July 7, 2011
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
T.L.H., DEFENDANT, AND S.S., DEFENDANT-APPELLANT.
IN THEMATTER OF THE GUARDIANSHIP OF T.M.S., MINOR.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FG-03-08-10. Yvonne Smith Segars, Public Defender, attorney for appellant (Howard Danzig, Designated Counsel, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 8, 2011 Before Judges Ashrafi, Nugent and Kestin.
Defendant S.S. appeals from a July 6, 2010 judgment of the Family Part terminating his parental rights to his youngest daughter, now fourteen years old. We affirm.
In the spring of 2008, plaintiff Division of Youth and Family Services (DYFS) received referrals to the minor's home concerning drug use by the parents and defendant's alleged drug and firearm sales from the home while the child was present. When DYFS began its investigations, the mother had already moved out of the home.*fn1 DYFS eventually removed the child from the home in July 2008 and placed her with her maternal grandmother pursuant to a Title 9 abuse and neglect complaint under N.J.S.A. 9:6-8.21 to -8.73. A year later, after defendant and the child's mother did not comply with drug evaluation and treatment services, DYFS filed a Title 30 complaint pursuant to N.J.S.A. 30:4C-15.1a to terminate their parental rights, and the court dismissed the abuse and neglect case.
Under N.J.S.A. 30:4C-15.1a, parental rights may be terminated when:
(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 for 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 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; and
(4) Termination of parental rights will not do more harm than good.
The four prongs of the statute are "not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). DYFS bears the burden of proving all four prongs by clear and convincing evidence. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 606 (2007).
At the time of trial in this case, the mother made a voluntary, identified surrender of her parental rights in favor of adoption by the grandmother. The mother is not involved in this appeal.
Defendant father opposed termination of his parental rights. At trial, he conceded he had endangered the child because he could not provide a home for her, and he agreed that she should remain in the custody of her grandmother. However, defendant sought an order for kinship legal guardianship (KLG) by the grandmother instead of termination of his parental rights leading to adoption. He desired assurance under the law that he could continue his visitations with his daughter, which the grandmother has accommodated and promised to continue after adoption.
In a termination of parental rights case, the family court's inquiry is extremely fact-sensitive. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 280 (2007). In this case, Judge Marvin Schlosser heard the evidence at trial and made detailed findings of fact from which he reached appropriate conclusions. Our standard of review on appeal requires that we defer to the family court's findings of fact and conclusions of law based on those findings. G.L., supra, 191 N.J. at 605; N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 433 (App. Div. 2009).
Deference is accorded because the trial judge had the opportunity to "make first-hand credibility judgments" and to gain a "feel of the case," thus sustaining a level of factual familiarity that cannot be duplicated by an appellate court reviewing a written record. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (quoting M.M., supra, 189 N.J. at 293). We also defer to the trial court's assessment of expert evaluations. In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999).
We see no need to recount with detail the evidence presented at the trial proving the unfitness of defendant to care for his daughter. For our purposes, it is sufficient to say that defendant abuses drugs, including in his home when the child has been present, and he is unwilling or unable to stem that abuse. At the time of trial, he did not have a stable home, shifting between a one-room apartment in Pennsylvania with one of his adult daughters and the home of friends in New Jersey. He surrounds himself with persons that even his teenage daughter understands are not compatible with a stable family life. One such person is a woman who abused drugs and to whom he handed the responsibility of watching the child when he was not home. The woman's therapist thought it inappropriate for her to be caring for an adolescent and told defendant so.
Over the years, defendant has amassed a record of twenty-one charges of driving without a license and several criminal offenses, primarily involving illegal drugs. In March 2010, he was sentenced to serve five years of probation after he pleaded guilty to a third-degree charge of possession of a controlled dangerous substance.
Defendant routinely denies to professional evaluators that he abuses illegal drugs, but his denials are false. He fails drug tests. DYFS has directed him to assistance and rehabilitation programs; he does not attend. He has no desire to modify his behavior and to become a responsible parent.
Defendant wants the benefit of a carefree relationship with his daughter, but he is unwilling to bear any responsibility for her health and welfare. Ideally for him, his mother-in-law will provide care for his daughter while he visits periodically to maintain their relationship but otherwise pursues his own needs and pleasures. His loving daughter has hoped for more, but she has become resigned to her father's shortcomings, understanding that he will not be a care-giving parent to her. She is content to stay in the care of her grandmother. As the trial judge found, in accord with professional bonding evaluations, defendant's relationship with his daughter is loving and mutual, but it is not that of a parent and child. Defendant wants to be his daughter's "pal," for example, engaging during the bonding evaluations in inappropriate conversation with a child of her age.
Judge Schlosser concluded that DYFS had proven not only the first two prongs and part of the third prong of N.J.S.A. 30:4C-15.1a, which defendant concedes, but that it had also proven the balance of the statute, which defendant contests - that there is no viable alternative to termination of defendant's parental rights and that termination will not do more harm to the child than good.
On appeal defendant raises a number of legal points that were not presented to the trial court.*fn2 Except for his general argument that the evidence failed to prove all four prongs of the statute, which argument we reject, defendant's points are subject to the plain error standard of review. See R. 2:10-2.
Defendant argues for the first time on appeal that the family court erred in failing to interview the child, then thirteen years old and capable of expressing her desire to continue the relationship she enjoyed with defendant. He contends that the trial judge had an obligation to determine directly from the child whether termination of his parental rights would do more harm than good.
In E.P., supra, 196 N.J. at 112-13, the Court stated that the preferences of a mature child should be one consideration among many in a parental termination proceeding. Where a mature child more than the age of ten, on his or her own initiative, "requests the opportunity to express an opinion," the court should grant the request. Id. at 114. But, the Supreme Court cautioned that where children wish "to return to their abusive or neglectful natural parents, who have endangered and continue to endanger their lives" permitting them to express an opinion would likely be "futile" or "contrary to a child's best interests." Id. at 113. Whether the child should be interviewed is left within the "sound discretion of the family court." Id. at 114.
In this case, defendant's brief fails to acknowledge that the law guardian for the child objected to her testifying or being interviewed for the termination trial. The child had been previously interviewed in camera during the prior abuse and neglect proceedings, albeit by a different judge. The law guardian believed it would be detrimental to the child to involve her again closely in the parental rights litigation, stating that the child had stated her views and now wanted to "move on." Trial counsel for defendant accepted the law guardian's position without objection.
Judge Schlosser heard testimony from the DYFS caseworker about monthly contacts she had with the child and the child's views about the termination and guardianship case. The caseworker testified the child had recently indicated that:
[S]he loves her father and that if he were able to do certain things, i.e., have housing in New Jersey because she does not want to leave. She is refusing to go to Pennsylvania. There's some people that she feels like he associates with that she wants no part of. If he were willing to do those things then she would want to go with him. However, if that is not, if that is not possible, she is content with being where she is although she will acknowledge that it's not the perfect situation but she is content with being there.
Based on the testimony of the DYFS caseworker and "the documentary evidence," the judge determined that the child's "wishes are made known" and that "her testimony is not needed." There was neither plain error nor abuse of discretion in that ruling.
Next, defendant argues the family court improperly rejected KLG as an alternative to adoption merely because the grandmother wants to adopt the child. He asserts that prong three under the statute was not proven because KLG would have provided permanency for the child while avoiding harmful termination of his parental relationship with her.
The statute applicable to KLG, N.J.S.A. 3B:12A-6d, provides that the court shall appoint a caregiver as a kinship legal guardian if clear and convincing evidence demonstrates that:
(1) each parent's incapacity is of such a serious nature as to demonstrate that the parents are unable, unavailable or unwilling to perform the regular and expected functions of care and support of the child;
(2) the parents' inability to perform those functions is unlikely to change in the foreseeable future;
(3) in cases in which the Division is involved with the child as provided in subsection a of [N.J.S.A. 30:4C-85], (a) the Division 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; and
(4) awarding kinship legal guardianship is in the child's best interests.
Here, the trial court rejected KLG as a potential alternative because the maternal grandmother had decided to adopt the child, thus negating the provision of the statute that makes it applicable only when "adoption of the child is neither feasible nor likely."
In New Jersey Division of Youth and Family Services v. P.P., 180 N.J. 494 (2004), the Court held that:
[t]he plain language of the [KLG] Act, as well as its legislative history, establish kinship legal guardianship as a more permanent option than foster care when adoption "is neither feasible nor likely" and "kinship legal guardianship is in the child's best interest." Conversely, when the permanency provided by adoption is available, kinship legal guardianship cannot be used as a defense to termination of parental rights under N.J.S.A. 30:4C-15.1a(3). [Id. at 512-13 (emphasis added) (internal citations omitted).]
Defendant is attempting to use KLG as a defense to termination of his parental rights. Under P.P., if adoption is feasible and likely, as it is here, the defense fails.
Defendant argues for the first time on appeal that recent federal legislation supersedes the holding of P.P. and the statutory requirement in N.J.S.A. 3B:12A-6d(3) that adoption be neither feasible nor likely. He argues that the federal Fostering Connections to Success and Increasing Adoptions Act, Pub. L. No. 110-351, 122 Stat. 3949 (2008), which amended portions of the Adoption and Safe Families Act, 42 U.S.C.A. § 671, gives equal footing to KLG and therefore preempts our State statute and case law.
Federal preemption of state laws is based on the Supremacy Clause of the United States Constitution. U.S. Const., art. VI, cl. 2. Preemption can be express or implied. Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S. Ct. 1305, 1309, 51 L. Ed. 2d 604, 614 (1977). "Express preemption is determined from an examination of the explicit language used by Congress. Implied preemption can appear in two forms: field preemption . . . and conflict preemption . . . ." Giordano v. Giordano, 389 N.J. Super. 391, 395 (App. Div. 2007) (internal quotations and citations omitted). Field preemption occurs where federal law is so pervasive that it occupies the field. McGovern v. Bor. of Harvey Cedars, 401 N.J. Super. 136, 149 (App. Div. 2008). "[C]onflict preemption [occurs] where compliance with both federal and state regulations is a physical impossibility, or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Gade v. Nat'l Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 98, 112 S. Ct. 2374, 2383, 120 L. Ed. 2d 73, 84 (1992) (internal citations and quotations omitted).
The federal legislation upon which defendant relies provides in relevant part:
(3) Child's eligibility for a kinship guardianship assistance payment.
(A) In general. A child is eligible for a kinship guardianship assistance payment under this subsection if the State agency determines the following:
(ii) Being returned home or adopted are not appropriate permanency options for the child. [42 U.S.C.A. § 673(d)(3)(A)(ii).]
This statute concerns federal assistance payments to a child. It does not make any express reference to preemption of state laws. As to implied preemption, the federal statute is neither so pervasive on the subject of adoption and other child permanency options that it "occupies the field" nor in conflict with our State statute and decisional law. It does not preempt our KLG statute, N.J.S.A. 3B:12A-6d, or the Supreme Court's holding in P.P., supra, 180 N.J. at 513.
Defendant argues for the first time on appeal that the judge erred in failing to order that the grandmother testify at the trial, in particular so that the judge could scrutinize her understanding of KLG as an alternative to adoption. Again, defendant's brief fails to acknowledge that his trial counsel agreed to a stipulation of the grandmother's anticipated testimony on that subject in lieu of calling her to the witness stand.
At trial, the DYFS caseworker testified about her conversation with the grandmother on the subject of alternative permanency options. Other caseworkers had discussed the KLG option with the grandmother several times. By the time the current caseworker addressed the subject again, the grandmother "was very adamant and clear that she had already had this conversation with prior workers and she was very clear that she did not want kinship legal guardianship and that she did want adoption for permanency sake for [the child]."
The law guardian was prepared to call the grandmother to testify. Following a stipulation agreed to by all counsel in lieu of testimony by defendant, the law guardian proposed a similar stipulation for the grandmother's anticipated testimony. During a recess, counsel agreed to the stipulation. Back in the courtroom and on the record, the law guardian announced the stipulation:
The testimony would be that she was explained several times the differences between KLG and adoption including what would be necessary to overturn a KLG, that it's not an easy matter to overturn a KLG but in any event, knowing all that, that she still desires the permanency of adoption for [the child] because she believes it is in [the child's] best interest and that although it is not legally enforceable she would allow post adoption visitation in the same manner she's been doing so for the past two years.
Trial counsel for defendant said: "I have no objection to that stipulation, Judge. I believe it is correct." Trial counsel then referred to earlier testimony that the grandmother had given, apparently during the abuse and neglect hearing that preceded the termination trial. Counsel for DYFS also agreed to the stipulation, and the judge accepted it as evidence.
Where defendant agreed to a procedure utilized at trial, he will not be heard on appeal to complain of error unless there was "a fundamental miscarriage of justice," See N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342 (2010). Clearly, there was no miscarriage of justice or any error in the court's acceptance of the stipulation. The caseworker's testimony and the stipulation were ample evidence of the grandmother's decision to adopt the child.
Defendant argues, again for the first time on appeal, that the family court erred in not considering the effect termination of his parental rights will have on the child's relationship with her two adult sisters. In In re Guardianship of J.N.H., 172 N.J. 440, 478 (2002), the Court held that in evaluating prong four of the termination statute, a trial court should consider the effect of termination on the minor's sibling relationships. In J.N.H., the minor's siblings were ages nine and ten. Id. at 455. Here, the sisters are adults. They and the teenaged child will undoubtedly make their own decisions about maintaining their relationships, and there is no evidence that adoption by the grandmother will interfere. Defendant's argument has no merit.
The fourth prong under the statute further "serves as a fail-safe against termination even where the remaining standards have been met." G.L., supra, 191 N.J. at 609. "The question ultimately is not whether a biological mother or father is a worthy parent, but whether a child's interest will best be served by completely terminating the child's relationship with that parent." E.P., supra, 196 N.J. at 108. "When a parent has exposed a child to continuing harm through abuse or neglect and has been unable to remediate the danger to the child, and when the child has bonded with foster parents who have provided a nurturing and safe home, in those circumstances termination of parental rights likely will not do more harm than good." Ibid.
In E.P., the Supreme Court said, "We will not disturb the family court's decision to terminate parental rights when there is substantial credible evidence in the record to support the court's findings." 196 N.J. at 104. "Only when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark' should an appellate court intervene and make its own findings to ensure that there is not a denial of justice." Ibid. (quoting G.L., supra, 191 N.J. at 605). DYFS presented ample evidence at trial to support termination of defendant's parental rights, including with respect to the third and fourth prongs of N.J.S.A. 30:4C-15.1a.