Opinion
DOCKET NO. A-1749-13T4 DOCKET NO. A-1750-13T4 DOCKET NO. A-1871-13T4
03-13-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. K.I. and R.I., Defendants-Appellants. IN THE MATTER OF THE GUARDIANSHIP OF G.I., K.B.I, and A.B., Minors-Respondents. NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. R.I. and K.I., Defendants-Respondents. IN THE MATTER OF THE GUARDIANSHIP OF G.I. and K.B.I., Minors-Appellants, and A.B., Minor-Respondent.
Joseph E. Krakora, Public Defender, attorney for appellant (A-1749-13)/respondent (A-1871-13) K.I. (Anthony J. Vecchio, Designated Counsel, on the briefs). Joseph E. Krakora, Public Defender, attorney for appellant (A-1750-13)/respondent (A-1871-13) R.I. (Robert W. Ratish, Designated Counsel, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent Division of Child Protection and Permanency (Andrea M. Silkowitz, Assistant Attorney General, of counsel and on the brief; Julie B. Christensen, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for respondents (A-1749-13 and A-1750-13) / appellants (A-1871-13) minors G.I. and K.B.I. (Nancy P. Fratz, Assistant Deputy Public Defender, on the briefs). Joseph E. Krakora, Public Defender, Law Guardian, attorney for respondent-minor A.B. (Christopher A. Huling, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz, Espinosa and Rothstadt. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FG-15-23-13. Joseph E. Krakora, Public Defender, attorney for appellant (A-1749-13)/respondent (A-1871-13) K.I. (Anthony J. Vecchio, Designated Counsel, on the briefs). Joseph E. Krakora, Public Defender, attorney for appellant (A-1750-13)/respondent (A-1871-13) R.I. (Robert W. Ratish, Designated Counsel, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent Division of Child Protection and Permanency (Andrea M. Silkowitz, Assistant Attorney General, of counsel and on the brief; Julie B. Christensen, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for respondents (A-1749-13 and A-1750-13) / appellants (A-1871-13) minors G.I. and K.B.I. (Nancy P. Fratz, Assistant Deputy Public Defender, on the briefs). Joseph E. Krakora, Public Defender, Law Guardian, attorney for respondent-minor A.B. (Christopher A. Huling, Designated Counsel, on the brief). PER CURIAM
We consider the consolidated appeals filed by K.I. (Kenny) and R.I. (Roberta), who appeal from a November 22, 2013 judgment of guardianship and an order terminating their parental rights and placing their two minor children K.B.I. (Katie) and G.I. (Gloria) along with Roberta's son A.B. (Alan) in the custody of the Division of Child Protection and Permanency (the Division) to secure their adoption. The Law Guardian for Gloria and Katie also appealed from the guardianship judgment, which was filed back-to-back with the parents' consolidated appeals and is consolidated for purposes of this opinion. Kenny and Roberta each challenge the factual findings made by the trial judge, arguing the evidence was insufficient to support termination of parental rights. In doing so, they highlight specific erroneous factual statements contained in the judge's opinion, which they maintain are sufficient to vacate the judgment. Kenny, Roberta, and the Law Guardian further argue the trial judge erred in failing to allow a kinship legal guardianship (KLG) with a relative as a reasonable alternative to termination of parental rights. We consider all issues raised by the parties in a single opinion. We affirm.
In our opinion, we utilize pseudonyms to protect the privacy interests of the parents and children. Additionally, we note the matter was initiated prior to the passage of the June 29, 2012 legislation that 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)).
The facts are taken from the trial record. Kenny and Roberta suffer from longstanding substance abuse. Roberta had been involved with the Division as a youth, and later as an adult for abusing morphine, cocaine, and heroin. The Division again intervened when Alan was removed from her care and an order of KLG with a relative was entered. The KLG was subsequently vacated and Alan returned to Roberta's care and custody in 2007. Katie was born to Kenny and Roberta that year.
Soon after Katie's birth, Roberta was arrested for criminal offenses committed to enable her drug use. Kenny was also arrested on charges of conspiracy. The Division again became involved and provided substance abuse evaluations, which revealed Roberta needed partial residential care and Kenny needed outpatient treatment. Kenny's mother supervised all parental visits and the Division's involvement ended when Kenny and Roberta completed their rehabilitation and remained abstinent.
Additional referrals were received and the issues were addressed without removal of the children. When Gloria was born in 2011, the Division was again contacted this time by the hospital, because Kenny and Roberta "appeared to be irrational" and displayed "odd behavior[s]." The Division's investigation noted Roberta had received pre-natal care and asserted she remained drug-free since 2008. No problems were identified regarding Alan's, Katie's, or Gloria's health or care, and the home was determined to be safe. The Division learned the couple lived in Kenny's mother's home and she assisted with the children's care. The alleged concerns were determined to be unfounded and the file was closed.
Two weeks later, a referent alleged Kenny and Roberta were smoking crack cocaine and abusing prescription medication. A Division caseworker interviewed Roberta, noting her speech was slurred and her eyes were only partially opened. Drug evaluations were ordered. Later, Roberta was in a car accident and charged with driving under the influence. She had been on drug court probation and, when arrested, admitted she was using benzodiazepines and cocaine. Roberta was referred to intensive outpatient substance abuse rehabilitation.
Kenny, who remained in his mother's home and served as the primary caretaker for Alan, Katie, and Gloria, denied knowledge of Roberta's relapse. He agreed to submit to a drug evaluation, which confirmed he was in "sustained remission." However, the following month, his mother informed the Division she believed Kenny was using drugs. He confirmed he took suboxone, which was prescribed to treat opiate addiction.
Roberta was again arrested and a drug test proved positive for cocaine. She entered inpatient treatment and, upon discharge, was to continue with outpatient care. She relapsed and again resorted to cocaine use. The Division's safety plan, accepted by Kenny, required Roberta to be supervised whenever she was with the children.
In November 2011, Kenny's mother called the Division after a physical altercation in the home, which occurred in the children's presence. When the Division worker arrived, Kenny was unconscious on the living room floor and Roberta was not in sight. Kenny was hospitalized because of a suspected drug overdose. A toxicology test confirmed he ingested benzodiazepines and cocaine. He ultimately admitted he relapsed after he found cocaine in Roberta's purse.
At the time, Alan told the Division worker Roberta left the home. However, Katie stated Roberta was hiding. The worker found Roberta under clothing in the children's dresser and suspected she was high. Roberta excused herself to go outside to smoke a cigarette. She never returned and remained missing from November 2011 to February 2012.
The Division executed an emergency removal of the three children, placing them in the physical care of Kenny's mother. A Title Nine complaint was filed and neither Roberta nor Kenny appeared at the hearing. Rehabilitation and counseling services were ordered; Roberta was not permitted to have contact with Kenny's mother until the court ordered otherwise; and Kenny was enjoined from living in his mother's home, although he was granted visits supervised by the Division, and ordered to participate in therapeutic visitations.
Kenny was discharged from the hospital and obtained an apartment. During a home visit, Kenny denied knowing Roberta's whereabouts, despite being confronted by the caseworker with a purse, male and female deodorants, and two toothbrushes in the residence. The caseworker counted Kenny's suboxone, and determined pills were missing. Kenny offered various explanations for the missing pills; it was suspected he was sharing them with Roberta. A subsequent medication check also revealed excessive pills missing after Kenny had just filled his prescription. He offered excuses, including a suggestion he gave some to a friend who needed them. The record is not clear on whether the pills were shared with another or Kenny was exceeding the prescribed dosage. Kenny was referred to intensive outpatient substance abuse treatment, but was released for nonattendance.
The litigation continued. The Division was ordered to extend services to Kenny and the children. Roberta remained missing and the judge ordered the Division undertake a search to locate her. Finally, the court ordered the Division evaluate relatives as possible caregivers.
Kenny attended a visit with the children, while under the influence. When asked about scratches visible on his face, he admitted he had had an altercation with Roberta. Kenny asserted he would never call the police on her and chose not to inform the Division because he did not want to upset the children.
Kenny was also suspected to be under the influence during subsequent visitation and a court appearance. He missed several therapeutic visits and several Division supervised visits went well. In the spring of 2012, Kenny's drug screens were negative for illicit substances. However, in July, his compliance with services became inconsistent. From July through December 2012, the Division documented Kenny's failure to attend a court hearing and substance abuse counseling, and noted evidence of likely drug use during supervised visits. During Super Storm Sandy, Kenny lost his residence and was granted permission to temporarily reside with his mother and the children. However, by December 2012, the trial judge barred Kenny from his mother's home for failure to comply with drug treatment.
This time period was coincident with Roberta's arrest and incarceration for forgery charges, from February until July 2012. Roberta was released from jail in July 2012. She moved into Kenny's residence and was placed on intensive supervision. At that time, Kenny began missing visitations, ignored therapeutic visitation appointments, and ultimately stopped attending drug rehabilitation and counseling. Roberta also missed supervised and therapeutic visitations, a substance abuse evaluation, and a court hearing. She was again arrested in October 2012. Her sentence imposed a term of imprisonment that would not allow release for two years.
Alan was moved to his maternal grandmother's care; Katie and Gloria remained with Kenny's mother. A permanency hearing was held to consider the permanent placement of the children. The judge determined reunification with the parents was not an option because Roberta and Kenny continued their substance abuse. The Division filed for guardianship on December 10, 2012, advancing a proposed adoption of the children by their grandmothers.
In January 2013, during an unannounced home visit, a Division caseworker saw Kenny exiting the back door of his mother's home. The Division learned Kenny had been staying in the home, in violation of the court order; Katie and Gloria were then removed from Kenny's mother's care and placed in a resource home. Thereafter, from late February through July 2013, Kenny fully participated in visitations, obtained a job, and enrolled in and completed outpatient substance abuse treatment.
Prior to trial, the Division obtained psychological and bonding evaluations between Kenny and his daughters; Roberta and the children; Alan and his grandmother; Katie and Gloria and their resource parents; and the three children with each other.
Trial commenced on September 9, 2013, and continued for eight, non-consecutive days. The Division presented testimony from its caseworkers, two experts, and a caseworker from the Mississippi Department of Human Services, who reported on the agency's evaluation of the suitability of Kenny's father's home as a possible placement for the children. The Law Guardian presented expert testimony regarding the best interests of Katie and Gloria. Kenny testified, and presented testimony from his father and from his expert on the children's best interests. Roberta, who was still incarcerated but was represented by counsel, did not present any testimony.
The trial judge issued a written opinion evaluating the evidence and concluding the Division had carried its burden of presenting clear and convincing evidence the best interests of the children were served by termination of Roberta's and Kenny's parental rights, freeing each child for adoption. The appeals by Roberta, Kenny, and the Law Guardian on behalf of Katie and Gloria followed.
We fully recognize parents have a constitutionally protected right to enjoy a relationship with and to raise their children. N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 553 (2014) (citing In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999)); see also Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394-95, 71 L. Ed. 2d 599, 606 (1982) (stating parents have a fundamental liberty interest in raising their children). Both the federal and the New Jersey constitutions protect the inviolability of the family unit. Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212-13, 31 L. Ed. 2d 551, 558-59 (1972); N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986).
"[T]he right of parents to be free from governmental intrusion is not absolute." A.W., supra, 103 N.J. at 599. As evidenced by child abuse and neglect cases, some parents may act against the interests of their children. When a child's "biological parents resist the termination of their parental rights, the court's function" is to decide whether the parents can raise the child without causing the child further harm. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). "[T]he cornerstone of the inquiry is not whether the biological parents are fit but whether they can cease causing their child harm." Ibid. "The analysis of harm entails strict standards to protect the statutory and constitutional rights of the natural parents," and "[t]he burden falls on the State to demonstrate by clear and convincing evidence that the natural parent[s] ha[ve] not cured the initial cause of harm and [they] will continue to cause serious and lasting harm to the child." Ibid.
The Legislature has recognized "the health and safety of the child shall be the State's paramount concern when making a decision on whether or not it is in the child's best interest to preserve the family unit . . . ." N.J.S.A. 30:4C-1(a). While recognizing the fundamental nature of parental rights, and the need to preserve and strengthen family life, more recently, "'[t]he child's right to a permanent home has gained increasing prominence.'" N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 505 (2004) (quoting In re Adoption of Children by G.P.B., Jr., 161 N.J. 396, 404 (1999)).
"The balance between parental rights and the State's interest in the welfare of children is achieved through the best interests of the child standard." K.H.O., supra, 161 N.J. at 347. The best interests standard, initially formulated by the Court in A.W., supra, 103 N.J. at 604-11, is now codified in N.J.S.A. 30:4C-15.1(a), and requires the State establish each of the following standards by clear and convincing evidence before parental rights may be severed:
(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;The four criteria are not discreet or separate, but overlap to provide a comprehensive standard to identify a child's best interests. R.G., supra, 217 N.J. at 554; see also K.H.O., supra, 161 N.J. at 348 (stating the statute's four parts "relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests"). Considerations to be examined are fact sensitive and require particularized evidence addressing the specific circumstances present in each case. K.H.O., supra, 161 N.J. at 348. Importantly, the Division bears the burden of establishing each prong by clear and convincing evidence. P.P., supra, 180 N.J. at 506.
(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 [D]ivision has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and
(4) Termination of parental rights will not do more harm than good.
[N.J .S.A. 30:4C-15.1(a).]
The scope of this court's review of a determination terminating a parent's rights is limited. The factual findings which undergird such a judgment "should not be disturbed unless 'they are so wholly insupportable as to result in a denial of justice,' and should be upheld whenever they are 'supported by adequate, substantial and credible evidence.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974); Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 475 (1988)). The judgment of a trial judge "'should not be overthrown except upon the basis of a carefully reasoned and factually supported (and articulated) determination, after canvassing the record and weighing the evidence, that the continued viability of the judgment would constitute a manifest denial of justice.'" In re Adoption of a Child by P.F.R., 308 N.J. Super. 250, 255 (App. Div. 1998) (quoting Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977)).
Guided by these legal standards, we turn to Roberta's, Kenny's, and the Law Guardian's challenges. As required, we address each party's claims individually.
Roberta does not dispute her drug addiction interfered with her care of Alan, Katie, and Gloria. However, she urges reversal of the order terminating her parental rights because the evidence was insufficient to show the children's continued relationship with her would endanger their safety, health, welfare, or development, or that she was unwilling or unable to eliminate any identified harm. Further, Roberta maintains the Division failed to extend reasonable efforts to aid her resolution of her psychological conditions, which contributed to her addiction, and did not fully evaluate available alternatives to guardianship. We reject each of these arguments.
Specific to the first two prongs of the statutory test, Roberta asserts she never physically or emotionally harmed the children. She argues she never minimized her conduct, but rather spoke openly and honestly to the Division's expert, David Brandwein, Pys.D., who performed her bonding evaluations with the children. Roberta notes she took responsibility for her behavior and engaged in treatment. She believes this insight and willingness to resolve her drug dependence reflect a likelihood she would achieve reunification.
Following our review, we determine the record easily dispels Roberta's assertions. We conclude the Division's evidence clearly and convincingly proved Roberta's conduct harmed the children and she was unwilling or unable to eliminate this harm, making her unable to provide a safe and stable home.
The first two prongs of the best interests test address the harm caused to the children and a parent's failure to mitigate that harm. The focus of the first prong examines the impact of harm caused by the parent-child relationship on the child's health over time. P.P., supra, 180 N.J. at 506. The harm facing the child "need not be physical" as "[s]erious and lasting emotional or psychological harm to [the] child[] as the result of the action or inaction of [his or her] biological parents can constitute injury sufficient to authorize the termination of parental rights." In re Guardianship of K.L.F., 129 N.J. 32, 44 (1992). In fact, the failure of a parent to provide a "permanent, safe, and stable home" engenders significant harm to a child. In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999). Similarly, a "parent's withdrawal of . . . solicitude, nurture, and care for an extended period of time is in itself a harm that endangers the health and development of the child." Id. at 379 (citing K.H.O., supra, 161 N.J. at 352-54). This constitutes a "failure to provide even minimal parenting . . . ." Ibid.
Moreover, New Jersey has a "strong public policy in favor of permanency." K.H.O., supra, 161 N.J. at 357. See also J.C., supra, 129 N.J. at 26 (noting children have "an essential and overriding interest in stability and permanency"). This requires the "best interests" test be "viewed in light of amendments to N.J.S.A. 30:4C-15, which brought New Jersey in conformity with the Federal Adoption and Safe Families Act of 1997 (ASFA), 42 U.S.C.A. §§ 301, 671[(a)](16), 675(5)(A)(ii)." N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div.), certif. denied, 180 N.J. 456 (2004). These amendments clarify "[t]he emphasis has shifted from protracted efforts for reunification with a birth parent to an expeditious, permanent placement to promote the child's well-being." Ibid. (citing N.J.S.A. 30:4C-11.1). To this end, "the attention and concern of a caring family is 'the most precious of all resources,'" particularly to a young helpless child who needs extensive care and nurturing. D.M.H., supra, 161 N.J. at 379 (quoting A.W., supra, 103 N.J. at 613).
The Division's efforts to resolve Roberta's substance abuse were documented from 2004 until her arrest in 2012. Sadly, her circumstances at the time of trial varied little from those causing the children's removal from her care. Roberta's unabated addiction led to chronic criminal activities, arrests, and incarcerations. In fact, she was incarcerated at the time of trial. She was completely absent from her children's lives while jailed and when evading authorities. Opportunities for treatment offered by the Division and by Drug Court probation were squandered in favor of her resumption of drug use. Roberta's drug addiction caused instability in housing and employment. Significantly, she told Dr. Brandwein she was "not ready to be her children's mom."
No evidence supports the possibility Roberta will resolve her addiction, remain abstinent, and be able to provide a stable, protective home for the children. See N.J. Div. of Youth & Family Servs. v. B.G.S., 291 N.J. Super. 582, 592 (App. Div. 1996). The trial judge's findings of Roberta's unfitness and inability to offer the children a safe and stable home are amply supported by the uncontroverted evidence. These facts clearly and convincingly show Roberta's choices and conduct caused harm to the children, which remained unabated, fully satisfying the requirements of the first two statutory prongs.
Regarding the third prong, Roberta argues the Division failed to provide services tailored to her needs. She maintains the Division never addressed her childhood trauma and resultant mental health issues, but only offered drug rehabilitation. The third prong contemplates efforts focused "on reunification of the parent with the child" and provision of individualized "assistance to the parent to correct and overcome those circumstances that necessitated placement of the child into foster care." K.H.O., supra, 161 N.J. at 354.
Following our review of the record, we reject this challenge and determine the Division offered a myriad of services to end her drug abuse and effectuate reunification; however, Roberta repeatedly demonstrated her failure to commit to rehabilitation.
Achieving Roberta's abstinence from drug use was the primary goal of services because Roberta's addiction was the main obstacle thwarting reunification. If that hurdle were cleared, other services could have been offered to aid any parenting deficits. Unfortunately, although Roberta commenced rehabilitation services, she never completed them, repeatedly relapsing and succumbing to addiction. As a direct result of her drug use, Roberta committed criminal conduct, was arrested, and was incarcerated. In an effort to evade authorities, she would disappear and cease contact and communication with the Division and, more importantly, her children.
The Division also offered visitation and transportation to visits, but Roberta only intermittently attended visits. A psychological evaluation was scheduled for October 30, 2012, with the prospect of initiating recommended services, but Roberta failed to attend the appointment. Finally, a bonding evaluation was provided. These facts support the trial judge's finding the Division extended reasonable efforts to effectuate reunification.
The third prong additionally requires the court to consider alternatives to termination of parental rights. N.J.S.A. 30:4C-15.1(a). This could include the children's placement with a relative caretaker, N.J.S.A. 30:4C-12.1(a), or establishment of a kinship legal guardianship, N.J. Div. of Youth & Family Servs. v. L.L., 201 N.J. 210, 222 (2010); N.J.S.A. 3B:12A-6. The specific nature of what efforts are reasonable "depend on the facts and circumstances of each case." R.G., supra, 217 N.J. at 557 (citation and internal quotation marks omitted).
Roberta, Kenny, and the Law Guardian each argue the Division failed to meet its burden and the judgment of guardianship must be vacated in light of an available relative KLG placement. These additional facts relate to this claim.
Kenny's father, L.I. (Lester), offered to be a resource and "a coach" for Kenny in November 2011. On January 4, 2013, two days after Katie's and Gloria's removal from their grandmother's home, the Division filed a request to evaluate Lester as a possible caregiver for the girls. Lester, who lived in Mississippi with his wife, had "very limited" involvement with Katie and Gloria; in actuality, at that time, he had never met them.
The Division interviewed Lester, who expressed his preference to remain in Mississippi. The Division contacted the Mississippi Department of Human Services (MDHS) to perform a home evaluation. The Division also arranged for Lester to attend Kenny's supervised visit with Katie and Gloria. During the visit, the children were "elated" to see their father, but reluctant to interact with Lester, whom they did not know.
MDHS rejected Lester and his wife as caregivers, finding their age and medical conditions made them ill-suited to care for young children. Further, Lester's wife expressed her inability and lack of desire to care for the children. The denial was confirmed in a May 2013 letter, informing Lester MDHS found he was "not willing or not able" to provide care for the children, and he had the right to challenge the decision. Lester requested a review of the rejection. A hearing was held and he stated he would work things out with his wife and re- contact MDHS. However, Lester neither appealed the denial nor contacted MDHS again.
Lester testified he filed for divorce when he learned of his wife's refusal to care for the children, although he explained his wife and he remained in the same home pending its sale. Lester maintained he called the Division seeking a reevaluation in light of the pending divorce, but never contacted MDHS. Finally, although he had divorced his wife and was selling his home, Lester would not consider relocating to New Jersey.
Assessing these facts, the trial judge did not find the Division ignored its evaluative function. The judge noted Lester, by divorcing his wife, took extraordinary steps to receive the children into his care, and perhaps the Division could have done more to determine whether he alone could serve as their caregiver. Nevertheless, the judge found Katie's and Gloria's best interests, including the paramount need for a permanent stable home, were served by remaining in New Jersey with their resource family.
In response to this appeal, the Division asserted Lester's rejection by MDHS precluded his further consideration as a placement resource, pursuant to the Interstate Compact on the Placement of Children (ICPC), N.J.S.A. 9:23-5. Roberta, Kenny, and the Law Guardian argue the ICPC is inapplicable to relative placements, citing New Jersey Division of Youth and Family Services v. K.F., 353 N.J. Super. 623, 625-26 (App. Div. 2002).
In K.F., this court considered placement with a set of grandparents who had an on-going relationship with the children, were regularly providing for their care, fully participated in the Division's litigation, and separately filed a complaint for custody. Id. at 627-28. The grandparents had originally lived in New Jersey and during the proceedings moved to Pennsylvania. Id. at 629. We noted "[t]he goal of the ICPC is to facilitate placements that serve the best interests of the children, whether interstate or intrastate." Id. at 631 (citation and internal quotation marks omitted). "To that end, the ICPC was developed to maximize the opportunities for the placement and monitoring of dependent children by removing the limitations imposed by state boundaries, increasing the flow of information between cooperating states and providing guidelines for resolving jurisdictional conflicts." Ibid. Reviewing the facts, this court concluded the state approval process set forth in the ICPC did not apply when assessing the grandparents' request for custody, after the Division's involvement had ended. Id. at 635.
We reject the application of K.F.'s holding to the instant matter. Here, the Division had custody and sought the children's placement. See N.J.S.A. 9:23-5, art. III, subd. (a) ("No sending agency shall send . . . into any other party state any child for placement . . . unless the sending agency shall comply with each and every requirement set forth in this article . . . ."). Placement was not a transfer between family members as had occurred in K.F., a situation excluded under the ICPC. See N.J.S.A. 9:23-5, art. VIII, subd. (a) (stating the ICPC excludes the "sending or bringing of a child into a receiving state by his parent, step-parent, grandparent, adult brother or sister, adult uncle or aunt, or his guardian and leaving the child with any such relative or nonagency guardian in the receiving state"). It is simply incorrect to characterize a move by Katie and Gloria to Mississippi as an intra-relative placement. Rather, placement of a New Jersey ward of the court in another state by the Division, where services and financial assistance were sought in relation to that placement, must be preceded by the receiving state's approval. See N.J.S.A. 9:23-5, art. III, subd. (d). We conclude the Division's compliance with the ICPC was not erroneous. Based on the totality of the circumstances, we conclude the Division's reliance on MDHS, their sister state agency, was appropriate to assist in the determination of the best interests of the children. See N.J.S.A. 9:23-5, art. III, subd. (d).
In considering whether the Division met its obligation to evaluate available alternatives to guardianship, we note although there is no presumption in favor of placement with relatives, N.J. Div. of Youth & Family Servs. v. M.F., 357 N.J. Super. 515, 528 (App. Div. 2003), "N.J.S.A. 30:4C-12.1 simply does not permit the Division to embark on a course set for termination of parental rights and adoption by a foster parent without at least first exploring available relative placements." N.J. Div. of Youth & Family Servs. v. K.L.W., 419 N.J. Super. 568, 580 (App. Div. 2011). Therefore, the court must examine whether the Division's efforts were consistent with the statutory mandate.
Here, we defer to the trial judge's finding the Division did not ignore or exclude relatives based on a preconceived notion the children's resource family was a better choice. See Cesare v. Cesare, 154 N.J. 394, 412-13 (1998) (requiring reviewing courts to defer to family court's factfinding); see also R.G., supra, 217 N.J. at 546-47, 563 (deferring to weigh factfinder assigned to Division's evidence). In fact, the judge found the Division objectively weighed facts and circumstances, and determined Katie's and Gloria's best interests were not served by attempting a placement with Lester in Mississippi.
As the children's custodian, the Division was responsible to assure their placement was safe and secure, physically and emotionally. Lester had no relationship with the children, and to them, he was a stranger. His desire to undertake care for his granddaughters was strong, but never tested by the reality of providing day-to-day care of two very young children. Added to this general responsibility was the need for the children's caretaker to address the resultant emotional strain caused by removing the children from all that was familiar. A move to Mississippi would sever their ties to Alan and their resource family, to whom they were bonded. The judge also cited expert testimony that it would not be in the children's best interests to move to Lester's home.
We recognize the trial judge's factual findings misstated the length of time Katie and Gloria were with their resource family, reciting the date of placement as January 2012 rather than January 2013. Roberta argues this error influenced the judge's decision, and, therefore, his conclusion must be set aside. We disagree and note the significance of the misstatement is diminished when weighing the other facts recited which favored establishing a permanent home for Katie and Gloria, rather than attempting to uproot the children in an effort to place them with a family member in a KLG. See P.F.R., supra, 308 N.J. Super. at 255 (rejecting error as reversible absent a determination "after canvassing the record and weighing the evidence, that the continued viability of the judgment would constitute a manifest denial of justice" (citation and internal quotation marks omitted)).
Maureen R. Santina, Ph.D., who conducted a best interests psychological evaluation and bonding evaluations in August 2013, and Dr. Brandwein agreed the girls were bonded to their resource mother. The experts did not support a move to Mississippi. They stated separation from the resource mother would be an emotional loss for the children. Also, the possibility of a failed placement and the need to again uproot the children was contrary to their best interests. The judge found no evidence supported incurring the loss of "abruptly removing [the children] from their entire environment, community, activities, and everything they have known" to attempt placement in Mississippi with Lester, a relative with whom they had no relationship.
The trial judge was aware Lester offered the possibility of KLG. Even though MDHS would not grant him licensure, the judge considered him as a possible KLG resource. Notably, a KLG "is not intended as an equally available alternative to termination that must be considered in order to satisfy the third [prong] of N.J.S.A. 30:4C-15.1." N.J. Div. of Youth & Family Servs. v. S.V., 362 N.J. Super. 76, 88 (App. Div. 2003). Importantly, "when the permanency provided by adoption is available, [KLG] cannot be used as a defense to termination of parental rights . . . ." P.P., supra, 180 N.J. at 513. Here, the judge found entering a KLG order was not feasible at the time of trial because there was no evidential support for its appropriateness. More time would be required to allow the Division to gather sufficient information supporting an order of KLG. Lester was willing to try, but that alone does not demonstrate "the suitability of the kinship caregiver and the caregiver's family to raise the child[,]" N.J.S.A. 3B:12A-6(a)(8); "the ability of the kinship caregiver to assume full legal responsibility for the child[,]" N.J.S.A. 3B:12A-6(a)(9); and "the commitment of the kinship caregiver and the caregiver's family to raise the child to adulthood[,]" N.J.S.A. 3B:12A-6(a)(10).
Our review of the judge's opinion reflects he balanced the possible available home in Mississippi against the permanent placement offered by the resource family. After considering what the children had endured and crediting the opinions of Drs. Brandwein and Santina, the judge determined the evidence supported the children's need for permanency was paramount and must not be delayed.
The final prong of the statutory best interests test assesses whether termination of parental rights will not do more harm than good to the child. N.J.S.A. 30:4C-15.1(a)(4). The prong "serves as a fail-safe against termination even where the remaining standards have been met." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 609 (2007). The question to be addressed under the fourth prong "is whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with her natural parents than from the permanent disruption of her relationship with her foster parents." K.H.O., supra, 161 N.J. at 355. Evidence in the record supports the Division proved by clear and convincing evidence the children's best interests were served by terminating Roberta's parental rights.
Dr. Brandwein found Roberta could not fulfill the role of caretaker for her children. His bonding evaluations revealed "signs" of a bond between Roberta and Alan and Katie, which was "not strong or secure," and no bond between Roberta and Gloria. Dr. Brandwein opined severing Roberta's parental rights would not result in "permanent and enduring psychological harm." He also found the strong bond among the children would aid them emotionally as they grew. On the other hand, Dr. Brandwein concluded severing the bond with the children's current caregivers would have deleterious effects on their cognitive, emotional, and social functioning.
Alan expressed his desire to remain with his grandmother, where he felt safe and was happy. He revealed instances of physical abuse by Kenny and remarked he was afraid of him. Alan's Law Guardian supports upholding the termination of parental rights, noting Alan's grandmother was appropriate, open, and fully capable of caring for him and mitigating any harm resulting from terminating his mother's parental rights.
Later in our opinion, we will discuss in detail the argument advanced by the Law Guardian for Katie and Gloria that Kenny should be permitted to continue reunification efforts. In part, the Law Guardian argues Katie's expressed desire to "return home" to Kenny (a plan also asserted as also best for Gloria), requires vacating the order terminating his parental rights. If Kenny were to resume parenting, the Law Guardian suggests it is unnecessary to terminate Roberta's parental rights. We cannot agree.
All three children are in placements with caregivers committed to their welfare, safety, security, and happiness. The caregivers desire to proceed with adoption of the children. The experts relied upon by the trial judge stated the children would suffer significant harm if separated from their caregivers, with whom they are bonded. Roberta admitted she had been in and out of the children's lives and, although she loved them, "she was not ready to be a mother to them." Accordingly, the trial judge could not ignore the evidence which clearly and convincingly supported termination of Roberta's parental rights would not do more harm than good. The Law Guardian's argument to ignore these facts cannot be sustained.
We turn to Kenny's appeal, which argues the judge's conclusion was against the weight of the evidence, and attacks the Division's proofs as insufficient to support the four-pronged statutory test. He explains by mid-2012, he committed himself to the children by attending visitations, therapeutic sessions, outpatient drug treatment, and court hearings. He had obtained employment and housing. Kenny argues "the Division's proofs fell short of demonstrating the requisite magnitude of harm that might justify termination of [his] parental rights." We disagree.
We need not repeat the legal parameters necessary to support termination outlined above and turn directly to Kenny's arguments. The recited facts recount Kenny's history of substance abuse and poor choices, particularly in tolerating and enabling Roberta's drug abuse, notwithstanding its deleterious effect upon the children.
Kenny abused illicit drugs for more than a decade, and on one occasion almost overdosed. In 2008, he was administered suboxone to combat addiction. The record suggests he abused that medication by exceeding the prescribed dosage. As late as December 2012, during a visit, he did not interact well with the children because he was noticeably drowsy, could not fully open his eyes, and was confused about what day it was, suggesting he was under the influence. At that time, he also was terminated from intensive outpatient drug treatment for nonattendance.
Further, as the trial judge found, Kenny disregarded court orders designed to protect the children. He declined to participate in drug screens and failed to complete drug rehabilitation programs, which resulted in the Division's decision to seek guardianship because he was not committed to reunification. He lied about his continued involvement and dependent relationship with Roberta, even though it compromised the children's safety. He admitted he felt pressured to use drugs by Roberta, often shared drugs with her, and at one point ended up in the hospital from drug interactions. Roberta's negative influence impeded Kenny's recovery, as evidenced by his noncompliance with treatment in July 2012, when Roberta moved in upon her release from custody. In the past, Kenny was arrested and charged with conspiracy along with Roberta; he hid Roberta from the Division and law enforcement; and he allowed her to live with him and the children, even when she was under the influence, because he felt sorry for her. The record also records physical altercations Kenny had with Roberta, his mother, and Alan.
These combined behaviors caused the children to be removed from Kenny's care and impeded his interaction with them. In July 2012, when Kenny resumed living with Roberta, he missed several therapeutic and Division supervised visitations. It was as if he lost interest in the children because Roberta returned and she was more important in his life. Once Roberta returned to jail, Kenny was able to regain control and start drug rehabilitation again, and renewed his dedication to the children.
This inconsistent dedication to sobriety and his dependence on Roberta harmed his children. We defer to the judge's findings under prong one, which were fully supported by the record evidence.
Regarding whether Kenny was unwilling or unable to cease the events resulting in harm to the children, the trial judge found Kenny delayed drug rehabilitation treatment and failed to resolve his interdependence with Roberta. While he was in remission, during the guardianship trial, Kenny was not free of the risk of potential relapse, particularly in light of the length of his past drug use. Also significant was the toxicity of his relationship with Roberta. Kenny failed to appreciate the magnitude of the harm Roberta posed to his sobriety and the children's safety.
Drs. Brandwein, Santina, and Division expert Todd Traina, Psy.D., each highlighted how unhealthy the relationship was between Kenny and Roberta. They each identified its detrimental effects on the children, because Kenny's compliance with treatment and services would not last once Roberta was released from prison and returned to his life. Unfortunately, Kenny minimized these facts. The evidence supports the trial judge's finding that Kenny was unable to provide a safe stable home for Katie and Gloria. Prong two has been met.
We also reject Kenny's challenges to proofs supporting the two requirements of prong three. Not only were ample services extended aimed at achieving reunification, but, as noted above, the Division's efforts to consider alternatives to termination were not found wanting.
Contrary to Kenny's suggestion, placement with Lester was not disregarded "solely because th[e] family resides in another state." As we stated, Lester had no relationship with Katie and Gloria, and his single visit during the litigation did not go well. A move to Mississippi would separate Katie and Gloria from Alan and cause emotional loss from separation with their resource family. Permanent placement in Lester's care could not occur without delaying permanency because time was needed to assess whether the placement would be successful, in light of Lester's age, the children's ages, and his limited health issues. No expert considered the placement in the children's best interests. Each discussed the emotional loss that would ensue after a separation from the resource mother and it was unclear whether Lester was able to mitigate such a loss. Prong three was satisfied.
Katie's and Gloria's Law Guardian joins Kenny in arguing the Division failed to fulfill its responsibilities under prong four. They emphasize the bond between Kenny and his daughters is such that it would do more harm than good to terminate Kenny's parental rights. Primarily, the arguments rely on the children's love of their father and emphasized Katie's expressed desire "to go home."
The trial judge recognized his decision was "painfully difficult," as Kenny had a relationship with his children and, at times, displayed his love and care for them. However, Kenny had not demonstrated long-term sobriety or the capacity to end his destructive relationship with Roberta, both of which would continue to cause upheaval and strife in the children's lives. Crediting the findings by Drs. Santina and Brandwein, the judge found Kenny was unable to assume parenting his children and there was no evidence to support he could do so in the near future.
All bonding experts found Katie and Gloria were bonded to their father, and they would experience a loss if parental ties were severed. See In re Guardianship of J.E.D., 217 N.J. Super. 1, 15 (App. Div. 1987) ("A final separation from a biological parent is a harm in itself."), certif. denied, 111 N.J. 637 (1988). However, the evidence regarding the negative impact on their lives resulting from Kenny's drug abuse and his inability to sever his relationship with Roberta was found more harmful to their future development and stability.
Dr. Brandwein noted Kenny minimized his conduct and lacked insight regarding how he had adversely affected the children. For example, he denied any responsibility for the children's removal to foster care and maintained he had not allowed Roberta to be alone with the children. Also, he took no responsibility for ingesting drugs resulting in his hospitalization, suggesting Roberta gave him pills when he passed out. He excused his noncompliance with drug treatment by suggesting he was not like others in the programs. Further, Kenny was found to lack "the capacity to subjugate his needs to those of the children."
Next, Dr. Santina noted the children's strong positive attachment to and affection for their father, and identified Kenny had the ability to comfort them when separated from their foster mother. However, in Dr. Santina's opinion, Kenny's emotional dependency precluded him from avoiding negative and unstable relationships and events, particularly with Roberta. She recognized Kenny had made positive advancements, but they were merely months in duration. Objectively, he had no record of stable, independent functioning.
The judge also weighed and rejected the opinion of Kenny's expert, Andrew P. Brown III, Ph.D., because he failed to consider the historic facts when stating "[t]here was no indication . . . that [Kenny] is not capable of executing duties and obligations of parenting" and Kenny's "prognosis for parenting at this point in time is good." Dr. Brown believed Katie and Gloria would suffer permanent enduring harm if Kenny's parental ties were severed, but did not consider significant the reasons they were removed from his care and the reasons that reunification had not been achieved over the two years since removal. Dr. Brown stopped short of saying Kenny was immediately capable of assuming the role of parental caregiver to his children.
In sifting through the evidence presented in support of determining whether the Division satisfied the fourth prong, the judge also considered the impact of the resource family. Crediting Dr. Brandwein's assessment, the judge found the resource family able to give Katie and Gloria comfort and support as they work through the loss of their relationship with their father. Dr. Brandwein also expressed his opinion Katie and Gloria would suffer "a deleterious effect on their cognitive, emotional, and social development" were the bond with their foster mother severed. He also found a strong need to provide these children permanency, rather than keeping them in limbo in the hope Kenny may be able to nurture, support, and protect them some time in the future. Dr. Santina echoed these views, noting the uncertainty of whether Kenny would ever be able to provide independent parenting.
Katie's and Gloria's Law Guardian attacks the trial judge's factual findings regarding terminating Kenny's parental rights. We have reviewed these challenges and determine they repeat contentions made by the parents, which we have rejected. Alternatively, the arguments criticize the weight accorded certain facts by the trial judge. Following our review, we disagree with the analysis presented.
Most important, it is to be remembered the children's needs drive this decision. "The question ultimately is not whether a biological mother or father is a worthy parent, but whether a child's interest will best be served by completely terminating the child's relationship with that parent." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 108 (2008). "A child is not chattel in which a parent has an untempered property right" and must not "be held prisoner of the rights of others, even those of his or her parents," who are not readily able to provide for his or her care. C.S., supra, 367 N.J. Super. at 110-11. "'[C]oncern has arisen for the best interests of children whose parents have forsaken their parental duties.'" P.P., supra, 180 N.J. at 505 (quoting G.P.B., Jr., supra, 161 N.J. at 404). Here, it is clear Kenny loves his daughters and desires to be their caregiver; but his actions have not demonstrated a sustained effort to complete the hard work necessary to fulfill those desires. His conduct does not align with the children's needs. Katie and Gloria deserve the chance for an expeditious, permanent placement to promote their future well-being.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION