Opinion
DOCKET NO. A-5315-12T1
03-18-2014
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. M.S., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF D.M. and K.M., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Christine B. Mowry, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Victoria Ply, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors D.M. and K.M. (Lisa M. Black, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano, Hayden and Rothstadt.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FG-12-28-13.
Joseph E. Krakora, Public Defender, attorney for appellant (Christine B. Mowry, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Victoria Ply, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors D.M. and K.M. (Lisa M. Black, Designated Counsel, on the brief). PER CURIAM
Defendant M.S. appeals from the June 11, 2013 order of the Family Part that terminated his parental rights to his children, D.M. (David) and K.M. (Katie). The children's mother, S.M. (Sarah), executed an identified surrender of her parental rights in favor of N.J. (Natalie), a resource parent approved by the Division of Child Permanency and Placement (the Division), with whom Sarah had resided while she was a minor, and with whom the Division placed David and Katie at the time of their births.
We have fictionalized the names of those involved to maintain their privacy.
Sarah is not involved in this appeal.
Before us, defendant contends the Division failed to prove each of the four statutory prongs contained in N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. He also argues that the Division failed to timely evaluate his sister, T.A. (Tina), a resident of Baltimore, as an alternative placement, thereby violating the Children's Bill of Rights, specifically N.J.S.A. 9:6B-4(b), N.J.S.A. 30:4C-12.1(a), and the Federal Safe and Timely Interstate Placement of Foster Children Act of 2006, specifically 42 U.S.C. §671(a)(26). Lastly, defendant contends for the first time on appeal that his due process rights were violated because he was not represented during several hearings that preceded the filing of the Division's guardianship complaint.
Having considered these arguments in light of the record and applicable legal standards, we affirm.
I.
When she gave birth to David in April 2009, Sarah was a minor in the Division's custody as the result of a pending Title 9 action against her biological parents. Sarah and David moved into Natalie's home later that month, and, on May 5, 2009, the Family Part judge granted the Division's request to add David to the action pending against Sarah's parents. At a permanency hearing on November 16, 2009, the judge determined that a guardianship trial was inappropriate because Sarah was in an independent living placement and would be eighteen shortly.
In the interim, in October 2009, Sarah informed her caseworker that she was in contact with defendant, who she believed was David's father. At the time, defendant, who was nineteen and "apparently married," indicated he wanted visitation with his son. In December, Natalie informed the Division that Sarah was pregnant again. Sarah attended prenatal appointments through the Division's efforts and continued a sporadic relationship with defendant.
Sarah turned eighteen in April 2010. On April 14, the pending litigation was dismissed as to Sarah's parents, but the court kept the complaint open on the docket and added Sarah and defendant as defendants. Sarah's law guardian was relieved, and she was assigned defense counsel. The court ordered that defendant be served with a copy of the order and a "5A" form.
Katie was born in July 2010, and Sarah and the two children continued to reside in Natalie's home. A paternity test conducted in August revealed that defendant was the father of both children.
At a case management conference on October 4, 2010, Sarah was represented by counsel, but defendant was not. The judge's order does not address the fact that defendant was unrepresented. The judge ordered defendant to attend substance abuse evaluation and parenting skills training.
We have only been provided with transcripts from the guardianship proceedings.
In December 2010, Sarah told her caseworker that she felt "overwhelmed caring for both children" and requested that Katie be placed so "she could just care for [David]." The Division suggested that Natalie become the primary caregiver for the children, but Sarah refused. She also refused any suggestion that the children be placed with defendant.
Sarah appeared at a compliance review hearing on January 10, 2011; defendant did not appear and remained unrepresented by counsel. Concluding that Sarah "was not compliant with foster home rules," had not followed through on medical care for David, and "by her own admission . . . [was] not currently capable of providing and caring for the children," the judge transferred custody of both children to the Division and ordered that Natalie retain physical custody. Sarah was also ordered to leave Natalie's home and was granted supervised visitation with the children.
On January 13, defendant informed the Division that he failed to appear because his mistook the court date.
Between February and June 2011, Sarah and defendant visited with the children together. Those visits were generally very positive, with defendant displaying parenting skills toward the children. In March, Natalie informed the Division that she would like to adopt David and Katie if no relatives were willing to do so and reunification was unlikely. The Division indicated that it would consider defendant's mother and father as possible resource parents; however, a subsequent background check revealed that defendant's father was a convicted sex offender.
Defendant underwent a substance abuse evaluation in April 2011. After testing positive for marijuana and exhibiting signs of alcohol abuse, he was referred for intensive out-patient substance abuse treatment at "Journey to Wellness." Testimony at trial indicated that defendant attended regularly between May and July, and his urine samples were negative during that period. He also completed a parenting skills program in spring 2011.
Dr. Gerard A. Figurelli conducted a psychological evaluation of defendant on May 3, 2011. At the time, defendant stated he was "separated," on probation resulting from a 2008 burglary conviction, employed full-time as an unskilled laborer and residing with his father and brother in an apartment in Asbury Park. Defendant reported a history of using alcohol, marijuana and, infrequently, ecstasy. Dr. Figurelli noted that defendant "assumed no responsibility for the fact that his children were placed [in the Division's care] due to the fact that they did not receive adequate parenting care." Defendant expressed a desire to gain custody of the children, but admitted he had not started the process of obtaining his own apartment. Dr. Figurelli concluded that defendant was not "in a position nor [was] he capable of acting adequately in a primary caretaking role relationship to a child."
Defendant attended a compliance review hearing on June 7, 2011, again without counsel. The judge ordered him to continue substance abuse treatment, individual counseling and anger management classes and obtain stable housing. In July, the Division conducted an intensive internal review of the case. At that time, defendant had moved in with his cousin's wife while his cousin was incarcerated. He tested positive during a drug screen; testimony at trial revealed that defendant's attendance at Journey to Wellness thereafter became sporadic. Neither Sarah nor defendant appeared at a compliance review on September 6, 2011; however, the resulting order indicated, for the first time, that defendant was represented by counsel.
By late September 2011, it was apparent that Sarah's relationship with defendant had become strained. During a visitation session, the two argued about their respective substance abuse and engaged in name-calling. Defendant requested separate visitation, and Sarah informed the Division that she would not attend future visits. She failed to schedule any further visits and the Division's attempts to follow-up were futile.
On September 28, 2011, defendant tested positive for synthetic marijuana, "commonly referred to as K2." A report from "At Home Marital and Family Counseling" noted that defendant was inconsistent in his treatment and did not "seem to be putting forth much effort."
On October 25, defendant informed the Division that he wanted his sister Tina to adopt the children. He stated that he was "running out of time," had been unable to find a place to live, and it was difficult to find steady employment because of his criminal conviction. The Division contacted Tina, who expressed a willingness to adopt David and Katie, even though she had not met either of them. The Division workers agreed to submit a request under the Interstate Compact for approval of Tina's home.
A permanency hearing took place on December 5, 2011. Sarah and defendant appeared and were represented by counsel. The judge approved the Division's plan for termination of parental rights followed by adoption. Defendant was ordered to "re-engage at [J]ourney to [W]ellness," continue to attend counseling, provide proof of attendance at Alcoholics Anonymous (AA) or Narcotics Anonymous (NA) meetings and seek stable housing. The judge also ordered the Division to assess relatives and other proposed caregivers as possible placement options.
At a supervised visit on December 29, 2011, defendant informed the caseworker that he did not want Natalie to adopt the children, and he wanted to care for them himself. In a January 2012 psychiatric evaluation, Dr. Sonia Oquendo concluded that defendant's "main problem [was] his long history of abusing alcohol and marijuana, which he finds relaxing and soothing." At a February compliance review hearing, the judge ordered that defendant be permitted unsupervised visitation upon the Division's approval of his grandparents' home, where defendant was now residing.
On February 24, 2012, the Division submitted a referral for evaluation of Tina's home, approximately four months after defendant first suggested her interest in adopting the children. Tina participated in a visit on April 5, and the children reacted positively to her. Additionally, the Division approved defendant's grandparents' home for unsupervised visitation, and David and Katie attended their first unsupervised visit there on May 1, 2012. Defendant completed substance abuse treatment at Journey to Wellness and continued to participate in individual therapy with At Home Marital and Family Counseling.
The Division conducted a Family Team Meeting with defendant, his parents and Tina on June 3, 2012. In the resulting "Family Agreement," defendant recognized that he needed to maintain employment and sobriety, and to assist his sister with becoming licensed to take the children.
There were, however, several incidents of concern during these same months. For example, defendant tested positive for marijuana in March 2012. In June, he missed three visits with the children, initially claiming medical problems, but finally admitting that he had a falling out with his grandparents. On July 1, he informed the Division that he could not continue home visits because he was no longer living with his grandparents. Visits with the children resumed in a park.
The Division filed its complaint for guardianship on July 16, 2012. Less than two weeks later, the Maryland authorities approved Tina's home. The Division agreed to facilitate a visit with Tina on August 8.
On the return date of the order to show cause, August 27, defense counsel informed the judge of Tina's approval as a resource parent. The Law Guardian, however, argued that the children should remain with Natalie because they identified with her as a parental figure. Defendant told the judge that, while the care the children received was "not the issue at all," he preferred the children be with "a relative." The judge ordered that the children continue in placement with Natalie.
Defendant's last visit with his children was in October 2012. He reported that he was working seven days a week performing demolition work following Hurricane Sandy and was trying to become financially stable. His work schedule did not permit time for visitation.
Dr. Barry A. Katz conducted a bonding evaluation of the children with both Natalie and defendant in November 2012. Dr. Katz concluded that "both children ha[d] a secure and stable bond and are attached to [Natalie] as their primary nurturing figure." Dr. Katz opined that severing the attachment between Natalie and the children would "likely cause the children harm in the form of adjustment issues and feelings of loss."
Dr. Katz also concluded that "the children do have a bond toward [defendant]. This bond does not appear to be as strong and secure as the bond with the foster mother." Katz believed that defendant continued to exhibit "problems in parenting that need to be addressed," "tended to interact with the children primarily as a disciplinarian and was lacking in dealing with the children in a consistent emotionally supportive manner." Dr. Katz opined that this behavior was an example of avoidant personality disorder, which results in a person tending "to withdraw emotionally from interactions with other people." This disorder could complicate defendant's ability to successfully complete substance abuse treatment. Dr. Katz also believed defendant exhibited "problems with anxiety, paranoia and limited coping ability." He concluded that "problems in parenting and functioning preclude recommending that [defendant] be reunited with his children at this time."
At a case management conference on December 17, 2012, the judge entered a permanency order with the dual goals of adoption and reunification. Defendant was required to comply with continued services from the Division.
In January 2013, Natalie contacted the Division caseworker to discuss the children's future. Noting she was sixty-eight years old, Natalie stated "that she d[id] not think she [wa]s the best candidate to adopt the[] children." Natalie requested that the Division find a younger family to adopt the children. However, days later, Natalie informed the Division that she had decided to proceed with the adoption. In April, Tina called the Division caseworker to reiterate her interest in adopting David and Katie.
At a case management conference in May, the Division informed the judge it had decided that the children should remain with Natalie, even though Tina's home had been approved. At the time, the Division said its decision was "based upon the bonding findings of . . . [the children's] relationship" with Natalie, and Tina's "very limited" familiarity with David and Katie.
The guardianship trial started on June 10, 2013. Benito Torres, the Division caseworker between 2008 and late 2011, detailed the services provided to defendant. Torres confirmed that through his tenure as case manager, defendant never lived in a home that was appropriate for children, and he was employed for approximately one-half of the time. Chad Miller, the case worker after March 2013, testified that the Division had always been willing to transport defendant to services, including court hearings, meetings at the Division's office and substance abuse evaluations. Between October of 2012 and the trial, although defendant continued to receive counseling through At Home Family and Marital Counseling, he did not attend any visitation sessions with his children.
Dr. Katz testified as the Division's expert and reiterated the findings from his November 2012 bonding evaluation of defendant and the children, and Natalie and the children. Dr. Katz expressed great concern, and found it significant, that defendant had not seen the children since October 2012. Along with defendant's recent positive drug screen for THC or marijuana, Dr. Katz opined that "things [were] falling apart and more harm [was] being done, rather than things even just staying steady." These developments, along with defendant's unstable housing, led Katz to conclude "that [defendant] is not able to parent at this time or in the foreseeable future." Dr. Katz opined that the best interests of the children were served by "continu[ing] with the permanence that they already have developed in their current foster home with their current caretaker, who they have a secure and stable attachment to as their primary attachment figure."
Dr. Katz also concluded that removing the children from Natalie's care and placing them with a stranger who happened to be defendant's relative would be unadvisable. Separating the children from their "sole primary nurturing figure," would cause, in his opinion, a "significant enduring trauma to them." Dr. Katz believed it unlikely that the children would be able to "fully recover from that trauma[,]" and defendant would be incapable of addressing that severe harm if the children were returned to him.
Defendant testified that, if the children were returned to him, he would move with them to Tina's home in Maryland. Defendant was not attending any AA or NA sessions because he "never found them to be beneficial." Defendant detailed the various jobs he recently held, which included working on an "assembly line" from approximately September 2012 until November 2012, and working in construction for about a month thereafter. He was unemployed for a short while until January 11, 2013, when he was hired at a car dealership. Defendant indicated that work was his "priority," and he admitted that his work schedule had prevented him from visiting with David and Katie for eight months. A week prior to trial, defendant moved to a rented room in a house in Asbury Park. Prior to that, he had lived with a girlfriend in a home he described as not "the best environment" for children, and with his father for a month.
Following trial, in an oral opinion placed on the record, the judge concluded that the Division had met all four prongs of the statutory best interests test and entered an order terminating defendant's parental rights to David and Katie.
II.
Before proceeding to defendant's specific arguments, we set forth the standards that guide our review.
"The focus of a termination-of-parental-rights hearing is the best interests of the child[,]" and the Division must "satisfy by clear and convincing evidence four factors, known as the best-interests-of-the-child test, set forth in N.J.S.A. 30:4C-15.1(a)." N.J. Div. of Youth and Fam. Servs. v. F.M., 211 N.J. 420, 447 (2012) (citations omitted). Those four statutory standards are:
(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;The four prongs require a fact-sensitive analysis, and "are neither discrete nor separate. They overlap to provide a composite picture of what may be necessary to advance the best interests of the children." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 280 (2007) (quoting N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 258 (App. Div. 2005)) (internal quotation marks omitted).
(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).]
Our review "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) (citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). "We ordinarily defer to the factual findings of the trial court because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a 'feel of the case' that can never be realized by a review of the cold record." Ibid. (quoting M.M., supra, 189 N.J. at 293).
We accord particular deference to the judge's factfinding because of "the family courts' special jurisdiction and expertise in family matters . . . ." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (citation omitted). "Only when the trial court's conclusions are so '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)).
"[W]here the focus of the dispute is . . . alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom, the traditional scope of review is expanded." M.M., supra, 189 N.J. at 279 (internal quotation marks and citations omitted). Yet, "even in those circumstances[,] we will accord deference unless the trial court's findings went so wide of the mark that a mistake must have been made." Ibid. (internal quotation marks and citations omitted).
A.
Defendant argues that his relationship with the children had not and would not endanger their "safety, health, or development." He contends that the judge improperly relied on Dr. Katz's opinion regarding the effect of defendant's chronic instability in employment and housing on the children because, as a psychologist, Katz's expertise was limited to "relevant psychological factors only." We disagree.
"Under prong one of the best-interests test, [the Division] must show that the alleged harm 'threatens the child's health and will likely have continuing deleterious effects on the child.'" F.M., supra, 211 N.J. at 449 (quoting In re K.H.O., 161 N.J. 337, 352 (1997)) (citing N.J.S.A. 30:4C-15.1(a)(1)). "To satisfy this prong, [the Division] does not have to wait 'until a child is actually irreparably impaired by parental inattention or neglect.'" Ibid. (citing In re D.M.H., 161 N.J. 365, 383 (1999)).
The judge noted that while there was no evidence David and Katie were the victims of "physical harm[,]" defendant "admitted" that he "ha[d] not been able to provide . . . a safe and stable home for these children to reside in." Citing the various psychological reports and testimony, the judge noted "the housing issue continues, substance abuse issue continues, [and] the employment issue continues." The judge found "there was in fact harm . . . [a]nd those harms [sic] have continued to this day."
We disagree with defendant's assertion that Dr. Katz's opinions were far afield of his area of expertise. His conclusions about defendant's unstable existence were firmly tethered to the effect it would have upon David and Katie. The judge was certainly free to credit the expert testimony produced, and, because his conclusion was amply supported by the substantial evidence in the record, we will not disturb it.
B.
Defendant also argues that the Division failed to prove by clear and convincing evidence that he was unwilling or unable to address the potential harm facing David and Katie. He notes that he generally complied with the Division's services, and, although he had periodic relapses in efforts to address his substance abuse, a review of the entire record demonstrated his sincere efforts to remain abstinent. Defendant further notes he tried to address his unstable housing situation by offering Tina as a resource placement and offering to move to Maryland with the children.
The second prong "relates to parental unfitness," which may be established by demonstrating that: (1) "the parent is 'unwilling or unable to eliminate the harm'"; or (2) "the parent has failed to provide a 'safe and stable home'" and "a 'delay in permanent placement' will further harm the child." K.H.O., supra, 161 N.J. at 352 (quoting N.J.S.A. 30:4C-15.1(a)(2)). The inquiry is "whether that parent can raise the child without inflicting any further harm." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 87 (App Div. 2006) (citing In re Guardianship of J.C., 129 N.J. 1, 10 ( 1992)), certif. denied, 190 N.J. 257 (2007). "Concern and efforts by a natural parent after his or her child has been removed from the home, and making genuine and successful efforts to overcome the cause of the removal is of enormous significance" when determining fitness. N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 437 (App. Div. 2009). We also have noted that the child's best interests cannot be sacrificed because of a parent's inability to address potential future harms, despite his or her willingness to try. See N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div.) ("[T]he . . . statute[] reflect[s] reforms acknowledging the need for permanency of placements by placing limits on the time for a birth parent to correct conditions in anticipation of reuniting with the child."), certif. denied, 180 N.J. 456 (2004).
Here, the judge found that defendant might "be willing" to address his problems, but "he certainly is unable." The judge noted the same issues that existed when the Division first became involved continued to plague defendant. The judge's conclusions in this regard are well-supported by the record. Although defendant's participation in the Division's programs may have evidenced a sincere desire to address the myriad issues he faced, the judge noted that defendant's relapses demonstrated an attempt to "control" his substance abuse problem "as opposed to eliminate it." Additionally, Dr. Katz testified that defendant's admitted failure to visit his children for eight months showed an unwillingness to "put th[e] needs of the children first," which amounted to an "abandonment" from the children's perspective. The proofs as to prong two were clear and convincing.
Defendant's argument regarding prong three of the statutory test is limited to the Division's alleged failure to make "a timely inquiry into relatives" with whom David and Katie could be placed. We address that argument more fully in Part III below.
C.
As to the fourth prong of the statute, we discern defendant's argument to essentially be that Natalie was not able or prepared to adopt the children. He points to evidence in the record that the Division needed to address her lapses in judgment regarding the children's care, and her equivocation about adopting them due to her age. Defendant notes that the Division demanded letters from Natalie's adult children, neither of whom lived in New Jersey, indicating they would assist their mother in caring for David and Katie.
The statute's fourth prong mandates a determination as to "whether a child's interest will best be served by completely terminating the child's relationship with that parent." E.P., supra, 196 N.J. at 108. "The crux of the fourth statutory subpart is the child's need for a permanent and stable home, along with a defined parent-child relationship." N.J. Div. of Youth & Family Svcs. v. H.R., 431 N.J. Super. 212, 226 (App. Div. 2013) (citation omitted). The court must examine the child's bond with both biological and foster parents. K.H.O., supra, 161 N.J. at 355. "[W]here it is shown that the bond with foster parents is strong and, in comparison, the bond with the natural parent is not as strong," termination may be appropriate. Id. at 363. "[A]fter considering and balancing the two relationships," the question becomes whether "the child will suffer a greater harm from the termination of ties with [his or her] natural parents than from the permanent disruption of [his or her] relationship with [the] foster parent[]." Id. at 355.
The judge credited Dr. Katz's testimony and accepted that "there is a bond between [defendant] and the children." However, the judge also found that David and Katie did not see defendant as a "primary nurturing figure," and their bond with defendant was "rather tenuous and tentative." The judge noted that David and Katie had lived with Natalie since birth, and severing their bond with her "would be significant and the harm to the children could be enduring."
The judge accepted the unrebutted testimony of the Division's expert. Implicitly, the judge concluded that, despite Natalie's earlier equivocation and her age, in light of her stated intention to follow through with the adoption and the nurturing bond that had developed between her, David and Katie, termination of defendant's parental rights would not do more harm than good. We conclude that the Division met its burden of proof as to prong four.
III.
Defendant argues that the Division thwarted the children's placement with Tina by failing to proceed in a timely fashion. In this regard, he contends the Division's delay violated several statutes.
N.J.S.A. 9:6B-4(b) requires the Division use its "best efforts . . . to place [a] child with a relative . . . ." N.J.S.A. 30:4C-12.1(a) provides that
[i]n any case in which the [Division] accepts a child in its care or custody, . . . [it] shall initiate a search for relatives who may be willing and able to provide the care and support required by the child. The search shall be initiated within [thirty] days of the department's acceptance of the child in its care or custody. The search will be completed when all sources contacted have either responded to the inquiry or failed to respond within [forty-five] days.The federal Safe and Timely Interstate Placement of Foster Children Act of 2006 requires a state receiving a request from a sister state to evaluate a home for potential placement to complete the study within sixty days. 42 U.S.C. §671(a)(26).
Here, defendant initially offered his parents as possible caregivers for David and Katie, but the Division acted expeditiously and ruled them out because of a prior criminal conviction. Despite the fact that defendant became involved in the case in April 2010, he did not offer his sister as a possible placement option until October 2011.
After receiving Tina's name and address, the Division referred the matter to the Baltimore Department of Social Services on February 3, 2012. Tina's home was approved on July 26, 2012. Defendant correctly argues that this timeline violated 42 U.S.C. §671(a)(26). Arguably, the four-month delay in the Division's submission of Tina's name to the Maryland authorities for approval did not comply with the spirit, if not the letter, of Title 30.
Recently, in New Jersey Div. of Youth & Family Servs. v. J.S., 433 N.J. Super. 69, 82 (App. Div. 2013), we said that "although the Division has a statutory duty to evaluate relatives as potential caretakers, there is no presumption favoring the placement of a child with such relatives." See also N.J. Div. of Youth and Family Svcs. v. M.F., 357 N.J. Super. 515, 528-29 (App. Div. 2003) ("[A]lthough there are statutory provisions in Title 30 and Title 9 which refer to relative placements, the statutes do not create a presumption in favor of such placement.").
The Division does not have "an obligation to search the fifty states or even the twenty-one counties to identify a [child's relatives] . . . ." New Jersey Div. of Youth and Family Services v. K.L.W., 419 N.J. Super. 568, 582 (App. Div. 2011). Rather, the Division has a statutory obligation not to permit "inexplicable delay in assessing and approving . . . a relative known to the Division . . . ." Ibid.
"Delay of permanency or reversal of termination based on the Division's noncompliance with its statutory obligations is warranted only when it is in the best interests of the child." K.L.W., supra, 419 N.J. Super. at 581 (citation omitted). "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." J.S., supra, 433 N.J. Super. at 85.
In this case, the judge expressly addressed Tina's involvement in the litigation. He noted that even though she had been approved, reunification was still "a goal" at that time. Further, he determined that the Division's decision to support adoption by Natalie "ma[de] all the sense in the world," since the children had resided with her since their birth. Because the judge carefully considered what was in the best interests of the children, we conclude that any delay in having Tina approved was inconsequential.
IV.
For the first time on appeal, defendant asserts that he was denied procedural due process because of "the lack of an initial complaint" and "the lack of representation for seventeen months thereafter." Defendant points to a December 2011 meeting when he was "excluded from a discussion about the Division's permanency plan of adoption . . . ." In response, the Division contends that defendant's due process claims, which relate to the Title 9 abuse and neglect litigation, are not within the scope of this appeal.
Defendant was represented by counsel as of September 2011, but no objection to the lack of representation at prior proceedings was ever made. Since this issue was not raised at any point in the proceedings before the Family Part, we are reluctant to address it all. See Nieder v. Royal Indemn. Ins. Co., 62 N.J. 229, 234 (1973) ("It is a well-settled principle that our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such presentation is available . . . .") (citation omitted).
Moreover, none of the transcripts from the Title Nine proceeding have been produced. An early order in that litigation indicated that defendant was to be served and complete a "5A" form to determine his eligibility for the services of the Office of the Public Defender. We cannot discern whether he ever made such an application, or even if he otherwise waived his right to counsel.
Lastly, we agree with the Division that defendant was represented throughout the Title 30 proceedings, and the order under review emanates from that litigation. "Titles 9 and 30 operate independently from one another," and "'dismissal of a Title 9 action . . . does not foreclose further intervention by the Division pursuant to N.J.S.A. 30:4C-12 to protect a child who, although not abused or neglected, is in need of services to ensure [his or her] health and safety.'" N.J. Div. of Youth & Family Servs. v. I.S., 214 N.J. 8, 37 (2013) (quoting N.J. Div. of Youth & Family Servs. v. T.S., 426 N.J. Super. 54, 64 (App. Div. 2012)).
We have held that orders entered in Title Nine proceedings having continued adverse consequences for the parent, such as the finding of abuse and neglect, will not become moot simply by the filing of a Title Thirty complaint for guardianship. N.J. Div. of Youth & Family Servs. v. A.P., 408 N.J. Super. 252, 262 (App. Div. 2009) (citation omitted), certif. denied, 201 N.J. 153 (2010). However, once jurisdiction is properly exercised under Title Thirty, the interlocutory orders entered in the Title Nine proceedings "'can have no practical effect on the existing [Title 30 action]' . . . , which renders th[e] appeal moot." Id. at 264 (quoting Greenfield v. N.J. Dep't of Corrs., 382 N.J. Super. 254, 257-58 (App. Div. 2006)).
In this case, defendant was represented by counsel since September 2011, and was in fact represented when the December 2011 meeting occurred. No order entered in the Title Nine proceeding before September 2011 resulted in prejudice to defendant in the Title Thirty litigation, during which he was always represented by counsel and presented a vigorous defense.
The record does not reveal why the Division simply did not file a new complaint naming Sarah and defendant as defendants, rather than adding them to the pending Title Nine litigation. However, here, too, we fail to discern any prejudice since defendant was obviously served with the complaint because he appeared in court shortly thereafter.
The failure to demonstrate an adverse consequence from the lack of representation during some of the Title Nine litigation, combined with defendant's failure to raise the issue earlier or provide us with a complete record that permits our further review, compels our conclusion that his due process rights were not violated.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION