Opinion
DOCKET NO. A-4821-14T3
05-11-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. J.M., Defendant-Appellant, and K.M., Defendant (Deceased). IN THE MATTER OF THE GUARDIANSHIP OF J.K.M., Minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Mark E. Kleiman, Designated Counsel, on the brief). Robert Lougy, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Melissa Bayly, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Charles Ouslander, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Hoffman and Whipple. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FG-12-60-15. Joseph E. Krakora, Public Defender, attorney for appellant (Mark E. Kleiman, Designated Counsel, on the brief). Robert Lougy, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Melissa Bayly, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Charles Ouslander, Designated Counsel, on the brief). PER CURIAM
J.M. appeals the trial court's June 11, 2015 order terminating her parental rights to her child, Jimmy. We affirm.
We use initials and pseudonyms to protect the identities of the parties.
I.
Jimmy was born in January 2012. J.M. contacted the Division of Child Protection and Permanency (DCPP, or the Division) on July 23, 2012. She told the Division that she needed help caring for herself and her child due to her long-term substance problem and homelessness. She reported that she had used marijuana and cocaine shortly before calling, and expressed an interest in going into a substance abuse program that would allow her to receive treatment while caring for her son. J.M. tested positive for alcohol, cocaine, and marijuana. The Division also noted that J.M. had a history with the Division. Defendant had previously surrendered her parental rights of her older sons to her cousin, Mrs. J.
J.M.'s admissions, combined with the Division's independent investigation, led the Division to conduct an emergency removal. The Division subsequently filed an order to show cause to obtain custody of Jimmy. Mrs. J. contacted the Division in January 2012, and advised that she would be interested in caring for Jimmy. The Division considered placement with the J. family; however, Mrs. J. stated that her house was not large enough to accommodate another child at that time. Furthermore, Jimmy was not placed with the J. family because the distance from where defendant lived to the J.'s home would make visitation difficult. The Division removed Jimmy from J.M.'s care and placed him with his current caretakers, the M. family, where Jimmy currently resides.
This order was filed under Docket No. FN-12-76-12. The order is not included in the record. It is therefore unclear whether the Division proceeded under Title 9 or Title 30, and what findings the court made in connection with that order.
After the J. family had moved to a larger home, Mrs. J. again contacted the Division to express her interest in caring for Jimmy, and the court ordered the Division to explore placement with the J. family. Meanwhile, the Division referred J.M. to a "Mommy and Me" program, which allows parents to reside with their children during treatment. J.M. could not immediately enroll in the program as she was unable to get medical clearance due to ongoing health concerns.
The Division then referred J.M. to substance abuse programs at Raritan Bay and Journey to Wellness in December 2012, but she did not complete treatment. In December 2012, the Division continued to consider the J. family as a resource home, with an ultimate goal of reunification with J.M. Shortly afterwards, Jimmy's biological father came forward and expressed interest in gaining custody of Jimmy. The Division changed its goal from reunification with J.M. to reunification with the father, which the court approved.
J.M. regularly attended visits with Jimmy until December 2013, when her visitation became increasingly sporadic. She cancelled several visits. J.M. also ended visits with Jimmy early on numerous occasions. The court subsequently ordered a decrease in visitation to twice per month in May 2013. J.M. eventually began attending group and individual sessions at Journey to Wellness on October 9, 2013, and made progress in those programs.
Jimmy's biological father died in February 2014. On February 25, 2014, family members found J.M. in a room, unresponsive, and amid vials and needles containing cocaine; she went to the hospital to recover. In March 2014, J.M. was discharged from Journey to Wellness because she stopped attending counseling sessions. Although the Division offered to assist her with transportation to Journey to Wellness, she did not take advantage of the Division's resources.
In April 2014, a Division supervisor inquired about the J. family's performance as foster parents. The Division inspected their home and found that it had adequate space for Jimmy. In May 2014, J.M. was unable to visit with Jimmy because she had relocated to Massachusetts. J.M. subsequently moved to Camden, at which point her caseworker informed her that she needed to attend substance abuse treatment. J.M. never provided documentation of such treatment.
On September 8, 2014, the Division filed a guardianship complaint seeking to terminate J.M.'s parental rights. The Division contacted the J's to discuss visitation between Jimmy and his siblings in the J's custody and began facilitating these visits in November 2014. The Division ultimately chose not to place Jimmy with the J's, relying on its expert's conclusion that it would be detrimental to remove Jimmy from his resource parents.
J.M. was again admitted to Journey to Wellness on December 22, 2014. She did not attend sessions consistently, and she tested positive for cocaine, morphine, and codeine on January 7, 2015. She was discharged from the program for noncompliance in March 2015 after failing two drug screenings. Defendant's caseworker later put her in contact with Journey to Wellness to resume treatment; although she scheduled an appointment, she failed to attend. Shortly after, J.M. was arrested for engaging in a physical altercation with another woman. Marijuana was discovered on J.M.'s person during a search incident to arrest.
II.
The court conducted the guardianship trial on May 5, 6, 14, 18, 28, and 29, 2015. The court heard testimony from Division caseworker Joseph McRae, DCPP adoption worker Chad Miller, Mr. J., Mrs. J., Mrs. M., Dr. Alan J. Lee, and Dr. Chester Sigafoos. Defendant offered to make an identified surrender of Jimmy to Mrs. J. The Division rejected the offer to pursue termination of parental rights because the Division's expert had concluded that removal from the M. family would cause Jimmy substantial harm.
Dr. Lee testified about bonding evaluations he performed between Jimmy and J.M., and Jimmy and the M. family. He had been unable to conduct bonding evaluations with the J. family because Mrs. J. was unavailable. Dr. Lee expressed significant concerns regarding J.M.'s ability to care for Jimmy. He found that J.M. and Jimmy maintained an insecure, ambivalent attachment. Dr. Lee concluded that Jimmy would suffer serious and enduring harm if returned to J.M. because she would be unable to provide adequate parenting. Dr. Lee also concluded there was a low risk that Jimmy would suffer severe and enduring harm if J.M.'s relationship with Jimmy was terminated.
Dr. Sigafoos performed bonding evaluations with the M. family, the J. family, and Jimmy's half-brothers on behalf of the Law Guardian on January 2, 2015. Dr. Sigafoos concluded that Jimmy had a secure relationship with the M. family but expressed concern regarding Mrs. M.'s parenting style, which he stated was authoritative with elements of permissiveness. Dr. Sigafoos further testified that he found a "questionable bond" between Jimmy and Mrs. M., because Jimmy interacted more with Mr. M. during his observation. However, he also listed several factors that he considered indicative of a positive attachment between Jimmy and the M. family, including Jimmy seeming relaxed and happy, looking at people when communicating, showing emotion, engaging in age-appropriate activities, using speech appropriately for his age, responding to the M.'s limit-setting, responding positively to physical closeness, and showing signs of pride and joy. Dr. Sigafoos testified that Jimmy referred to Mr. and Mrs. M. as "mommy" and "daddy." Dr. Sigafoos testified that Jimmy showed signs of behavioral apprehension during the evaluation with the J. family.
Dr. Sigafoos disagreed with Dr. Lee's conclusion that there is a significant risk that Jimmy would suffer severe and enduring psychological harm if removed from the M. home. He drew this conclusion because he considered the evaluations to be "unfair," because Mrs. J. and Jimmy's half-brothers did not have proper visitation. Dr. Sigafoos concluded that if harm did result from Jimmy's removal, the J. family and Jimmy's half-brothers could assist Jimmy through the transition. However, Dr. Sigafoos concluded that it was too early in the relationship between Jimmy and the J. family to "really see an adequate bond being formed."
After hearing all of the evidence, the trial court applied the four-pronged "best interests of the child" analysis. See N.J.S.A. 30:4C-15.1(a). The court concluded that Jimmy's best interests would be served by termination of J.M.'s parental rights, and adoption by the M. family and entered an order of guardianship on June 11, 2015.
This appeal followed.
III.
J.M. presents two issues on appeal. First, J.M. asserts that the trial court made insufficient findings to support its conclusions relating to the third prong of the "best interests" analysis as described above because the Division and the trial court did not make reasonable efforts to aid defendant. Second, she argues that the Division failed to establish that terminating her parental rights to Jimmy would not do more harm than good under the fourth prong of the best interests analysis. We disagree.
"A reviewing court should uphold the factual findings undergirding the trial court's decision if they are supported by 'adequate, substantial and credible evidence' on the record." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010). However, "where the focus of the dispute is . . . 'alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom,' the traditional scope of review is expanded." In re Guardianship of J.T., 269 N.J. Super. 172, 188-189 (App. Div. 1993) (citing Snyder Realty, Inc. v. BMW of N. Am., Inc., 223 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989)). A trial judge's legal conclusions, and the application of those conclusions to facts, are reviewed de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
To establish that termination of parental rights is in the best interest of the child, the Division must demonstrate, by clear and convincing evidence, the elements of a four-prong test. Terminating parental rights is appropriate when:
(1) The child's health and development have 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 parents would cause serious and enduring emotional or psychological harm to the child;
(3) The Division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and
(4) Termination of parental rights will do no more harm than good.
[N.J.S.A. 30:4C-15.1(a)]
These criteria are not discrete and separate; they relate to one another and overlap to provide a comprehensive standard that identifies a child's best interests. In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). "The considerations involved in determinations of parental fitness are extremely fact sensitive and require particularized evidence that address the specific circumstances in the given case." N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 258-59 (App. Div. 2005) (internal quotation marks and citations omitted).
Because J.M. only addresses the trial court's determinations relating to prongs three and four, we limit our analysis to those prongs.
The third prong of the best interests analysis requires the Division to make reasonable efforts to provide services to help the parent correct the circumstances which led to the child's removal, and requires the trial court to thoroughly explore alternatives to termination of parental rights. N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 434 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002). As part of these efforts, the Division must assess relatives of a parent to consider whether placement with them may be appropriate. N.J. Div. of Youth & Family Servs. v. K.L.W., 419 N.J. Super. 568, 578 (App. Div. 2011). There is, however, no presumption in favor of placement with relatives. N.J. Div. of Youth and Family Servs. v. M.F., 357 N.J. Super. 515, 528-29 (App. Div. 2003).
Defendant argues that the Division failed to satisfy its obligations under N.J.S.A. 30:4C-12.1(6)(a) and 30:4C-12.1(6)(b) because the Division did not make reasonable efforts to place Jimmy with his siblings or to have the J. family adopt him. J.M. cites N.J. Div. of Youth & Family Servs. v. K.L.W., 419 N.J. Super. 568 (App. Div. 2011) in support of her argument.
In K.L.W., a maternal grandmother sought custody of a child whose birth mother had requested the Division not contact the grandmother due to privacy concerns. Id. at 571. The Division did not contact the grandmother, who already had custody of the child's siblings. We held that, by focusing on the mother's desires, the Division lost sight of the child's interests. Id. at 169. We concluded that "the Division's statutory obligation does not permit willful blindness and inexplicable delay in assessing and approving or disapproving a relative known to the Division, especially one whom the Division knows has custody of the child's siblings." Id. at 582. We noted that the Division may not "embark on a course set for termination of parental rights and adoption by a foster parent without at least exploring available relative placements." Id. at 580.
Here, the Division did engage and maintain contact with the J. family; it did not place Jimmy with them because, at the time, the Division's goal was reunification. Placement with the J. family would have made it difficult to maintain visitation between Jimmy and J.M., and could have hindered the effectiveness of her "Mommy and Me" program. Additionally, when the J. family was first considered for placement, they reported that their home did not have enough space for Jimmy.
Although J.M. now claims that services could have been effectively provided if Jimmy had been placed with his cousins, the Division had to engage in continuous and fluid balancing of competing interests while focusing on Jimmy's best interests. Initially, Mrs. J.'s home was too small to accommodate Jimmy when he was first removed. Although the Division could have relocated Jimmy after they moved to a larger home, the Division chose to keep Jimmy with the M. family in order to facilitate visitation, as the M's lived closer to J.M.
Finally, J.M. asserts that the Division's placement with the M's rather than the J's, and the bond that eventually formed, was "inherently unfair." J.M., however, conflates the interests of the J. family with those of Jimmy. Although the J. family may feel they are being treated unfairly, we focus on Jimmy's interests. The record amply supports the trial court's finding that Jimmy's interests are best served by remaining with the M. family.
In her reply brief, J.M. cites N.J.S.A. 10:133H-3.4(a), which lists factors the Division must consider in determining whether out-of-home placement should continue. These include whether the Division has made efforts to maintain the family relationship and whether the child should be placed with siblings. The Division must also consider whether such a placement serves the best interest of the child, and proximity of the placement to the child's family. J.M. offers no evidence that the Division failed to consider these factors. --------
J.M. also asserts that a reversal is warranted because the trial court incorrectly applied the fourth prong of the best interests test. The fourth prong of the best interest test requires a finding that the termination will not do more harm than good. N.J.S.A. 30:4C-15.1(a)(4).
J.M. argues that the trial record is insufficient to permit a determination as to the harm Jimmy will suffer if adopted by the M.s rather than the J's, because Jimmy was never placed with the J's. This hypothetical has no bearing on whether termination of her relationship would do more harm than good. Furthermore, J.M. did not proffer evidence that Jimmy will suffer harm if he remains with the M's and is not placed with the J's. Conversely, Dr. Lee testified that Jimmy would suffer harm if removed from the M. family.
J.M. also argues that the trial court failed to adequately consider the importance of sibling relationships in determining Jimmy's best interests. However, the court did address Jimmy's relationships with both families, and concluded that Jimmy's good relationship with the M. family weighed significantly in his placement decision. We discern no error in the courts determination.
Finally, J.M. argues that the court did not adequately consider a viable alternative to termination, namely kinship legal guardianship. The court did consider this alternative and concluded that there was no evidence that the J. family had an interest in caring for Jimmy while his mother addressed the issues that precluded her from caring for Jimmy; the only evidence on the record was that the J. family wanted to adopt Jimmy. There is also no evidence that defendant will ever be able to care for Jimmy.
We afford considerable deference to a family court's factual findings. M.C. III, supra, 201 N.J. at 343. The judge's opinion comports with the statutory requirements of N.J.S.A. 30:4C-15.1(a). See In re Guardianship of K.H.O., 161 N.J. 337, 347-48 (1999) and N.J. Div. of Youth and Fam. Servs. v. F.M., 211 N.J. 420, 448-49 (2012).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION