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New Jersey Division of Youth and Family Services v. P.P.

July 27, 2004

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-APPELLANT,
v.
P.P. AND S.P., DEFENDANTS-RESPONDENTS.
IN THE MATTER OF THE GUARDIANSHIP OF J.P. AND B.P., MINORS-RESPONDENTS.



On certification to the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

In this consolidated appeal, the Court reviews an Appellate Division reversal of a trial court order terminating the parental rights of a mother, P.P., and a father, S.P., as to their two minor daughters, J.P. and B.P. The Court further considers the applicability of kinship legal guardianship in a termination proceeding.

Both P.P. and S.P. have extensive histories of chronic substance abuse dating as far back as their pre-adolescent years. On February 9, 1999, P.P. gave birth to J.P. When she was born, J.P. tested positive for heroin, and her mother, P.P. tested positive for cocaine and opiates. Following J.P.'s birth, P.P. voluntarily placed her in foster care through the Division of Youth and Family Services (DYFS) and entered an in-patient drug treatment program. As a result of her progress in that program, J.P. was placed in P.P.'s custody in April 1999. However, in July 1999, P.P. relapsed and subsequently left the program without permission.

P.P. and her daughter moved in with J.P.'s paternal grandmother, E.P. On July 7, 2000, P.P. informed a DYFS caseworker that she was living with the father of the child, S.P., and with J.P. at E.P.'s home. P.P. was then five months pregnant and attending a methadone maintenance program. As a result, when her second daughter, B.P., was born on September 23, 2000, she tested positive for methadone and exhibited drug withdrawal and feeding difficulties. P.P. admitted to having used heroin two days before the birth of her child.

On October 4, 2000, because of both parents' continued drug use, DYFS filed an Order to Show Cause for Custody, Care and Supervision against the mother and father, seeking legal custody of their two daughters, J.P. (who was then 16 months old) and B.P. (who was just over one week old). J.P. was placed in the physical custody of her paternal grandmother. On her release from the hospital, B.P. was initially placed in foster care and shortly thereafter moved to the physical custody of her maternal grandmother, M.B. Both children currently reside with their respective grandmothers, who, at the time of the termination hearing, indicated a desire to adopt them.

Following the children's placement, DYFS attempted to provide rehabilitation opportunities for the parents with a goal toward reunification with their children. However, despite several recommendations and referrals to in-patient drug treatment programs, neither of the parents obtained treatment. In February 2001, parental visitation was suspended and the parents were ordered to participate in further psychological and psychiatric evaluations, to be followed by long-term, in-patient substance abuse treatment.

On October 25, 2001, about a year after J.P. and B.P. were placed in the care of their grandparents, DYFS filed a Complaint for Guardianship against P.P. and S.P., seeking termination of their parental rights, predicated on their abuse and neglect and on their extensive drug histories. However, only a few weeks before DYFS filed that complaint, the parents had finally entered long-term, in-patient substance abuse treatment programs. Thus, on the basis of positive progress reports, the court reinstated visitation. At the time of trial in August 2002, both parents remained in treatment, with P.P. requiring at least ten months, and S.P. requiring at least six months, until completion.

During the trial, DYFS' medical expert, Dr. Frank Dyer, testified that on the basis of his evaluations of both parents and bonding evaluations of both the parents and their children, and the children and their respective caretakers, neither P.P. nor S.P. would be able effectively to parent the children in the foreseeable future. Furthermore, in respect of bonding, Dr. Dyer concluded that the children were profoundly attached to their respective grandmothers, despite positive interaction with their parents, and that removal of either child would cause severe and enduring psychological harm. He ultimately recommended that the paternal grandmother adopt J.P. and that the maternal grandmother adopt B.P.

Although the expert who testified in S.P.'s behalf indicated that S.P. was making progress toward completion of his program, he did not believe that he was capable of providing a safe and stable home for his children at that time. Furthermore, he acknowledged that even if S.P. eventually were able to care for his children, their attachment to their respective caretakers would have to be reassessed before reunification could be considered. No expert testified in P.P.'s behalf.

Despite the parents' progress, DYFS pressed for termination of parental rights and adoption by the paternal and maternal grandparents in accordance with Dr. Dyer's recommendation. At the close of trial on August 6, 2002, the court rendered an oral decision terminating parental rights "on the grounds of the best interest of the child," under the standards set forth in N.J.S.A. 30:4C-15.1a(1) through (4). The court found that DYFS had satisfied its burden to demonstrate that the parents were unable to provide a safe and stable home at that time and in the foreseeable future, and that separating them from their respective caregivers would cause severe and enduring harm. Finally, the court held that kinship legal guardianship was not an appropriate alternative to adoption, since adoption would provide the children with the most secure, permanent relationship. The court entered an order granting guardianship to DYFS.

On appeal, P.P. claimed that DYFS had failed to meet its burden for termination of parental rights. She claimed that she had made substantial progress in overcoming her addiction, and that the trial court erred in refusing to consider kinship legal guardianship, as authorized by N.J.S.A. 3B:12A-1, as an appropriate alternative to severing the parental relationship. S.P. asserted that DYFS had failed to support the parent-child bond, and also had failed to sustain its burden of proving that termination of parental rights would be in the best interests of his children.

The Appellate Division determined that DYFS had not presented clear and convincing evidence justifying termination of parental rights, and reversed the trial court, remanding the matter for further proceedings. The court held that DYFS had failed to fully consider alternatives to termination of parental rights, especially kinship legal guardianship. After noting that the parents were making substantial progress in their rehabilitation efforts; that they continued to desire reunification with their children; that they had a successful visitation history and a continuing affectionate relationship with the children; that there had been no interruption in the relative placements; and finally that there was a need to preserve the sibling relationship, the panel rejected the lower court's finding that the parents were unable to eliminate the harm facing the children or that termination of parental rights would not do more harm than good. Thus, the panel remanded the matter for further proceedings, to include a current evaluation of the parents and a comparative bonding evaluation of the children. Furthermore, the panel required consideration of the Kinship Guardianship Act as an alternative to termination if present fitness were not demonstrated on remand.

The Supreme Court granted certification to consider the standards for termination under N.J.S.A. 30:4C-15.1a in light of the placement option provided by the Kinship Guardianship Act, and because of a split in the Appellate Division over the applicability of kinship legal guardianship in a termination proceeding.

HELD: Based on the information available at the time of this parental termination hearing, the trial court's decision that termination of parental rights was in the best interests of the children was amply supported, and the trial court further properly concluded that because grandparent adoption was feasible for both children, kinship legal guardianship was not available; however, in light of new information that may bear on the best interests of the children, the matter is remanded for further evaluation of the parents and consideration of any change in respect of the grandparents' wishes regarding adoption of the children.

1. The grounds for termination of parental rights are codified in N.J.S.A. 30:4C-15.1a, and are designed to balance parental rights and the State's parens patriae responsibility to protect the welfare of children. Under this "best interests of the child" standard, parental rights may be terminated on a showing by clear and convincing evidence that: (1) the child's safety, health, or development have been or will be endangered by the parental relationship; (2) the parent is unwilling or unable to eliminate the harm facing the child or is unwilling or unable to provide a safe and stable home and the delay of permanent placement will add to the harm; (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. (pp. 12-15)

2. When adoption is neither feasible nor likely, particularly where the caregiver's own child or sibling is the parent, kinship legal guardianship, an alternative permanent legal arrangement, is available for children and their caregivers. (pp. 15-18)

3. Although the standards for the appointment of a kinship legal guardian echo the best interests standards for termination of parental rights found at N.J.S.A. 30:4C-15.1, a kinship legal guardian may only be appointed when adoption of the child is neither feasible nor likely. The provision of N.J.S.A. 30:4C-15.3 that gives DYFS the discretion not to seek termination of parental rights (if a child is being cared for by a relative and a permanent plan for the child can be achieved without termination) applies to those cases in which DYFS determines that adoption is not feasible. (pp. 17-21)

4. The evidence amply supports the trial court's decision that termination of parental rights is in the best interests of J.P. and B.P. pursuant to N.J.S.A. 30:4C-15.1a. (pp. 22-23)

5. The trial court correctly concluded that because grandparent adoption was feasible for both children, kinship legal guardianship was not available. When the permanency provided by adoption is available, kinship legal guardianship cannot be used as a defense to termination of parental rights under N.J.S.A. 30:4C-15.1a(3). (p. 24)

6. On the facts developed during trial, the trial court properly terminated the parental rights of P.P. and S.P. However, in light of new information indicating that a unique relationship has developed between J.P. and her biological parents such that adoption may not serve her best interests, and information indicating that E.P., who has fostered that relationship, has been wavering in her adoption commitment, the Court is constrained to rule substantially as has the Appellate Division, and to remand for further evaluation of the mother and father and consideration of any change in respect of the grandparents' wishes vis-à-vis adoption. If P.P. and S.P. are not fit now to parent their children, the trial court should not consider kinship legal guardianship unless either (or both) of the grandparents decline to adopt. (pp. 25-26)

Judgment of the Appellate Division is AFFIRMED AS MODIFIED and the matter is REMANDED for further proceedings consistent with this opinion.

JUSTICE WALLACE has filed a separate opinion, CONCURRING IN PART AND DISSENTING IN PART, in which JUSTICE VERNIERO joins. Justice Wallace believes that DYFS did not establish by clear and convincing evidence, that it sufficiently considered alternatives to termination of parental rights, noting that N.J.S.A. 30:4C-15.3a expressly gives DYFS discretion not to seek termination of parental rights if the child is being cared for by a relative and a permanent plan for the child can be achieved without termination. However, because the majority recognized that changed circumstances required further evaluation of the mother and father and consideration of any change in respect of the grandparents' adoption wishes, Justice Wallace concurs in the result reached.

JUSTICES LaVECCHIA, ZAZZALI, and ALBIN join in CHIEF JUSTICE PORITZ's opinion. JUSTICE WALLACE has filed a separate opinion concurring in part and dissenting in part, in which JUSTICE VERNIERO joins. JUSTICE LONG did not participate.

The opinion of the court was delivered by: Chief Justice Poritz

Argued February 3, 2004

In this consolidated appeal the Appellate Division has reversed an August 8, 2002, trial court order terminating the parental rights of a mother, P.P., and father, S.P., as to their two minor daughters. The children, J.P. and B.P., had been cared for in separate households by their paternal and maternal grandmothers, E.P. and M.B., who wished to adopt them. The Appellate Division remanded the matter for a "current evaluation of the mother and father and a comparative bonding evaluation of the children." The panel also required consideration of the Kinship Guardianship Act, N.J.S.A. 3B:12A-1 to -7 (Kinship Act or Act), as an alternative to termination should the trial court then determine that neither P.P. nor S.P. is able to parent the children. We now affirm and modify the judgment of the Appellate Division.

I.

When she was born on February 9, 1999, J.P. tested positive for heroin and her mother tested positive for cocaine and opiates. The child's father was incarcerated for a probation violation at the time of her birth. It is undisputed that both the mother and father have extensive histories of chronic substance abuse dating as far back as their pre-adolescent years. Following J.P.'s birth, P.P. voluntarily placed her in foster care through the Division of Youth and Family Services (DYFS) and entered an in-patient drug treatment program in Paterson, New Jersey. As a result of P.P.'s progress in the program, J.P. was placed in her mother's custody in April 1999. In July 1999, however, P.P. relapsed and subsequently left the program without permission in August 1999.

P.P. and her daughter moved in with J.P.'s paternal grandmother, E.P. Almost a year later, on July 7, 2000, P.P. informed a DYFS caseworker that she was living with S.P. and J.P. at E.P.'s home. She was then five months pregnant and attending a methadone maintenance program. As a result, when her second daughter B.P. was born on September 23, 2000, B.P. tested positive for methadone and exhibited drug withdrawal and feeding difficulties. P.P. admitted to having used heroin two days before the birth of her child.

Because of both parents' continued drug use, on October 4, 2000, DYFS filed an Order to Show Cause for Custody, Care and Supervision against the mother and father, seeking legal custody of their two daughters who were then 16 months (J.P.) and just over one week old (B.P.). J.P. was placed in the physical custody of her paternal grandmother, whereas, on her release from the hospital, B.P. was initially in foster care and shortly thereafter moved to the physical custody of her maternal grandmother. Both children currently reside with their respective grandmothers, E.P. and M.B.*fn1, who, at the time of the termination hearing indicated a desire to adopt them.

Following the children's placement and pursuant to court order, DYFS attempted to provide rehabilitation opportunities for the parents with a goal toward reunification with their children. Drug and alcohol assessments carried out on October 24, 2000, led to recommendations that they both enter in-patient drug treatment programs. Despite several referrals, however, neither P.P. nor S.P. obtained treatment. Months after the assessments, on April 26, 2001, P.P. called DYFS to inform the caseworker that she and S.P. were planning to enroll in a detoxification program for a week and then an in-patient program for six months. Subsequent investigation revealed that P.P. and S.P. failed to attend either program.

The Division referred the parents to Antonio Burr, Ph.D., for psychological evaluations. After evaluating P.P. on January 1, 2001, Dr. Burr reported that she had a substantial history of substance abuse, that she had attended various drug treatment programs without success, and that she was using heroin at the time of the evaluation. Absent proper medication and psychotherapy, Dr. Burr's concluded that P.P. would "remain at very high risk of continued heroin use, and will not be a good candidate to parent any of her children in the foreseeable future." S.P. never completed the evaluation. In February 2001, both parents admitted to the court that they would test positive for heroin. As a ...


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