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

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 19, 2011

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

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-109-09.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 20, 2011

Before Judges Messano, Yannotti and Espinosa.

M.M. appeals from an order entered by the Family Part on August 9, 2010, which terminated her parental rights to the minor child, N.E., and awarded guardianship of the child to the Division of Youth and Family Services (Division). For the reasons that follow, we affirm.

I.

M.M. gave birth to N.E. on November 6, 2003. At the time, M.M. had three other children. Two of them are now adults. The other child was F.M., who was born on February 17, 1993. In December 2004, N.E.'s maternal grandmother contacted the Division and reported that M.M. was abusing drugs, sold her food stamps to obtain money for drugs, and drug users were coming in and out of M.M.'s home. The Division investigated the referral and determined that N.E. was not in immediate harm. The Division chose, however, to monitor M.M. On May 18, 2005, M.M. missed an appointment for a drug test and two days later she tested positive for cocaine and cannabinoids.

On June 2, 2005, an anonymous caller reported to the Division that M.M. was using drugs. The Division investigated the report and on June 3, 2005, M.M. tested positive for marijuana. She admitted that she used that drug on occasion. The Division determined that the report of child abuse and neglect had been substantiated.

On June 20, 2005, the Division filed an application with the trial court and was awarded custody, care and supervision of N.E. and F.M. The Division placed N.E. with D.R., a family friend. F.M. was placed with his paternal grandparents, who subsequently adopted him.

In June 2005, after consulting with a Certified Alcohol and Drug Counselor, the Division recommended that M.M. enroll in an inpatient drug treatment program. She refused. In July 2005, M.M. informed the court that she would not enroll in a drug program. The court conducted a fact-finding hearing on October 13, 2005, and based on M.M.'s history of drug use, found that M.M. neglected N.E. and F.M. In March 2006, after a drug abuse assessment and psychological evaluation, the Division arranged for M.M. to attend an intensive outpatient substance abuse program.

On March 30, 2006, the trial court conducted a compliance review and ordered M.M. to continue drug treatment, attend a parenting skills program, and obtain employment. The court also ordered the Division to refer M.M. to a vocational program, provide her with a bus pass, assist her in obtaining Section 8 housing assistance, and provide her with a security deposit for an apartment. In April 2006, M.M. tested positive for cocaine.

In June 2006, the trial court conducted a permanency hearing. The court found that N.E. and F.M. could not be returned to M.M. in the foreseeable future because she tested positive for drugs in April 2006, and because she had not made sufficient progress in a drug treatment program. The court approved the Division's plan to appoint D.R. as N.E.'s kinship legal guardian.

In December 2006, the Division determined that D.R. did not have appropriate sleeping arrangements for her children and N.E. Furthermore, D.R. refused to change the sleeping arrangements so that her apartment could be licensed for foster care. D.R. suggested her parents, M.A. and L.A., as N.E.'s caretakers.

It appears, however, that M.A. and L.A. lived in an apartment that also could not be licensed. The Division informed M.A. and L.A. that N.E. could be placed with them if they moved to a suitable apartment. In the meantime, D.R. continued to care for N.E. and the Division arranged for M.M. to have bi-weekly supervised visits with her. In June 2007, the Division removed N.E. from D.R.'s home because of a report that D.R. was using drugs. The child was placed with D.W. and M.S.

In May 2007, N.E.'s biological father, V.E., contacted the Division and expressed an interest in taking custody of N.E. At the time, V.E. was living in Florida with his wife and their children. The court entered an order on June 14, 2007 granting the Division time in which to explore placement of N.E. with her father. In July 2007, the Division's caseworkers took N.E. to Florida to visit V.E. and his family. Thereafter, the court approved the Division's plan to reunite N.E. with her father at an appropriate time.

On December 21, 2007, M.M. gave birth prematurely to a drug-exposed baby girl, J.M. In February 2008, M.M. tested positive for cocaine and thereafter the Division referred her to a substance abuse program. On February 15, 2008, the Division filed a complaint seeking custody of J.M. J.M. was placed in foster care in November of 2008. On December 31, 2008, J.M. was placed with M.A., M.M.'s family friend.

In March 2008, M.M. was discharged from an outpatient drug treatment program because she tested positive for cocaine. On March 27, 2008, the court ordered M.M. to complete an inpatient drug treatment program, secure a job and establish a stable home. On March 29, 2008, M.M. again tested positive for cocaine.

The court entered an order on June 26, 2008, approving the Division's plan to terminate M.M.'s parental rights to N.E. followed by adoption by a relative or N.E.'s current foster parents, D.W. and M.S. In June 2008, M.M.'s "case" at a drug treatment program was "closed" due to lack of attendance and non-compliance with treatment. M.M. was enrolled in another drug treatment program.

On July 31, 2008, the Division filed its complaint seeking an order terminating M.M.'s parental rights and awarding guardianship of the child to the Division. In September 2008, M.M. was discharged from the drug program due to inappropriate conduct and violations of the agency's rules.

On September 5, 2008, the court ordered M.M. to attend a psychological and bonding evaluation with Frank J. Dyer, Ph.D. (Dr. Dyer). The Division arranged for M.M.'s transportation to the evaluation. M.M. missed the appointment and it was rescheduled for February 11, 2009. She again missed the appointment.

On December 8, 2008, Dr. Dyer conducted a bonding assessment of N.E. and her foster parents, D.W. and M.S. In his report dated April 21, 2008, Dr. Dyer concluded that N.E. was "flourishing developmentally . . . except for a delay in her motor skills development." He found that if N.E. were removed from her foster parents, she would suffer "a traumatic loss that would have lasting effects into adolescence and adulthood."

On February 5, 2009, M.M. tested positive for cocaine. The Division made another appointment with Dr. Dyer for a psychological and bonding evaluation. The Division informed M.M. by letter that it was imperative that she not miss the appointment. The Division arranged to have M.M. picked up at her home for the appointment. She did not attend.

On February 10, 2009, Elizabeth M. Smith, Psy.D. (Dr. Smith), conducted a psychological evaluation of M.M. for the Law Guardian. Dr. Smith found that M.M. had poor insight and judgment. She was "childlike" and "self-centered" and had limited intellectual abilities. Dr. Smith also found that M.M. was "in denial" regarding her substance abuse problem and noted that she had admitted using cocaine days before the interview. Dr. Smith observed N.E. with M.M. and with her foster parents. She concluded that N.E. would suffer significant emotional harm if removed from her foster parents and placed with M.A. and J.M., noting that "[t]his harm could not be mitigated or compensated for by whatever benefit might accrue from living with her biological sister."

In March 2009, defendant's expert, Marc Friedman, Ph.D. (Dr. Friedman), conducted a psychological evaluation of M.M. and a bonding evaluation of M.M. and N.E. Thereafter, Dr. Friedman conducted bonding evaluations of N.E. and her foster parents, and of N.E. and M.A. Dr. Friedman opined that there was "a strong bond" between N.E. and her mother and there would be "severe consequences" if that bond were disrupted.

Dr. Friedman also opined that a bond had developed between N.E. and her foster parents. He said that there was a "strong bond" between N.E. and M.A. Dr. Friedman stated that reuniting the child with her family "would greatly outweigh the short-term negative consequences that might result from removing her from the foster home." Dr. Friedman recommended that that a kinship legal guardianship (KLG) be established for the child with M.A.

The guardianship trial began on April 6, 2009. V.E. informed the court that he was no longer interested in obtaining custody of N.E. At the trial, a Division caseworker and Dr. Dyer testified for the Division. After Dr. Dyer testified, the defense moved to dismiss the complaint because the Division had not presented a bonding evaluation of M.M. and the child. The court denied the motion. Dr. Smith then testified on behalf of the Law Guardian. Dr. Friedman and M.A. testified for the defense.

On August 9, 2010, the court placed its decision on the record, finding that the Division had proven, by clear and convincing evidence, all of the criteria in N.J.S.A. 30:4C-15.1(a) for termination of M.M.'s parental rights to N.E. The court found that N.E.'s health, safety and development had been harmed by M.M.'s consistent use of illegal drugs. The court further found that M.M. was unable or unwilling to eliminate the harm to the child in the future, noting that M.M. had "a continuous problem" with drugs and homelessness.

In addition, the court found that the Division had made reasonable efforts to address the circumstances that led to the child's placement. The court noted that the Division had referred M.M. to numerous programs but she never completed any of the programs "for one reason or another." The court pointed out that the Division had endeavored to reunify N.E. with her mother. The court noted that M.M. was told she would have to remain drug free and have a stable home, which she apparently had "no interest in doing . . . ."

The court further found that termination of M.M.'s parental rights would not do more harm than good, finding the testimony of Dr. Dyer and Dr. Smith to be more persuasive than that of Dr. Friedman. The court found that the appointment of M.A. as kinship legal guardian was not in the child's best interests, stating the N.E. "needs to be in a safe, stable home where she is now."

The court entered an order dated August 9, 2010, memorializing its decision. The court thereafter entered an order terminating V.E.'s parental rights to N.E. He has not appealed from the order. This appeal followed.

We note that M.M. does not challenge the court's finding that the Division established by clear and convincing evidence the first prong of the "best interest" standard, which requires proof that the child's health, safety and development have been harmed by the parental relationship. N.J.S.A. 30:4C-15.1(a)(1). M.M. also does not challenge the court's finding that the Division proved by clear and convincing evidence the second prong of the "best interest" standard and established that M.M. was "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." N.J.S.A. 30:4C-15.1(a)(2).

II.

We turn first to M.M.'s contention that the Division failed to prove the third prong of the "best interest" standard. The third prong requires the Division to establish that it made reasonable efforts to help the parent correct the problems that led to the child's placement outside of the home and considered alternatives to termination of parental rights. N.J.S.A. 30:4C-15.1(a)(3). M.M. does not argue that the Division failed to make reasonable efforts to address the circumstances that led to N.E.'s placement. She contends, however, that the Division failed to establish that it considered an alternative to termination of her parental rights, specifically the appointment of M.A. as the child's kinship legal guardian.

The Kinship Legal Guardianship Act, N.J.S.A. 3B:12A-1 to -7, became effective on January 1, 2002. L. 2001, c. 250, § 1. The Act established KLG as "an alternative, permanent legal arrangement for children and their caregivers." N.J.S.A. 3B:12A-1. Under the Act, the court is permitted to appoint a caregiver as a kinship legal guardian if it finds, based on clear and convincing evidence 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 . . (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. [N.J.S.A. 3B:12A-6(d).]

"The plain language of the 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.'" N.J. Div. of Youth & Family Servcs. v. P.P., 180 N.J. 494, 512 (2004) (quoting N.J.S.A. 3B:12A-6(d)(3)-(4)). "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 513.

Here, the record shows that N.E.'s foster parents are ready, willing and able to adopt her if she becomes available for adoption. Since that is the case, the trial court could not make the findings required by N.J.S.A. 3B:12A-6(d) for appointment of M.A. as N.E.'s kinship legal guardian. P.P., supra, 180 N.J. at 513. See also N.J. Div. of Youth and Family Servs. v. D.H., 398 N.J. Super. 339, 341 (App. Div. 2008) (noting that when adoption is feasible, KLG may not be raised as a defense to termination of parental rights); N.J. Div. of Youth & Family Servs. v. S.F., 392 N.J. Super. 201, 213 (App. Div. 2007) (holding that KLG was appropriate because children's grandparents were not willing to adopt them).

Indeed, appointing M.A. as kinship legal guardian for N.E. would be inconsistent with one of the fundamental purposes of the Act, which is "to provide as much permanency as possible when adoption is not feasible or likely . . . ." P.P., supra, 180 N.J. at 510. KLG may be a more permanent option than foster care but not when adoption is feasible and likely. Id. at 512.

M.M. nevertheless argues that, even though N.E.'s foster parent expressed a willingness to adopt her, it would be in the child's best interest to have M.A. appointed as her kinship legal guardian. In support of this contention, M.M. relies upon Dr. Friedman's testimony. He opined that allowing M.A. to act as kinship legal guardian for N.E. would give M.M. an opportunity to "stabilize her life" while N.E. is cared for by the caretaker for N.E.'s younger sister.

As we noted previously, the trial court found that KLG was not in N.E.'s best interests. In its decision, the court noted that Dr. Dyer had testified that removal of N.E. from her foster parents would cause the child to suffer significant and enduring psychological harm. The court also noted that Dr. Smith had opined that N.E. saw her foster parents as her psychological parents, whereas she only viewed M.A. as a "grandmother figure." The court pointed out that both Dr. Dyer and Dr. Smith believed that M.A. would not be able to ameliorate the harm to N.E. of losing her foster family.

The court additionally noted that M.A. said she would allow M.M. to maintain contact with N.E. but, in the court's view, this would present the child with a bad example because M.M. was "still doing drugs" and had "very little control" over herself. The court found that under the circumstances, it would not be in the child's best interest to allow M.A. to be N.E.'s kinship legal guardian. The court further found that the child needed the "safe, stable home where she is now" and a continued relationship with M.M. would not be in the child's best interest.

Factual findings of a trial court in a termination proceeding "'should not be disturbed unless they are so wholly unsupportable as to result in a denial of justice.'" In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002) (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). We are satisfied that sufficient credible evidence exists to support the trial court's findings of fact. We are also satisfied that the court correctly determined that KLG was not an alternative to termination of M.M.'s parental rights, and appointing M.A. as kinship legal guardian for N.E. would not be in the child's best interest.

M.M. nevertheless argues that our recent decision in N.J. Div. of Youth & Family Servs. v. K.L.W., 419 N.J. Super. 568 (App. Div. 2011), requires reversal of the trial court's judgment. In K.L.W., a child and her mother tested positive for cocaine at birth. Id. at 570. The Division filed an action alleging abuse and neglect and was granted custody of the child. Id. at 571. The child's father was not living with the mother at the time, and he was not able to care for the child. Ibid.

The child was later placed with a foster parent, who expressed a willingness to adopt her. Id. at 572. The trial court ultimately ordered the termination of the parents' parental rights to the child and found, among other things, that she would suffer serious and enduring harm if removed from her foster parent. Id. at 576-77. We reversed the trial court's judgment. Id. at 583.

We concluded that the Division had not met its obligation under N.J.S.A. 30:4C-12.1 to identify and assess relatives of the child to determine whether any of them might be willing and able to provide care and support for the child. Id. at 580-81. We stated that, while the Legislature had barred KLG when an adoption is feasible or likely, it did not intend "to relieve the Division of its obligation to search for relatives, discourage placement with relatives or prefer placement at the time of removal in the home of a stranger that is willing to adopt a child." Id. at 579-80.

In our view, M.M.'s reliance upon K.L.W. is misplaced. In this case, the Division explored possible placement of the child with relatives and determined that such placements were unsuitable. Moreover, M.A. is a family friend, not a relative. Thus, K.L.W. has no application to this matter.

III.

Next, M.M. argues that the trial court erred by finding that the Division had established the fourth prong of the "best interest" standard. Again, we disagree.

The fourth prong requires that the Division prove by clear and convincing evidence that termination of her parental rights would not do more harm than good. N.J.S.A. 30:4C:-15.1(a)(4). To meet its burden, the Division need not show that no harm will result from termination, but that such harm would be no greater than that which would result from non-termination. In re Guardianship of K.H.O., 161 N.J. 337, 355 (1999). The child's need for permanency and stability is a "central factor" in this analysis. Id. at 357.

Here, the record shows that M.M. has not been responsible for N.E.'s care since June 2005, and the child has been with her foster parents since June 2007. The record also shows that N.E. has thrived under their care. Furthermore, both Dr. Dyer and Dr. Smith testified that N.E. has a strong bond with her foster parents and she views them as her psychological parents. Dr. Friedman, defendant's expert, even noted that "it appears that a strong bond has developed between the foster parents and N.E."

In addition, Dr. Smith pointed out that M.M. was not a viable caretaker for the child because of her persistent drug abuse and inability to maintain stable employment and housing. Dr. Smith stated that there were "few signs of strong attachment" between M.M. and N.E. Moreover, Dr. Friedman acknowledged that N.E. should not presently be under M.M.'s care but concluded that M.A. should be appointed kinship legal guardian for N.E. so that she could maintain a relationship with her birth mother and sister.

In our view, the trial court reasonably determined that Dr. Dyer's and Dr. Smith's opinions were more persuasive than Dr. Friedman's opinion. Considering all of the relevant evidence, the court found that appointing M.A. as N.E.'s kinship legal guardian was not in the child's best interest and the child's interest would best be served by termination of M.M.'s parental rights. We must defer to the court's findings of fact where, as here, there is sufficient credible evidence in the record to support those findings. J.N.H., supra, 172 N.J. at 472.

IV.

M.M. also argues that the trial court erred by refusing to dismiss the Division's complaint because the Division failed to produce its own expert testimony concerning her bonds with N.E. She argues that the trial court erred by permitting the Division to rely upon the bonding evaluation presented by Dr. Smith, the Law Guardian's expert.

In support of this argument, M.M. relies upon N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418 (App. Div. 2009). In that case, the court concluded that the Division failed to establish the second and fourth prongs of the "best interest" standard. Id. at 431. The court pointed out that the Division had not met its burden of presenting evidence regarding the bonds between the parent and child because no effort to have bonding evaluations were made. Id. at 431-32. The court thus concluded that the Division failed to demonstrate that termination of parental rights would not do more harm than good. Id. at 432. We affirmed the court's finding. Id. at 444-45.

In this case, however, the Division scheduled three appointments with Dr. Dyer so that an evaluation could be made of M.M.'s bonds with N.E. M.M. apparently missed one of the appointments due to a clerical error but failed to appear for the other two appointments, even though the Division had arranged for her transportation to the evaluation. The trial court correctly found that dismissal of the Division's complaint was not warranted because the Division had made reasonable attempts to have the bonding evaluations performed.

The court noted that, if a defendant in a termination case could have the case dismissed for lack of a bonding evaluation, a defendant would simply refuse to have the evaluation performed. The court said that it would be fundamentally unfair to dismiss a termination case on that basis. We agree. We conclude that, under the circumstances, the court did not err by denying M.M.'s motion to dismiss the complaint and permitting the Division to rely upon Dr. Smith's bonding evaluation.

Affirmed.

20111019

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