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Division of Youth and Family Services v. S.M.


July 2, 2009


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-151-07.

Per curiam.



Submitted May 5, 2009

Before Judges Parker, Yannotti and LeWinn.

These two appeals, which we decide in this opinion, arise from proceedings in the Family Part that culminated in the termination of defendant S.M.'s parental rights to his minor child, B.S.M., and the approval of the permanency plan proffered by the Division of Youth and Family Services (DYFS) that B.S.M. be adopted by his foster parent. In Docket No. A-6115-07, S.M. appeals from the June 27, 2008 termination order. In Docket No. A-5890-07, DYFS appeals from the provision in the June 27, 2008 order that the "paternal grandmother [C.M.] shall be given a 5A form and appointed counsel so that she may be represented in a best interests hearing" regarding B.S.M.'s placement.*fn1

For the reasons that follow, we affirm the part of the June 27, 2008 order terminating S.M.'s parental rights; and we reverse the portion of the order granting C.M. the right to a best interests hearing.


The pertinent factual background may be summarized as follows. B.S.M. was born to Y.R. and S.M. on August 25, 2001. As a result of Y.R.'s chronic drug addiction, B.S.M. tested positive for opiates and methadone at birth. Following approximately two months of inpatient treatment, B.S.M. was released to the custody of S.M. and C.M.

B.S.M. remained in the custody of his father and paternal grandmother for approximately three-and-one-half years. On February 4, 2003, the Family Part entered an order, under Docket No. FD-07-4692-03, granting joint legal custody of B.S.M. to S.M and C.M.

S.M. was subsequently incarcerated. B.S.M. continued in C.M.'s custody until January 31, 2005. On that date, C.M. left the child in the care and custody of Y.R., who had been released from a drug treatment program approximately one week earlier.

While caring for B.S.M., Y.R. took a large amount of Xanax*fn2 and passed out in the middle of a street Y.R. and the child were transported to the hospital and DYFS was contacted. B.S.M. was immediately placed in protective custody through an emergency removal. Because of the incident of January 31, 2005, DYFS sought the immediate removal of B.S.M. from C.M.'s custody. Y.R. was arrested and charged with child endangerment.

On February 2, 2005, DYFS filed an order to show cause and complaint against Y.R. and S.M. seeking guardianship of B.S.M. C.M. was never added as a party to the guardianship proceedings.

C.M. appeared as a witness on behalf of S.M. at the hearing on the order to show cause, and expressed interest in having B.S.M. returned to her. DYFS objected, however, arguing that it had been C.M.'s action in leaving the child with Y.R. that had precipitated the removal proceedings.

Y.R. executed a voluntary surrender of her parental rights to B.S.M. The court then proceeded to trial regarding S.M.'s parental rights. The trial evidence established the following.

S.M. acknowledged that he had been arrested about thirty times and had spent approximately six years in incarceration. Upon S.M.'s release from incarceration in March 2005, DYFS offered him substance abuse treatment services. S.M. signed a written case plan agreeing to comply with DYFS's drug treatment referrals, and successfully completed a seven-day detoxification program in January 2006; however, he refused any additional treatment beyond that. In February 2006, S.M. failed to comply with a DYFS referral to an inpatient program at Integrity House. This pattern of rejecting DYFS drug treatment referrals continued unabated. On December 20, 2007, S.M. tested positive for heroin and cocaine. In March 2008, S.M. advised a substance abuse assessor that he was using heroin daily; he also testified positive for opiates at that time.

In December 2007, Andrew P. Brown, III, Ph.D., conducted a psychological evaluation of S.M. on behalf of DYFS. During that evaluation, S.M. told Dr. Brown that he continued to use heroin and that he had an extensive criminal record, including an arrest as recent as September 2007. S.M. stated that he would "love to be with" B.S.M., but described his life as "a gamble . . . ."

Dr. Brown opined "[w]ithin a reasonable degree of psychological certainty" that S.M. was not presently capable of parenting B.S.M. and, given S.M.'s "chronic narcotic addiction without completion of formal treatment, sustained legal difficulties, and poor insight[,]" the doctor had little confidence that S.M. would ever gain the ability to parent B.S.M.

After B.S.M.'s removal from C.M.'s custody, the child was placed with several different family members; however, each relative was ultimately found unacceptable for various reasons, including causing physical harm to B.S.M. and exposing the child to sexual assault while in their custody.

On January 25, 2007, B.S.M. was placed in a therapeutic foster home, where he has remained ever since. His foster mother has dealt with B.S.M.'s frequent episodes of disruptive behaviors at home and school, but nonetheless is committed to adopting him.

DYFS arranged visitation for S.M. and C.M. with B.S.M. during the litigation. In November 2007, B.S.M.'s foster parent reported that the child was exhibiting disruptive behavior following visits with S.M. In March 2008, the trial judge suspended S.M.'s visitation with B.S.M. based upon evidence that those visits were detrimental to the child.

Dr. Brown submitted an evaluation in connection with the visitation issue, and opined that "sustained visits with [S.M.] induces psychological decompensation characterized by emotional, behavioral, and social turmoil in [B.S.M.] to such an extent that he recently required psychiatric hospitalization."

S.M. testified at trial. He proffered no expert testimony in rebuttal to Dr. Brown's opinions, however. Nor did he offer any explanation for his failure to complete or cooperate with any DYFS-referred drug treatment programs over the prior three years. S.M. admitted that he had used heroin during the week before trial. He stated that he did not address his drug problem because he wanted his mother, C.M., to take custody of B.S.M.

C.M. also testified and acknowledged that she knew S.M. had abused heroin for many years, including during the time that B.S.M. lived with the two of them. Nothwithstanding this, she permitted S.M. to have unsupervised contact with B.S.M. C.M. testified that she did not believe that S.M.'s drug use posed a risk to B.S.M. because she did not allow S.M. to bring heroin into her home.

C.M. acknowledged that she had received a rule-out letter from DYFS on March 5, 2008, excluding her as an acceptable resource placement, and that she had consulted with an attorney upon receipt of that letter; however, she did not appeal the decision.

C.M., who was seventy-five years old at the time of trial, testified that if she became too frail or weak to care for B.S.M., her son D.M. and his wife in North Carolina were willing to raise the child. DYFS caseworker Chemise Bryant testified, however, that DYFS had received no correspondence from D.M., nor any response to inquiries as to his interest in caring for the child.

The trial judge rendered a decision from the bench at the conclusion of all the testimony, finding that DYFS had met its burden of proof by clear and convincing evidence of the four statutory prongs in N.J.S.A. 30:4C-15.1(a)(1) to (4). The judge noted that the evidence of S.M.'s inability to parent and to eliminate the risk of harm to B.S.M. was essentially undisputed. The judge expressly rejected S.M.'s contention that although he continued to abuse drugs and did not seek treatment, he would not pose a risk of harm to B.S.M. Citing In re Guardianship of K.H.O., 161 N.J. 337 (1999), the judge found that S.M.'s drug abuse, in and of itself, constituted harm to the child. Likewise, the judge found that S.M.'s unabated drug use prevented him from providing B.S.M. with "a safe and stable home" in the foreseeable future.

The trial judge further determined that additional delay in B.S.M.'s permanent placement would compound the harm facing the child. The judge noted that B.S.M. had been in foster care for the past three years and had been in his therapeutic foster home for the past eighteen months. The judge accepted the bonding evaluation conducted by Dr. Brown, which concluded that B.S.M. had bonded to his foster parent.

The judge further found that DYFS had made reasonable efforts to help S.M. address his drug addiction problems in attempting to reunify him with B.S.M. The judge noted that S.M. had failed to comply with any of those efforts.

Finally, the judge concluded that termination of S.M.'s parental rights to B.S.M. would not do more harm than good. The judge based this finding on the stability B.S.M. had achieved with his current foster parent, as well S.M.'s inability and unwillingness to address his drug addiction problem. The judge stated that B.S.M. need[s] a psychological parent that will be permanent and . . . stable for the rest of his minor life, considering particularly his past history and since [S.M.] has been given three years to become that care giver and has not made . . . reasonable efforts to accomplish it and it hasn't been accomplished[,] I will terminate his parental rights.

The judge then rendered the following findings regarding C.M.:

[C.M.] presented herself as someone who was the custodial and legal guardian of the child for the first three and a half years of the child's life. And her rights were not treated appropriately.

And I think the [c]court needs to address that. However, she comes wanting to adopt the child, wanting to remove [S.M.] from the house. So since this [c]court's determined that . . . his rights should be terminated, and if [C.M.] was to have custody, he could not reside in the house, and would perhaps have supervised visitation. . . .

This is not a case in which K[inship] L[egal] G[uardianship] [(K.L.G)] was rejected. . . . This was a case in which she was ruled out and we're at the circumstances now.

Listening to the testimony of [C.M.], she presents . . . that she was the primary care giver. She was the one who was there to be the psychological parent. . . .

She also obtained an order from the [c]court in February 2003 . . . that she had legal custody, albeit legal custody with the biological father. But she was granted by the [c]court legal custody . . . so she wasn't only the de facto parent but she had the legal custody, so she could make decisions as to his health [and] his schooling . . . .

Now, that being a fact, [DYFS] and the [c]court wholly ignored what had been the actual situation of parenting by this child for the first three years of this child's life[,] meaning that being with [C.M.]

Now, I believe it's colorable that if you read the statute, [DYFS] is to give notice to custodians or guardians if they're taking custody, and not simply to the biological parent. . . .

For whatever reasons, . . . that information wasn't brought sufficiently to anyone's attention for that to have been done. . . .

Well, the record that I have from [C.M.], and I may not have a full record, but I'm going to lead to what I think we should do . . . .

So, . . . when [C.M.] approached [DYFS] that she wanted custody, they treated her as a relative resource who never had custody of the child, had never been the child's psychological parent, and treated as just any normal one.

And then they decided . . . that because she allowed the child to go because of the underlying incident, that was an instance of neglect or abuse, and they rejected her as a resource parent on that basis.

That in itself is somewhat unusual. Usually . . . relative resources aren't rejected because of the incident that caused [DYFS] to take custody.

So they did decide that, so they made a determination . . . that she was guilty of neglect or abuse and told her she'd never be able to have any kids.

But . . . she was never a party to and never had the right to contest that finding of neglect or abuse.

Now, she didn't respond to that timely, she didn't speak to attorneys . . . .

Now, the question is what the [c]court should do now that we're three years down the road. . . . That [DYFS] didn't even approach [C.M.] to at least have her have supervised visitation to have some continuity and . . . be able to deal with the behavior issues that the child experienced. I'm sure some of it has to be attributed to his having been taken from the grandmother and she was wholly ignored.

Based upon these findings, the judge ordered a "best interest hearing . . . to consider whether or not [C.M.] can be or is a viable person that the child should be placed with, rather than . . . the adoptive parent[]." The judge noted that the adoptive parent had "done well for the last year and a half[,]" but opined that C.M. could obtain a bonding evaluation to determine whether "the child knows her, remembers her, she was there for the first two or three years of his life, and it may present some colorable situation."

The judge then ordered that C.M. apply for representation by the Office of the Public Defender, finding that "she deserves this because she would have absolutely been given an attorney if . . . she was aggressive enough and came to [c]court and expressed it, or if somebody else had discovered it early on."

The judge acknowledged that he did not know "[w]hether or not it would . . . ever [have] resulted in" C.M. being awarded K.L.G. of B.S.M. Nonetheless, he concluded that C.M. "deserves . . . a best interest hearing, and her ability to present how she's a viable relative resource and she would be a better resource for adoption than the adoptive parent." The judge also acknowledged that the trial evidence had raised questions as to C.M.'s fitness to parent B.S.M., stating that he "certainly will open it up for that kind of a presentation at a best interest hearing."

Counsel for DYFS protested that the agency had assessed C.M. "appropriately as a relative resource and not as a parent." Counsel further pointed to Dr. Brown's unrebutted testimony that it was in B.S.M.'s best interest to be adopted "by his current care taker . . . ." The judge reiterated that "this [wa]s not the usual rule out situation, it . . . seem[ed] to be something else presented to the [c]court."

DYFS moved for reconsideration of this ruling; on July 22, 2008, the judge denied that motion, stating that he was "not convinced that under the unique facts in this case . . . there should not be any best interest hearing, or whatever type of hearing you want to call what I've scheduled for . . . [C.M.]."


We turn first to the issues presented by DYFS in its appeal. Those issues, which have a significant bearing upon our consideration of S.M.'s appeal, are as follows:



A. The Trial Court's Factual Findings That The Paternal Grandmother [C.M.] Was "Wholly Ignore[d]" During The Protective Services Litigation Is Contrary To The Substantial And Credible Record Evidence

B. No Evidence Was Adduced At Trial to Support the Trial Court's Factual Conclusion that [B.S.M.]'s Removal from [C.M.'s] Home in January 2005 Caused Him to Suffer Lasting Psychological and Emotional Harm







It is clear that C.M. was never named as a defendant in this litigation. The record does reflect, however, that C.M. apparently was in contact with DYFS throughout the litigation following B.S.M.'s removal from her home.

On August 1, 2005, DYFS sent a letter to C.M. stating:

Thank you for your interest and cooperation.

As per the Division's Assessment, please be advised:

The Division has assessed your home and has determined that [B.S.M.] cannot be placed in your care because of the incident that took place on 1/31/05 involving inadequate supervision of the minor.

Please be advised that termination of parental rights may occur if [B.S.M.] remains in foster care for more than six months, and that the child may be placed for adoption.

If you disagree with this decision, you may request a review of the decision by an agency representative who has no role in this case. If you would like a review, please call the Administrative Review Officer at 33 Washington Street, 15th Floor, Newark, NJ 07101[,] #973-624-3678 within twenty (20) days of the date of this letter.

C.M. testified that she did not "remember doing anything about this [letter]." She "figured it was more [up] to [S.M.] and [Y.R.]. [She] kind of was in the background."

On June 25, 2007, at S.M.'s request, DYFS sent another letter to C.M., reminding her that on May 17, 2007, she had received a resource home application "in order for [her] home to be studied for the placement [of B.S.M.]." The letter further stated that, "[s]ince then, [DYFS had] attempted to reach [her] via telephone, however, [it] was unable to do so due to [her] telephone being disconnected." The letter advised C.M. that she was required to come to the DYFS office to be fingerprinted and to "return the resource home application . . . as soon as possible[,]" provided the address to which that application should be mailed and enclosed a pre-paid envelope.

C.M. testified that she recalled receiving that letter. She took no steps to respond, however, either by submitting the resource home application or by appearing for fingerprinting as required.

On March 5, 2008, in light of C.M.'s failure to comply with the directions in the June 25, 2007 letter, DYFS sent C.M. a second rule-out letter. Although C.M. consulted with an attorney about this letter, she took no steps to appeal the rule-out decision.

Under these circumstances, we concur with DYFS's contention that, although it did not name C.M. as a party to these proceedings, "[DYFS] treated her appropriately and she did not suffer any prejudice." DYFS notes the numerous instances in which it contacted C.M. to discuss B.S.M. and to set up visitation with the child, as well as the two relative resource assessments it offered C.M.

We are satisfied that the administrative processes available to C.M. throughout the termination litigation were adequate to protect her rights and her interest in the outcome of that litigation. Had C.M. seriously intended to seek to regain custody of B.S.M., she could, and should, have pursued her rights of appeal from the two separate rule-out letters she received. Clearly, she could have taken affirmative steps to respond to DYFS's June 25, 2007 letter reminding her to complete the previously furnished resource home application and to appear for fingerprinting. Rather than take any of these steps, however, C.M. did nothing other than appear as a witness on behalf of S.M. at trial.

Moreover, the record reflects that C.M. appeared in court on March 3, 2005, the return date for DYFS's order to show cause removing B.S.M. from C.M.'s residence because of the incident with Y.R. At that hearing, C.M. was sworn and asked the judge "whether [S.M.] and [she were] going to have [B.S.M.] back." The judge responded that it was "going to depend on a lot of things." In addition, C.M. had visitation with B.S.M. arranged by DYFS throughout the litigation.

The trial judge mentioned none of these facts in his decision; nor did he address C.M.'s failure to appeal either rule-out decision or her failure to return the resource application.

In light of this record, we conclude that the trial judge's finding that C.M. was "wholly ignored" by DYFS is "'manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence . . . .'" Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)).

We acknowledge that, as a general matter, the factfinding of family judges is accorded substantial deference, and such findings "are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). However, "[o]ur deference is . . . reduced when the focus is not credibility but 'alleged error in the trial judge's evaluation of the underlying facts and the implication to be drawn therefrom.'" N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 112 (App. Div.), certif. denied, 180 N.J. 456 (2004) (citation omitted).

We are further satisfied that the judge drew an inappropriate inference from Dr. Brown's expert testimony regarding B.S.M.'s strong bond to his foster parent and the trauma he would suffer if removed from her care, to conclude that B.S.M. "had an enduring and lasting bond with [C.M.] and would suffer enduring and lasting psychological and emotional harm, leaving her[,]" because B.S.M. had lived with C.M. from October 2001 until January 2005. As noted, Dr. Brown did not conduct an evaluation, nor did he provide any expert testimony, regarding B.S.M.'s bond, or lack thereof, with C.M. as she was never the subject of any psychological evaluations. In fact, Dr. Brown stated that he had "no psychological opinion on [C.M.'s] ability to parent [B.S.M.] . . ."

We conclude, moreover, that once the trial judge terminated the parental rights of Y.R. and S.M. and entered a permanency order finding DYFS's plan for adoption by the foster parent to be "appropriate and acceptable[,]" the judge lacked jurisdiction to decide sua sponte to afford a best interest hearing to C.M. who had neither requested such a hearing nor produced any evidence of her fitness to parent B.S.M.

This situation is distinguishable from In re E.M.B., 348 N.J. Super. 31 (App. Div. 2002), upon which C.M. relies. In that case, following termination of the natural parents' rights a dispute arose between DYFS and the child placement review board as to whether the children's best interests would be served through adoption by the foster parents or by the maternal grandparents. Id. at 46. DYFS had recommended adoption by the grandparents in its original permanency plan. At the default hearing terminating the natural parents' rights, however, DYFS changed its permanency plan to foster parent adoption. Id. at 35, 37.

Based upon those particular facts, we held that the Family Part retained jurisdiction following entry of the termination judgment, pursuant to N.J.S.A. 30:4C-58.1, to determine which permanency placement plan was in the children's best interest. Id. at 51-52. That statute authorizes the child placement review board to review a case where "[t]he plan for the child was modified so that immediate adoption with the stated adoptive parents no longer is the goal." N.J.S.A. 30:4C-58.1(c).

This matter, however, does not present such a situation. This is not a case in which "competing placements were both reasonably plausible because competent evidence, in the nature of expert reports, was put forth that the child[] w[as] bonded to both the grandparent[] and the foster parent[], with whom [he] had lived for a considerable time." N.J. Div. of Youth & Family Servs. v. C.R., 364 N.J. Super. 263, 277 (App. Div. 2003), certif. denied, 179 N.J. 369 (2004). To the contrary, the record here is devoid of any "competent evidence" that B.S.M. is bonded to C.M.

We are satisfied that C.M. had ample opportunity during the three years of litigation, from the time that B.S.M. was removed from her home in March 2005 to the trial judge's decision in June 2008, to pursue appeals, obtain legal assistance and intervene in the litigation, in an effort to regain custody of her grandson; however, C.M. chose not to avail herself of any of those opportunities. Moreover, C.M. never sought, or claimed entitlement to, a best interest hearing. Rather, as noted, the trial judge ordered it sua sponte.


Having concluded that the portion of the June 27, 2008 order granting C.M. a best interest hearing with the right to appointed counsel must be reversed, we turn now to S.M.'s arguments in opposition to the termination of his parental rights.

On appeal, S.M. argues that the trial judge erred in terminating his parental rights because: (1) alternatives to termination and adoption, including K.L.G. with C.M., were never considered; (2) DYFS did not make reasonable efforts to reunite B.S.M. with C.M.; and (3) DYFS failed to prove that termination of parental rights would not do more harm than good. These arguments are addressed to the third and fourth statutory standards governing termination of parental rights in N.J.S.A. 30:4C-15.1(a), namely:

(3) [DYFS] 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 right will not do more harm than good.

To the extent that S.M. intends to rely upon the provision in N.J.S.A. 30:4C-15.1(a)(3) requiring DYFS to make "reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home[,]" we are satisfied that the record speaks for itself. DYFS made numerous ongoing efforts to secure S.M.'s attendance at drug rehabilitation programs. S.M. steadfastly refused and/or failed to participate in those programs. The trial judge's findings and conclusions with respect to this particular standard "are adequately supported by the evidence . . . ." R. 2:11-3(e)(1)(A). This argument is, therefore, "without sufficient merit to warrant discussion in a written opinion[.]"

R. 2:11-3(e)(1)(E).

Regarding the court's obligation under the third statutory prong, to consider "alternatives to termination of parental rights[,]" we conclude this standard has been met here as well. As noted, B.S.M. had been placed with several resource relatives, all of whom proved unsatisfactory for specific, documented reasons. Moreover, C.M. had been eliminated as a resource relative for the reasons discussed herein. We are satisfied that this particular issue is also without sufficient merit to warrant further discussion in this opinion. R. 2:11-3(e)(1)(E).

Finally, we are satisfied that the trial judge's findings regarding the fourth statutory factor, namely that "[t]ermination of parental rights will not do more harm than good[,]" N.J.S.A. 30:4C-15.1(a)(4), is also "adequately supported by the evidence . . . . " R. 2:11-3(e)(1)(A). "[C]hildren have an essential and overriding interest in stability and permanency, [and] it is inimical to their welfare that their legal status remain unresolved." In re Guardianship of J.C., 129 N.J. 1, 26 (1992). The trial judge's determination on this issue comports with "New Jersey's strong public policy in favor of permanency. In all our s guardianship and adoption cases, the child's need for permanency and stability emerges as a central factor." In re Guardianship of K.H.O., supra, 161 N.J. at 357.

The order terminating S.M.'s parental rights is affirmed. The provision of the order scheduling a best interest hearing for C.M. is reversed.

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