January 20, 2009
STATE OF NEW JERSEY, DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF J.D. AND A.D., MINORS.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FG-15-32-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 17, 2008
Before Judges Rodríguez, Waugh and Newman.
C.A.'s parental rights to her two oldest children, J.D. and A.D., were terminated. The father of both children, K.D., does not appeal the termination of his parental rights. Both children currently reside with their paternal grandparents who wish to adopt them.
The Division of Youth and Family Services (DYFS) became involved with the family due to C.A. and K.D.'s use of controlled dangerous substances, in particular marijuana and cocaine. C.A. has not been able to overcome her addiction and has a criminal history involving theft.
C.A. challenges the termination of her rights to J.D. on the basis that J.D. was not in the "care or custody" of DYFS when the guardianship complaint was filed. With respect to both children, C.A. challenges Judge Ronald E. Hoffman's finding that the four prongs of the best interests standard, N.J.S.A. 30:4C-15.1(a), were proven by clear and convincing evidence. Subsequent to the termination of her rights, this court granted C.A. the opportunity to file a Rule 4:50 motion with the trial court while her appeal was pending. C.A. sought relief from the termination of her rights because of post-termination progress she was making under the Intensive Supervision Probation program (ISP). During the remand proceedings, C.A. tested positive for cocaine use, was removed from ISP supervision and reincarcerated. Judge Hoffman denied the Rule 4:50 motion, commenting:
I am more convinced now than ever that the decision that I made in June of 2007 was the appropriate decision and I am very much convinced that the decision that I made terminating the parental rights of [C.A.] and [K.D.] was clearly in the best interest of both of these children.
C.A. appeals both from the orders terminating her parental rights and denying her Rule 4:50 motion. We affirm.
In finding that the children's best interests called for termination of C.A.'s parental rights, Judge Hoffman considered each prong of the four-pronged test. We reiterate each of his relevant findings of facts and conclusions of law. With regard to the first prong under N.J.S.A. 30:4C-15.1(a)(1), which focuses on the harm arising over the parent-child relationship over time and in the foreseeable future, N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 607 (1986), the trial judge stated:
I have no problem finding that the child's health, safety and development certainly was endangered in the past by the parental relationship between both of these biological parents. Both have a long history of substance abuse. There is a history of DYFS involvement. There is a relatively long history of lack of suitable housing, homelessness, a failure to plan or a failure to supervise the children to the point where, with regard to [J.D.], the paternal grandparents sought custody and obtained custody of him. With regard to [A.D.], she in effect was abandoned with a care-giver for a number of days by [C.A.] which caused the Division to get involved, seeking custody of her. I find by clear and convincing evidence that the children's safety, health and development has been in the past endangered by the parental relationship.*fn1
Under the second-prong of the best interests test, pursuant to N.J.S.A. 30:4C-15.1(a)(2) that the parent is unwilling or unable to eliminate the harm to the children and the delay of permanent placement will add to that harm, the trial judge found a likelihood of future harm if C.A.'s parental rights were not terminated:
It's my finding of the psychological evaluation, that she is unable to eliminate the harm facing the child or to provide a safe and stable home for the child. In the past she has had ample opportunity to participate in services, she ultimately did participate, but she failed to participate in a couple at least, a couple inpatient programs or outpatient programs. She failed to appear on multiple occasions for substance abuse evaluations. . . . She did continue to test positive for drugs, and she didn't have any stable housing really until she was incarcerated and housed at Edna Mahan and then ultimately in the three-quarter house.
You can't ignore Dr. Lee's unrebutted recommendations and observations with regard to recidivism and relapse risks. . . . It's my finding by clear and convincing evidence that she's unable to provide a safe and stable home for the children and unable to eliminate the harm facing the children.
The third prong of the best interests test under N.J.S.A. 30:4C-15.1(a)(3) requires DYFS to make reasonable efforts to provide the parent with services to correct the problems that led to the removal of the children from their care. Even though C.A. does not contest the trial judge's findings on this prong, he found, "the Division has made reasonable efforts. That was found at permanency hearings that were conducted here by a preponderance of the evidence. I find hereby clear and convincing evidence that they did make reasonable efforts to provide the services necessary."
The fourth prong of the best interests standard in N.J.S.A. 30:4C-15.1(a) requires the determination of whether the termination of the parental rights will do more harm than good to the children at issue. In cases where the child has been placed in foster care, the necessary inquiry is "whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with her natural parents than from the permanent disruption of her relationship with her foster parents." In re Guardianship of K.H.O., 161 N.J. 337, 355 (1999). This inquiry requires expert opinion testifying to the strength of the relationship between the child and their biological and foster parents. Ibid.
With respect to this final prong, the trial judge found, [J.D. and A.D.] get along with each other. They get along with their grandparents. The house is appropriate. They're happy. The paternal grandparents are providing for their medical needs. There aren't any other special needs that the children have. . . .
Dr. Lee indicates that if the children were removed from the paternal grandparents, they would suffer emotionally and psychologically. He finds that there's no strong psychological bond or attachment to the children to the defendant mother, and there would be no harm to the children if [termination of parental rights] was granted.
On appeal, C.A. raises the following issues for our consideration:
POINT I: THE TRIAL COURT ERRED WHEN IT ADDED J.D. TO THE GUARDIANSHIP LITIGATION AT THE DIVISION'S REQUEST SINCE HE WAS NEVER IN THE "CARE OR CUSTODY" OF THE DIVISION WHICH IS A PREREQUISITE TO THE DIVISION'S STANDING TO SEEK GUARDIANSHIP IN THE BEST INTERESTS OF A CHILD.
POINT II: THE TRIAL COURT'S DECISION IS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE AS TO THE FOUR PRONGS OF N.J.S.A. 30:4C-15.1(a). THERE WAS LITTLE OR NO EVIDENCE THAT C.A. ACTUALLY HARMED HER CHILDREN AND THERE WAS SIGNIFICANT EVIDENCE THAT SHE COULD BECOME FIT TO PARENT. MOREOVER, THE OBVIOUS ALTERNATIVE TO TERMINATION OF PARENTAL RIGHTS WAS NOT PROPERLY EXPLORED AND, GIVEN THE CARETAKERS' AGE AND ILL HEALTH, SEVERING OF PARENTAL TIES WAS NOT IN THE CHILDREN'S BEST INTERESTS.
A. THE TRIAL COURT'S FINDING THAT C.A. CAUSED HARM TO HER CHILDREN WAS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE WHERE THERE WAS NO EVIDENCE OF ACTUAL HARM AND EVIDENCE OF A PROBABLITY OF FUTURE HARM WAS MERELY SPECULATIVE.
B. THERE WAS NOT CLEAR AND CONVINCING EVIDENCE TO SUPPORT THE TRIAL COURT'S DETERMINATION THAT C.A. WAS UNABLE TO ELIMINATE HARM TO HER CHILDREN.
C. THE TRIAL COURT FAILED TO ADEQUATELY AND CORRECTLY CONSIDER KINSHIP LEGAL GUARDIANSHIP AS AN ALTERNATIVE TO TERMINATION OF PARENTAL RIGHTS WHERE THE GRANDPARENTS CLEARLY LEANED TOWARD KINSHIP LEGAL GUARDIANSHIP RATHER THAN ADOPTION BEFORE THE DIVISION PRESSURED THEM.
D. THE TRIAL COURT'S CONCLUSION THAT TERMINATION OF C.A.'S PARENTAL RIGHTS WOULD NOT RESULT IN MORE HARM THAN GOOD WAS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE WHERE THERE WAS SIGNIFICANT EVIDENCE CALLING INTO QUESTION THE CAPABILITY OF THE CARETAKERS TO PROVIDE A LONG-TERM SAFE AND STABLE HOME FOR J.D. AND A.D.
POINT III: THE TRIAL COURT ERRED IN DENYING C.A.'S REQUEST FOR RELIEF FROM THE ORIGINAL JUDGMENT BEFORE TAKING TESTIMONY FROM QUALIFIED EXPERTS AS TO A.D.'S POSSIBLE SPECIAL NEEDS.
We address C.A.'s arguments in the order raised.
C.A. argues in Point I that the trial court erred in adding J.D. to the guardianship complaint because he was never under the "care or custody" of DYFS. M.D., the paternal grandmother, obtained custody through private litigation. C.A. contends that the termination of her rights to J.D. should therefore be reversed.
N.J.S.A. 30:4C-15(c) requires that for DYFS to pursue guardianship of a child under the best interests standard, the child must be "under the care or custody of the division." The original guardianship complaint was filed only with respect to A.D. J.D. was subsequently added to the action on May 25, 2006. The issue of J.D. not being properly brought into the action was mentioned at the guardianship hearing:
THE COURT: And, now we have the two other children as to both of them.
MS. POPKIN (Law Guardian): Your Honor, the title of this is the guardianship matter of [A.D]. It does not say anything about [J.D.] Is it for both?
MS. ANATALE (attorney for DYFS): Uh-huh. We amended it at one point. I don't remember when.
MS. POPKIN: Thank you.
During the above exchange, C.A. and her attorney were present in court. C.A.'s attorney did not object to the inclusion of J.D. in the guardianship hearing. Nor did C.A.'s attorney object to the inclusion of J.D. in the guardianship complaint at the May 25, 2006, permanency hearing. However, Judge Hoffman expressly advised counsel that if they thought it inappropriate for J.D. to be added to the complaint, then they could make "an application to delete [J.D.]" and the application would "certainly [be] entertain[ed] in the future." No such application was subsequently made. Under these circumstances, with the issue being raised for the first time on appeal and not so noted, we need not even address this argument. However, because this appeal involves the profound right of parental termination, we address the issue on the merits. See State v. Birkenmeier, 185 N.J. 552, 563 n.2 (2006).
DYFS acknowledges that it did not file for custody under the abuse and neglect statutes. Nonetheless, DYFS maintains that any procedural flaw in the manner in which it obtained custody of J.D. elevates form over substance, especially where, as here, a trial was held and DYFS had to satisfy the clear and convincing standard of proof with C.A.'s participation and representation by counsel. We agree.
This court in comparable circumstances in N.J. Div. of Youth & Family Servs. v. Wunnenberg, 169 N.J. Super. 417, 420 (App. Div.) certif. denied, 82 N.J. 270 (1979), had this to say:
Not only is this new objection of a nature which might be characterized as technical (although we do not disparage insistence on statutory compliance) but, perhaps more to the point, had it been timely made below the course of the litigation might easily have been steered in a straighter path. Additionally, even if we were to accept appellants' argument, it is difficult to discern exactly how they have been prejudiced by the aberration of which they now complain. They were not denied a full adversarial hearing on the ultimate issues.*fn2
C.A.'s reliance on N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245 (App. Div. 2002), to support her position that the procedural flaws committed by DYFS warrant a reversal of the guardianship judgment with respect to J.D., is misplaced. There the trial court treated the fact finding in a "perfunctory manner . . . [which] undermined its importance and relegated it to a mere technicality." Id. at 263. "[T]he manner in which the entire proceeding was conducted included none of the elements ordinarily deemed indispensable to an adjudicative hearing. Documents were reviewed and considered by the court without any identification for the record." Id. at 264. In J.Y., the judge had the parties stipulate to an unspecified act of abuse or neglect rather than have a fact-finding hearing. Id. at 265-66. The judge did so without determining that the parents were aware they were relinquishing their right to a fact-finding hearing. Id. at 266.
Unlike J.Y., C.A. did not relinquish her rights to a fact-finding hearing nor is there any allegation that evidence was not properly submitted to the court. C.A. was afforded a full fact-finding hearing on the ultimate issue of the best interests of J.D.
Moreover, the adoption of J.D. could have proceeded under N.J.S.A. 9:3-46, which allows a court to terminate a parent's rights when the child is not under the care or custody of DYFS if the court finds that the parent has not fulfilled any parental functions and the adoption is in the best interests of the child. Under either N.J.S.A. 9:3-46 or N.J.S.A. 30:4C-15.1, the ultimate question is whether it is in the best interests of the child to terminate their parent's rights. No prejudice to C.A. has resulted because her parental rights to J.D. were fully litigated at trial.
Indeed, if there was any remedy to be accorded to C.A. for a procedural misstep, it would have been a remand for a full hearing on the best interests of J.D. That has already taken place. There is no basis for a "second bite at the apple."
Under Point II, C.A. argues that DYFS did not satisfy the four prongs of N.J.S.A. 30:4-15.1(a) as is necessary to terminate her parental rights to A.D. and J.D. C.A. does not challenge the trial judge's finding that she struggles with an addiction to controlled dangerous substances. Rather C.A. attacks the trial judge's finding that her addiction at any time caused harm to her children. C.A. relies on the DYFS reports that always found the children to be "neat and clean" and generally well cared for when she had custody of them. Relying on N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596 (2007), C.A. argues that the trial judge incorrectly "presumed that the parents' history of substance abuse and/or 'lack of suitable housing' equated with harm." C.A. maintains that there needs to be a specific instance of abuse or neglect to constitute a finding of harm pursuant to N.J.S.A. 30:4C-15.1(a)(1).
C.A.'s contention that a finding of a specific instance of abuse or neglect is necessary for termination of parental rights is not the standard under the law. Our Supreme Court stated that even if the "findings made by the trial court referred to the abandonment standard of N.J.S.A. 30:4C-15(d), those findings and the underlying evidence are relevant to the criteria of the best interests inquiry" of N.J.S.A. 30:4C-15.1(a). In re Guardianship of D.M.H., 161 N.J. 365, 378 (1999). "The best interests of the child standard requires a showing of very substantial and continuing or recurrent abuse or neglect that endangers the child's health and development" while "abandonment requires a showing of volitional conduct in failing to care for and protect the child that amounts to a repudiation or forsaking of parental obligations." Id. at 377.
Under the best interests standard, the children have been harmed by the continued inability of C.A. to provide them with stable housing or maternal support. After the removal of A.D., C.A. was incarcerated, lived in both half-way and three-quarter houses, and continued her drug use.
Both J.D. and A.D. have been harmed by their relationship with their mother due to C.A.'s abandonment of J.D. and her subsequent inability to provide a stable living situation for them. The trial judge's finding of harm is well supported by the record.
C.A. argues that the trial court did not afford sufficient weight to the progress that she had made at the time of the guardianship trial in 2007. The trial court, she asserts, should have afforded her more time to meet all the necessary requirements to having her children returned to her since she has made some advancement in her fight against substance abuse.
The second prong of the statute focuses on parental unfitness. K.H.O., supra, 161 N.J. at 353. Parental unfitness can be demonstrated by the failure of the parent to provide a stable home resulting in a delay in the permanent placement of the child. Ibid.
In determining C.A.'s parental fitness, the trial court did consider the advancements that C.A. had made at the time of trial, but found more convincing the findings of Dr. Lee that C.A. was at a high risk for recidivism and regression.*fn3 Past course of conduct may be a reliable predictor of probable future conduct. J. and E. v. M. and F., 157 N.J. Super. 478, 493 (App. Div.), certif. denied, 77 N.J. 490 (1978). Indeed, Dr. Lee's concerns were later borne out when C.A. continued her pattern of drug abuse during the remand proceedings.
Dr. Lee's expert opinion and C.A.'s own conduct support the trial judge's finding that C.A. will not be able to overcome her drug addiction or criminal recidivism in the foreseeable future. Additionally, the children have formed strong and enduring bonds with the paternal grandparents due to C.A.'s inability to provide them with a stable home. We discern no basis to disturb the trial court's finding that the second prong of the best interests standard has been satisfied.
C.A. does not challenge whether DYFS has provided "reasonable services" to her under the third prong of the best interests test. Rather, she argues that DYFS did not pursue kinship legal guardianship. In so arguing, C.A. maintains that DYFS mischaracterized kinship legal guardianship to the paternal grandparents and it was this mischaracterization that led the grandparents to want to adopt the children.
The trial court found that, "[t]he kinship legal guardianship issue was addressed by the caseworker in the past with the paternal grandparents, by the Law Guardian's Office recently and by the court with participation of counsel very recently during the course of this particular trial." The trial judge placed two different phone calls with the paternal grandparents to discuss kinship legal guardianship. During the first call, the trial judge explained the concept of kinship legal guardianship and answered questions from M.D., J.D.'s paternal grandmother. A few days later, during the second phone call, the trial judge spoke with I.D., the paternal grandfather. The trial judge found:
[I.D.] testified that both he and his wife understood the difference between adoption and kinship legal guardianship. . . . [H]e pretty adamantly stated that their preference would be adoption. . . . They were not interested in a kinship legal guardianship situation. They appeared to testify believably and credibly to me.
The trial judge found that alternatives to termination, particularly kinship legal guardianship, were considered. Additionally, "when the permanency provided by adoption is available, kinship legal guardianship cannot be used as a defense to termination of parental rights under N.J.S.A. 30:4C-15.1(a)(3)." Div. Youth & Family Servs. v. P.P., 180 N.J. 494, 513 (2004). Here, the paternal grandparents are ready and willing to adopt. Thus, kinship legal guardianship is unavailable as an alternative to termination.
C.A. does not directly challenge the results of the bonding evaluations under the fourth prong of the best interests test and the finding that no harm will result to the children upon termination. Instead C.A. argues that the grandparents are inappropriate permanent caretakers for J.D. and A.D. C.A. refers to the grandparents' unwillingness at times to cooperate with DYFS as well as their possibly ailing health as reasons that M.D. and I.D. should not be considered a permanent placement option for her young children.
The alleged unwillingness to cooperate seems more emblematic of the frustration encountered by the grandparents in navigating the channel to adoption, especially with some of the obstacles put in their way by C.A.'s contacting them when prohibited from doing so by court order. The health of the grandparents stands merely as an allegation, lacking any concrete proofs.
The law of this State strongly favors permanency for children removed from their parents. K.H.O., supra, 161 N.J. at 357-58. This strong public policy, in conjunction with the expert testimony by Dr. Lee concerning the bonds between the children and their paternal grandparents, furnished a well-grounded basis for the trial judge to have found clear and convincing evidence that the termination of C.A.'s rights would not do more harm than good.
In Point III, C.A. contends that the trial court should have heard expert testimony regarding the allegation that A.D. might suffer from autism and granted the motion to vacate the order of termination of parental rights based on the failure to take such testimony.
There was no evidence presented that A.D. suffers from autism. She had no developmental delays, except that she walks on her toes. The notion of autism was just a thought the grandmother had while watching a segment of the "Oprah" show. The paternal grandmother acknowledged she had no medical training. A.D.'s pediatrician never suggested that she had autism. No competent showing was made to require that the trial court entertain expert testimony on A.D.'s alleged autism.
To the extent that C.A. relies on In re Guardianship of J.N.H., 172 N.J. 440 (2002), to support her position, that case is distinguishable. In J.N.H., a parent sought vacation of a judgment of guardianship after her counsel failed, among other things, to file a brief in timely manner. Id. 464-65. The mother had rehabilitated herself in some fashion and the child in J.N.H. suffered emotional harm which should have undergone a more in-depth analysis by an expert in the remand court. Id. at 479-80.
Here, the child does not suffer from autism or any developmental delays. Moreover, C.A. had not only failed to rehabilitate herself, but decompensated during the remand hearing by resumed cocaine use for a month, failed to pay her rent and lost her job, all of which led to her violation under ISP supervision and reincarceration. The motion to vacate under Rule 4:50 was properly denied.
The orders terminating C.A.'s parental rights to her children A.D. and J.D. and denying C.A.'s Rule 4:50 motion are affirmed.