Opinion
DOCKET NO. A-1251-11T1
02-26-2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. V.P.M., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF B.P.M, K.P.M., A.P.M., R.P.M., F.P.M., B.P.M., and L.P.M., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Anna Patras, Designated Counsel, on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Merav Lichtenstein, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Jeffrey R. Jablonski, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher, Waugh and St. John.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-144-10.
Joseph E. Krakora, Public Defender, attorney for appellant (Anna Patras, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Merav Lichtenstein, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Jeffrey R. Jablonski, Designated Counsel, on the brief). PER CURIAM
Defendant V.P.M. (defendant) appeals from the termination of her parental rights to seven of her minor children, arguing that the judgment was against the weight of the evidence, that the trial judge's findings were inadequate, that the trial judge erred by failing to consider kinship legal guardianship as an alternative to termination, and that the Kinship Legal Guardianship Act, N.J.S.A. 3B:12A-1 to -7, is preempted by federal law. We find no merit in these arguments and affirm.
I
The Division of Youth and Family Services (the Division) commenced this action, on March 3, 2010, seeking to terminate the parental rights of defendant and her husband, Robert (a fictitious name), to seven children, B.P.M., K.P.M., A.P.M., R.P.M., F.P.M., B.A.P.M., and L.P.M. Defendant and Robert are also the parents of six other children, five of whom reached the age of majority by the time of trial. The sixth of these, whose name is not known, was born in early 2011; that child and defendant were last seen by their Division caseworker in June 2011.
Effective July 2, 2012, the Division was renamed the Division of Child Protection and Permanency. L. 2012, c. 16.
These children were born in 2001, 2003, 2004, 2005, 2006, 2008, and 2009, respectively.
A three-day guardianship trial took place in August 2011.Defendant did not appear for trial or any hearings that occurred after February 9, 2011. The trial judge filed a sixteen-page written opinion on September 21, 2011, terminating defendant's parental rights; judgment was entered two days later.
A default judgment terminating Robert's parental rights was entered prior to trial. He has not appealed.
Defendant appeals.
II
A
Parents have a constitutionally protected right to the care, custody and control of their children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394-95, 71 L. Ed. 2d 599, 606 (1982); In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). "The rights to conceive and to raise one's children have been deemed 'essential,' 'basic civil rights . . .,' 'far more precious . . . than property rights.'" Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212, 31 L. Ed. 2d 551, 558 (1972) (internal citations omitted). "[T]he preservation and strengthening of family life is a matter of public concern as being in the interests of the general welfare." N.J.S.A. 30:4C-1(a); see also K.H.O., supra, 161 N.J. at 347.
The constitutional right to the parental relationship, however, is not absolute. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986). At times, the parent's interest must yield to the State's obligation to protect children from harm. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). As a result, the Legislature created a test for determining whether a parent's rights must be terminated in the child's best interests. N.J.S.A. 30:4C-15.1(a) requires that the Division prove by clear and convincing evidence the following four prongs:
(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;See also A.W., supra, 103 N.J. at 604-11. The statute's four prongs are not "discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." K.H.O., supra, 161 N.J. at 348.
(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 . . .;
(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.
Once judgment is entered, the standard of review is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). Because a judge's findings "are considered binding on appeal when supported by adequate, substantial and credible evidence," Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974), we only disturb factual findings when they are so manifestly unsupported by or inconsistent with competent, relevant and reasonably credible evidence as to offend the interests of justice. See N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007); Cesare v. Cesare, 154 N.J. 394, 412 (1998); N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 112 (App. Div.), certif. denied, 180 N.J. 456 (2004).
B
Although the trial judge's written decision is cursory, we are satisfied the judge's findings meet the requirements of Rule 1:7-4(a). Indeed, we find an abundance of evidence in the record to support the judge's findings on all four prongs of the statutory test. Before considering each of the four statutory prongs, we first outline the circumstances that generated the Division's involvement with this family.
C
The children have been in the Division's care since the later of either August 7, 2008, or their date of birth. Emily (a fictitious name), their paternal great aunt and children's current caretaker, is committed to adopting all seven.
The Division first became involved with the family on September 21, 1988, when Robert was seen pulling on the oldest child's arm, even though he was not supposed to be with his son due to an arrest for armed robbery.
In 1993, the Division received a second referral that defendant had been evicted from her apartment and left the children unattended during the day. Those allegations were not substantiated but the Division determined the children did not have appropriate sleeping arrangements. At the time, Robert was incarcerated for sexual assault.
In 2001, the Division received a third referral, which alleged defendant had gone into labor and had left four small children in the care of a twelve year old. At the time, defendant admitted Robert had been violent with her and the children in the past. Defendant stated she would change the locks and agreed to prohibit Robert's access to the children, and the Division offered domestic violence counseling. The children acknowledged they were afraid of Robert and feared he would hurt their mother. The children also claimed Robert hit them and defendant because he did not "want a weak family."
Two years later, the Division received a fourth referral from the children's school because one of the children, who has since reached the age of majority, alleged "her mother[,] and [her] siblings were being physically abused by" Robert, who had "been in and out of the family's life" but living "in the home for at least a year." A few weeks prior to the referral, Robert had allegedly struck defendant while she was pregnant. Defendant admitted that Robert had been abusive in the past and as recently as the prior year. She denied, however, any recent acts of violence and insisted she and the children were not afraid of Robert. The children, including the child who had earlier made the allegation that caused the referral, denied the allegations and claimed they were unafraid of their father. The Division did not substantiate the allegations, but offered anger management counseling for Robert and domestic violence counseling for both parents.
A fifth referral was received in 2005. Robert, by that time a registered sex offender, had been arrested for domestic violence against defendant. The referring party also alleged there was no electricity in the home and eviction was imminent. The Division investigated and discovered the electricity was on in the home, and the children appeared to be thriving and appropriately dressed. The landlady had, in fact, attempted to lock the family out of their apartment, but defendant's attorney assured the Division that the family would be permitted to return. The Division determined at that time that the children did not fear their father, who denied "any wrongdoing in the home involving his own children." Both defendant and Robert agreed to refrain from corporal punishment, and defendant agreed to ensure that Robert would only have minimal contact with the children.
Later in 2005, the Division received a sixth referral, which alleged that Robert "dragged and choked" one of the older children and that when defendant tried to intervene, Robert pushed her against a wall. Robert denied hurting the child, and the Division determined that physical abuse was unfounded.
A seventh referral, received in 2006, was based on similar allegations that the children were being abused; the referral was unsubstantiated in light of the parents' denial of physical abuse.
An eighth referral, also in 2006, was similar to the fifth referral in that it was alleged the family had no heat or electricity and was facing eviction. The Division determined that the utilities were working and the allegations unfounded, but continued to monitor the situation.
A ninth referral, in 2007, resulted from allegations that Robert spanked K.P.M. (hereafter Karolyn, a fictitious name), one of the children whose interests are at stake in this action, causing "her to trip over a wire and hit her head on the wall." During its investigation, the Division determined that the home was dirty and without furniture or gas; the children's inoculations needed to be updated and their lead levels needed to be checked. Defendant admitted she did not follow-up with the doctor when the children were ill and that Karolyn's "teeth were rotten." Although physical abuse was not substantiated, concerns about the home were identified. The Division assisted in having the gas turned on, but defendant and Robert refused a parent aide, parenting skills courses, and daycare services.
The Division received a tenth referral in 2008 in which it was alleged that Robert had physically abused one of the older children, Suzanna, who advised the Division that Robert called her "all types of bitches" and threw a Play Station controller at her head when she tried to walk away to avoid an argument. The controller "broke against her head and shattered into pieces." Suzanna tried to run away as Robert chased her, screaming, "I'm goin[g] to kill you." Defendant called the police, Robert was arrested for assault, and Suzanna diagnosed with a concussion. Suzanna, "shaking and crying", told a caseworker that "her nerves had gotten bad due to the alleged abuse" she suffered at her father's hands. She reported that Robert had choked her, and that he also physically abused her, her siblings, and her mother in other ways. She "stated that no matter what her father does, [defendant] always allows him back into the home." She also claimed that, following Robert's release on bail, he made threatening calls and told her friends he wanted to kill her. Defendant confirmed Suzanna's story about the recent abuse and admitted that Robert had hit the children before. She asserted that Robert "went too far this time" and vowed to "do what she needed to do to protect her children." Defendant also claimed Robert had threatened to kill her, and she obtained a restraining order against him. The Division did not remove the children, however, because Robert was not in the home and because defendant promised to protect the children and follow the restraining order's guidelines. The Division referred the family to Family Preservation Services (FPS) for in-home counseling.
In June 2008, defendant had the temporary restraining order lifted, and she allowed Robert to return to the home. The Division warned defendant and Robert that "if the abuse continue[d] and the home was not cleaned up, the kids would be removed." Robert, however, defiantly asserted that he would discipline the children how he saw fit, even to the extent of repeating the incident with Suzanna.
She had done the same thing in 1999 and 2002.
The following month, the Division received, from FPS, the eleventh referral involving this family. The FPS worker was concerned with the home and the potential for domestic violence. The Division found "the house [was] cluttered with mattresses, papers, food, clothes, etc.," and "the parents [slept] on the living [room] couch because their mattress had bed bugs"; notwithstanding the infested mattress remained in the house. There were also six cats in the "roach infested" house. One entire room was filled with dirty laundry. The worker also noted that the children's teeth were rotten, and the children had numerous insect bites and marks. FPS also expressed concern about Robert's status as a Tier II Megan's Law offender.
When, by August 1, 2008, these safety concerns had not been remedied, FPS terminated its services but recommended continued domestic violence counseling, life skills coaching for the children, psychological evaluations for defendant and Robert, and the installation of a homemaker. In light of the family's impending eviction, FPS further recommended that they seek alternate housing. The Division offered to refer defendant and the children to a domestic violence shelter, but defendant refused.
Within the week, because of conditions in the home and FPS's concerns, the Division conducted an emergency removal, placing the children with Emily, their paternal great aunt. Division caseworker Maurice Mitchell testified at trial that the children were "living in a deplorable . . . condition," and the "insect infested" home was unsafe, with improperly stacked items and dangerous beds. The Division retained an exterminator who visited the home a few days later.
The Division also referred Robert to the Men for Peace program for domestic violence counseling, and to Catholic Charities for a substance abuse assessment; he missed two scheduled assessments. The parents were referred to Reunity House for supervised visitation, but they rebuffed the Division's efforts and these services were terminated after Robert attempted to break in after hours; the Division thereafter offered supervised therapeutic visitation at a Division facility.
The Division also referred defendant to parenting classes at Family Connections, which she completed the following March. In January 2009, shortly after the birth of the twelfth child, the Division referred defendant and Robert to domestic violence counseling at Babyland.
In April 2009, the Division referred defendant for domestic violence counseling with Denise Johnson, Ph.D. Defendant failed to consistently attend and was viewed as being "very passive" because she did not believe she needed therapy. In September 2009, Dr. Johnson notified the Division that defendant's lack of attendance was unacceptable and characterized by poor motivation. Defendant's prognosis was described as "very poor," and she continued to feel there was "no danger" to her children.
Earlier, in December 2008, the Division had referred the children to weekly supervised visitations with Donna LoBiondo, Ph.D., at Division offices. Robert never attended. Defendant attended but, according to Division caseworker Maurice Mitchell, "wasn't too compliant," often arriving thirty or forty minutes late, or she would send her older children in her place. Mitchell felt he played the role of disciplinarian more than defendant did because she "was very passive and . . . wouldn't really take control of the visits. She wasn't really engaged with the kids at all." Mitchell banned cellphones during visitation because defendant and the older children were allowing the younger children to speak to their father over the phone.
On January 16, 2009, Dr. LoBiondo reported that during the first six sessions the children were "happy to see their mother and greet[ed] her in a positive manner." The older children were more engaged with the younger ones, which "compensate[d] for the mother's more passive demeanor."
On March 1, 2009, Dr. LoBiondo reported on eight sessions, explaining that defendant continued to be "caring but passive." She was physically affectionate on occasion but did not interact in dispute resolutions and was more warm and attentive toward her new baby than the other children. Dr. LoBiondo noted that the "family appear[ed] to function best when the adolescent children [were] present with the mother, because they provide[d] an important adjunct parenting and an equally important active dynamic."
On August 12, 2009, Dr. LoBiondo reported that of nine scheduled visits from May 15, 2009, to August 7, 2009, defendant was late for four sessions and missed two others. Dr. LoBiondo believed defendant's tardiness and absences had "a profound negative emotional effect upon her children as these events cause[d] them a great deal of anxiety and their behavior deteriorate[d] in different ways while they wait[ed], and turn[ed] to despair when she d[id] not come at all." Defendant usually attributed her tardiness to "bus schedules," but repeatedly failed to choose an earlier bus. Additionally, Dr. LoBiondo found that defendant continued to be passive with her children and was generally ineffective in disciplining them because she rarely moved from her seat. Defendant also demonstrated a lack of sensitivity to the children most in need of her attention. As a result, Dr. LoBiondo recommended against reunification at that time.
On October 26, 2009, Dr. LoBiondo again reported to the Division, noting that, out of eight visits, defendant had arrived late for two and missed two others. When late, defendant neither acknowledged nor apologized for her tardiness, nor did she demonstrate any sensitivity for the stress her absence or lateness caused. Dr. LoBiondo reasserted her recommendation against reunification, explaining that without access to significant adult support, defendant could withdraw and leave the children "without access to their main source of emotional and behavioral structure and support."
On December 7, 2009, the Division transferred weekly supervised visitations to the Adoption House. The pattern of absences, tardiness and passiveness continued.
On April 20, 2010, defendant met with a counselor from Full Circle Counseling, who reported that defendant was living in a shelter but attempting to get housing at Harmony House, where she could reside with Laurel, the youngest at the time, who was then five months old. On July 22, 2010, the counselor reported that defendant was compliant with sessions but still living in the shelter. Defendant denied any involvement with Robert.
The last visitation defendant attended was on March 5, 2011. She did not attend the three-day trial in August 2011. As mentioned earlier, defendant and the youngest child, born earlier that year, were last seen by the Division caseworker in June 2011.
III
Against these facts and circumstances, we consider the sufficiency of the evidence as it relates to the four prongs delineated in N.J.S.A. 30:4C-15.1(a) that the Division was required to prove by clear and convincing evidence: (1) the children'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" or provide "a safe and stable home"; (3) the Division "has made reasonable efforts to provide services to help the parent correct the circumstances" that led to placement of the children outside the home; and (4) termination "will not do more harm than good." We will consider the first and second prongs collectively.
A. The First and Second Prongs
The first and second prongs "are related to one another, and evidence that supports one informs and may support the other as part of the comprehensive basis for determining the best interests of the child." In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999). That is very true in this case.
Defendant contends the Division failed to prove these two prongs because the evidence showed she was a loving, if passive, parent, and there was no proof she would fail to keep the children away from Robert. We disagree. The trial judge permissibly concluded, by evidence she found to be clear and convincing, that defendant had endangered the children's health, safety, or development, N.J.S.A. 30:4C-15.1(a)(1), by failing "to provide appropriate medical care, safe housing," and by exposing them to domestic violence. The judge also found the children were harmed by their parents' failure to participate in services, specifically referring to defendant's "paucity" of visits between the children's removal and March 5, 2011, and her failure to visit at all from March 5, 2011, up to and through the August 2011 trial. The trial judge also relied on Peter DeNigris, Ph.D., who conducted a bonding evaluation and concluded, for reasons thoroughly discussed in his testimony, that defendant was incapable of parenting her children then or in the foreseeable future "and that the children would be at risk if returned to her care." For the same reasons, the trial judge found defendant was unwilling or unable to either eliminate the harm or provide a safe and stable home, N.J.S.A. 30:4C-15.1(a)(2). The judge's findings on these prongs are entitled to our deference. Cesare, supra, 154 N.J. at 412.
We would add that the second prong must be analyzed in light of "New Jersey's strong public policy in favor of permanency," which mandates a consideration of "the child's age, [his or her] overall health and development, and the realistic likelihood that the parent will be capable of caring for the child in the near future." K.H.O., supra, 161 N.J. at 357. "Concern and efforts by a natural parent after [a] child has been removed from the home, and making genuine and successful efforts to overcome the cause of the removal is of enormous significance." N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 437 (App. Div. 2009).
Here, although defendant appears to have loved her children, she exposed them to an unhealthy and dangerous living environment infested with insects, cluttered with dirty laundry, and often lacking necessary furniture. More significantly, she allowed their repeated exposure to domestic violence. They witnessed their father abusing defendant, and were often victims of his abuse. These repeated incidents endangered the children's health, safety, and development. N.J.S.A. 30:40C-15.1(a)(1); K.H.O., supra, 161 N.J. at 348.
Once the children were removed from her care, defendant did complete parenting classes, but she failed to follow through with domestic violence counseling, continuously denying domestic violence was an issue. She may have asserted she was capable of keeping Robert away from the children, but she maintained contact with him and had allowed him to return to their home at times in the past. Contrary to defendant's contention on appeal, her prior conduct belies her promise to protect her children from her husband. In other words, defendant's inability to recognize the dangers posed by Robert's behavior suggests a likelihood the children would be harmed in the future if reunited with her, N.J.S.A. 30:40C-15.1(a)(1), as well as an unwillingness on her part to eliminate the harm, N.J.S.A. 30:40C-15.1(a)(2).
Finally, as we have already observed, the trial occurred in August 2011, three years after the children were removed from defendant's care. By that time, there was no evidence defendant had established a stable home waiting for her children or a stable income with which to support them. To the contrary, testimony revealed that defendant had voluntarily left her last job and, despite claiming the position remained open for her, refused to return. Additionally, although defendant had a suitable home, she intended to leave it before she was reunited with her children and had no answer for where they would reside. Her unstable position demonstrated a failure to "mak[e] genuine and successful efforts to overcome the cause of the removal." A.R., supra, 405 N.J. Super. at 437.
Moreover, in the months leading up to, during, and since the trial, defendant absconded with her thirteenth child, ceased visiting her other children, failed to appear at trial and remains missing. This circumstance alone demonstrates an inability and unwillingness to eliminate the harms facing her children. N.J.S.A. 30:4C-15.1(a)(2).
B. The Third Prong
As for the third prong, defendant argues the Division failed to provide reasonable efforts to reunite her with the children and that the court should have considered kinship legal guardianship (KLG). Specifically, she contends the supervised therapeutic visits undermined the goal of reunification and the Division improperly failed to protect the children from bonding with Emily. She also argues that New Jersey's KLG statute is preempted by federal law. We discuss these two arguments separately.
1. Reasonable Efforts
and KLG
The trial judge found the Division provided defendant with infestation remediation services, therapeutic visitation, housing referrals, domestic violence counseling, and psychological evaluations. Defendant, however, as the trial judge held, "demonstrated minimal compliance with all [Division] services and throughout has continued to maintain a relationship with" Robert. The judge noted that domestic violence was witnessed by the children, who also were victimized by their father. The judge held that despite those facts, defendant "refused to complete domestic violence counseling or therapy" and "refused offers by [the Division] to assist with shelter placement." Nevertheless, the Division offered defendant hour-long visits with her children, and increased the visit length to two hours even when reunification ceased being the case's goal. Thus, the judge found the Division established by clear and convincing evidence that it did provide reasonable efforts.
This third prong, which obligates the Division to make reasonable efforts to provide services, N.J.S.A. 30:4C-15.1(a)(3), "contemplates efforts that focus on reunification," K.H.O., supra, 161 N.J. at 354. These efforts include "consultation with the parent, developing a plan for reunification, providing services essential to the realization of the reunification plan, informing the family of the child's progress, and facilitating visitation." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 281 (2007). It is critical that the Division "encourage, foster and maintain the bond between the parent and child as a basis for the reunification of the family." D.M.H., supra, 161 N.J. at 390.
"[A]n evaluation of the efforts undertaken by [the Division] to reunite a particular family must be done on an individualized basis." Ibid. The necessity of particular services "must therefore be decided with reference to the circumstances of the individual case before the court, including the parent's active participation in the reunification effort." Ibid. The diligence of the Division's efforts "is not measured by their success." Id. at 393. See also N.J. Div. of Youth & Family Servs. v. L.J.D., 428 N.J. Super. 451, 488 (App. Div. 2012).
Contrary to defendant's contention, the evidence, much of which we outlined earlier, demonstrates that the Division made consistent, repeated efforts to provide defendant with the services necessary for reunification to occur. The Division offered supervised therapeutic visitation with all of the children throughout the years leading up to trial. Although defendant occasionally attended the visitations, she often was late or absent and, several months prior to trial, ceased participating altogether.
There is also no support for defendant's contention that the supervised therapeutic visits undermined the goal of reunification. Defendant incorrectly characterizes supervised visitation as a method by which a Division representative could "criticize and memorialize for all time each and every perceived mistake." The evidence, however, is replete with incidents of caseworkers and others attempting to guide defendant's interactions with her children, encouraging her to take a more active role and engage her children in various ways, from play to discipline. In this way, the Division continued to work toward reunification. Defendant, however, maintained a passive and distant parenting role throughout the years until she stopped appearing for visitation.
Defendant's argument that the Division failed to protect the children from bonding with Emily is similarly without merit. Although the goal in such cases is to reunite parents with their children, foster family bonding "is an inevitable side effect." J.C., supra, 129 N.J. at 28 (Clifford, J., concurring). When considering how long a court should wait for a parent to successfully become rehabilitated, it must consider the role the parent played "in contributing to the need for State intervention that has resulted in psychological bonding between the child and the foster . . . family." Ibid. A parent's "own responsibility for creating the situation in the first place cannot be ignored. And the child's life [can]not be put on hold" indefinitely. In re Adoption of Child by P.S., 315 N.J. Super. 91, 118 (App. Div. 1998). "Where prior neglect created a situation in which the child has successfully bonded to another, psychological parent, the biological parent's rights may give way to the child's rights." Ibid.
Here, due in part to defendant's own actions, her children were removed from her home and placed with their paternal great aunt. For three years, defendant was afforded multiple opportunities to remedy her situation and create a stable environment, yet she failed to do so. And then she abandoned them in the months leading up to trial and thereafter. Thus, it is not surprising that the children bonded to Emily, who was able to provide them with the stability, love, and permanence required, as demonstrated by the clear and convincing evidence relied upon by the trial judge.
Lastly, although the trial judge did not discuss alternatives to termination in her written decision, the evidence established that Emily was willing to adopt the children and that the Division discussed KLG with Emily, who preferred adoption because of its permanency. Defendant's argument that KLG was appropriate is without sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E).
2. Preemption
In this appeal, defendant for the first time argues "[t]here is an impermissible conflict between federal and New Jersey law relating to [KLG] and financial subsidies available to kinship caregivers."
Preemption may be ascertained in a number of ways. Express preemption is based on the language employed by Congress. Absent explicit preemptive language, two other types of implied preemption have been considered, i.e., field preemption "where the scheme of federal regulation is so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it," and conflict preemption, "where compliance with both federal and state regulations is a physical impossibility, or where the state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Gade v. Nat'l Wastes Mgmt. Ass'n, 505 U.S. 88, 98, 112 S. Ct. 2374, 2383, 120 L. Ed. 2d 73, 84 (1992); see also Gonzalez v. Ideal Tile Importing Co., Inc., 184 N.J. 415, 419 (2005), cert. denied, 546 U.S. 1092, 126 S. Ct. 1042, 163 L. Ed. 2d 857 (2006).
Specifically, defendant argues that the Fostering Connections to Success and Increasing Adoptions Act (FCA) of 2008, Pub. L. No. 110-351, 122 Stat. 3949 (codified as amended in sections throughout Title 42), which provides that a child may be eligible for a kinship guardianship assistance payment where adoption is "not [an] appropriate permanency option," 42 U.S.C.A. § 673(d)(3)(A)(ii), preempts New Jersey's Kinship Guardianship Act, which allows for KLG where "adoption of the child is neither feasible nor likely," N.J.S.A. 3B:12A-6(d)(3). This argument has no merit.
Contrary to defendant's contentions, the FCA does not preempt New Jersey's Kinship Legal Guardianship Act. The FCA does not expressly preempt state law, nor are any of the grounds for implied preemption present. The FCA was enacted to allow states to receive federal assistance for KLG households where adoption or reunification were "not appropriate permanency options for the child." 42 U.S.C.A. § 673(d)(3)(A)(ii). If a KLG household wishes to receive the funding, then the relevant state agency is required to show that other alternatives were considered and discussed with the biological parents and the guardians. 42 U.S.C.A. § 675(1)(F). The fact that the FCA provides funding for KLG does not imply a Congressional intent to prefer KLG over adoption.
C. The Fourth Prong
We lastly turn to the fourth prong, where the question is "whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with [his or] her natural parents than from the permanent disruption of [his or] her relationship with [his or] her foster parents." K.H.O., supra, 161 N.J. at 355. Satisfaction of the fourth prong requires that the Division "offer testimony of a 'well qualified expert who has had full opportunity to make a comprehensive, objective, and informed evaluation' of the child's relationship with both the natural parents and the foster parents." M.M., supra, 189 N.J. at 281 (quoting J.C., supra, 129 N.J. at 19).
Courts must also take into account "[a] child's need for permanency." Ibid. Because of the importance of permanence to a child's well-being and development, limits have been placed "on the amount of time a parent may have to correct conditions at home in anticipation of reunification." K.H.O., supra, 161 N.J. at 358.
Contrary to defendant's contention, the trial judge relied on expert testimony regarding defendant's bond with her children and the possibility of harm arising from its severance. This included Dr. DeNigris's conclusion that the bond between mother and children was unhealthy, as demonstrated by defendant's passive parenting style and inability to engage her children. When with defendant, the children sought out each other or other adults for assistance or play, revealing they did not feel defendant was capable of meeting their needs. Although the children professed their love of their mother, they were not anxious or distressed when separated from her.
Moreover, as we have said, defendant was offered visitation as an opportunity to further bond with her children and continue that relationship while she remedied other aspects of her life. The evidence shows that defendant squandered this opportunity. In three years, she failed to establish either a stable home or income. She failed to consistently attend visitations, and ultimately ceased attending entirely when she disappeared with her thirteenth child. Any argument for a healthy parent-child bond between defendant and the seven children in question is thoroughly negated by her voluntary disappearance from their lives.
Additionally, Dr. DeNigris determined that a stable, healthy bond existed between Emily and the children. The bond was such that Emily could be depended upon to mitigate any grief or loss the children would suffer from the termination. In contrast, Dr. DeNigris was not confident that defendant could similarly mitigate the children's grief with respect to losing Emily.
Defendant was provided an extensive amount of time to achieve reunification with her children, yet she failed to meet the basic requirements to do so. K.H.O., supra, 161 N.J. at 358. Balancing the children's relationship with defendant against that with Emily, it is clear the children would suffer greater harm from losing Emily than from the termination of defendant's parental rights. Id. at 355. Emily offers the children the permanency, stability, and safety that defendant is incapable of providing. See M.M., supra, 189 N.J. at 281.
Thus, the trial judge was entitled to reach her conclusion, by reference to the clear and convincing evidence in the record, that termination of defendant's parental rights would not do more harm than good. That finding is entitled to our deference. Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION