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Division of Youth and Family Services v. E.D.


May 7, 2008


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, FG 09-282-05.

Per curiam.



Argued March 11, 2008

Before Judges Skillman, Yannotti and LeWinn.

E.D. (defendant) is the natural mother of J.J., born January 6, 2004.*fn1 Defendant appeals the order of the Family Part, entered on May 18, 2007, terminating her parental rights to the child*fn2, and raises the following issues:


A. The Child's Safety, Health and Welfare Have Not been Endangered by His Relationship With His Mother, Nor Will the Continuation of The Relationship Endanger Him.

B. E.D. Is Willing and Able to Eliminate The Harm Facing Her Son and Is Able And Willing to Provide a Safe and Stable Home for Him.

C. DYFS Failed to Make Reasonable Efforts To Provide Services to Help E.D. Correct the Circumstances Which led to Her Son's Placement Outside the Home and the Trial Court Failed to Adequately Consider Alternatives to Termination of Parental Rights.

D. Termination Will Do More Harm Than Good

Upon our review of the record, we conclude that the trial court erred by finding that the Division of Youth and Family Services (DYFS) established by clear and convincing evidence that it had considered alternatives to termination of E.D.'s parental rights, specifically the possibility of appointing J.J.'s maternal grandparents as his kinship legal guardians (KLG). We therefore reverse the order terminating parental rights and remand for further proceedings. We briefly review the pertinent factual background in this case.

DYFS became involved with J.J. on February 13, 2004, upon a referral from the infant's pediatrician, Dr. Daxa Surti. On that date, Dr. Surti's examination of J.J. revealed a healing fracture in the infant's left femur and another fracture in the right leg. Prior to that date, defendant had missed two scheduled appointments for J.J.'s checkup with the pediatrician. Dr. Surti concluded the fractures were "child abuse indicators" and he contacted DYFS. In his referral, Dr. Surti also reported defendant's two prior missed appointments.

J.J. was hospitalized from February 13 through March 2, 2004. On February 25, 2004, defendant signed an informed consent to foster care placement for six months and identified her parents as relatives "who may be a viable placement resource for the child." DYFS then filed an order to show cause and complaint for custody, and J.J. was placed in foster care.

On March 1, 2004, defendant was arrested on an outstanding bench warrant for possession of twenty-five pounds of marijuana. This arrest led to a two-year prison term during which defendant acquired her high school equivalency diploma, participated in group therapy and completed a parenting course. She was released from prison in October 2006.

In January 2005, following several unsuccessful foster care placements, J.J. was placed with his maternal grandparents, H.J. and V.J. In April 2005, the court accepted defendant's voluntary surrender of J.J. to her mother, H.J. J.J. remained in his grandparents' custody for one-and-a-half years.

DYFS removed J.J. from his maternal grandparents' custody in August 2006 and placed him in a foster home that soon proved inappropriate to meet his needs. The court-appointed law guardian objected to J.J.'s continued placement with this particular family. In December 2006, DYFS placed J.J. with his current foster family.

As for the injuries to J.J.'s leg, the medical experts who testified at trial disagreed on whether the observed fractures were congenital or the result of abuse. It was, however, undisputed that the fractures occurred after J.J.'s birth. Dr. Julia De Bellis, who evaluated J.J. upon his admission to Hackensack University Medical Center in February 2004, opined that the fractures "reflected non-accidental trauma." Genetic testing failed to identify any congenital cause for J.J.'s fractures.

Juan Antonio Rios, Jr., one of DYFS's workers assigned to this case, testified that the two-bedroom apartment defendant obtained upon her release from prison was appropriate housing for J.J. Defendant was attending bi-weekly visits with J.J., and Rios observed a "good relationship" between mother and child. Rios added that defendant had attended parenting classes on referral by DYFS; defendant had continued to see J.J. even while incarcerated.

At DYFS's request, Dr. Charles Hasson conducted a psychological evaluation of defendant and a bonding evaluation with J.J. Based on those evaluations, Dr. Hasson concluded that defendant was not psychologically fit to parent J.J. This opinion was based on the psychological testing as well as defendant's past history, arrest record, sporadic work history and social relationships. Dr. Hasson noted that defendant had taken no responsibility for her four older children for the past nine years.

Dr. Hasson diagnosed defendant with an undefined personality disorder that manifested itself in "difficulty in getting along with other people, sustaining employment, taking care of her responsibilities and giving ambiguous explanations for failures in her life[.]" The doctor opined that defendant "did not have the staying power and she did not have the personality to be able to provide a healthy, secure environment for the child." He recommended psychotherapy, but qualified that recommendation with the observation that defendant would first have to acknowledge her need for therapy in order to make it effective, and that individuals with defendant's type of personality disorder were unable to make such an acknowledgement and accept treatment.

Dr. Hasson addressed DYFS's specific concerns about defendant's ability to meet J.J.'s medical needs, including three serious surgeries that would be necessary later in the child's life to correct a leg deformity. The doctor opined that defendant would not be "capable of providing for [J.J.'s] medical needs now or in the future." This opinion was based upon the psychological tests and discrepancies in defendant's statements during interviews.

Regarding the bonding evaluation, Dr. Hasson opined that J.J. had developed a positive attachment towards adults but not specifically towards defendant. The doctor concluded that J.J. had no bond with defendant. He did not conduct evaluations with J.J.'s current foster care family or with the maternal grandparents.

Dr. Kenneth Schulman testified on behalf of defendant. Consistent with Dr. Hasson's conclusions, Dr. Schulman opined that defendant suffered from "psychological difficulties" and agreed with the diagnosis of personality disorder. However, Dr. Schulman found a close bond to exist between defendant and J.J., although he explained that he used the terms "attachment" and "bond" interchangeably. The doctor found "significant issues" that could affect defendant's ability to parent, including her "propensity for faulty judgment, her lack of insight, the selection of relationships she has made, . . . [and] her low self esteem[.]" These issues "affect who she is and . . . her ability to interact with the world and with her child."

Dr. Schulman concluded that defendant could be capable of parenting sometime in the future, but he "would have concerns" about her parenting at present. He could not state definitively when defendant would be able to parent.

Defendant's father, V.J., testified that he and H.J. wanted to adopt J.J., but "the Division" had told them that, if they did so, they would not be able to have defendant come to their house. The grandparents were "confused" and did not pursue adoption proceedings. When asked if he was currently willing to adopt J.J., V.J. answered: "With all my love." He also stated his willingness to supervise visitation between defendant and J.J.

Defendant's mother, H.J., testified that during the eighteen months J.J. had been in her custody, she took him to his doctor appointments; they took vacations and did "all kinds of stuff" together. H.J. stated that she was under the impression that J.J. would be reunited with defendant upon her release from custody. When that did not occur, H.J. told the DYFS worker that she and V.J. wanted J.J. back and wanted to adopt him. At trial, H.J. stated that she remains willing and able to adopt J.J. and has room for him at home.

DYFS worker Carmen Hernandez testified that J.J. was removed from the grandparents' custody for two reasons: (1) the grandparents did not pursue adoption; and (2) their eighteen-year-old son, D.J., who lived with them at the time, was suspected of using marijuana.*fn3 Ms. Hernandez also expressed concern that defendant's four older children, who were in the custody of her maternal grandmother, might need a new placement in the near future in light of the grandmother's state of health. Ms. Hernandez testified that V.J. did not want to take custody of these four children and had threatened to sell the house if H.J. pursued that arrangement. Neither H.J. nor V.J. addressed the issue of defendant's other children in their testimony; nor was either grandparent recalled following Ms. Hernandez's testimony to offer any rebuttal.

Ms. Hernandez testified that J.J.'s current foster parents are willing to adopt him. Neither foster parent testified at the hearing. In addition, neither Dr. Hasson nor Dr. Schulman performed an evaluation of J.J.'s bond with his foster parents.

The trial judge rendered a decision from the bench at the conclusion of trial. He found that DYFS had presented clear and convincing evidence to satisfy the four statutory standards governing termination proceedings in N.J.S.A. 30:4C-15.1(a)(1) to (4). Specifically, the judge found that: (1) J.J.'s "safety, health or development has been or will continue to be endangered by the parental relationship" to defendant, N.J.S.A. 30:4C-15.1(a)(1); (2) defendant is "unwilling or unable to eliminate the harm facing [J.J.] 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[,]" N.J.S.A. 30:4C-15.1(a)(2); (3) DYFS "made reasonable efforts to provide services to help the parent . . . and the court has considered alternatives to termination of parental rights[,]" N.J.S.A. 30:4C-15.1(a)(3); (4) and termination of parental rights "will not do more harm than good[,]" N.J.S.A. 30:4C-15.1(a)(4).

"Appellate courts must defer to a trial judge's findings of fact if supported by adequate, substantial, and credible evidence in the record." N.J. Div. of Youth & Fam. Servs. v. G.L., 191 N.J. 596, 605 (2007); see also In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). Our review of the record convinces us that the trial judge's findings on the first two statutory prongs are supported by "adequate, substantial and credible evidence" of record. Rova Farms Resort, Inc., v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974). The expert testimony on these two issues was essentially uncontroverted and was a critically determinative factor in the trial judge's analysis and conclusions. We find no basis on which to disturb those conclusions. Defendant's arguments on these two points are "without sufficient merit to warrant discussion in a written opinion[.]" R. 2:11-3(e)(1)(E).

We do take issue, however, with the trial judge's ruling on the third and fourth statutory prongs, particularly the issue of the Division's obligation to "consider[] alternatives to termination of parental rights[,]" and, therefore, by implication, whether termination of E.D.'s parental rights "will not do more harm than good[.]" N.J.S.A. 30:4C-15.1(a)(3) and (4). Our review of the record leads us to conclude that, in analyzing this factor, the trial judge failed to explore adequately the alternative possibility of J.J.'s KLG placement with his maternal grandparents.

The record establishes J.J.'s eighteen-month placement in his grandparents' care and custody, commencing when he was one year old. There was no dispute that a strong bond had developed between J.J. and his grandparents. DYFS's reasons for removing J.J. from their custody did not directly relate to or impugn their fitness to care for him or the strength of their bond with him.

The judge found that:

The concerns that the Division had to remove the child in August of 2006 show some lack of follow up with the licensing procedure, disagreement between [H.J] and [V.J.] as to the adoption process, some concerns about their relationship, Ms. Hernandez's understanding that there was some consideration about [H.J.] moving out on her own, [V.J.] putting the house up for sale. There is some question as to who might have legal title to the house.

The fact that the brother of [E.D.] had returned to the house, was living in the house, the Division had concerns about [D.J.] having some drug usage problem for which he was referred to a drug evaluation and then subsequently refused treatment[.]

However, the judge failed to address the grandparents' trial testimony that: (1) they were told by "someone" at "the Division" that, if they adopted J.J., E.D. would not be permitted to visit their home; (2) their son, D.J. had moved out of their home after DYFS resumed custody of J.J.; (3) whatever marital discord they may have had was no longer an issue between them; and (4) they did not understand the licensing procedures. The judge also did not address the fact that both grandparents testified unequivocally that they were not only willing but highly desirous of adopting J.J.

The record reveals that, when J.J. was placed in his grandparents' custody in January 2005, a DYFS worker discussed KLG proceedings with H.J. who expressed interest in pursuing that goal; as of February 2005, H.J. reported to DYFS that both she and her husband were committed to adopting J.J. Over the ensuing months, DYFS informed the grandparents of licensing, fingerprinting and other procedures they needed to follow to pursue KLG. DYFS records indicate that some conflict developed between H.J. and V.J. and they did not timely pursue the required procedures. J.J. was summarily removed from the grandparents' custody in August 2006, and there are no contemporaneous DYFS case notes or any other records documenting this removal or its immediate aftermath.

The judge also rejected awarding KLG to the grandparents because he found that J.J. was now placed with a family who intended to adopt him. As noted, the only evidence of this placement came from the testimony of a DYFS caseworker. Neither foster parent testified; nor was any bonding evaluation done with the foster parents.

Under the circumstances, we conclude the judge failed to properly consider the factors pertinent to the issue of awarding the maternal grandparents KLG status pursuant to N.J.S.A. 3B:12A-1 to -7. Those factors include: the best interests of the child; assessment of the caregiver; DYFS's recommendation; the potential kinship legal guardian's ability to "provide a safe and permanent home for the child"; the natural parent's wishes; the caregiver's suitability to raise the child; the caregiver's ability to assume "full legal responsibility" for the child; and the caregiver's commitment to raising the child. N.J.S.A. 3B:12A-6(a).

Pursuant to N.J.S.A. 3B:12A-6(d):

The court shall appoint the caregiver as a kinship legal guardian if, based upon clear and convincing evidence, the court finds that:

(1) each parent's incapacity is of such a serious nature as to demonstrate that the parents are unable, unavailable or unwilling to perform the regular and expected functions of care and support of the child;

(2) the parents' inability to perform these functions is unlikely to change in the foreseeable future;

(3) in cases in which [DYFS] is involved with the child . . . (a) [DYFS] exercised reasonable efforts to reunify the child with the birth parents and these reunification efforts have proven unsuccessful or unnecessary; and (b) adoption of the child is neither feasible nor likely; and

(4) awarding kinship legal guardianship is in the child's best interests.

The record in this case established defendant's incapacity to parent in the "foreseeable future[.]" Also, DYFS had exercised reasonable efforts to explore reunification of J.J. with defendant. N.J.S.A. 30:4C-15.1(a)(3). As far as the feasibility of J.J.'s adoption by his foster parents is concerned, however, the record is devoid of any "clear and convincing" evidence of such feasibility. As noted, neither foster parent testified; nor did any expert perform a bonding evaluation with those parents. Moreover, the only "evidence" of the current foster parents' intent to adopt is a statement to that effect by a DYFS caseworker.

Finally, given the bond previously established between J.J. and his grandparents, awarding those parties KLG may well be in the child's best interest, if and when fully explored.

"It is apparent that kinship legal guardianship was created to meet a very specific need. . . . Such a guardianship is clearly intended to formalize the status of a relative who agrees to take on responsibility for a child, and can remain in place throughout the child's minority[.]" N.J. Div. of Youth & Fam. Servs. v. S.V., 362 N.J. Super. 76, 86-87 (App. Div. 2003). The most significant barrier to awarding KLG is the availability of "the permanency provided by adoption . . . ." N.J. Div. of Youth & Fam. Servs. v. P.P., 180 N.J. 494, 513 (2004). Given the circumstances in this case, where the evidence of "the permanency provided by adoption" comes solely from the testimony of a DYFS caseworker, it is particularly important that the trial court examine the likelihood of that adoption in greater depth.

Where, as in this case, the evidence clearly established the factors in N.J.S.A. 3B:12A-6(d)(1) and (2), KLG may well be appropriate for these grandparents who are committed to caring for J.J. N.J. Div. of Youth & Fam. Servs. v. D.H., 398 N.J. Super. 333, 341 (App. Div. 2008).

Until and unless the feasibility of adoption and the KLG alternative are fully explored and addressed by the court, there can be no meaningful resolution of the fourth statutory "prong" governing termination of parental rights, namely whether such termination in this case "will not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4).

Under the circumstances, we conclude the trial judge did not meaningfully consider the possibility of the KLG alternative that would return J.J. to the care and custody of his maternal grandparents who have an established history and bond with the child. Therefore, we reverse the order terminating defendant's parental rights to J.J., and remand for further proceedings.

On remand, the trial judge shall determine, based upon the present record or such additional evidence as the parties may submit, whether the adoption of J.J. by his foster parents is feasible or likely. If not, the trial judge shall determine whether appointment of the child's maternal grandparents as kinship legal guardians is warranted under N.J.S.A. 3B:112A-6(d). The trial judge may reconsider whether the DYFS has established by clear and convincing evidence that the termination of E.D.'s parental rights will not do more harm than good. The remand proceedings shall be completed within sixty days of the date of this opinion. We retain jurisdiction.

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