only alternative was to place the children with defendant, which offered them no real chance for permanency. The judge recognized that, under prong four of the best interests test, "there might be harm to the children if we terminate the mother's rights." Nonetheless, he concluded that due to the absence of alternatives, the children would only achieve permanency if defendant's parental rights were terminated. The judge cited Fuentes's testimony that, although there was no guarantee that the three older and the three younger children, who were currently in two separate foster homes, would remain together, there were adoptive homes willing to adopt up to three children.
The judge recognized that the foster parents were wavering back and forth as to whether or not they would be willing to adopt the three oldest sons. The judge concluded "these kids are entitled to . . . have a permanent home, an adoptive home that they know they can rely upon." Briefly referencing KLG, which the foster parents had also expressed interest in as an alternative to adoption and termination, the judge stated, "This is not a case about KLG. The Division doesn't have to prove KLG — there's no evidence that has to be produced in this particular case."
The judge discounted the credibility of defendant's "eleventh hour" testimony about relatives willing to assume custody. He questioned why, after five years of litigation, these relatives would wait until this late point in the trial to come forward. Nonetheless, the court directed the Division to investigate whether such a relative placement could eliminate the need for select home adoption.
As noted, with respect to the fourth prong, the judge found that there might be harm to the children if defendant's parental rights were terminated. Nonetheless, the court determined that the children needed permanency and consistency, and adoptive homes. The judge therefore concluded that the Division proved all four prongs by clear and convincing evidence and terminated the parental rights of defendant and R.H. to the children. Defendant's appeal followed.
III.
On appeal, defendant argues that the trial court misapplied all four prongs of the statute. In her reply brief, she further contends that the Division's post-judgment failure to find adoptive homes for the children provides additional support for reversal. Accordingly, defendant urges that we vacate the judgment terminating her parental rights and remand the case for further consideration of her present circumstances, the possibility of reunification, the viability of KLG, and evaluation of the Division's progress on assessing the proffered relative placements. The Division on the other hand argues that the judge's findings were sound and urges that we sustain them.
The Law Guardian for John, Jim, and Ike does not dispute the trial court's findings regarding prongs one and two of the statute. However, the Law Guardian argues that the trial court failed to fully consider KLG as an alternative to termination, and erred in deciding that terminating defendant's parental rights to the three older boys would not do more harm than good. The Law Guardian for Ivan, Sam, and Rob joins in arguing that the fourth prong was not satisfied by clear and convincing evidence. We note that "the Law Guardian's position [is] of particular significance" because the Law Guardian "has to advocate for the best interests of [children] too young to speak for [themselves], and represents neither adversary in the case." N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 433-34 (App. Div. 2009).
IV.
It is well established that when seeking the termination of a parent's rights under N.J.S.A. 30:4C-15.1(a), the Division has the burden of establishing, by clear and convincing proof, the following criteria:
(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; andIn applying these criteria, our courts have been mindful — as we are here — that the permanent termination of a parent's relationship with her children implicates fundamental constitutional interests. See, e.g., N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 102 (2008) (noting the constitutional protection afforded to "[t]he right of a parent to raise a child and maintain a relationship with that child, without undue interference by the [S]tate"); see also In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999).
(4) Termination of parental rights will not do more harm than good.
[N. J.S.A. 30:4C-15.1(a); see also N.J. Div. of Youth & Family Servs. v. A.W. , 103 N.J. 591, 604-11 (1986) (reciting the four controlling standards later codified in Title 30).]
Our scope of review on appeals from orders terminating parental rights is limited. In such cases, the trial court's findings generally should be upheld so long as they are supported by "adequate, substantial, and credible evidence." N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014). A decision in this context should only be reversed or altered on appeal if the trial court's findings were "so wholly unsupportable as to result in a denial of justice." N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004). We must give substantial deference to the trial judge's opportunity to have observed the witnesses first hand and to evaluate their credibility. R.G., supra, 217 N.J. at 552. We also must recognize the considerable expertise of the Family Part, which repeatedly adjudicates cases brought by the Division under Title 9 and Title 30 involving the alleged abuse or neglect of children. See, e.g., N.J. Div. of Youth & Family Servs. v. A.R.G., 361 N.J. Super. 46, 78 (App. Div. 2003), certif. denied, 186 N.J. 603 (2006).
Applying these well-settled standards, we are satisfied that the trial judge's assessment of the first two prongs of the statutory test is amply supported by the record and consistent with the governing law. The judge's detailed opinion thoroughly explains why the first two criteria of the statute, concerning the past infliction of harm to the children and the parent's inability or unwillingness to eliminate that harm in the future, were clearly established by the Division's proofs.
On the third prong, the judge provided detailed support for his finding within that prong that the Division reasonably offered the defendant numerous services, but that she failed to take sufficient advantage of them. That said, the present record is inadequate to sustain the finding in the Division's favor on the other portion of the third prong, i.e., whether there has been adequate consideration of "alternatives to termination of parental rights." N.J.S.A. 30:4C-15.1(a)(3). More specifically, the present record is insufficient for us to sustain with confidence a conclusion that the court gave adequate consideration to KLG as an alternative to termination.
The record fully establishes, as the judge properly found, that at least with respect to the three older boys, the foster parents were considering, but had not firmly embraced, adopting the boys. The record further establishes that, as an alternative to adoption, the foster parents also expressed interest in entering into a KLG arrangement with respect to these boys.
"A kinship legal guardian is defined as a caregiver who is willing to assume care of a child due to parental incapacity, with the intent to raise the child to adulthood . . . ." N.J. Div. of Youth & Family Servs. v. L.L., 201 N.J. 210, 223 (2010) (quoting N.J.S.A. 3B:12A-2). KLG is "an alternative permanent placement option without the need for termination of parental rights and where adoption is neither feasible nor likely." Ibid. (quoting N.J.S.A. 3B:12A-1c).
Here, we have no reason to doubt that the Division will continue to strive to find suitable adoptive homes for the six boys. Nonetheless, it is apparent from the record that, based on the number of children and their special needs, the Division's goal of selective home adoption will be no easy task. Because we cannot conclude with any degree of certainty that adoption of the children is either feasible or likely, KLG presents itself as a viable placement option. It would also achieve permanency, the importance of which the trial judge correctly recognized. We note that the foster parents did not testify at the guardianship trial or otherwise fully make known their position with respect to KLG. Further, their stance on either adopting the boys or entering into a KLG arrangement may have evolved with the passage of time since the trial. Accordingly, on remand, these alternatives to termination or select home adoption should be fully explored.
In the present case, this component of the third statutory prong is inextricably intertwined with our analysis of the fourth prong. The law anticipates that when considering prong four of the best interests of the child test, a trial court will be presented with expert testimony addressing the child's relative bonds with the biological and foster parents. R.G., supra, 217 N.J. at 559; K.H.O., supra, 161 N.J. at 355; In re Guardianship of J.C., 129 N.J. 1, 18-19 (1992). At the same time, the law recognizes that the "termination of parental rights does not automatically lead to adoption or other comparable permanent arrangements." K.H.O., supra, 161 N.J. at 359.
"A court should hesitate to terminate parental rights in the absence of a permanent plan that will satisfy the child's needs." N.J. Div. of Youth & Family Servs. v. B.G.S., 291 N.J. Super. 582, 593 (App. Div. 1996). "[T]erminating parental rights without any compensating benefit, such as adoption, may do great harm to a child[,]" particularly if the child may be cycled through multiple foster homes after termination, and the child's only enduring emotional bond is with the biological parent. E.P., supra, 196 N.J. at 109-11. Nevertheless, "there will be circumstances when the termination of parental rights must precede the permanency plan." A.W., supra, 103 N.J. at 611.
Bearing these principles in mind, we note that no bonding analysis was done assessing the children's bonds with their foster parents. Moreover, if the foster parents are willing to adopt some or all of the children, or enter into a KLG arrangement with respect to them, then further consideration should be given to the effect such alternatives may have on the children, whether in comparison to termination or select home adoption.
We agree with the trial judge that defendant unreasonably delayed in identifying other relatives for consideration as possible alternative caregivers. However, in view of our determination that a remand is necessary, the Division should assess these relatives and the record should be developed more fully with respect to their suitability as potential alternative caretakers. See N.J.S.A. 30:4C-12.1 (obligating the Division to initiate a search for "relatives who may be willing and able to provide the care and support required by the child"). See also N.J. Div. of Youth & Family Servs. v. K.L.W., 419 N.J. Super. 568, 583 (App. Div. 2011) (explaining that "[w]hile the 'reasonable efforts' required of the Division before termination are efforts to rectify conditions that led to the child's removal . . . assessment of relatives is part of the Division's obligation to consult and cooperate with the parent in developing a plan for appropriate services that reinforce the family structure").
V.
For these reasons, we affirm the trial court's determination as to the Division's satisfaction of prongs one, two, and the first component of prong three of the termination statute. On remand, the court need not address these prongs, which the Division has conclusively established.
We remand for further expeditious proceedings concerning the second part of prong three, and prong four. The trial court shall have the discretion to oversee additional discovery, including supplemental or updated expert reports and bonding evaluations. The court shall conduct an evidential hearing to evaluate such additional proofs in light of applicable law. In the interim, the court shall have discretion to ascertain the nature and frequency of visitation with defendant that is warranted. Depending upon the outcome of the remand proceedings, the Division, the Law Guardians, or defendant may pursue appropriate appellate relief.
Affirmed in part and vacated and remanded in part. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION