March 1, 2012
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
T.L.B. AND J.H., DEFENDANTS-APPELLANTS.
IN THE MATTER OF THE GUARDIANSHIP OF J.L.B. AND J.K.N., MINORS.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FG-20-19-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 1, 2012
Before Judges Axelrad, Sapp-Peterson and Ostrer.
In these consolidated appeals, T.L.B. appeals from an order entered March 3, 2011 terminating her parental rights to her daughter J.L.B., born July 29, 2007, and her son J.K.N., born July 28, 2008; and J.H. appeals from the same order terminating his parental rights to his son, J.K.N. The father of J.L.B. was never identified. T.L.B. argues the Division of Youth and Family Services (Division) failed to adequately explore whether her sister, N.B., would have been willing to care for her children. J.H. argues the Division did not provide him sufficient services tailored to his special needs. We disagree and affirm substantially for the reasons set forth in Judge Kathryn A. Brock's comprehensive ninety-nine page opinion issued February 22, 2011 after a four-day trial in late 2010.
Judge Brock set forth the relevant facts in exhaustive detail in her opinion. We need not review them at length here. We briefly summarize the facts, and highlight those that underlie defendants' arguments on appeal.
The substantial and credible evidence supported a finding that both parents suffer from significant and persistent disabilities that had impaired, and would continue to impair, their ability to parent their children. J.L.B. was removed from her mother's care a month after her birth. About a year later, upon J.K.N.'s discharge from the hospital, he was placed with the same foster parent who cared for his sister. Both children have special needs that make parenting them especially challenging.
T.L.B. was diagnosed as suffering from various mental health conditions, including depression, schizoaffective disorder, bipolar disorder, psychotic disorder, and impulse control disorder. She had numerous psychiatric hospitalizations. She also had a history of angry and assaultive behaviors. She was uncooperative with numerous referrals for treatment and generally non-compliant with prescribed psychotropic medication. The mental health experts who evaluated her for trial, including a defense expert, agreed that she was, at the time of trial, incapable of parenting without posing a real risk of harm to her children. Even the defense expert testified that if T.L.B. consistently participated in therapy for a year - something that T.L.B. had failed to accomplish in the past - she still would not be ready to parent her children on her own.
In August 2007, T.L.B. provided the Division with the names of family resources and friends, including her sister, N.B., but T.L.B. stated that she could not reside with her sister because they did not get along. The other names were of friends, including someone she referred to as an "aunt" but who was not actually a relative. T.L.B. reported that her mother was deceased and her father was incarcerated.
Nonetheless, when T.L.B. was forced to leave a friend's residence because of her violations of a safety plan, the Division attempted, albeit unsuccessfully, to elicit N.B.'s involvement. The DYFS worker drove to N.B.'s home to ask her if T.L.B. and J.L.B. could temporarily reside with her, but N.B. was not there. DYFS apparently made no further attempts to seek N.B.'s involvement.
Over two years later, on September 7, 2009, a Division caseworker reported receiving a call from someone identifying herself as N.B., T.L.B.'s sister. The caller stated that she wanted to visit the children and give them gifts. The worker told the caller that she did not know who she was, so she would need to come to the Division's office and show proof of her identity. The record does not reflect any further action by N.B. She did not testify at trial, nor did T.L.B. present any evidence at trial to reflect N.B.'s willingness or capacity to serve as a caregiver for J.L.B. or J.K.N.
J.H. suffers from significant cognitive deficits, placing him in the mild retardation range and functioning below more than ninety-nine percent of the population. At the time of trial, he was living with a girlfriend, S.J., who suffered from substance abuse problems and demonstrated other parenting shortcomings. Two of the children he had with S.J. were in foster care. J.H. had voluntarily surrendered his parental rights to four other children. His deficits in reasoning, working memory, and attention span impaired his ability to function independently, and made it even more difficult for him to care for a child, especially one who had learning disabilities. J.H. also suffered from mood and other behavioral problems, and demonstrated aggressive behavior against others, including one of his children.
J.H. was non-compliant with referrals for mental health treatment, but ultimately completed a parenting and anger management course to which he was referred by the Division. Nonetheless, experts testified at trial that the parenting course did not overcome the impact of J.H.'s cognitive deficits and behavioral problems. They also opined there were no services or therapy that could sufficiently mitigate J.H.'s shortcomings.
Ever since the children's removal, they have remained in the care of the same foster parent who has expressed the desire to adopt them. According to expert evaluations, the children had developed a strong and durable bond with their foster parent, and had no strong ties to their biological parents.
Based on her extensive findings of fact, Judge Brock found the Division met its burden to establish by clear and convincing evidence the four prerequisites to terminating parental rights:
(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) [DYFS] 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. [N.J.S.A. 30:4C-15.1a.]
See also N.J. Div. of Youth and Family Servs. v. A.W., 103 N.J. 591, 604-10 (1986). She entered an order terminating T.L.B.'s and J.H.'s parental rights and granting the Division guardianship in anticipation of the filing of a complaint for adoption.*fn1
T.L.B. and J.H. each filed an appeal. T.L.B. raises the following points:
POINT I. THE TRIAL COURT'S FINDINGS WERE INCOMPLETE AND INADEQUATE TO SUSTAIN A JUDGMENT TERMINATING T.L.B.'S PARENTAL RIGHTS BY CLEAR AND CONVINCING EVIDENCE AS REQUIRED BY N.J.S.A. 30:4C-15 AND 30:4C-15.1.
POINT I(A). THE TRIAL COURT ERRED IN FAILING TO CONSIDER ALTERNATIVES TO TERMINATION OF PARENTAL RIGHTS UNDER THE THIRD PRONG.
POINT I(B). THE TRIAL COURT ERRED IN FINDING THAT DYFS DEMONSTRATED BY CLEAR AND CONVINCING EVIDENCE THAT TERMINATION OF T.L.B.'S PARENTAL RIGHTS WILL NOT DO MORE HARM THAN GOOD.
J.H. raises the following points:
POINT I. THE DIVISION FAILED TO ESTABLISH BY CLEAR AND CONVINCING EVIDENCE THAT [IT] IS NECESSARY TO TERMINATE J.H.'S PARENTAL RIGHTS IN ORDER TO PROTECT J.N.'S BEST INTERESTS.
POINT II. DYFS FAILED TO MEET THE REQUIREMENTS OF THE THIRD PRONG BECAUSE IT FAILED TO MAKE REASONABLE EFFORTS TO MAKE IT POSSIBLE FOR THE CHILD OF A PARENT OF LIMITED COGNITIVE ABILITY TO SAFELY RETURN HOME.
Our scope of review is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). We defer to the trial judge's factual findings based on the judge's familiarity with the case, opportunity to make credibility judgments based on live testimony, and expertise in family and child welfare matters. See N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008); Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). We will affirm the Family Part's decision to terminate parental rights when substantial, credible evidence in the record supports the court's findings. E.P., supra, 196 N.J. at 104. Having reviewed the record, we are satisfied that Judge Brock's findings are well-supported by the credible evidence, and she correctly applied the governing law. We add these brief comments.
T.L.B. essentially argues the Division failed to explore the willingness of her sister N.B. to care for the two children as required by N.J.S.A. 30:4C-12.1. As a result, she argues, alternatives to terminating her parental rights were not adequately considered, N.J.S.A. 30:4C-15.1a(3), and the failure to explore placement with N.B. or other potential relatives undermined the validity of the court's determination that terminating parental rights would not do more harm than good, N.J.S.A. 30:4C-15.1a(4). She argued a kinship legal guardianship or adoption by N.B. or another family member would have enabled T.L.B. to maintain contact with her children.
We disagree. T.L.B. misplaces reliance on our decision in N.J. Division of Youth & Family Services v. K.L.W., 419 N.J. Super. 568 (App. Div. 2011). In K.L.W., we reversed termination of parental rights because the Division had violated its obligations under N.J.S.A. 30:4C-12.1 by failing to consider whether a child could be placed with a maternal grandparent. In that case, the grandparent was already caring for the child's siblings. At the mother's request, the Division had not contacted the maternal grandparent about caring for a new-born baby. Id. at 570-571. In addition, two experts admitted that the harm the child might suffer after being removed from the foster mother with whom the child had bonded could be mitigated by an appropriate caregiver. Id. at 575.
Although the record before us does not contain evidence the Division adequately explored placement with N.B., the record also reflects that T.L.B. did not raise the issue at trial. N.B. did not testify, nor did T.L.B. present any testimonial or documentary evidence that N.B. was willing or capable of serving as the children's permanent caregiver. The Division thus was not prompted to present any evidence on the subject, nor did the court address it. Ordinarily, we will not reach issues that were not presented to the trial court. Nieder v. Royal Indemn. Ins. Co., 62 N.J. 229, 234 (1973).
However, on the merits, T.L.B.'s failure to present proofs on N.B.'s potential involvement is fatal to her argument. There is no presumption in favor of placement with a relative. N.J. Div. of Youth & Family Servs. v. M.F., 357 N.J. Super. 515, 528 (App. Div. 2003). "[A]lthough there are statutory provisions in Title 30 and Title 9 which refer to relative placements, the statutes do not create a presumption in favor of such placement." Id. at 528-29. A child is entitled to the Division's best efforts to be placed with a relative and any siblings and to have regular visitation with any siblings, but only so long as that is "consistent with the health, safety and physical and psychological welfare of the child and as appropriate to the individual circumstances of the child's physical or mental development[.]" N.J.S.A. 9:6B-4b, d, f. As we stated in K.L.W., "Delay of permanency or reversal of termination based on the Division's noncompliance with its statutory obligations is warranted only when it is in the best interests of the child." 419 N.J. Super. at 581.
At the time of trial, J.L.B. had been in foster care for over three years and J.K.N. over two years. They were bonded to their foster parent who wanted to adopt them. In that same period of time, N.B. apparently had no contact with the children whatsoever. In short, there is no evidence that it would be in the children's best interests to delay them permanency in order to explore N.B.'s speculative and unlikely potential as an alternative caregiver.
Finally, we reject J.H.'s argument that the Division failed to provide him with sufficient services tailored to his level of cognitive functioning, and, as a result, the Division failed to prove that it made "reasonable efforts to provide services to help [J.H.] correct the circumstance which led to the child's placement outside the home." See N.J.S.A. 30:4C-15.1a(3). The services the Division is required to provide must be reasonable, but not necessarily successful. In re Guardianship of D.M.H., 161 N.J. 365, 393 (1999). There is ample evidence in the record to support the court's finding that the Division provided J.H. a range of mental health and supportive services.
J.H. did not call an expert witness, and the record lacks any other proof, to support J.H.'s argument that additional services could have been tailored to meet J.H.'s special needs, and to enable him to overcome his cognitive and behavioral deficiencies. To the contrary, the record evidence supports the conclusion that J.H.'s cognitive limitations were unchangeable and his limitations in being able to care for his son with special needs were irremediable. Therefore, the court did not err in finding the Division satisfied prong three.