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New Jersey Division of Youth and Family Services v. M.Y


January 21, 2011


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-202-07.

Per curiam.



Submitted January 10, 2011

Before Judges Lisa and Sabatino.

This termination of parental rights case returns to us after remand proceedings conducted pursuant to our previous opinion. New Jersey Div. of Youth & Family Servs. v. M.Y., Docket No. A-1433-08 (App. Div. October 22, 2009). In that opinion, we considered the appeal of M.Y., from the termination of his parental rights to his daughters, N.Y. (who was born on July 3, 1996) and P.Y. (who was born on January 25, 2001).*fn1 We were satisfied that the first three prongs of the best interest of the child test were proven by clear and convincing evidence. However, we concluded that the Division of Youth and Family Services (Division) failed to prove by clear and convincing evidence the fourth prong, namely that termination of parental rights would not do more harm than good. In the first trial, defendant argued that kinship legal guardianship (KLG) would be a more appropriate disposition than termination. The children have been in the custody of their maternal grandmother, M.S., since March 17, 2006. Testimony was presented in the first trial that M.S. wished to adopt the children and preferred that disposition over KLG. However, M.S. did not testify, and conflicting evidence was presented as to M.S.'s understanding of the difference between KLG and adoption and as to her actual preference between the two.

We accordingly vacated the judgment of guardianship and remanded the matter to the trial court "for further proceedings, to include testimony from M.S. concerning her understanding of the issues of adoption and [KLG], and her position concerning same." We further directed that because more than a year had elapsed since entry of the judgment of guardianship, "updated psychological and bonding evaluations should also be undertaken to determine the current status of the children, the parents, and the maternal grandmother." Finally, we stated that "should the remand proceedings disclose the presence of proof by clear and convincing evidence of the requisite criteria for termination pursuant to N.J.S.A. 30:4C-15.1(a)(1-4), and M.S.'s clear, unequivocal desire to adopt, . . . the trial court should not consider [KLG]."

The remand proceedings were conducted over three dates in May 2010 before the same judge who presided over the original trial. In accordance with our instructions, the two psychologists who had testified in the original trial, Dr. Marc Singer for the Division, and Dr. Matthew B. Johnson for defendant, conducted further interviews of the parties, performed bonding evaluations, issued updated reports and testified. As we also directed, M.S. testified. The court also received the testimony of M.S.'s daughter, D.M., who is the maternal aunt of the children and who, along with her own three children, lived in the same household with M.S. and the children. The Division also produced the testimony of a case worker. M.Y. testified in his own behalf.

At the conclusion of the remand proceedings, the judge issued an oral decision on May 25, 2010. The judge found that the Division clearly and convincingly proved that termination of defendant's rights would not do more harm than good. The judge further found that, with a full understanding of the difference between KLG and adoption, M.S. clearly and unequivocally expressed her desire to adopt and not to accept KLG. The judge accordingly entered a judgment of guardianship on May 26, 2010 terminating defendant's parental rights.

Defendant appeals. He argues that, on remand, the court erred in finding that termination would not do more harm than good and that the court should have ordered KLG instead of termination of his parental rights. The Division urges us to affirm. The Law Guardian, who argued in the remand proceedings that defendant's parental rights should be terminated, also joins the Division on appeal in urging us to affirm. We agree with the Division and the Law Guardian, and we accordingly affirm.

As we set forth in great detail in our earlier opinion, the circumstances underlying the Division's removal of these children involved ongoing drug use by both parents and ongoing domestic violence in the household. The updated information provided by the psychologists and other evidence presented in the remand proceedings revealed that, although defendant has made some progress in addressing his drug problems, it has not been significant. He admitted that he has never gone more than six months free of drugs. Evidence revealed that he had tested positive for cocaine in October 2009, seven months prior to the remand proceedings, which were conducted in May 2010. The evidence also revealed that defendant had attended his drug treatment program only sporadically during those months, thus missing many opportunities for further drug screening.

Further evidence at the remand hearing revealed that defendant was living in a two bedroom apartment, along with a roommate. Defendant admitted that his current housing arrangements were not suitable for his daughters. Defendant had been working for a number of months prior to the remand hearing, although he had acknowledged he had been on and off of unemployment benefits from time to time.

With respect to these issues, the judge concluded that although defendant had been "doing a little better than he had been," his situation was "not so dramatically better that it's a vast difference." This evidence was relevant only to the aspect of the second prong requiring a showing that defendant was unwilling or unable to eliminate the harm to the children that caused their removal or to provide them a safe and stable home. N.J.S.A. 30:4C-15.1a(2). The judge therefore found that the first three prongs, which we had previously held were satisfactorily proven based on the evidence at the first trial, remained proven in light of the updated information presented at the second trial.

With respect to the fourth prong, the judge considered the updated reports and additional testimony provided by Dr. Singer and Dr. Johnson. The reports of both experts were admitted in evidence. Dr. Singer reported that N.Y. said her first preference would be to live with her mother, and she did not want to live with her father. If she could not live with her mother, she would prefer to stay with her grandparents. P.Y. stated that her preference was to continue living with her grandmother. She did not express any other preference. M.S. told Dr. Singer that if the girls could not be returned to their parents, she wished to adopt them. Defendant told Dr. Singer that he intended to continue in his efforts to regain custody of his daughters, commenting that "the girls are not going to be adopted as long as I'm still breathing." He said he had been drug-free at that time for four months and was enrolled in a program. He said he was living in an apartment with a roommate in a rooming house, and that "his children cannot reside in this home."

Dr. Singer conducted bonding evaluations of the children with M.S. and with defendant. He concluded that the children clearly understood on an intellectual level that defendant is their father. However, neither child expressed a desire to live with defendant, which was an indication that they had not come to view defendant as being a consistent figure in their lives. Dr. Singer opined that the children "may view their father as not being capable of caring for them and providing them with the stability and consistency they clearly require." He acknowledged that, behaviorally, the children viewed both defendant and M.S. as significant figures in their lives. However, in his view, "the totality of the data does not suggest that these young ladies have come to view their father as being a consistent figure in their lives."

Dr. Singer concluded that termination of defendant's parental rights would likely cause the children to experience a negative reaction to losing the relationship. However, because the children had not come to view defendant as a consistent figure in their lives and "have likely emotionally distanced themselves from him, the reaction to such a loss is not anticipated to be significant and enduring." Further, preservation of the relationship between the children and M.S., "the consistent, central parental figure in the lives of the children, would likely serve as a mitigating variable with respect to assisting the children in addressing any reaction they may have to losing their relationship with their father." Conversely, Dr. Singer opined that defendant would not be able to mitigate the harm should the relationship between the children and their grandmother be severed. Dr. Singer concluded that "these children would be served well by being able to achieve permanency with [M.S.]."

Dr. Johnson interviewed the parties and reevaluated their relationships. He did not observe a high degree of affectionate behavior between the girls and their father. Indeed, referring to his earlier report from 2008, he found a diminished level of affection. He further commented that the girls were also not demonstrably affectionate with their grandmother during the present session either. Dr. Johnson acknowledged that the girls were doing very well and had adjusted very well in their grandmother's household. They were performing well in school and were comfortable in a stable and loving environment in M.S.'s household. In our earlier opinion, we expressed some concern that N.Y. and P.Y. were not treated as well in the household as their three cousins. However, Dr. Johnson noted in his updated report that, although in his 2008 report he noted that the girls had expressed such favoritism, "there were no indications of that concern in the recent examination findings."

Dr. Johnson recommended that the girls remain in their grandmother's care and continue to have visitation with their father. He opined that "termination of parental rights will not provide any further benefits for the children." He was of the view that termination of parental rights followed by adoption offered no additional benefit to the children, who already felt that they were in a permanent placement.

The judge concluded that nothing he heard from the experts in the remand proceeding changed his mind significantly. He recounted that "Dr. Singer says that there's -- that the permanency of adoption would be helpful to the children, and Dr. [Johnson] says that he sees no real benefit in termination."

The judge then focused on the need for permanency. Indeed, these girls have now been living continuously with their grandmother for nearly five years. N.Y. is now fourteen-andone-half years old, and P.Y. will turn ten this month. Their contact with their father has been sporadic. He has had weekly visitation rights, which he has not regularly exercised. This uncertainty and instability continues to cause confusion to the children and continues to cause them harm. The judge found that defendant was not presently and would not in the foreseeable future be capable of providing a safe and stable home for the children and parenting them.

Dr. Singer's testimony established that, although there would be some level of harm caused by severing the relationship between the children and defendant, that harm would be mitigated by the continuing relationship with M.S., which has now been of longstanding, is stable, and in which the children have thrived. Any harm caused by severance of this relationship would not be significant and enduring.

This brings us to the other significant issue that caused us to remand the matter for further development of the record and further findings. It was unclear to us from the record of the first trial whether M.S. truly understood the difference between KLG and adoption and whether she clearly and unequivocally expressed a preference for adoption. As we directed, M.S. testified in the remand proceedings. The judge and attorneys clearly explained to her the distinction between the two dispositions. With that thorough understanding, M.S. unequivocally testified that she wished to adopt and did not wish to avail herself of KLG status. The judge's finding that M.S. clearly understood the difference and unequivocally expressed her desire and intention to adopt is well supported by the record, and we have no occasion to interfere with that finding. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002); Cesare v. Cesare, 154 N.J. 394, 411-12 (1998).

The statute providing for KLG renders that disposition permissible only when adoption is neither feasible nor likely. N.J.S.A. 3B:12A-6d(3)(b); N.J.S.A. 30:4C-15.3. KLG is an option only when the caretaker does not wish to adopt. New Jersey Div. of Youth & Family Servs. v. L.L., 201 N.J. 210, 222 (2010). "[W]hen the permanency provided by adoption is available, [KLG] cannot be used as a defense to termination of parental rights." New Jersey Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 513 (2004).

We are satisfied from our review of the record of the remand proceedings that the Division has now clearly and convincingly proven the continued viability of the first three prongs as well as the fourth prong of the best interest test. The Division has also clearly and convincingly proven that, with a clear understanding of the difference between KLG and adoption, M.S. has clearly and unequivocally expressed her desire to adopt. Under these circumstances, as we said at the conclusion of our prior opinion, "the trial court should not consider [KLG]."

Accordingly, the May 26, 2010 judgment for guardianship entered after the remand proceedings is affirmed.

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