January 4, 2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES,*FN1 PLAINTIFF-RESPONDENT,
P.W. AND E.M., DEFENDANTS-APPELLANTS.
IN THE MATTER OF THE GUARDIANSHIP OF S.T.M. AND Q.M., MINORS.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-88-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 3, 2012
Before Judges Graves, Espinosa, and Guadagno.
Defendants P.W. (Paula)*fn2 , and E.M. (Edgar), appeal from a final judgment entered June 30, 2011, terminating their respective parental rights to their son Q.M. (Quentin) and daughter S.M. (Sasha). We have consolidated their separate appeals. Defendants challenge the adequacy of the evidence presented by the Division of Youth and Family Services (DYFS or the Division) to prove that termination of parental rights is in the best interests of their children. See N.J.S.A. 30:4C-15.1(a). In addition, Paula contends that the trial court erred in failing to apply the New Jersey Safe Haven Infant Protection Act (Safe Haven Act), N.J.S.A. 30:4C-15.5- 15.11. After reviewing the record in light of the contentions advanced on appeal, we affirm.
DYFS first became involved with this family on June 20, 2007, when Paula was hospitalized due to complications from sickle cell anemia. Later that day, Paula gave birth to Quentin prematurely. The hospital contacted the Division after Paula requested that Quentin be placed in foster care. Paula acknowledged she was unable to care for the infant because of her illness. She did not want to surrender her parental rights, but wanted to care for Quentin if her condition improved. Paula was discharged shortly after giving birth, but Quentin required an extensive hospital stay. Edgar was not around for his son's birth as he had been incarcerated since March 2007 for possession of a controlled dangerous substance with intent to distribute.
Paula lived in a one-bedroom apartment with a friend, the friend's child, and her daughter, Sasha, who was born November 10, 2004. When Paula required hospitalization, Sasha was cared for by a relative, D.D. (Dottie).
On July 28, 2007, a Division caseworker met with Paula, who admitted that she hid her pregnancy and did not receive pre-natal care as her physician told her it would be dangerous to have another child. Paula was unemployed but receiving $588 per month from Social Security and Medicaid. Paula admitted that she had not visited Quentin in the hospital since his birth.
Paula initially signed a case plan with the Division where she agreed to surrender care of Quentin. After further investigation, the Division determined that she was unable to care for Sasha as well. On August 1, 2007, the Division filed a complaint and, after a hearing, was awarded temporary custody of both children. Sasha was initially placed with Dottie but later placed with a paternal cousin, L.A. (Linda), where she has remained.
Upon Quentin's release from the hospital, he was initially sent to a foster home but shortly thereafter, he was placed with his current foster mother, L.K. (Lauren). Some consideration was given to placing Quentin with Linda, but Quentin had developmental needs and Linda did not have the necessary training that would allow her to care for him.
Paula was ordered to continue taking her medication, to undergo a psychological evaluation and to appear for her doctor's appointments.
The court ordered weekly visitation for Paula with both children.
On October 3, 2007, the court accepted Paula's stipulation that she was unable to care for the children and that she required the Division's assistance because of the complications she was experiencing with her illness.
On March 18, 2008, Quentin had an evaluation after his foster mother expressed concern that he had poor muscle tone and was having difficulties with movement. As a result, Quentin was provided with in-home services including physical therapy.
Paula failed to attend three scheduled psychological evaluations. From December 2007 through July 2008, she participated in no services and had no contact with the Division. She did not see either of her children from September 2007 until July 2008 and had not seen Quentin since his birth.
On July 30, 2008, the Division offered a permanency plan of termination of parental rights for both children followed by adoption. The plan was rejected by the court as Edgar, who was still incarcerated, was scheduled to be released from prison. The judge wanted to give Edgar an opportunity to participate in services as he had expressed a desire to care for his children. The judge extended the permanency plan for three months for both defendants.
In August 2008, Edgar was transferred to a 180-day residential drug treatment program. He provided negative drug screens and completed a pre-employment program. On October 11, 2008, Edgar appeared for a psychological evaluation with Dr. Leslie Trott. Dr. Trott determined that Edgar had appropriate parenting skills, and recommended that he be given the opportunity to parent after completion of a substance abuse assessment and referral to the New Jersey Division of Vocational Rehabilitation (DVR). She further recommended that he attend a support group for single fathers. The Division referred Edgar to Family Connections, a parenting skills program.
Paula failed to attend the permanency hearing on October 15, 2008, but due to Edgar's progress, the court granted another three-month extension to allow him more time to reunite with his children. In November 2008, Edgar participated in a Family Connections interview, and obtained employment. Edgar completed a residential drug program and was transferred to the Logan Hall-Tully II Program. The first time Edgar met Quentin was during a visit on December 3, 2008. Edgar continued his attendance at Family Connections and remained drug free.
On January 14, 2009, Paula again failed to appear at a compliance review. Family Connections reported that Edgar completed his required group and individual therapy sessions and in February 2009, Edgar was released from prison.
In July 2009, Paula finally submitted to a psychological evaluation with Dr. Trott. Paula told Dr. Trott that she had recently been hospitalized for sickle cell anemia. Dr. Trott determined that Paula had the ability to parent properly, but was compromised by her illness and depression. Dr. Trott recommended that Paula undergo a psychiatric evaluation and weekly counseling.
In September and October 2009, Paula tested positive for morphine and marijuana. On October 16, 2009, Paula attended a substance abuse evaluation during which she admitted using alcohol and marijuana since age fifteen and taking several drugs over the past four years, including Oxycontin, Roxicodone, and Dilaudid. Paula was diagnosed with opiate dependency and cannabis abuse and was scheduled for counseling. Edgar tested positive for morphine in October 2009.
On January 4, 2010, the Division filed a complaint for guardianship for both children. On February 17, 2010, Edgar appeared for a case management conference but Paula did not. Edgar was again referred for substance abuse treatment.
Quentin was evaluated by a child study team and found to be suffering from global developmental delays. A specialized intervention program was recommended and Quentin was enrolled in a year-long pre-school program for children with disabilities. He was provided with physical, occupational, and speech therapy.
On May 19, 2010, Dr. Mark Singer, a psychologist, performed an evaluation of Edgar and bonding evaluation with Edgar, Quentin, and Sasha on behalf of DYFS. Dr. Singer determined that Edgar could not successfully parent alone, but might be able to parent the children with Paula. On June 8, 2010, Dr. Singer conducted a bonding evaluation between Quentin and his foster mother, Lauren. On June 18, 2010, the court held another case management conference. Defendants informed the court that they wanted to parent the children as a couple, but that they were no longer pursuing their relationship.
On June 28, 2010, Dr. Singer performed a psychological evaluation of Paula and diagnosed her with a personality disorder with dependent, depressive and self-defeating features. Dr. Singer concluded that Paula was not capable of parenting at the time, but she might be capable of co-parenting with Edgar in the future. Dr. Singer also performed a bonding evaluation between Paula and both children. In July 2010, Paula was referred for a second substance abuse assessment due to another positive drug test.
Dr. Alexander Iofin conducted a psychiatric evaluation of Paula and concluded that she was not capable of caring for a minor child. He recommended that she have follow-up treatment with a mental health professional, have random drug screenings, and coordinate her medical treatment for sickle cell anemia with a pain management specialist and a mental health professional.
On August 5, 2010, the court held another case management conference. Both defendants had been attending visitation consistently and represented that they were again living together as a couple. On September 29, 2010, at another case management conference, both defendants tested positive for morphine. As a result, Dr. Singer amended his May 2010 report and concluded that both Edgar and Paula had poor prognoses and supported the termination of their parental rights. Sasha's law guardian reported that Sasha said that Paula had threatened to hit her and she wanted to live with Linda and only visit with defendants.
At a case management conference on October 21, 2010, the Division again proposed a permanency plan of termination of parental rights followed by adoption. The court accepted the plan and, in its order, stated that the Division had made reasonable efforts to reunify defendants with the children and it was unsafe to return the children.
In November 2010, Edgar began outpatient drug treatment and in January 2011, he entered an intensive three-week inpatient drug treatment program.
On February 9, 2011, Paula's drug treatment program reported that she was non-compliant with services, had poor attendance, was unwilling to participate in therapy and did not follow through with necessary tasks.
The guardianship trial was held on June 20, 21, and 30, 2011. Frednel Lambert, a DYFS caseworker, testified that the Division supported the original permanency plan of reunification for more than three years until changing to termination of parental rights due to the parents' non-compliance. He explained that Paula had been missing from December 2007 until July 2008, and had no visitation with her children and engaged in no services during that time. Lambert discussed one visit when Paula threatened to physically harm Sasha and testified that Edgar was inconsistent with his visitation.
Lambert detailed the services provided to Quentin to address his developmental delays and disabilities, and identified several proposed placement resources that were ruled-out. He also confirmed that both of the children's current caregivers desired to adopt them.
Dr. Mark Singer testified that Paula's marijuana use exacerbated her sickle cell anemia, and concluded that her drug use demonstrated she could not adhere to societal rules. Paula's relationship with Edgar was not stable, she lacked the ability to parent her children, and was not likely to be able to parent in the foreseeable future.
Dr. Singer explained that Edgar had a history of drug abuse and was at significant risk for relapse. He linked Edgar's addiction to Percocet with Paula's regular use of that drug.
Dr. Singer testified that neither parent presented a viable parenting plan, and during the four-year pendency of the litigation, neither defendant had demonstrated the ability to place the children's needs ahead of their own. As a result, neither defendant would be able to successfully parent in the future.
Dr. Singer conceded that Sasha was still attached to defendants, but emphasized the importance of Sasha's having changed from wanting to live with just her parents to wanting to live with both her parents and foster mother. Singer felt that Sasha could overcome any harm resulting from the termination of her parents' parental rights due to her relationship with her foster mother.
Dr. Singer found that Quentin had a deeper bond with his foster mother and considered her to be his psychological parent. The removal of Quentin from his foster mother, the only person he had ever lived with, would be harmful because Quentin did not view defendants as his functioning parents.
Dr. Singer supported the Division's plan of termination of parental rights followed by adoption because the children needed consistency and stability. In addition, the potential existed for the children to be neglected if they were returned to defendants. Finally, Dr. Singer explained that, because of their long history of non-compliance, he would not support waiting an additional seven to eight months for defendants to comply with the Division's requirements.
The law guardian called Dr. Matthew Johnson, a psychologist, who testified that Sasha wanted to live with defendants, but conceded that she was "comfortable" living with Linda. Dr. Johnson concluded that Edgar was fit to parent, but Paula was not committed to reunification, even though he did not evaluate her. Dr. Johnson concluded that Sasha would suffer harm if her relationship with defendants was severed. Dr. Johnson conceded that he was not familiar with certain evidence in the record and could not explain contradictions in his report regarding Edgar's visitation. Although Dr. Johnson did not evaluate either Quentin or his foster mother, and acknowledged that Quentin had never lived with either defendant, he concluded that Quentin would not be harmed if he was removed from his foster mother.
Edgar called Dr. Albert Griffith, a psychologist, who evaluated Edgar and his bond with the children. Dr. Griffith also evaluated the children's bond with their respective caregivers. He did not evaluate Paula. Dr. Griffith conceded that Edgar had an adjustment disorder and opiate dependence, but explained that Edgar was attending inpatient drug treatment. As a result, Griffith believed it was premature to determine whether Edgar was unable to parent, and suggested that the case be postponed until August 2011. As to bonding, Dr. Griffith found that Sasha sees Edgar "as an additional nurturer in her life." He believed that Sasha would suffer "some loss" if Edgar's parental rights were terminated.
As to Quentin, Dr. Griffith conceded that Quentin was not likely to suffer harm if he was separated from Edgar. He found that Quentin was "developmentally needy" and was comfortable in his foster placement. Dr. Griffith conceded that Edgar could not independently parent his children without "adequate support."
Robert Williams also testified on behalf of Edgar. Williams was the primary counselor at Family Connections when Edgar was referred there in 2008. Williams confirmed that Edgar completed the program in 2009 and remained in contact with Williams after that.
Edgar testified on his own behalf. He admitted to being arrested for drug possession with intent to distribute in February 2007, and being incarcerated for two years. While he admitted earlier gang involvement, he claimed that he was no longer associated with a gang. He enrolled in a drug treatment program to address his Percocet abuse and obtained a job working in a grocery store.
On cross-examination, he admitted to keeping sexually explicit photographs of himself and Paula that Sasha had viewed.
While he denied a current relationship with Paula, he admitted that she had recently been pregnant with his child and that they were still having sexual relations. He never lived with Quentin or celebrated any birthdays with him, and had never requested any additional visits with either child. Edgar conceded that he had not located any schools to meet Quentin's developmental needs and that he had never spoken with Quentin's teachers.
Paula testified and claimed that she did not need to attend intensive outpatient drug treatment program because she could help herself. During the four years in which Quentin was in foster care with Lauren, Paula never acknowledged Quentin's birthday or other holidays and had only spoken with Quentin approximately six times via telephone. She was not aware of all the therapy he had received and admitted that she had not received pre-natal care with him. She had never requested any of his evaluations or records and did not have suitable housing for herself or the children.
At the conclusion of trial, the court determined that the Division had established all four prongs of the best interest test by clear and convincing evidence, thereby satisfying the statutory standard set forth in N.J.S.A. 30:4C-15.1(a). The court noted that both children had been out of placement for over four years and the judge did not see "the light at the end of the tunnel":
But the overall problem is that neither [Paula] nor [Edgar] have reached a point nor is it likely that they're going to ever reach this point based on the history of this case, where they could be consider[ed] for parenting these children. And we're four years down the point and we've got one hour of supervised visitation that they can't even comply with that or show up for on a reasonably consistent basis.
The judge found the testimony of Dr. Singer very credible and noted that during the one-year interim between Dr. Singer's first and second evaluations, when the parties were offered services to help them become capable parents, nothing changed.
The judge was not impressed with Dr. Johnson's testimony and suggested that he presented a "thrown together report." The judge determined that Dr. Johnson's conclusion that Quentin would not be harmed if removed from his foster parent, "threw out his entire credibility."
The judge found Dr. Griffith "very, very credible" and honest in his testimony, especially his opinion that the children would be harmed if removed from their foster parents.
On appeal, defendants both claim that the trial court erred in finding that the four prongs of the best interests test were satisfied by clear and convincing evidence. In addition, Paula claims that the trial court erred in failing to apply the Safe Haven Act, while Edgar claims that the trial court erred by imposing improper legal standards.
Finally, Sasha's law guardian urges that we affirm the judgment of guardianship but require that Sasha be permitted "enforceable post adoption visitation with her biological parents."
Both defendants contend that the Division did not satisfy the four prongs of the best interests test embodied in N.J.S.A. 30:4C-15.1, by clear and convincing evidence. We begin our discussion by noting certain legal principles governing the right of the State to terminate an individual's parenting rights.
"[P]arents have a fundamental liberty interest in raising their children." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 86-87 (App. Div. 2006) (citing Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394, 71 L. Ed. 2d 599, 606 (1982)), certif. denied, 190 N.J. 257 (2007). Therefore, the "[f]undamental rights and interests of parents must be heavily weighed against critical concerns of the State acting as parens patriae to protect the health and welfare of children and to keep them from abuse or neglect or other conduct with deleterious consequences." Id. at 86. Mindful of these considerations, New Jersey Courts have "consistently imposed strict standards regarding the termination of parental rights." N.J. Div. of Youth & Family Servs. v. S.V., 362 N.J. Super. 76, 83 (App. Div. 2003) (citing In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999)). To terminate parental rights, the trial court must apply the four prong best interests of the child standard and make the following specific findings:
(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. [N.J.S.A. 30:4C-15.1(a).]
"These standards are neither discrete nor separate. They overlap to provide a composite picture of what may be necessary to advance the best interests of the children." N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 258 (App. Div. 2005) (citing K.H.O., supra, 161 N.J. at 348).
"Appellate review of a trial court's decision to terminate parental rights is limited, and the trial court's factual findings 'should not be disturbed unless they are so wholly unsupportable as to result in a denial of justice.'" In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002) (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). "When the credibility of witnesses is an important factor, the trial court's conclusions must be given great weight and must be accepted by the appellate court unless clearly lacking in reasonable support." F.M., supra, 375 N.J. Super. at 259 (citing In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999)).
"The burden rests on the party seeking to terminate parental rights 'to demonstrate by clear and convincing evidence' that the risk of 'serious and lasting [future] harm to the child' is sufficiently great that it requires severance of parental ties." Id. at 258 (quoting In re Guardianship of J.C., 129 N.J. 1, 10 (1992)).
The First Prong
Paula argues that the court failed to define the harm experienced by Quentin and Sasha as required under the first prong of the analysis and that neither child suffered harm resulting from her relationship with them.
Similarly, Edgar contends that he cared for Sasha appropriately prior to her removal, he followed all of the Division's recommendations, and he obtained employment and stable housing. As a result, he alleges that the court erred in holding that the children would be harmed by continuing a relationship with him.
Under the first prong, the court must consider whether the "'child's safety, health or development has been or will continue to be endangered by the parental relationship.'" N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 281 (2007) (quoting N.J.S.A. 30:4C-15.1(a)(1)). "Rather than focusing on a single or isolated harm, the standard may be triggered by an accumulation of harms over time." N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 506 (2004) (citing K.H.O., supra, 161 N.J. at 348). "The harm shown under the first prong must be one that threatens the child's health and will likely have continuing deleterious effects on the child." K.H.O., supra, 161 N.J. at 352. "Courts need not wait to act until a child is actually irreparably impaired by parental inattention or neglect." D.M.H., supra, 161 N.J. at 383 (citing N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 616 n.14 (1986)).
In reaching the conclusion that the first prong had been satisfied, the trial court noted that Paula had no contact with the children for long periods of time; she remained out of contact with the Division during the time she was required to comply with services; she had infrequent attendance at visitation; she lacked employment; and she had several positive drug screenings. Similarly, Edgar was incarcerated when the children were removed and, after his release, he tested positive for drugs and experienced instability in his relationship with Paula.
Here, both parents tested positive for drugs prior to and during the guardianship trial. This indicates that neither defendant was sufficiently committed to properly parenting their children and confirms that a continued relationship with their children would subject the children to harm. The long-term and frequent drug abuse by both defendants, indicates an unwillingness and inability to provide a safe environment for the children.
Despite having completed drug abuse treatment programs, Edgar continued to test positive for morphine. Similarly, Paula was non-compliant with her drug treatment program and tested positive consistently throughout this litigation. Drug use by a parent can be considered a harm. K.H.O., supra, 161 N.J. at 353. Failure to provide care or the inability to render care is also a harm that endangers the health and development of children. D.M.H. supra, 161 N.J. at 377-79. Neither parent could provide proper care for the children if they were still struggling with a drug problem. The Division established the first prong by clear and convincing evidence.
The Second Prong
The inter-related second prong requires evidence "[t]he 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." N.J.S.A. 30:4C-15.1(a)(2).
As to the second prong, the trial court explained that defendants had been involved with the Division for four years and neither one had benefited from services or was able to provide a safe or stable home for their children. The judge rejected suggestions that the defendants be given additional time, as further delay would adversely impact the children, who were in need of permanency.
To satisfy this prong, the court can analyze the bond the children have with their respective foster parents when considering the children's safety. D.M.H., supra, 161 N.J. at 378-79. The trial judge concluded that removal of the children from their respective foster mothers would cause serious harm. The harm referenced in the first and second prongs may include the "serious and enduring emotional or psychological harm" caused by separating the child from his resource family. Ibid.
"Th[is] inquiry is aimed at determining whether the parent has cured and overcome the initial harm that endangered the health, safety, or welfare of the child, and is able to continue a parental relationship without recurrent harm to the child. Alternatively, under this second criterion, it may be shown that the parent is unable to provide a safe and stable home for the child and that the delay in securing permanency continues or adds to the child's harm." [N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 175 (2010) (quoting K.H.O., supra, 161 N.J. at 348-49).]
The trial court credited Dr. Singer's conclusion that the children would suffer harm if removed from their caregivers. Added emphasis was placed on these findings in light of Dr. Singer's opportunity to examine defendants, the children, and the foster families on two separate occasions during 2010 and 2011. The judge also accepted Dr. Griffith's conclusions that Sasha had a secure attachment to Linda and that the termination of that relationship would leave Sasha vulnerable; that Quentin and his foster mother had a strong bond; and Edgar's bond to Quentin did not rise to that level.
The court rejected the conclusions of Dr. Johnson, finding him not credible and his report unprofessional. The judge also noted that Dr. Johnson did not conduct bonding evaluations with the foster families, yet opined that the children would not be harmed by removal.
The Division demonstrated by clear and convincing evidence that defendants could not overcome the problems that placed the children's health, safety, and welfare in jeopardy, and that defendants were unable or unwilling to create a safe and stable home, which contributed to a lack of permanency.
The Third Prong
Paula argues that the Division failed to provide reasonable efforts to reunify the family. Specifically, she complains that the visitation schedule was not in compliance with N.J.A.C. 10:122D-1.1(b). Edgar argues that the Division failed to provide him with sufficient time to demonstrate his sobriety and seeks a remand so that he can demonstrate he has remained drug free. Both defendants argue that the Division did not consider alternatives to the termination of parental rights.
Under the third prong, we must examine whether DYFS made "reasonable efforts to provide services to help the parent correct the circumstance which led to the child's placement."
supra, 189 N.J. at 285 (quoting N.J.S.A. 30:4C-15.1(a)(3)). "'Reasonable efforts' may include consultation with the parent, developing a plan for reunification, providing services essential to the realization of the reunification plan, informing the family of the child's progress, and facilitating visitation." Id. at 281 (citing N.J.S.A. 30:4C-15.1(c)).
DYFS has been involved with this family since 2007 when Paula requested that Quentin be placed in foster care. After assuming custody of Quentin and Sasha, the Division created a plan for reunification and provided Paula and Edgar with various services, including psychological evaluations, bonding evaluations, substance abuse evaluations, drug screenings, visitation, and psychiatric evaluations. When Paula was out of contact with the Division between December 2007 and July 2008, it conducted a search for her. When the Division attempted to evaluate Paula's apartment, she did not make herself available. Even though visitation was provided, Paula's visits were infrequent and she did not demonstrate an interest in forming bonds with the children. She admitted at trial that she never acknowledged Quentin's birthdays, never celebrated holidays with the children, had limited telephone contact with them, and expressed little interest in their educational progress.
Edgar was incarcerated until February 2009. Upon his release, the Division referred him to a residential drug program, provided visitation, substance abuse treatment, psychological evaluations, drug screenings, enrollment in a support group for fathers, and enrollment in a parenting skills program. While Edgar argues that he should have been given more time to comply with services and demonstrate his sobriety, Dr. Singer testified that doing so would have been ineffective, given his long history of non-compliance and would have harmed the children by further delaying their permanency.
Whether the Division provided reasonable efforts is not gauged by the defendants' success in participating in or learning from the services. D.M.H., supra, 161 N.J. at 393. Rather, the court should look at the parent's active involvement in the services. Id. at 390.
The second part of the third prong analysis requires us to determine whether the trial court considered viable alternatives to termination of parental rights. N.J.S.A. 30:4C-15.1(a)(3).
The Division assessed various placement proposals by defendants, but ultimately ruled each of them out. In addition, the court considered the possibility of kinship legal guardianship (KLG), but determined that it was not appropriate in the case of Sasha, as Linda wanted to adopt her. While the record is less clear as to whether the Division explored KLG for Quentin, it is clear that Quentin's foster mother wishes to adopt him and the child has expressed a desire to remain with her. As KLG is only a possibility "[w]hen adoption is neither feasible nor likely," P.P., supra, 180 N.J. at 508, KLG was not a viable alternative to termination.
Finally, we reject Paula's argument that the requirements of N.J.A.C. 10:122D-1.1(b) were circumvented because defendants were not provided with sufficient visitation. The purposes of visitation when children are placed outside of the home are to:
1. Reinforce the child's identity;
2. Promote the child's need for stability, consistency, and permanency;
3. Maintain or establish family relationships;
4. Assess the parent's and other relative's motivation and ability to care for the child;
5. Provide an opportunity to model appropriate parenting behavior and skills; and
6. Facilitate the case goal of return home. [N.J.A.C. 10:122D-1.1(a).]
"The frequency and duration of visits are dependent on the purpose of the visits, the case goal and case plan and practical considerations of all parties." N.J.A.C. 10:122D-1.1(b).
We find Paula's claim that she was not provided with enough visitation to be completely unsupported by the record, especially since she did not take advantage of the visitation she was afforded and went for long periods of time without making any effort to see her children.
The Fourth Prong
Under the fourth prong, the trial court must "assess whether termination of parental rights will do more harm than good." M.M., supra, 189 N.J. at 286 (citing N.J.S.A. 30:4C-15.1(a)(4)). "Inherent in the fourth factor is that a child has a 'paramount need for a permanent and defined parent-child relationship.'" N.J. Div. of Youth & Family Services v. C.S., 367 N.J. Super. 76, 119 (App. Div.) (quoting In re Guardianship of J.C., supra, 129 N.J. at 26), certif. denied, 180 N.J. 456 (2004).
Again we look to the testimony of Dr. Singer, who conducted bonding evaluations with the parents, children, and foster parents in 2010 and 2011. After the initial evaluations, Dr. Singer determined that Quentin was securely attached to his foster mother and would suffer enduring harm if he were separated from her. As for Sasha, Dr. Singer found that she was bonded to defendants and to her caregiver, Linda, but concluded that if defendants' rights were terminated, Sasha's relationship with Linda would help her overcome any harm.
In 2011, Dr. Singer reaffirmed his previous conclusions as to both children, explaining that Quentin wanted to reside with Lauren, whom he recognized as his mother. By this time, Sasha expressed a desire to visit with her parents but wanted to remain living with Linda.
The opinion of Dr. Johnson was rejected by the trial court. As the reviewing court, we award deference to that finding because the trial court "has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a 'feel of the case' that can never be realized by a review of the cold record." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008).
Even Dr. Griffith, the expert called by Edgar, recognized that both foster mothers appropriately cared for the children and had allowed them to form secure bonds.
The Division has proven by clear and convincing evidence that termination of parental rights will not do more harm than good.
Raised for the first time on appeal, Paula claims that her request to have Quentin placed in foster care shortly after his birth should have been construed as an invocation of the Safe Haven Act. She claims that DYFS "utilized [Paula's] plea for help as a basis for taking away not only her newborn son but also her daughter." She argues that the criminal immunity provisions of the Act "should extend to prevent [DYFS] from removing Sasha."
While there are no reported precedential opinions discussing the Safe Haven Act, and certainly none that address this novel argument, we have the benefit of Judge Julio Mendez's scholarly opinion, In re Doe, 416 N.J. Super. 233 (Ch. Div. 2010), in which he discusses the scope and applicability of the Act.
The Safe Haven Act became law on August 7, 2000. Id. at 239. "The three main principles behind Safe Haven are safety for the child, anonymity, and immunity from prosecution for the biological parents." Ibid. N.J.S.A. 30:4C-15.7(b) provides:
If a person voluntarily delivers a child who is or appears to be no more than 30 days old to, and leaves the child at an emergency department of a licensed general hospital in this State and does not express an intent to return for the child, or, if a State, county or municipal police officer brings a child to a licensed general hospital under the circumstances set forth in subsection a. of this section, the hospital shall:
(1) take possession of the child without a court order;
(2) take any action or provide any treatment necessary to protect the child's physical health and safety; and
(3) no later than the first business day after taking possession of the child, notify the Division of Child Protection and Permanency in the Department of Children and Families that the hospital has taken possession of the child.
As Judge Mendez noted, "In passing the Safe Haven law, the New Jersey Legislature found that 'New Jersey and the nation have experienced sorrow in the knowledge that newborn infants are sometimes abandoned in life-threatening situations and that some of these children have been harmed or have died as a consequence of their abandonment.'" In re Doe, supra, 416 N.J. Super. at 239-40 (quoting N.J.S.A. 30:4C-15.6(a)). "The Legislature acknowledged that parents of unwanted infants are often under severe emotional stress and that they may need a safe way to surrender their children to prevent them from putting the infants in dangerous or life-threatening situations." Id. at 240 (citing N.J.S.A. 30:4C-15.6(b)).
When Paula expressed a desire that Quentin be placed in foster care, she clearly was not invoking the Safe Haven Act as she was expressing a desire that the child be returned to her when she became able to care for him. Surrenders under the Safe Haven Act are performed with a disinterest in reunification.
N.J.S.A. 30:4C-15.7. The Safe Haven Act requires "voluntary [delivery] of a child" by one who "does not express an intent to return for the child[.]" N.J.S.A. 30:4C-15.7(a). As this was not a Safe Haven surrender, we need not address Paula's argument that the criminal immunity provisions of the Act prevented the Division from removing Sasha. We note only that Sasha's removal was done pursuant to a court order after the Division determined and the judge agreed that Paula was unable to care for the child.
While the law guardian for Sasha urges that we affirm the judgment terminating defendants' parental rights, she also asks that we exercise our original jurisdiction and order post-adoption visitation between Sasha and defendants. R. 2:10-5.
Procedurally, the law guardian was required to file a cross-appeal in order to seek this relief. R. 2:3-4; see also State v. Elkwisni, 190 N.J. 169, 175 (2007). We will review issues not appropriately raised, if extraordinary circumstances exist. See N.J Div. of Youth & Family Servs. v. B.G.S., 291 N.J. Super. 582, 586 n.2 (App. Div. 1996). We do not find such extraordinary circumstances here.
The law guardian argues that we should mandate visitation because the psychological experts who testified at trial recognized that Sasha was attached to her parents. The law guardian concedes that both defendants have harmed Sasha, yet argues that Sasha will be harmed if she does not have post-adoption contact with them. The law guardian also concedes that Linda may allow post-adoption visitation, obviating any need for a court order.
Our consideration of this application comes more than eighteen months after defendants' rights were terminated. The observations of Drs. Singer, Johnson, and Griffith that recognized a bond between Sasha and defendants are dated, and the passage of time and the entry of the guardianship judgment may have altered Sasha's desire to have a continued relationship with defendants.*fn3 Furthermore, it is unclear if either defendant continues to be interested in visitation with Sasha or if they have addressed any of the issues that led to the termination of their parental rights.
We have no basis to exercise original jurisdiction, a procedure which should be used sparingly and only when the record below is complete and comprehensive. In re Estate of Arbuckle, 70 N.J. Super. 170, 175 (App. Div. 1961); see also V.C. v. M.J.B., 163 N.J. 200, 229 (2000).
The remaining arguments raised by defendants lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).