Opinion
DOCKET NO. A-0781-13T1
07-14-2014
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. R.B., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF S.B., a minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Amy M. Williams, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Patricia J. O'Dowd, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Caitlin McLaughlin, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall, Waugh, and Nugent.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FG-16-45-12.
Joseph E. Krakora, Public Defender, attorney for appellant (Amy M. Williams, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Patricia J. O'Dowd, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Caitlin McLaughlin, Designated Counsel, on the brief). PER CURIAM
R.B. (Richard) appeals the Family Part's September 26, 2013 order terminating his parental rights to his son S.B. (Scott). We affirm.
We use pseudonyms to refer to the individuals in this case for the purposes of confidentiality and clarity.
I.
We discern the following facts and procedural history from the record on appeal.
Scott is the son of Richard and T.M. (Tonya), and is their fifth child together. Their parental rights to their four other children were terminated prior to Scott's birth. Three of those children have been adopted by the same family, which now seeks to adopt Scott. Tonya has a history of abusing cocaine and opiates during pregnancy.
In addition, Tonya's parental rights to three children by other fathers have been terminated.
On June 6, 2011, the Division received a referral concerning Tonya from St. Mary's Hospital in Passaic. It reported that she came to the hospital with swollen legs, seeking prenatal care. Tonya was almost thirty-four weeks pregnant and tested positive for cocaine and opiates.
The day after receiving the referral, a Division caseworker visited Tonya's apartment. Tonya was unwilling to speak to the worker or disclose when she had last used drugs. Tonya, though "not 100% sure," believed Richard was the baby's father.
At the time, Richard was incarcerated for possession and distribution of a controlled dangerous substance (CDS) and was scheduled for release in September 2013. Tonya told the worker that Richard's mother Mary, whom she described as her "mother-in-law," was scheduled to come to New Jersey following the birth and take the baby back to South Carolina to live with her.
Tonya and Richard are not married, but Tonya referred to his mother as her "mother-in-law."
On June 10, a Division worker returned to Tonya's apartment unannounced. Tonya told the worker that she last used cocaine on June 1, despite testing positive on June 6, and was taking Suboxone for her heroin addiction. She also told the worker she would be interested in a drug treatment program. Tonya reiterated that Mary would be taking the baby to South Carolina. She gave the caseworker Mary's contact information.
On July 15, St. Mary's Hospital notified the Division that Tonya had given birth to Scott the day before. A Division caseworker interviewed Tonya at the hospital. She was incoherent and admitted to using drugs the night before Scott was born. Both Tonya and Scott had tested positive for opiates and cocaine. Because Scott exhibited withdrawal signs, he was sent to the neonatal intensive care unit (NICU). The Division substantiated Tonya for abuse and neglect and effectuated an emergency removal.
On July 19, the Division filed a verified complaint for care, custody, and supervision and sought emergent relief. Later that day, a Family Part judge conducted a hearing, entered an order to show cause (OTSC), and granted the Division temporary custody of Scott. Scott was subsequently discharged from the NICU, and placed in the same home as three of his biological siblings.
A paternity test confirmed that Richard was Scott's father. In August 2011, Richard was released from incarceration to participate in the intensive supervision program (ISP). He visited Scott twice at the foster residence. Because he missed multiple appointments for a drug abuse evaluation, Richard was re-incarcerated in September for violating ISP.
On August 22, the Division prepared an Interstate Compact on the Placement of Children (ICPC) request form, asking authorities in South Carolina to conduct an evaluation of Mary's home for possible placement of Scott. The box seeking priority handling, however, was not checked on the form.
On September 22, the return date of the Division's OTSC, the judge entered an order continuing custody of Scott with the Division and allowing Tonya weekly supervised visitation. The abuse and neglect factfinding hearing and the first compliance review were scheduled for November 1.
Following the hearing on November 1, the judge substantiated abuse and neglect against Tonya for using cocaine and opiates while pregnant with Scott. The Division made a motion to be relieved of its obligation to make reasonable efforts to reunify Scott with Tonya and Richard. Citing the fact that Tonya's and Richard's parental rights to their other children had been involuntarily terminated between March of 2007 and January of 2011, the judge granted the Division's motion. The judge also entered an order requiring the Division to "arrange a home study/interstate referral regarding Paternal Grandmother [Mary] in South Carolina."
The Division held a five-month internal review on November 29. The Division noted Richard's return to incarceration "on drug related charges" and Tonya's lack of involvement with Scott. The notes of the meeting reflect that "[t]he Division has requested an Interstate home assessment of [Mary]."
The judge conducted another compliance review on January 5, 2012. The judge issued an order continuing custody of Scott with the Division and requiring the Division to "again inquire the status of South Carolina's investigation regarding Paternal Grandmother [Mary] in South Carolina, previously submitted to South Carolina in August, 2011."
On February 7, 2012, a Division worker contacted the worker assigned to Mary in South Carolina. She reported that "the home study has been closed by [New Jersey] due to the lack of compliance by [Mary]." On February 10, the judge entered an order for priority placement, identifying Mary as a potential placement. The judge ordered the Division to transmit the order and a "properly completed" interstate request form to the authorities in South Carolina and required the Division to keep him "informed as to the progress" of the evaluation.
On February 14, there was a compliance review and permanency hearing. The judge approved the Division's plan to terminate Tonya's and Richard's parental rights to Scott, followed by adoption. The judge explained his reasons as follows: "The mother, [Tonya], has a long history of abusing heroin and cocaine, and she has not engaged in substance abuse treatment. The father, [Richard], is currently incarcerated in State Prison for violating the terms of the Intensive Supervision Program." The order also reiterated that the Division was relieved of efforts to reunify, and ordered the Division to "again inquire the status of South Carolina's investigation regarding Paternal Grandmother [Mary] in South Carolina, previously submitted to South Carolina." The order continued: "If the paternal grandmother, [Mary], contacts the division with appropriate notice, a supervised visitation session shall be arranged with the child, [Scott]."
Following the compliance review and permanency hearing, the Division contacted Mary directly to ascertain whether and when she was coming to New Jersey. Mary responded that she did not know when she was coming, but would notify the Division in advance so she could visit with Scott.
On March 2, the Division filed a complaint for guardianship, naming Tonya and Richard as defendants. On March 29, the judge entered an order terminating the abuse and neglect litigation, as well as a separate order in the guardianship proceeding, requiring Tonya and Richard to show cause why their parental rights to Scott should not be terminated.
On March 22, the Division received an e-mail from the South Carolina interstate compact authorities informing it of a "Favorable Preliminary Assessment" of Mary's home. The e-mail stated in all capital letters that "THIS IS NOT PLACEMENT APPROVAL" and that a form "will be forwarded with a placement recommendation when the licensure process has been completed."
The return on the guardianship OTSC took place on April 23. Richard was brought from prison and appeared at the hearing. He informed the judge that he had "exactly ten months left" in custody. The Division advised the judge that Tonya was "contemplating doing a surrender so that [Scott] can stay in the [foster] home." The Division also advised that it had "started an interstate evaluation on the paternal grandmother in . . . South Carolina. . . . And we are awaiting the results [of] the interstate evaluation."
Through counsel, Richard expressed his desire that Scott be placed with Mary in South Carolina. Counsel continued: "He has put her forward before. And it's my understanding that there was a preliminary report that was issued by South Carolina. She isn't licensed, however. Her home, I believe, was approved. But she's not licensed yet." Counsel for Tonya then asserted that placement with the paternal grandmother "was [Tonya's] preference as well."
The judge asked whether, if Mary's home were licensed, it was the Division's intention to move the child to South Carolina. The Division responded that a decision had not yet been made and that "[i]t just depends how long the child remains with his siblings and what sort of bonds form[] there." The following discussion took place:
THE COURT: . . . How much longer is it going to take in order to make a decision?
[DEPUTY ATTORNEY GENERAL]: Judge, we need to see what comes back from South Carolina what their reports indicate.
THE COURT: And how long is that going to be?
[DEPUTY ATTORNEY GENERAL]: Judge, we can't control interstate. They're South Carolina --
THE COURT: Well, while we might not be able to control interstate, but we can certainly control the . . . time period for consideration. This is the most critical period of time for this infant. And he's bonding every day now with a particular home. And if the Division seeks to remove that child, it might not -- it might not occur, licensing or no licensing. I mean --
[DEPUTY ATTORNEY GENERAL]: I don't disagree, Judge.
THE COURT: How long has the license process been in effect up to now?
[DEPUTY ATTORNEY GENERAL]: How long has the interstate been pending? Since August or September of 2011.
THE COURT: Well, what do you think about that, [Richard's counsel], should we end the -- end the process right [] now since it's been since '11? So that's, what, five months already.
[RICHARD'S COUNSEL]: Judge, no. No. It's not my client's fault that it's taken this long for this child to -- or his mother to be evaluated. His mother has done everything that she has -- was supposed to do. It should not be his fault that the
Division -- this -- his mother was put forth at the filing of the complaint.
. . . .
THE COURT: Okay. Well, it's not a question of your client's fault. It's a question of the best interest of the child in terms of bonding and attachment.
. . . .
[TONYA'S COUNSEL]: Judge, I have the same position as -- as [Richard's counsel], Your Honor. It has been going on for -- for a while. And I don't know what inference Your Honor wants -- would like to draw on the fact that the child has been with the foster parent who has other children of [Richard] and [Tonya].
But, Judge, I believe, you know, his mother should be properly assessed, whether it's interstate or not, Judge.
The judge next questioned Adam Janiec, a Division caseworker. The following colloquy took place.
[THE COURT:] . . . Mr. Janiec, can you assist the Court by telling us, if you know, with specificity, what has been accomplished in the licensing process, what needs to be accomplished, and, if possible, when we can expect a final reply?The resulting order continued the prior order relieving the Division of providing reasonable efforts at reunification, set a case management conference for July 11, and a trial date of August 8.
[MR. JANIEC:] Well, we requested that home study back in I believe August of 2011. At one point in November -- I believe November of last year, we learned [that] South Carolina closed their home study because they were under the impression that we no longer required it. We then had [a prior judge] put in an order stating that they have to expedite the home study.
Once we submitted that through interstate, they did finish some of the process, and they provided us with a preliminary report stating that the home appears to be okay. And it could be licensed. It has not yet been licensed. The last time I spoke with [Mary], she indicated that they still had to complete a fire inspection.
. . . .
[MR. JANIEC:] And some sort of other inspection that she wasn't sure about. And until those are completed, that the home will not be licensed. So at this point, we do not have -- well -- and we'll need to get a form from Trenton stating that it is okay for us to place the child in the home, once it's fully licensed.
[THE COURT:] In the meantime, has the child been visiting with the paternal grandmother in [South] Carolina?
[MR. JANIEC:] No. The child has not been visiting. We do have a court order stating that whenever the grandmother comes up to New Jersey, she -- she should be entitled to see the child, but she has not been up here.
[THE COURT:] So what we're looking at is a seven-month-old child who has been removed from the mother, placed in foster care, obviously, bonding with the foster mother at this critical age. Not visiting with the paternal grandmother. Not knowing the paternal grandmother. The licensing process is to continue with no firm end date. And then if the paternal grandmother is licensed, there's a contemplation that the child would be taken away from the person with whom the child has bonded at this critical stage and placed with a stranger.
That's what we're looking at[]?
[DEPUTY ATTORNEY GENERAL:] Judge, or it's possible that when the Division receives notification that the home is licensed, DYFS can make its own determination that the best interest of the infant is better served staying here with its siblings. But we can't make that determination until we know that that's a viable home in -- in South Carolina. And right now, until it's licensed, it's not viable. DYFS can rule the grandmother out under a best interest test for [Scott].
The law guardian requested a forensic bonding evaluation of Scott with his foster parents and his siblings, which was performed by Alison Winston, Ph.D., on June 12. Winston's conclusions were that
[Scott] appears to have a strong, secure emotional attachment to his foster parents . . . who appear to be very appropriate caregivers to [Scott]. . . . It is the opinion of the undersigned, within a reasonable degree of psychological certainty, that it would be extremely disruptive to remove [Scott] from his current caregivers, with whom he has lived since birth and whom he views as his primary attachment figures, and from his biological siblings, in order to place him with his paternal grandmother, whom he has never met. Although [Mary] is biologically related to
[Scott], she is in his reality a complete stranger to [Scott]. [Mary] has not had any contact with [Scott] since his birth, and has not made an effort to visit him in New Jersey. To remove him from the home where he has been loved and cared for and where his needs have been met since birth, in order to place him with a total stranger, would be emotionally devastating, particularly given his significant medical and developmental needs. [Scott] views [his foster parents] as his psychological parents, and to disrupt this emotional bond would negatively impact on his sense of permanency.
. . . .
It is the opinion of the undersigned, within a reasonable degree of psychological certainty, that to remove [Scott] at this time from the caregivers that he has known since birth, and whom he considers his psychological parents, in order to reunify them with a biological relative whom he has never met and with whom he has no emotional bond whatsoever, would cause him serious and enduring emotional harm. It is unclear whether [Mary] has the capacity to help him recover from this loss without suffering serious and enduring harm; however, it seems unnecessary and unreasonable to take this risk in light of the fact that [Scott] is presently residing with consistent and nurturing caregivers who are willing to and highly capable of meeting his needs. Additionally, [Scott] has significant developmental delays as a result of his mother's illicit substance use during her pregnancy, and it is unclear whether [Mary] is knowledgeable about his delays and has the resources necessary to effectively address them. Moreover, it is the opinion of the undersigned, within a reasonable degree of psychological certainty, that [Scott] would suffer minimal, if any,
emotional harm in the event [Tonya's and Richard's] parental rights are terminated.
During the case management conference of July 11, the Deputy Attorney General informed the judge that she had learned:
some information . . . with regard to . . . the home study of the paternal grandmother [Mary], who lives in South Carolina, we have a preliminary report approving the home. However, there are items that [Mary] . . . has to complete. She hasn't done them. Mr. Janiec called her in -- in May and said you need to get in touch with the -- he can't call the worker there directly. He wasn't able to get in touch with the worker directly, but she lives in South Carolina. And he said, please call the worker and find out what you have to do to complete this home study. And nothing has happened since then. So the ball is kind of in [Mary's] court.The judge adjourned the trial date to November 14, in order to accommodate discovery requests and locate Tonya, whose whereabouts were then unknown.
. . . .
[Mr.] Janiec also told me that the time that he did speak to [Tonya], which was [] sometime near the end of March, she said she would like to do an identified surrender to the foster parents because she wants the children to all stay together. And she wants them to be near her mother who lives in the next town.
So I am not taking a position on what should happen at this point. But I am certainly stressing the urgency of [Mary], if she is indeed serious about taking her grandson, to do what she has to do to get her home approved.
The following day, the Division was able to find Tonya, who was "homeless and . . . staying with a friend in . . . Passaic." Tonya told the Division caseworker that she "would come in and complete an identified surrender of her rights to [Mary]."
On August 22, the Division received an e-mail from the New Jersey interstate compact office with an update on the licensure process for Mary. According to the authorities in South Carolina, Mary was
complying with the licensing procedure and is in the process of completing the licensing paperwork. [Mary] still needs to schedule an appointment for fingerprints, Medical forms on children and adults in the home [were] issued to [Mary] and need[] to be completed, [criminal background check forms] need to be resigned and submitted due to the recent ones [Mary] filled out incorrect[ly].The e-mail also advised that Mary needed to complete a few additional requirements prior to final approval.
At the Division's request, Robert Kanen, Psy.D., performed a psychological evaluation of Richard at Bayside Prison on September 5. Based on the results of his examination, Kanen concluded that Richard
continues to show evidence of severe parenting deficits. He is currently incarcerated at the Bayside State Prison and was convicted of possession of CDS with intent to distribute. . . . He admits he sold crack cocaine for 15 years. He has served at least two other state prison sentences and has been in Passaic and Bergen County jails several times. He has eight children and has repeatedly failed to honor his parental obligations. His parental rights have been terminated to at least three of his children. He has no viable long-term goal or plan to take care of [Scott]. He admits the child does not know him and has never lived with him. He wants his mother, [Mary], to get custody of the child.
[Richard] is currently functioning in the borderline range of intelligence with an estimated full-scale IQ of 69 placing him above 2% of the general population and below 98%. He shows evidence of poor judgment and difficulty planning ahead. He shows evidence of severe personality problems. He has an extensive history of arrests and incarcerations. He has repeatedly engaged in behaviors that are grounds for arrest. He is prone to impulsivity, poor judgment, irritability, and to a reckless disregard for the safety of others. He is extremely self-centered and indifferent to the needs of others including his children.
It is this examiner's opinion that [Richard's] problems are chronic in nature and unlikely to change. He cannot provide [Scott] with a permanent, safe, and secure home. Returning the child to his care would expose the child to an unnecessary risk of harm. He is not capable of supervising, protecting, or caring for the child.
. . . .
It is this examiner's opinion that [Richard] will not be able to care for [Scott] now or in the foreseeable future.
On October 3, Mary telephoned and advised the Division that she would be in New Jersey the following week and would visit Scott. The Division arranged a visit with the foster family, Mary, Scott, and Scott's three siblings, all of whom were also Mary's grandchildren. The visit took place on October 11.
Janiec characterized the children as "shy around their grandmother since it was the first time they ever met her." Scott "would stay close to [his foster father] and cry when picked []up by [Mary]." By the end of the visit, the "children felt more comfortable around grandma and each gave her a [goodbye] hug." When asked by Janiec how she would react to taking Scott away from his siblings if her home was licensed, Mary said that she was "interested in caring for [Scott]" but that "she would feel bad and it is something that she really has to think about."
The judge held a case management conference, rather than the trial, on November 14. Janiec testified that he had spoken with Tonya, who again indicated her desire to do an identified surrender to Mary. Richard echoed Tonya's wishes, his counsel noted that Richard had been "putting his mother forward" for some time. Richard's counsel acknowledged that, although Mary "has been doing everything that she's been asked to do," "she's still not approved for the placement of this child."
The judge asked for the Division's position on Tonya and Richard's proposed identified surrender to Mary. The Deputy Attorney General replied:
Judge, [Mary] put herself forward for another [one of Tonya and Richard's children], [J.B.] . . . . And we weren't able to -- the licensing wasn't completed then. She then . . . when [Tonya] gave birth to [Scott], [Tonya] and [Richard] said they wanted [Mary] to be considered. We contacted South Carolina. Our position is that she hasn't completed the licensing process. There are still things that she has to do and that the home has not yet been licensed. . . . [Scott] is placed in a home with [three of his biological siblings], so . . . it's a difficult decision because you have a grandmother who seems to be interested and yet doesn't[] do what she needs to do to get her home licensed. That's our position.The judge responded:
Well, . . . my records say the file was closed by South Carolina in error. . . . There's no implication for a specific statement in this file that the -- that in South Carolina that there was some problem other than South Carolina having closed the file by error. I don't have anything here saying that there were reports that were stalled because of a lack of cooperation. . . . By my note says:The judge then entered an order scheduling another case management conference for February 25, 2013, and the trial for March 13 and 14.
"Home study requested August 2011, closed by South Carolina in error."
And I'll listen to the tape, if necessary, but if that's the case, we don't have any basis for indicating that the home study has been stalled as a result of any conduct by the person being investigated.
On February 4, 2013, South Carolina transmitted its approval of Scott's placement in Mary's home and a copy of the official license it granted Mary. On February 19, Kanen performed a bonding evaluation of Scott and his foster parents. He observed that Scott was "very secure in the presence of the foster parents and his siblings." Scott was "well integrated into the family." Kanen found that "[t]he foster parents were warm [and] nurturing" toward Scott, and were "able to understand and meet his basic physical and emotional needs." The foster parents "offered positive encouragement" toward Scott and interacted well with him. Kanen concluded that Scott "is securely attached and bonded to the foster parents," who "have been providing [Scott] with a permanent, safe, and secure home since [Scott] was born." Kanen determined that Scott "perceives the foster parents as his parents and refers to them as mommy and daddy."
Kanen opined that, given the strength of the bond with the foster parents, Scott "would suffer serious and enduring harm if he was removed from" them. He observed that, because Scott "has never lived with his biological father [Richard,] . . . [Scott] would not suffer serious and enduring harm if permanently removed from [Richard and Tonya]."
On February 25, the judge conducted a case management conference. Richard's counsel reiterated his request to perform an identified surrender of Scott to Mary. A caseworker confirmed that the Division had "received email confirmation that the home has been approved," but it was "still awaiting the written home study report." The Division asserted that it was "awaiting the results of a bonding evaluation between [Scott] and his siblings and his current foster placement." Scott's law guardian took the position that "the child should stay with the current caretaker and the child's siblings." Counsel for Richard criticized the Division for taking "a year and a half to get approval of the paternal . . . grandmother's home," and expressed her belief that there was "no reason whatsoever" why Mary could not care for Scott.
The Division did not receive Kanen's report until March 1.
The following exchange took place at the permanency hearing on February 28:
[TONYA'S COUNSEL]: The only thing I would say, Judge, is that inasmuch as the Division's plan is termination of parental rights with adoption by the foster parents, I would -- I would object to that plan on behalf of [Tonya] . . . .The judge again accepted the Division's permanency plan of termination followed by adoption and reconfirmed that the trial would start on March 13.
. . . .
. . . She would have done an identified surrender to [Mary]. So with respect to, you know, just a blanket TPR, obviously I object to that, Judge. I don't want to do that.
THE COURT: Well, you don't have any basis to object to that because that's all this Court is going to try. Okay? Basically we're terminating the parental rights of your client. All right? And that's the . . . perspective of this Court.
[TONYA'S COUNSEL]: But, Judge, would you agree that termination of parental rights is -- is different and far more severe than an identified surrender when it comes to one's DYFS record?
THE COURT: I agree.
[TONYA'S COUNSEL]: So --
THE COURT: Because if your client -- if your client has the opportunity to do an identified surrender to the paternal grandmother, a relative, and likewise [Richard], that they will never lose contact with the child. The family unit will stay in -- in full force and effect. But your client could have done that a long time ago. [Tonya] could have gone to FD before the FN when she knew that she was addicted and she could have said, you know, let's have a family arrangement here, let's put the child with the paternal grandmother . . . .
[TONYA'S COUNSEL]: But --
THE COURT: That's history now.
[TONYA'S COUNSEL]: Well, Judge . . . it's history and it's not because this important part of at least our defense is that the Division dragged its feet on, number one, assessing [Mary] down in South Carolina, so that's part of reasonable efforts. If that was done immediate -- I believe the first day that [Richard] was here, in fact put his mother up for placement, and [Tonya] stated actually [she] would want [Richard's] mother to adopt the child. So, you know, this has been going on for a year and a half and, you know, the house became licensed after, you know --
[RICHARD'S COUNSEL]: February 5th of this year.
[TONYA'S COUNSEL]: February 5th, 2013, Judge, so in terms of reasonable efforts, that -- you know, that's, you know, part of our defense and, you know, if the child was placed with [Mary], she would have done an identified surrender in this case a long time ago, Judge.
THE COURT: Why weren't you involved when she was ruled out?
[TONYA'S COUNSEL]: She was not ruled out.
[RICHARD'S COUNSEL]: She's never been ruled out.
In anticipation of the trial, Mary traveled from South Carolina to New Jersey, arriving around March 12. She visited Scott and her other grandchildren that same day. Mary told the caseworker that she still wanted to adopt Scott.
When the trial started on March 13, Richard was not present. The judge started the trial without Richard, under the mistaken belief that he was being transported to the courthouse from prison. When Richard had not arrived by the afternoon, the judge adjourned the trial to the following day. When Richard was not produced again the following day, the judge declared a mistrial. The judge scheduled a case management conference for May 6 and rescheduled trial for June 5 and June 6, 2013.
On May 6, the judge adjourned the trial date until September 11 because of Mary's unavailability for the June dates. Richard's counsel also advised the judge that Richard had been released from prison and was living with Mary in South Carolina.
In early June, Tonya was arrested for drug possession and unpaid fines. A Division worker visited her in jail on June 4. Two days later, Tonya performed an identified surrender of her parental rights to Scott in favor of the foster parents. The judge was satisfied that Tonya's surrender was voluntary and knowing and accepted it. The judge entered a memorializing order the same day.
By letter dated August 16, the Division informed Mary that she had been ruled out as a placement resource because Scott "has lived in the current home for over two years and formed a strong bond with his siblings and caretakers." The letter did not contain the required information about appeal rights and procedures.
Trial took place on September 11 and 12. At the beginning of the trial, Richard's counsel stipulated to the first prong of the best interests test because "the child was born . . . addicted to cocaine and . . . the father was in jail."
See N.J.S.A. 30:4C-15.1(a), which is discussed in detail below.
Janiec, the Division's caseworker, testified concerning the termination of Richard's parental rights to the four other children he had with Tonya and also outlined the Division's involvement with Scott. Janiec described Scott's special needs, including developmental delays, speech delays, an enlarged kidney, a heart murmur, and behavioral anxiety. He also described the services offered to Tonya and Richard.
Janiec also outlined the Division's interaction with Mary and explained why she was ruled out. Janiec confirmed that there were "delays" in completion of the interstate study of Mary's home, but attributed those delays to South Carolina. According to Janiec, the judge's order for an "expedited" interstate investigation did "not really" help. Janiec explained that the Division's decision against placing Scott with Mary was "[b]ased on a bonding evaluation" and the fact that Mary had only visited him once prior to the first trial.
Janiec recounted his observations of Scott with the resource parents and testified that they were providing Scott with appropriate care and addressing his needs. He also emphasized the fact that the resource parents had already adopted three of Scott's siblings, that they were willing to adopt him, and that their house was licensed.
On cross-examination, Janiec explained the procedure the Division undertook to get the interstate evaluation of Mary's residence. The initial application was made to South Carolina in August 2011, and licensure occurred on February 5, 2013. When asked about the reason for the delay, Janiec testified:
I do not know what the delay was, but there were small delays where I believe in November of 2011 ICPC in South Carolina closed the case by mistake, but they reopened it shortly thereafter. And then in August of last year [2012] when this case was originally scheduled for a trial in September, South Carolina was still missing some information or had to go out and do some sort of an inspection. I believe it was a fire inspection, and they were missing some medical information.
Janiec was asked to explain the Division's case notes that New Jersey had closed Mary's home study due to lack of compliance on her part. Janiec said that "there was confusion as to what case was closed." According to Janiec, New Jersey had apparently requested that South Carolina close the case file on one of Scott's older siblings, but South Carolina closed Scott's case by mistake. However, Janiec testified that Scott's home study was reopened shortly thereafter.
In addition, Janiec acknowledged that the rule-out letter was not sent to Mary until August 16, 2013, and that it was not the standard form rule-out letter because it lacked information about the right to appeal or the appeals process. When asked why the standard form was not sent, Janiec responded: "My oversight, Your Honor."
Janiec next testified about his interaction with Mary, including how he advised her to attempt to speed up the interstate licensure process. He explained his observations of the supervised visits between Scott and Mary, and acknowledged that Mary was able to obtain services for another special-needs grandchild for whom she was caring.
Kanen testified on behalf of the Division. His testimony was consistent with his written reports concerning Richard's psychological evaluation and the bonding evaluation involving Scott. He opined that Richard's personality disorder and level of intellectual functioning would make it "difficult" for him to parent adequately and that those problems were chronic and unlikely to change. With regard to the bonding assessment, he reiterated his finding that Scott was securely attached to the foster parents, who were "the only parents he knows." According to Kanen, "it would be emotionally devastating" for Scott to be taken from that home and placed with Mary not only for those reasons, but also because Scott's siblings were living with him. Scott would suffer "severe emotional distress, depression," and he "could regress in behavior and emotions," the sort of harm that it was "unlikely" another caretaker such as Mary could mitigate. Kanen reiterated his recommendation that Scott "stay with the foster parents."
Winston testified on behalf of the law guardian. Her testimony was also consistent with the results of her bonding evaluation. Winston opined that Scott has "a stable and secure attachment -- to his resource parents as well as to his biological siblings." Winston did not perform a bonding evaluation between Scott and Mary explaining that "there was no point in doing" so because "there would have been no bond" given their minimal contact. Winston testified that removing Scott from his resource family "would cause him serious and enduring emotional harm."
Tonya's mother, who lived "about three miles" from Scott and his resource family, testified on behalf of the law guardian. She described her visits to the resource family home, where she observed Scott interact with the resource parents and his siblings. Based on her observations, the maternal grandmother was "[a]bsolutely 100 percent" in support of Scott being adopted by the resource parents.
Mary testified on behalf of Richard. When asked why it took so long for licensure of her home, she responded that she had one caseworker who "left the office" before finishing up the work, so someone else had to take over the job.
In response to the question how she would "lessen any harm that [Scott] might suffer if he's removed from his foster parents and other siblings and given to" her, Mary answered: "I don't think he would suffer at all 'cause I'm there with him, and I know different things with children. I've been taking care of children all my life." Mary was aware that Scott had special needs and said she would obtain services for him by "being patient with him, checking on him, and doing different things to keep him from getting hurt and stuff." Mary was, however, unable to describe Scott's special needs. Mary related that she was caring for another grandchild who had special needs and was able to get services for him "[t]hough the hospital, the school, and . . . social worker." She specifically mentioned an occupational and a speech therapist. Mary confirmed that she had only three visits in total with Scott.
The judge rendered an oral decision on September 26, fourteen days after the trial ended. He found that the Division had proven the first prong of the best interests test by clear and convincing evidence. At the time of Scott's birth, Richard "was in jail as a result of a criminal conviction for possession and/or distribution of drugs and thus had made himself unavailable to take custody and prevent placement." The judge ruled that the "failure to make himself available to provide permanency, safety and nurturing constitutes a harm," citing In re Guardianship of K.H.O., 161 N.J. 337, 352, 354 (1999).
The judge next ruled that the second prong was satisfied by clear and convincing evidence. The judge found that Richard "was afforded an opportunity to enter into the intensive supervision program and to be released from jail," thereby having "an opportunity to remain out of prison and to engage and visit the child, and to cooperate with the Division and comply with services." However, "he violated parole," "was remanded to jail," and had to serve out his time until his release in April 2013. He thus "failed and refused to engage with the child," causing him harm.
The judge credited Kanen's diagnosis that Richard suffers from a chronic and irremediable psychological disability, preventing him from ameliorating that harm. In his second-prong analysis, the judge also credited Kanen's finding that Scott would suffer additional harm if removed because his resource parents properly address his special needs and that he has developed a strong and significant bond with them, as well as his biological siblings.
The judge found that the Division proved the third prong by clear and convincing evidence. With regard to the first half of the third prong, the judge observed that earlier court orders relieved the Division of its duty to provide reasonable services to Tonya and Richard due to the fact that their parental rights to their other children had already been involuntarily terminated. Nevertheless, the judge found that the Division had provided Richard with services, including: (1) a psychological evaluation; (2) a home study and assessment of Mary; (3) a priority interstate compact request; and (4) visitation opportunities.
The judge ruled that the Division satisfied the second part of the third prong when it explored a placement with Mary and ruled her out. The judge noted that, because Mary "resides in South Carolina with her husband and does child care for two of her great grandchildren, an interstate compact study was required to license the home and [Mary] in order to ensure that the safety of any child would be ensured if placed in that household." The judge found that the interstate request had been initiated in August 2011, that there were "some delays caused primarily by South Carolina and apparently [Mary]," and that "the process was completed and she was licensed in February 2013." The judge noted that the Division had ruled Mary out in August of 2013 based upon the child's best interests, "to wit, that [Scott] was bonded and attached to the caretakers and his siblings to the extent that removal and placement with [Mary] would cause him serious and enduring harm." Based upon the uncontested expert testimony of Kanen and Winston, the judge found that the Division had acted properly in ruling out Mary on that basis.
The judge specifically addressed the issue of delay in completion of the interstate evaluation and licensing:
The interstate process was delayed and [Richard] seeks to place the blame upon the Division and alleges prejudice sufficient to deny termination of parental rights and requests remand to the FN court to reconsider [the] placement issue. These allegations are rejected. And any
significant delays were occasioned in South Carolina and mostly by [Mary].
The records in evidence include e-mails between New Jersey, South Carolina, Trenton and the local Division, indicate that the processing for the interstate process as far as New Jersey was concerned indicates actually to the contrary. New Jersey, through Adam Janiec and the local office, and through the person in the Trenton office, followed up with the request for the interstate a number of times and pushed South Carolina along as best it could.
For example, a significant delay occurred in South Carolina where they apparently stopped working on this case because they confused [Scott]'s case with the closed case of [his biological brother, J.B.]. And they apparently, when they were notified, had to reopen the case, find the case and starting working the case. They did not do this, they did not do this immediately. They indicated they had other things to do. And so the case was delayed.
This delay cannot be attributed to the New Jersey Division.
The records indicate that there were also some delays occasioned in South Carolina because of open issues regarding completion of the application paperwork with [Mary]. Whether it was her fault or the South Carolina workers who didn't get her the papers on time, and the fingerprint records, is immaterial insofar as my findings relative to what New Jersey did.
There was an argument regarding the rule-out letter, which was sent to [Mary] in August of 2013, that it was not in the proper, formal format, advising her of her right to appeal and so forth. This, this
oversight is immaterial and does not support the application by the defendant for remand.
The fact is that this Court conducted a best interest evaluation during the September trial. Therefore, no prejudice occurred to [Mary]. All of her rights were protected. She had -- she pursued her right of appeal through this best interest hearing through [Richard's] attorney, . . . who did a credible job on behalf of her client.
The judge considered Mary's testimony and deemed her credible, but concluded that "her testimony and best intentions [were] less than persuasive for the relief she" was seeking. The judge found that Mary had only visited Scott three times and that each visit only lasted one hour. The judge credited Winston's testimony that Mary was essentially "a stranger to the child."
Based on the experts' testimony, the judge found that Mary would not be able to ameliorate the "serious and enduring" harm to Scott were he to be removed from his resource parents and siblings and placed in South Carolina. The judge noted that Richard "did not provide any expert testimony to rebut the findings and opinions by experts Winston and Kanen, nor did [Mary] provide any type of expert . . . to support her application." Consequently, the judge found the second half of the third prong satisfied by clear and convincing evidence.
Finally, the judge found that termination of parental rights would not do more harm than good, satisfying the fourth prong. The judge concluded that Richard could not and would not provide a safe and stable home; that the resource family provides a safe and secure home in which Scott's emotional and physical needs are satisfied; that uncontroverted expert testimony revealed strong and secure bonds between the resource family and Scott; that Scott would suffer serious and enduring harm were he removed; and that Richard and Mary had no bond. The judge specifically noted that there was "no evidence that [Mary] has the capacity or the relationship or wherewithal to remediate the harm to the child if removed and placed in her care, despite the best of her intentions." Based on the expert testimony of Kanen and Winston, the judge found that Scott would not suffer "any significant loss or harm" if Richard's parental rights were terminated. The judge concluded that Scott's "current placement is clearly in his best interest."
The judge entered the order terminating Richard's parental rights on September 26. This appeal followed.
II.
On appeal, Richard argues that the Division failed to prove by clear and convincing evidence that it satisfied the second part of the third prong of the best interests test because it inordinately delayed its review of Mary's qualifications and then, when she was approved by South Carolina, refused to accept her as a placement.
A.
The scope of our review of a Family Part judge's factual findings is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007). Those findings may not be disturbed unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)) (internal quotation marks omitted); see also N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004). "A reviewing court should uphold the factual findings undergirding the trial court's decision if they are supported by 'adequate, substantial and credible evidence' on the record." M.M., supra, 189 N.J. at 279 (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)).
As a general rule, we should also defer to the judge's credibility determinations. Ibid. Such deference is appropriate because the trial judge has a feel for the case and "the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008); see also M.M., supra, 189 N.J. at 293. In New Jersey Division of Youth & Family Services v. M.C. III, 201 N.J. 328, 343 (2010) (alteration in original), the Supreme Court reiterated the standard first used in Cesare v. Cesare, 154 N.J. 394, 413 (1998), recognizing that "'[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding.'"
We have held that, "'where 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." J.T., supra, 269 N.J. Super. at 188-89 (quoting C.B. Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989)); see also N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). Deference is appropriate even in that circumstance "unless the trial court's findings 'went so wide of the mark that a mistake must have been made.'" M.M., supra, 189 N.J. at 279 (quoting C.B. Snyder Realty, supra, 233 N.J. Super. at 69).
Nevertheless, the trial judge's legal conclusions, and the application of those conclusions to the facts, are subject to plenary review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). We need not defer to the trial court's legal conclusions reached from the established facts. See State v. Brown, 118 N.J. 595, 604 (1990). "If the trial court acts under a misconception of the applicable law," we need not defer to its ruling. Ibid.
"[P]arents have a constitutionally-protected" right to enjoy a relationship with their children. N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 166 (2010); see also E.P., supra, 196 N.J. at 102; K.H.O., supra, 161 N.J. at 346. Strict standards have consistently been imposed in the termination of parental rights. K.H.O., supra, 161 N.J. at 347. To balance these constitutional rights against potential harm to the child, when applying for guardianship, the Division must "institute[e] a termination proceeding when such action would be in the best interest of the child." N.J. Div. of Youth & Family Servs. v. K.M., 136 N.J. 546, 557 (1994). The burden of proof is on the Division to establish its case by clear and convincing evidence. Ibid.; see also P.P., supra, 180 N.J. at 511 ("On appeal, a reviewing court must determine whether a trial court's decision in respect of termination of parental rights was based on clear and convincing evidence supported by the record before the court.").
The Supreme Court first articulated the best interests standard in New Jersey Division of Youth & Family Services v. A.W., 103 N.J. 591, 602-11 (1986). The Legislature subsequently amended Title Thirty in 1991 to conform with the Court's holding in A.W., codifying the standard at N.J.S.A. 30:4C-15.1(a). See L. 1991, c. 275, § 7. The statute provides that the Division must prove:
(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 his resource family parents would cause serious and enduring emotional or psychological harm to the child;
(3) The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and
(4) Termination of parental rights will not do more harm than good.
[N.J.S.A. 30:4C-15.1(a).]
These four factors are not independent of each other; rather, they "are interrelated and overlapping[,] . . . designed to identify and assess what may be necessary to promote and protect the best interests of the child." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006), certif. denied, 190 N.J. 257 (2007). Application of the test is "extremely fact sensitive," requiring "particularized evidence that addresses the specific circumstances of the individual case." Ibid. (citation and internal quotation marks omitted).
Under the first prong of the best interests standard, the Division must prove by clear and convincing evidence that "[t]he child's safety, health or development has been or will continue to be endangered by the parental relationship." N.J.S.A. 30:4C-15.1(a)(1). "The harm shown . . . must be one that threatens the child's health and will likely have continuing deleterious effects on the child." K.H.O., supra, 161 N.J. at 352. There are situations where "[t]he potential return of a child to a parent may be so injurious that it would bar such an alternative." A.W., supra, 103 N.J. at 605. Accordingly, the "absence of physical abuse or neglect is not conclusive"; indeed, serious emotional and developmental injury should be regarded as injury to the child. Ibid. (citation and internal quotation marks omitted). "[T]he psychological aspect of parenthood is more important in terms of the development of the child and its mental and emotional health than the coincidence of biological or natural parenthood." Sees v. Baber, 74 N.J. 201, 222 (1977); see also In re Guardianship of K.L.F., 129 N.J. 32, 44 (1992) ("Serious and lasting emotional or psychological harm to children as the result of the action or inaction of their biological parents can constitute injury sufficient to authorize the termination of parental rights.").
Under the second prong of the best interests standard, a trial court is required to "determine whether it is reasonably foreseeable that the parents can cease to inflict harm upon" their child. A.W., supra, 103 N.J. at 607. "No more and no less is required of them than that they will not place their children in substantial jeopardy to physical or mental health." Ibid. This prong may be satisfied "by indications of parental dereliction and irresponsibility, such as the parent's continued or recurrent drug abuse, the inability to provide a stable and protective home, [and] the withholding of parental attention and care, . . . with the resultant neglect and lack of nurture for the child." K.H.O., supra, 161 N.J. at 353. This harm includes "evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child." N.J.S.A. 30:4C-15.1(a)(2). The second prong focuses on parental unfitness and its proofs overlap with the proofs supporting the first prong. In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999).
Under the third prong of the best interests standard, the Division must make "reasonable efforts to provide services to help the parent correct the circumstances" that necessitated removal and placement of the child in foster care. N.J.S.A. 30:4C-15.1(a)(3); accord K.H.O., supra, 161 N.J. at 354. "Reasonable efforts" may include parental consultation, plans for reunification, services to further the goal of reunification, notice to the family of the child's progress, and facilitating visitation. N.J.S.A. 30:4C-15.1(c). Those efforts depend upon the facts and circumstances of each case. D.M.H., supra, 161 N.J. at 390. The services provided to meet the child's need for permanency and the parent's right to reunification must be "coordinated" and must "have a realistic potential" to succeed. N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 267 n.10 (App. Div. 2002) (quoting N.J.A.C. 10:133-1.3).
The third prong also requires that the court consider "alternatives to termination of parental rights." N.J.S.A. 30:4C-15.1(a)(3). Where a relative caregiver agrees to raise a child to adulthood, the court may award Kinship Legal Guardianship (KLG) to that relative pursuant to N.J.S.A. 3B:12A-6. N.J. Div. of Youth & Family Servs. v. S.V., 362 N.J. Super. 76, 87 (App. Div. 2003). However, this option is not appropriate where adoption is feasible and likely. Id. at 88; see also N.J. Div. of Youth & Family Servs. v. S.F., 392 N.J. Super. 201, 213 (App. Div.), certif. denied, 192 N.J. 293 (2007).
Under the fourth prong, the question to be addressed 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. The overriding consideration under this prong is the child's need for permanency and stability. Id. at 357. "If a child can be returned to the parental home without endangering his health and safety, the parent's right to reunification takes precedence over the permanency plan." N.J. Div. of Youth & Family Servs. v. L.J.D., 428 N.J. Super. 451, 492 (App. Div. 2012). The mere existence of a bond with the foster parent does not alone justify the termination of parental rights. N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 263-64 (App. Div. 2005); see also K.L.F., supra, 129 N.J. at 44-45.
In meeting this prong, the Division should adduce testimony from a "well qualified expert who has had full opportunity to make a comprehensive, objective, and informed evaluation of the child's relationship" with the natural parents and foster parents. In re Guardianship of J.C., 129 N.J. 1, 19 (1992). "[T]ermination of parental rights likely will not do more harm than good" where a child has been exposed to continuing harm by the parent and, in contrast, "has bonded with foster parents who have provided a nurturing and safe home." E.P., supra, 196 N.J. at 108. "[T]he Division must show 'that separating the child from his or her foster parents would cause serious and enduring emotional or psychological harm.'" Ibid. (quoting J.C., supra, 129 N.J. at 19).
B.
At the start of the trial, Richard stipulated to the first prong. He does not specifically challenge the judge's decision concerning the second prong or the first part of the third prong, which concerns the Division's duty to provide reasonable services to the parent to remediate the problems that gave rise to the Division's involvement. He focuses his argument on the second part of the third prong, which requires consideration of "alternatives to termination of parental rights." N.J.S.A. 30:4C-15.1(a)(3). We deem it implicit in Richard's argument that he takes the position that the fourth prong was not proven, in that he contends that termination and adoption by Scott's foster family would do more harm to Scott than an identified surrender to Mary or termination and adoption by Mary.
We have reviewed the judge's findings with respect to those prongs and conclude that they are fully supported by credible evidence in the record sufficient to satisfy the required burden of proof.
There is no question that, under the second part of the third prong, the Division has an obligation to explore alternatives to termination. In addition, N.J.S.A. 30:4C-12.1 requires the Division to seek relative placements. In New Jersey Division of Youth & Family Services v. J.S., 433 N.J. Super. 69, 81 (App. Div. 2013) (citation and internal quotation marks omitted), certif. denied, ___ N.J. ___ (2014), we held that the Division is not permitted "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."
Nevertheless, we noted that a "[d]elay 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." Id. at 82 (citation and internal quotation marks omitted). We also reiterated the well-established proposition 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." Ibid. "The reality is that, no matter how fit or willing a proposed relative may be, a child will, in some instances, be better off remaining in a successful foster placement." Id. at 85.
The Division must, however, always be mindful of the Supreme Court's admonition that "[i]t is well-established that the period of time a child has spent in foster care is not determinative of whether parental rights to that child should be terminated" and that "in order to justify a termination of parental rights, something more than the delay presented here is required, and the element of simple expediency cannot become the goal sought." N.J. Div. of Youth & Family Servs. v. I.S., 2 02 N.J. 145, 169-71 (2010).
[W]e emphasize that we do not construe the Division's authority to reject a relative on "best interests" grounds . . . to relieve it of its responsibility under [N.J.S.A. 30:4C-12.1(a)] requiring it to conduct a fair investigation of such a relative who identifies himself or herself as a potential caretaker in a reasonably prompt manner. The Division cannot ignore such a relative's timely application out of bureaucratic inertia, or consider that application based upon an arbitrary, preordained preference for the foster placement. The Division must perform a reasonable investigation of such relatives that is fair, but also sensitive to the passage of time and the child's critical need for finality and permanency.
If, hypothetically, the Division has been lax or capricious in its assessment of such timely-presented alternative caretakers, it bears the litigation risk that a Family Part judge will conclude, under N.J.S.A. 30:4C-15.1(a)(3), that it has failed to prove by clear and convincing evidence that "alternatives to termination of parental rights" have been appropriately considered. In the present case, however, we discern no such abuse of the Division's investigative or decision-making authority.
[Id. at 87 (citation omitted).]
Richard argues that the Division was deliberately, or at a minimum unreasonably, dilatory in pursuing its investigation of Mary as a placement option. Even if, as Richard argues, the Division was not required to perform its evaluation of Mary through the interstate compact, the decision to do so was neither indicative of bad faith nor unreasonable. There were delays in South Carolina, including its mistaken closing of the investigation and delays apparently resulting from staff shortages. The trial judge carefully considered the arguments raised by Richard and rejected his contentions. We conclude that his findings in that regard are amply supported in the record.
In contrast to N.J. Div. of Youth & Family Servs. v. K.F., 353 N.J. Super. 623 (App. Div. 2002), the trial judge in this case made no finding that the Division was acting duplicitously.
The Division's failure to notify Mary of her right to appeal the rule-out letter was cured by the fact that the trial judge carefully considered its reasons for doing so, and we also review them on this appeal.
The facts of this case are not similar to those in New Jersey Division of Youth & Family Services v. K.L.W., 419 N.J. Super. 568 (App. Div. 2011), on which Richard relies. In that case, the Division failed to investigate grandparents who were caring for the child's siblings and proposed adoption by a foster family. In reversing, we held that, where "the Division fails to comply with its obligation [to identify and assess relatives], the judicial determinations that follow are made without information relevant to the best interests of the child." Id. at 581.
Here, the trial judge had all of the facts required for his determination, including the favorable report concerning Mary from South Carolina. The judge made his determination based on his careful assessment of Scott's best interests. And, as we held in K.L.W., the best interests standard is the appropriate basis for the trial judge's decision even when the Division has failed to comply with its duty to investigate a viable relative. 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").
In upholding the Division's decision not to pursue an identified surrender to or termination and adoption by Mary, the judge outlined an array of compelling reasons. There was undisputed expert testimony that Scott would experience significant and lasting harm if he were to be separated from his foster parents. In that regard, we note that Winston's evaluation from June 2012, when Scott was less than a year old, found a significant bond between Scott and his foster parents. The foster parents have already adopted three of Scott's siblings, with whom he has also established a bond. In addition, his maternal grandmother lives near the foster family and has been able to visit Scott.
In contrast, there was no significant bond with Mary, who only visited Scott once prior to the first trial and only three times during the entire pendency of the case. We have no reason to believe that Mary's inability to engage in regular visits with Scott was the result of disinterest on her part. It was more likely related to her obligation to care for the other children in her custody and the difficulties of travel from South Carolina to New Jersey under those circumstances. Nevertheless, the fact remains that she was not able to establish or maintain any sort of bond with Scott during the pendency of the litigation.
The record also reflects that Scott has special needs that the foster parents have been addressing. Although Mary has apparently also been caring for a special needs child, we find it not insignificant that she was unable to describe Scott's needs or articulate a specific plan for addressing them. The record strongly supports the judge's finding that termination of Richard's parental rights followed by adoption by his foster parents was, and remains, in Scott's best interests.
In summary, having carefully reviewed Richard's arguments on appeal in light of the record before us and the applicable law, including the requirement that there be proof by clear and convincing evidence, we conclude that Judge George E. Sabbath's decision terminating Richard's parental rights so that Scott can be adopted by his foster parents was based on ample credible evidence in the record and is consistent with the applicable law.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION