Opinion
DOCKET NO. A-2507-13T3 DOCKET NO. A-2508-13T3 DOCKET NO. A-2509-13T3
12-26-2014
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. R.V.R, D.G., C.A.M., Defendants-Appellants, and A.W., Defendant. IN THE MATTER OF THE GUARDIANSHIP OF S.R., S.H.M.G. and A-B.N.G., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant R.V.R. (Gilbert G. Miller, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant D.G. (Deric Wu, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant C.A.M. (Elizabeth Burke, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Lindsay Wight, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for S.R., S.H.M.G. and A-B.N.G. (Lisa M. Black, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner, Koblitz and Haas. On appeal from Superior Court, Chancery Division, Family Part, Essex County, Docket No. FG-07-81-13. Joseph E. Krakora, Public Defender, attorney for appellant R.V.R. (Gilbert G. Miller, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant D.G. (Deric Wu, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant C.A.M. (Elizabeth Burke, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Lindsay Wight, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for S.R., S.H.M.G. and A-B.N.G. (Lisa M. Black, Designated Counsel, on the brief). PER CURIAM
In this consolidated opinion, we review the appeals of three parents from the January 17, 2014 order terminating their parental rights. Defendant D.G. (Debby) is the mother of all three children: S.R. (Sandra), born in 1999, whose father is defendant R.V.R. (Rich); S.M. (Susan), born in 2003, whose father is defendant C.A.M. (Craig) and A-B.N.G. (Andy), born in 2004, whose father is A.W. After a thorough review of the record, we affirm.
We use fictitious names for the parties to preserve their confidentiality while making the opinion easier to follow.
Debby and Rich are also the parents of R.R., Jr., a son, born in 2000, who lives at a residential facility and was not a party in this trial.
A default was entered against A.W., who did not participate in the litigation. His parental rights were terminated after trial. He does not appeal.
At the time of trial, the family had a fourteen-year history with the New Jersey Division of Child Protection and Permanency (Division). In 1999, shortly after Sandra's birth, the Division first became involved when it was contacted with an allegation that the baby slept on a dirty mattress on the floor in a "nasty" apartment where there were rats as well as "trash everywhere." Neglect was not substantiated, but services were nonetheless provided. The case was closed in November 2000.
Previously named the Division of Youth and Family Services (DYFS).
The following year, the Division received an allegation that the family had no heat or hot water. Neglect was again not substantiated, but once again services were provided and the case closed. In 2003, after Susan's birth, the Division was again called, this time by a "community agency" that reported, "Mom called . . . to say that she does not want her two older children. She has to leave the building because it is a senior citizens building." Services were again provided.
In 2005, approximately eight months after Andy's birth, an anonymous caller told the Division that Debby was seen using cocaine and marijuana with the children present. The caller stated that the house was "filthy," with garbage, dirty dishes, roaches and clothes all over the house. The Division investigated and reported that the apartment was filthy, but the children "did not appear to be at risk of immediate harm."
Later that same year, the Division was contacted by a community agency reporting that Rich had called to say that Debby abused her children and that he had witnessed her slamming her four-year-old son, R.R. Jr., on the floor. An investigation did not substantiate abuse. That same day, the Division received an additional referral from a family friend who said that Debby had left the children with him for three days and had not returned. The report was again deemed unfounded.
In 2006, Andy, then thirteen months old, was admitted to the hospital. The Division was contacted when it was learned that Debby had failed to keep two medical appointments for her son. Andy had only seen a doctor once since he was born. The allegation of medical neglect of Andy was substantiated.
The family was provided services including referrals for parenting skills, financial assistance, a home health aide, furniture, assessments and transportation. Due to the continuing risk to the children, they were removed in February 2006 and placed with a maternal cousin. Debby's visits to her children were "sporadic." In August 2006, the Division noted that Debby had not completed her parenting classes and had been discharged from the Final Stop therapeutic supervised visitation program because of her excessive absences.
In 2007, the children were removed from the cousin's home because of unsanitary living conditions and placed in two separate resource homes, where the children reported missing their siblings. Reunification with Debby was ordered to begin in February 2009 with a home health aide in place.
In February 2009, after her return home, Susan reported that she saw her parents fighting, and that her mother bit her father. The Division report states that the family has a history of domestic violence and that both parents had attended anger management classes in the past. On May 21, 2009, a urine screen requested by the Division revealed that both Debby and Rich tested positive for marijuana; Craig tested positive for marijuana, cocaine and morphine.
"Father" appears to be Rich and not her biological father, Craig.
In January 2010, R.R., Jr. reported that his mother was smoking marijuana in the house. Debby was ordered to attend domestic violence counseling and the Division was ordered to obtain transitional housing to relocate Debby and the children to a safer environment.
In January 2010, the Division received a referral stating that Rich had hit Debby in the face while in the presence of their children. The home health aide was also struck while trying to separate the parents. The referent stated that Debby was not letting the home aid into her home or paying her rent or utility bills. Rich was observed to be "under the influence." Rich was substantiated for child neglect.
The Division's contact sheet dated January 26, 2010 refers to Debby's "positive urine screen." On December 6, 2010, a home visit revealed that the there was no refrigerator or beds for the children.
Rich has been incarcerated five times for offenses including robbery, possession of heroin and a controlled dangerous substance (CDS) and attempted theft. He violated parole and was returned to prison. In June 2011, Rich was convicted of aggravated sexual assault and resisting arrest and sentenced to five years in prison with an 85% percent parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. He was also subject to the Megan's Law reporting requirements. N.J.S.A. 2C:7-1 to -11. The victim was a close friend of Debby's and the assault took place in Debby's home, following an evening of drinking.
In June 2011, the Division received an anonymous referral that stated that the children were seen walking around "with nowhere to go" and looked hungry and unwashed. It was reported that the family was homeless because "a padlock had been placed on the family's home" when they were evicted. When reached by telephone, Debby said that she and the children were living in Connecticut.
The following month, Debby did not appear in family court for a scheduled compliance review. The Division made attempts at home visits over the next several months, but was unsuccessful in finding either Debby or her children. In September 2011, the Division contacted the school district in Connecticut where Debby said her children attended: no school by the name given by Debby existed. Connecticut Children Services was unable to locate the family. Later that month, the Division requested that a hold be put on Debby's temporary assistance benefits until she and the children were located.
Debby contacted the Division concerning her suspended benefits on October 4, 2011. She would not give the Division her address, but stated that she was spending time in Pennsylvania. A month later, the caseworker spoke with Debby by telephone and was told that Debby was now residing in New Jersey and that her children were enrolled in school in Elizabeth and were living with Debby's mother. A Division investigation revealed that the children had not begun school that year, "were wearing dirty clothes and begging for food." Educational neglect was substantiated by the Division. The judge ordered the children's second removal, writing:
[T]he natural mother has a long history with DYFS including continuous litigation since January 2006[.] [A] warrant was issued for [Debby] in September 26, 2011, the children and [Debby] were located today and the children report that they have not been in school since the summer. [Debby] has ongoing housing issues, has been noncompliant with the orders of the court and the [c]ourt finds that she has not been honest to DYFS or the court. The fathers are currently incarcerated.
The warrant was issued because Debby had not appeared in court as required on several occasions, had been noncompliant with services and had failed to keep the Division informed of her and the children's whereabouts.
The children, including R.R., Jr., were placed together. R.R., Jr. was removed from the initial foster care placement in January 2012, and was ultimately placed in a residential treatment center where he remained at the time of trial.
Debby was ordered to receive counseling, random drug screening, visitation and parenting classes. In March 2012 the Division caseworker reported that Debby was noncompliant: she missed two counseling intakes, did not comply with drug testing, was terminated from Reunity House therapeutic visitation program and "actually went missing on the case."
In October 2012, Debby informed the Division that she had recently moved to Massachusetts. In a permanency order dated October 18, 2012, the court noted that Debby had not completed requisite services and that none of the natural fathers were available to plan for their children: Rich was incarcerated and Craig was recently released from prison and had not offered himself as a caretaker. As of December 2012, Debby was still "missing."
The Division unsuccessfully pursued several leads for placement of the children with extended family. Debby's brother was eliminated as a potential resource because he declined to be fingerprinted. Rich's sisters, Di. and De., were also eliminated as placement resources: Di. because she was ambivalent about her willingness to accept the children and failed to follow up on the prerequisite procedures, including failing to be fingerprinted; and De. who, despite repeated requests, never told the Division if she was willing to take the children. Craig's mother withdrew as a possible placement. Debby had suggested C., her stepsister who resided in Massachusetts, as a possible placement resource. However, C., who was only interested in taking two children, failed to complete the home study process through Massachusetts. Rule-out letters were subsequently sent to all of the siblings.
The foster parents with whom the three children resided wanted to adopt them, until the children visited their mother at the beginning of 2013. After the visit, the children told their foster parents that they wanted to live with their mother. On January 31, 2013, the school social worker told the Division that since Andy renewed visits with his mother, he had tried to stab himself with a pencil and appeared very anxious.
Debby was permitted weekly visits, but saw her children only twice in January. On February 12, 2013, she was terminated from therapeutic visits because of excessive absences. After that date, Debby did not visit her children or participate with services.
On June 20, 2013, drug screens were administered to each of the three defendants. Debby tested positive for marijuana, benzodiazepines and barbiturates. Craig was "unable to produce" at that time, but had recently tested positive for various drugs.
Prior to the first day of trial, Debby was arrested for aggravated assault and was held in jail on $50,000 bail. She was brought from the jail for trial. Before the third day of trial, Debby was released from jail and did not attend the last three days of the trial. Craig attended only three days of trial. Rich, who was serving a State prison sentence, was brought to court every trial day.
Dr. Frank Dyer, the Division expert psychologist who has been involved in child welfare cases for thirty-two years, noted in his testimony Debby's "history of neglecting her children, instances of abuse that appear in the Division's records, transporting the children out of state, [and] lying to the Division about their attending school." He stated that psychological testing indicated she was functionally illiterate. She tested at the level of an eight-year-old on the intelligence test. Psychological tests also indicated that Debby had a "significant visual motor problem, consistent with someone functioning significantly below average intellectually." Dyer concluded that Debby's "lack of basic literacy[,]" "problems with impulse control [and] judgment [as well as] overuse of denial and vulnerability to regression[]" meant that she
does not have the capacity to supply on a consistent basis the degree of structure, nurturance, the joint supervision, material comforts and other things that children need for an adequate environment in which to develop and grow the sense of security and with a sense that they are loved and valued.
All of which is conducive to healthy personality growth.
Dyer noted that the children and Debby had already had one failed reunification which was a predictor of a negative outcome for a second reunification. In his long experience working with families involved with the Division, he had never witnessed a successful second reunification. He opined that the children would experience a loss if Debby's parental rights were terminated, but that loss could be mitigated if the children were given appropriate services.
Dyer testified that Rich had a serious alcohol problem and a secondary problem with drugs. Dyer stated that Rich also had a "prominent antisocial dimension [that was] not likely to be significantly modified by any kind of counseling . . . ." Rich began exhibiting antisocial behavior when he stabbed a little girl in the eye with a pair of scissors in kindergarten. He had been placed in a residential treatment facility for years as a child. As an adult, he had been arrested for assaults, armed robbery and drug offenses and had fifteen felony convictions. Dyer found that Sandra's relationship with her father was "based on fantasy because [Rich] has not been realistically available to her because of his long periods of incarceration." Dyer stated that if the relationship were completely severed, however, Sandra "would suffer a very painful and probably somewhat disorganizing loss."
Dyer agreed that adoption is the "correct goal for these children." He testified, "I've seen cases in which older teenagers have successfully adjusted to adoptive homes, subsequent to termination of parental rights." Dyer stated that he thought keeping the three children together would be desirable, if possible.
Defense psychologist Dr. Gerard Figurelli testified on behalf of Rich about the psychological and bonding assessments he had performed. In contrast to Dyer, Figurelli stated that Rich could benefit from mental health counseling, substance abuse treatment, rehabilitation to reduce recidivism and parenting skills training. He noted that although Rich had received substance abuse treatment in the past, substance abuse was involved in the offending behavior for which he was now incarcerated.
Figurelli testified that Rich and Sandra had "a positive bond" that Sandra "benefits from and will continue to benefit from . . . ." He testified that the father-daughter relationship "occupies a significant and positive place in [Sandra's] psychological life[,]" and that severing that relationship would do more harm than good. Figurelli agreed with Dr. Dyer's assessment, however, that Rich was not in a position to parent in the foreseeable future.
Psychologist Dr. Leslie Williams testified on behalf of the Division about Craig's psychological evaluation. He explained that he did not perform a bonding evaluation because at the time of his examination in May 2013, Craig had only seen his nine-year-old daughter once in four years. Given the lack of contact and consistency, Williams believed no emotional bond would have formed. Williams chronicled Craig's lengthy criminal history, his ongoing substance abuse problems, and the psychiatric issues for which Craig had received treatment. Williams concluded that Craig "still has fairly significant psychiatric symptoms that would interfere with his ability to relate to others, let alone a dependent child."
Theresa Dawson, an adoption specialist, testified about the Division's adoption procedures. Dawson testified that the pool of families willing to adopt becomes larger after parental rights have been terminated because the Division can look beyond New Jersey for potential homes. Dawson noted that the children's first choice was to be with their mother. Their second choice was to remain together if they had to be adopted. She stated that it was more difficult to place three children together, but that there are families who want sibling groups. Dawson estimated that it would take "maybe fifteen months" to find an acceptable home for these children.
In an oral opinion, the judge found that the Division had proved by clear and convincing evidence the four prongs necessary to terminate the parental rights of all three parents. N.J.S.A. 30:4C-15.1(a).
I
Before discussing the issues raised by the parents on appeal, we briefly review the well-recognized criteria for terminating parental rights and our role on appeal. "[A] parent's right to raise a child and maintain a relationship with that child is constitutionally protected under the federal and state Constitutions." N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 434 (App. Div. 2009) (citations and internal quotation marks omitted). Those rights, however, "are not absolute, and 'must be balanced against the State's parens patriae responsibility to protect the welfare of children.'" N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 397 (2009) (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007)).
"The balance between parental rights and the State's interest in the welfare of children is achieved through the best interests of the child standard." In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). Pursuant to N.J.S.A. 30:4C-15.1(a), termination is not appropriate unless the Division satisfies each of the following four statutory factors by clear and convincing evidence:
(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;
(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from 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.
The four prongs are "not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." K.H.O., supra, 161 N.J. at 348.
The family court possesses special expertise in the field and thus appellate courts should accord deference to its factfinding. N.J. Div. of Youth & Family Services v. R.G., 217 N.J. 527, 553 (2014). The family court "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." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2006) (citation omitted). Our task is to determine only whether the family court's decision is supported by substantial and credible evidence. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 447 (2012).
Each of the three parents alleges that the Division failed to satisfy the statutory requirements necessary to terminate his or her parental rights and therefore the trial judge's order should be reversed. The law guardian for the minor children supports the termination of Craig's parental rights to Susan, but states that the Division failed to meet its burden as to Debby and Rich. Because the Division appropriately does not move to terminate one parent's rights when the other parent is fit, N.J. Div. of Youth and Family Servs. v. D.S.H., 425 N.J. Super. 228, 243 (App. Div. 2012), we discuss Debby's situation first. If Debby's parental rights should not have been terminated, then the fathers would have reason to argue that it would be harmful to the children to leave them with only one legal parent.
When children are of an age to communicate their wishes, the law guardian is required to advocate for the children's expressed legal position. See Div. of Youth & Family Servs. v. Robert M., 347 N.J. Super. 44, 70 (App. Div.)(holding that law guardians must advocate for the expressed wishes of their clients), certif. denied, 174 N.J. 39 (2002).
II
Dr. Dyer stated that all three children are emotionally attached to their mother. He observed that Sandra and Andy became "parentified" towards Debby, comforting her because of her sadness at their removal. Dyer opined, however, that the children would be unable to rely on Debby for nurturing and guidance in the future. In his report, Dyer wrote:
[Debby] has no concept of the impact that her failure to visit the children for approximately a quarter of a year has had on them. She was successful in engaging the children's sympathies by crying, rationalizing her absence as a necessary getaway to clear her mind and promising the children that she would never leave again and that she would fight to get them back. In actuality, [Debby's] conduct has simply had the effect of tantalizing these children with the prospect of a return to her and then repeatedly disappointing them, sending them the overt message that she is a caring and committed mother who left them in order to better herself for their good, but additionally sending the covert message of rejection.
Because all three children wished to be returned to Debby, Dyer opined that if her rights were terminated, "it would be important for them to have some kind of therapy or grief counseling in order to cope with that loss." Dyer testified that although therapy could mitigate the impact, it would not entirely overcome the loss.
Dyer opined that, on the other hand, another failed reunification would be a "devastating blow" to the children. Dyer also indicated that no services had "a realistic promise of bringing [Debby] to the point of adequate parenting capacity." He testified that reunification was not "a realistic possibility that has a likelihood of success attached to it."
Debby argues that the Division has not satisfied the fourth prong of N.J.S.A. 30:4C-15.1(a) because "in the absence of an adoptive home and the clear harm that severance of the family's bond would cause the children, termination of parental rights would do more harm than good." The Division does not always have an adoptive home prior to the termination of parental rights. See N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 611 (1986) ("[T]here will be circumstances when the termination of parental rights must precede the permanency plan."). As Dawson, the Division adoption specialist, testified, the termination of parental rights opens up more avenues to seek an adoptive home.
Both Debby and the law guardian cite to E.P., supra, 196 N.J. 88, in support of their position. There, the trial judge terminated the parental rights of a drug-addicted mother with psychological problems and an "unstable lifestyle" to her thirteen-year-old emotionally fragile daughter. Id. at 92. At the time of the trial judge's ruling, mother and child had not lived together for seven years. By the time our Supreme Court reviewed the case, the child had been in twelve foster homes in which she had been abused on more than one occasion, and had threatened and attempted suicide in reaction to previous attempts to sever the mother's parental rights. The Court noted that while the child was in foster care, the mother had "visited [the child] as often as the court permitted . . . [,]" and had made attempts to deal with her drug problem. Id. at 93-94. She ended her "nomadic existence" and successfully completed parenting skill classes and secured a job. Id. at 94. There was "no prospect of the daughter's adoption on the horizon." Id. at 92. In remanding the case, the Court stated, "In the unique circumstance of this case, a parent-child relationship that continued to provide emotional sustenance to the child should not have been severed based on the unlikely promise of a permanent adoptive home." Id. at 114.
Similar to the situation in E.P., the children and Debby have a bond. Unlike the mother in E.P., however, Debby has not visited her children whenever possible and has not completed recommended services. Because Debby provided neither proof of any income nor a lease, there is no evidence of her employment or that she has a suitable home for the children. There is nothing in the record to suggest that these children are unable to form a new bond, as evidenced by two long-term placements in two different foster homes. We affirm the trial judge's determination that the termination of Debby's parental rights would not do more harm than good for the three children. The judge relied on substantial and credible evidence presented by the Division, including Debby's lengthy history of non-compliance with services and failure to provide a safe and secure environment for her children, as well as Dr. Dyer's thoughtful and comprehensive expert opinion.
III
Rich, Sandra's father, argues that the trial judge did not make sufficient findings as to all four prongs, while the law guardian argues that the Division did not prove the fourth prong, that termination of Rich's parental rights will not do more harm than good.
"When the condition or behavior of a parent causes a risk of harm, such as impermanence of the child's home and living conditions, and the parent is unwilling or incapable of obtaining appropriate treatment for that condition, the first subpart of the statute has been proven." N.J. Div. of Youth & Family Services v. H.R., 431 N.J. Super. 212, 223-24 (App. Div. 2013). N.J.S.A. 30:4C-15.1(a)(1). Similarly, prong two is satisfied when a parent is unable or unwilling to provide a safe and stable home for the child, N.J.S.A. 30:4C-15.1(a)(2). See K.H.O., supra, 161 N.J. at 348 (stating that the four prongs are not discrete, but overlap with each other).
The trial judge stated that Rich's current conviction carries a Megan's Law reporting provision that will make it difficult for him to find employment. Pursuant to statute, Rich also could not have visitation or custody of Sandra without a judicial finding by clear and convincing evidence that it is in the best interests of Sandra. N.J.S.A. 9:2-4.1. The judge also noted that Rich "abandoned these children by his repeated criminal actions, his repeated incarcerations, [and] his failure to show any stability for this child." Dyer noted that Rich has been absent for significant portions of Sandra's life. Moreover, Rich was involved with drug abuse and domestic violence when he was part of Sandra's day-to-day life. Dyer found Rich to have a "prominent antisocial dimension" that was not likely to respond to treatment. Finally, the judge noted that upon his release, Rich does not plan to provide a home for Sandra. Even Rich's expert, Figurelli, whom the judge did not find as credible as Dyer, agreed with Dyer that Rich was not in a position to parent in the foreseeable future.
Rich argues that "incarceration alone—without particularized evidence of how a parent's incarceration affects each prong . . . is an insufficient basis for terminating parental rights." R.G., supra, 217 N.J. at 556. However, "'[i]ncarceration is . . . probative of whether the parent is incapable of properly caring for . . . or has abandoned the child.'" Id. at 554-55 (quoting In re Adoption of Children by L.A.S., 134 N.J. 127, 136 (1993)). In L.A.S., supra, 134 N.J.at 143, our Supreme Court found that incarceration is a relevant factor to consider in termination cases, but "whether parental rights should be terminated must be based on a broad inquiry into all the circumstances bearing on incarceration and criminality, and must include an assessment of their significance in relation to abandonment or parental unfitness." Factors for a court to consider include a parent's performance before incarceration, the extent to which the children were able to rely on him as a parent, and the effort taken to remain in contact with his children. Id. at 143-44. See R.G., supra, 217 N.J. at 556.
When Rich was released from incarceration in the past, he reoffended and has been incarcerated for multiple protracted periods. As noted, his behavior when with Sandra included exposure to addiction and domestic violence.
With regard to the third prong, N.J.S.A. 30:4C-15.1(a)(3), Rich argues that the Division failed to provide him services that would have assisted in his transition to custodial parenting when it failed to assist his sister, Di., "in establishing herself as a viable custodian to his children." Rich also argues that the Division failed to provide evidence that it had given the foster parents sufficient information concerning kinship legal guardianship (KLG). N.J.S.A. 3B:12A-1 to -7.
Di. was ruled out as a caretaker for failure to cooperate with the Division approval procedures and her expressed ambivalence about taking care of the children.
At trial, none of the parents expressed any doubt about the Division's explanation of KLG to the foster parents, nor did defendants question any of the Division workers about it. Thus, we do not consider that issue. An appellate court "'will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation [was] available unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.'" State v. Robinson, 200 N.J. 1, 20 (2009) (quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (citation and internal quotation marks omitted)).
Dyer's expert psychological testimony as well as Rich's behavior support the judge's finding by clear and convincing evidence that termination of Rich's parental rights would not do more harm than good to Sandra. N.J.S.A. 30:4C-15.1(a)(4). The trial judge based his decision to terminate Rich's parental rights on substantial and credible evidence.
IV
Susan's father, Craig, also appeals. The law guardian does not object to the termination of Craig's parental rights. Although Craig informed Williams during the second evaluation that he had been seen by a defense bonding expert the prior day, no such expert testified on behalf of the defense. Williams opined that Craig had had insufficient contact with Susan for formation of an emotional bond.
Craig was incarcerated from 2009 to 2012 and had no contact with Susan since then with the exception of two visits in 2013. He argues on appeal that he was not provided visits by the Division. Craig was permitted visits with Susan, but he had to comply with a drug screen before each visit. The caseworker testified that Craig did not comply with the drug screening process.
Craig has an extremely lengthy criminal record and continued to use illegal drugs even while he was enrolled in an out-patient drug program. The Division referred Craig to three in-patient programs. Because he had such a large amount of drugs in his system, Craig was not admitted to any of them. Craig completely failed to take advantage of any of the drug rehabilitation services offered to him by the Division. As the caseworker noted in July 2013, despite services, Craig was still actively using drugs and did not have a stable residence or employment. Craig's argument that the Division failed to present sufficient credible and substantial evidence to prove all four prongs necessary for the termination of his parental rights is without sufficient merit to require further discussion in light of the ways Craig has failed to protect Susan from harm or provide for her wellbeing as delineated above. R. 2:11-3(1)(e)(E).
As the trial judge acknowledged, the termination of defendants' parental rights may result in "some harm" to the children, but "in the long term, it's the only way that they can possibly reach . . . [the] stability and permanency [] that they need and desire." Sadly, although these children are emotionally bonded to their mother, she has proven incapable of taking care of them. Based on her experience, a Division worker testified that there is a good chance left for the three children to remain together in an adoptive home. We agree with the trial judge that the children are entitled to that opportunity.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION