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New Jersey Division of Youth and Family Services v. N.G


October 31, 2011


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FG-11-20-10.

Per curiam.



Submitted October 12, 2011

Before Judges Payne, Reisner and Hayden.

Defendant N.G. appeals from a final order dated October 29, 2010, terminating her parental rights to her child Y.K.G. On this appeal, she raises one issue:


Having reviewed the record, we find no merit in this argument, and we affirm.

I The factual background is addressed at length in Judge Audrey P. Blackburn's comprehensive oral opinion of October 29, 2010, and need not be repeated in the same detail here. The record overwhelmingly supports the judge's finding that N.G. is incapable of acting as a parent to Y.K.G., and on this appeal, defendant does not contest that determination.

To summarize, N.G. was fifteen when Y.K.G. was born on May 26, 2008. N.G., a rebellious and emotionally troubled teenager with substance abuse problems, was unable and unwilling to care for the baby. The Division of Youth and Family Services (Division or DYFS) took custody of the child on an emergent basis on July 30, 2008. Despite the Division's best efforts, N.G. ran away from, failed to attend, or failed to cooperate with, every one of the numerous programs DFYS found for her. Eventually, she was arrested on car theft and other charges. She was institutionalized in a Juvenile Justice Commission facility at the time of the guardianship trial.

Y.K.G. has lived with the same foster parent since he was two months old. While he has no bond with N.G., he has bonded with his foster mother who wishes to adopt him. The State presented expert testimony that the child will suffer severe and permanent psychological damage if he is separated from his foster mother. That testimony, which the judge found credible, was unrebutted.

At the trial, DYFS also presented testimony detailing the agency's efforts to place the child with various relatives. N.G.'s mother was unable to care for the child because she was bed-ridden after having a leg amputated. She also had an open DYFS file concerning N.G. The agency considered placing the child with his great-grandmother, C.S., but she was initially ruled out after being arrested on charges that she assaulted N.G. in front of several police officers. Those charges were eventually resolved.

After a family team meeting, which N.G. attended, the agency focused on placing the child with his paternal grandmother, T.D. However, those efforts fell through, first because of concerns that the child's father was living with T.D.,*fn1 and then because T.D. did not obtain appropriate housing for many months. Meanwhile, the child was living with, and bonding with, his foster mother. After sending repeated letters telling T.D. that she would be ruled out if she did not respond to the agency's concerns, the Division notified T.D. that she had been eliminated from consideration in the child's best interests. T.D. did not object to that determination, and she did not testify at the guardianship trial.

However, the maternal great-grandmother, C.S., testified at the trial that she was willing to care for the child. She testified that DYFS originally informed her that the agency would focus on placing the child with T.D. but would consider her as a second choice if that fell through. C.S. did not object to the child being placed with T.D. She also did not visit the child more than once or twice, although she could have accompanied N.G. to her weekly visitation. At the time of the trial, the child was two years old, but C.S. had not seen him since he was about five months old.

After the Division ruled out T.D., due to the passage of time and the child's bond with the foster mother, the agency sent C.S. a similar letter, dated January 27, 2010. The letter did not advise C.S. that she could appeal the best interests determination. C.S. testified that she did not understand the letter, but she also admitted that she did not try to challenge the agency's decision because she believed it was "a done deal" that the child would not be placed with her. The trial judge did not believe C.S.'s testimony that she did not understand the letter. The judge found that the agency made reasonable efforts to arrange a family placement for the child, although the efforts were not successful. She also found that the child would suffer severe and lasting psychological injury if separated from the foster parent, and termination of parental rights was in Y.K.G.'s best interests.


On this appeal, we must defer to the trial court's factual determinations "unless 'they are so wholly insupportable as to result in a denial of justice,'" and so long as "they are 'supported by adequate, substantial and credible evidence.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)). We owe special deference to the factfinding of family part judges in light of their expertise. Cesare v. Cesare, 154 N.J. 394, 413 (1998). However, "'[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.'" N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 89 (App. Div. 2006), (quoting Manalapan Realty v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)), certif. denied, 190 N.J. 257 (2007).

Guardianship actions implicate the parents' constitutional rights, as recognized under both the federal and New Jersey constitutions. Stanley v. Illinois, 405 U.S. 645, 651-52, 92 S. Ct. 1208, 1212-13, 31 L. Ed. 2d 551, 558-59 (1972); N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 102 (2008); see also Moriarty v. Bradt, 177 N.J. 84, 101 (2003), cert. denied, 540 U.S. 1177, 124 S. Ct. 1408, 158 L. Ed. 2d 78 (2004). However, "[t]hat fundamental parental right . . . is not without limitation. The State has a basic responsibility, as parens patriae, to protect children from serious physical and psychological harm, even from their parents." E.P., supra, 196 N.J. at 102.

In striking a balance between the parents' constitutional rights and the children's fundamental needs, courts engage in the four-part guardianship test articulated in N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986), and codified as N.J.S.A. 30:4C-15.1a:

a. The division shall initiate a petition to terminate parental rights on the grounds of the "best interests of the child" pursuant to subsection (c) of section 15 of P.L. 1951, c. 138 (C. 30:4C-15) if the following standards are met:

(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; and

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

See In re Guardianship of D.M.H., 161 N.J. 365, 375 (1999) (discussing codification). In their application, the four factors above "are not [discrete] and separate but represent an integrated multi-element test that must be applied to determine whether termination of parental rights is in the best interests of the child." N.J. Div. of Youth & Family Servs. v. M.W., 398 N.J. Super. 266, 285 (App. Div.), certif. denied, 196 N.J. 347 (2008); N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 167 (2010).

By statute, when a child is removed from a parent's custody, the Division must attempt to find relatives with whom the child can be placed. N.J.S.A. 30:4C-12.1. Moreover, we have "previously acknowledged with approval 'the Division's policy to place children with relatives whenever possible.'" N.J. Div. of Youth & Family Servs. v. K.L.W., 419 N.J. Super. 568, 579 (App. Div. 2011) (quoting N.J. Div. of Youth & Family Servs. v. M.F., 357 N.J. Super. 515, 527 (App. Div. 2003)). "[T]here is no presumption in favor of placement with relatives." Id. at 580. However, "N.J.S.A. 30:4C-12.1 . . . does not permit the Division to embark on a course set for termination of parental rights and adoption by a foster parent without at least first exploring available relative placements." Ibid.

Citing K.L.W., defendant argues that DYFS did not satisfy the third prong of the best interests test by making reasonable efforts to place the child with relatives. In particular, she argues that the child should have been placed with the great-grandmother, C.S. Under the facts of this case, we cannot agree.

In K.L.W., the Division made no effort to seek out the child's grandparents as a possible relative placement, because the child's mother asked the agency not to do so. The Division thus placed the mother's wishes ahead of the child's best interests, contrary to the agency's legal obligations. Id. at 578-79. K.L.W. is simply not on point here.

The Division did not shirk its responsibility to locate relatives. To the contrary, it made multiple efforts to find relatives ready, willing and able to take in this child. Based on all the circumstances, the agency reasonably focused its efforts on the paternal grandmother, T.D. However, despite the agency's efforts, T.D. was not able to secure appropriate housing and stopped responding to the agency's contact letters. Meanwhile, C.S. made no effort to visit the child for more than a year, perhaps because she only viewed herself as a "backup" option in case T.D. could not care for the child. By the time the possible placement with T.D. fell through, the child had formed a firm parent-child bond with the foster mother.

N.G. also argues that C.S. should have been told that she had a right to appeal from the letter advising her that DYFS had concluded that adoption by the foster mother was in the child's best interests. We cannot agree.

If the agency determines that a relative "is unwilling or unable to assume the care of the child," the Division need not "re-evaluate the relative" in the future. N.J.S.A. 30:4C-12.1(b). But, a relative who is ruled out as unwilling or unable to care for a child has "the right to seek review . . . of such determination." N.J.S.A. 30:4C-12.1(b)(4). The agency's implementing regulations, however, distinguish between a determination to rule out a relative as "unwilling or unable to care for a child," and a determination "that it is not in a child's best interest to be placed with a relative." N.J.A.C. 10:120A-3.1(b)*fn2

Subsection 3.1(b) explicitly states that "[a] relative does not have a right to appeal, as a status issue, a Division action that it is not in a child's best interest to be placed with a relative." N.J.A.C. 10:120A-3.1(b). On the other hand, a relative can appeal a determination "that the relative is unwilling or unable to care for a child." Ibid. Consistent with this regulation, the DYFS workers testified at the trial that a "rule out" letter must advise the relative of a right to appeal, while a "best interests" letter need not contain that advice. The agency's dealings with C.S. illustrates the difference.

Initially, C.S. was deemed unqualified to care for Y.K.G. because C.S. had been arrested for assaulting N.G. That was a disqualification personal to C.S., which would preclude DYFS from placing a child in her care. A challenge to that determination would focus on C.S. and her qualifications.

On the other hand, the January 27, 2010 best interests letter was premised on the child's situation, not C.S.'s qualifications. As the letter explained, the agency determined, based on the child's needs, that it was time to stop looking for relative placements and focus on keeping the child with his foster mother. By the time the agency issued that letter, the child had been in foster care since July of 2008 and had bonded with his foster parent. A separate hearing aimed at challenging that best interests determination would essentially have required "pre-litigation" of the guardianship trial.

Further, the issue of the child's best interests was fully litigated at the guardianship trial, which began on May 19, 2010. In that context, C.S. had the opportunity to testify and to put herself forward as an available caretaker. Therefore, even if the agency had an obligation to allow C.S. a hearing on its January 2010 determination not to consider her as a possible placement, the error was harmless. In this case, the record evidence provides no basis to second-guess the trial judge's determination that the child's best interests would be served by terminating N.G.'s parental rights and allowing the foster parent to adopt him.


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