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New Jersey Division of Youth and Family Services v. A.C.S.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 20, 2010

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
A.C.S., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF M.J.T.S.W., C.T.R., AND Z.A.B., MINORS.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-191-08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 24, 2010

Before Judges Stern, J. N. Harris and Newman.

Defendant A.C.S. appeals a trial court order terminating her parental rights to her minor children, M.J.T.S.W. (M.S.W.), C.T.R., and Z.A.B, and awarding guardianship to the New Jersey Division of Youth and Family Services (the Division).

Defendant has a history of alcohol abuse and one prior assault for which she served jail time. She also had been involved in a domestic dispute during which she was stabbed. When her daughters were approximately four years old, two years old, and six months old respectively, defendant was incarcerated for robbery. Initially, defendant was sentenced to a twelve-year prison term. After defendant's incarceration, the children were eventually placed by the Division in the care of their maternal great aunt, L.S., with concurrent planning for permanent placement with D.S., their maternal grandmother, who was then living in Ohio. The interstate evaluation process was interrupted twice because D.S. changed her address on two separate occasions without advising the Division. In the interim, L.S. decided to adopt defendant's children.

The Division sought termination of defendant's parental rights. Prior to trial, defendant's prison term was reduced, and she was scheduled to be released within four and one-half years from the time she was first incarcerated, which was almost six months after the termination trial.

Defendant argues that the Division failed to prove by clear and convincing evidence the second, third, and fourth prongs of the termination statute. We disagree and affirm.

I.

We need not expand upon the facts surrounding this matter because Judge John J. Callahan adequately summarized this case in his sixty-page oral decision that was read from the bench on May 12, 2009.

Analyzing the evidence in light of the four prong best interests of the child standard, Judge Callahan terminated the parental rights of defendant and the named putative fathers.

The court found that the Division satisfied the first prong of the best interests test because defendant had not followed through on the Division's offer of services of a parental home aide, a substance abuse assessment, and psychological evaluations after the birth of M.S.W. and then became incarcerated in July 2005. By virtue of incarceration, defendant was unable to provide a safe, stable home for the children and was also unable to attend to their physical and emotional needs.

Judge Callahan found that the Division satisfied the second prong because defendant was unable to eliminate the harm to the children by becoming fit in the foreseeable future because she was still incarcerated. The court, based on the evidence presented, found that defendant admitted to "dispensing drugs," that she connected with men who were physically abusive, that she allowed herself to be drawn into criminal enterprises, and that she had an alcohol history. The court observed that Dr. Frank Dyer, a psychologist, opined that reversion to criminal activity was possible based on her past history.

With regard to prong three, the trial judge found that it was not possible for the Division to offer direct services to defendant because of her lengthy incarceration. He found that she had not taken advantage of the substance abuse/psychological evaluations and parent aide that were offered to her before her incarceration. Although not required to facilitate visitation in jail, the Division had made reasonable efforts to provide defendant with visitation while she was incarcerated at Trenton State, due to overcrowding, and Edna Mahan. The court also noted that alternatives to termination were explored by the Division and specific relatives for caretaking were considered and ruled out, except for the children's maternal great aunt, L.S. The judge also commented on the failure of D.S., the maternal grandmother, to complete the out-of-state assessment and how she did not contact the Division for almost two years. While kinship legal guardianship was considered, it was properly rejected when adoption was available and would provide the necessary permanency to these young children.

The court found under prong four that the children had been with L.S. for more than three years and had no real relationship with their mother. The court appreciated that Dr. Gerard A. Figurelli, a psychologist, had not been able to do a bonding evaluation between the children and defendant. The judge recognized that they had a "pleasant connection" and some familiarity with the maternal grandmother, but ceased to pay attention to her after twenty-five minutes. He found that the children viewed L.S. as the stable and reliable figure in their lives to whom they could turn to for support. M.S.W. would suffer a traumatic loss if separated from L.S., who was her "psychological parent." Z.A.B. looked for L.S. for nurturance, security, and protection, and Z.A.B. expressed a preference to stay with her. The judge found that C.T.R. had no positive connection with defendant and did not recall ever living with her. She also would suffer a traumatic loss if removed from L.S.

Judge Callahan found that defendant is cognitively limited, has problems with alcohol and drugs, lacks judgment, is vulnerable to clinical depression, and projects a high risk for substance abuse. According to the court, defendant had not turned her life around, and her children should not have to wait on her to do so if she ever does.

On appeal, defendant raises the following issues for our consideration:

POINT I

DYFS FAILED TO PROVE ALL FOUR PRONGS OF THE BEST INTEREST TEST BY CLEAR AND CONVINCING EVIDENCE

A. The Division has not proven the second prong of the best interest test because A.C.S. is able to provide a safe, stable home for the children with the assistance of her mother.

B. The Division has not made reasonable efforts to offer services to correct the circumstances that led to placement outside the home, nor has the court considered alternatives to termination of parental rights.

C. The Division did not carry its burden of proof that termination would not do more harm than good.

II.

A.

Before addressing the arguments raised, it is well to keep the following principles in mind. Parents have a constitutionally protected, fundamental liberty interest in raising their biological children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394-95, 71 L.Ed. 2d 599, 606 (1982). They have the "right to raise a child and maintain a relationship with that child, without undue interference by the state." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 102 (2008) (citing Stanley v. Illinois, 405 U.S. 645, 651-52, 92 S.Ct. 1208, 1212, 31 L.Ed. 2d 551, 558-59 (1972); In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999)). This right is subject to the State's "basic responsibility, as parens patriae, to protect children from serious physical and psychological harm, even from their parents." Ibid. (citing K.H.O., supra, 161 N.J. at 347). This State may terminate parental rights, but this court bears in mind that "[f]ew forms of state action are both so severe and so irreversible." Santosky, supra, 455 U.S. at 759, 102 S.Ct. at 1398, 71 L.Ed. 2d at 610.

To terminate parental rights, the Division, on behalf of the State, bears the heavy burden of demonstrating that it is in the best interests of the child. E.P., supra, 196 N.J. at 102 (citing N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-12 (1986)). When a biological parent opposes the termination of his or her parental rights, the court's focus is not only on "whether the parent is fit, but also whether he or she can become fit within time to assume the parental role necessary to meet the child's needs." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 87 (App. Div. 2006), certif. denied, 190 N.J. 257 (2007).

The State's parens patriae responsibility is balanced against the fundamental parental rights by application of the best interests of the child standard. K.H.O., supra, 161 N.J. at 347. Applying this standard, N.J.S.A. 30:4C-15.1(a) mandates the severance of parental rights when:

(1) The child's health and development have been or will continue to be endangered by the parental relationship;

(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his foster parents would cause serious and enduring emotional or psychological harm to the child;

(3) The [D]ivision has made diligent 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 right; and

(4) Termination of parental rights will not do more harm that good.

The Division must prove each prong of the statute by clear and convincing evidence. N.J. Div. of Family & Youth Servs. v. M.M., 189 N.J. 261, 280 (2007). These elements "are not discrete and separate," but rather, "they relate to and overlap with another to provide a comprehensive standard that identifies a child's best interests." K.H.O., supra, 161 N.J. at 348. A fact-sensitive analysis and particularized evidence are necessary to determine whether parental rights should be terminated. M.M., supra, 189 N.J. at 280. Clear and convincing evidence produces a "firm belief or conviction as to the truth of the allegations sought to be established, evidence so clear, direct and weighty and convincing as to enable the factfinder to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue." In re Boardwalk Regency Corp., 180 N.J. Super. 324, 339 (App. Div. 1981), mod. o.g., 90 N.J. 361 (1982).

On review, this court must determine whether the court's decision is supported by "'adequate, substantial and credible evidence' on the record." M.M., supra, 189 N.J. at 279 (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). This review is limited, so a trial court's factual findings "should not be disturbed unless they are so wholly unsupportable as to result in a denial of justice." N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004) (quoting In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). Reviewing courts generally "defer to the factual findings of the trial court because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a 'feel of the case' that can never be realized by a review of the cold record." N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 396 (2009) (quoting E.P., supra, 196 N.J. at 104). Family courts are accorded additional deference for their factfinding because of their special expertise in such matters. Ibid. However, "'[w]here the focus of the dispute is... alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom,' the traditional scope of review is expanded." M.M., supra, 189 N.J. at 279 (quoting J.T., supra, 269 N.J. Super. at 188-89). Nonetheless, this court accords deference, "unless the trial court's findings 'went so wide of the mark that a mistake must have been made.'" Ibid. (quoting Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989)).

B.

On appeal, defendant concedes that her incarceration prevented her from maintaining a safe, stable home for the children and from attending to their emotional needs, so we need not dwell on this issue which satisfied prong one of the best interests test.

Noting that "[a] parent's withdrawal of that solicitude, nurture, and care for an extended period of time is in itself a harm that endangers the health and development of the child," In re Guardianship of DMH, 161 N.J. 365, 379 (1999), the trial court found defendant's absence from her children was harmful to the children as she was unavailable to provide her daughters a safe and stable home due to her five-year incarceration. Relying on In re Adoption of Children by L.A.S., 134 N.J. 127, 138-44 (1993), the trial court noted that incarceration is a material factor for determining whether parental rights should be terminated. It acknowledged that there was no existing relationship between defendant and M.S.W., so it was unlikely that they would form a meaningful bond during her imprisonment. The court found that defendant's absence qualified as harm within the meaning of the first prong. The court correctly concluded that this prong was established by the Division with clear and convincing evidence.

C.

Defendant contends that the Division did not satisfy its burden in proving the second prong of the termination statute: whether defendant was unwilling and unable to eliminate the harm to her children.

Conducting its analysis under the second prong, the trial court determined that defendant "is unable of course to end the harm that her absence is causing, because she is still obviously incarcerated." The court noted that defendant had a history of "dispensing certain illicit drugs" in her past. It observed that defendant seemed to "connect or meet with men who are assaultive in her life." The court also took into account defendant's history of committing assault and her alcohol history. The court considered the fact that both psychologists opined that defendant would have issues to address upon her release.

The court found Dr. Dyer's testimony and report more complete and persuasive because Dr. Figurelli's method for determining whether defendant had a psychological substance abuse problem was subjective and required honest answers from the subject, who was self-reporting. On the other hand, Dr. Dyer provided specific quotations and a more detailed history that revealed defendant's abuse of alcohol. The court doubted that defendant "feels a need to use or maintain any type of assistance/effort such as AA or NA [Narcotics Anonymous] after she gets out of the institution." The court inferred that she would not pursue a self-help program on her own. The court accepted Dr. Dyer's opinion that there was a strong likelihood for defendant to revert to criminal behavior and that defendant lacked the capacity to parent the children.

The court acknowledged that M.S.W., in particular, had formed an attachment to L.S. and that both psychologists agreed that L.S. was serving as the children's psychological parent.

The court rhetorically asked whether defendant would be able to turn her life around after her release from prison:

Will she for example reconnect with her eldest child, her son whom she left in [the] Baltimore, Maryland area, will she pursue a plan to in fact enter a productive career in hair styling or some other gainful employment, will she, frankly remain substance free with or without assistance of AA or NA or other counseling.

It concluded that defendant "has [not] been able to show us that she has at this point in time turned her life around."

The second prong of the termination statute is satisfied if the Division can demonstrate "that the child will suffer substantially from a lack of stability and a permanent placement and from the disruption of [his or] her bond with foster parents." M.M., supra, 189 N.J. at 281. A delay in permanent placement and the failure to provide a "safe and stable home" are both recognized as harmful circumstances for a child.

K.H.O., supra, 161 N.J. at 352. This prong primarily focuses on parental unfitness. See id. at 353. The first and second prongs of the termination statute are related to each other and evidence that supports one prong may support the other. DMH, supra, 161 N.J. at 379.

Our review of the record satisfies us that sufficient evidence supports the trial court's finding that defendant had not turned her life around to be able to offer a stable and safe home for the children, even though she had devised a plan to live with her mother and seek work in a beauty salon after her release. Even Dr. Figurelli acknowledged that it would take time for defendant to live independently after her release. Defendant had admitted to dealing drugs when she was pregnant with M.S.W.; being attacked and stabbed by a boyfriend; and having been arrested twice, and imprisoned once, for assault. Furthermore, defendant's comments to Dr. Dyer support the trial court's finding of defendant's substance abuse. Dr. Dyer opined that defendant would need to continue participating in AA and that there was a high risk that defendant would return to abusing alcohol.

Additionally, the delay of permanent placement would further harm the children. Defendant had almost six months remaining in her sentence as of the time of trial. Dr. Dyer testified that further delay in permanency and lack of continuity of care would be harmful to these children. Dr. Dyer also said that if the children were separated from L.S., the separation would cause serious and enduring emotional and psychological harm to all three children. Deridre Carter, defendant's caseworker, Dr. Dyer, and Dr. Figurelli's testimony revealed that the children had established a strong bond with L.S.

Even though defendant expressed a willingness to offer her children a stable home, the trial court correctly determined that she is unable to overcome the harm that would be caused to her children by delaying their permanent placement and her inability to offer a safe and stable home to her children.

Defendant argues that the court erred in admitting evidence of the Division's original referral for defendant because the allegation that defendant neglected M.S.W. with substantial risk of injury was deemed unfounded. Relying on N.J. Division of Youth and Family Services v. J.Y., 352 N.J. Super. 245, 260-65 (App. Div. 2002), she claims that her due process rights were violated because these unfounded allegations were used against her in the litigation. Defendant asserts that she "was portrayed as an individual with a substance abuse problem in spite of the lack of evidence that she had a drug or alcohol problem upon her admission into jail," and that evidence was lacking that she was required to participate in substance abuse treatment while she was incarcerated.

When the original referral was moved into evidence, defendant's counsel objected and asked the trial court to consider as to the weight of the evidence that the allegation of neglect was unsubstantiated.

In its findings of fact, the trial court referred to the initial referral. However, it primarily focused on defendant's admissions to a social worker. It did note that a record indicated "[t]hat there were signs of fetal alcohol syndrome." Nevertheless, in its analysis, the trial court did not comment on this referral.

Moreover, J.Y. does not stand for the proposition that defendant asserts. In J.Y., a verified complaint was filed by the Division to continue the Division's legal custody of J.Y.'s children. The complaint's allegations amounted to only one substantiated incident of neglect by J.Y. However, the trial court in that case failed to make any specific factual findings, instead relying on "an amorphous stipulation by the parties which made general reference to 'at least one' of the allegations in the verified complaint." Id. at 263. This court in J.Y. ruled that this was insufficient factfinding and that the original event that triggered the Division's involvement could not support the trial court's finding either. Ibid.

Here, the trial court engaged in appropriate, supportable factfinding with respect to defendant's alcohol abuse. Defendant's statements to Dr. Dyer about her need and consumption of alcohol and her admissions to the Division's social worker who investigated the initial referral certainly qualify as clear and convincing evidence of her alcohol abuse. Sufficient facts in the record support the trial court's conclusion. The trial court did not make a finding that M.S.W., in fact, had fetal alcohol syndrome. It did not make any other conclusions or findings that were not supported by the record.

Defendant also takes issue with the testimony of Dr. Dyer, arguing that there were inconsistencies between his report and testimony. Defendant points out that the reconstructed record stated that Dr. Dyer claimed that defendant told him she needed to drink to preserve her equilibrium and that alcohol was causing problems in her life, and that she had not received treatment for alcohol. In contrast, Dr. Dyer's report stated that defendant told him that she would drink "a lot," but that she controlled her drinking, and she denied having a problem with alcohol.

After reviewing the testimony and report of Dr. Dyer, it is clear that there was not a plan to mislead and that defendant's attorney was not surprised by the testimony. Dr. Dyer's report stated that defendant admitted she drank a lot. Moreover, Dr. Dyer's report expressly states that the doctor found that defendant was dependent upon alcohol. Dr. Dyer's testimony was, in part, consistent with his report.

Furthermore, on cross-examination, defendant's attorney did not make an issue of Dr. Dyer's inconsistent testimony about defendant's abuse of alcohol. "Statements in an expert's report that are inconsistent with his testimony are admissible in cross-examining the expert because inconsistent statements of any witness are admissible." Skibinski v. Smith, 206 N.J.

Super. 349, 353 (App. Div. 1985). "But just as the testimony of a witness may not be limited to the content of his prior statement, the testimony of an expert may not be limited to the content of his report simply because the report had been furnished in discovery." Ibid. Counsel could have questioned Dr. Dyer about these inconsistencies on cross-examination instead of disregarding them until appeal.

Dr. Dyer's testimony did not exceed its permissible scope, and defendant cannot make a claim that she was surprised or that there was a design to mislead. Plain error was not committed here. County of Essex v. First Union Nat'l Bank, 186 N.J. 46, 51 (2006).

Defendant next contends that evidence of M.S.W.'s meconium test results were improperly admitted. She argues "the record is a muddled mess concerning A.C.S.'s alleged cocaine use." Defendant suggests that because there is evidence that she tested negative, and never positive, for cocaine, there was possibly a lab error in M.S.W.'s test. Defendant did not assert that there may have been a laboratory error before the trial judge. Nevertheless, the admission of the results was not error, much less plain error.

There was no evidence that a lab error occurred. The court's finding that defendant required additional help for her substance abuse is sufficiently supported by defendant's admissions to social workers and Dr. Dyer, along with Dr. Dyer's report and testimony. Even Dr. Figurelli admitted that his evaluation would require modification with respect to defendant's alcohol and drug abuse based on information he was unaware of but was disclosed to Dr. Dyer.

The trial court did not improperly admit any evidence nor did it make any improper findings related to defendant's involvement with alcohol or drugs.

D.

Defendant asserts that the Division did not make reasonable efforts to provide services to defendant and, therefore, failed to satisfy the third prong of the best interests test. We disagree.

The trial court noted that defendant's incarceration limited the services that the Division could offer defendant directly. However, the court recognized that the Division initially offered services, a substance use assessment, and parenting aide to defendant prior to her incarceration. It also acknowledged that defendant received visitations during her incarceration.

The Division also sought other relative placements for the children with T.S., defendant's cousin, whose own children were under the Division's supervision and, consequently, she was ruled out. Interstate assessments were requested for D.S., the maternal grandmother, who relocated from Ohio to North Carolina without advising the Division and then moved within an apartment complex in Charlotte without notifying the Division. The motivation to care for her grandchildren was at odds with D.S.'s lack of communication with the Division to expedite the assessment process which was never even completed.

The Division is required to make reasonable efforts to provide services to the parent to help cure the circumstances that led to the child's placement outside the home to satisfy the third prong of the termination statute. M.M., supra, 189 N.J. at 281. The Division's efforts are "not measured by their success," but instead the diligence of the Division's "efforts must be assessed against the standard of adequacy in light of all the circumstances of a given case." Ibid. This court has recognized "the difficulty and likely futility of providing services to a person in custody." N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 621 (App. Div.), certif. denied, 192 N.J. 68 (2007) (quoting N.J. Div. of Youth & Family Servs. v. S.A., 382 N.J. Super. 525, 535-36 (App. Div. 2006)).

The record supports the trial court's finding with respect to the services offered to defendant prior to her incarceration and that defendant did not take advantage of any of these services. Likewise, the Division was able to offer defendant visitation during her incarceration. While it may not have offered defendant as much visitation as she would have liked, between the limited resources of the Division and the limited access to defendant who was incarcerated, the Division cannot be faulted for not providing defendant as much visitation as she would have enjoyed. Nonetheless, the Division offered defendant reasonable visitation under the circumstances; offered counseling for the children to help them cope with defendant's illness; and searched for the children's fathers and provided paternity testing. Some of the purported fathers could not be located; others who were found did not test positive for paternity. The Division did not neglect its responsibility of offering reasonable services to defendant. It could only do so much to assist defendant.

Regarding the second part of the third prong, the court considered alternatives to termination of defendant's parental rights. Originally, the permanent plan entailed placing the children with D.S., but D.S.'s moves interrupted the interstate evaluations and delayed the possibility of permanent placement with her.

Defendant also argues that because there was not clear and convincing evidence that an adoption would take place, kinship legal guardianship could have been the permanent plan for the children.

Kinship legal guardianship is merely an "alternative, permanent placement option... for caregivers in relationships where adoption is neither feasible nor likely." N.J.S.A. 3B:12A-1(c). It was developed "to meet a very specific need." N.J. Div. of Youth & Family Servs. v. S.V., 362 N.J. Super. 76, 86 (App. Div. 2003). This function is apparent from a reading of N.J.S.A. 3B:12A-6(d)(3), the statute which sets forth the elements of proof necessary for a kinship legal guardianship, which requires clear and convincing evidence that "adoption of the child is neither feasible nor likely." Our Supreme Court has held that "[w]hen a child is placed with a relative, termination of parental rights is both unnecessary and unwise unless the relative wishes to adopt the child or is unwilling to provide long-term care." N.J. Div. of Youth & Family Servs. v. L.L., ___ N.J. ___, ___ (2010) (slip op. at 23) (quoting A.W., supra, 103 N.J. at 609).

Because adoption was both feasible and likely, kinship legal guardianship was inappropriate, as the trial court recognized. Although at first L.S. sought to only serve as a placement of last resort for the children, it is clear that she changed her mind and decided to adopt the children. L.S. informed the Division caseworker, David Ocasio, that she wished to adopt; wrote a letter of intent to adopt the girls; and made it known to defendant that she intended to adopt. The trial court appropriately ruled out kinship legal guardianship for these children, and termination of parental rights was the proper procedure to pursue. Sufficient evidence supported the trial court's finding that prong three was satisfied.

E.

Defendant argues that the trial court made erroneous findings of facts and legal conclusions in determining that the Division proved the fourth prong by clear and convincing evidence. Furthermore, defendant points out that she was unable to present a comparative bonding evaluation, which she argues is generally required in termination cases under N.J. Division of Youth and Family Services v. A.R., 405 N.J. Super. 418, 440 (App. Div. 2009).

The trial court accepted Dr. Dyer's testimony that separating the children from their aunt would cause significant long-term harm. The trial court noted that not only had M.S.W. bonded with her aunt, but that her aunt served as M.S.W.'s psychological parent. The court also pointed out that defendant had no existing relationship with M.S.W. due to the timing of her incarceration, and that the other daughters had no real relationship with their mother. The court accepted Dr. Dyer's opinion that M.S.W. would be harmed if her placement with her aunt was disrupted, causing her to suffer from serious problems of impaired trust and the capacity to form attachments. The court also observed that C.T.R. did not recall living with her mother and did not appear to have a positive connection with her mother. The court accepted Dr. Dyer's opinion that C.T.R. would suffer a traumatic loss, similar to that of what he expected M.S.W. to endure, if C.T.R. were removed from her aunt. Lastly, with respect to Z.A.B., the court noted that her aunt provides a stable, reliable figure for her and that she prefers placement with her aunt. The court also noted that the three children have bonded to each other and formed a sibling unit.

The court acknowledged that Dr. Figurelli did not conduct a bonding evaluation between defendant and her daughters and that this did not occur due to any malfeasance or lack of cooperation by the Division or L.S.

The court disregarded Dr. Figurelli's recommendation for kinship legal guardianship because legal authority and statutes prefer adoption over kinship legal guardianship and the children needed permanency.

Our Supreme Court has "emphasized the need for expert evaluations and testimony with respect to natural and resource families" in termination of parental rights cases. Ibid.; see In re Guardianship of J.C., 129 N.J. 1, 17-19 (1992). Indeed, this court observed that "we can envision very few scenarios in which comparative evaluations would not be required." A.R., supra, 405 N.J. Super. at 440. "[I]t is of great significance in evaluating comparative harm under the fourth prong in showing that 'termination of parental rights likely will not do more harm than good' and in sustaining [the Division's] burden of proof." Ibid. (internal citation omitted).

Here, there is no paucity of bonding information for the court to have considered whether the termination of defendant's parental rights would do more harm than good. Defendant participated in a robbery when her youngest child was only six months old. For two months, the Division could not locate the whereabouts of the children, only to learn eventually that their mother was incarcerated in the Union County Jail. Defendant is cognitively limited with problems associated with alcohol and drugs. As found by the trial court, she lacks judgment and the capacity to anticipate the consequences of her actions. She is vulnerable to clinical depression. The court discerned that she cannot place the needs of a young child above her own; nor can she provide "adequate structure and positive role modeling for a young child."

At the time of trial, she had no contact with her eldest child who lived with his paternal grandmother in Maryland. She was still under treatment for stage three breast cancer for which treatment was to extend to February 2010, absent, of course, any further adverse developments.

Defendant had no job leads upon her release and was going to seek employment in a beauty salon where she had neither training nor experience. Against this backdrop, the trial court concluded that defendant has not been able "to show us that she has at this point in time turned her life around." In reaching that conclusion, the trial court did not consider that a comparative bonding assessment would be essential. Neither do we.

While we appreciate the concern registered in A.R. for a comparative bonding evaluation, we are convinced that the present record is more than adequate to measure the harm that would be visited upon the children were they to be separated from their caretaker for over the past four years where their mother has spent the greater part of that time incarcerated. The permanency which these children are entitled to need not be further delayed by a comparative bonding evaluation.

We are satisfied that there is an abundance of evidence to support the determination that the Division carried its burden of proof under the fourth prong of the best interests of the child standard that termination of A.C.S.'s parental rights to her three daughters will not do more harm than good.

Affirmed.

RECORD IMPOUNDED

STERN, P.J.A.D., concurring.

N.J.S.A. 3B:12A-1 to -6 embodies a comprehensive role for "caregivers," see N.J.S.A. 3B:12A-2, as kinship legal guardians. N.J.S.A. 3B:12A-4. The statute conveys to the guardians "the same rights, responsibilities and authority relating to the child as a birth parent," with certain exceptions. N.J.S.A. 3B:12A-4(a)(1); N.J.S.A. 3B:12A-4(a)(2). However, before the kinship guardianship can be approved, the court must determine that "(a) [DYFS] exercised reasonable efforts to reunify the child with the birth parents and these reunification efforts have proven unsuccessful or unnecessary; and (b) adoption of the child is neither feasible nor likely." N.J.S.A. 3B:12A-6(d)(3). See also N.J. Div. of Youth & Family Servs. v. L.L., ___ N.J. ___ (2010). Thus, if DYFS reports that the "caregiver" or person with a "kinship relationship," see N.J.S.A. 3B:12A-2, wants to adopt the child, the kinship legal guardianship is no longer available even though a family member would be willing to maintain custody of the child "to adulthood" in order to give the natural parent more time (at least within reasonable limits given the "child's need for permanency," N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 281 (2007)) to regain the ability to assume his or her responsibilities.

In this case Deridre Carter, an adoption specialist with DYFS, testified that she had a "conversation" with L.S. and that L.S. "was interested in moving forward with an adoption." Caseworker David Ocasio also testified that he "presented [L.S.] the options of kinship legal guardianship and adoption" and she initially "stated she wanted to go forward with kinship legal guardianship because she felt badly for [defendant] and did not want to be the one to be part of terminating her parental rights." He further explained that "[t]he Division's stance on this is under the age of [twelve] adoption is a better plan because it is a longer term plan and it gives a child more of a sense of permanency of where their home is and who their caretaker is." Ocasio further stated:

I addressed these concerns with [L.S.] and I gave her a clear picture of both the positive and negative sides of both KLG and adoption. And she took some time to think about it, because it is a serious question, and she responded to me that she would go forward with adoption because it's in the best interest of the children.

On cross-examination, the case worker testified as to how he presented the alternatives to L.S. He testified:

To the best recollection we have a -- we have a presentation sheet and all it is is an accurate description of KLG and of adoption. It's important to present something visual to the client so it's easier for them to sort out.

I tried to be as objective as I possibly could. I presented the material in as an objective a manner as I could to see the positives and the negatives of both sides. An accurate description of what happened to the children, what services are provided and so forth.

Unfortunately, L.S. was not asked these questions on the record in the termination proceeding. I am concerned that parental rights may be terminated to permit adoptions by "caregivers" without their complete knowledge of the alternatives which may remain available in the best interests of the child. In some cases a person with a "kinship relationship" may desire to preserve the family unity and act as a kinship legal guardian until the parent may be able to assume his or her parental responsibilities. On the other hand, a fully advised "caregiver," or person with a "kinship relationship," may prefer to adopt a child to prevent same by a non-family member third party or for other reasons including love and concern for the child. Accordingly, I believe that the subject should be developed on the record with a "caregiver" who has a "kinship relationship" so it is clear that he or she is aware of the alternatives, and consequences of each, including termination by a willingness to adopt, before indicating the desire to serve as a kinship legal guardian or to adopt. The subject may well relate to the fourth prong of the best interest test. N.J.S.A. 30:4C-15.1(a).

I, nevertheless, join the opinion in this case in the absence of any development of the issue and because termination is appropriate for the reasons stated by the court. The opinion, ante at 23, details the discussions with L.S. about her desires, but I state my views so they are clearly known in cases being tried hereinafter.

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