Opinion
DOCKET NO. A-4051-11T2
05-01-2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. N.M.S., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF N.A.S.-H., Minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Albert M. Afonso, Designated Counsel, on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Merav Lichtenstein, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Todd Wilson, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Simonelli and Koblitz.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-0166-11.
Joseph E. Krakora, Public Defender, attorney for appellant (Albert M. Afonso, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Merav Lichtenstein, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Todd Wilson, Designated Counsel, on the brief). PER CURIAM
Defendant N.M.S., the biological mother of N.A.S.-H. (Nathan), appeals from the termination of her parental rights to the child. On appeal, defendant contends that plaintiff New Jersey Division of Youth and Family Services (Division) failed to consider alternatives to termination of parental rights as required by prong three of N.J.S.A. 30:4C-15.1a. We disagree and affirm.
This name is fictitious.
Because defendant does not dispute that the Division satisfied prongs one, two and four of the best interests test, we focus on the evidence relating to prong three. Defendant became involved with the Division in January 2010, when she was fifteen years old and living with her cousin and guardian, T.S.The Division received information that T.S.'s husband was sexually abusing defendant since defendant was twelve years old, and T.S. was aware of the abuse and did not report it to legal authorities. T.S. admitted during the Division's investigation that defendant told her about the sexual abuse in August 2009, but she did not report it and sent defendant to South Carolina to live with relatives. In addition, defendant reported that she became pregnant, T.S. forced her to have an abortion, and T.S. physically abused her. The Division substantiated sexual abuse by T.S.'s husband and neglect by T.S. for failing to take steps to protect defendant. The Division removed defendant from T.S.'s care, and placed her into foster care. Following the removal, defendant refused to have any contact with or visit T.S.
Defendant was born in November 1994. Her parents are deceased. Her family had prior involvement with the Division in 2001 and 2003 for reasons not relevant to this appeal.
Nathan was born in October 2010. On October 22, 2010, the Division obtained custody of the child because neither defendant nor the child's biological father, N.A.H., could provide a safe and stable home for him. N.A.H. offered a paternal aunt, D.W., as a possible placement option for Nathan. Neither defendant nor N.A.H. offered any other relative resources at that time. The Division determined it could not place Nathan with D.W. because she lacked space in her home. The Division notified D.W. she had to obtain a larger apartment if she wanted Nathan placed in her care. D.W. did not contact the Division thereafter until October 2011, and made no effort to visit Nathan or establish a relationship with him.
N.A.H. died in June 2011.
The Division placed Nathan with defendant in a resource home; however, efforts to keep the two together failed because defendant did not comply with court orders or services. Because defendant and N.A.H. had provided no other placement options, on January 31, 2011, the Division placed Nathan with his current foster mother, who wants to adopt him. Thereafter, defendant failed to maintain contact with the Division or comply with services, only visited Nathan once in May 2011, and provided no alternative placement options.
On June 27, 2011, the Division filed a complaint for guardianship. Defendant failed to appear at court hearings and mediation, and did not contact the Division until November 2011, at which time she identified Nathan's paternal grandfather, R.H., who resided in Maryland, as a placement option. Although R.H. was fingerprinted, he never followed-up with the Division and made no effort to visit Nathan or establish a relationship with him.
After several unsuccessful attempts to contact R.H., the Division advised him in a December 12, 2011 letter that he would be ruled out as a resource for Nathan if he failed to contact the Division within ten days. Following R.H.'s failure to contact the Division, on January 10, 2012, the Division sent him a rule-out letter and advised him of his right to request a review. The Division also advised that termination of defendant's parental rights was possible and Nathan may be placed for adoption. R.H. did not contact the Division or request a review.
Defendant had also identified T.S. as a placement option. The Division contacted T.S., but ruled her out due to her prior involvement with the Division regarding defendant. The Division advised T.S. that she could request a review, and that termination of defendant's parental rights was possible and Nathan may be placed for adoption. T.S. did not contact the Division, request a review, or make any effort to visit Nathan or establish a relationship with him.
On February 9, 2012, Mark Singer, Ed.D., conducted a bonding evaluation between Nathan and his foster mother. Dr. Singer noted that Nathan, then almost fifteen months old, had been with his foster mother since the age of three months and viewed her as his psychological parent. He opined that if their relationship was severed, Nathan would likely suffer enduring harm, and there was no other consistent, significant parental figure in Nathan's life who could mitigate the harm.
Defendant was also scheduled for a bonding evaluation, but she failed to appear.
The trial judge terminated defendant's parental rights after finding that the Division satisfied all four prongs of N.J.S.A. 30:4C-15.1a by clear and convincing evidence. Regarding prong three, the judge concluded that the Division explored and exhausted all reasonable alternatives to termination. This appeal followed. On appeal, defendant argues there is no evidence the Division gave any "real consideration" to D.W., R.H. and T.S., and the Division favored the foster mother.
Our Supreme Court has established the standard of review in parental termination cases:
Our task as an appellate court is to determine whether the decision of the family court in terminating parental rights is supported by substantial and credible evidence on the record. We accord deference to factfindings of the family court because it has the superior ability to gauge the credibility of the witnesses who testify before it and because it possesses special expertise in matters related to the family. . . . We will not overturn a family court's factfindings unless they are so wide of the mark that our intervention is necessary to correct an injustice. It is not our place to second-guess or substitute our judgment for that of the family court, provided that the record contains substantial and credible evidence to support the decision to terminate parental rights.
[N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012) (internal quotation marks and citations omitted).]
"The focus of a termination-of-parental-rights hearing is the best interests of the child." Id. at 447. To justify termination of parental rights, the Division must establish by clear and convincing evidence that:
(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;These "four prongs are not 'discrete and separate,' but 'relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests.'" Ibid. (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 606-07 (2007)).
(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.
[Id. at 448 (quoting N.J.S.A. 30:4C-15.1a).]
"The third prong requires an evaluation of whether [the Division] 'made reasonable efforts to provide services to help the parent' remedy the circumstances that led to removal of the children from the home." Id. at 452 (quoting N.J.S.A. 30:4C-15.1a(3)). The emphasis on the third prong
is on the steps taken by [the Division] toward the goal of reunification. The diligence of [the Division's] efforts on behalf of a parent is not measured by whether those efforts were successful. Reasonable efforts may include consultation with the parent, developing a plan for reunification, providing services essential to the realization of the reunification plan, informing the family of the child's progress, and facilitating visitation. Experience tells us that even [the Division's] best efforts may not be sufficient to salvage a parental relationship.As part of the inquiry, "the court must consider the alternatives to termination of parental rights and whether the Division acted reasonably." N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 434-35 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002). "The reasonableness of the Division's efforts depends on the facts in each case." Id. at 435. The Division is not required to make every effort possible, but only reasonable efforts. N.J. Div. Of Youth & Family Servs. v. M.M., 189 N.J. 261, 281 (2007). The requirement is satisfied where the Division attempted to find relatives or friends to care for the child. In re Guardianship of K.H.O., 161 N.J. 337, 354 (1999). The Division complies with its statutory obligation when it identifies and assesses relatives known to it. N.J. Div. of Youth & Family Servs. v. K.L.W., 419 N.J. Super. 568, 581-82 (App. Div. 2011).
[Ibid. (internal citation and quotations marks omitted).]
We are satisfied there is substantial and credible evidence in the record that the Division complied with its statutory obligation to identify and assess relatives known to it. The Division contacted and assessed all of the relative resources known to it, disapproved them for valid reasons, and properly determined it was not in Nathan's best interest to be placed with them. Nathan had been with his foster mother for over a year by the time the guardianship trial began in February 2012. During that time, defendant made no effort whatsoever to reunify with Nathan, her relative resources took no steps to become involved in his life, and Nathan became securely bonded to his foster mother. The undisputed expert evidence confirmed that Nathan will suffer irreparable harm if removed from her, and there is no one that can mitigate that harm.
Affirmed
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION