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N.J. Div. of Child Prot. & Permanency v. L.M.C. (In re Guardianship of N.S.)

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
Dec 27, 2016
DOCKET NO. A-2686-15T2 (App. Div. Dec. 27, 2016)

Opinion

DOCKET NO. A-2686-15T2 DOCKET NO. A-2691-15T2

12-27-2016

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. L.M.C. and C.L.S., Defendants-Appellants. IN THE MATTER OF THE GUARDIANSHIP OF N.S., a Minor.

Joseph E. Krakora, Public Defender, attorney for appellant L.M.C. (Albert M. Afonso, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant C.L.S. (Charles S. Rosenberg, Designated Counsel, on the brief). Christopher S. Porrino, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Arielle E. Katz, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (David Valentin, Assistant Deputy Public Defender, on the brief).


RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Sabatino and Haas. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FG-15-26-14. Joseph E. Krakora, Public Defender, attorney for appellant L.M.C. (Albert M. Afonso, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant C.L.S. (Charles S. Rosenberg, Designated Counsel, on the brief). Christopher S. Porrino, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Arielle E. Katz, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (David Valentin, Assistant Deputy Public Defender, on the brief). PER CURIAM

Defendants L.M.C. and C.L.S. appeal from the February 17, 2016 judgment of guardianship of the Family Part terminating their parental rights to their son, Nick, born in December 2012. Defendants contend that the Division of Child Protection and Permanency ("Division") failed to prove all of the four prongs of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. The Law Guardian supports the termination on appeal as it did before the trial court.

We refer to the adult parties by initials, and to the child by a fictitious name, to protect their privacy.

Based on our review of the record and applicable law, we are satisfied the evidence in favor of the guardianship petition overwhelmingly supports the decision to terminate defendants' parental rights. Accordingly, we affirm substantially for the reasons set forth in Judge Melanie Donohue Appleby's thorough oral decision rendered on February 17, 2016.

We will not recite in detail the history of the Division's involvement with defendants. Instead, we incorporate by reference Judge Donohue Appleby's factual findings and legal conclusions. We add only the following comments.

When L.M.C. gave birth to Nick at the hospital, she admitted that she had taken heroin throughout her pregnancy. The baby was "determined to be withdrawing from opiates and cocaine" and, as a result, hospital staff transferred Nick to a different hospital for detoxification. The baby's father, C.L.S., was incarcerated at the time Nick was born.

The Division took custody of the child and Nick remained in the hospital for approximately six weeks. Upon his release in January 2013, the Division placed Nick with a resource family. The Division asked defendants to provide the names of any relatives who might be able to care for their son. C.L.S. was not able to identify any relatives for possible placement at that time. However, at L.M.C.'s suggestion, the Division investigated whether a maternal grandmother or a maternal aunt she named were willing to take on this responsibility. However, neither wanted to do so.

The Division also contacted a second maternal aunt, R.S, who stated she was interested. The Division investigated R.S. and approved her as a placement for Nick. However, R.S. then told the Division that she was no longer willing to take the child into her care.

While the Division was conducting its investigation, Nick's resource parents made arrangements to care for three additional children, and the Division moved Nick to a new resource home in March 2013. Nick has lived with his foster parents in that home since that time and the foster parents are committed to adopting him.

Over the course of the next year, the Division attempted to provide substance abuse treatment, psychological evaluations, housing assistance, daycare referrals, parenting classes, medical referrals, and other services to defendants. Both parents were in and out of jail during this period, primarily for drug-related offenses. When defendants were released to the community, they failed to communicate with the Division and often provided false contact information to the caseworkers. Neither parent consistently visited Nick as he continued to develop a strong bond with his foster parents.

In the spring of 2014, C.L.S.'s brother, S.F., and S.F.'s wife, C.F., asked to be considered as possible caregivers for Nick. The Division conducted background checks on both relatives. According to the caseworker who testified at the hearing, the Division ruled out this family "based on the fact that it would do [Nick] more harm than good to remove him from a home that he had been in basically since his birth." On cross-examination, the caseworker testified that the Division had also learned during its investigation that S.F. had "an extensive criminal history that negatively impacted . . . on [the family] becoming caretakers." However, the "rule-out letter" the Division's Local Office manager sent S.F. and C.F. on July 11, 2014 only referred to the Division's conclusion that because Nick had bonded to his foster parents, "it would do him more harm than good to remove him from their care."

C.L.S. called C.F. as a witness at trial. C.F. testified that during the Division's investigation, S.F.'s past criminal record was discovered. C.F. explained that this record was from the 1990s and that S.F. had turned his life around and was now a pastor. C.F. also stated that the Division questioned her about an incident where she hit her daughter's hand with a belt. In spite of these facts, C.F. testified that the Division approved her home, but ultimately declined to place Nick there because the results of the bonding evaluation indicated he would be harmed if he were removed from his foster parents.

Dr. David Brandwein, Psy.D. testified at trial as the Division's expert in clinical and forensic psychology. After evaluating L.M.C., Dr. Brandwein concluded that she had severe substance abuse problems and needed to be placed in a long-term treatment program. L.M.C. admitted that, over the past ten years, the longest she had ever been able to maintain her sobriety was four months. Dr. Brandwein further opined that L.M.C. suffered from a personality disorder, with anti-social, dependent, and narcissistic features. Because L.M.C. was unable to meet her own needs, Dr. Brandwein concluded she could not safely care for Nick.

Dr. Brandwein also evaluated C.L.S. and found that, like L.M.C., he was drug dependent and had a personality disorder with anti-social and narcissistic features. At the time of the evaluation, C.L.S. was again incarcerated. C.L.S. told Dr. Brandwein that when he was eventually released in December 2014, it would take eight to twelve months before he would be able to care for Nick.

Dr. Brandwein conducted separate bonding evaluations between Nick and L.M.C., C.L.S., and Nick's foster parents. Dr. Brandwein opined that Nick was not "bonded in any way, shape, or fashion" to L.M.C., and would suffer no harm if her parental rights were terminated. Similarly, C.L.S. conceded during his bonding evaluation that Nick "doesn't know me." Dr. Brandwein found that C.L.S. did not have a bond with Nick, and testified that there would be "no harm whatsoever" if C.L.S.'s parental rights were terminated because C.L.S. and the child were "complete strangers."

On the other hand, Dr. Brandwein stated that Nick was strongly bonded to his foster parents, who had "provided [the child] with stable and consistent care for the vast majority of his life." Dr. Brandwein opined that Nick would be harmed if his ties with the foster parents were severed.

Defendants did not testify and did not present any expert witnesses of their own at trial.

In her comprehensive opinion, Judge Donohue Appleby reviewed the evidence presented, and thereafter concluded that (1) the Division had proven all four prongs of the best interests test by clear and convincing evidence, N.J.S.A. 30:4C-15.1(a); and (2) termination of defendants' parental rights was in Nick's best interests. On this appeal, our review of the trial judge's decision is limited. We defer to her expertise as a Family Part judge, Cesare v. Cesare, 154 N.J. 394, 413 (1998), and we are bound by her factual findings so long as they are supported by sufficient credible evidence. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (citing In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)).

After reviewing the record, we conclude that Judge Donohue Appleby's factual findings are fully supported by the record and, in light of those facts, her legal conclusions are unassailable. We therefore affirm substantially for the reasons that Judge Donohue Appleby expressed in her comprehensive and well-reasoned opinion. We add the following comments concerning defendants' arguments that Nick should have been placed with S.F. and C.F.

When the Division accepts a child into its care or custody, it must "initiate a search for relatives who may be willing and able to provide the care and support required by the child." N.J.S.A. 30:4C-12.1(a). We have long recognized "the Division's policy to place children with relatives whenever possible." N.J. Div. of Youth & Family Servs. v. M.F., 357 N.J. Super. 515, 527 (App. Div. 2003). Yet, "there is no presumption in favor of placement with relatives." N.J. Div. of Youth & Family Servs. v. K.L.W., 419 N.J. Super. 568, 580 (App. Div. 2011). Nonetheless, the Division may not seek termination of parental rights and adoption by foster parents without first exploring available relative placements. Ibid.

The Division's statutory obligation requires prompt identification of relatives and notice to them of the results of any investigation. Ibid. This "obligation does not permit willful blindness and inexplicable delay" in the approval or disapproval of a relative known to the Division. Id. at 582. New Jersey, however, has a strong public policy in favor of permanency. In re Guardianship of K.H.O., 161 N.J. 337, 357 (1999). A delay in permanency based on the Division's failure to comply with statutory obligations is warranted only when it is in the child's best interests. K.L.W., supra, 419 N.J. Super. at 581-83.

Thus, the trial court ultimately must determine whether placement with the relative serves the child's best interests. Id. at 581; M.F., supra, 357 N.J. Super. at 528. "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." N.J. Div. of Youth & Family Servs. v. J.S., 433 N.J. Super. 69, 85 (App. Div. 2013), certif. denied, 217 N.J. 587 (2014).

However, we have viewed the Division's obligations under N.J.S.A. 30:4C-12.1 as an additional aspect of the four-prong "best interests" test in N.J.S.A. 30:4C-15.1(a). Ibid. Indeed, the Division's evaluation of a relative placement will factor into a trial court's consideration of alternatives to termination of parental rights. Id. at 85, 87.

"[A]ssessment of relatives is part of the Division's obligation to consult and cooperate with the parent in developing a plan for appropriate services that reinforce the family structure." K.L.W., supra, 419 N.J. Super. at 583 (citing N.J.S.A. 30:4C-15.1(c)(1)). If the Division "fails to comply with its obligation [under N.J.S.A. 30:4C-12.1], the judicial determinations that follow are made without information relevant to the best interests of the child." Id. at 581. However, even when the Division fails to comply with that obligation, "[d]elay of permanency or reversal of termination . . . is warranted only when it is in the best interests of the child." Ibid.

Applying these principles, we are unpersuaded that the Division failed to fulfill its obligations under N.J.S.A. 30:4C-12.1 or that a remand is required. As discussed above, when L.M.C. suggested that the Division investigate a maternal grandmother and aunt, the Division promptly did so but neither relative was able to care for Nick. The Division later approved the placement of Nick with another aunt, who then stated she was no longer interested. In March 2013, the Division placed Nick with his current foster parents.

S.F. and C.F. did not contact the Division until Nick had been living with his foster parents for at least a year. The Division investigated the couple to determine whether placement with them was appropriate. However, by that late date, the bonding evaluation between Nick and the foster parents, who had been caring for the child since he was approximately three months old, demonstrated that uprooting Nick and placing him with S.F. and C.F. "would do [Nick] more harm than good." The Division's determination, set forth in the July 11, 2014 rule-out letter, was clearly supported by the unrebutted expert testimony of Dr. Brandwein. Under these circumstances, we discern no basis for disturbing Judge Donohue Appleby's determination that Nick's best interests would be served by continuing placement with the foster parents with whom he had bonded, and terminating defendants' parental rights.

C.L.S. contends that the July 11, 2014 rule-out letter did not meet all of the requirements of N.J.S.A. 30:4C:12-1 and, therefore, the matter should be remanded to enable the trial judge to reconsider her decision. We disagree.

N.J.S.A. 30:4C-12.1(a) provides that the Division "shall initiate a search [of] who may be willing and able to provide the care and support required by the child" in any case where it accepts a child into its care or custody. In turn, N.J.S.A. 30:4C-12.1(b) states that if the Division determines that the relative is unable to care for the child, it

shall inform the relative in writing of: (1) the reasons for the [Division's] determination; (2) the responsibility of the relative to inform the [Division] 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 [the Division's] review . . . of such determination.

In pertinent part, the Division's July 11, 2014 rule-out letter to S.F. and C.F. stated:

Thank you for your interest and cooperation. Regarding the Division's assessment, please be advised that the [Division's] Local Office will not be placing [Nick] in your home.

Based on the circumstances of the child(ren), the Division has determined that it would be in the best interest of the child(ren) to remain in the current placement or another placement because: [Nick] was placed with his current caregivers since his release from the hospital after his birth. [Nick] has never been moved and is bonded with his caregivers. The Division conducted a bonding evaluation with [Nick] and his caregivers which states that it would do him more harm than good to remove him from their care.

C.L.S. contends that this letter is deficient for several reasons. First, he argues the letter did not list all of the Division's reasons for ruling out S.F. and C.F. as a possible placement for Nick. The letter clearly states that the Division decided not to place Nick with C.L.S.'s relatives because he was already bonded with his foster parents. However, C.L.S. asserts the letter should have also referred to the Division's discovery of S.F.'s prior criminal record and C.F.'s use of a belt to discipline her daughter as additional reasons for not placing the children with them because the caseworker and C.F. referred to these incidents during their testimony.

C.L.S. contends that because these events were not listed in the letter, the Division "deprived S.F. and C.F. notice of the 'reasons for the [Division's] determination' and adequate opportunity to respond to the allegation." However, the record does not support C.L.S.'s contention. Although the caseworker and C.F. mentioned the two incidents at trial, and the caseworker stated the Division considered S.F.'s criminal record, the Division's rule-out letter was issued by the caseworker's supervisor, and was solely based on the fact that the child was already bonded with his foster parents. Indeed, as noted above, C.F. stated that the Division approved her home, but declined to place Nick with her and her husband because of the child's already firmly established relationship with his foster parents. In any event, C.F. testified about the two incidents at trial, thereby refuting C.L.S.'s current claim that C.F. and S.F. had no notice of the results of the Division's investigation.

C.L.S. next asserts that the Division's letter incorrectly stated that Nick was placed with his foster parents as soon as he was released from the hospital. As C.L.S. correctly points out, Nick was initially placed with a resource family for no more than one or two months before joining his foster parents in March 2013. Nick lived in that home for the next thirty-five months leading up to the trial judge's final decision on February 17, 2016. Under these circumstances, the Division's one- or two-month mistake in detailing the chronology of this case is of no moment.

C.L.S. also complains that the rule-out letter was taken from a "form" because it refers in two places to "the child(ren)" when there was only one child involved in this case. C.L.S. argues that the author of the letter was therefore not familiar with the facts of this case. This argument lacks merit. While it is unfortunate that the Division neglected to correct these two form references prior to issuing the letter, the letter's four specific references to Nick clearly demonstrate that the supervisor was well aware of the circumstances that caused the Division to continue the child's placement with the foster parents.

C.L.S. next argues that the rule-out letter was deficient because it did not inform S.F. and C.F. that they were required to advise the Division "if there [was] a change in the circumstances upon which the determination was made" pursuant to N.J.S.A. 30:4C-12.1(b)(2). He also asserts the letter failed to tell S.F. and C.F. that defendants' parental rights could be terminated if Nick remained with his foster parents for more than six months as required by N.J.S.A. 30:4C-12.1(b)(3).

However, the Division continued Nick's placement with his foster parents because he was bonded to them. S.F. and C.F. would have no way of knowing whether there was a change in those circumstances. Similarly, Nick had already been living with the foster parents for much longer than six months by the time S.F. and C.F. contacted the Division. Although the better practice would have been for the Division to include both of these points of information in the rule-out letter, its failure to do so was harmless under the circumstances of this case.

Finally, C.L.S. asserts that a remand is required because the Division never advised S.F. and C.F. that they could appeal the Division's decision to continue Nick's placement with the foster parents. However, N.J.A.C. 10:120A-3.1(b) clearly states that

[a] relative does not have a right to appeal, as a status issue, a Division action that it is not in a child's best interest to be placed with a relative. A relative can appeal a Division action that the relative is either unwilling or unable to care for a child.
Thus, as we noted in J.S., supra, "a relative has no right to pursue an administrative appeal of a rule-out decision in instances when [as here] that decision is predicated upon a best-interests assessment, rather than a finding that the relative is unfit or unwilling." J.S., supra, 433 N.J. Super. at 86. Because S.F. and C.F. had no right to file an administrative appeal from the Division's determination that it would be in Nick's best interests to remain with his foster family, the Division was not required to include notification of a right to appeal in the rule-out letter.

We note that the trial judge observed that defendants did not seek review of the rule-out letter without specifically finding that, under N.J.A.C. 10:120A-3.1(b), defendants had no right to file an administrative appeal. However, this omission also does not require a remand. As the judge found by clear and convincing evidence, Nick's placement with his foster parents, rather than with C.L.S.'s relatives, served the child's best interests. --------

Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.

CLERK OF THE APPELLATE DIVISION


Summaries of

N.J. Div. of Child Prot. & Permanency v. L.M.C. (In re Guardianship of N.S.)

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
Dec 27, 2016
DOCKET NO. A-2686-15T2 (App. Div. Dec. 27, 2016)
Case details for

N.J. Div. of Child Prot. & Permanency v. L.M.C. (In re Guardianship of N.S.)

Case Details

Full title:NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY…

Court:SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Date published: Dec 27, 2016

Citations

DOCKET NO. A-2686-15T2 (App. Div. Dec. 27, 2016)