On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FG-15-29-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued Telephonically November 14, 2007
Before Judges Wefing, Parker, and Lyons.
K.A.G., the natural mother of C.A.G., appeals from a judgment of guardianship entered on February 20, 2007, terminating the parental rights of K.A.G. to C.A.G. and ordering that C.A.G. will be placed with L.R. and L.P. for adoption. Because we find that the trial court's decision with respect to the termination of parental rights was based on clear and convincing evidence supported by the record before the court, and that the trial court's order with respect to placement ensures the safety and the health of C.A.G. and serves his best interests, we affirm. The following factual and procedural history is relevant to our consideration of the issues advanced on appeal.
FACTS AND PROCEDURAL HISTORY
C.A.G., currently six years old, is the youngest child of K.A.G. and L.G. He has two brothers, T.G., currently twelve years old, and L.G., Jr., currently ten years old. The Division of Youth and Family Services (DYFS) became involved with the family in September 1998 as the result of the maternal grandmother's report of substance abuse and domestic violence by the biological parents. In November 1998, an anonymous caller reported that K.A.G. was involved with drugs and that there was a history of domestic violence in the family. The caller stated that the children had special needs and that there was a concern for the safety and well-being of the children. In July 2002, K.A.G. reported that, while left in charge of the children, L.G. had become intoxicated, and C.A.G., then one year old, fell off the couch.
In June 2003, a paternal aunt reported that L.G. was a "nasty," "violent," and "verbally abusive" alcoholic, while K.A.G. "smoked pot." DYFS substantiated neglect by L.G. based on his alcohol abuse and the domestic violence between the parents. According to DYFS, L.G. has left the children alone when he went to the liquor store for more beer and had spit on K.A.G. during a "big fight." In August 2003, DYFS was referred again. L.G. and K.A.G. went to the liquor store after fighting throughout the day while the children were left alone outside all day long. No neglect was substantiated on that referral.
K.A.G. had a history, dating back to 1993, of seeking domestic violence restraining orders (ROs) against L.G. and subsequently dismissing them. When the DYFS caseworker, Angela Sarantinutis (Sarantinutis), became involved with C.A.G. in July 2004, L.G. was incarcerated for violation of an RO. That RO was dropped in September 2004. K.A.G. filed for another RO, however, in October 2004 as a result of yet another domestic violence incident. Also at the time of Sarantinutis' first involvement with C.A.G., K.A.G. was reportedly engaged in parenting classes and counseling for domestic abuse. K.A.G. was not, however, receiving any treatment for substance abuse and was still smoking marijuana.
The children were first removed from their parents by DYFS as a result of a May 16, 2004, referral. It was reported that the police were contacted due to a domestic violence incident at the parents' home that resulted in K.A.G.'s arrest for outstanding warrants. An in-home case plan provided that L.G. could not be left alone with the children due to his substance abuse problem. Consequently, C.A.G. was placed with L.R., a close friend of K.A.G. L.R. lived with her paramour, L.P., during this time.*fn1 The other two boys were initially placed with another family friend but it was later discovered she had a DYFS history. When this was discovered, L.G., Jr. and T.G. were placed with their maternal grandmother and then later with another family, the M's.
When C.A.G. was initially placed with L.R., the only three foods that he would eat were saltines, Ramen noodles, and chicken nuggets. L.R. was able to secure speech therapy through Jersey Shore Medical, which also addressed his eating habits. C.A.G.'s behavior was also an issue. C.A.G. was not toilet trained until approximately May 2005. In addition, C.A.G.'s behavior was very defiant and aggressive, spitting and cursing, for example. Although C.A.G.'s behavior improved at L.R.'s, the therapist, school, and foster mother decided that C.A.G. needed a neurological evaluation. C.A.G. was diagnosed with attention-deficit hyperactivity disorder (ADHD) and medication was recommended. The biological parents were opposed to C.A.G. taking the medication, but a judge later ordered that C.A.G. was permitted to take the medication.
Sarantinutis testified that DYFS offered reunification services for K.A.G. and L.G. Both parents were referred for psychological and psychiatric evaluations, substance abuse evaluations and counseling, including referrals for both out-patient and in-patient programs, domestic violence counseling, parenting classes, scheduled supervised visitations, and referrals for vocational and housing assistance.
In November 2004, K.A.G. began complying with services recommended by DYFS. The caseworker testified that K.A.G.'s housing situation was then the "biggest obstacle" preventing her reunification with the children. When K.A.G. separated from L.G., she lost all of her financial support and became homeless.*fn2
Dottie's Home, a residential facility for women victims of domestic violence, was reluctant to accept K.A.G. due to concerns regarding her history of substance abuse. DYFS guaranteed that K.A.G. would be monitored weekly through urinalysis. Additionally, DYFS provided the security deposit, engaged K.A.G. in weekly counseling, provided daycare vouchers, and implemented in-home therapy for the children to address the transition back home to their mother. As a result of Sarantinutis' intervention, K.A.G. was accepted into Dottie's Home. Dottie's Home permitted the three children to live there with K.A.G. As a result, in July 2005, after almost fourteen months, T.G., L.G., Jr., and C.A.G. were reunified with K.A.G. at Dottie's Home.
The transition was "rocky," but a therapist was able to address issues as they arose. In October 2005, Dottie's Home informed DYFS that K.A.G. had been written up because "her house was a mess; she wasn't following the rules; [and] she failed to attend certain meetings." In addition, DYFS was aware that K.A.G. had struck T.G. with a belt. In November 2005, DYFS received a referral that K.A.G. starting drinking again and came home drunk at 1:30 a.m. That K.A.G. had started drinking again was confirmed by both video surveillance and her own admission.
Dottie's House terminated her participation in the program, leaving K.A.G. and the three boys homeless. L.G. had just begun complying with his services and was not eligible at that time to be a caregiver. Therefore, in November 2005, C.A.G. was returned to L.R. and the other two boys returned to their previous placement. Shortly after the second removal, there was a permanency hearing in January 2006. DYFS had requested that the court set the permanency goal as termination of parental rights followed by adoption. At that time, no relatives came forward for the children, and T.G. and L.G., Jr.'s then-current caregivers were not committed to the children long term.
In June 2006, L.G., Jr. and T.G. were placed with their maternal uncle, R.A., and aunt, S.H.A. R.A. and S.H.A. had contacted DYFS after the first removal in May 2004 to inquire about C.A.G. As a result of the reunification with K.A.G. in July 2005, there was no longer a need for another placement option and DYFS' background checks into S.H.A. and R.A. were, therefore, then terminated. S.H.A. testified that later, at the time of the second placement in November 2005, she did not have the room for C.A.G. because she had a four-week-old infant and a two-year-old, which prevented her from providing C.A.G. with "the level of care that he needed." Thus, at their request, S.H.A. and R.A. were only evaluated for the care of T.G. and L.G., Jr.
C.A.G. would visit his brothers at S.H.A.'s on holidays, family occasions, and once a month on Sundays. C.A.G. also began overnight sibling visits at S.H.A.'s home. Although L.R. and S.H.A. scheduled sibling visits every two to three weeks, scheduling conflicts stretched the interval out to once every four to six weeks. L.R. and S.H.A. live approximately ninety minutes away from each other and meet at a convenience store at the approximate half-way point.
On March 14, 2006, DYFS filed a complaint in Ocean County, Docket No. FG-15-29-06, against K.A.G. seeking to terminate her parental rights to L.G., Jr., T.G., and C.A.G. pursuant to N.J.S.A. 30:4C-15 to -20. The complaint also sought to terminate the parental rights of L.G.
On January 29, 30, and 31, 2007, Judge Strelecki presided over the guardianship trial. On January 29, 2007, the court heard testimony from Sarantinutis and Letizia Zindell, DYFS caseworkers, who testified to the family's DYFS history as outlined above. On January 30, 2007, before hearing testimony from Dr. Alan Lee, a psychologist, the court discussed the doctor's bonding evaluations and the possibility of S.H.A. renovating her home to accommodate C.A.G. The trial judge asked to have S.H.A. and R.A. testify as to their intent and ability to care for C.A.G., as well as T.G. and L.G., Jr.
Dr. Lee then testified on behalf of DYFS. He was retained to conduct certain psychological and bonding evaluations. The doctor testified that he had diagnosed K.A.G. as having depressive personality disorder with dependent personality and borderline personality traits, rule out bipolar disorder, cocaine abuse in remission, and cannabis abuse in remission.
Dr. Lee testified that because K.A.G. has problems with compliance, and because K.A.G.'s prognosis for significant or lasting change is poor, he could not support the defendant as an independent caretaker for any of the children. Dr. Lee then testified that he could not support L.G. either as an independent caretaker for the children.
Dr. Lee further testified that C.A.G. has learned to rely on L.R. for primary care and support. The doctor found that C.A.G. has a significant and positive relationship, psychological attachment, with both L.R. and her then-fiancé, L.P. Dr. Lee testified that C.A.G. would suffer enduring, significant, and irreparable psychological harm if removed from his current placement with L.R. In contrast, C.A.G. had an ambivalent relationship with, and an insecure attachment to K.A.G. According to Dr. Lee, there is no evidence that C.A.G. has a significant or enduring relationship, attachment, or bond with L.G. In Dr. Lee's opinion, the best permanency plan for C.A.G. is to leave him in his current placement with L.R. Dr. Lee further testified that permanency is very important for C.A.G. and a delay in securing permanency will harm the child.
Dr. Lee testified that siblings who are placed in separate homes should maintain contact with each other. Dr. Lee also testified that while sibling relationships are important in determining the best interests of a child, it is more important to sustain a positive relationship between a child and an adult who is able to provide permanency for the child. Finally, Dr. Lee testified that he did not conduct a bonding evaluation between the siblings in this case because DYFS did not request one.
On January 31, 2007, the court heard from K.A.G. and L.G. before entering its opinion regarding termination of parental rights on the record:
K.A.G. COUNSEL: Your Honor, [K.A.G.] has discussed in great depth with [L.G.], with me, with the caregivers for [L.G., Jr.] and [T.G.], and her counselors, and has given a great deal of thought to the situation. At this time her position is that what she would like to see happen to the children is adoption of all three children by [R.A.] and [S.H.A.] Now, I understand that that is not the Division's position. However, what [K.A.G.] would like to do today rather than testify because she acknowledges that she has issues that have not yet been resolved and that reunification of her with the children at this time would not be appropriate, is she would like to execute an Identified Surrender of all three children to [R.A. and S.H.A.], understanding that the Court is going to take testimony next week from all of the caregivers and that ultimately it would be the Court's decision what the final analysis would be. So what she would like to do this morning is do an Identified Surrender of all three children to [R.A. and S.H.A.], and she has prepared a very short statement of that position that she would like to give to the Court.
THE COURT: Okay. My question is, is she also prepared to [provide] an Identified Surrender of the two children who are with them at this point in time? Because the Court can't accept an Identified Surrender with regard to all three because at this point in time I would have no way of knowing what's going to happen with the information that I'm going to get. [Referring to the court's earlier request to have R.A. and S.H.A. testify regarding their interest and ability to care for C.A.G.] I don't even know if they wish to adopt all three. I need to get that testimony.
K.A.G. COUNSEL: We understand that. We understand that.
DYFS COUNSEL: And, Judge, if I could just speak. There is a published decision -- the Division would not accept that surrender --there is a published decision where the Division has the power and authority to reject that. In this situation, the Division would. We'd like to proceed to trial.
THE COURT: Well, would you accept an Identified Surrender for the two children to [R.A.] and [S.H.A.]?
DYFS COUNSEL: The two, yes.
K.A.G. COUNSEL: Well, here's our position, Your Honor.
K.A.G. COUNSEL: What we would like to do is, she does not wish to contradict any of the testimony with regard to her alcoholism and her substance abuse. What she wants to do is put her feelings with regard to the disposition of this matter on the record, understanding that ...