Opinion
DOCKET NO. A-3436-14T2
03-07-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. C.K.M., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF K.Z.B., J.N.M., and K.M.M., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Carol A. Weil, Designated Counsel, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Gezim Bajrami, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Rachel E. Seidman, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges St. John, Guadagno and Vernoia. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-170-14. Joseph E. Krakora, Public Defender, attorney for appellant (Carol A. Weil, Designated Counsel, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Gezim Bajrami, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Rachel E. Seidman, Assistant Deputy Public Defender, on the brief). PER CURIAM
Defendant C.K.M. (Carol) appeals from a February 3, 2015 Family Part order terminating her parental rights to three of her four children, K.Z.B. (Kasey), born on December 17, 2003; K.M.M. (Kristen), born on February 27, 2006; and J.N.M. (Jamie), born on February 19, 2007, and awarding guardianship of the children to the Division of Child Protection and Permanency (the Division). We affirm.
We employ initials and pseudonyms to protect the privacy of those involved and for ease of reference.
Legal and physical custody of Carol's fourth child, D.C.J. (David), was awarded to David's father, D.C., on October 11, 2013.
The biological fathers of Kasey, Kristen, and Jamie are unknown. Service upon their fathers was waived pursuant to N.J.S.A. 30:4C-17(c), and the court entered default judgments against them terminating their parental rights. They did not participate in the Family Part proceedings or in this appeal.
The Division's involvement with the family occurred prior to the June 29, 2012 legislation, which reorganized the Department of Children and Families, including renaming the Division of Youth and Family Services as the Division of Child Protection and Permanency, L. 2012, c. 16, eff. June 29, 2012 (amending N.J.S.A. 9:3A-10(b)). To avoid confusion, we refer to the Division by its current name.
I.
We summarize the lengthy history of the Division's involvement with Carol and her children and the evidence presented during the trial to provide context for our discussion of the issues raised by Carol on appeal. The Division first became involved with Carol in May 2004, in response to a report that she left Kasey, then five months old, with anyone who would watch her. The Division investigated the allegation and found it to be unsubstantiated.
In September 2005, Carol advised the Division she did not have any money or Medicaid for herself or Kasey. The Division visited Carol's home, which she was renting from A.W., and A.W. reported that she had been caring for Kasey since the child was born. The Division provided money and other necessities for Kasey and issued a Medicaid card for Kasey. The Division continued to visit Carol and assist with services.
On November 29, 2005, the Division received a report that Carol was asked to leave A.W.'s home because Carol had not seen Kasey in three weeks, was not caring for Kasey, and A.W. had assumed responsibility for Kasey's care. Carol acknowledged she had not seen Kasey for a week.
On January 17, 2006, A.W.'s daughter advised the Division that Carol had not visited Kasey since Christmas and that A.W.'s family intended to file for custody of the child. The court subsequently denied A.W.'s request for legal custody of Kasey, and Carol removed Kasey from A.W.'s home.
After Kristen was born on February 27, 2006, the Division assessed Carol's living arrangements, organized in-home family therapy and parenting skills services for Carol, and assisted her in obtaining Medicaid and welfare benefits. In April 2006, the Division received a report that Carol was not caring for her children and was living with her mother, who was alleged to have a drug abuse problem. The Division found the allegations were unfounded but determined that Carol did not have stable housing.
On June 9, 2006, the Division was informed that J.I. filed for custody of Kasey and Kristen. J.I. asserted that she had cared for Kristen since she was born and that Carol gave her permission to obtain custody of Kasey and Kristen and relocate to Pennsylvania. The Division conducted an emergency Dodd removal of Kristen from J.I., and placed Kristen in foster care. At the time, A.W. was caring for Kasey. The Division advised A.W. that Carol was not permitted to remove Kasey from A.W.'s home.
A "Dodd removal" is an emergency removal of a child from the custody of a parent without a court order, as authorized by N.J.S.A. 9:6-8.29 of the Dodd Act, N.J.S.A. 9:6-8.21 to -8.82.
The Division filed an order to show cause and verified complaint for custody of Kasey and Kristen pursuant to N.J.S.A. 9:6-8.21 and N.J.S.A. 30:4C-12. On June 13, 2006, the Family Part approved the removal and granted the Division custody of Kasey and Kristen. On June 27, 2006, the court ordered that custody of the children continue with the Division and directed that Carol cooperate with services to be arranged by the Division, including Carol's participation in psychological and substance abuse evaluations.
On September 19, 2006, Carol waived her right to a fact-finding hearing and stipulated that her marijuana use placed her children at risk of abuse or neglect. The court entered an order continuing the Division's custody of Kasey and Kristen, and directed that Carol comply with Division services. With the assistance of the Division, Carol entered Renaissance House, a treatment facility for mothers dealing with substance abuse issues.
Jamie was born on February 19, 2007. It was reported to the Division that Carol admitted using marijuana during her pregnancy. Kristen was in Carol's care at the time, but Kasey remained in A.W.'s care. Jamie was placed in Carol's custody at Renaissance House. By May 2007, Kasey was reunited with Carol and was residing with Carol, Kristen, and Jamie in Renaissance House. Carol and the children remained at Renaissance House until September 8, 2007, at which time the children were removed and placed in a foster home due to a reported incident at Renaissance House. The children were reunited with Carol at the end of September 2007.
From September 2007, to May 2009, the Division received reports that Carol was using drugs and selling drugs in front of her children, and was abusing her children. The allegations were deemed unsubstantiated or unfounded. On May 15, 2009, Carol admitted to marijuana usage and voluntarily enrolled in drug treatment services at the Bridge, where she was partially compliant in the program, missing multiple appointments. The Division continued to supervise Carol, and observed that the children appeared to be doing well in Carol's care.
Carol gave birth to her fourth child, David, on October 29, 2010. On January 25, 2011, the Division received a referral that Carol was using drugs around the children and permitted the children to drink alcohol. It was reported that Jamie alleged she had been sexually abused, and that Carol reprimanded Jamie for making the allegation. The Division substantiated the allegations of substantial risk of physical injury because Carol tested positive for marijuana. Carol was referred to Welfare's Substance Abuse Initiative Program (SAI) and drug treatment at Renaissance House, and entered into a case plan with the Division.
In June 2011, the Division received a referral that Carol attended the drug treatment program at Renaissance House only one day throughout April, May, and June, and she did not submit to any urine screens while in treatment. The Division conducted an investigation and Carol admitted leaving the drug treatment program and smoking marijuana in June 2011. As a result, on June 20, 2011, the Division substantiated the allegation of neglect with regard to Carol's four children. A parent aide was placed in Carol's home until she began substance abuse treatment.
On July 24, 2011, the Division received a referral that Carol was arrested on a warrant after she had chased David's father down a street with a knife when he arrived to pick up David from Carol's home. The referent also reported that Carol's home was filthy, had a foul odor, and had no air conditioning. Carol told the referent, "you need to come get this little boy or I am going to choke him because he looks just like his father."
The Division conducted an investigation and interviewed Carol at the county jail, during which Carol identified three different men as the fathers of Kasey, Kristen, and Jamie. It was determined that Carol's four children were in the care of S.D., a relative of David's father. S.D., however, was unable to care for the four children. An emergency Dodd removal was completed for Kasey, Kristen, and Jamie, and they were placed in foster care. David remained in the care of S.D. As a result of this incident, Carol was substantiated for neglect.
Carol was released from jail in August 2011, and began drug treatment at the Airmid Counseling Services (Airmid) facility through the SAI program. On August 22, 2011, a Family Team meeting was held, and Carol stated that she was attending drug treatment and wanted to work toward reunification with her children. During an August 31, 2011 court hearing, Carol stipulated that she "abuse[d] marijuana and acknowledge[d] her untreated substance abuse problems place[d] her four children at a substantial risk of harm." Carol was accepted into Drug Court and was ordered to adhere to a curfew, attend weekly court hearings, submit to psychological evaluations and comply with all recommendations, participate in substance abuse treatment, submit to random urine screens, and report to probation.
On September 16, 2011, Carol was discharged from Airmid's drug treatment program because she had not attended the program since August 17, 2011, and on the occasions she had attended, her urine screens were positive for marijuana. She was referred to Reunity House in September 2011, to assist with supervised visitation with her children, and was ordered to participate in parenting group and skills training, and family and peer support programs. The Division also created a visitation schedule for Carol and her children.
On October 26, 2011, Carol re-entered drug treatment at Airmid, but continued to test positive for marijuana. She submitted to multiple psychological evaluations arranged by the Division.
On March 8, 2012, a Division worker transported Carol to an intake appointment at Tri-Cities Corporation to attend therapeutic visitation with her children. On March 28, 2012, Carol was discharged from Airmid's drug treatment program because she completed her services, her urine screens were negative, and she participated and was compliant in all of the treatment sessions. On April 2, 2012, Reunity House wrote to the Division and stated that from November 2011, to April 2012, Carol complied with therapeutic supervised visitation and services and missed only two scheduled family visits, but Reunity House observed that at times Carol appeared to be depressed and detached from the children, used foul language, and would cry.
On April 26, 2012, the Division submitted a housing application to the Newark Housing Authority for Carol. Because Carol was compliant with the Division's services and the Division's goal at the time was reunification, Carol's May 2012 request that Kasey and Jamie be removed from their foster home and placed with her friend, Ms. E., was granted.
In July 2012, Kasey and Jamie were reunited with Carol. Kristen was not reunited with Carol at that time because Kristen had behavioral issues, and Carol was required to attend family therapy at Future Projects before Kristen could return to her care. Kristen was admitted to the Newark Beth Israel hospital crisis unit on July 31, 2012, due to her disruptive behavior. On August 9, 2012, Kristen was released from the hospital and reunified with Carol, and a parent aide was placed in the home to assist with the reunification.
In November 2012, Reunity House reported that Carol was not participating in the aftercare program and the visitation specialist was unable to gain access to Carol's home for required home visits. In December 2012, Carol tested positive for marijuana and was sanctioned by SAI for missing treatment.
The Division received a report on February 25, 2013, that Kasey was visiting with her former foster parent and was dirty and hungry. The Division also received reports in March 2013, from Kasey and Kristen's school teachers expressing concerns regarding the children and Kristen's behavior and hygiene.
On March 4, 2013, Family Connections, a substance abuse facility, informed the Division that Carol began treatment in the Strong Mothers Intensive Outpatient Program on January 16, 2013, but that she attended only six of twenty scheduled group sessions, did not attend any individual therapy sessions, and Carol's six drug screens were positive for marijuana. In March 2013, Family Connections and Welfare's SAI program terminated Carol from services because of her non-compliance and continued marijuana use.
On April 11, 2013, the Division received a report from an individual who expressed concerns regarding abuse to the children and claimed Carol's home was unsafe for the children. It was reported that Carol left her children home alone, smoked marijuana in the children's presence, and used excessive force with the children.
After an investigation, during which the children confirmed the allegations and the house was found to be in deplorable condition, the Division substantiated the allegations and conducted an emergency Dodd removal of Kasey, Kristen, and Jamie. Kasey and Jamie were placed in a foster home with Ms. H., with whom they had previously been placed, and Kristen was placed in a former foster parent's home.
On April 16, 2013, the Family Part entered an order to show cause granting the Division custody of Kasey, Kristen, and Jamie. On July 30, 2013, Judge Wayne J. Forrest entered an order continuing the Division's custody of the three children and rejecting the Division's permanency plan for termination of parental rights and adoption, in order to provide Carol with time to present a plan. The Division provided Carol with bus cards to allow her to visit her children.
On September 3, 2013, Carol voluntarily reaffirmed her previous stipulation from August 31, 2011, acknowledging that her substance abuse problems placed her children at a substantial risk of harm. The court found defendant's stipulation sufficient for a finding of abuse or neglect pursuant to N.J.S.A. 9:6-8.21(c)(4).
On October 11, 2013, the court held a permanency hearing and entered an order approving the Division's plan for termination of parental rights followed by adoption of the three children as appropriate and acceptable. The court found that "no father has come forward to provide a plan for his respective daughter" and Carol "has been provided services for two years, but she has failed to complete services or mental health treatment and she is unable to provide a safe and stable home for her children." Carol identified her sister, L.W., as a potential relative resource. On October 17, 2013, the Division submitted an Interstate Home Study Packet to L.W., who resided in Pennsylvania.
On December 11, 2013, the Division filed a complaint for guardianship of Kasey, Kristen, and Jamie and requested termination of Carol's parental rights. On December 13, 2013, the Family Part entered an order requiring Carol to show cause as to why the court should not enter an order terminating her parental rights to the three children. On February 11, 2014, the court entered an order continuing custody of the children with the Division.
In May 2014, Kristen's foster home reported to the Division that Kristen was difficult, and that the foster parent did not wish to adopt Kristen. On June 2, 2014, Kristen was removed from her foster parent and placed in the home of Ms. H., where Kasey and Jamie resided. On June 19, 2014, Ms. H. requested Kristen's removal because she was aggressive, destructive, and threatened the stability of the other siblings in the home.
On July 8, 2014, the Division arranged a sibling visit between Kasey, Kristen, and Jamie, and a visit with L.W., during which the Division worker noted there was a "minimal familial bond between the girls and their aunt[, L.W.]" Kristen's new foster parent subsequently reported to the Division that Kristen was very difficult and out of control, and Kristen was removed and placed in a former foster home.
At a July 22, 2014 case management hearing, Carol completed an Identified Surrender of her parental rights to Kristen to Carol's sister, L.W. and/or L.W.'s fiancé, T.N. The Division consented to the surrender and the court entered an order accepting the surrender of Kristen to L.W. and/or T.N. Kristen began visiting L.W. in July 2014, and was placed in L.W.'s custody in September 2014.
The trial on the Division's guardianship complaint was conducted over three days. On the second day of the trial, the court permitted the Division to withdraw its consent to Carol's identified surrender of her parental rights to Kristen. The trial thereafter proceeded on the Division's request for the termination of Carol's parental rights to Kasey, Kristen, and Jamie.
The Division presented testimony from Dr. Mark Singer, an expert in the areas of bonding and psychology, and Division caseworker Belinda Benson. The Law Guardian presented the testimony of Dr. Denise Johnson, an expert in the areas of bonding and psychology. The court also considered numerous exhibits which were admitted in evidence at the request of the Division and Law Guardian. Carol did not appear at the trial and no witnesses were called on her behalf.
On February 3, 2015, Judge Forrest issued a written decision finding the Division established by clear and convincing evidence that termination of Carol's parental rights was in the best interests of the children in accordance with N.J.S.A. 30:4C-15.1. The court entered a corresponding order. Carol appealed.
II.
We have considered Carol's arguments on appeal and affirm substantially for the reasons set forth in Judge Forrest's comprehensive and well-reasoned written decision. We add the following comments.
The scope of our review on an appeal from an order terminating parental rights is limited. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). We uphold a trial judge's factfindings if they are "supported by adequate, substantial, and credible evidence." N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014). "We accord deference to factfindings of the family court because it has the superior ability to gauge the credibility of the witnesses who testify before it and because it possesses special expertise in matters related to the family." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2014) (citing Cesare v. Cesare, 154 N.J. 394, 413 (1998)). We will not overturn a family court's factfindings unless the findings are "so wide of the mark that the judge was clearly mistaken." G.L., supra, 191 N.J. at 605. We do not, however, give "special deference" to the court's "interpretation of the law." D.W. v. R.W., 212 N.J. 232, 245 (2012) (citing N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 183 (2010)).
A parent has a constitutionally protected right "to enjoy a relationship with his or her child." In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). That right, however, is not absolute and is limited by the "State's parens patriae responsibility to protect children whose vulnerable lives or psychological well-being may have been harmed or may be seriously endangered by a neglectful or abusive parent." F.M., supra, 211 N.J. at 447. A parent's interest must, at times, yield to the State's obligation to protect children from harm. N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 397 (2009).
When terminating parental rights, the court focuses on the best interests of the child. K.H.O., supra, 161 N.J. at 357. The Division may initiate a petition to terminate parental rights in the "best interests of the child," and the petition may be granted if the following four prongs enumerated in N.J.S.A. 30:4C-15.1(a) are established by clear and convincing evidence:
(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;"The four criteria enumerated in the best interests standard 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. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;
(3) The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and
(4) Termination of parental rights will not do more harm than good.
In her appeal of the order terminating her parental rights to Kasey, Kristen, and Jamie, Carol does not challenge the trial court's findings on the first and second prongs of the statutory standard, or the court's finding under the third prong that the Division made reasonable efforts to provide services to help Carol correct the circumstances which led to the children's placement outside of the home. Even if Carol contested the court's findings on these prongs of the standard, we are convinced there was adequate, substantial, and credible evidence supporting Judge Forrest's findings as to each of them.
The evidence showed that Carol's failure to address her significant and unyielding substance abuse issue interfered with her ability to provide a safe and stable home for the children and endangered, and will continue to endanger, each child's health and development. She failed to successfully participate in substance abuse services, mental health counseling, reunification, and other services offered by the Division between 2006 and 2013, thereby adversely affecting the psychological and emotional well-being of the children and resulting in their removal by the Division on four separate occasions. Carol's failure to use the numerous services offered, her refusal to earnestly address the substance abuse and mental health issues that rendered her incapable of adequately caring for her children, and her decision to refuse visitation with the children for the seven-month period prior to the trial provided ample support for the court's finding that Carol was unable or unwilling to provide a safe and stable home for the children and that any further delay in the placement of the children would cause additional harm to them.
We turn to Carol's first argument that the Division failed to timely identify and evaluate the children's maternal aunt, L.W., upon removal in accordance with N.J.S.A. 30:4C-12.1. Carol argues that the Division's failure to timely consider L.W. as a family resource prevented the court from properly finding that it "considered alternatives to termination of parental rights" under the third prong of the best interests standard. K.H.O., supra, 161 N.J. at 348.
Under the third prong of the best interests standard, the Division is required to prove that "alternatives to terminating parental rights have been thoroughly explored and exhausted." N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 434 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002). The Division should not "place a child with a foster parent interested in adoption without considering, as required by N.J.S.A. 30:4C-12.1, whether a capable relative is also available." N.J. Div. of Youth & Family Servs. v. K.L.W., 419 N.J. Super. 568, 580 (App. Div. 2011). This obligation does not create a "presumption in favor of placement with relatives." Id. at 580. A "presumption of custody only exists in favor of a natural parent." N.J. Div. of Youth & Family Servs. v. J.S., 433 N.J. Super. 69, 82 (App. Div. 2013) (quoting N.J. Div. of Youth & Family Servs. v. M.F., 357 N.J. Super. 515, 528, n.3 (App. Div. 2003)), certif. denied, 217 N.J. 587 (2014).
The Division does not have "an obligation to search the fifty states or even the twenty-one counties to identify a parent's siblings, cousins, uncles and aunts." K.L.W., supra, 419 N.J. Super. at 582. However, "the Division's statutory obligation does not permit willful blindness and inexplicable delay in assessing and approving or disapproving a relative known to the Division." Ibid.
The evidence does not support Carol's contention that the Division delayed in its consideration of L.W. as a relative resource for the care of the children. L.W. was first identified by Carol as a relative resource on October 11, 2013. On October 17, 2013, the Division submitted an Interstate Compact on the Placement of Children Request to Pennsylvania requesting an assessment of L.W. as a potential caregiver for the three children. Although L.W. was assessed for the placement, the Division determined that it was in the best interests of Kasey and Jamie to remain in the custody of Ms. H. because they had a very strong bond with her, they expressed an interest in staying with her, they were very attached to where they were living, and Ms. H. intended to adopt them. The Division sent L.W. a rule-out letter as to Kasey and Jamie, which L.W. did not appeal.
The evidence also showed that Carol identified six putative fathers for the children, but over the course of Carol's involvement with the Division and court, each of the putative fathers was ruled out by DNA evidence. In addition, there was evidence showing that the Division assessed four other relative resources who were identified by Carol. They were assessed, ruled out, and sent rule-out letters, which were not appealed.
Carol also contends that our decision in K.L.W. requires a reversal of the court's finding that the Division satisfied the third prong of the best-interests-of-the-child standard because the court failed to consider L.W. as an alternative to the termination of her parental rights. In K.L.W., we reversed an order terminating parental rights where the Division was fully aware the child's maternal grandparents were available as a family resource and was unaware of any reason the child would not be well-served by placement with them, but failed to contact the grandparents as required by N.J.S.A. 30:4C-12.1. K.L.W., supra, 419 N.J. Super. at 578-79. Based upon the Division's failure to consider the maternal grandparents as an alternative to termination under those circumstances, we determined the trial court could not properly conclude that termination was in the child's best interest. Id. at 582.
Here, the Division immediately assessed L.W. after Carol first identified her in October 2013. There was no evidence the Division willfully failed to consider L.W. or inexplicably delayed considering L.W. as a relative resource for the three children. K.L.W., supra, 419 N.J. Super. at 582.
Subsection (c) of N.J.S.A. 30:4C-12.1 grants the Division "the authority to rule out relatives based on the Division's assessment that placement with that relative would not be in the child's best interests." J.S., supra, 433 N.J. Super. at 83. "The reality is that, no matter how fit or willing a proposed relative may be, a child will, in some instances, be better off remaining in a successful foster placement." Id. at 85.
The evidence supports Judge Forrest's finding that the Division clearly and convincingly proved it was in the best interest of Kristen to remain in the custody of L.W., and in the best interests of Kasey and Jamie to remain in the custody of Ms. H. Any purported delay or noncompliance with the statutory obligation to "initiate a search for relatives . . . within 30 days of the department's acceptance of the child in its care or custody," N.J.S.A. 30:4C-12.1, is not grounds for "reversal of termination" here because the evidence supports the court's finding that it would not be "in the best interests of the child[ren]." K.L.W., supra, 419 N.J. Super. at 581 (citations omitted). We therefore reject Carol's contention that any alleged delay in the Division's consideration of L.W. requires a reversal of the court's order terminating Carol's parental rights.
We next consider Carol's argument that the Division did not satisfy its burden under the third prong of the best interests standard because it failed to consider kinship legal guardianship as an alternative to termination of her parental rights. The Kinship Legal Guardian Act, N.J.S.A. 3B:12A-1 to -7, provides legal guardianship for children "who cannot reside with their parents due to the parents' incapacity or inability to perform the regular and expected functions of care and support of the child," and does not terminate parental rights. N.J.S.A. 3B:12A-1(a). However, a kinship legal guardian may only be appointed when "reunification efforts have proven unsuccessful or unnecessary," and "adoption of the child is neither feasible nor likely." N.J.S.A. 3B:12A-6(d); see also N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 509 (2004).
We reject Carol's argument because L.W. and Ms. H. were both advised regarding kinship legal guardianship, but rejected it because they wanted to adopt the children. We are convinced the record supports Judge Forrest's findings that "there [was] no alternative to termination of parental rights in this case" and adoption of each child was feasible and likely. Under those circumstances, the court correctly found that kinship legal guardianship was not appropriate. See N.J. Div. of Youth & Family Servs. v. T.I., 423 N.J. Super. 127, 130 (App. Div. 2011) ("[W]hen a caregiver in a case brought by the Division of Youth and Family Services (DYFS) unequivocally asserts a desire to adopt, the finding required for a KLG that 'adoption of the child is neither feasible nor likely' cannot be met.").
Although Ms. H. does not have a kinship relationship with the children, she was a "caregiver," who was statutorily qualified to be appointed a kinship legal guardian under N.J.S.A. 3B:12A-2.
Carol also argues that the trial court erred when it granted the Division's request to rescind its July 22, 2014 acceptance of her identified surrender to L.W. of her parental rights to Kristen. The court accepted the identified surrender on July 22, 2014, but on the second day of trial permitted the Division to withdraw its consent and proceed with its request to terminate Carol's parental rights to Kristen.
N.J.S.A. 9:3-41(d) provides that, "at the request of a parent of a child, an approved agency authorized to receive surrenders, may receive that parent's [identified] surrender of his [or her] child for purposes of having the child adopted by a person specified by the surrendering parent." The Division is an approved agency for placement of children through adoption. N.J.S.A. 9:3-38(a); see also N.J. Div. of Youth and Family Services. v. D.M.B., 375 N.J. Super. 141, 146 (App. Div.), certif. denied, 183 N.J. 586 (2005). An identified surrender means a "voluntary relinquishment of all parental rights by a birth parent . . . for purposes of allowing a child to be adopted." N.J.S.A. 9:3-38(j). However, if adoption does not occur, the surrender is "'void' and the parental rights of the surrendering parent(s) are reinstated." D.M.B., supra, 375 N.J. Super. at 145.
N.J.S.A. 30:4C-23 governs a parent's voluntary surrender of parental rights in a guardianship proceeding, and states that
the Division of Child Protection and Permanency, after due investigation and consideration, may, in cases where it would be to the permanent advantage of the child, take voluntary surrenders, releases of custody and consents to adoption from the parent . . . having the right or authority to give such surrenders, releases or consents. Such surrenders, releases or consents . . . shall be valid and binding irrespective of the age of the person giving the same, and shall be irrevocable except at the discretion of the Division of Child Protection and Permanency or upon order of a court of competent jurisdiction.
In D.M.B., we considered whether the Division may proceed with a termination of parental rights case after a parent has executed an identified surrender that was accepted by the court but rejected by the Division. D.M.B., supra, 375 N.J. Super. at 145-46. We found that the trial court appropriately allowed the Division to proceed with a termination of parental rights claim despite the identified surrender because
requiring the Division to accept the "identified surrender" and to not proceed as to the termination case would prevent the "finality" of a termination and would have possible future ramifications, by eliminating the Division's opportunity to obtain the ability to not offer reunification services to a parent in the future.
[Id. at 147.]
We also accepted the trial court's conclusion that the Legislature's use of the word "may" in N.J.S.A. 9:3-41(d) and N.J.S.A. 30:4C-23, was an express grant of discretion to the Division to accept or reject a voluntary surrender of parental rights. Ibid. Thus, "[t]he Division has the option to accept the 'identified surrender' should [it] choose to do so, but [it] also [has] the right to proceed as to the termination case." Ibid. (second, third, and fourth alterations in the original). The determination to proceed with a termination proceeding after an identified surrender has been executed "is, as a matter of law, discretionary with the trial court." Id. at 148.
Here, the Division consented to the identified surrender but later requested that the court grant a revocation of that consent. The express language of N.J.S.A. 30:4C-23 permits the Division to do precisely what it did here: exercise its "discretion" by revoking its prior consent to the entry of the identified surrender. See N.J.S.A. 30:4C-23 (An identified surrender shall be "valid and binding" and "shall be irrevocable except at the discretion" of the Division or "upon order of a court of competent jurisdiction."). This result is consistent with the legislative policy that we found in D.M.B. supported the Division's discretion to accept or reject an identified surrender in the first instance.
We are convinced the trial court did not abuse its discretion in granting the Division's request to rescind Carol's identified surrender to L.W. There was a need for finality to the action that would not have been provided by the identified surrender. In addition, given the overwhelming evidence the Division presented supporting the termination of Carol's parental rights, the court correctly found that granting the Division's request eliminated the Division's obligation to offer reunification services to Carol in the future. N.J.S.A. 30:4C-11.3(c); see also D.M.B., supra, 375 N.J. Super. at 147. We discern no basis to conclude that the court abused its discretion in granting the Division's request.
Carol last argues that the Division failed to present clear and convincing evidence supporting the court's findings on the fourth prong of the best interests standard, that terminating her parental rights would not do more harm than good. N.J.S.A. 30:4C-15.1(a)(4). We find insufficient merit in her arguments to warrant further discussion in a written opinion, Rule 2:11-3(e)(1)(E), and affirm substantially for the reasons set forth in Judge Forrest's written opinion.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION