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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...