Opinion
DOCKET NO. A-1954-14T1 DOCKET NO. A-1955-14T1
11-18-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. K.W. and D.W., Defendants-Appellants. IN THE MATTER OF THE GUARDIANSHIP OF J.W., C.W. and W.W., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant K.W. (Durrell Wachtler Ciccia, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant D.W. (Eric R. Foley, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Meredith Pindar, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor J.W. (Lisa M. Black, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors C.W. and W.W. (Danielle Ruiz, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti, St. John and Guadagno. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FG-12-0065-13. Joseph E. Krakora, Public Defender, attorney for appellant K.W. (Durrell Wachtler Ciccia, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant D.W. (Eric R. Foley, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Meredith Pindar, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor J.W. (Lisa M. Black, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors C.W. and W.W. (Danielle Ruiz, Designated Counsel, on the brief). PER CURIAM
In these consolidated appeals, defendants D.W. and K.W. challenge a December 9, 2014 order terminating their parental rights to J.W, C.W., and W.W. For the reasons stated below, we affirm.
We use initials for the parents and children in order to protect their identities.
D.W. (mother) and K.W. (father) are the biological parents of J.W. (born October 2001), C.W. (born May 2004), and W.W. (born December 2006). In addition to these children, D.W. and K.W. had a fourth child, a daughter S.W., who is now deceased. D.W. also has a daughter, A.C. (born April 1994), from a previous relationship.
The New Jersey Division of Child Protection and Permanency (the Division) first became involved with the family on June 22, 2002. At some point on that day, defendants noticed that their youngest daughter, S.W., then two years old, was missing. Following a brief unsuccessful search, K.W. discovered S.W.'s body floating in a neighbor's above-ground pool. S.W. was placed on life support, but was pronounced dead hours later.
When the Division's involvement with defendants began, it was called the Division of Youth and Family Services. L. 2012, c. 16, eff. June 29, 2012.
On that same day, the Division was contacted and its staff interviewed D.W. and K.W. D.W. and K.W. were substantiated for neglect for failing to properly supervise S.W. The Division also found the children suffered from head lice, and an inspection of the family home revealed that it was dirty and cluttered. As a result, defendants signed an informed consent to temporarily remove A.C. and J.W. into foster care, where they remained until August 13, 2002.
From June 2002 to September 2006, there were four additional referrals. All the referrals were deemed unfounded, but the Division noted the home to be "dirty and much cluttered to the degree of being a fire hazard."
On April 22, 2007, the Division received a referral from the Jamesburg Police Department saying that two-year-old C.W. had fallen head-first out of a second floor window of the family home. C.W. survived, but upon investigation, the Division again found the house dirty, roach-infested, and cluttered to the point of being a fire hazard. The Division substantiated defendants for inadequate supervision and neglect.
On April 25, 2007, the Division conducted an emergency temporary removal of the children from their parents. The Division referred the family to Family Preservation Services in April 2007 in order to assist defendants with parenting and maintaining the cleanliness of the home. They also referred the family to the University of Medicine and Dentistry of New Jersey (UMDNJ)'s Children at Risk Resources and Intervention (CARRI) program to continue to assist K.W. and D.W., partially by connecting them with employment agencies and agencies that would provide food, clothing, and books for the children. From February 2008 through September 2009, the Division referred the family for individual and family counseling. The Division also provided extermination services from May 2007 through August 2007.
In 2009, both D.W. and K.W. were substantiated for neglect after the mobile crisis unit was dispatched to the family home. A.C. was discovered to have an infected foot, a strong odor and possible head lice. A.C. was subsequently placed in foster care. K.W. was again substantiated in 2009, this time for sexual abuse, after reports emerged that K.W. had sexually abused A.C. in 2008. D.W. admitted that A.C. informed her of the abusive touching the day after the incident, and that her response was to order A.C. and K.W. to stay away from each other. D.W. was consequently substantiated for failing to protect her daughter.
On September 28, 2011, the Division received a report from C.W.'s school that C.W. had a "foul odor" and was wearing dirty clothes and shoes that were too small. Similar concerns over her hygiene had been raised to D.W. by the school for two years to no avail. D.W. was substantiated for neglect and J.W. and W.W. were removed from their parents' care and placed in separate foster homes. C.W. was placed in foster care along with A.C.
On October 18, 2011. Sophia Oquendo, M.D. conducted a psychiatric evaluation of J.W., who was diagnosed with attention deficit/hyperactivity disorder (ADHD) and oppositional defiant disorder (ODD). Dr. Oquendo recommended that he continue his medication regime as well as monthly medication monitoring by a child psychiatrist.
ODD is described by the Johns Hopkins Health Library as "a behavior disorder . . . that is characterized by uncooperative, defiant, negativistic, irritable, and annoying behaviors toward parents, peers, teachers, and other authority figures." Some of the symptoms may include "[e]xcessive arguments with adults," "refusal to follow rules," and "[behavior intended to annoy or upset others, including adults." See Health Library, Johns Hopkins Medicine, (Oct. 26, 2015), www.hopkinsmedicine.org/healthlibrary/conditions/mental_health_disorders/oppositional_defiant_disorder_90,P02573/.
C.W. was psychologically evaluated by Norman Weistuch, Ph.D. She was diagnosed with juvenile bipolar disorder and enrolled in CARES partial care program for juvenile mental health treatment. C.W. was moved to a foster home separate from A. C. so that the two could grow and develop separately. On November 29, 2011, C.W. was moved to a third foster home after her aunt dropped her off at the Division offices without warning, complaining that she was unable to care for her. C.W. was transferred to the foster home in which J.W. resided in September 2012. In May 2013, she claimed she wished to remain with her new foster parents.
On May 27, 2013, C.W. was taken to Saint Claire's Hospital after hitting, cursing at, and threatening to kill her foster family. She was diagnosed with intermittent explosive disorder and was admitted to the Devereux Treatment Home. There, C.W. underwent a psychological and psychosexual evaluation with Loren B. Amsell, Ph.D. Dr. Amsell concluded that C.W. suffered from post-traumatic stress disorder (PTSD) and impulsivity, a combination which necessitated a highly specialized residential treatment facility. In December 2013, C.W. underwent a neurological evaluation with Evelina Okouneva, D.O. C.W. was diagnosed with reactive attachment disorder, ADHD, oppositional-defiant disorder, and depression.
W.W. also exhibited behavioral issues following his placement into his first foster home. His foster mother asked that he be removed from the home, as he needed one-on-one care and she was already devoting all her time to J.W. In December 2011, Dr. Oquendo conducted a psychiatric evaluation of four-year-old W.W. He was diagnosed with reactive attachment disorder and adjustment disorder. Dr. Oquendo also noted symptoms of PTSD and ADHD and emphasized that placement stability and therapeutic services were essential for W.W. A further examination conducted by Dr. Weistuch found that W.W. was functioning in "the lower end of the Average Range."
Therapeutic visitation between the parents and all three children were conducted through Catholic Charities from July 2012 through May 2013. K.W. and D.W. were also referred to Catholic Charities for individual counselling, which they participated in from July 2012 through April 2013.
On December 3, 2013, mother was psychologically evaluated by Karen D. Wells, Psy.D. She was diagnosed with generalized anxiety disorder and major depression. Dr. Wells noted that, even with provided services and supports, she "would not be able to independently attend to the needs of her children." Dr. Wells opined that D.W. simply lacked the psychological and emotional capacities to meet basic demands of parenting and that the functioning of the children would suffer should reunification occur. D.W.'s prognosis for effective parenting was "poor even with compliance treatment."
Dr. Wells also evaluated K.W. on that date. K.W. was diagnosed with major depression with psychotic features, impulse disorder, bipolar disorder, and schizophrenia. Dr. Wells concluded that K.W. could not effectively parent his children at the present time or in the foreseeable future, even with increased services.
On June 6, 2013, the Division filed a complaint for guardianship and order to show cause seeking termination of the parental rights of D.W. and K.W. On March 20, 2014, the court ordered that C.W. would not be subject to a bonding evaluation because she was at a "critical juncture" in her treatment, and the judge did not want to "exacerbate her condition."
The guardianship trial commenced on October 27, 2014. At the time of the trial, C.W. remained in the Devereux Treatment Home and neither J.W. nor W.W. had found a permanent adoptive placement. The judge issued an oral decision on December 9, 2014, terminating the parental rights of K.W. and D.W. to the children.
It is from that decision that K.W. and D.W. appeal. Their appeals were consolidated by court order dated January 14, 2015. Upon our review of the record and applicable law, we affirm.
Parents have a fundamental constitutional right to raise their children, N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986). However, this constitutional right is tempered "by the State's parens patriae responsibility to protect the welfare of children." In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). In order to terminate parental rights, the Division must prove that the termination is in the best interests of the child. See N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 447 (2012). To meet this burden, the Division must prove each of the following statutory criteria 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;
(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 [her] resource family parents would cause serious and enduring emotional or psychological harm to the child;See also N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 166 (2010).
(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 four prongs of the best interest test "are not discrete and separate; they overlap to offer a full picture of the child's best interests." N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 554 (2014). Likewise, the considerations involved "are 'extremely fact sensitive' and require particularized evidence that addresses the specific circumstances in the given case." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999) (quoting In re Adoption of L.A.S., 134 N.J. 127, 139 (1993)).
The scope of our review in 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 will not disturb the family court's decision to terminate parental rights when there is substantial credible evidence in the record to support the court's findings." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008). This deference is due to the family court's ability to make first-hand judgments of credibility, its "special jurisdiction and expertise in family matters," and its opportunity to gain "a 'feel of the case' that can never be realized by a review of the cold record." Ibid. (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007)). "Only when the trial court's conclusions are 'clearly mistaken' or 'wide of the mark' should an appellate court intervene and make its own findings to ensure that there is not a denial of justice." E.P., supra, 196 N.J. at 104 (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007)).
No party challenges the court's findings or conclusions with respect to the first prong. However, with respect to the second prong, the legal guardian for J.W. argues that the court failed to adequately consider whether D.W. could effectively and safely parent J.W. if only he, and none of his siblings, was returned to her care. This argument is unconvincing.
The trial court concluded that both defendants are incapable of creating a minimally safe and stable environment, whether for four children or just one child. This finding is consistent with the opinion of Jonathan H. Mack, Psy.D., who determined that mother suffers from brain damage and cognitive impairment, and that, even with treatment, she "is not capable of creating a minimally safe and secure environment for her children, now or in the foreseeable future." The court's finding is also consistent with the opinion of Karen D. Wells, Psy.D., who determined that K.W. suffers "from a host of emotional and psychological difficulties," that he "lacks a sense of responsibility in primary parenting," and that, even with services and supports, he "cannot safely and effectively parent [J.W., C.W., and W.W.] now or within the foreseeable future."
The court acknowledged that some relevant changes had taken place prior to trial. For example, although still married, defendants were separated and living apart at the time of trial. The home which defendants shared was condemned and no longer habitable. D.W. was employed and living with her mother and A.C. in a two-bedroom apartment, and she testified that the apartment could be a permanent home. However, the court found such a living arrangement unacceptable for a family presenting the special needs of defendants and their children. D.W.'s living situation, coupled with their mental conditions and the special needs of all their children, including J.W., support the conclusion that she is incapable of providing a minimally safe and stable home life for any of their children.
Regarding the third prong, it is uncontroverted that the Division made reasonable efforts to help defendants provide a safe and stable home. The Division has been engaged with defendants since 2002, and has been extensively involved with them since 2007. During that time, the Division provided group and individual counselling, marital counselling, parenting classes, homemaker services, extermination services, employment assistance, and other services.
Rather than challenge the Division's efforts to provide services, D.W. contends that the trial court failed to adequately consider the feasibility of alternative arrangements for C.W. that do not require termination of parental rights, such as kinship legal guardianship, independent living, long term specialized care, or permanent placement with a relative. We agree with the court that these options are not realistic alternatives.
With respect to kinship legal guardianship, the statute makes clear that kinship legal guardianship is only an option where it is in the child's best interest and adoption "is neither feasible nor likely," N.J.S.A. 3B:12A-6d(3)-(4). See N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 512-513 (2003). Kinship legal guardianship "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." New Jersey Div. of Youth and Family Services v. S.V., 362 N.J. Super. 76, 88 (App. Div. 2003).
Here, C.W. was only ten years old at the time of trial and was responding to treatment. Thus, adoption was still a feasible option and the court was not required to consider a kinship legal guardianship arrangement. Likewise, C.W.'s age, responsiveness to treatment, and the absence of any family member capable and willing to serve as a guardian rendered the other options put forth by defendant clearly unfeasible.
Lastly, under the fourth prong, the court held that the potential benefits of adoption outweighed the harms inherent in terminating defendants' parental rights. Defendants argue that the court was premature in terminating parental rights in light of the fact that none of the children is located in a pre-adoptive home, and that the court has made the children legal orphans without any foreseeable possibility that they will be adopted. We disagree.
The fourth prong of the best interest test "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). In evaluating this prong, the overriding consideration is still the child's best interest, and the need for permanency and stability. In re Guardianship of K.H.O., 161 N.J. 337, 357 (1999).
The court's decision with respect to the fourth prong is not premised on the fact that the children would be harmed by losing any relationship with their foster parents. Such a finding would require comparative evaluations. See In re Guardianship of J.C., 129 N.J. 1, 18 (1992). Rather, the harm threatened in this case is defendants' unfitness as parents, irrespective of any attachment the children may have to their foster families. When a termination action is based on parental unfitness rather than bonding, the proper inquiry under the fourth prong focuses on the child's need for permanency and the parent's inability to care for him or her in the foreseeable future. See New Jersey Div. of Youth & Family Servs. v. B.G.S., 291 N.J. Super. 582, 593 (App. Div. 1996).
Our dissenting colleague concludes that the Division failed to prove the fourth prong of the best interest test with respect to J.W. For support, our colleague points to J.W.'s expressed preference for reunification with his mother, her improved circumstances, and J.W.'s uncertain prospects for adoption. We disagree.
With respect to J.W.'s desire for reunification with his mother, we agree that J.W.'s preference warranted consideration by the trial court. However, we conclude that the court was within its discretion to interpret, and ultimately disagree with J.W.'s expressed desires. In termination cases, the court's over-arching duty is to protect the welfare of the child. See In re Guardianship of K.H.O., supra, 161 N.J. at 347. A child's desires will not always coincide with his or her best interest. See E.P., supra, 196 N.J. at 113. Thus, although a child's preferences may be relevant, the responsibility to determine the best interest of the child ultimately rests in the sole discretion the court.
As noted previously, J.W. was diagnosed with ODD, but there was no expert testimony specifically linking that disorder to J.W.'s expressed preference for reunification with D.W.
Furthermore, uncontroverted expert evidence supports a conclusion that D.W. is incapable of caring for even one child. Dr. Wells expressed her strong belief that a return of the children to their mother's care would cause a deterioration of overall functioning, and would further "diminish the psychological and emotional functioning of the children." This evidence, coupled with D.W.'s long history of neglect and her failure to substantially improve her parenting despite substantial assistance, supports the trial judge's conclusion that terminating the mother's parental rights will not do J.W. more harm than good.
Finally, we do not share our dissenting colleague's pessimism regarding J.W.'s chances for adoption. At the time of trial, J.W. was only thirteen years old and his condition had stabilized considerably. A Division supervisor also provided uncontroverted testimony that J.W.'s current resource parent was considering adopting him, and that termination of parental rights increases the pool of available adoptive placements. Thus, the family court had a reasonable basis to assume that the Division may be successful in securing a permanent placement for J.W., following termination of defendants' parental rights. We afford great deference to a family judge's factual findings. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); N.J. Div. Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 433 (App. Div. 2009). Further, we will not second guess judge-made findings as long as they are based, as here, on adequate, substantial, and credible evidence. See F.M., supra, 211 N.J. at 448; In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993).
"Children must not languish indefinitely in foster care while a birth parent attempts to correct the conditions that resulted in an out-of-home placement." New Jersey Div. of Youth & Family Services v. S.F., 392 N.J. Super. 201, 209 (App. Div. 2007). Here, the record amply supports a conclusion that defendants are, and will continue to be, incapable of properly caring for their children. Thus, the court was correct in holding that the children's best chance for a permanent, safe, stable home is through termination of the parental bonds. We therefore conclude the trial court did not err in ordering the termination of defendants' parental rights to C.W., J.W., and W.W.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
RECORD IMPOUNDED
GUADAGNO, J.A.D., concurring in part and dissenting in part.
I concur with the majority's decision affirming the termination of the parental rights of both parents to C.W. and W.W. However, because the Division did not prove by clear and convincing evidence that the termination of the mother's rights to J.W. would not do more harm than good, N.J.S.A. 30:4C-15.1(a)(4), I respectfully dissent from that portion of the decision.
J.W. was first removed from his mother's custody in September 2011 and placed in a foster home. By the time of trial, J.W. had experienced two additional re-placements. The first placement was in the home of A.G.
On the first day of trial, the Law Guardian for J.W. relayed the child's request to speak with the judge. The record indicates that this was the child's second request to speak with the judge. The Law Guardian indicated that J.W.'s first request was made "quite some time ago." The Division objected to an in camera interview claiming it was not "appropriate [or] necessary" and suggested that the Law Guardian could relate his wishes to the court. The Law Guardian then reminded the judge that he had already agreed to speak with the child.
The judge interviewed J.W. on October 28, 2014, but the interview was not transcribed. In the judge's oral decision, he related only portions of the conversation, describing J.W. as "a very articulate young man who appears to be quite self-contained at this point. He has a good idea of who he is, where he is, and what's going on." J.W.'s first statement to the judge was, "I'd like to go home." After telling J.W. "that was not possible," the judge gave no further details of the interview. Rather, he proceeded to discuss the child's use of the word "home" to describe his mother's residence as opposed to his foster home. The judge found this usage "strange" and concluded that J.W. did not want to go home for his benefit but to take care of his mother. While the judge said he admired J.W.'s sentiments, he concluded that it was
Rule 5:8-6 addresses in camera interviews of children in child custody cases and requires that a stenographic or recorded record be made of each interview. The application of this rule to guardianship matters in unclear. In New Jersey Division of Youth & Family Services v. T.S., 417 N.J. Super. 228, 250 (App. Div. 2010), certif. denied, 2 05 N.J. 519 (2011), we vacated a judgment of guardianship and remanded with a suggestion that the trial court interview the child "as allowed by Rule 5:8-6[.]" In New Jersey Division of Child Protection & Permanency v. T.A., No. A-0601-12 (App. Div. Oct. 29, 2013) (slip op. at 16), another panel expressed doubt that Rule 5:8-6 applied to Title 30 proceedings. The need for recording and transcribing child interviews seems equally important in guardianship trials as in child custody cases and this case provides a compelling example of the need for clarification of the rule.
wrong for a 13-year-old. He shouldn't be worried about caring for his mother. There are a lot of things he should be worried about. One of them is not taking care of his mother. That's not his job. It's the reverse. And when I came away from that conversation with that thought in my mind, I was somewhat disconcerted because it's — it's misplaced. It shouldn't be there. And I thought that that may be the reason he said to me I want to go home. Not necessarily because it was a better place for him to be, but it was where he should be to take [c]are of his mother. Wrong reason to go back home. I don't deny his having that concept. I deny whether I think it's important enough to deal with it in this case as doing other than what I think should be done based on all the testimony and the evidence.
The judge suggested that J.W.'s expressed desire to return home to be with his mother was the result of "parentification" and appeared to dismiss the child's expressed desire as any evidence of a bond.
As an initial matter, there is insufficient evidence in the record to support the judge's conclusion that J.W.'s statements were the product of parentification, which generally requires expert testimony. N.J. Div. of Youth & Family Servs. v. I.Y.A., 400 N.J. Super. 77, 92 (App. Div. 2008). Moreover, I find it immaterial if the child was not thinking of himself when he expressed his preference to return home to care for his mother. If anything, his expression reinforces the bond, already acknowledged by the Division's expert, between mother and child.
In New Jersey Division of Youth & Family Services v. E.P., 196 N.J. 88, 113 (2008), the Court held that "in appropriate cases, the family court would benefit from hearing the wishes of a child over the age of ten, who has reached a level of maturity that allows the child to form and express an intelligent opinion." J.W. is now fourteen, four years shy of majority. His sincere desire to be reunited with his mother deserved serious consideration and the trial judge erred in disregarding his wishes.
Dr. Karen D. Wells, the expert called by the Division, acknowledged that J.W. had a "secure" bond with his parents and would experience "acute harm" if the parental rights of D.W. and K.W. were terminated, although she testified that the harm could be mitigated. It is critical to note that Dr. Wells found that this mitigation could come only if J.W. "is able to find with other caregivers . . . a sense of value and belonging and stability."
E.P. holds that where there are no realistic prospects for permanency, flawed parents may be better than nothing and we should not set children adrift in the sea of endless temporary foster placements which, without a "compensating benefit, such as adoption, may do great harm to a child." E.P., supra, 196 N.J. at 109.
Although a Division supervisor testified that J.W.'s former foster family expressed a willingness to adopt, no further evidence regarding adoption was presented, and the judge ultimately found that it was "made quite clear in this case that the children are not in adoptive homes."
J.W. has already been in multiple placements and at his age, and with his behavioral issues, his prospects for adoption are dismal. The majority disagrees with my "pessimism" as to J.W.'s prospects for adoption and points to an isolated comment by caseworker Mary Perez who testified that J.W.'s former foster parent, A.G., has expressed an interest in adopting J.W. A closer examination of the circumstances surrounding J.W.'s placement with A.G., however, reinforces my pessimism.
One study found that for each year that a child spent in foster care after termination of parental rights, the likelihood of adoption was reduced by eighty percent. LaShanda Taylor, Resurrecting Parents of Legal Orphans: Un-Terminating Parental Rights, 17 Va. J. Soc. Pol'y & L. 318, 325-25 (2010).
J.W. was placed with A.G. in September 2010 after his removal. In February 2014, A.G. reported that J.W. was getting in trouble in school and in her home. In September 2012, A.G. reposted that J.W. exposed himself to other children in A.G.'s foster home. In January 2013, J.W. was suspended from school for telling a crude joke. In February J.W. threatened to shoot classmates in his school. In July 2013, J.W. told A.G. that he would not go to summer camp; A.G. replied that if he did not go, she would have him removed from her foster home.
In August 2013, A.G.'s family went on vacation without J.W. A.G. explained to the Division caseworker that J.W. had "completely ruined" a previous vacation. In November 2013, A.G. reported that J.W. had threatened her, and that she did not know "how much longer this [placement] is going to work." The caseworker expressed "serious ongoing concerns" regarding A.G.'s care of J.W., noted that A.G. seemed "less than committed" to adoption, and predicted that J.W. would be removed from A.G.'s home.
In January 2014, J.W. told a caseworker that A.G. had threatened to put him in a "mental institution." A.G. denied making the threat. In April 2014, A.G.'s family again went on vacation without J.W. J.W. was placed in another resource home while his foster family was away and J.W. told a caseworker he felt "left out."
In June 2014, J.W. and the other foster children in A.G.'s home were removed due to an allegation of sexual abuse of A.G.'s adoptive daughter by A.G.'s nephew in the foster home. The adoption team expressed concerns about placing J.W. back with A.G.
In September 2014, the investigation of the sexual abuse allegation in A.G.'s home was completed and A.G. requested that J.W. be returned to her home. The Division declined, finding that it would not be in J.W.'s best interest to return him to A.G. Finally, and of most significance, A.G. contacted the Division and demanded that J.W. be removed from his high school because he had told a classmate that A.G.'s adoptive daughter, who attended the same school, had been raped. I cannot agree with the majority's suggestion that A.G.'s purported interest in adopting J.W. represents a realistic prospect of permanent placement for him.
Simply put, the mitigation of harm Dr. Wells referenced will not occur unless J.W. is afforded a permanent placement, and terminating the rights of his parents without real prospects for permanency will do more harm than good.
See Patrick Parkinson, Child Protection, Permanency Planning and Children's Right to Family Life, 17 INT'L J.L. POL'Y & FAM. 147, 159 (2003) (noting that being freed for adoption, but not chosen is one of the worst possible outcomes for children because it keeps them in limbo and is likely to undermine any sense of permanence or security for these children).
Dr. Wells opined that D.W. and K.W. could not provide permanency to J.W., but when asked by J.W.'s Law Guardian if her opinion would change if D.W. could parent J.W. while living separately from K.W., Wells said she was "not certain." It is not disputed that D.W. has a full-time job and works six days a week. She lives in a two-bedroom house with her mother and her older daughter, who she has raised apparently without incident. When the trial judge suggested that D.W.'s housing was inadequate ("She would have six people living in a two-bedroom house."), he was referring to all three children returning home, not J.W. alone. The judge failed to consider whether D.W.'s reunification with J.W. alone was feasible. See N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 443 (App. Div. 2009) (noting ". . . the four prongs [of the best interests test] must be evaluated separately as to each child.") (emphasis supplied).
When careful consideration is given to J.W's bond with his mother, which the Division's expert concedes, his strong desire to reunite with her, which we must acknowledge, D.W.'s apparent ability to provide and care for him, and his poor prospects for permanency, I do not agree that the Division has proven that termination of D.W.'s parental rights to J.W. will not do more harm than good. For these reasons, I respectfully dissent from that portion of the majority opinion affirming the termination of D.W.'s parental rights as to J.W. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION