Opinion
DOCKET NO. A-0230-11T4
02-01-2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. G.G., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF D.G., S.G., N.G., A.G., and L.G., Minors.
Joseph E. Krakora, Public Defender, attorney for appellants (Douglas M. Greene, Designated Counsel, on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel and on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors D.G., S.G., N.G., A.G., and L.G. (Hector Ruiz, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner, Yannotti and Hoffman.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FG-19-12-11.
Joseph E. Krakora, Public Defender, attorney for appellants (Douglas M. Greene, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel and on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors D.G., S.G., N.G., A.G., and L.G. (Hector Ruiz, Designated Counsel, on the brief). PER CURIAM
G.G. appeals from an April 18, 2011 order terminating his parental rights to his five children, D.G., S.G, N.G., A.G., and L.G. In the trial court, defendant did not dispute that the Division of Youth and Family Services (Division) proved the first three prongs of the best interests test. See N.J.S.A. 30:4C-15.1a(1) to -15.1a(4). On this appeal, he argues for the first time that the Division did not prove the third prong, and also claims it did not satisfy the fourth prong. Finding that his appeal is without merit, we affirm.
On June 29, 2012, the Governor signed into law A-3101, which reorganized the Department of Children and Families, including the renaming of the Division of Youth and Family Services as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.
I
The evidence was set forth at length in Judge James A. Farber's oral opinion of April 18, 2011, and need not be repeated here in detail. In summary, defendant has a long history of drug abuse, incarceration, and child neglect. Despite the many services provided to him, at the trial there was no dispute that G.G. was still unable to act as a parent to his children and had no realistic prospect of becoming a fit parent in the foreseeable future. His own expert agreed with that assessment. Nonetheless, G.G. has a loving relationship with his children and does not wish to lose contact with them, nor they with him.
The children's mother, M.G., likewise has a history of drug addiction, incarceration, and child neglect. She did not appeal from the termination of her parental rights.
Fortunately, since July 2009, the children have been living with G.G.'s mother (the grandmother), who has been, and continues to be, willing to let G.G. visit the children so long as he is not using drugs. According to the grandmother's trial testimony, she also babysat the children on a regular basis before the Division became involved with the family. Therefore, they had a close relationship with her even before she became their foster parent. According to expert testimony, the grandmother and her husband have become the central parental figures in the children's lives.
At the trial, the grandmother explained that, while she initially thought kinship legal guardianship (KLG) would be a better option, she changed her mind in favor of adoption because KLG would involve "uncertainty" for her and the children. The grandmother testified that she wanted to be able to exercise full parental control over the children's upbringing. She wanted to be able to decide when the parents would be allowed to visit the children, rather than having a court make that decision. She also wanted to be able to take the children on out-of-state vacations without getting permission from the court or from the parents. She believed that adoption would avoid the possibility of future legal actions by the parents, which could require her to go back to court, and would avoid future involvement by the Division with her household.
See N.J.S.A. 3B:12A-1 to -7 (the Kinship Legal Guardianship Act).
Nonetheless, G.G. contended at the guardianship trial that KLG was a more appropriate alternative to termination of his parental rights. He also argued that the Division coerced the grandmother into choosing adoption over KLG.
In his April 18, 2011 opinion, Judge Farber found that the grandmother made a well-reasoned and voluntary choice of adoption instead of KLG, and he believed her testimony that she was committed to adopting the children. Based on that finding, he concluded as a matter of law that KLG was not a defense to the guardianship complaint. See N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 513 (2004); N.J. Div. of Youth & Family Servs. v. T.I., 423 N.J. Super. 127, 137 (App. Div. 2011). He also made findings on all four prongs of the best interests test and concluded that termination of G.G.'s parental rights would not do more harm than good and was in the children's best interests.
By leave granted, this appeal from the April 18, 2011 order was filed on September 8, 2011. According to the Division's appellate brief, the grandparents adopted all five children on September 14, 2011.
The judge found that G.G. was highly likely to have future contact with his children, despite the termination of his parental rights:
[A]lthough everyone recognizes that the adopting parent need not allow contact between the natural parent and the children, no one believes that in this case, again provided that [G.G.] is substance free, that [G.G.] will not be allowed continued and even extensive future contact with the five children.
There is also no reason to believe that if [G.G.] relapsed, that once he was clean again, his mother would not allow him again to see his children. And all the while the children would remain safe and secure in the [grandmother's] home.
II
In striking a balance between a parent's constitutional rights and the children's fundamental needs, courts engage in the four-part guardianship test articulated in N.J. Division of Youth and Family Services v. A.W., 103 N.J. 591, 604-11 (1986), and codified as N.J.S.A. 30:4C-15.1a:
a. The division shall initiate a petition to terminate parental rights on the grounds of
the "best interests of the child" pursuant to subsection (c) of section 15 of P.L. 1951, c. 138 (C. 30:4C-15) if the following standards are met:
(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; and
(4) Termination of parental rights will not do more harm than good.
In their application, the four factors "'are not discrete and separate, but relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests.'" N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 167 (2010) (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 606-07 (2007)).
On this appeal, our review of Judge Farber's decision is limited. Ordinarily, we defer to a trial judge's factual determinations unless those findings "'went so wide of the mark that a mistake must have been made.'" N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (citation omitted). We will not disturb the Family Part's factual findings so long as "they are 'supported by adequate, substantial and credible evidence.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1983) (citation omitted). And we owe special deference to the judge's credibility determinations. Cesare v. Cesare, 154 N.J. 394, 411-13 (1998).
Gauged by those standards, we find no basis to disturb Judge Farber's credibility determinations, his factual findings, or his decision to terminate G.G.'s parental rights. Having found that the grandmother was ready, willing, and able to adopt the children, and that adoption was her voluntary choice, the judge correctly concluded that KLG was not a defense to the guardianship complaint. See T.I., supra, 423 N.J. Super. at 137. His decision is supported by sufficient credible evidence in the record and is consistent with applicable law. See J.T., supra, 269 N.J. Super. at 188.
Further, on this record, we agree with the judge that there was no realistic likelihood that G.G. would lose contact with his children if his mother adopted them. In fact, there was an overwhelming likelihood that she would voluntarily permit visitation as long as G.G. remained drug free. See In re Guardianship of D.M.H., 161 N.J. 365, 386 (1999) (approving "informal and voluntary agreements for visitation by biological parents" where it is in the children's best interests). G.G.'s expert agreed that there "would be no harm" to the children if they continued to live with their grandmother and were still able to visit with their father.
We understand that defendant loves his children and hopes that he will someday become able to care for them. But, they cannot be required to wait for that day to arrive. Nor can defendant require his mother to care for the children indefinitely in a KLG arrangement that leaves open the chance of future legal proceedings and future interference with her ability to parent these children. See T.I., supra, 423 N.J. Super. at 137.
Defendant's appellate arguments are without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm, substantially for the reasons stated in the trial judge's opinion.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION