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

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 10, 2011

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
E.C. DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF N.C. AND T.C., MINORS.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-108-08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 26, 2011

Before Judges Axelrad, Lihotz, and J. N. Harris.

These two appeals -- emanating from the same Title 30 litigation that terminated the parental rights of E.C. -- are calendared back to back and consolidated for purposes of this opinion. The first-filed appeal (A-6335-08T4) entails J.C.'s and M.C.'s challenge to an order of the Family Part that refused to place their grandchildren, N.C. and T.C., in their custody. The second appeal (A-0043-09T4) involves E.C.'s contestation of the same court's termination of his parental rights vis-A-vis N.C. and T.C.

In January 2007, in an act of tragic domestic violence, E.C. pummeled to death his wife and mother of his children, N.C. and T.C. He was subsequently convicted of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), and sentenced to eighteen years imprisonment, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.*fn1 In the ensuing protective services proceeding, E.C. offered his parents (the children's grandparents), J.C. and M.C., as a placement resource for his two young sons. However, the New Jersey Division of Youth and Family Services (the Division) placed the children in the care of their current foster parents, the in-laws of the children's paternal uncle, where they have resided since their mother's death and father's arrest. The Division's permanency plan is to facilitate the foster parents' adoption of the children.

Based upon our review of the record we affirm the Family Part's determinations in both appeals.

I.

A.

N.C. and T.C. were born on July 31, 2002, and September 14, 2004, respectively. E.C. is the natural father of both boys. On January 20, 2007, the Jersey City Police Department (JCPD) contacted the Division to report that E.C. had beaten his wife, T.C.C., the natural mother of N.C. and T.C., earlier that morning and that she was currently being kept alive on life support apparatus at the Jersey City Medical Center.*fn2 The police also reported that E.C. had been arrested and charged with domestic violence and aggravated assault. The children were at their grandparents' home when the Division received the call, having been placed there by the JCPD after they returned home from a sleep-over.

The next day, January 21, 2007, a Division case worker visited the residence of J.C. and M.C. to gather information. The children's paternal uncle, L.C. (E.C.'s brother), and his fianceee, M.L., were also present. The grandparents stated that they normally cared for the children approximately three days each week and had, in fact, cared for the children during the night prior to their daughter-in-law's homicide.

The case worker also spoke with N.C., who recalled that his "mom was bleeding by her nose and her lip." N.C. told the case worker that his father is nice to the family, but "angry with [his] mommy." When asked if his parents fought often, N.C. stated, "[t]hey fight and my daddy hit mommy in the back."

The case worker also spoke with members of the family about potential emergency caregivers for the children at that time.

J.C. and M.C. expressed an interest in so serving, but also identified possible others. After visiting the homes of the suggested caregivers, the case worker ruled out J.C. and M.C. based upon the living conditions at their home, including its "exposed pipes that constitute safety and fire issues." Ultimately, M.L.'s parents, B.L. and P.L., were determined to be an appropriate emergency placement.

B.

On January 23, 2007, the Division filed its complaint for custody, care, and supervision seeking emergency custody of N.C. and T.C. because their father was incarcerated and their mother was deceased. An order was entered on that date placing the children in the "immediate custody, care and supervision of the Division."

On August 2, 2007, following a compliance review hearing, the Family Part denied E.C.'s request for visitation with his sons unless recommended by the children's therapist. On November 15, 2007, E.C.'s request to have his parents reevaluated as a relative resource was denied.

In a rule-out letter dated June 13, 2007, the Division formally notified the grandparents that because the grandfather had been substantiated for "child physical abuse" in 1994, and due to their residence's "limited living space," they could not be considered as caregivers at that time.*fn3 T.C.'s godmother; paternal uncle, L.C.; and maternal grandmother in California were also ruled out as being unable or unwilling to care for the children or for inadequate living spaces.

Consistent with the letter's directive, J.C.'s and M.C.'s attorney timely requested a review by the Division. However, six months later the grandparents had still heard nothing from the Division, prompting their attorney to send a follow-up letter on January 3, 2008, requesting a hearing to reconsider the rule-out decision.

In early January 2008, the Family Part approved the Division's permanency plan of termination of parental rights followed by adoption. The Division filed the guardianship complaint on March 28, 2008.

C.

In the meantime, the grandparents were permitted to visit with N.C. and T.C. on weekends until June 2008, when the grandmother and foster mother had an argument. In September 2008, the foster parents requested that future visitations with the grandparents take place at the Division's offices. In early November 2008, J.C. and M.C. filed a formal motion for custody with the Family Part.

Prior to the court's final decision on June 19, 2009, the earlier reference to substantiated child abuse by J.C. was withdrawn by the Division in a letter dated January 7, 2009. One month later, the Division reconsidered the grandparents as a relative resource, but determined that "it would be in the best interest of the child(ren) to remain in the current placement . . . because [they] have been residing with their current caretakers for several years and are bonded to them."

D.

At the guardianship trial Dr. Frank J. Dyer, Ph.D. and Division case worker Judy Garcia testified for the Division.

Dr. Gerard Figurelli, Ph.D. testified on behalf of E.C. Each of the grandparents testified on their own behalf and presented the expert testimony of Dr. Lidia Abrams, Ph.D.

Garcia testified that the Division explored placing the children in the care of the maternal grandmother, paternal grandparents, and E.C.'s brother L.C. before settling on the children's current foster parents. She also confirmed that the children had resided with the foster parents for approximately twenty-four months and that the foster parents had expressed a willingness to adopt the children. Garcia indicated that the paternal grandparents were not a viable placement based upon the best interests evaluation conducted by Dr. Dyer.

Dr. Dyer testified about his psychological evaluation of E.C. and his bonding evaluation of E.C. and the two children. Dr. Dyer opined that although E.C. was "highly intelligent" and "ambitious," it was unlikely, even with a successful outcome of the criminal appeal, that he would be able to care for his children until they were well into their adolescence. Dr. Dyer also expressed concern over E.C.'s perception of what had transpired, particularly, his characterization of his wife's death as an "accident" and his view of himself as a victim.

Regarding the bonding evaluation, Dr. Dyer observed that both children were happy to see E.C., but that when N.C. was asked if he wanted to visit with E.C. again, he initially said no, but then changed his mind. Although E.C.'s interaction with his sons was positive overall, Dr. Dyer surmised that E.C.'s "narcissistic personality . . . would make it extremely difficult for him to place the needs of his children above his own." Dr. Dyer also noted that both children were well-aware that E.C. was responsible for their mother's death and found "no compelling reason" for the children to maintain ties with E.C.

With regard to the foster parents' bonding evaluation, Dr. Dyer reported that the couple provided "affection, nurturance, guidance, structure, [and] positive role modeling," and were especially attendant to T.C.'s special needs.*fn4 Although they were not "particularly affectionate," Dr. Dyer noted, "[b]oth appeared to be very interested in the children and obviously love them." In addition, although N.C. complained that his foster parents hit him and his brother on at least one occasion, Dr. Dyer did not believe that either of the children was being abused.*fn5

Dr. Dyer also reported upon the relationship between the children and their grandparents. During the bonding evaluation, Dr. Dyer observed that the grandfather basically "continued the interview," rather than interact with the children. Dr. Dyer noted that the grandfather is "extremely supportive" of the children developing a relationship with their father. Although Dr. Dyer indicated that the children were initially happy to see their grandparents, Dr. Dyer concluded that the children were not bonded to them.

Dr. Figurelli testified about his bonding evaluations of the grandparents and foster parents with the children. Dr. Figurelli observed that both grandparents acted appropriately and affectionately with the children, who were "responsive to [their] attempts to engage them in interactivity." He also noted that the grandparents were able to manage the children's behavior effectively, concluding that there was a bond between them.

In terms of the children's bond with the foster parents, Dr. Figurelli noted that the mother was a "significant advocate for the children," the couple was much attuned to the children's needs, and the children understood them to be "significant authority figures in their lives," ultimately concluding that the children were bonded to their foster parents.

Although Dr. Figurelli concluded that "the children were attached to both sets of adults," he determined that the children could be successfully transitioned into the care of the grandparents without lasting harm, provided the grandparents were made aware of, and educated about, each child's special needs. He further concluded that relocating the children to the grandparents' care would be in the children's best interests.

With respect to the children's bond to their father, Dr. Figurelli found that N.C. shares a "significant emotional attachment to his father," and that he would be "significantly adversely impacted" later in childhood if that relationship were to be broken. Though T.C. displayed only a "loose affectionate tie" to E.C., Dr. Figurelli concluded that it was in the best interests of both children to preserve their relationship with E.C., and as such, the children should be placed with their grandparents.

Finally, Dr. Abrams testified on behalf of the grandparents about her bonding evaluation of them and the children. During the evaluation, she observed that while N.C. clearly recognized his grandparents and was affectionate towards them, T.C. was not, concluding that no bond existed between T.C. and the grandparents. Dr. Abrams noted that the grandfather did not play with the children but spent much of the time talking to Dr. Abrams about his concern that the family be kept together. Ultimately, Dr. Abrams concluded that the grandparents would be fit caregivers and could provide an adequate home for both children.

J.C. testified that he currently resides in Jersey City with his wife and son, in a three bedroom basement apartment that had been "rebuilt" with the intention that N.C. and T.C. would move in with them. J.C. is employed as a carpenter or handyman and his wife, M.C., works for a food company in its quality control department. J.C. testified that after the Division visited his apartment around the time of the incident, he covered the exposed heating pipes, but was never able to get in touch with the children's case worker about a re-inspection of the residence. J.C. claimed that he and his wife were young enough, at sixty-two and fifty-five years of age, respectively, to take care of N.C. and T.C. and they had a desire to do so. M.C. also testified that she would be willing to attend counseling or training to learn how to care for children with disabilities.

Although he did not testify, Dr. Robert Kanen, Psy.D. performed psychological evaluations of both children and summarized his findings in a report, which was admitted into evidence. Dr. Kanen classified T.C. as "multiply handicapped." Dr. Kanen also believed that T.C. was traumatized by the domestic violence incident in his home based upon the fact that T.C. did not like it when he witnessed people lying on the floor and would tell them to "[g]et up." Dr. Kanen reported that N.C. was well behaved and not under any apparent distress. N.C. was aware of his mother's death, however, stating that his mother was in heaven and that his "dad did it." He also told Dr. Kanen that he did not want to see his father because he "was mean to my mom a lot of times." Dr. Kanen advised that it would be very traumatizing for the children to visit with their father.

On May 15, 2008, the Powell Group presented the Division with a summary report of the in-home counseling visitations the children had participated in starting in January 2008. The report, which was admitted into evidence during the guardianship trial, concluded that both children suffered from post-traumatic stress disorder (PTSD) as a result of their exposure to the domestic violence occurring in their home and the death of their mother. N.C. was reported to experience nightmares and showed a preoccupation with danger. T.C., who was described as non-verbal, was more difficult to assess due to his multiple handicaps, however, he did exhibit unexplained aggression during play sessions with his brother.

E.

1.

In a thorough written opinion issued on June 19, 2009, Judge Bernadette N. DeCastro held that the Division had established by clear and convincing evidence the statutory grounds for terminating E.C.'s parental rights. See N.J.S.A. 30:4C-15.1.

With respect to the first prong, whether "[t]he child's safety, health or development has been or will continue to be endangered by the parental relationship," N.J.S.A. 30:4C-15.1(a)(1), the court found that although the children were not present when E.C. assaulted their mother, E.C. still caused psychological and emotional harm to the children because he was responsible for their mother's death. This harm was substantiated by findings that both children exhibited signs of PTSD.

As to prong two, whether "[t]he parent is unwilling or unable to eliminate the harm facing the child or . . . provide a safe and stable home for the child and the delay of permanent placement will add to the harm," N.J.S.A. 30:4C-15.1(a)(2), the court concluded that E.C.'s expected lengthy period of incarceration precluded him from being able to play an active, consistent, and nurturing parental role in his sons' lives. The court was further persuaded by Dr. Dyer's and Dr. Kanen's findings that E.C. harbored resentment towards the foster parents, and as such, questioned whether E.C. could visit with his children without creating conflict and hostility between the children and their foster parents. Thus, the court concluded that the Division had proven by clear and convincing evidence that E.C. could not eliminate the harm to his sons and further, that given the children had lived with the foster parents for twenty-four months, "any delay to their permanency will add to that harm."

As for the third prong, whether "[t]he [D]ivision 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 whether "the court has considered alternatives to termination of parental rights," N.J.S.A. 30:4C-15.1(a)(3), the court found that these obligations had been satisfied under the circumstances. The court noted that because E.C. is currently incarcerated and will remain so for the duration of his sons' childhood, there is little by which the Division could effectively provide him services. Acknowledging that it is the Division's policy to place children with relatives, where feasible, N.J. Div. of Youth & Family Servs. v. K.F., 353 N.J. Super. 623, 636 (App. Div. 2002), the court clarified that there is no requirement that the Division do so. See N.J. Div of Youth & Family Servs. V. F.H., 357 N.J. Super. 515, 527 (App. Div. 2003). Accordingly, given that the children had bonded with their foster parents for over two years, the court held that it was in the children's best interests to remain with their foster parents who want to adopt them.

Finally, the court found that the Division established, by clear and convincing evidence, that "any harm resulting from the termination of . . . parental rights will be far outweighed by the resulting good." See N.J.S.A. 30:4C-15.1(a)(4). A judgment of guardianship in favor of the Division was entered on June 19, 2009. E.C.'s appeal followed.

2.

Judge DeCastro also explained the outcome of her best interests analysis regarding placement of the children with the foster family, and not with their grandparents. While acknowledging that the Division was wholly responsible for the delay in evaluating the grandparents as caregivers for the children, the court stressed that its sole concern at that time was the best interests of the children. Noting that the grandparents have no overarching right to custody of the children, the court ruled that N.C. and T.C. should remain with their foster parents, who have provided a safe and stable environment for them for the past several years. By written order dated June 19, 2009, J.C. and M.C.'s motion for custody was denied. Their appeal ensued.

II.

Appellate review of a family court's decision to terminate parental rights is limited. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). "Because of the family courts' special jurisdiction and expertise in family matters," we accord special deference to their factual and credibility findings. Cesare v. Cesare, 154 N.J. 394, 413 (1998); see also N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (a family court has a "'feel of the case' that can never be realized by a review of the cold record" (citations omitted)). So long as the court's decision is "supported by adequate, substantial, and credible evidence" in the record we will not disturb it. Cesare, supra, 154 N.J. at 412.

Our primary concern in termination of parental rights cases is the harm to the child. N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 167 (2010). We must determine whether it is "reasonably foreseeable" that a parent can cease to harm the children within their care. Ibid. Using a best interests analysis, N.J.S.A. 30:4C-15.1(a) requires the Division to prove, by clear and convincing evidence, that the following four factors have been established before terminating parental rights:

(1) The child's safety, health or development has 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 resource family parents would cause serious and enduring emotional or psychological harm to the child;

(3) The division 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;

(4) Termination of parental rights will not do more harm than good. [N.J.S.A. 30:4C-15.1(a).]

Although these four prongs "must be evaluated separately as to each child," New Jersey Division of Youth & Family Services v. A.R., 405 N.J. Super. 418, 443 (App. Div. 2009), these criteria interrelate and overlap "to provide a comprehensive standard" for determining each child's best interests. In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). They reflect the balance that must be achieved between fundamental parental rights and the State's parens patriae power to protect children against serious physical and psychological harm. E.P., supra, 196 N.J. at 102; N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 506 (2004).

E.C. argues that the Division failed to demonstrate that "[t]he child's safety, health or development has been or will continue to be endangered," if his parental rights are not terminated. Specifically, he argues that because he has never inflicted physical harm on his children and because the children did not witness the assault on their mother, only its tragic aftermath, the Division has not demonstrated harm to the children's health and safety. He further urges that the PTSD cited by the Division's experts and the court in its decision, is a familiar and expected symptom of grief, insufficient to deny him parental rights to his sons. The Division counters that it has met its burden, that the harm to the children need not be physical, and that E.C. has nonetheless made himself unavailable to them through his incarceration.

As a threshold matter, we note that the harm referred to in N.J.S.A. 30:4C-15.1(a)(1) need not be physical. I.S., supra, 202 N.J. at 196-97. Emotional and psychological injuries are also encompassed under that factor. Ibid. As we have noted, unfortunately, the children were well aware of the fact that their father beat and killed their mother. On the date of the incident, N.C. told the Division worker that his mother was "bleeding by her nose and lip" and later she was "throwing up in the car." Moreover, the cause of his mother's injuries was not lost on N.C., who told the Division worker, "my dad beat her." N.C. also recalled other instances of prior domestic violence, reporting that his dad "hit his mom on the back." N.C. told Dr. Kanen that he has no desire to see E.C. since "[h]e was mean to my mom a lot of times."

Dr. Kanen concluded that N.C. was "severely traumatized" by the domestic violence incident and recommended that the children have no contact with E.C. The Family Part's conclusion that both children suffered serious psychological injury, including PTSD, was fully supported by the record and rightfully attributed to E.C. because he caused their mother's death.

The record likewise supports the conclusion that E.C. harmed and will continue to harm his children by rendering himself physically and financially unavailable. Although defendant's incarceration cannot, by itself, justify a finding of endangerment, see N.J. Div. of Youth & Family Servs. v. L.A.S., 134 N.J. 127, 143 (1993), it is nonetheless a relevant factor. Our Supreme Court has noted that "[a] parent's withdrawal of . . . solicitude, nurture, and care for an extended period of time is in itself a harm that endangers the health and development of [a] child." In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999). Thus, although E.C. could be made available to his sons through visitation, the court's finding that E.C. would be unable to provide daily solicitude and nurture to his sons throughout their childhood was supported by substantial credible evidence in the record.

E.C. also contests the court's finding as to the second statutory prong, that "[he] is unwilling or unable to eliminate the harm facing the child," on the basis that he submitted a viable permanency plan to the Division, which it rejected. He argues that his proposal, providing for his sons to live with his parents until his release from incarceration, would help him maintain a relationship with his sons and allow him "to provide for the care of his children by family members."

The Division submits that the Family Part correctly held that it met the second prong, because E.C. will be absent from his children's lives for the remainder of their childhood, separating the children from their foster parents would gravely harm them, and any further delay in establishing a permanent placement would exacerbate the harm.

The second factor requires the Division to show that the parent "can[not] become fit in time to meet the needs of the child." N.J. Div. of Youth & Family Servs. v. T.S., __ N.J. Super. __, __ (App. Div. 2010) (slip op. at 23). An additional consideration is whether, due to the parent's current situation, "the delay of permanent placement" would add to the harm to the child. N.J.S.A. 30:4C-15.1(a)(2). The second prong is satisfied where "'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.'" N.J.

Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 281 (2007) (quoting K.H.O., supra, 161 N.J. at 363).

Both Dr. Dyer and Dr. Figurelli found that the children were bonded to their foster parents, and that separating the children from them after more than two years would yield further devastation. The fact that E.C. is currently serving an eighteen-year sentence subject to an 85% period of parole ineligibility bolsters the Family Part's conclusions. Accordingly, the length of E.C.'s expected incarceration, the nature of the underlying crime, and the unlikely prospect of reunification with his sons before they reach majority, supports our conclusion that the Family Part's finding that "permanence in itself is an important part of nurture," was amply based on substantial credible evidence in the record.

Under the third prong of the best interests test, E.C. submits that although the Division was unable to provide him services due to his incarceration, the court failed to adequately consider his parents as an alternative to the termination of parental rights. See N.J.S.A. 30:4C-15.1(a)(3). Essentially, E.C. urges that termination of his parental rights was unnecessary because his parents were willing and able to assume interim custody. The Division responds that the court gave adequate consideration to the grandparents as a potential relative resource and that it is in the best interests of the children to remain with their foster parents, with whom they have cemented psychological bonds.

Once the Division was granted legal custody of N.C. and T.C. it was required to seek out relatives "who may be willing and able to provide the care and support required by the child." N.J.S.A. 30:4C-12.1(a). Indeed, a common placement resource in parental termination cases is relatives of the minors. N.J.

Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 609 (1986).

When a child is placed with a relative, termination is both unnecessary and unwise unless the relative wishes to adopt the child or is unwilling to provide long-term care. As long as the relative is willing to provide care until the parents can resume custody, the child's needs for stability and attachment are satisfied. In fact, initiating termination might place the relative in the awkward position of having to act against the parents. [Ibid.]

Following E.C.'s arrest, the Division immediately sought out and investigated resource placements for the children. At that time, the grandparents expressed an interest but also identified several others as potential caregivers. Armed with the list of names supplied, the Division case worker visited the homes of the possible placements, initially ruling out the grandparents' and N.C.'s godmother's homes due to inadequate living conditions. Ultimately, the Division settled on the children's paternal uncle's in-laws.

In the proceeding that followed, the Family Part noted that its job was to determine the best interests of the children as of the hearing date, regardless of what missteps the Division committed along the way. In considering the evidence before the court, it found Dr. Abrams, who testified on behalf of the grandparents, to be generally unreliable. Additionally, the court was troubled by the grandparents' reference to the fatal incident as an "accident" or "unfortunate event."

The fact that J.C. and M.C. are biological relatives, and the foster parents are not, is only one factor to be considered and certainly not determinative. As the Family Part properly noted, "[t]his is not a case where the Court is asked to consider the best interest of a child by weighing the strength of the bond between his biological parents with that of his foster parents." Indeed, while it is the Division's policy to place children with relatives where feasible, "there is no common law presumption in favor of an award to a mother as opposed to a father, or to a relative as opposed to a third party." M.F., supra, 357 N.J. Super. at 528. The only relevant presumption is in favor of the natural parent against relatives or third parties. Id. at 529 n.3.

Here, the Division imperfectly executed its duty insofar as the manner of considering the grandparents as possible caretakers; nevertheless, as the Family Part found, its ultimate permanency plan greatly advantaged N.C. and T.C., and fulfilled the best interests of the child test. See id. at 529. Because the court's findings were supported by sufficient credible evidence in the record, we will not disturb them.

Prong four asks us to determine whether "'after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with [his] natural parents than from the permanent disruption of [his] relationship with the foster parents.'" K.H.O., supra, 161 N.J. at 355; see also N.J.S.A. 30:4C-15.1(a)(4). To justify terminating E.C.'s parental rights, the Division must do more than show that the children would be generally "better off" with the current foster parents. In re Adoption of Children by G.P.B., 161 N.J. 396, 404 (1999); In re Baby M., 109 N.J. 396, 445 (1988). The Division is not required to prove, however, that "no harm will befall the child as a result of the severing of biological ties," only that the child will experience less harm, than if he or she were separated from the foster parents. K.H.O., supra, 161 N.J. at 355. The Family Part essentially found that the children had already suffered harm due to their father's actions and that E.C.'s somewhat cavalier attitude towards the incident did not demonstrate an ability to "respond to his children in an appropriate way."

We have observed that "[i]nherent in the fourth factor is that a child has a 'paramount need for a permanent and defined parent-child relationship.'" N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 119 (App. Div.), certif. denied, 180 N.J. 456 (2004); In re Adoption of Children by G.P.B., Jr., 161 N.J. 396, 404 (1999) (noting that in recent years, "[a] child's right to a permanent home has gained increasing prominence"). Here, N.C. and T.C. displayed long-term bonds with their current foster parents, after approximately two and one-half years, when the Family Part rendered its decision. Both children were reported to be reasonably well-adjusted and secure living with their foster parents. N.C. and T.C. regard their foster parents as their family. When asked if he wanted to live with his grandparents, N.C. responded that it would be "bad" because his foster family would miss him. By all accounts, the foster parents are now the psychological parents of N.C. and T.C.

Moreover, although Dr. Figurelli opined that the two children could be successfully moved to their grandparents' home without lasting harm, Dr. Dyer maintained that "[e]nforced contact with [E.C.] would be extremely likely to aggravate [their] sense of loss and post-traumatic symptoms." Dr. Kanen concurred in this opinion. Thus, given the record, we are satisfied with the Family Part's conclusion that "[t]ermination of parental rights will not do more harm than good."

The grandparents further argue that the Division's delay in rendering a decision in their appeal was prejudicial in that N.C. and T.C. were able to bond with the foster parents for a longer period of time, ultimately a major factor in the decision to deny the grandparents custody. Essentially, they argue that the foster parents became a more attractive placement option due to the Division's delay in rendering a decision through no fault of their own. As such, they argue that the court should have considered the delay in its best interests calculus.

"[D]elay in an administrative disposition 'will not generally affect the validity of [a decision], particularly where no prejudice is shown.'" Special Care of N.J., Inc. v. Bd. of Review, 327 N.J. Super. 197, 204 (App. Div.) (quoting In re Garber, 141 N.J. Super. 87, 91 (App. Div.), certif. denied, 71 N.J. 494 (1976)), certif. denied, 164 N.J. 190 (2000); Appeal of Darcy, 114 N.J. Super. 454, 462 (App. Div. 1971).

Although the grandparents may have been prejudiced by the Division's delay, the best interests test does not account for administrative or other delays in determining what is best for the children. Rather, the court is obliged to look at "what those best interests are, today, even if some of the facts may have resulted in part from legal error." In re Baby M, supra, 109 N.J. at 456 ("The child's interests come first: we will not punish it for judicial errors, assuming any were made.").

Furthermore, the fact that both children were bonded to the foster parents was not the sole basis for the court's decision. The court also took into consideration the foster parents' ability to address T.C.'s special needs, the children's own preferences, as well as the probability that the grandparents would insist on what would be an unhealthy relationship with E.C. The court was impressed with the progress the children had made with the foster parents and was concerned about whether enforced visitation with their father would traumatize them further.

Finally, although the importance of grandparents in the lives of children has grown over the past several decades, Moriarty v. Bradt, 177 N.J. 84, 95-98 (2003), cert. denied, 540 U.S. 1177, 124 S. Ct. 1408, 158 L. Ed. 2d 78 (2004), "[g]randparents have no recognized right to custody, short of an independent action for adoption," D.Y.F.S. v. D.T., 171 N.J. Super. 520, 525 (1979). Despite the Division's policy in favor of placement with relatives, it has broad discretion in whether to place a child with a relative over another third-party.

M.F.,supra, 357 N.J. Super. at 527.

III.

In summary, we affirm both the Family Part's judgment terminating the parental rights of E.C., and its correlative determination not to award custody of the children to J.C. and M.C. We do this not to inflict more heartache upon E.C.'s parents, but rather, to facilitate the healing of their grandchildren.

Affirmed.


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