On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FG-07-139-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 29, 2008
Before Judges Winkelstein, Gilroy and Chambers.
Defendant A.M.B. is the mother of a daughter, B.L.B., born on September 6, 1997. Following a bench trial, Judge Glenn Grant terminated defendant's parental rights to her daughter. The court explained its reasons for its decision in both an oral and a written opinion dated November 15, 2007, and memorialized its decision in an order of that date. On appeal from that order, both defendant and the Law Guardian claim that the Division of Youth and Family Services failed to prove by clear and convincing evidence that termination of defendant's parental rights were in B.L.B.'s best interests.
In light of the four-prong "best interests" test annunciated in New Jersey Division of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986), as subsequently codified in N.J.S.A. 30:4C-15.1a(1) - (4), and as more recently examined by the New Jersey Supreme Court in New Jersey Division of Youth & Family Servs. v. E.P., 196 N.J. 88 (2008), we affirm substantially for the reasons expressed by Judge Grant. His opinions contain findings of fact that are fully supported by substantial credible evidence in the record. Cesare v. Cesare, 154 N.J. 394, 413 (1998); Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). The judge correctly applied the legal standards set forth in the controlling case law and N.J.S.A. 30:4C-15.1a. We add only the following.
The primary challenge to the trial court's decision is addressed to the court's findings with regard to the fourth prong of the best interests standard - whether "[t]ermination of parental rights will not do more harm than good." N.J.S.A. 30:4C-15.1a(4). Both defendant and the Law Guardian argue that the trial court improperly grounded its decision as to that prong on the agreement by the foster mother to permit defendant to visit with the child after the foster mother adopts the child. Defendant and the Law Guardian correctly point out that New Jersey does not recognize open adoptions, and a future adoptive parent's agreement to permit visitation between a child's former parent whose parental rights have been terminated and the child is unenforceable. See In re Guardianship of K.H.O., 161 N.J. 337, 362 (1999) ("We acknowledge that [agreements that permit continued contact between a biological relative and an adoptive parent] cannot be judicially enforced, given the potential for disruption of the child's family life under such arrangements and the fact that under the adoption laws the adoptive parents' rights are paramount.").
Nevertheless, the trial court here recognized that despite the inability of a biological parent to enforce such an agreement, the New Jersey Supreme Court has countenanced a trial court's reliance on such an agreement in addressing the fourth prong of the best interests tests. See N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 287-88 (2007) ("Integral to our analysis under the fourth prong, therefore, is the foster parents' willingness to permit continued visitation by the father and the daughter.") (citing In re Guardianship of J.N.H., 182 N.J. 29, 31 (2004)); see also In re Guardianship of K.H.O., supra, 161 N.J. at 362-63 (finding, that although agreements for voluntary contact between biological parent and foster parent may not be legally enforced, "in a foster care context, [where] there has been continued and positive contact between the foster and biological parents in an atmosphere of trust, we cannot but hope that such a voluntary, informal agreement after adoption will allow the child to continue having both of these parental figures in her life").
Although the Supreme Court's comments concerning post-adoptive visitation may be considered dicta, we agree with the trial court that the Court has, at least implicitly, approved a trial court's consideration of the future adoptive parents' willingness to permit visitation between the biological parent and the child in determining whether the fourth prong of the best interests test has been met. In our view, therefore, if defendant and the Law Guardian seek a ruling that a trial court may not rely on a foster parent's promise of post-adoption visitation in determining whether the Division has proved the fourth prong of the best interests test, their recourse lies with the New Jersey Supreme Court. See Nardello v. Twp. of Voorhees, 377 N.J. Super. 428, 435 (App. Div. 2005) (intermediate appellate court "'bound by carefully considered dictum from the Supreme Court'") (quoting State v. Breitweiser, 373 N.J. Super. 271, 282-83 (App. Div. 2004), certif. denied, 182 N.J. 628 (2005)).
Consequently, we affirm substantially for the reasons expressed by Judge Grant in his thorough and well-reasoned opinions.
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