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


July 8, 2008


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FG-13-62-07.

Per curiam.



Submitted April 9, 2008

Before Judges Parker, R. B. Coleman and Lyons.

This case concerns the termination of L.H.'s parental rights to her two children, Z.B. and P.B. L.H. argues that the trial court should have considered a kinship legal guardianship in lieu of termination. The trial court found that it was in the best interests of the children to terminate L.H.'s parental rights. Because we find that the trial court's factual findings were adequately supported by the record, and its application of the law was correct, we affirm.

The following facts and procedural history are relevant to our consideration of the issues advanced on appeal. The New Jersey Division of Youth and Family Services (DYFS) first became involved with L.H. on July 7, 2005. At approximately 2:00 p.m., L.H. was stopped while driving her GMC sports utility vehicle by a Point Pleasant police officer for tailgating the car in front of her. When speaking with L.H., the arresting officer smelled alcohol and noted open containers of what he believed to be alcohol in the center console drink holder. He also observed two young children in the car.

L.H. denied that she had been drinking. She then had her children assure the officer that she did not have anything to drink. The officer called L.H.'s information into headquarters and was notified that L.H.'s driver's license was suspended and that L.H. had an outstanding warrant in Wall Township. After being uncooperative for a period of time, L.H. was finally handcuffed and brought to the station.

At the station, L.H. was given -- and failed -- a series of psychophysical tests. She was then administered a breathalyzer test, which indicated a .25% blood alcohol concentration. L.H. subsequently refused to give a proper second sample.

Approximately two hours after the arrest, Amanda Torres (Torres), a DYFS case representative, interviewed L.H. and her children. Z.B. and P.B., then ten and eight years old respectively, said that they had been at the beach and boardwalk by themselves. L.H. had dropped the children off earlier and then picked them up at a certain time and place. The children denied that their mother acted any differently on that day than she ever did. The children acknowledged that their mother drank beer.

Next, Torres spoke with L.H. According to Torres, L.H. appeared intoxicated. Her eyes were bloodshot and the odor of alcohol permeated the cell. L.H. denied drinking anything that day and further stated that she did not even know why she was there. Torres reported that L.H. was incoherent and did not understand the severity of the situation. Therefore, she decided that it was more appropriate to serve L.H. with a DODD letter, an emergency removal without a court order, pursuant to N.J.S.A. 9:6-8.28, as opposed to having L.H. sign a fifteen-day informed-consent agreement. The children, after a physical examination, were placed with L.H.'s brother, J.H. L.H.'s third minor child, J.B., had not been in the car at the time of her mother's arrest. DYFS obtained legal custody of J.B., and eventually placed her with family friends pursuant to a kinship legal guardianship.

L.H. was charged with driving while her license was suspended, N.J.S.A. 39:3-40; reckless driving, N.J.S.A. 39:4-96; following too closely, N.J.S.A. 39:4-89; failure to exhibit a driver's license, N.J.S.A. 39:3-29; consumption of an alcoholic beverage in a motor vehicle, N.J.S.A. 39:4-51A; driving an uninsured vehicle, N.J.S.A. 39:6B-2; refusal to submit to a breath test, N.J.S.A. 39:4-50.2; driving while intoxicated, N.J.S.A. 39:4-50; and operating a motor vehicle under the influence of alcohol with children in the car, N.J.S.A. 39:4-50.15B. L.H. was later charged in an indictment with two counts of fourth-degree child abuse, N.J.S.A. 9:6-3, as a result of driving while intoxicated with the children in the car. She was convicted of this offense and was sentenced to seventeen days in county jail, as well as two years probation.

L.H., forty-six years old at the time of her arrest, had a long history of alcohol abuse. L.H. also had a history of relationships with men who committed domestic violence against her. The record disclosed that L.H. had been drinking daily since 2001 and had a history of excessive drinking, mostly in binges.

After her arrest, L.H. was provided with referrals for substance abuse evaluations, treatment, urine screens, counseling, psychological evaluations, and psychiatric evaluations. She was also offered visits with her children during the approximately two-year period that the children were in placement. Following her arrest in July 2005, she attended an inpatient program at New Hope Foundation, Inc., from which she was discharged on August 22, 2005. Upon her discharge from the program, it was recommended that she attend Preferred Behavioral Health (Preferred) for intensive outpatient treatment beginning on October 5, 2005. Despite DYFS recommendations, L.H. did not appear for her appointment at Preferred and did not reschedule. She claimed that she was attending Alcoholics Anonymous meetings and had a "sponsor," however, she never provided DYFS with any proof. To the contrary, on three separate occasions, she visited the children after she had been drinking.

L.H. failed to attend her substance abuse evaluations on five occasions. On June 14, 2006, she tested positive for alcohol. She was eventually terminated from the after-care program because she got "loud in the office and started cursing at them and wasn't cooperative."

In addition to the treatment for alcohol addiction, L.H. received mental health treatment. She was evaluated by a DYFS psychological consultant, Dr. Chester Sigafoos (Sigafoos), in February 2006. Sigafoos diagnosed L.H. with "post traumatic stress disorder, alcohol dependence which is described as a more severe addiction than alcohol abuse, schizoid, avoidant and dependent personality traits." In his report dated February 2, 2006, Dr. Sigafoos stated that [t]he client has numerous psychopathological disorders and conditions that interfere with her ability to effectively parent her children, and pose a risk of harm to the children if untreated. She has been the victim of abuse but never received any treatment for it. She has an alcohol problem which has probably been present for some time, and one that served the function of self-medication of painful traumatic memories.

The client is in need of skills training, psychological intervention, psychopharmaceutical treatment and monitoring, monitoring and treatment of substance abuse, and guidance and supervision in the acquiring of independent living. Skills training in various areas, such as assertiveness training, stress management, relaxation methods, and interpersonal skills building, would assist the client.

The prognosis for her at that time was "fair to guarded."

Visitation with the children took place at the Community YMCA. L.H.'s drinking continued during visits and the visits were eventually suspended by the court. On November 1, 2006, L.H. showed up at her children's school, smelling of alcohol. Furthermore, police were contacted when L.H. inappropriately showed up under the influence of alcohol at the home of P.B. and Z.B.'s caregiver.

Various relatives were evaluated for placement of the children and were ruled out. The maternal uncles ruled themselves out. A family friend was ruled out by New York Interstate Services. A maternal aunt and uncle indicated to DYFS that they were considering the possibility of becoming the kinship legal guardian of Z.B. after he completed certain treatment and that they would, following placement with them, place him in a boarding school. They indicated that they would get back to DYFS.

Initially, the two children and their older sister, J.B., stayed with their maternal uncle at their grandfather's home in Brielle. All three children were subsequently placed in separate homes of family friends. By April 2006, the children were placed in another home as each of their respective caregivers refused to engage in resource parent training. Towards the end of 2006, Z.B. exhibited mental health and hygiene problems. He needed to be placed in a therapeutic home so that caregivers, who have had enhanced training to assist children who have special mental health needs, could help him.

On September 8, 2006, DYFS filed a Monmouth County Civil Complaint against L.H., seeking to terminate her parental rights to Z.B. and P.B. The complaint also sought to terminate the parental rights of the children's biological father, C.B., who has never, despite a formal investigation, been found. C.B. was defaulted and his parental rights were terminated.

The trial took place on May 14, 16, 17, and 23, 2007. The court heard testimony from a DYFS representative, Amanda Greeley (Greeley); Drs. Alexander Iofin (Iofin) and Sigafoos; and L.H. In addition, it appears that the court interviewed Z.B.

Iofin indicated that L.H. suffered from alcohol dependence, as compared to alcohol abuse. Essentially, L.H.'s life began to revolve around her use of alcohol according to Iofin. Iofin found L.H. was in denial and minimized her problem. She was self-medicating as a result of a depressive disorder. Iofin opined that L.H. needed to voluntarily enter rehabilitation in order for the treatment to be effective.

Sigafoos found an increase in the level of L.H.'s psychopathology that indicated the need for inpatient treatment. Sigafoos found that L.H. could not safely be reunited with her children since L.H. had difficulty taking care of herself. L.H. turned to alcohol to escape and had several relationships that were abusive and unhealthy. The doctor found that the children would be at risk of harm with L.H. due to her denial, her poor judgment, her continuing alcoholism and dependence. Furthermore, Sigafoos found that L.H. was not the children's psychological parent and termination of parental rights would not result in any harm to the children. In addition, he found P.B.'s foster mother to be her psychological parent. Sigafoos ultimately opined that the children needed permanency and that they could not be reunited with L.H.

At the time of trial, according to Greeley, both of the children's foster parents indicated a desire to adopt them.

Z.B.'s therapeutic foster placement family since January 2007 indicated that they would be interested in adopting him, should he not be able to be returned to a family member. Meanwhile, L.R., who had been the caregiver to P.B. since March 2006, continued to express to the DYFS representatives her desire to adopt P.B.

L.H. testified that until the week before trial, she did not realize how bad her problem was and she admitted she had been in denial. She said that now she recognized her problem. She claimed that she would participate in an inpatient Mentally Ill Chemical Abuser (MICA) program if that meant keeping her children. She also testified that she had not had an alcoholic drink for two weeks.

After summations, the trial court rendered an oral opinion. In its opinion, the trial court analyzed the four prongs of the best interests of the child test. N.J.S.A. 30:4C-15.1(a). As to the first prong, the trial court looked at the record, starting with the arrest that led to DYFS intervention. It noted that L.H.'s blood alcohol content was three times the legal limit. The trial court found that the mother's use of alcohol from that point forward "has jeopardized these children and has interfered with her ability to parent them, such that the first prong has been satisfied by clear and convincing evidence."

The trial court decided to analyze the second and third prongs in reverse order. In finding the third prong of the test, the trial court found:

The third prong contemplates the efforts that focus on reunification of the parent with the child, and the assistance of the parent to correct and overcome those circumstances that necessitated the placement of the child into foster care.

The court has reviewed both the trial testimony and the documents that are evidence, and there is a recurring theme here that begins when this defendant, who commendably sought help at the New Hope Foundation, but from the point of her discharge remains in a state of denial and refused, until May of the following year, to even submit to a substance abuse evaluation. Not surprisingly, the results of that substance abuse evaluation in May 2005 made the same recommendations that were made by New Hope in . . . May of 2006. Substance abuse evaluations repeated the same recommendations that were made in the New Hope discharge in August 22nd, 2005.

Nevertheless, in spite of numerous attempts by the attentive and very competent caseworkers, this defendant continued in a state of denial, maintaining that she did not have an alcohol problem, and did not need the follow-up treatment.

It is axiomatic that you cannot help someone who does not want to be helped, and this is a classic example.

As to the third prong, the efforts included numerous attempts to schedule substance abuse evaluations, that was finally taken care of. The two different doctors who provide psychological evaluations and the one follow up by Dr. Sigafoos were the court notes consistent [with] recommendations of a MICA program. Visitation that was provided until the defendant's conduct made it, in this court's opinion, not in the children's best interests to continue with the visitation, and, as a result of the defendant's own action, terminated the visitation.

Accordingly, . . . as to the third prong, the court finds that the Division has proven by clear and convincing evidence that they have made reasonable efforts to provide services to this defendant to help her correct the circumstances which led to the children's placement at Soloman Hall. The third prong has been proven by clear and convincing evidence.

As to the second prong, the court found that because of L.H.'s persistent, unaddressed alcoholism, it is reasonably foreseeable that she would not be able, without inpatient treatment, to cease inflicting harm upon her children entrusted to her care. Furthermore, the trial court found that P.B. has bonded with her foster parents and removal would cause irreparable harm. Because of the relatively short time that Z.B. had been with his foster parents, separating him from his foster parents was not found to pose harm to him. However, the second prong was satisfied as to both children because the trial court did find by clear and convincing evidence that L.H. would not be able to cease harming the children if they were returned to her care.

As to the fourth prong, the court examined the children's wishes as to their placement. P.B. accepted that L.H. is an alcoholic whose addiction is not likely to be satisfactorily addressed by her. Z.B., on the other hand, had only been with his foster parents for a relatively short period of time at the time of trial. He strongly desired to be reunited with his mother, although he was thriving with his foster parents who wished to adopt him. However, the trial court, while considering Z.B.'s understandable hope to be reunited with his mother, looked to the unanimous expert opinions regarding L.H.'s required treatment and L.H.'s alcoholism, and found that there is an overarching need for permanence that will overcome any parental suggestion that more time would result [in the] successful achievement of a plan [that would ensure the children's] safety and security.

Keeping either one of these children in limbo, hoping for some long-term unification plan, would be a misapplication of the law.

The trial court, therefore, finding it was in the children's best interests, terminated L.H.'s parental rights as to both children. The court also stated that it would entertain revisiting the decision under very limited circumstances. Furthermore, because of Z.B.'s wishes, the court provided for limited visitation conditioned upon L.H. entering an inpatient MICA program.

L.H. appealed, arguing the trial court should have considered a kinship legal guardianship instead of terminating her parental rights. Both DYFS and the law guardian filed briefs in opposition.

In her appeal, L.H. raises the following issues for our consideration:





An appellate court's review of a trial court's termination of parental rights is limited. Div. of Youth & Family Srvcs. v. M.M., 189 N.J. 261, 278-79 (2007).

A reviewing court should uphold the factual findings undergirding the trial court's decision if they are supported by "adequate, substantial and credible evidence" on the record. In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (internal quotation marks and citations omitted); accord In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002).

Additionally, as a general rule, we must grant deference to the trial court's credibility determinations. See Cesare v. Cesare, 154 N.J. 394, 411-13 (1998).

However, "'where the focus of the dispute is . . . alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom,' the traditional scope of review is expanded."

In re J.T., supra, 269 N.J. Super. at 188-89 (quoting Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989)).

Still, even in those circumstances we will accord deference unless the trial court's findings "went so wide of the mark that a mistake must have been made." Snyder, supra, 233 N.J. Super. at 69 (quoting Pioneer Nat'l Title Ins. Co. v. Lucas, 155 N.J. Super. 332, 338 (App. Div. 1978)). [Div. of Youth & Family Srvcs. v. M.M., 189 N.J. 261, 278-279 (2007).]

In order to terminate one's parental rights, a court must find by clear and convincing evidence that it is in the "best interests of the child." Div. of Youth & Family Srvcs. v. M.M., 189 N.J. 261, 280 (2007). The "best interests of the child" test is set forth in N.J.S.A. 30:4C-15.1(a):

(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;

(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 foster parents would cause serious and enduring emotional or psychological harm to the child;

(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.

[N.J.S.A. 30:4C-15.1(a); see also, Div. of Youth & Fam. Servs. v. P.P., 180 N.J. 494, 506 (2004).]

"'[T]he best interests' of the child is the polestar in the implementation of a placement plan." State in the Interest of L.L., 265 N.J. Super. 68, 77 (App. Div. 1993); see also N.J.S.A. 30:4C-51 (requiring that "placement ensures the safety and health and serves the best interest of the child"). In 1999, the Legislature amended N.J.S.A. 30:4C-51 to declare that "it is in the public interest, whereby the safety of children shall be of paramount concern, to afford every child placed outside his home by [DYFS] with the opportunity for . . . placement in an alternative permanent home." N.J.S.A. 30:4C-51 (emphasis added to amended text).

One form of alternative placement is a kinship legal guardianship. The kinship legal guardianship was created by the Legislature in 2002. P.P., supra, 180 N.J. at 507. It addressed the problem that existed where relatives of a biological parent wished to care for the children who were removed from their parent, but they did not wish, for various reasons, to adopt. The Legislature recognized this issue in its legislative findings:

The Legislature finds and declares that:

a. There is an increase in the number of children who cannot reside with their parents due to the parents' incapacity or inability to perform the regular and expected functions of care and support of the child;

b. An increasing number of relatives, including grandparents, find themselves providing care on a long-term basis to these children without court approved legal guardianship status because the caregivers either are unable or unwilling to seek termination of the legal relationships between the birth parent and the child, particularly when it is the caregiver's own child or sibling who is the parent. In these cases, adoption of the child is neither feasible nor likely, and it is imperative that the State create an alternative, permanent legal arrangement for children and their caregivers. One such alternative arrangement, which does not require the termination of parental rights, is a court awarded kinship legal guardianship that is intended to be permanent and self-sustaining, as evidenced by the transfer to the caregiver of certain parental rights, but retains the birth parents' rights to consent to adoption, the obligation to pay child support, and the parents' right to have some ongoing contact with the child;

c. In considering kinship legal guardianship, the State is seeking to add another alternative, permanent placement option, beyond custody, without rising to the level of termination of parental rights, for caregivers in relationships where adoption is neither feasible nor likely; and

d. Therefore, it is in the public interest to create a new type of legal guardianship that addresses the needs of children and caregivers in long-term kinship relationships.

[N.J.S.A. 3B:12A-1)

(emphasis added).]

The Legislature, therefore, provided that a court may grant a kinship legal guardianship as follows:

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 those functions is unlikely to change in the foreseeable future;

(3) in cases in which the division is involved with the child as provided in [N.J.S.A. 30:4C-85(a)], (a) the division 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.

[N.J.S.A. 3B:12A-6(d) (emphasis added).]

In Div. of Youth & Fam. Servs. v. P.P., 180 N.J. 494, 509-10 (2004), the Court reviewed the statutory standard and with respect to the condition that a kinship legal guardianship is not permitted where adoption is feasible or likely said:

Although that provision[, N.J.S.A. 3B:12A-6(d),] echoes the best interests standards for termination of parental rights found at N.J.S.A. 30:4C-15.1, one difference stands out: kinship legal guardian may only be appointed when "adoption of the child is neither feasible nor likely."

In her appeal, L.H. does not contest that the first two prongs of the best interest test, the parent's inability to care for and support the child and the unlikelihood of that situation changing in the foreseeable future, were satisfied. Instead, L.H. argues that the trial court failed to consider a kinship legal guardianship as an alternative to termination of parental rights under the third prong, which provides that the court is to consider alternatives to termination of parental rights.

N.J.S.A. 30:4C-15.1(a)(3). She argues that "[n]ot once in its findings, did the trial court ever allude to the third prong statutory criteria to 'consider alternatives to the termination of parental rights.'" L.H. claims that "there is a parens patriae duty to protect the rights of the parents," which mandates that a court consider alternatives to termination and that here the trial court failed to consider the kinship legal guardianship alternative. The issue becomes, therefore, whether a kinship legal guardianship was a viable alternative in this case and, if so, whether the trial court erred in failing to consider it.

In reviewing whether a kinship legal guardianship must be considered as an alternative under the best interests standard, we must consider how to interpret the language of both statutes, N.J.S.A. 30:4C-15.1(a) and N.J.S.A. 3B:12A-6(d). Courts have "'an affirmative duty' when construing two statutory provisions relating to the same subject matter to 'reconcile them, so as to give effect to both expressions of the lawmakers' will.'" American Fire and Cas. Co. v. New Jersey Div. of Taxation, 189 N.J. 65, 81 (2006) (quoting St. Peter's Univ. Hosp. v. Lacy, 185 N.J. 1, 14 (2005)). Because both statutes address the placement of children, we find that the Kinship Guardianship Act, N.J.S.A. 3B:12A-1 to -7, should be read in pari materia with the termination of parental rights statutes, including N.J.S.A. 30:4C-15.1. See P.P., supra, 180 N.J. at 509 fn.5.

We note that the trial court did not expressly discuss kinship legal guardianship as an alternative pursuant to N.J.S.A. 30:4C-15.1(a)(3). However, after reading the termination of parental rights and kinship legal guardianship statutes in pari materia, we find the trial court was precluded from considering a kinship legal guardianship in this case where adoption is feasible and likely. N.J.S.A. 3B:12A-6(d).

While we agree that courts and the Legislature have shown a strong preference for maintaining the relationship between natural parents and their children, the polestar in the decision to terminate parental rights is the best interests of the child. Ibid. at 505; In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). The best interests of the child, moreover, requires the courts to provide a stable, permanent, secure placement which will insure the child's safety and not focus predominantly on reuninification, where the facts indicate that maintaining the parental bond is not feasible nor likely.

"In all our guardianship and adoption cases, the child's need for permanency and stability emerges as a central factor." K.H.O., supra, 161 N.J. at 357. Likewise, the Legislature has found "[t]hat each child placed outside his home by the State has the need for permanency: through return to the child's own home, if the child can be returned home without endangering the child's health or safety; through adoption, if family reunification is not possible; or through an alternative permanent placement, if termination of parental rights is not appropriate." N.J.S.A. 30:4C-1(f).*fn1

Therefore, the best interests hierarchy established by the Legislature and the Court requires: 1) maintaining the parental bond, if such bond would not endanger the child's health or safety; 2) adoption, if reunification is not possible; and, lastly, 3) an alternative placement, such as kinship legal guardianship, but only if adoption is neither likely, nor feasible.

The record before the trial court here clearly supported the conclusion that continuing the parental bond would be harmful to the children and that both foster families were qualified to -- and expressed the desire to -- adopt the children. As such, the trial court was not required to and, by law, was prevented from considering kinship legal guardianship as a viable alternative to adoption.

L.H. also argues that the trial court improperly applied a "better interests" of the child test, as opposed to the requisite "best interests" test. Her argument is that the children "would not have been endangered by being placed in the kinship legal guardianship of their respective current foster caretakers" and that she would then be able to continue to see her children. While this interpretation of the termination statute, N.J.S.A. 30:4C-15.1(a)(3), would clearly benefit L.H., we find the trial court's decision consistent with that statute and N.J.S.A. 3B:12A-6(d) and that the "best interests" of the children would be furthered by adoption, instead of "hoping for some long-term unification plan."

Lastly, in her brief, L.H. claims that Sigafoos testified that before DYFS intervention, "there was no evidence that the children were abused, neglected, homeless, malnourished, or involved in crime." However, the children themselves confirmed the mother's long addiction to alcohol and pattern of neglect. Having reviewed L.H.'s remaining arguments, we find that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Accordingly, the termination of L.H.'s parental rights to Z.B. and P.B. is affirmed.


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