November 3, 2011
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
K.L. AND S.G., DEFENDANTS-RESPONDENTS.
IN THE MATTER OF THE GUARDIANSHIP OF A.G.S.L., MINOR-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FG-11-27-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 12, 2011 -
Before Judges Sapp-Peterson and Ashrafi.
The Division of Youth and Family Services (the Division) commenced this action seeking an order terminating defendants K.L.'s and S.G.'s parental rights to A.G.S.L. (A.L.)*fn1 and awarding guardianship over the minor child to the Division. At the conclusion of the trial, the Law Division judge found the Division failed to prove that terminating K.L.'s parental rights "will not do more harm than good." The court entered an order dismissing the guardianship complaint. It is from this order that the present appeal by the Law Guardian, on behalf of A.L., has been filed. We reverse and remand for further proceedings.
In briefly summarizing the evidence presented, we observe that A.L. was born to defendants on May 8, 2008. K.L. has a history of mental health issues, including postpartum depression. On October 14, 2008, she blacked out, causing A.L. to fall from the bed where they both had been lying. A.L. was taken to the hospital for evaluation, and no injuries were found. Nonetheless, the Division effectuated an emergency removal, and A.L. has been in the physical custody of K.L.'s cousin, E.M., and his paramour, K.B., since she was removed. E.M. and K.B. have worked out an informal visitation schedule with K.L. that allows K.L. to spend weekends at their home in order to continue visitation with A.L. K.L., throughout the course of these proceedings, has never complained that the arrangement was not working. In fact, she recommended E.M. and K.B. as a placement option for K.L.
In addition to postpartum depression, K.L. has also suffered from an eating disorder for which she received inpatient treatment, and between 2008 and 2009, K.L. was hospitalized four times for psychiatric crises. K.L. underwent psychological and psychiatric examinations as well as a bonding evaluation. Each of the experts acknowledged that K.L. suffered from mental health instabilities affecting her ability to parent A.L.
The experts reached conflicting conclusions from the bonding evaluations conducted on K.L. and A.L. The Division's expert opined that A.L. did not have a "significant and positive psychological bond" to K.L. and would not suffer severe and enduring harm if K.L.'s parental rights were terminated. He described A.L.'s attachment to K.L. as "ambivalent, insecure and to some extent disorganized[,]" with parent and child not exhibiting any attachment to each other. On the other hand, K.L.'s expert testified that she found K.L. attentive to A.L. She concluded that a mother-child attachment was present, and A.L. would experience harm if K.L. were not part of her life.
Both E.M. and K.B. testified and indicated that A.L. was happy to see K.L. when she arrived for her weekly visits but, other than on one occasion, A.L. did not display any signs of distress at the end of the weekend visits. E.M., however, expressed the opinion that K.L. did not have the "energy" and was not willing to provide the necessary attention to A.L.'s needs. To illustrate his opinion, he testified that during her weekend visits, K.B. would hide the remote control and shut down the computer in order to force K.L. to spend quality time with A.L. rather than watching the television or using the computer.
At the conclusion of the trial, the court issued an oral opinion denying the guardianship petition. The court was satisfied the Division proved the first three prongs of the "best interests" analysis for terminating parental rights but was not persuaded the Division's proofs satisfied its burden as to the fourth prong. Specifically, the court was not convinced that E.M. and K.B. would follow through with adoption, pointing to the difficulty the court experienced with E.M.'s cooperation in attending the trial, his failure to complete the bonding evaluation, and his expressed weariness with the entire foster parent process, which had resulted in the Division's continued involvement in his family life.
The court found that E.M.'s testimony reflected an individual attempting to present himself in the most positive light and setting a very high standard for K.L. as a parent while not holding himself to the exact same standard. The court also noted that K.B. moved out of the house at one point during the course of the proceedings. The court found "[t]here's clearly a bond between mother and child. . . . Losing that relationship would cause a loss and, therefore, harm to [A.L.]" Because E.M. and K.B. were willing to continue the arrangement that permitted K.L. to have weekend visits irrespective of adoption, the court reasoned that "there isn't anything about adoption that would be good that cannot be accomplished through another alternative to termination of parental rights. Adoption is more likely to cause harm than to do any good."
The Law Guardian, on behalf of the minor, contends:
THE TRIAL COURT'S ANALYSIS OF THE FOURTH PRONG OF N.J.S.A. 30:4C-15.1 WAS ERRONEOUS BECAUSE THE COURT'S FINDINGS WERE INCONSISTENT, OUTSIDE OF THE PARAMETERS OF THAT PRONG[,] AND NOT ADEQUATELY SUPPORTED BY THE RECORD[.]
THE TRIAL COURT'S DECISION PLACES [A.L.]'S GUARDIANSHIP STATUS IN LEGAL LIMBO WITHOUT A PLAN, AS REQUIRED BY LAW, TO ACHIEVE LEGALLY COGNIZABLE PERMANENCY WHICH IS DUE A CHILD REMOVED FROM HER HOME.
Because the Law Guardian challenges the judge's findings as to the fourth prong of the "best interests" test for determining whether parental rights should be terminated under N.J.S.A. 30:4C-15.1, we limit our discussion to the fourth prong. Proof of the fourth prong required the Division to prove, by clear and convincing evidence, that "termination of parental rights will not do more harm than good." N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 610 (1986). Our standard of review is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). Because a judge's findings "are considered binding on appeal when supported by adequate, substantial and credible evidence[,]" Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974), we only disturb factual findings when they are so manifestly unsupported by or inconsistent with competent, relevant, and reasonably credible evidence as to offend the interests of justice. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007); Cesare v. Cesare, 154 N.J. 394, 412 (1998).
Here, we accept the trial judge's factual findings and conclude those findings are amply supported by the record. We reject the contention advanced by the Law Guardian that the factual findings are irreconcilable because at certain points in its findings, the court found the testimony of the witnesses, most notably E.M. and K.B., credible, and at a later point in its decision, the court found E.M.'s testimony lacked credibility. The trier of fact is free to accept all, a portion, or none of a witness's testimony. State v Parton, 251 N.J. Super. 230, 235 (App. Div. 1991), certif. denied, 127 N.J. 560 (1992). As such, E.M.'s lack of cooperation with the bonding evaluation, including his failure to return telephone calls and complete the bonding evaluation, was relevant to the court's determination of whether the proposed permanency plan of adoption, as advanced by the Division, was a realistic plan. Thus, we find no basis in this record to disturb the trial court's factual findings. This conclusion, however, does not end our analysis.
Although we accord deference to the trial court's factual findings, we must next determine whether the court appropriately applied its factual findings to the law. In that regard, the "trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
The trial court's conclusion that the fourth prong of the best interests test was not met was based solely on its conclusion that E.M. and K.B. may not follow through with adoption and that severing ties between K.L. and A.L. "would cause a loss and, therefore harm to [A.L.]" The conclusion that there would be no follow-through on the adoption was based upon E.M.'s failure to complete the bonding evaluation, the two trial adjournments due to an apparent inability of E.M. to appear on those dates, and his testimony expressing a desire for finality in order to eliminate the Division's continued involvement with his family. The harm the court concluded would result from the termination of K.L.'s parental rights appears to have been influenced by the court's recognition that K.L., E.M., and K.B. have "a very close, extended family relationship[,]" as evidenced by the visitation arrangement the parties had informally arranged amongst themselves. The court expressed its belief that adoption would "create those lines and boundaries that would upset the kinds of relationships that [A.L.] is benefiting by."
E.M.'s complaints may reflect his frustration with the delay in finality as opposed to any hesitancy or waiver in his desire to adopt A.L. While we defer to the trial judge's findings and characterization of this testimony, the court did not weigh this testimony against A.L.'s relationship with K.L. Insofar as the court's finding that termination of K.L.'s parental rights to A.L. is a loss to A.L. and therefore would cause harm to A.L., the issue is not simply whether no harm would result from the termination of K.L.'s parental rights. The fourth prong of the statutory "best interests" test requires the trial court to find, by clear and convincing evidence, that "termination of parental rights will not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4). Some harm is inherent in any severance of a parent-child relationship. Our Court has rejected the interpretation that this criterion requires a showing that no harm will result from severing ties with the biological parent. In re Guardianship of K.H.O., 161 N.J. 337, 355 (1999). The inherent risk of harm from such severance must weigh against the paramount need for children to have permanent and defined parental relationships. Ibid.
The trial court found the Division clearly and convincingly established the first three prongs of the best interests test. It was undisputed that A.L. was thriving in her foster home, where she has resided since she was six months old. K.L. acknowledged her inability to provide a safe and stable home for A.L. and presented E.M. and K.B. as placement options early in the proceedings. These undisputed facts, along with the court's findings with respect to E.M.'s attitude and uncooperativeness and its finding of harm that would result from terminating K.L.'s parental rights, should then have been subjected to a comparative assessment of both relationships in order to determine whether A.L. would "suffer a greater harm from the termination of ties with [K.L.] than from the permanent disruption of her relationship with [E.M. and K.B.]" Ibid. The court did not undertake this analysis. We note, however, that had it done so, it would not have included a bonding evaluation between E.M. and A.L. since E.M. failed to undergo the evaluation.
The court's failure to engage in this comparative analysis requires a remand to the trial court to conduct further proceedings solely based on the fourth prong. Prior to commencing these proceedings, the court should enter an order directing E.M. to undergo a bonding evaluation and also directing updated bonding evaluations as between K.L. and A.L., and K.B. and A.L.
In view of the remand, we will not address the remaining argument advanced that the court's ruling places A.L.'s guardianship status in permanent limbo. We observe only that "[l]ong-term foster care is the exception to the general rule favoring adoption, and is available under very limited circumstances[.]" K.H.O., supra, 161 N.J. at 360.
Reversed and remanded for further proceedings to be completed within sixty days of the date of this opinion. We retain jurisdiction.