Opinion
DOCKET NO. A-3095-10T2
01-26-2012
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. N.H., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF W.M. and N.H., minors.
Paula T. Dow, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Sharon A. Walli, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors W.M. and N.H. (Damen J. Thiel, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, Sapp-Peterson and Ostrer.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-168-10.
Joseph E. Krakora, Public Defender, attorney for appellant (Sarah L. Monaghan, Designated Counsel, on the briefs).
Paula T. Dow, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Sharon A. Walli, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors W.M. and N.H. (Damen J. Thiel, Designated Counsel, on the brief). PER CURIAM
Defendant, N.H., appeals from a November 19, 2010 judgment of guardianship, terminating her parental rights to her son, W.M., born January 14, 2005, and her daughter, N.H., born December 27, 2007. The children had been in foster care since November 2008, and with the same foster parents from January 9, 2009 until the trial court's decision almost two years later. The current foster parents wished to adopt the children.
The biological father of W.M. was unknown at the time of trial and did not appeal. The father of N.H. entered an identified surrender of his parental rights before trial. Therefore, we use "defendant" to refer solely to the mother. For the reader's convenience, we will refer to defendant's son as Wayne, her daughter as Nancy, and defendant's sister, T.H., as Toni.
On appeal, defendant, who was represented at trial but neither appeared nor offered evidence, does not challenge the court's findings that she endangered the children's safety, health, or development, and that she was unwilling or unable to provide a safe and stable home for them. N.J.S.A. 30:4C-15.1a(1), (2) (Prongs One and Two). Nor does she challenge the court's finding that the Division of Youth and Family Services (Division) made reasonable efforts to provide services to her to help her correct the circumstances that led to placement. N.J.S.A. 30:4C-15.1a(3) (Prong Three).
Rather, defendant argues that the Division failed to provide adequate services to enable her sister to accept custody. N.J.S.A. 30:4C-15.1a(3). As a consequence, defendant argues that the court erred in concluding that the termination of parental rights, which would also sever the children's relationship to their aunt, would not do more harm than good. N.J.S.A. 30:4C-15.1a(4) (Prong Four).
We disagree and affirm substantially for the reasons set forth in Judge Margaret M. Foti's thorough and well-reasoned written decision.
I.
Inasmuch as the appeal focuses on the Division's interactions with defendant's sister, we will only briefly summarize the facts relating to defendant.
On November 12, 2008, the Division was granted the care, custody and supervision of Wayne and Nancy. The order followed a referral to the Division in July 2008 when Wayne was brought to the Jersey City Medical Center with a spiral fracture of his right femur. Wayne required surgery and was hospitalized for about three months for a post-operative infection. While Wayne was hospitalized, Nancy stayed with defendant's sister, Charlene. After Wayne was discharged, he and his mother also moved in with Charlene.
Although an investigation subsequently deemed unfounded allegations of physical abuse, the Division offered defendant services after Wayne's hospitalization, and received multiple referrals that defendant was using drugs, and the children were neglected in various ways and denied proper medical care and hygiene.
Consistent with its obligations under N.J.S.A. 30:4C-12.1, the Division ascertained that defendant's sister Toni, as well as defendant's mother and sister Charlene, declined to care for the children. Defendant's mother had already assumed full custody of another child of defendant. Charlene was initially interested in caring for Nancy only, but then became ill and was unable to do so. Toni was a single working mother who had custody of a young son with Down Syndrome.
According to the testimony at trial, Toni told the Division caseworker "absolutely not" when asked at a family team meeting in December 2008 whether she would accept the children. Defendant argues before us that Toni declined to care for the children when first asked because she did not have a two-bedroom apartment, implying that if the Division had provided housing assistance, she would have accepted the children. However, the only arguable support in the record for this assertion is Toni's own self-serving hearsay statements to expert evaluators over a year-and-a-half later. The Division witness at trial testified that Toni did not give any reasons when she refused to take the children in 2008.
According to her trial testimony, the caseworker again contacted Toni about the children in late February or early March 2009, and Toni reiterated that she did not want to care for the children. The Division contacted Toni a third time regarding the children around April 2009 and confirmed that Toni's position had not changed. The Division caseworker testified that she offered services to assist Toni in caring for the children. "I told her that we could try to assist her and she said no because she did not [want] to be involved in any of her sister's schemes."
By letter dated May 12, 2009 to Toni, the Division informed her of its determination that she was "either not willing or not able to provide a home for the child(ren)." The so-called rule-out letter stated:
This determination is based on your conversation with the worker on May 1, 2009 at which time you indicated that you are unable to care for [Wayne] and [Nancy] based upon the fact that you have a child with Downs Syndrome who is very active and a lot of work. This prevents you from taking on the additional responsibility of caring for these two children.Toni was informed of her right to a review of the decision if she disagreed. Toni did not appeal the determination. Notably, Toni did not dispute the letter, or claim that she had declined to take the children because of housing issues, as opposed to the demands of her caring for her own son.
After obtaining custody of the children in late 2008, the Division briefly placed the children in a Spanish-speaking foster home and then placed the children in their current home on January 9, 2009. In the months that followed, the Division provided defendant with referrals to substance abuse counseling, out-patient rehabilitation, therapy, parenting courses, resources for adults with disabilities, and temporary rental assistance. Defendant did not complete any of the substance abuse rehabilitation programs or attend therapy. She tested positive for marijuana multiple times during this period and occasionally attended visitation while apparently under the influence of marijuana.
In November 2009, Toni contacted the Division to express interest in custody of Wayne and Nancy. Recalling the change of heart at the guardianship trial, the caseworker testified that Toni explained that she had moved into a two-bedroom apartment. Once presented with this information, the court on November 12, 2009 promptly ordered the Division to evaluate Toni as a potential caretaker. On the same day, the court entered an order finding inappropriate and unacceptable the Division's permanency plan for termination of parental rights followed by adoption because the Division was to assess Toni as a possible resource placement for the children. The court also ordered the Division to discuss the possibility of adoption or kinship legal guardianship by Toni.
Although the court's November 12, 2009 order refers to a letter from Toni of the same date, it was not included in the record on appeal.
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On December 22, 2009, the court entered a permanency order approving the Division's permanency plan for termination of parental rights followed by adoption. In a compliance review order entered the same day, the court directed the initiation of visits between Toni and the children. Those visits began in January 2010, and occurred weekly, for one hour, at Division offices. Wayne was opposed to overnight visitation and none occurred.
On March 12, 2010, the Division filed a complaint for guardianship and termination of parental rights. The court thereafter entered an order terminating the abuse and neglect litigation, which was superseded by the guardianship matter. At a case management conference in May 2010, the court scheduled bonding evaluations, continued one-hour-a-week visitation by Toni, and directed the Division to explore if weekend visitation between Toni and the children could occur, supervised by the foster parents. The court also directed the Division's Resource Family Licensing Unit to complete its home study of Toni's home by July 16, 2010, or appear before the court to explain why it had not. The court provided that if the home were licensed, a best interest hearing would occur on September 15, and a trial on the guardianship complaint would follow in October.
At a hearing July 16, 2010, a representative of the Division's Resource Family Licensing Unit testified that her office received Toni's final application in May 2010, although preliminary investigation of Toni's home had occurred earlier in the year. The witness explained that, consistent with office policy, the process of completing a home study, licensing review, and inspection may take as much as 180 days. The process involved review of personal, medical and employment references of the proposed licensee, as well as physical inspections. The witness reported that the home study had been completed and the application awaited review by the Office of Licensing, and a final decision was anticipated within thirty days.
Defendant's counsel objected that the delay prejudiced his client, who desired that her children be placed with her sister. However, the court rejected the claim of prejudice. "The issue of the licensing . . . is an issue that's separate and apart and I don't believe that your client has been prejudiced because these children would not have been placed with the aunt until the best interest hearing took place anyway." The court then consolidated the scheduling of the best interest hearing with the first day of trial scheduled on October 20, 2010.
In early July of 2010, defendant relocated to North Carolina, reportedly because she believed it would be easier for her to find work and secure appropriate housing. In the months between her move and trial, she ceased visitation with her children, and ceased virtually all contact with the Division. She did not attend the July 16 and September 17, 2010 case conferences or the guardianship trial.
In addition to the testimony of the two Division caseworkers and one Division supervisor, two psychologists testified as expert witnesses at the trial. Given the focus of defendant's appeal, it suffices to state here that there was ample evidence in the record to establish that defendant suffered from a multitude of mental health, substance abuse and parenting deficiencies, which she had made little effort to address despite the Division's offer of numerous services. Nancy had no bond with her mother; and Wayne had a marginal one.
Elizabeth M. Smith, Psy.D. testified for the Division and her expert report was accepted into evidence. Dr. Smith observed Toni with the children in her office in June 2010. Dr. Smith's report described Toni as very warm and caring, her interactions with the children to be nurturing and kind, and the children seemed comfortable with her. However, Dr. Smith concluded that neither child had what could be termed an attachment to her. She reported that after the session, Wayne appeared very distressed and anxious and privately volunteered "in no uncertain terms" that he and his sister wanted to remain with their foster parents.
Dr. Smith also evaluated the children's interactions with their foster parents. She observed that the children appeared happy and comfortable with their foster parents. They were nurturing, supportive, attentive and sensitive to the children's needs. The children addressed their foster parents as "mommy" and "daddy."
In a separate interview outside the children's presence, the foster mother reported to Dr. Smith that when Wayne first arrived in her home, he displayed a variety of violent and inappropriate behaviors. He had attempted to strangle her and purposefully urinated on her. He was initially terrified of his foster father but had cried hysterically whenever he left the house stating that they had to "find a new daddy." Wayne became nervous before visitation with Toni and expressed fear that she would take him from his foster parents, including night terrors of being taken away. Wayne told his foster mother that they should move to another house so the Division could not find them.
Dr. Smith testified that Nancy had formed a positive, secure attachment to her foster parents and was also attached to her brother. She reported that Wayne had formed an "anxious attachment" to his foster parents. She explained that the anxiety was a product of his exposure to "a lot of scary things for his age" when living with his mother; and his initial placement in the first foster home. She stated, "So in terms of attachment I think [Wayne] was very, very vulnerable to begin with because his own attachment with . . . his mother was impaired. Then being placed in . . . one foster home and then another and it took him a while to form a more trusting relationship."
She concluded in her report that Wayne would suffer severe and enduring harm if removed from his foster parents' care, which could not be mitigated by therapy or other supports. She noted that if placed with Toni, Wayne would "lose not only his foster father but the opportunity to have a father. . . . This would be devastating."
Dr. Smith expressed concern about Toni's capacity to parent Wayne and Nancy. Noting a report that Toni suffered from significant cognitive deficits, with a measured IQ of 73, Dr. Smith expressed concern "that her cognitive deficits may make it difficult for her to appreciate the children's special needs and emotional vulnerabilities." She also expressed concern that Toni's responsibilities for caring for her own disabled child would make it difficult for her to supply the emotional support and understanding that Wayne and Nancy would need if removed from their foster parents.
Dr. Smith also addressed the loss of contact with the children's older sister in her report, stating that the "[l]oss of potential close contact with this sibling would be much more easily dealt with than the loss of the foster parents." Dr. Smith's report also mentions that the foster parents are interested in maintaining a relationship with the children's "family of origin," so the termination of defendant's parental rights would not necessarily mean an end to all contact with the family.
Antonio W. Burr, Ph.D. evaluated Toni in September 2010 and observed the children's interaction with her, and with the foster parents. His report was also admitted into evidence. Dr. Burr concluded that Toni's problem solving abilities were "quite poor," which may mean that "she may have difficulty managing the multiple demands placed on her by daily life." Toni's son was present for the observation exercise, and his presence, and her ability to control his impulsive behaviors, substantially affected her ability to interact with Wayne and Nancy. Toni's son was loud and disruptive, at one point slamming a drawer perilously close to Wayne's fingers and at another point, when Toni was holding Nancy on her lap, attempting to overturn a sofa chair that would have landed on Nancy. Later, he suddenly ran out of the room forcing Toni to chase after him, leaving Wayne and Nancy with Dr. Burr.
The son's disruptive behavior caused Wayne to retreat into solitary play and Nancy to seek Toni's protection. The session left Dr. Burr with serious doubts about Toni's ability to adequately care for Wayne and Nancy given the competing demands of her own son. Dr. Burr concluded that while the children were familiar with their aunt, they had not bonded with her.
Dr. Burr's analysis of the foster parents' interaction with the children was quite similar to Dr. Smith's. He noted that the children responded well to the foster parents' direction and the foster parents created a tender and affectionate environment around the children. Dr. Burr concluded that the children had a significant bond and psychological attachment with their foster parents. He opined that removing Wayne from his foster parents would be "very, very disruptive to his development and . . . he could regress in his development." Dr. Burr opined that placing Nancy with Toni and her son could provoke a reaction of "depressive inhibition" and be quite disruptive.
In his report, Dr. Burr stated, "[T]hough [Toni] is apparently successfully parenting a child with extensive developmental disabilities, she does not have the resources to parent 2 other children with different, but significant developmental needs of their own." He opined that it would not serve the children's developmental or emotional interests to be permanently placed with Toni. Rather, "it serves these children's needs best to be permanently placed with their foster parents."
Defendant did not call Toni as a witness nor present evidence of the nature of the relationship between her and her nephew and niece. Dr. Smith did report Toni's assertion to her that she had "frequent contact" with Wayne before his placement. The court allowed both Toni and the foster mother, accompanied by her husband, to provide statements to the court. However, the court declared that the statements would not be considered evidential, and neither speaker was subjected to cross-examination.
II.
In a cogent, and extensive written opinion, Judge Foti reviewed the record evidence demonstrating that the Division had established by clear and convincing evidence that the four prongs of N.J.S.A. 30:4C-15.1a were met and that defendant's parental rights should be terminated. Judge Foti found that the children's safety, health or development were endangered by the parental relationship because of defendant's drug abuse, mental health problems, lack of stable housing and income, and her lack of basic parenting skills. N.J.S.A. 30:4C-15.1a(1).
With respect to Prong Two, the court found, absent drug abuse treatment, which defendant did not complete, the harm was continuing, and defendant was unable or unwilling to eliminate the harm as evidenced by her failure to begin or complete drug treatment, seek counseling for her mental health issues, or obtain stable housing with Division assistance. N.J.S.A. 30:4C-15.1a(2). There was no indication that defendant would ever be in a position to care for her children.
Further, regarding Prong Two, the court found that separating the children from their foster parents would cause serious and enduring emotional or psychological harm. In connection with that finding, the court considered defendant's request that her children be placed with Toni. The court credited both experts' opinions that although Toni was a caring person, the children did not have a strong attachment to her, and she would face significant challenges in providing for Wayne's and Nancy's needs while caring for her own son. By contrast, the children were attached to their foster parents who provided a positive, nurturing environment. The court stated it was "satisfied with the overwhelming and uncontroverted testimony . . . that [defendant's] wish that the children be placed with their maternal aunt is not in the children's best interest." The court found that delay in permanent placement would add to the harm already suffered by the children.
Under Prong Three, Judge Foti found that the Division had made reasonable efforts to provide services to defendant to no avail. N.J.S.A. 30:4C-15.1a(3). The court specifically addressed the argument that the Division did not make reasonable efforts to explore placement of the children with Toni. The
judge found that Toni had refused to accept placement of the children after they were removed from defendant in late 2008 and repeatedly thereafter, until she had a change of heart in November 2009.
At the time of the removal of the children from their mother's care, the DivisionJudge Foti found that after Toni presented herself as an option, the Division caused the necessary evaluation to be done. She referenced again the opinions of the experts that placement with Toni was not in the children's best interests. The court therefore concluded that there were "no alternatives to termination of parental rights and the Division had made reasonable efforts to prevent termination, without success."
explored placement of the children with the maternal grandmother, R.H., and with N.H.'s two sisters, C.H. and T.H. All relatives initially advised the Division that they were not able to care for the children. Ms. Miles testified that she asked T.H. if she wished to be considered a placement for the children in December 2008, again in February or March 2009 and again in April or May 2009. Each time, T.H. said she could not care for the children, advising Ms. Miles that she had a special needs child and could not take on any more responsibilities. In November 2009, T.H. had a change of heart and offered herself as a caretaker for the children, moved into a two bedroom apartment, and took foster parent training classes.
Finally, citing the evaluations of Drs. Smith and Burr, Judge Foti found that terminating defendant's parental rights would not do more harm than good; rather, separation from the foster parents would harm the children. The judge found termination, and adoption was in the children's best interests. Defendant has raised the following issues on appeal: I. DYFS FAILED TO PROVE THE FOUR PRONGS OF THE TERMINATION TEST
A. THE STATE FAILED TO PROVE THE THIRD PRONG OF THE BEST INTEREST TEST BECAUSE IT FAILED TO PROVIDE SERVICES THAT WOULD HAVE ALLOWED THE CHILDREN TO STAY WITH THEIR BIOLOGICAL AUNT
B. THE STATE FAILED TO PROVE THE FOURTH PRONG THAT TERMINATING NATALIE'S PARENTAL RIGHTS WOULD NOT DO MORE HARM THAN GOOD
1. TERMINATION OF PARENTAL RIGHTS UNNECESSARILY DEPRIVED WAYNE AND NANCY OF A CONNECTION TO THEIR BIOLOGICAL FAMILY
2. TERMINATION OF PARENTAL RIGHTS BASED SOLELY ON THE CHILDREN'S BONDING WITH FOSTER PARENTS IS IMPERMISSIBLE
3. DYFS WAS NOT STATUTORILY REQUIRED TO SEEK TERMINATION AT THIS TIME
III.
Our scope of review is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). We give deference to the trial court's factual findings based on the trial judge's familiarity with the case, opportunity to make credibility judgments based on live testimony, and expertise in family and child welfare matters. See N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008); Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). We do not disturb the trial court's findings unless they are so clearly mistaken or unsupported as to deny justice. E.P., supra, 196 N.J. at 104. Rather, we affirm the Family Part's decision to terminate parental rights when substantial, credible evidence in the record supports the court's findings. Ibid.
The Division has the burden to establish by clear and convincing evidence four elements:
(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;These four, often overlapping elements, "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 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-15.1a.]
Although defendant summarily argues that the Division failed to establish all four prongs, she has limited her argument to a challenge of the trial court's findings with respect to Prongs Three and Four. Moreover, with respect to Prong Three, she does not challenge the finding regarding reasonable efforts to provide services to defendant herself. Consequently, we shall not address in detail the first two prongs, nor that aspect of Prong Three pertinent to services offered defendant, except to observe that there was ample evidence in the record to support the judge's conclusions. Further comment is not warranted in a written opinion. R. 2:11-3(e)(1)(E).
We turn to the crux of defendant's appeal. Defendant argues that the Division failed to make reasonable efforts to place the children with their Aunt Toni. This claimed failure also allegedly undermined the court's determination regarding Prong Four that termination of parental rights would not do more harm than good. We disagree.
"Reasonable efforts" means
attempts . . . to assist the parents in remedying the circumstances and conditions that led to the placement of the child and in reinforcing the family structure, including, but 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-15.1c].
Once the Division gains custody of a child, it is also obliged to promptly search for capable relatives who may be willing to care for the child.
In any case in which the Department of Children and Families accepts a child in its care or custody, including placement, the department shall initiate a search for relatives who may be willing and able to provide the care and support required by the child. The search shall be initiated within 30 days of the department's acceptance of the child in its care or custody. The search will be completed when all sources contacted have either responded to the inquiry or failed to respond within 45 days. The department shall complete an assessment of each interested relative's ability to provide the care and support, including placement, required by the child.
[N.J.S.A. 30:4C-12.1a].
However, once the Division determines that a relative is unwilling or unable to accept custody and care of a child, the Division is not required to re-evaluate the relative.
If the department determines that the relative is unwilling or unable to assume the care of the child, the department shall not be required to re-evaluate the relative. The department shall inform the relative in writing of:
(1) the reasons for the department's determination;
(2) the responsibility of the relative to inform the department if there is a change in the circumstances upon which the determination was made;
(3) the possibility that termination of parental rights may occur if the child remains in resource family care for more than six months; and
(4) the right to seek review by the department of such determination.
[N.J.S.A. 30:4C-12.1b].
There is no presumption in favor of placement with a relative. N.J. Div. of Youth & Family Servs. v. M.F., 357 N.J. Super. 515, 528 (App. Div. 2003). "[A]lthough there are statutory provisions in Title 30 and Title 9 which refer to relative placements, the statutes do not create a presumption in favor of such placement." Id. at 528-29. A child is entitled to the Division's best efforts to be placed with a relative and any siblings and to have regular visitation with any siblings, but only so long as that is "consistent with the health, safety and physical and psychological welfare of the child and as appropriate to the individual circumstances of the child's physical or mental development." N.J.S.A. 9:6B-4b, d, f.
There was ample evidence in the record to support Judge Foti's finding, by clear and convincing evidence, that the Division had fulfilled its obligation to identify and assess relatives, including defendant's sister. The court found, based on the Division caseworker's uncontroverted testimony, that Toni declined to care for the children three times. Contrary to defendant's arguments before us, there was no cognizable evidence presented to the court that Toni declined only because of the space limitations of her apartment, implying that had the Division been willing to provide housing assistance, she would have taken the children. To the contrary, the caseworker testified that she offered to obtain assistance for Toni but she still resisted. After the Division sent her the rule-out letter in May 2009, Toni did not appeal or dispute the asserted grounds for her decision not to care for the children — her existing childrearing obligations.
There was also ample evidence, based on the expert's findings, that terminating defendant's parental rights would not do more harm than good. Rather, the experts' unequivocal opinion was that the children's best interests would be served by terminating defendant's parental rights, rejecting placement with Toni, and paving the way for proposed adoption by the foster parents.
The Division was not required to re-evaluate Toni. N.J.S.A. 30:4C-12.1b. The children had been in Division custody for a year and with their current foster parents for eleven months by the time Toni changed her mind and offered herself as a placement for the children. Although there were unexplained delays in evaluating her home, the court ordered and the Division implemented weekly visitation. Overnight visitation was avoided because of Wayne's resistance to it. The Division provided Toni foster parent training, conducted a home study, and obtained a psychological evaluation, and bonding evaluations.
As the court noted, even if the home study proceeded sooner, the court would not have placed the children in Toni's home absent a best interests hearing. We can imagine no result from such a hearing other than the one the court reached, in light of the experts' opinions, that the children's best interests would be served by remaining with their foster parents.
The case before us presents circumstances markedly different from those in M.F., supra, 357 N.J. Super. at 529, where the trial granted placement to a great aunt despite a lengthy period of foster care and evidence that the child had bonded with her foster parents. In that case, the relative never refused to take the child, came forward only four months after the child had been placed in foster care to request custody, the relative was already caring for one of the child's biological siblings, and an expert witness testified that the child had a bond with the relative and would have little difficulty living with her. Id. at 522-525. By contrast, Toni declined to care for the children for a year; there were significant questions about her capacity to care for the children; and the expert testimony supported the court's finding that removing the children from their foster parents and placing them with their aunt could have devastating consequences.
Nor is the case before us governed by our recent decision in N.J. Div. of Youth & Family Servs. v. K.L.W., 419 N.J. Super. 568 (App. Div. 2011). In K.L.W., we reversed the termination of parental rights because the Division had violated its obligations under N.J.S.A. 30:4C-12.1 by failing to consider whether the child could be placed with a maternal grandparent. In that case, the grandparent was already caring for the child's sibling. At the mother's request, the Division had never contacted the maternal grandparent regarding caring for a new-born baby. Id. at 570-571. In addition, two experts admitted that the harm the child might suffer after being removed from the foster mother with whom the child had bonded could be mitigated by an appropriate caregiver. Id. at 575.
In this case, the Division fulfilled its obligations under N.J.S.A. 30:4C-12.1 to explore placement with relatives. The Division contacted Toni three times and then ruled her out as a potential caregiver because she said she was not interested in raising the children. While there was inexplicable delay in licensing Toni as a foster placement, we cannot conclude that the delay constitutes a violation of the Division's statutory obligations, inasmuch as the statute expressly provides that the Division is not required to re-evaluate a relative once ruled out.
Nonetheless, the court ordered, and the Division implemented visitation and also provided foster-parent training. The court received expert opinions based on bonding evaluations of Toni and the children. Ultimately, the expert evidence supported the court's finding that Toni would not be able to mitigate the harm caused by the removal of the children from their current foster parents.
There is no basis to conclude here, in contrast to K.L.W., that a failure to explore relative placement deprived the court of "information relevant to the best interests of the child." Id. at 581. Nor does the Division's delay in conducting a home study warrant reversal of the court's decision, particularly given that the best interests of the children were served by their remaining with their foster parents. Id. at 581 ("[d]elay of permanency or reversal of termination based on the Division's noncompliance with its statutory obligations is warranted only when it is in the best interests of the child.").
We also reject defendant's argument that termination of parental rights was based solely on the children's bonding with the foster parents, which defendant argues is impermissible. The Supreme Court has held that when "the bond with the 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. This must also be proven by clear and convincing evidence which should include the 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 the parent." In re Guardianship of J.C., 129 N.J. 1, 19 (1992). In this case, both experts found that Wayne and Nancy were more strongly bonded to their foster parents than to either their mother or aunt.
We are mindful that undue reliance on existing bonds with foster parents may create a bias against reunification of children with their biological parents or, in this case, a willing relative. Id. at 20-21 (discussing the proper role of bonding with foster parents in termination of parental rights case). Yet, Judge Foti did not view the relationship between the children and their foster parents in isolation. Rather, she appropriately considered defendant's unquestionable failure to fulfill her own parenting role and to demonstrate any reasonable prospect of doing so; the nature of the present relatively insubstantial relationship between the children and their aunt; the significant challenges the aunt would confront in coping with the needs of her nephew and niece as well as her own disabled child; and the risks of severe harm the children would face if placed with her.
Finally, we reject defendant's argument that the Division sought termination of parental rights prematurely. The Division is required to seek termination of parental rights if the Division has been unable for a year after placement in foster care to ameliorate the circumstances or conditions that led to a child's removal. N.J.S.A. 30:4C:15d. Defendant argues that had Wayne and Nancy been placed with Toni immediately upon her change of heart in November 2009, then the Division would not have been required to file a termination petition. See N.J.S.A. 30:4C-15.3 (stating that termination petition not compelled if "[t]he child is being cared for by a relative and a permanent plan for the child can be achieved without termination of parental rights.").
However, this presumes that Toni's home study application was submitted timely; but, the evidence at trial was that the Division did not receive her completed application until May 2010. There also is no basis in the record to conclude that it would have been in the children's best interests to immediately uproot them from their foster parents' home and place them with Toni. As noted above, the record evidence was that the children's best interests would not have been so served. Even assuming an expeditious home study and review, it would have been extremely unlikely that the children could have been placed with a relative before one year of foster care.
Moreover, delay would have been contrary to the children's interest in permanency. The court was mindful of New Jersey's strong public policy interest in permanency. K.H.O., supra, 161 N.J. at 357 ("In all our guardianship and adoption cases, the child's need for permanency and stability emerges as a central factor."). There was sufficient credible evidence in the record to support the court's conclusion that delaying resolution of the children's status would disserve their best interests.
We recognize, as did the trial court, Toni's genuine interest in caring for her nephew and niece, notwithstanding her substantial burdens as a single working mother responsible for the care of her own significantly disabled child. Her willingness to care for the children, despite the significant personal sacrifice it would entail, is admirable. However, the record evidence amply supports each of Judge Foti's findings and her determination that the best interest standard had been met and defendant's parental rights should be terminated.
Affirmed.
I hereby certify that the foregoing
is a true copy of the original on
file in my office
CLERK OF THE APPELLATE DIVISION