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New Jersey Division of Youth and Family Services v. N.R.L.


December 10, 2008


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FG-20-89-07.

Per curiam.



Submitted October 28, 2008

Before Judges Collester and Grall.

An order terminating the parental rights of N.R.L. and C.L. was entered on December 17, 2007. The children's mother, N.R.L., appealed, and the Division of Youth and Family Services (Division) and the children's law guardian filed briefs in opposition. C.L. has not appealed.

Clear and convincing evidence supports the finding that N.R.L endangered her children's health and development and remains unable to care for them, despite the Division's extraordinary efforts to reunify N.R.L.'s family. N.J.S.A. 30:4C-15.1a(1)-(3); In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). Nonetheless, because the trial court determined that the children's maternal grandmother is unable and unwilling to serve as the children's kinship legal guardian without affording the defense an opportunity to present relevant evidence, we remand for further proceedings. N.J. Div. of Youth and Family Servs. v. P.P., 180 N.J. 494, 511 (2004).

N.R.L.'s first-born child is emancipated. The four children whose best interests are at issue are G.L., who was born in 1992, C.B.L. and C.N.L., twins who were born in 1995, and C.F.L., who was born in 1997.

With the exception of G.L., N.R.L.'s children have significant physical and emotional problems. C.N.L. has "a very low IQ," has been diagnosed with Attention Deficit Hyperactivity Disorder ("ADHD") and has sustained self-inflicted injuries.

C.B.L. has been diagnosed with Hermansky-Pudlak Syndrome, a type of albinism. She is legally blind and must wear specially tinted eyeglasses because her eyes lack pigmentation. Like her twin sister C.N.L., C.B.L. has attempted to injure herself, and she has been hospitalized because of her mental condition on several occasions and placed in therapeutic group homes.

C.F.L., like his sister C.B.L., has Hermansky-Pudlak Syndrome and is legally blind. C.F.L. also suffers from ADHD.

The Division has taken action to protect N.R.L.'s children on several occasions over a course of many years. The children were first removed from N.R.L.'s home in 1996. Shortly thereafter, the children were placed in the home of F.R., their maternal grandmother who resides in Puerto Rico. The children remained in F.R.'s care until they were returned to their parents' home in 1998. The record includes no evidence about the circumstances that led to the reunification.

In 2001, 2002 and 2003, the Division received numerous reports expressing concern about N.R.L.'s children. By way of illustration, the Division responded to information involving N.R.L.'s abuse of cocaine, marijuana and alcohol, bruises, children left without supervision and C.N.L.'s hospitalization as a consequence of injuries sustained when she was struck and dragged by a car. During that period, the Division provided services to the family but did not remove the children.

In March 2004, the children were removed after N.R.L. was arrested. The children were found living in deplorable conditions amidst drug paraphernalia, and they were placed in various foster homes.

By April 2004, concerns about the children's prior exposure to sexual conduct were raised by the foster parent who was caring for C.N.L. and C.B.L. C.N.L. was drawing sexually explicit pictures, engaging in "sexualized behaviors" with her twin sister C.B.L., and speaking about having "sex" while disrobing and simulating sexual conduct. She was also misbehaving in school. The social worker who, at the Division's request, evaluated C.N.L. concluded that she had either observed adult sexual behavior or been sexually abused. Counseling was recommended.

In January 2005, the Division again placed the children with F.R. in Puerto Rico. Caseworkers observed the children in F.R.'s home when they delivered the children and again in August 2005. In addition, they maintained telephone contact with F.R. The Division's records include detailed and positive descriptions of the conditions in the home, identify the children's schools and pediatrician and note assistance available to the grandmother from members of her family. The Division's records also note F.R.'s willingness to care for the children until they reach the age of eighteen.

A caseworker who visited F.R.'s home for the first time in December 2005 had a vastly different view of the circumstances. Although the caseworker's report describes F.R.'s home as "very appropriate" and "nice" and indicates no risks or dangerous conditions observed, she saw the children remove and eat raw meat from a freezer and saw "melting" food in and under C.N.L.'s bed. C.N.L. and C.F.L asked the caseworker if she wanted to have sex with a doll, simulated sexual conduct and told her that they watched adult movies on television and the internet. The children also told the caseworker that their uncle gives C.F.L. beer to make him sleep.

According to the caseworker, F.R. did not intervene when the children misbehaved and said the children do not listen to her or follow her instructions. F.R. refused to sign a document indicating her intention to adopt N.R.L.'s children and told the caseworker she would care for them only until N.R.L. was able to assume the responsibility.

The caseworker, who had arrived in Puerto Rico late on Friday and left on Saturday, did not contact the children's school or doctor. Although F.R. had purchased a van, the caseworker reported that F.R. admitted she had not taken them to the doctor or dentist and so did not have medication the children required. The children who required tinted glasses did not have them.

On February 11, 2006, the Division removed the children from their grandmother's home and, with the exception of C.B.L. who required hospitalization because of her mental state, placed the children in foster homes pending reunification with their parents. On February 27, 2006, the Division obtained court approval to return the children to their parents gradually and while providing significant support services. The Division arranged for direct assistance in the home through Bayada Nurses, individual counseling for N.R.L., therapeutic visitation at Adoption House, family counseling and preservation services and in-home counseling. The Bayada Nurses met with considerable difficulties attributable to N.R.L.'s confrontational and aggressive behavior.

Despite the opportunity for reunification and the extensive services provided to the family, in late December 2006 N.R.L. left her children for three days. During her absence she resumed use of cocaine and returned home while under the influence of the drug.

On December 29, 2006, the children, with the exception of C.B.L. who had remained in a therapeutic placement, were removed from their parents' home for the final time and again placed in foster homes. N.R.L's children have been placed multiple times. Not counting the series of departures from and return to the homes of their parents and grandmother, by July 2007, G.L. had seven placements, C.B.L. had eleven, C.N.L. had nine and C.F.L. had six. C.B.L.'s placements included multiple hospitalizations and placements in therapeutic group homes.

Psychologists who evaluated the parents and children concluded that termination of parental rights was in the best interests of these children. No parental bond was detected between the children and their father, and the children had distanced themselves from their mother and did not favor reunification with her. The psychologists concluded that none of the children would endure significant additional harm if parental rights were terminated and noted that all of the children were in need of a stable and secure relationship with an adult who was able and willing to care for them.

All four of the children have consistently expressed a preference for remaining together and returning to their grandmother's home. Only one of the children indicated a willingness to return to N.R.L., and that option was the child's second choice.

When trial commenced in July 2007, the Division's plan for permanency was select home adoption. None of the children had been in a foster home for more than seven months. During the course of the trial, however, the Division's plan for permanency shifted to adoption by foster parents. That plan continued to evolve as the trial progressed.

According to the caseworker, one foster parent was considering adopting G.L., C.F.L. and C.B.L. G.L. had been placed in that home after she was removed from her parents' home in late December 2006; C.F.L. arrived in February 2007.

C.B.L., who had suffered a breakdown when she could not be returned to her mother in December 2006, was living in Davis House, which the Division described as "step down from a psychiatric hospitalization." It is unclear as to whether she has ever been placed with that foster family.*fn1 In July 2007, C.N.L. was with a different foster family that was contemplating adoption. By the end of the trial in August 2007, however, the caseworker advised that G.L.'s foster family was considering adopting all four of the children.

The Division presented no evidence as to whether any of the children have developed a bond with a foster parent. The Division acknowledged that all four children prefer to remain together and with F.R.

Dr. Ernesto L. Perdomo, a clinical psychologist, evaluated F.R. in January 2007. F.R. was sixty-eight years of age at that time. Dr. Perdomo found her thought process to be well-organized and focused, her speech coherent and relevant and her mood and affect appropriate. Based on testing, he concluded that her intelligence is within the low-average range. While noting her immaturity, he concluded that she has "a good grasp on reality," the "ability to organize her life," "the ability to empathize," and no significant "mental or psychiatric disorders."

In Dr. Perdomo's opinion, F.R. has "significant positive qualities that will help her to provide effective parenting" to her grandchildren and their placement with F.R. will not put them at risk. Dr. Perdomo was aware of the Division's concern about the children's exposure to pornographic materials while in F.R.'s custody, but concluded that the allegation was unsubstantiated. It is not clear whether Dr. Perdomo was aware of the fact that there were indications of the children's exposure to sexual conduct before they were placed with F.R. in 2005. Dr. Perdomo also acknowledged that F.R.'s age was a factor, but he concluded that any concerns could be addressed by the child protective services agency in Puerto Rico.

The trial court ordered the Division to secure an evaluation of the children's circumstances in Puerto Rico from the local protective services agency. The agency promised to provide a report, but it was not delivered before the termination trial was concluded.

Despite the fluidity of the Division's permanency plan, the children's preference for remaining together and with F.R. and the paucity of the Division's evidence about the care the children received in her custody, the Division took the position that placement with F.R. was not an option. The Division ruled out F.R. as a caretaker in part because of the behavior observed by the caseworker who visited in December 2005 and in part because she was unwilling to adopt the children.

Dr. Perdomo's report on his evaluation of F.R. was introduced into evidence, but he did not testify. Although Dr. Perdomo testified on behalf of the Division about his evaluation of C.L., the deputy attorney general representing the Division objected to the defense questioning Dr. Perdomo about his evaluation of F.R. before the Division completed presentation of its case. When the Division rested on August 9, 2007, Dr. Perdomo's schedule precluded him from testifying before September.

The defendants were prepared to provide testimony from F.R. via telephone. But, the Division objected, and the trial court did not permit the telephonic testimony.

The defense asked the court to adjourn the proceeding until September. In support of that application, defense counsel noted that the Division had not yet secured the evaluation expected from Puerto Rico and that F.R. and Dr. Perdomo would be available to testify in September. The adjournment was denied on the ground that questions about the children's placement with F.R. were collateral to the termination proceeding.

On December 17, 2007, the trial court delivered its oral opinion. That decision includes a determination about kinship legal guardianship. The court concluded that F.R. is unwilling and unable to care for N.R.L.'s children on a permanent basis and rejected the possibility of her serving as the children's kinship legal guardian.

N.R.L. argues that the court erred by making determinations about kinship legal guardianship on this record. We agree.

Kinship legal guardianship is an alternative to termination of parental rights when adoption is neither likely nor feasible. N.J.S.A. 3B:12A-1c; P.P., supra, 180 N.J. at 508-09. In order to qualify as a kinship legal guardian, a person, among other things, must be willing and able to provide a safe and permanent home for the children. N.J.S.A. 3B:12A-6.

Because the prospects for adoption of these four children, three of whom have special needs, were far from clear, it was not improper for the trial court to consider whether F.R. could serve as their kinship legal guardian. N.J.S.A. 30:4C-15.1a(3); N.J.S.A. 30:4C-87a. It was, however, improper to determine that issue without affording the defense an opportunity to present relevant evidence after a brief adjournment.

While "[t]he granting of trial adjournments rests within the sound discretion of the trial court," State v. Smith, 87 N.J. Super. 98, 105-06 (App. Div. 1965), the denial of the adjournment requested by the defense in this case was not the product of a sound exercise of that discretion. As a consequence, the court was deprived of evidence relevant to the only seriously disputed issue in the case and was compelled to make findings about F.R.'s intentions and capacity to care for these children without the benefit of F.R.'s testimony or that of the psychologist who evaluated her. Instead, the court relied largely, if not exclusively, on the testimony of one caseworker who spent a few hours in F.R.'s home in December 2005.*fn2

Parents whose parental rights are at issue have a right to present evidence in their defense and in their children's best interests. See Div. of Youth and Family Servs. v. M.Y.J.P., 360 N.J. Super. 426, 471 (App. Div.), certif. denied, 177 N.J. 575 (2003), cert. denied, 540 U.S. 1162, 124 S.Ct. 1176, 157 L.Ed. 2d 1207 (2004). Accordingly, courts should exercise discretion in favor of receiving essential competent evidence in termination cases. "Caution is appropriate because termination of parental rights does not automatically lead to adoption or other comparable permanent arrangements." K.H.O., supra, 161 N.J. 337, 359.

We do not suggest that parents may exercise their right to present evidence in a dilatory manner so as to avoid a termination of parental rights and deprive their children of permanency, but that was not the case here. The Division was, at a minimum, partially responsible for the unavailability of the evidence concerning the conditions in Puerto Rico and the difficulties the defense encountered in presenting relevant testimony.*fn3 Further, the adjournment requested was brief, especially when viewed in light of the time that elapsed between the conclusion of trial and issuance of the final decision and the brevity of the children's relationships with their foster parents.

A remand is required to address this error. The court should receive testimony from Dr. Perdomo and F.R. and consider the report from the child protective services agency in Puerto Rico. On remand the court should also permit the Division to present more complete information about the likelihood and feasibility of adoption and, if warranted, the present condition of these four children and their relationship with their foster parents. See N.J.S.A. 30:4C-15.1a(4); P.P., supra, 180 N.J. at 513-14. Because the record discloses some confusion about the legal significance of F.R.'s unwillingness to adopt, we remind the parties that the question relevant to F.R.'s qualification for kinship legal guardianship is whether she is willing to provide a permanent home. If adoption by F.R., or someone else, is feasible or likely for one or more of the children, then kinship legal guardianship is not an option for those children.

N.R.L.'s objections to the trial court's consideration of documentary evidence introduced at trial and the testimony of Betty Berzin lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

The matter is remanded for further proceedings consistent with this decision. We retain jurisdiction. Proceedings and the judge's oral or written findings and conclusions must be completed and submitted to the Clerk of this court by February 1, 2009. Upon filing of the judge's decision and order, within five days of the decision, the Clerk of the Appellate Division will issue a schedule for expedited briefing and review by this court.

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