Opinion
DOCKET NO. A-3442-11T4
03-22-2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. N.T.S., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF J.T.S., a minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Emily J. Daher, Designated Counsel, on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Barbara J.K. Lopez, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for J.T.S., a minor (David Valentin, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Sapp-Peterson.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-111-11.
Joseph E. Krakora, Public Defender, attorney for appellant (Emily J. Daher, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Barbara J.K. Lopez, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for J.T.S., a minor (David Valentin, Assistant Deputy Public Defender, on the brief). PER CURIAM
S.W.W. and N.T.S. are the biological parents of J.T.S., born on November 24, 2009. N.T.S. appeals from the trial court order entered by Judge Garry J. Furnari terminating his parental rights to J.T.S. and granting guardianship to the Division of Youth and Family Services (Division) after finding the Division proved all four prongs of the best interests test, N.J.S.A. 30:4C-15.1(a), by clear and convincing evidence. The Law Guardian supports the termination on appeal, as it did before the trial court. N.T.S. contends the evidence the Division presented was insufficient to satisfy its statutory burden to establish that termination was in J.T.S.'s best interest. We disagree and affirm, substantially for the reasons expressed by Judge Furnari in his January 13, 2013 oral opinion, later supplemented by his January 17, 2012 written opinion.
The order also terminated S.W.W.'s rights. She has not appealed this determination.
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In addition to J.T.S., N.T.S. and S.W.W. have another child together, S.S., and their parental rights to S.S. were previously terminated due to their prior history of substance abuse and mental health issues that neither parent has been able to positively address. J.T.S. lives with W.W., his paternal aunt who has also adopted S.S. and with whom J.T.S. was placed five months after his birth.
The guardianship trial occurred over three non-consecutive days: January 4, 6, and 13, 2012. The Division presented caseworker, Jackie Molelus, and, as its expert witness, psychologist Charles E. Daly, Ph.D. The Law Guardian presented psychologist Antonio W. Burr, Ph.D., as an expert witness. N.T.S. testified on his own behalf and presented no witnesses. S.W.W. did not appear.
J.T.S., at the time of his premature birth, weighed four pounds and six ounces. S.W.W.'s urine tested positive for cocaine, opiates and benzodiazepine, and J.T.S.'s meconium tested positive for cocaine and marijuana. He was monitored for drug withdrawal and his drug scores were elevated. However, he did not require treatment. His placement with his maternal aunt at five months was consistent with N.T.S.'s plan.
Moleus testified that she had been assigned as J.T.S.'s caseworker since January 2011, and that she was "not sure what the Division's plan was in the beginning because [she] wasn't the worker then[,]" but when N.T.S. "made it clear that he did not want to plan for his child, then adoption was the goal." She testified the Division offered "[p]sychological and psychiatric evaluations, substance abuse assessments, [and] visitations" to N.T.S. N.T.S. reported he was receiving counseling and medication from Veterans Affairs (V.A.). Moleus testified that "[b]ecause the Division felt that since all recommendations stated that he was not able to care for his child, there was no need to [offer counseling services or psychiatric treatment]. And [N.T.S.] also admitted that he did not want to care for [J.T.S.] as well." She further testified that to the extent N.T.S. offered himself as a placement plan for J.T.S., the Division's concerns continued to be N.T.S.'s continued association with S.W.W. and the substance abuse and mental health issues in the home as a result of their relationship, as well as N.T.S.'s expressed position that he did not want to care for J.T.S.
Dr. Daly, who was accepted as an expert without objection, testified the Division requested that he perform a psychological evaluation. He reviewed prior records related to N.T.S. which the Division provided. During his evaluation, N.T.S. reported to him that he did not have a good relationship with S.W.W., had been involved in domestic violence with her, had reported her to the Division, and did not want his children raised by an addict, a condition which N.T.S. told Dr. Daly he was unaware of when he and S.W.W. first met.
Dr. Daly testified that N.T.S. performed well on the Adult Adolescent Parenting Inventory, which measures knowledge of child development and is highly correlated with child abuse. The doctor explained that N.T.S. "knows the correct things to do with regard to child rearing." Based upon his records review, testing and interview of N.T.S., the doctor testified that N.T.S.'s psychological ability was much better than he had anticipated. Nonetheless, he questioned N.T.S.'s ability to parent, in light of N.T.S.'s own admission that he could not parent by himself. Dr. Daly stated that he "took the man at his word in conjunction with the other questions that [he] asked in the clinical . . . interview. And concluded that he would not be a suitable custodial parent."
Dr. Daly also testified that N.T.S. told him he was not in a relationship with S.W.W. but spoke to her on the phone occasionally. The doctor explained that if N.T.S. were still in a relationship with S.W.W., in his opinion, that would speak to N.T.S.'s decision-making and judgment because it would be a relationship with "no place to go" if S.W.W. was still abusing drugs.
Dr. Burr, whose qualifications as an expert were also accepted without objection, testified that he conducted a psychological evaluation of N.T.S. and a bonding evaluation between N.T.S. and J.T.S., as well as between J.T.S. and his foster parents. He explained that he was asked to assess N.T.S.'s ability to parent independently. Prior to reaching his recommendation, he reviewed documents and records from which he learned of N.T.S.'s previous hospitalizations and diagnosis and treatment for chronic paranoid schizophrenia. He testified that other clinicians had diagnosed N.T.S. as suffering from Post Traumatic Stress Disorder and "schizo-affective, a schizo type personality disorder." Dr. Burr also performed testing that revealed N.T.S. demonstrated average intelligence and had no brain dysfunction. He found that N.T.S.'s "approach to the unfamiliar problems was fairly vague," and that although N.T.S. "has adequate common sense thinking[,]" he had limited "problem solving capacities . . . especially when it came to problems that have emotional dimensions to them."
Dr. Burr testified N.T.S. told him that following his release from prison for killing his father, he had two charges of assault, one of which the doctor found "very significant in relation to [the guardianship case]." Specifically, N.T.S. told him that one incident involved a man who spoke in way that reminded him of his father. The doctor explained the significance of this incident is "[b]ecause it is congruent with the symptomatology of Post Traumatic Stress Disorder. It is congruent with the process by which some negative stimulation is elicited in a person and the reaction is again not entirely incongruent with that diagnosis."
In his report prepared following his evaluation, he expressed the opinion that N.T.S.'s "mental condition would always potentially place [J.T.S.] at some significant degree of risk with physical and/or emotional integrity." At trial, he expounded upon how he reached that opinion:
First of all, the . . . potential for decompensation is very high. And what that means is that if [N.T.S.] were to decide not to take his medication or miss medication for [a] certain period of time, that a process of mental decompensation could set in that would or might incline him to act in ways that are clearly not protective or dangerous or neglectful to a child.
Turning to his bonding evaluation, Dr. Burr testified he observed that N.T.S. was quite affectionate towards J.T.S. but missed so many of the subtle cues and some not so subtle cues, such as not understanding that at one and one-half years old, J.T.S. could not verbalize in the manner that N.T.S. expected. In another example of what the doctor characterized as missed cues, N.T.S. gave J.T.S. a musical instrument "in a way [that] it precluded his own interaction and communication with the child." He also described N.T.S.'s attempt to get J.T.S. to play with a toy shark, and when J.T.S. became visibly frightened, N.T.S. reacted by throwing a Winnie the Pooh at J.T.S. While there was no harm done to J.T.S., Dr. Burr testified that N.T.S. did this in the "presence of a psychologist and we're talking about a bonding observation where evidently your relationship of a parent with a child is under very close scrutiny." He explained:
That would concern me, not because it was an event that harmed the child in any way, but there was a certain style in the relation that would concern me were the child to be under his care.
[J.T.S.], a couple of times at least[,] made a move to go to the door. The foster parents were on the other side. So generally my impression was that [N.T.S.] sort of related to the child in a more[,] sort of as an older brother who was sort of fun to be around, rather than with the sort of the seriousness or the attention that a parental figure would provide.
. . . .
. . . [M]y opinion is that he does not view [N.T.S.] as a primary parental figure. He views . . . he's habituated to him, he knows him, but he does not relate to him as someone whom he would be bonded to in the sense that he would to him for the satisfaction of his physical or emotional needs.
Turning to the bonding evaluation he conducted between the foster parents and J.T.S., Dr. Burr opined that J.T.S. was clearly bonded to his foster parents and looked to W.W. as his psychological parent. He testified that the foster parents were able to provide some structure to J.T.S. and engaged J.T.S. in a "creative challenging way." He rejected Kinship Legal Guardianship (KLG), N.J.S.A. 3B:12A-1 to -7, as a viable placement plan for J.T.S., concluding:
Well[,] my testimony . . . is that even though I have no problem, no reservation about [N.T.S.] being in the life of a child in one way or another, the child . . . would benefit from receiving the affection of a biological parent who is not the principle caretaker, I find that he would be, and this is my prior testimony[,] that [J.T.S.] would be under some degree of risk[,] be that lack of protection or neglect, and possibly worse if he were under the care of [N.T.S.] where that if he had custody of the child or if he had some form of enforced visitation where the foster parents would not be in a position to protect the child.
N.T.S. testified that he was not "trying to really play the parenting role. I've been trying to do more uncle — I haven't pushed the fatherhood thing." When asked about his plans for J.T.S., he responded, "[M]y plan for [J.T.S.] is I want him with his sister[,]" who was living with W.W. He explained that as far as he was concerned, he considered W.W. to be J.T.S.'s and S.S.'s mom. His opposition to W.W. adopting J.T.S. was based upon his concern that J.T.S. would not receive veterans' benefits, to which he believed J.T.S. would be entitled in the future as long as J.T.S. was not adopted. He testified that he voluntarily surrendered his rights to S.S. believing, as he had been told by the Division, that S.S. would still be eligible for veterans' benefits. However, when his sister pursued assistance at the V.A. hospital, she was told that S.S. was no longer eligible for benefits because she had been adopted. He expressed that he did not want his parental rights terminated because he did not want J.T.S. to lose any benefits.
At the conclusion of the testimony, Judge Furnari rendered an oral opinion, which he later supplemented in a written opinion. The judge found that the Division proved all four prongs of the best interest test for terminating parental rights by clear and convincing evidence. He entered the order terminating N.T.S.'s parental rights and granted guardianship to the Division. This appeal followed.
On appeal, N.T.S. contends:
POINT I
THERE IS NOT SUFFICIENT, CREDIBLE EVIDENCE TO SUPPORT THE TRIAL COURT'S DETERMINATION THAT [THE DIVISION] HAS CARRIED ITS BURDEN OF PROOF AS TO THE FIRST, THIRD AND FOURTH PRONGS OF N.J.S.A. 30:4C-15.1(a).
A. [N.T.S.] HAS NOT HARMED HIS CHILD WITHIN THE MEANING OF N.J.S.A. 30:4C-
15.1a(1) AND THE TRIAL COURT IMPERMISSIBLY SHIFTED THE BURDEN OF PROOF TO [N.T.S.] AS TO THE FIRST PRONG, REQUIRING HIM TO DEMONSTRATE THAT HE WOULD NOT HARM [J.T.S.] IN THE FUTURE.
B. [THE DIVISION] FAILED TO CARRY ITS BURDEN AS TO THE THIRD PRONG OF THE STATUTE BECAUSE [THE DIVISION] DID NOT PROVE BY CLEAR AND CONVINCING EVIDENCE THAT IT MADE REASONABLE EFFORTS TO PROVIDE SERVICES TO [N.T.S.] SO AS TO CORRECT THE CIRCUMSTANCES THAT LED TO [J.T.S.]'s PLACEMENT.
C. THE TRIAL COURT'S CONCLUSION THAT TERMINATION WOULD NOT DO MORE HARM THAN GOOD TO [J.T.S.] WAS NOT SUPPORTED BY SUBSTANTIAL, CREDIBLE EVIDENCE.
Although a parent's right to enjoy a relationship with his or her child is fundamental and constitutionally protected, this right is not absolute. Santosky v. Kramer, 455 U.S. 745, 753 (1982); In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). "The constitutional protection surrounding family rights is tempered by the State's parens patriae responsibility to protect the welfare of children." Id. at 347 (citing In re J.C., 129 N.J. 1, 10 (1992)).
In N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986), the Supreme Court identified four factors that must be analyzed when deciding whether the termination of parental rights is in the child's best interest. In accord with the standards articulated in A.W., the Legislature codified these factors as follows:
(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;These criteria are neither separate nor discrete. K.H.O., supra, 161 N.J. at 348. Rather, they overlap with one another to provide a comprehensive standard that identifies a child's best interests." Ibid.
(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.
[N.J.S.A. 30:4C-15.1(a).]
In termination of parental rights cases, the Division bears the burden of establishing each enumerated prong by clear and convincing evidence. N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 506 (2004). "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." K.H.O., supra, 161 N.J. at 348 (quoting In re Adoption of Children by L.A.S., 134 N.J. 127, 139 ( 1993)). In that vein, "all doubts must be resolved against termination of parental rights." Id. at 347 (internal citations omitted). However, the best interests of the child remains the ultimate consideration. N.J.S.A. 30:4C-15-1(a).
The standards governing the termination of parents' rights are especially strict, and the scope of our review is especially limited. K.H.O., supra, 161 at 347. A trial judge's factual findings should not generally "be disturbed unless 'they are so wholly insupportable as to result in a denial of justice,' and should be upheld whenever they are 'supported by adequate, substantial and credible evidence.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1983) (quoting Rova Farms Resort v. Investors Insurance Co., 65 N.J. 474, 483-84 (1974); Meshinksy v. Nichols Yacht Sales, Inc., 110 N.J. 464, 475 (1988)).
The Court has recognized "the natural tendency to want to continue working with parents to restore the family unit," but has also "cautioned that placement plans must not lose sight of time from the perspective of the child's needs." K.H.O., supra, 161 N.J. at 357 (citations omitted). Thus, courts "must consider a child's age, overall health and development, and the realistic likelihood that the parent will be capable of caring for the child in the near future." Ibid. Ultimately, a child's need for permanency and stability must inform court's determinations in guardianship and adoption cases. Ibid. Moreover, "[l]ong-term foster care is the exception to the general rule favoring adoption, and is available under very limited circumstances[.]" Id. at 360. Likewise, KLG, "which is an alternative, permanent placement option" which does not require termination of parental rights, is only viable where "adoption is neither feasible nor likely[.]" N.J.S.A. 3B:12A-1(c); see also N.J. Div. of Youth & Family Servs. v. L.L., 201 N.J. 210, 222-23 (2010).
N.T.S. argues there is no evidence he harmed J.T.S. after his birth and that he was unfairly stigmatized for mental illness. N.J.S.A. 30:4C-15.1(a)(1) requires the Division to prove that a parent harmed his or her child, which, "in this context, involves the endangerment of the child's health and development resulting from the parental relationship." K.H.O., supra, 161 N.J. at 348. "[T]he best interests standard does not concentrate on a single or isolated harm or past harm as such." Ibid. Instead, "the focus is on the effect of harms arising from the parent-child relationship over time on the child's health and development." Ibid.
The appropriate test here is not whether N.T.S. has actually harmed J.T.S. but "whether the child's safety, health or development will be endangered in the future and whether the parents are or will be able to eliminate the harm." N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 440 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002).
In A.G., the parents of the subject child suffered "from mental disorders which adversely affect[ed] their ability to parent." Ibid. While neither parent in that case actually harmed A.G. or intended to harm the child, we observed that there was no evidence in the record to demonstrate that either parent had the mental capability to "eliminate the risk of future harm to the child." Ibid.
Similarly, here, the record supports that N.T.S.'s mental disorder affects his ability to parent. His mental disorder is not disputed. Nor was Dr. Burr's opinion that N.T.S.'s "mental condition would always potentially place [J.T.S.] at some significant degree of risk to his physical and/or emotional integrity" disputed. He further referenced N.T.S.'s relationship with S.W.W., who has inflicted harm on both children. Despite N.T.S.'s awareness of S.W.W.'s addiction and his testimony that he did not want S.W.W. to raise his children, N.T.S. continued cohabitating with her.
Additionally, N.T.S. noted repeatedly throughout the interview with Dr. Daly that he was unable to parent on his own. Therefore, Dr. Daly concluded it was clear that N.T.S. "needs all of the energy that he can muster to take care of his own life and mental health issues . . . ." During his testimony at trial, N.T.S. continued to express his inability to parent J.T.S. While the Division's caseworker, Moleus, was unable to testify when the Division changed its plan from reunification to adoption, N.T.S. testified that before J.T.S. was born, he intended that his sister, W.W., would parent J.T.S. Thus, there is ample evidence to support the finding that N.T.S. suffers "from mental disorders which adversely affect [his] ability to parent." A.G., supra, 344 N.J. Super. at 440. Further, while N.T.S has not physically harmed or intended to harm J.T.S., there is no evidence in the record to demonstrate that N.T.S. has the mental capability to "eliminate the risk of future harm to the child[,]" Ibid., either from himself or S.W.W.
Turning to the third prong, N.T.S. argues the Division did not provide appropriate services to him. Judge Furnari found that the Division provided N.T.S. with numerous psychological and psychiatric evaluations and that each professional determined N.T.S. was unable to parent in the foreseeable future. The Division admitted, through Moleus, that it did not provide counseling or treatment opportunities to N.T.S. because he expressed no desire to be the custodial parent for J.T.S.
The third prong of N.J.S.A. 30:4C-15.1a "requires DYFS to undertake diligent efforts to reunite the family[,]" which encompasses a requirement that DYFS consider alternatives to termination before deciding to terminate parental rights. K.H.O., supra, 161 N.J. at 354 (citing N.J.S.A. 30:4C-15.1a(3)). Whether DYFS has fulfilled this obligation will be examined "on an individualized basis[,]" though it must be cautioned that the "diligence of DYFS's efforts on behalf of a parent is not measured by their success." In re Guardianship of D.M.H., 161 N.J. 365, 391, 393 (1999).
N.J.S.A. 30:4C-15.1(c) further requires the Division to make "reasonable efforts" to "assist the parents in remedying the circumstances and conditions that led to the placement of the child and in reinforcing the family structure[.]" Reasonable efforts include but are not limited to:
(1) consultation and cooperation with the parent in developing a plan for appropriate services;
(2) providing services that have been agreed
upon, to the family, in order to further the goal of family reunification;
(3) informing the parent at appropriate intervals of the child's progress, development and health; and
(4) facilitating appropriate visitation.
[N.J.S.A. 30:4C-15.1(c).]
In evaluating whether the efforts undertaken by the Division were sufficient, attention must be paid to the particular facts of the case. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 280 (2007). Hence, "[t]he reasonableness of the Division's efforts depends on the facts in each case." A.G., supra, 344 N.J. Super. at 435 (citing D.M.H., supra, 161 N.J. at 390).
N.T.S. was receiving services outside of those provided by the Division, psychiatric and general medical treatment, counseling and medication, through the V.A. Moreover, he had been receiving these services for years from the V.A. He is on psychiatric medication, Effexor and Abilify, attends counseling once per month, and attends a psychiatric medication monitoring session once every three months. There is no indication in the record demonstrating that N.T.S. required more services than was being provided, and since reunification was not a plan sought by N.T.S., the Division was not remiss in failing to provide services which he believed he should have received in addition to the services provided by the V.A. and the Division.
We agree, as N.T.S. urges, that visitation and psychological evaluations alone may be insufficient to satisfy the reasonable efforts requirements. N.J. Div. of Youth & Family Servs. v. S.A., 382 N.J. Super. 525, 538 (App. Div. 2006). Nonetheless, under the particular facts of this case, the services provided by the Division were reasonable.
Further, any argument that KLG was a more appropriate option is without merit. KLG was created as an alternative option for more permanent placement where "adoption is neither feasible nor likely." N.J.S.A. 3B:12A-6(d)(3)(b). Consequently, when permanency can be provided by adoption, KLG is not a defense to the termination of parental rights. P.P., supra, 180 N.J. at 509. Here, W.W. has expressed her desire to adopt N.T.S.
Finally, as to the fourth factor, termination would not do more harm than good, N.J.S.A. 30:4C-15.1(a), N.T.S. contends "there was not sufficient evidence of a clear and convincing nature to establish that [J.T.S.] would suffer irreparable harm if removed from his foster mother's care." "Whether, after considering and balancing the two relationships, the child will suffer greater harm from the termination of ties with [the child's] natural parents than from the permanent disruption of [the child's] relationship with [the child's] foster parents" requires a balancing test analysis. K.H.O., supra, 161 N.J. at 355. As the Court has stated, "[t]he question ultimately is not whether a biological mother or father is a worthy parent, but whether a child's interest will best be served by completely terminating the child's relationship with the parent." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 108 (2008). The focus is therefore primarily upon the relationship between parent and child and the impact upon the child if that relationship is severed. Ibid. If termination of that relationship would prove more harmful than beneficial to the child, then termination is not in the best interests of the child. Ibid.
The difficulty inherent in weighing the benefits (of adoption) to the child against the risk of harm from terminating the parental rights was recognized in K.H.O.. "[T]he application of this standard underscores the difficulties courts face in comparing the harm to the child that results from severing biological ties upon the termination of parental rights with the benefits of adoption." K.H.O., supra, 161 N.J. at 343.
"[T]he risk to children stemming from the deprivation of the custody of their natural parent is one that inheres in the termination of parental rights . . . ."
Therefore, the fourth prong of the best interests standard cannot require a showing that no harm will befall the child as a result of the severing of biological ties. The question to be addressed under that prong is whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with her natural parents than from the permanent disruption of her relationship with her foster parents.
[Id. at 355].
Therefore, where the only harm that would result from severing a parent's rights to the child is harm which naturally results from severing a relationship with a biological parent, that harm is insufficient to defeat termination of the parent's rights. See Id. at 357-358 (citing J.C., supra, 129 N.J. at 26); P.P., supra, 180 N.J. at 494. To the contrary, "where it is shown that the bond with foster parents is strong, and in comparison, the bond with the natural parent is not as strong, that evidence will satisfy the requirement of N.J.S.A. 30:4C-15.1(a)(4) that termination of parental rights will not do more harm than good to the child." K.H.O, supra, 161 N.J. at 363.
Here Judge Furnari properly weighed the harm that would flow from severing N.T.S.'s parental rights and determined it would not do more harm than good to terminate N.T.S.'s rights. Adoption will result in substantial benefits inuring to J.T.S. W.W. has already adopted J.T.S.'s older sister, S.S. J.T.S. has lived with W.W. since he was six months old and views his foster parents as his parents, with affirmative concurrence in their role as J.T.S.'s parents by N.T.S.
Finally, the issue N.T.S. continuously raised throughout the guardianship proceedings, both prior to trial and during the trial, was not his desire to parent J.T.S. but his concern that adoption may foreclose J.T.S.'s receipt of V.A. benefits to which N.T.S. believed J.T.S. would be entitled. The court repeatedly, during proceedings leading up to the trial, requested documentation about the benefits N.T.S. believed J.T.S. would forfeit if adopted. N.T.S. failed to present any documentation to support this contention, beyond a handbook which generally discussed V.A. benefits. N.T.S. testified about medical benefits and preferential treatment for admission to the service academies as among the benefits he believed J.T.S. would lose if adopted. Assuming adoption will foreclose J.T.S. from receiving these benefits, as Judge Furnari noted, even if that were true, "the permanent nature of having his foster parents who love him and have his sibling in their home would be a relationship that would far outweigh whatever benefits he would receive as the child of a veteran."
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION