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New Jersey Division of Child Protection & Permanency v. J.L.

Superior Court of New Jersey, Appellate Division

October 25, 2013

J.L., Defendant-Appellant. IN THE MATTER OF GUARDIANSHIP OF Q.G., A Minor.


Submitted October 16, 2013

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FG-16-52-12.

Joseph E. Krakora, Public Defender, attorney for appellant (John A. Albright, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel and on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor Q.G. (Hector Ruiz, Designated Counsel, on the brief).

Before Judges Reisner and Ostrer.


Defendant Jane L.[1] appeals from a December 20, 2012 order terminating her parental rights to her son Quincy. We affirm, substantially for the reasons stated by Judge George Sabbath in his oral opinion placed on the record on December 20, 2012.


The facts are set forth at length in the trial judge's opinion, and need not be repeated here in the same level of detail. To summarize, Jane has been diagnosed with psychotic disorder not otherwise specified (NOS) and depressive disorder NOS with borderline intellectual functioning. She is developmentally disabled, with an I.Q. of 66. She has never held a job, has no stable housing, and can barely care for herself. The Division presented expert testimony that she is completely incapable of safely caring for a child and there is no prospect that she will be able to do so in the foreseeable future.

We recently affirmed Judge Sabbath's earlier decision, arising from a separate guardianship trial, terminating Jane's parental rights to her four other children, based on her inability to care for them, her refusal to accept services from the Division, and the absence of appropriate relative placements. J.L., supra, slip op. at 19-27.

Defendant's son Quincy was born on September 14, 2011. He was immediately removed from defendant's care, due to her demonstrated unfitness to care for her four other children. Defendant identified F.G. as the child's father.[2] The child was initially placed with F.G., and the Division provided a twenty-four-hour homemaker service (ECAP) to assist him in caring for the child. That placement was conditioned on Jane not living in the home and not visiting the children unless an ECAP worker was present. Jane refused to sign her consent for Family Preservation services, which would have entitled her and F.G. to parenting classes and additional assistance in caring for the child. The Division removed Quincy from F.G.'s home on an emergency basis, due to concerns that Jane was caring for the child when the ECAP worker was not present, and because F.G. threatened to flee with the child "to South Jersey . . . so DYFS cannot bother me anymore."

The child was placed in foster care, after the Division was unable to locate any relatives who were willing to care for him. After Quincy was placed with a foster parent, defendant refused the Division's offer of therapeutic visitation. She told the case worker that she was "not interested in any services" from the Division. In addition to rejecting therapeutic visitation services, defendant refused to attend a psychiatric evaluation and declined the Division's offer of psychiatric counseling.

Defendant did visit the child sporadically at the Division's offices. During those visits, she expressed a complete lack of understanding as to why she had lost custody of Quincy. On one occasion, she was intoxicated and told the Division case worker that she knew the worker was Quincy's mother. The case worker testified that when the child was an infant, defendant appeared unable or unwilling to hold him or care for him. If F.G. was present, defendant would hold the child for a moment or two and then hand him to F.G.

Quincy has been living with the same foster mother since December 2011. He is thriving in her care and she wishes to adopt him. The foster mother also arranges for Quincy to visit with his siblings, who are in other foster homes.

Defendant did not testify at the trial and presented no witnesses. Based on the Division's evidence, which he found credible, Judge Sabbath determined by clear and convincing evidence that the Division had satisfied the four prongs of the best interests test. N.J.S.A. 30:4C-15.1c(1)-(4).


In striking a balance between a parent's constitutional rights and the children's fundamental needs, courts employ the four-part guardianship test articulated in N.J. Division of Youth and Family Services v. A.W., 103 N.J. 591, 604-11 (1986), and codified as N.J.S.A. 30:4C-15.1a:

a. The division shall initiate a petition to terminate parental rights on the grounds of the "best interests of the child" pursuant to subsection (c) of section 15 of P.L. 1951, c. 138 (C. 30:4C-15) if the following standards are met:
(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-15.1a.]

In their application, the four factors above "'are not discrete and separate, but relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests.'" 202 N.J. 145, 167 (2010) (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 606-07 (2007)).

In reviewing the trial judge's decision, we must defer to his factual findings unless they "'went so wide of the mark that a mistake must have been made.'" N.J. Div. of Youth and Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (citation omitted). So long as "they are 'supported by adequate, substantial and credible evidence, '" a trial judge's factual findings will not be disturbed on appeal. In re Guardianship of J.T., 269 N.J.Super. 172, 188 (App. Div. 1983) (citation omitted). And we owe special deference to the trial judge's expertise in handling family issues. Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). On this appeal, defendant argues that the Division failed to satisfy the fourth prong of the statutory test, because the agency did not obtain expert bonding evaluations concerning the child's relationship with defendant or with the foster parent. She also contends that the Division did not satisfy the second and third prongs, because it did not provide her with adequate services and "prevented" her "from establishing a home" with F.G. Having reviewed the record, we conclude that defendant's appellate arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following comments.

The record contains overwhelming, uncontroverted evidence that due to her mental illness, developmental disability, and resistance to accepting services, defendant is unable to care for Quincy or for any other child. Judge Sabbath's findings on that point are unassailable. Quincy has never lived with defendant, and there is no evidence even suggesting that he has developed a relationship with defendant that would cause him to suffer emotional harm if her parental rights were terminated.

Relying on Matter of Guardianship of J.C., 129 N.J. 1 (1992), and N.J. Division of Youth and Family Services v. S.A., 382 N.J.Super. 525 (App. Div. 2006), defendant argues that the court should have ordered bonding evaluations between her and Quincy, and between the Quincy and the foster parent. We rejected a similar argument in our prior opinion, finding that "this is one of those rare instances where comparative evaluations are simply not required." J.L., supra, slip op. at 25 (citing N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J.Super. 418, 440 (App. Div. 2009)). We reach the same conclusion here.

Defendant's reliance on J.C. and S.A. is misplaced. In J.C., the children had a significant ongoing relationship with the defendant, who was progressing in her efforts to become a fit parent by overcoming her drug addiction. J.C., supra, 129 N.J. at 11-12. Likewise, in S.A., the defendant "had finally acknowledged her addiction and had made substantial and thus-far successful efforts to address it." S.A., supra, 382 N.J.Super. at 535. In other words, there was a distinct possibility that the mother would be able to become a fit parent in the foreseeable future. Further, the child was only six months old when the termination proceedings commenced, the Division failed to provide S.A. with appropriate services, and the defendant's mother offered a possible relative placement for the child while the defendant completed her recovery. Id . at 535, 538.

This case presents a completely different set of circumstances. In this case, defendant is not fit to care for Quincy and has no realistic prospect of ever becoming able to care for him. Nor are there available relatives willing and able to care for the child. Unlike J.C. and S.A., the choice is not between a potentially fit parent and a foster parent. Rather, this sad case required the trial court to choose between leaving Quincy in foster care for the rest of his childhood or allowing him to have a permanent adoptive home with a capable parent. Under those circumstances, comparative bonding evaluations were not required.


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