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New Jersey Division of Youth and Family Services v. F.H.


August 23, 2007


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FN-05-42-03D.

Per curiam.



Submitted August 14, 2007

Before Judges Sabatino and Baxter.

F.H. is the maternal grandfather of D.H. (David),*fn1 who was nearly eight years old at the time this litigation concluded. David had been living with his grandfather ever since he was six months old. F.H. appeals from a June 21, 2006 order terminating the protective services litigation filed by the Division of Youth and Family Services (DYFS); permitting David to remain in the legal and physical custody of DYFS; and approving DYFS's plan to proceed with termination of the parental rights of David's mother, H.H.

On appeal, F.H. argues that the trial court erred by approving a permanency plan for David*fn2 that eliminated him as a suitable caregiver, thereby permitting DYFS to proceed with its plan to seek guardianship of David and ultimately place him for adoption, which would in all likelihood result in the severing of F.H.'s ties with his grandson. F.H. further argues that the court incorrectly concluded that DYFS had made "reasonable efforts" to prevent the need for removing David from his home, as required by N.J.S.A. 30:4C-11.1(b). We have thoroughly reviewed the record, disagree with the arguments raised by F.H., and affirm.


Early in 1999, David began living with his grandfather F.H. and his grandmother P.H. David's mother, who had a serious substance abuse problem, was not actively involved in raising him and was living in Alabama at the time. DYFS began providing services to F.H. and P.H. in 2002 after DYFS received a referral alleging that the grandmother had psychiatric problems and that the grandfather was taking methadone due to an opiate addiction caused by neck and back injuries. During a routine follow-up visit, the DYFS worker concluded that neither F.H. nor P.H. was able to control David's aggressive tendencies, and she referred the family to Family Preservation Services for in-home services and to the Center for Family Services (CFS) for substance abuse counseling.

On November 21, 2002, DYFS received a report from CFS that both F.H. and P.H. were failing to cooperate with drug treatment services. This, combined with a drug counselor's report that she was concerned about the grandmother's abuse of prescription medication, caused DYFS to file a complaint seeking care and supervision of David on December 11, 2002. On January 2, 2003, during a hearing held on the return date of the order to show cause, Judge Kyran Connor ordered that DYFS continue to provide care and supervision of David, and he approved DYFS's plan to continue the grandparents' custody of David, on condition that they cooperated with substance abuse evaluation and treatment and provided random urine screens. The judge also ordered domestic violence assessments because of P.H.'s prior allegation of domestic violence against her by F.H. The order also restrained P.H. from having any unsupervised contact with David,*fn3

and she was ordered to comply with all psychiatric and mental health services that had been recommended after a recent psychiatric hospitalization. At the conclusion of that hearing, the court directed both grandparents to submit to urine drug screens, but they refused to cooperate.

Between the January 2, 2003 hearing on the order to show cause and the June 21, 2006 order from which F.H. appeals, Judge Connor conducted twenty-one hearings, which included three fact-finding proceedings, three removal hearings, ten compliance reviews, three show cause hearings and two permanency hearings.

We will not burden the record with a description of each of those proceedings,*fn4 but will instead summarize the salient portions of the record.

At a fact-finding hearing on May 14, 2003, F.H. stipulated that he "has had a substance abuse problem, i.e. pain medications and marijuana . . . [that] exposed [David] to a risk of harm." The court entered a judgment of abuse and neglect against F.H. pursuant to N.J.S.A. 9:6-8.21c(4)(b).

At the time of the compliance review hearing on March 24, 2004, F.H. did not appear because he was incarcerated in Alabama on outstanding warrants. Two months later, with F.H. still incarcerated in Alabama, Judge Connor granted physical custody of David to the grandmother and continued DYFS's care and supervision of David.

F.H. remained incarcerated in Alabama at the time of the July and September 2004 compliance review hearings, causing the court to continue the grandmother's physical custody of David and maintain DYFS's care and supervision of him. On November 18, 2004, Judge Connor terminated F.H. from the protective services litigation because he was still incarcerated in Alabama.

On February 7, 2005, DYFS was notified by the grandmother's substance abuse counselor that she had had two recent positive urine drug screens for cocaine, followed by a third positive test for cocaine a week later. As a result, DYFS removed David from his grandmother's custody on February 14, 2005. Two days later, Judge Connor affirmed David's removal from his grandmother's home and granted DYFS custody, care and supervision of him. At the time of this February 16, 2005 hearing, F.H. was still incarcerated in Alabama.

Less than a week later, F.H. was released from prison in Alabama and returned home. He reported to the DYFS caseworker that he had been incarcerated because he violated his parole conditions by having Oxycontin in his possession without a valid prescription. F.H. asked DYFS what he needed to do in order to regain custody of David, and he was instructed to attend a substance abuse evaluation and successfully complete any recommended treatment.

When F.H. appeared at the next compliance hearing on March 3, 2005, the court reinstated him as a defendant in the protective services litigation. The judge did not, however, return David to his grandparents' home, but instead ordered F.H. to undergo psychological and substance abuse evaluations, complete any recommended treatment and continue to submit to random urine screens.

Over the next several months, F.H. only intermittently attended the individual therapy and anger management counseling sessions arranged and paid for by DYFS. DYFS's concern about F.H.'s abuse of prescription medication intensified on July 1, 2005, when a caseworker visited the home and observed F.H. to be exceptionally drowsy and in possession of numerous bottles of pain medication and one bottle of an anti-depressant.

Six weeks later, by the time of the August 25, 2005 compliance review hearing, DYFS had regained sufficient confidence in F.H.'s fitness as a caregiver to recommend to the court that the permanency plan should include reunifying David with F.H., combined with a concurrent termination of the parental rights of David's mother. Judge Connor ruled that it was appropriate to begin the reunification process with F.H. because he had complied with the services offered by DYFS, and his mental health counselor expressed an opinion supportive of that reunification plan. On August 25, 2005, DYFS returned David to the custody of F.H., but the court reminded him that his wife, P.H., who had by then relapsed, was restrained from entering the home.

Unfortunately, F.H. was not able to maintain appropriate limits on his use of pain killers. On December 6, 2005, during a routine visit, a DYFS worker observed F.H. to be confused, and when F.H. sat down at a table, he immediately fell asleep. Although F.H. awakened, he fell asleep again after only fifteen minutes of conversation and began to snore. The next day, F.H.'s therapist reported to DYFS that when she spoke to him, F.H. sounded high or inebriated and refused her request to schedule a counseling session. Eight days later, on December 15, 2005, a DYFS worker found David outside playing unsupervised in the rain. A week later, F.H. conceded that he had smoked marijuana, and on January 10, 2006 he contacted the DYFS worker and admitted that he had used heroin.

At the January 25, 2006 compliance review hearing, F.H. was not present. The court granted DYFS's request to remove David from the custody of F.H. because F.H. had been testing positive for drugs and David had missed fifteen days of school since he was returned to F.H.'s custody on August 25, 2005. After considering that evidence, Judge Connor granted DYFS's request to remove David from the custody of F.H. and place him under its custody, care and supervision. David has continuously resided in a foster home since that time. As soon as DYFS removed David from the home, P.H., who had left the home months earlier because of her continuing problems with narcotics, immediately returned.

A permanency hearing was held on April 12, 2006, at which time DYFS announced its intention to institute a guardianship action terminating the parental rights of David's mother. At the same time, DYFS urged the court to find that F.H. was no longer a suitable caregiver for David because of his two positive urine drug screens and his subsequent failure over a three-month period to provide further urine drug screens. The court accepted the reports submitted by DYFS and on April 12, 2006, Judge Connor found that:

(1) The proposed plan of termination of parental rights is appropriate and acceptable.


It is not and will not be safe to return the children home in the foreseeable future because H.H. . . . is currently incarcerated, but prior to her incarceration she failed to participate in services, failed to stay in contact with the Division or the Court, and failed to attend visits with her children, further she reported using illegal substances as recently as 3/14/06; P.H. was positive for illegal substances on 8/5/05, 8/16/05, 8/23/05, 8/30/05, 9/02/05, 9/14/05, 9/26/05, and 10/4/05 . . . . [David] was removed from F.H.'s care in January 2006, after F.H. tested positive for multiple illegal substances on 12/13/05 and 1/10/06, F.H. is no longer a placement option although he currently indicates a willingness to engage in services, he also failed to provide a urine screen despite numerous requests that he do so, until 3/30/06.


The Division has provided reasonable efforts to finalize the permanent plan, including reunification where appropriate, including the following: providing substance abuse treatment, random urine screens, counseling, supervised visits, transportation to visits and urine screens, attempted reunification with the maternal grandfather, F.H., psychological evaluations, and psychiatric evaluations/treatment.


Termination of Parental Rights followed by Adoption is an appropriate plan for essentially the same reasons which were enunciated in (2), supra.

F.H. made a lengthy statement during the April 12, 2006 permanency hearing in which he implored the trial court not to take his grandson away from him. He argued that he only resorted to the use of narcotics in December 2005 and January 2006 because he was depressed and overwhelmed after his wife P.H. left the home due to her own problems with narcotics. He further explained that he had been faithfully seeing the substance abuse counselor and promised to remain clean in the future and provide a safe and healthy environment for the rearing of his grandson.

Judge Connor responded, explaining that he had "no doubt that if [F.H.] could go back and do things over, he would catch himself before he fell as he did, in December and January, when [David] ended up being removed from his custody." The judge commented that he was "far less than optimistic" that there could ever be any "permanent solution" to the "problems that [David] faces . . . in the grandparents' home." Judge Connor characterized F.H. as "the last best hope," but observed that, nonetheless, F.H. "did not find it within himself to summon the power to resist . . . the final blow that says [David has] to move on."

Judge Connor denied the request by DYFS to forthwith terminate the grandparents from the abuse-or-neglect litigation on the "FN" docket. Instead, the judge reasoned that because neither F.H. nor P.H. would be parties to the guardianship/termination of parental rights proceeding and the plan was to move David toward adoption, visitation with the grandparents "ought to be cut back." The judge then directed that visitation should be reduced from once per week to once per month and set the matter down for review on June 21, 2006.

At that June 21, 2006 hearing, Judge Connor reiterated the conclusion he reached at the April permanency hearing that the grandparents "are not placement options." DYFS filed a complaint for termination of parental rights that day and, accordingly, the judge entered an order terminating the protective services litigation that had been ongoing for three years and four months. He permitted the grandparents to have two more visits with David, after which all visits would cease. Defendant has appealed from that June 21, 2006 order.

On appeal, F.H. argues that DYFS never made reasonable efforts to reunite David with him, and that the trial court's finding that such efforts were made was arbitrary and capricious and should, therefore, be set aside. He further argues that the trial court erred when it terminated the FN matter without holding a plenary hearing, at which the court could have further explored whether DYFS made reasonable efforts to preserve David's relationship with his grandfather, and could have evaluated the extent of bonding between the two. We disagree.


Pursuant to N.J.S.A. 9:6-8.54(b)(2), the court is required to conduct a permanency hearing for a child in placement at least annually whenever a court has determined that efforts to reunify the child with the parent or guardian are required. Before a court is entitled to approve a permanency plan, N.J.S.A. 30:4C-61.2(c)(5) requires the court to determine whether the child can safely be returned home or whether, instead, DYFS should proceed with a petition for the termination of parental rights so that the child may be adopted. The statute also requires the court to make a "specific finding" of the "reasonable efforts made thus far by [DYFS] and the appropriateness of the reasonable efforts to achieve the permanency plan." N.J.S.A. 30:4C-61.2(d). The court shall not, however, approve a plan for removing the child from his home unless "reasonable efforts" have been made prior to placement to preserve the family in order to prevent the need for removal. N.J.S.A. 30:4C-11.1(b).

Here, at the April 12, 2006 permanency hearing, F.H. did not submit any documentary evidence and did not present any testimony other than his own oral statement to the court. During that statement, he admitted having tested positive for illegal substances twice and acknowledged that DYFS had been providing him with weekly treatment with a substance abuse counselor.

At the permanency hearing, the court had before it the evidence of the December 2005 and January 2006 relapses by F.H. and proof that DYFS had provided F.H. with a multitude of services over the years. The court found that F.H. was referred to, and had attended, substance abuse treatment; underwent a psychological evaluation that recommended anger management counseling and was provided with that counseling; and received in-home therapy through Family Preservation Services. The judge found that despite these services and the efforts of DYFS, F.H. relapsed and continued to use illegal substances. Moreover, the record demonstrates that F.H. was incarcerated in Alabama for at least a year during the pendency of these proceedings.

As we review Judge Connor's findings of fact and his approval of DYFS's plan to move toward adoption and remove David from the home of his grandfather, we remain mindful that the diligence of DYFS's efforts on behalf of a parent or guardian is not measured by its success. In re Guardianship of D.M.H., 161 N.J. 365, 393 (1999). A party's "failure to become a caretaker for [the child] is not determinative of the sufficiency of DYFS's efforts at family reunification. These efforts must be assessed against the standard of adequacy in light of all the circumstances of a given case." Ibid. F.H.'s need to maintain connection to David should not be permitted to override David's need for stability and permanency. Id. at 386.

At the time the permanency hearing was held on April 12, 2006, Judge Connor had, as we have discussed, conducted twenty-one prior hearings on this matter. He had heard and considered the arguments of the attorneys, statements by the parties, and reports from caseworkers, and the judge was aware of David's wishes and his choice of living arrangements as articulated by his Law Guardian. Judge Connor also heard the statements and explanations that were offered by F.H.

In reviewing the factual findings and conclusions of a trial judge in a family court proceeding, we are obliged to give deference to the expertise of a family court judge. Cesare v. Cesare, 154 N.J. 394, 413 (1998). The appellate court should not disturb the "'factual findings and legal conclusions of the trial judge unless [the reviewing panel is] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Id. at 412 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)).

Judge Connor determined at the conclusion of the April 12, 2006 permanency hearing that the proposed plan of termination of parental rights was appropriate and that it would not be safe to return David to F.H.'s home in the reasonably foreseeable future because F.H. had relapsed despite longstanding and intensive services provided to him by DYFS. That conclusion is amply supported by the evidence in the record. Judge Connor's further conclusion that DYFS provided reasonable efforts to avoid removal of David from his grandfather's home also finds ample support in the record in light of the extensive evidence of urine screens, substance abuse treatment, psychological evaluations and treatment.

We recognize that F.H. appeals not from the April 12, 2006 permanency order, but instead from the June 21, 2006 order terminating the FN litigation and approving DYFS's plan to proceed to guardianship. The June 21, 2006 order cannot, however, be considered in isolation. Indeed, that order was the logical outcome of the decision the judge had made at the permanency hearing on April 12, 2006. Therefore, our review of the June 21, 2006 order is necessarily intertwined with our review of the permanency determination the judge made in April. We have concluded that the April 12, 2006 order is supported by substantial credible evidence in the record and is entitled to our deference because that order was the culmination of three years of involvement with this family by Judge Connor. For the same reasons, we consider the June 21, 2006 order to be supported by substantial evidence in the record and also entitled to our deference.

We are not unmindful of the claim asserted by F.H. on appeal that the judge made the final determination on June 21, 2006 to move toward guardianship without affording F.H. a plenary hearing. That argument ignores several facts. First, F.H. was aware on April 12, 2006 that the next hearing would be conducted on June 21, 2006. He therefore had more than two months to secure any experts to testify and present the testimony of any witnesses who might have been helpful. He chose not to do so and cannot now be heard to complain that the judge did not afford him a plenary hearing. Second, to have granted F.H. a plenary hearing would have necessitated adjourning the June 21, 2006 hearing, a result that would have unnecessarily delayed the permanency to which David was entitled.

F.H. also argues that the judge should not have entered the order of June 21, 2006 without having first ordered that a bonding evaluation be conducted. Unlike in a guardianship action where a bonding evaluation is specifically required, pursuant to N.J.S.A. 30:4C-15.1(a), here a bonding evaluation was not mandatory. Instead, the judge was required to determine whether DYFS had made reasonable efforts to avoid removing David from his grandfather's home and whether DYFS's plan to proceed to guardianship was appropriate. N.J.S.A. 30:4C-11.1(b). F.H. has presented nothing, and we are aware of nothing, that would have required a bonding evaluation to be ordered by the court. We emphasize that had F.H. believed that a bonding evaluation would have been helpful, he had the opportunity to present such evidence to the court at the June 21, 2006 hearing.

Accordingly, affording Judge Connor's decision the deference to which it is entitled under Cesare, we conclude that the decision to terminate protective services and proceed to guardianship was based upon substantial and credible evidence in the record, and should not be disturbed. Our disposition of this appeal makes unnecessary any consideration of the mootness claim advanced by DYFS and the Law Guardian.


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