Opinion
DOCKET NO. A-5471-10T2 A-5574-10T2
03-07-2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. I.N.M. and S.P., Defendants-Appellants. IN THE MATTER OF THE GUARDIANSHIP OF A.D.N.M., a Minor.
Joseph E. Krakora, Public Defender, attorney for appellant I.N.M. (Dianne Glenn, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant S.P. (Gregory K. Byrd, Designated Counsel, on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Christina E. Ramundo, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for the minor (Olivia Belfatto-Crisp, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Sabatino and Fasciale.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-44-11.
Joseph E. Krakora, Public Defender, attorney for appellant I.N.M. (Dianne Glenn, Designated Counsel, on the brief).
Joseph E. Krakora, Public Defender, attorney for appellant S.P. (Gregory K. Byrd, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Christina E. Ramundo, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for the minor (Olivia Belfatto-Crisp, Assistant Deputy Public Defender, on the brief). PER CURIAM
In these consolidated appeals, defendants I.N.M. ("the mother") and S.P. ("the father"), contest the trial court's termination of their parental rights as to their biological son, A.D.N.M. ("Alan" or "the son"), following a May 2011 trial. After considering defendants' arguments in light of the record and the applicable law, we affirm.
We use a fictitious name for the son.
I.
Alan was born in July 2009. He is the mother's third of four children. The mother's failure to care adequately for the older two children resulted in the termination of her parental rights as to them. The record indicates that her fourth child has been placed in the care and custody of the Division. The parties were not married to one another.
We sustained those terminations on appeal. In re R.R.M. and K.N.S., No. A-5835-09 (App. Div. Oct. 27, 2011).
The father is a warehouse worker with a twelfth grade education. He has a criminal record, having pled guilty in December 2003 to third-degree receipt of stolen property and again in January 2004 to another such offense. He was sentenced on these first two convictions to concurrent terms of four years. More recently, in January 2010, the father pled guilty to third-degree theft by unlawful taking and was sentenced to three years, with a one-year period of parole ineligibility. Between April 2009 and August 2010, the father was confined at a youth correctional facility and thereafter at a halfway house. The father has two other children, one of whom is a younger sibling of Alan and is also the subject of the Division's involvement.
The Division has been involved with the mother and her children since September 2007. When she prematurely gave birth to Alan in July 2009, she was twenty years old at the time. Based upon the mother's prior charges of neglect, her homelessness, and failure to get medical care for her children, a social worker from the hospital called a referral into the Division. The call indicated that Alan was born prematurely, had a low birth weight, and had been placed in the Neonatal Intensive Care Unit at the hospital. The Division substantiated the allegations against the mother for neglect, finding that she posed a substantial risk of physical injury to Alan based on her adverse history with the Division. Three days after his birth, the Division obtained temporary custody of Alan by court order.
The Division arranged for the mother to have supervised visitation with Alan at Family Connections beginning in August 2009. The mother was terminated from Family Connections for missing at least the first four consecutive scheduled sessions. Although her case was reopened and the mother then attended six sessions, she stopped attending thereafter. Consequently, Family Connections closed her case in November 2009 due to lack of attendance.
In October 2009, the mother began visiting Alan at Tri-City Peoples Corporation ("Tri-City"). She arrived late several times, and on multiple other occasions her visits were cancelled for various reasons. By the end of March 2010, Tri-City terminated the mother from its program for poor attendance.
The Division referred the mother to the Final Stop Program for parenting classes. However, she informed the Division she was not doing any parenting classes and, in June 2010, was terminated from that program due to failure to attend.
In January 2011, the mother agreed to a visitation plan for Alan of two hours per week at a Division office. According to the adoption worker, the mother missed half of her scheduled visits, and completely failed to visit Alan from November 2010 to January 2011.
In April 2011, the Division referred the mother to the Babysteps Program of the Youth Consultation Service ("YCS"), which helps build parenting skills and relationships between parents and children. YCS noted that the mother was "strongly invested in reuniting with her children" and "demonstrate[d] positive interactions with other group members." However, the mother missed two of the seven scheduled sessions.
The Division had also provided educational and work assistance to the mother, even before Alan's birth. These efforts included transportation to the Division of Vocational Rehabilitation and assisting her enrollment into the "Ticket to Work" program at Fresh Start.
Also prior to Alan's birth, the Division submitted in November 2008 a request for the mother's receipt of services from the Division of Developmental Disabilities ("DDD"), noting that her IQ level was 69, and that she had been classified as "Multiple Disabled." The DDD wrote back to the Division requesting additional information, such as a psychological evaluation, a description of the mother's functioning level, and her school records. The Division requested that the mother complete the application, but she indicated she was not interested in doing so. The mother also twice failed to attend GED placement tests and was frequently absent from the high school classes in which she was enrolled, despite the school's indication that she would benefit from more intensive instruction as a special needs student.
The record also reflects that the mother has a history of drug dependency. In May 2008, she tested positive for marijuana. Three months later, Catholic Charities diagnosed the mother with cannabis abuse and recommended her to Level I treatment at New Directions Behavioral Health Center ("New Directions"), a substance abuse center, beginning in August 2008.
Through the Division's assistance, the mother began group sessions at New Directions in August 2008. She was late or absent for several sessions. As of October 2008, the mother had attended eleven days of treatment at New Directions. However, she was described as "resistant to treatment and her participation was minimal." Thereafter, she failed to return to treatment or call to inform New Directions of her status. Later that month, New Directions discharged the mother for lack of attendance, resistance to treatment, and minimal participation.
The Division then scheduled an appointment for the mother in December 2008 with the New Community Corporation for a drug program intake. In January 2009, she interviewed for and was accepted into the Level III intensive outpatient program at Gateway to Freedom, which required attendance three times per week for a minimum of ninety days. She initially "had poor attendance" in that program and tested positive for marijuana in late January 2009.
In March 2009, Gateway to Freedom assessed the mother's status. The program rated her poor for attendance, self-esteem, communication and decision-making skills, employment and education, social and interpersonal functioning, attitude, development of coping mechanisms, family and marital relationships, and emotional and behavioral functioning. Her medical and health status was deemed fair, her mood fluctuated, she had minimal insight into her problems, blamed others, had confused thought processes, and was defensive towards treatment. Consequently, Gateway discharged the mother for failure to perform, noting that she had poor attendance, minimal involvement, and had been confrontational with staff members.
At an ensuing hearing in the Family Part in December 2010, the Division notified the court that the mother was again in substance abuse treatment and was required to complete the program. The mother's counsel stated she had no objection to that requirement.
On March 14, 2011, New Directions informed the Division that the mother had not returned for outpatient drug treatment since January 14, 2011, "and in effect ha[d] withdrawn from the program." New Directions permitted her to make up her missed hours during the week, noting that, "[i]n her defense," the mother had recently given birth and had informed the program that she would return to treatment after securing child care. Nevertheless, the mother had made "little progress in terms of her developing insight into her use of illicit drugs and the impact on her life."
Subsequently, the mother made progress in her recovery. As of May 2011, the mother had not tested positive for drugs for two years.
The Division's efforts to place the mother in housing also dates back to before Alan's birth. In August 2008, Catholic Charities recommended placement at the Covenant House shelter, noting that the mother had never maintained a full-time job, was not working at all, and was not looking for work. She obtained a bed at the Covenant House, but failed to complete orientation or attend any other scheduled classes or groups. She missed curfew the day after she was admitted, and had been leaving regularly before 7 a.m. A week after her admission, she was discharged from the Covenant House for failure to comply with the curfew and other rules and regulations. This left her homeless.
In March 2009, the Division contacted Great Expectations seeking placement for the mother in a residential program. The following day, the mother initially told the Division that she did not want to enroll into a residential program even though it was recommended by the court. She later agreed to attend an appointment for enrollment; however, when the Division arrived to bring the mother to her appointment, she failed to appear.
Great Expectations provides group and individual sessions to address a resident's addiction, and also offers educational assistance.
On July 23, 2009, the Division filed for and was granted temporary custody of Alan. The mother stipulated in the case that "she lacks safe and appropriate housing and has a history with the Division, including a history of non-compliance with drug treatment, which places her son [Alan] at substantial risk of harm."
In December 2009, the trial court held a compliance review hearing, in which it ordered the Division to again refer the mother to parenting skills classes and for the mother to attend substance abuse treatment at New Directions. In April 2010, the mother, but not the father, appeared for a compliance review hearing, at which the court accepted into evidence Dr. Alexander Iofin's psychological evaluation of the mother. The evaluation indicated she had "significant cognitive limitations" and "her ability to provide minimally adequate care for any minor child . . . is permanently compromised by her very significant and unchangeable cognitive limitations, significant learning disabilities, and difficulties with judgment."
On May 20, 2010, defendants appeared before the court for a permanency hearing. The court found the Division's termination plan was appropriate and reasonable because it was not safe to return Alan to the mother's custody. The court noted that the mother had previously had her parental rights terminated, her other children were not under her care and custody, and that she was unable to parent. In addition, the court noted that the father had been incarcerated throughout the litigation and had yet to develop a plan for the child. Moreover, the Division was found to have provided reasonable efforts to finalize the permanent plan, including reunification through visitation, assessment of relatives, provision of transportation, and DNA testing for potential fathers. The court further observed that Alan "ha[d] been in placement for over a year and [was] entitled to permanency."
On July 14, 2010, defendants appeared before the court for permanency and compliance review hearings. At that proceeding, the court determined that the permanency plan was no longer appropriate or acceptable because the father was to be released to a halfway house in a month. The court again noted that the Division had put forth reasonable efforts to provide services, including: assessment of relatives; referrals to parenting classes and anger management; referrals to several drug treatment programs; psychological and psychiatric evaluations; counseling; searches for the father; paternity testing; supervised visits; appointments with medical specialists for Alan; Medicaid; and board rates and bus cards. The court ordered the Division to provide the father with additional services, and weekly visitation for both parents with Alan. It also ordered the father, upon his release, to find safe and appropriate housing and participate in services, including parenting classes, substance abuse assessments, and a psychological evaluation.
The court next held permanency and compliance review hearings in August 2010, which only the mother attended. The court ordered the Division to investigate the availability of facilities providing twenty-four-hour assistance for the mother and to verify with DDD whether it had assessed her application for such a facility.
Defendants appeared at an ensuing September 15, 2010 permanency and compliance review hearing. By that point, the father had been released to a halfway house. The court ordered the Division to assess the father's nephew as a possible caretaker for Alan.
In October 2010, the mother appeared, again without the father, before the court for another permanency and compliance review hearing. At this point, the court revived its previous conclusion, finding that the Division's permanency plan of termination of parental rights, followed by adoption of Alan, was once again appropriate and acceptable. As to the mother, the court found that she had failed to successfully participate in the provided services or attend visitations regularly. The court also noted Dr. Iofin's opinion that the mother was not capable of providing adequate parental supervision, and the fact that her parental rights had been terminated as to her two other children. As to the father, the court noted that he had been incarcerated from before Alan's birth until being released to a halfway house; he had not formed a relationship with Alan; he lacked employment; he had failed to participate in any services to prepare him for parenting due to his incarceration and the rules of the halfway house; and, after violating the halfway house rules, he was required to complete another "black-opt" period, prolonging his completion of services and ability to seek employment. The court also found, for the same reasons as it had previously noted, that the Division had expended reasonable efforts to provide services to finalize the plan.
Accordingly, on October 25, 2010, the Division filed a guardianship complaint and order to show cause against defendants, seeking the custody, care, and supervision of Alan pursuant to N.J.S.A. 9:6-1 to -8.106, and N.J.S.A. 30:4C-15. Shortly thereafter, the court dismissed the Title Nine litigation.
In March 2011, the trial court noted that Alan's foster family had expressed an interest in adoption. Later that month, the court ordered the mother and father to attend psychological and bonding evaluations with the son.
The guardianship case was tried over three days in May 2011. The Division presented the expert testimony of Leslie Williams, Ph.D., who had conducted a psychological evaluation of the mother, and bonding evaluations of the mother, Alan, and Alan's foster parents. The Division also presented testimony from Dione Adams, Alan's adoption caseworker, and Olubukola Adeoti, a social worker in the Permanency Unit of the Division. The Law Guardian presented the testimony of Dr. Eric Kirschner, Ph.D., who had conducted a psychological evaluation of the mother, as well as a bonding evaluation of Alan with his mother and of Alan with his foster parents. Defendants neither testified nor presented any witnesses.
The Division also presented at trial psychological evaluations by Diane McCabe, Ed.D., Dr. Jason Fleming, Psy.D., and Dr. Iofin. Although these additional experts did not testify at trial, their reports were admitted for the limited purpose of showing that the evaluations had been performed and that certain recommendations had been made.
Dr. Williams testified that he had conducted an interview with the mother as well as bonding evaluations between Alan and her and Alan and his foster family. He also reviewed various documents relating to Alan and the parents. Dr. Williams was unable to meet with the father, who failed to attend numerous appointments.
Regarding the bonding evaluations, Dr. Williams opined in his pretrial report:
[Alan] would suffer severe psychological harm if he were removed from [his foster parents]. . . . However, due to his age, I cannot opine that [Alan] would suffer permanent distress. Theoretically, he is capable of bonding with other caregivers;Dr. Williams continued:
provided that any new caregiver also provides a stable, loving home, and is able to meet [Alan's] physical and emotional needs as [his foster parents] have been doing. [The mother] has not demonstrated an ability to do this.
In my professional opinion, within a reasonable degree of psychological certainty, [the mother] is not capable of providing adequate parenting [to Alan] and is unlikely [to] ever be able to independently do so. She has multiple learning, intellectual and emotional deficits that she has struggled with her whole life. Additionally, [the mother] has had more than enough time to address some of those issues (psychological and substance abuse treatment, stable housing), and chose not to do so. [Alan] would be at risk for neglect, at a minimum, [i]f placed with [the mother]. It is in [Alan's] best interest to remain with [the foster parents] and be adopted by them.
Dr. Williams testified in accordance with his report, which was admitted into evidence. He also added his belief that no program or service would render the mother capable of independently parenting Alan. According to Dr. Williams, the mother was unable to recognize her responsibility for the placement of her children with the Division, suggesting that she is unlikely capable of making the necessary changes to safely and appropriately parent Alan. Although the mother could learn "very specific simple [parenting] skills," such skills would be insufficient to enable her to independently parent Alan. He further opined that the mother was not committed to reunification, based on her noncompliance with the Division's provided programs.
During his testimony, Dr. Williams acknowledged that certain programs exist which provide twenty-four-hour supervision for mentally retarded residents and their children. Such programs, however, to the extent of the expert's knowledge, were not designed for individuals with children, but rather were for individuals who were already enrolled and happened to become pregnant. He further opined that no program would improve the mother's cognitive abilities in this case.
As noted, the father failed to attend multiple scheduled appointments with Dr. Williams, so no psychological or bonding evaluation was able to be conducted. Dr. Williams hypothesized, however, that had the father only visited with Alan once, a bond would not have formed because bonding is an "ongoing process" requiring consistent interaction with a child.
Dr. Kirschner, the forensic psychologist retained by the Law Guardian, conducted a psychological evaluation of the mother, and a bonding evaluation of the mother with Alan and her two oldest children between January and March 2010. Dr. Kirschner was unable to evaluate the father, who missed two scheduled interviews.
Based on the mother's clinical interview, Dr. Kirschner determined that she "failed to demonstrate [a] significant change or improvement of her psychological functioning since her prior evaluation . . . in January 2010." Dr. Kirschner noted that the mother read at a first grade level and that she was unemployed and had no work history experience. Additionally, Dr. Kirschner observed that the mother "lacked the psychological capacity to adequately meet [Alan's] needs for protection, nurturance, stability and guidance." He predicted that her inability to be an appropriate parent was "not likely to be mitigated further by receiving additional services." Accordingly, Dr. Kirschner opined, "based on a reasonable degree of psychological certainty[,] that placing [Alan] in the care of [the mother] would expose him to a heightened risk of harm."
As to the bonding evaluation, Dr. Kirschner determined that "a parent-child bond and secure attachment relationship" had formed between Alan and his foster parents, which was "remarkable given the short period of time" that the child resided with them. Dr. Kirschner predicted that severing Alan's relationship with his foster parents would likely cause "psychological harm as manifested by developmental, emotional and behavioral regression." He noted that Alan, who was then approaching the age of two, was "at an important juncture in his ability to develop attachments" and "could develop the cognitive ability to internalize an internal working model of attachment in the next three to six months." Accordingly, Dr. Kirschner concluded that "it was in [Alan's] best interests for [the mother's] parental rights to be terminated" so as to permit adoption by his foster parents.
At trial, Dr. Kirschner testified in accordance with his report, which was in evidence. He underscored that Alan and his foster parents had exhibited during the bonding evaluation many "healthy and positive" aspects of a child-parent relationship. Additionally, the foster parents had informed Dr. Kirschner that they were "fully committed" to adopting Alan.
Dr. Kirschner further testified that the mother is incapable of independently parenting Alan. He agreed that he would not recommend the Division, as counsel's question to him phrased it, "wait and see if there's a change in circumstances before proceeding with this [permanency] plan." Additionally, Dr. Kirschner noted that the mother's failure to participate in the Division's provided services reflected "a lack of commitment to participate in the very services that would be geared towards ultimately obtaining reunification with [Alan]." Furthermore, Dr. Kirschner expressly agreed with the Division's adoption plan.
The Division's witnesses also recounted at trial its numerous efforts to seek alternatives to terminating defendants' parental rights. The Division had ruled out Alan's maternal grandmother, C.W., due to substantiated prior findings that she had abused and neglected a child and because she lacked stable housing. The Division also explained that it had ruled out the father's sister, T.W., as a caretaker for Alan because she had stated that her poor health would prevent her from caring for Alan and also because she could not provide a suitable living arrangement for him.
T.W. suggested her son, H. (the father's nephew), who lived in Maryland. It appears that the father likewise had suggested H., although with regard to caring for his younger son, and not Alan. A Division caseworker accordingly called H. and left a message. H. returned the call, but only with regard to caring for the father's younger son. The caseworker explained that the Division was seeking to place Alan. H. stated that a Maryland state worker had been to his house, questioning him about day care, insurance, and financial assistance. The worker requested that H. keep the Division abreast of any changes. The record does not reflect any further, or more promising, developments as to H.'s potential caretaker status.
The record does not contain H.'s first name.
The Division also conducted an interstate assessment of the mother's uncle, T.M., who lived in South Carolina. T.M. was ruled out after missing an intake appointment.
After considering these proofs, the trial judge, Hon. David B. Katz, found Adams, Adeoti, Dr. Kirschner, and Dr. Williams all to be credible witnesses. The judge concluded that the Division, pursuant to N.J.S.A. 30:4C-15.1(a), "demonstrated and proved clearly and convincingly" that defendants' parental rights to Alan should be terminated, because the Division's proofs "satisfied each prong of the best interest standard by clear and convincing evidence that it is in the best interest of [Alan]" to terminate both the mother's and the father's parental rights.
On appeal, the mother only challenges the judge's finding against her on the third prong. Our review of the judge's decision as to her is limited accordingly.
More specifically, Judge Katz found the Division satisfied the first prong as to the father because he:
has visited with [Alan] only once, he has not significantly participated in any of the services set up by the Division, and he was incarcerated at the time of [Alan's] birth and currently lives in a half-way house. It is evident by his inaction and his present circumstances that [the father] is also not offering a safe and stable home for [Alan] or preventing any harm that may come to him.As to the second prong concerning the father, Judge Katz determined that he:
failed to remedy any issues the Division had with placing [Alan] in his care and custody. [The father] has failed to visit regularly with [Alan], as he has only showed up for one visit with his child before his visitation was subsequently terminated due to three consecutive missed visits. Additionally, due to his incarceration and placement in a half-way house following his release, [the father] has been unable to secure an adequate living environment in which he could raise his son. He has also failed to complete any parenting skills programs to demonstrate his ability to be a potential placement for [Alan].Furthermore, the judge found that the father had a "history of instability [and] incarceration" and, at that time, "live[d] in a half-way house, which is an unsuitable living arrangement for [Alan.]"
Judge Katz next found the Division satisfied the third prong as to the father because it had "provided ample and regular services aimed at the particular problems that [led] to [Alan's] removal in the first instance." The Division provided, in the judge's words, a "focused, concerted effort at helping this family by strengthening it and attempting to reunify it." The judge also noted that the father demonstrated an "unwillingness and disinterest to care for [Alan]" by failing to comply with the provided psychological and bonding evaluations, maintain contact with the Division, or regularly appear in court.
Similarly, regarding the mother, the judge was satisfied that the Division provided "parenting classes, educational support, visitation, substance abuse treatment, therapy and anger management," in addition to attempts to place her in a residential treatment facility. The mother, however, did not complete any of the drug treatment programs, did not show progress through her parenting or educational classes, and was terminated from visitations on several occasions due to failure to attend.
Moreover, the judge concluded that the Division had sufficiently considered alternatives to termination, including placement with relatives who were ruled out due to "reasons unrelated to the Division's efforts[.]" Additionally, "[t]he Division was unable to locate a [twenty-four-]hour facility that would be able to house [the mother] and her child, as testified to by the caseworker." The judge noted that "[t]here is nothing to contradict the reliable testimony of the caseworker that in good faith looked for a [twenty-four-]hour facility and could not locate one."
As to the fourth prong, Judge Katz determined that termination will not do Alan more harm than good. The judge credited the testimony of Drs. Kirschner and Williams, who as we have already noted, opined that Alan had formed an attachment relationship with his foster parents and his best interests would be satisfied by permitting the foster parents to adopt him. The foster parents also expressed a commitment to adopting Alan and an ability to provide him with a "permanent home with nurturing adults[.]" In contrast, the father "ha[d] only seen [Alan] once in visitation, and thus ha[d] no relationship with [Alan]. Therefore, no harm can flow to [Alan] from terminating the father's natural parental rights."
Based on this analysis, Judge Katz terminated defendants' parental rights to Alan, granted guardianship of Alan to the Division, and accepted its permanency plan.
II.
The applicable statutory standards for the termination of parental rights are well established. In termination cases brought by the Division, it must establish by clear and convincing evidence each of the following four factors:
(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;These factors are not viewed in isolation, but rather "they relate to and overlap with one another 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).
(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 [D]ivision 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.
[N.J.S.A. 30:4C-15.1a.]
Our standard of review of the analysis of the termination factors by Family Part judges is limited. In general, appellate tribunals will not disturb a family court's decision to terminate parental rights "when there is substantial credible evidence in the record to support the court's findings." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008). Rather, we will intervene only when the trial court's "conclusions are so 'clearly mistaken' or 'wide of the mark'" that failing to intervene will result in a denial of justice. Ibid. In exercising that limited review, however, we remain mindful of parents' constitutional rights to raise and maintain relationships with their children without undue governmental interference. Id. at 102.
In her own appeal, the mother only contests the trial court's findings as to the third statutory factor, focusing upon whether the Division made "reasonable efforts" to provide her with services, and whether the court adequately "considered alternatives to termination[.]" The father, meanwhile, contests the trial court's adverse findings to him individually for all four statutory factors. In opposition, the Division and the Law Guardian urge that we sustain the trial court's determinations.
Having considered defendants' arguments in light of the record and the applicable law, we affirm the termination of their parental rights, substantially for the comprehensive reasons set forth in Judge Katz's oral opinion dated May 31, 2011, and his supplemental eighty-one-page written opinion dated June 17, 2011. We amplify his analysis with a few brief comments.
As to the mother, the record ineluctably demonstrates that the Division provided her with reasonable services. The mother is unfortunately a low-functioning adult with her own limitations. She has been unable to raise her other children, all of whom have been the subject of the Division's intervention. She has relapsed from drug abuse several times. Every expert who evaluated her concluded that she lacks sufficient capability to care for Alan, despite repeated attempts by the Division to offer programs and services and visitation opportunities. The Division unquestionably has made diligent attempts over a lengthy period to correct the circumstances that led to the child's removal, but to no avail.
The mother does not argue in her brief that the Division failed to consider alternative caretakers.
With respect to the father, the trial court likewise had ample grounds to terminate his parental rights. The father was incarcerated when the son was born. He has been incarcerated for much of the son's life. The two of them evidently have only been together on two occasions, one of which occurred while the father was incarcerated. Although the father has attended parenting classes, he missed several opportunities in which he might have attempted to establish some form of bond with Alan. He also failed to comply with various services offered by the Division and to submit to required psychological and bonding evaluations despite multiple appointments scheduled for him to meet prior to trial with the only two testifying experts.
As the trial judge found, multiple alternatives to termination were also sufficiently explored. Although the record is limited with respect to the father's Maryland relative "H" as a theoretical caretaker, there is no affirmative indication that H. actually possessed the capacity to raise Alan. It is speculative to conclude that if the Division had further contact with H., such contact would have been fruitful. On the whole, the Division's efforts to look into multiple alternatives were reasonable. Any shortcomings in its investigation of H. are manifestly outweighed by the strong factors otherwise weighing in support of the trial court's decision. K.H.O., supra, 161 N.J. at 348 (noting the interdependency of the four statutory criteria).
Although the father does not cite it in his brief, we note that N.J.S.A. 30:4C-12.1 calls for 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 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 attempts 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"). In K.L.W., this court ultimately remanded the trial court's termination of parental rights, because the Division had failed to consider the child's maternal grandparents, who already had custody of the child's other siblings. Id. at 581-83. In reaching that decision, we held that the Division's obligation "does not permit willful blindness and inexplicable delay in assessing" a relative. However, we also noted that there is not "an obligation to search the fifty states or even the twenty-one counties to identify a parents siblings, cousins, uncles and aunts." Id. at 582. We are satisfied that the facts here are sufficiently distinguishable from K.L.W. that we elect to defer to the trial court's assessment of the Division's attempts to search for the parents' relatives. Although N.J.S.A. 30:4C-12.1 does not limit the Division's obligation to the relatives that the parent suggests, it is of some significance that H. was brought to the attention of the Division by T.W., not the father, after T.W. was found to be an unsuitable caretaker. The record also indicates that two weeks passed between when the Division reached out to H. and when he returned their call. Although H. expressed a willingness on that call to care for the father's child, he was initially under the mistaken impression that the prospective child was the father's youngest son, not Alan. Despite being informed in August 2010 that H. was being considered as a caretaker for Alan, when H. spoke with the Division at the end of October 2010 he was inexplicably still under the impression that he would be obtaining custody for the other son. Furthermore, unlike K.L.W., there is no indication that H. was in custody of any of Alan's siblings. See K.L.W., supra, 419 N.J. Super. at 568 (noting that the Division's obligation to consider a relative "especially [applies to] one whom the Division knows has custody of the child's siblings" (emphasis added)).
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The unrefuted expert testimony, which the trial judge reasonably accepted, is that the child's best interests lie with his foster parents, who wish to adopt him. All four elements of the statutory test were demonstrated, as to both parents, by clear and convincing proof.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION