On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-168-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 7, 2011
Before Judges Axelrad, Sapp-Peterson and Ostrer.
Defendant, N.H., appeals from a November 19, 2010 judgment of guardianship, terminating her parental rights to her son, W.M., born January 14, 2005, and her daughter, N.H., born December 27, 2007.*fn1 The children had been in foster care since November 2008, and with the same foster parents from January 9, 2009 until the trial court's decision almost two years later. The current foster parents wished to adopt the children.
On appeal, defendant, who was represented at trial but neither appeared nor offered evidence, does not challenge the court's findings that she endangered the children's safety, health, or development, and that she was unwilling or unable to provide a safe and stable home for them. N.J.S.A. 30:4C-15.1a(1), (2) (Prongs One and Two). Nor does she challenge the court's finding that the Division of Youth and Family Services (Division) made reasonable efforts to provide services to her to help her correct the circumstances that led to placement. N.J.S.A. 30:4C-15.1a(3) (Prong Three).
Rather, defendant argues that the Division failed to provide adequate services to enable her sister to accept custody. N.J.S.A. 30:4C-15.1a(3). As a consequence, defendant argues that the court erred in concluding that the termination of parental rights, which would also sever the children's relationship to their aunt, would not do more harm than good. N.J.S.A. 30:4C-15.1a(4) (Prong Four).
We disagree and affirm substantially for the reasons set forth in Judge Margaret M. Foti's thorough and well-reasoned written decision.
Inasmuch as the appeal focuses on the Division's interactions with defendant's sister, we will only briefly summarize the facts relating to defendant.
On November 12, 2008, the Division was granted the care, custody and supervision of Wayne and Nancy. The order followed a referral to the Division in July 2008 when Wayne was brought to the Jersey City Medical Center with a spiral fracture of his right femur. Wayne required surgery and was hospitalized for about three months for a post-operative infection. While Wayne was hospitalized, Nancy stayed with defendant's sister, Charlene. After Wayne was discharged, he and his mother also moved in with Charlene.
Although an investigation subsequently deemed unfounded allegations of physical abuse, the Division offered defendant services after Wayne's hospitalization, and received multiple referrals that defendant was using drugs, and the children were neglected in various ways and denied proper medical care and hygiene.
Consistent with its obligations under N.J.S.A. 30:4C-12.1, the Division ascertained that defendant's sister Toni, as well as defendant's mother and sister Charlene, declined to care for the children. Defendant's mother had already assumed full custody of another child of defendant. Charlene was initially interested in caring for Nancy only, but then became ill and was unable to do so. Toni was a single working mother who had custody of a young son with Down Syndrome.
According to the testimony at trial, Toni told the Division caseworker "absolutely not" when asked at a family team meeting in December 2008 whether she would accept the children. Defendant argues before us that Toni declined to care for the children when first asked because she did not have a two-bedroom apartment, implying that if the Division had provided housing assistance, she would have accepted the children. However, the only arguable support in the record for this assertion is Toni's own self-serving hearsay statements to expert evaluators over a year-and-a-half later. The Division witness at trial testified that Toni did not give any reasons when she refused to take the children in 2008.
According to her trial testimony, the caseworker again contacted Toni about the children in late February or early March 2009, and Toni reiterated that she did not want to care for the children. The Division contacted Toni a third time regarding the children around April 2009 and confirmed that Toni's position had not changed. The Division caseworker testified that she offered services to assist Toni in caring for the children. "I told her that we could try to assist her and she said no because she did not [want] to be involved in any of her sister's schemes."
By letter dated May 12, 2009 to Toni, the Division informed her of its determination that she was "either not willing or not able to provide a home for the child(ren)." The so-called rule-out letter stated:
This determination is based on your conversation with the worker on May 1, 2009 at which time you indicated that you are unable to care for [Wayne] and [Nancy] based upon the fact that you have a child with Downs Syndrome who is very active and a lot of work. This prevents you from taking on the additional responsibility of caring for these two children.
Toni was informed of her right to a review of the decision if she disagreed. Toni did not appeal the determination. Notably, Toni did not dispute the letter, or claim that she had declined to take the children because of housing issues, as opposed to the demands of her caring for her own son.
After obtaining custody of the children in late 2008, the Division briefly placed the children in a Spanish-speaking foster home and then placed the children in their current home on January 9, 2009. In the months that followed, the Division provided defendant with referrals to substance abuse counseling, out-patient rehabilitation, therapy, parenting courses, resources for adults with disabilities, and temporary rental assistance. Defendant did not complete any of the substance abuse rehabilitation programs or attend therapy. She tested positive for marijuana multiple times during this period and occasionally attended visitation while apparently under the influence of marijuana.
In November 2009, Toni contacted the Division to express interest in custody of Wayne and Nancy.*fn2 Recalling the change of heart at the guardianship trial, the caseworker testified that Toni explained that she had moved into a two-bedroom apartment.
Once presented with this information, the court on November 12, 2009 promptly ordered the Division to evaluate Toni as a potential caretaker. On the same day, the court entered an order finding inappropriate and unacceptable the Division's permanency plan for termination of parental rights followed by adoption because the Division was to assess Toni as a possible resource placement for the children. The court also ordered the Division to discuss the possibility of adoption or kinship legal guardianship by Toni.
On December 22, 2009, the court entered a permanency order approving the Division's permanency plan for termination of parental rights followed by adoption. In a compliance review order entered the same day, the court directed the initiation of visits between Toni and the children. Those visits began in January 2010, and occurred weekly, for one hour, at Division offices. Wayne was opposed to overnight visitation and none occurred.
On March 12, 2010, the Division filed a complaint for guardianship and termination of parental rights. The court thereafter entered an order terminating the abuse and neglect litigation, which was superseded by the guardianship matter. At a case management conference in May 2010, the court scheduled bonding evaluations, continued one-hour-a-week visitation by Toni, and directed the Division to explore if weekend visitation between Toni and the children could occur, supervised by the foster parents. The court also directed the Division's Resource Family Licensing Unit to complete its home study of Toni's home by July 16, 2010, or appear before the court to explain why it had not. The court provided that if the home were licensed, a best interest hearing would occur on September 15, and a trial on the guardianship complaint would follow in October.
At a hearing July 16, 2010, a representative of the Division's Resource Family Licensing Unit testified that her office received Toni's final application in May 2010, although preliminary investigation of Toni's home had occurred earlier in the year. The witness explained that, consistent with office policy, the process of completing a home study, licensing review, and inspection may take as much as 180 days. The process involved review of personal, medical and employment references of the proposed licensee, as well as physical inspections. The witness reported that the home study had been completed and the application awaited review by the Office of Licensing, and a final decision was anticipated within thirty days.
Defendant's counsel objected that the delay prejudiced his client, who desired that her children be placed with her sister.
However, the court rejected the claim of prejudice. "The issue of the licensing . . . is an issue that's separate and apart and I don't believe that your client has been prejudiced because these children would not have been placed with the aunt until the best interest hearing took place anyway." The court then consolidated the scheduling of the best interest hearing with the first day of trial scheduled on October 20, 2010.
In early July of 2010, defendant relocated to North Carolina, reportedly because she believed it would be easier for her to find work and secure appropriate housing. In the months between her move and trial, she ceased visitation with her children, and ceased virtually all contact with the Division. She did not attend the July 16 and September 17, 2010 case conferences or the guardianship trial.
In addition to the testimony of the two Division caseworkers and one Division supervisor, two psychologists testified as expert witnesses at the trial. Given the focus of defendant's appeal, it suffices to state here that there was ample evidence in the record to establish that defendant suffered from a multitude of mental health, substance abuse and parenting deficiencies, which she had made little effort to address ...