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New Jersey Division of Youth and Family Services v. E.D.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 23, 2009

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
E.D., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF J.J., A MINOR.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, No. FG-09-282-05.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 27, 2009

Before Judges Wefing, Yannotti and LeWinn.

E.D. is the mother of J.J., a boy now five and one-half years of age. The New Jersey Division of Youth and Family Services ("DYFS") began proceedings to terminate her parental rights with respect to the boy, and on May 18, 2007, the trial court entered a judgment to that effect. E.D. appealed to this court, and we reversed and remanded for further proceedings. Division of Youth and Family Services v. E.D., No. A-5822-06 (App. Div. May 7, 2008). Although we were satisfied that DYFS had established the first two prongs of the statutory four-prong test for termination of parental rights, id. at 10, we remanded for further proceedings with respect to the third and fourth prongs. Ibid.

Our concerns sprang, in part, from the fact that J.J., who had been in multiple placements, had spent an extended period of time with his maternal grandparents. We were not satisfied that the record established by clear and convincing evidence that DYFS had considered alternatives to termination of E.D.'s parental rights, specifically, the possibility of J.J.'s kinship legal guardian placement with his maternal grandparents. Id. at 11. We retained jurisdiction and directed the trial judge to determine on the remand proceedings whether the adoption of J.J. by his foster parents is feasible or likely. If not, the trial judge shall determine whether appointment of the child's maternal grandparents as kinship legal guardians is warranted . . . . [Id. at 16.]

We left it to the trial judge to make his determinations either upon the existing record or "such additional evidence as the parties may submit . . . ." Ibid.

In conjunction with the remand proceedings, the trial judge heard extensive additional testimony from J.J.'s foster parents, neither of whom had testified at the termination trial, Frank J. Dyer, Ph.D., who testified as an expert on behalf of DYFS, Antonio W. Burr, Ph.D., who testified as an expert on behalf of the law guardian, and Richard S. Klein, Ed.D., who testified as an expert on behalf of E.D. At the conclusion of the remand proceedings, the trial judge again concluded that E.D.'s parental rights should be terminated and entered judgment. The remand proceedings having been completed, the parties have returned to this court. E.D. presents the following contentions for our consideration:

POINT ONE

THE TRIAL COURT'S ADMISSION OF THE UNVERIFIED INDICTMENT AND POLICE REPORTS W[AS] REVERSIBLE ERROR.

POINT TWO

DYFS FAILED TO ESTABLISH BY CLEAR AND CONVINCING EVIDENCE THAT J.J. WILL NOT BENEFIT FROM BEING PLACED WITH HIS OWN GRANDPARENTS THROUGH KINSHIP LEGAL GUARDIANSHIP.

We do not find it necessary in this opinion to set forth at length the underlying factual background which led to DYFS's decision to seek to terminate E.D.'s parental rights with respect to J.J. We have already set that forth in our earlier opinion, id. at 3-4, and we incorporate it here for purposes of this opinion.

Dr. Dyer conducted bonding evaluations between J.J. and his grandparents and between J.J. and his foster parents. He noted that in the session involving J.J. and his grandparents, they were affectionate with him, which he accepted. He was emotionally responsive to them and smiled readily. When Dr. Dyer interviewed J.J. later, he identified his grandparents as "[m]y family, Mommy, Dad." He said it would be a good thing if he were to go back to live with them.

After observing J.J. with his foster parents, Dr. Dyer said that the boy was "flourishing emotionally and developmentally" with them. He said that for the most part when J.J. used the terms "mommy" or "daddy," he was referring to his foster parents. At one point J.J. told Dr. Dyer that he had only one "mommy" and "daddy," meaning his foster parents.

According to Dr. Dyer, J.J. suffers from great confusion regarding attachment figures and may have developed an impairment to his capacity to attach to others. In his opinion, this problem would be exacerbated if J.J. were to be relocated again. Dr. Dyer testified that J.J. has a strong bond to his foster parents and that he regards them as the central figures in his emotional world. In his opinion, J.J. would suffer "an extremely painful and damaging loss" if he were to be removed from their care. Removing J.J. would, in Dr. Dyer's opinion, create "a very high risk of [his] developing a full blown reactive attachment disorder" and handicap J.J. in terms of self-esteem and the ability to trust and to develop into a psychologically healthy adult.

Dr. Burr, the law guardian's expert, also conducted bonding evaluations between J.J. and his grandparents and J.J. and his foster parents. Dr. Burr testified that although J.J. was comfortable with his grandparents, the emotional bond was weak and J.J. did not regard them as his primary caretakers. Regarding the foster parents, on the other hand, Dr. Burr said there existed "a significant emotional attachment." He noted that J.J. "receives substantial nurturing from them, and that he feels safe, stable and satisfied under their care." In Dr. Burr's opinion, J.J.'s best interests would be served if he were to remain with his foster family and be adopted by them. He agreed with Dr. Dyer that if J.J. were removed from his foster family he would be at risk for attachment disorder.

Dr. Klein testified on behalf of E.D. He conducted a bonding evaluation between J.J. and his maternal grandmother, without the presence of the maternal grandfather. He testified that if the transfer from the foster parents to the grandparents were handled properly, J.J. would not suffer any severe or enduring psychological harm.

Both foster parents testified at the remand hearing. They each testified about J.J.'s progress since he had come to live with them and that they wished to adopt him as their son. His foster mother noted that when J.J.learned he was going to attend another evaluation session, he wanted reassurance that he would be returning home to them.

J.J.'s maternal grandmother also testified. She said she would like to have J.J. live with them.

At the conclusion of the hearing, the trial judge gave his oral opinion. He found that E.D. was incapable of safely parenting J.J. and that it was unlikely that she would be able to do so in the future. He noted that the maternal grandparents had been reluctant in the past to adopt J.J. and had given an indication that they would involve E.D. in his care. The trial judge concluded that kinship legal guardianship was not an appropriate plan for J.J. He reviewed the testimony of the various experts and found the testimony of Dr. Dyer to be the most comprehensive, credible and most persuasive. He concluded that DYFS had established the third and fourth prongs of the statutory test, N.J.S.A. 30:4C-15.1(a)(3), (a)(4), by clear and convincing evidence.

We have carefully reviewed the record of the remand proceedings, and we are satisfied that the judgment terminating E.D.'s parental rights should be affirmed for the reasons stated by Judge Bovino in his oral opinion of June 20, 2008.

Affirmed.

20090723

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