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New Jersey Div. of Youth and Family Services v. J.S.

Superior Court of New Jersey, Appellate Division

October 17, 2013


Submitted: October 1, 2013.

Approved for Publication October 17, 2013.

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[Copyrighted Material Omitted]

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On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FG-16-08-12.

Joseph E. Krakora, Public Defender, attorney for appellant ( Angelo G. Garubo, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent ( Lewis A. Scheindlin, Assistant Attorney General, of counsel; Lisa A. Puglisi, Assistant Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor A.G. ( Lisa M. Black, Designated Counsel, on the brief).

Before Judges MESSANO, SABATINO, and HAYDEN. The opinion of the court was delivered by SABATINO, J.A.D.


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[433 N.J.Super. 75] SABATINO, J.A.D.

Defendant J.S., the biological father of A.G., appeals the Family Part's August 31, 2012 order terminating his parental rights as to A.G. following a multi-day trial. Among other things, defendant argues that the trial court erred in upholding a decision of the Division of Youth and Family Services[1] (the " Division" ) to " rule out" two relatives who had expressed interest in serving as alternative caregivers for the child.

For the reasons that follow, we affirm the final judgment terminating defendant's parental rights. As part of our analysis, we reject defendant's argument that the Division lacked the authority to rule out relatives under N.J.S.A. 30:4C-12.1 based upon considerations of a child's best interests. Instead, we hold that the applicable statutory provisions and a related regulation, N.J.A.C. 10:120A-3.1, allow the Division to rule out a relative on such " best-interests" grounds, regardless of the relative's willingness or ability to care for a child. However, the Division's rule-out authority is always subject to the Family Part's ultimate assessment of that child's best interests. There is ample support in the trial record in this case to sustain the trial court's conclusion that termination of defendant's parental rights and A.G.'s continued placement with his foster parents are in A.G.'s best interests.


A.G. was born in October 2009. About eight months later, in June 2010, the Division

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conducted a Dodd removal[2] of him from [433 N.J.Super. 76] the care of his biological mother, J.G., based upon reports that she had carelessly left him with highly intoxicated persons. At the time of the child's removal, defendant was incarcerated in the county jail. A.G. was immediately placed in a foster home, where he has resided ever since.

In April 2011, J.G., who had a history of substance abuse, prostitution, and a lack of stable housing, voluntarily agreed to an identified surrender of A.G. to the foster parents.[3] Hence, the issues on appeal relate solely to the child's biological father, defendant J.S.

Defendant had been diagnosed with mental health and substance abuse issues. After he was released from jail, defendant tested positive for cocaine. He was referred for substance abuse treatment, but had difficulty maintaining a drug-free life, as evidenced by the fact that he tested positive for cocaine four times between February and April 2012 while on probation.

Defendant initially identified from jail four relatives as potential alternative caretakers for A.G. After those four initial candidates were ruled out within a month by the Divisiondecisions that defendant does not contest on this appealtwo other relatives were suggested as alternative caretakers.

First, in October 2010, defendant proposed M.R., his second cousin, as a potential caretaker. Within a month, the Division contacted M.R., had her complete necessary paperwork, and arranged visitations for M.R. with the child from October 2010 through April 2011. The Division's investigation of M.R. was complicated by the fact that she had apparent psychological problems and limited space in her home, and also by initial difficulties in getting fingerprints from another adult who lived in her home. Ultimately, the Division ruled out M.R. as a caretaker based upon its assessment of A.G.'s best interests.

[433 N.J.Super. 77] In May 2011, seven months after M.R. was identified, J.P., a first cousin of defendant, contacted the Division and expressed interest in caring for A.G. By that time, J.P. had already begun visiting A.G. weekly, at defendant's request, starting in April 2011. The Division investigated her as well, but the investigation revealed that J.P. was disabled and had four children living in her home, two of whom were also disabled. Upon considering her circumstances, the Division also ruled out J.P., on a best-interests basis. In the meantime, defendant continued to present an inability to care for his son, who was doing well with the foster parents.

The trial court entered a permanency order on June 2, 2011, approving the Division's plan to terminate defendant's rights and to proceed with the adoption of A.G. by his foster parents. The Division accordingly filed a guardianship complaint against defendant seeking the termination of his parental rights.

Later that month, on June 22, 2011, the Division sent letters separately to M.R. and J.P., advising them that they had been ruled out as potential caretakers based, in both instances, upon the Division's assessment of the child's best interests. J.P.

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attempted an administrative appeal within the Division of the rule-out determination as to her. However, the Division declined to review her appeal administratively, in accordance with N.J.A.C. 10:120A-3.1, which prescribes that there is no right to an administrative appeal of such a " best interest" decision. The trial court denied her request, in anticipation that the rule-out issues would be addressed as part of the Family Part's application of the third prong of N.J.S.A. 30:4C-15.1(a), and also in recognition that defendant and the Law Guardian were participating in the case and would have the opportunity to advocate for an alternate placement with J.P. if appropriate.

In September 2011, Robert Kanen, Psy.D., an expert that the Division retained, conducted a bonding evaluation between A.G. and his foster parents. Dr. Kanen concluded in his report that A.G. " is strongly attached to the foster parents and would suffer serious and enduring harm if removed from them." Such a [433 N.J.Super. 78] removal, Dr. Kanen opined, " would take the form of regression in the developmental gains [A.G.] has experienced" and " also would severely impair his sense of trust in human relationships." During his subsequent cross-examination at trial, Dr. Kanen was emphatic that removing A.G. from his foster family would cause harm, no matter where he was placed.

In January 2012, Dr. Kanen performed a psychological evaluation of defendant. That evaluation revealed that defendant has a history of mental illness, which has resulted in numerous psychiatric hospitalizations. Additionally, Dr. Kanen noted that defendant has a long history of substance abuse and antisocial behavior. According to Dr. Kanen, defendant has significant cognitive limitations which " seriously impair his ability to supervise, protect, and care for a child." Dr. Kanen concluded in his report that defendant's " problems are so severe that they are unlikely to ever be resolved to the point where he could independently care for himself and a child." The expert also opined that returning A.G. to defendant's care " would expose the child to an unnecessary risk of harm."

The guardianship trial was held over eight intermittent days between May and July 2012. The Division presented testimony from Dr. Kanen, two caseworkers, and an adoption supervisor. It also relied upon extensive records that were admitted into evidence without objection, except as to defendant's criminal history, by defense counsel. Defendant did not testify, nor did he present a competing expert to counter Dr. Kanen's opinions. He did, however, present testimony from M.R. and J.P., both of whom reiterated their respective desires to care for A.G.

After considering these proofs, the trial judge issued a detailed oral opinion on August 31, 2012, concluding that the Division had proven, by clear and convincing evidence, all four prongs of the statutory factors for termination under N.J.S.A. 30:4C-15.1(a). This appeal by defendant followed, which is opposed by the Division as well as the Law Guardian.

[433 N.J.Super. 79] II.

We begin our review of these issues with a recognition that the termination of a parent's right to raise his or her child is a matter of constitutional magnitude. See In re Guardianship of K.H.O., 161 N.J. 337, 346, 736 A.2d 1246 (1999); see also N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 447, 48 A.3d 1075 (2012). To be sure, " [p]arents have a fundamental constitutional right to enjoy a relationship with and raise their children." N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J.Super. 576, 608, 914 A.2d

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318 (App.Div.2007), certif. denied, 192 N.J. 68, 926 A.2d 853 (2007) (citing K.H.O., supra, 161 N.J. at 346-47, 736 A.2d 1246). However, this constitutional right is " tempered by the State's parens patriae responsibility to protect the welfare of children." In re Guardianship of J.N.H., 172 N.J. 440, 471, 799 A.2d 518 (2002).

It is well established that when seeking the termination of a parent's rights under N.J.S.A. 30:4C-15.1(a), the Division has the burden of establishing, by clear ...

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