NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. L.G.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-4218-06T44218-06T4
NEW JERSEY DIVISION OF
YOUTH AND FAMILY SERVICES,
IN THE MATTER OF THE
GUARDIANSHIP OF A.G.,
Submitted December 10, 2007 - Remanded
Resubmitted March 12, 2008 - Decided
Before Judges S.L. Reisner, Gilroy and Baxter.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-119-07.
Yvonne Smith Segars, Public Defender, attorney for appellant (Mark Tabakman, Designated Counsel, on the brief).
Anne Milgram, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Patricia J. O'Dowd, Deputy Attorney General, on the brief).
Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minor, A.G. (Christopher A. Huling, Assistant Deputy Public Defender, on the brief).
Defendant L.G., the biological mother of eight-year old A.G., appeals from the February 16, 2007 order of the Family Part that terminated her parental rights to her son pursuant to N.J.S.A. 30:4C-15.1(a). The order in question awarded guardianship of A.G. to the Division of Youth and Family Services (DYFS) so that adoption proceedings could commence. The parental rights of A.G.'s natural father, A.E., were also terminated, but he has not appealed. We remanded the matter to the Family Part for the limited purpose of conducting a supplementary proceeding. The purpose of the remand was to ascertain the present intentions of M.W., L.G.'s aunt, as to whether she wishes to adopt A.G., or instead provide A.G. with long-term care similar to that which would be provided under a Kinship Legal Guardianship (KLG), N.J.S.A. 3B:12A-6(d). We now affirm.
The record consists of the testimony of four witnesses presented by DYFS, the testimony of L.G. and her expert Dr. Gerard Figurelli, as well as more than 600 pages of exhibits that were admitted into evidence. Those exhibits include DYFS's contacts with L.G. and with various agencies that provided services to her along with a number of psychological and substance abuse assessments. The record as a whole demonstrates L.G.'s long struggle with substance abuse and describes the numerous terms of imprisonment she served after her son was born.
DYFS's involvement with L.G. began even before A.G. was born. During her pregnancy, DYFS received a referral in which the caller alleged that L.G. was using PCP and marijuana while pregnant with A.G. At the time of his birth, A.G. did not have drugs in his system. Shortly after his birth, L.G. entered an inpatient drug treatment program, but the record does not contain any description of the results.
Shortly after her discharge from that program, L.G. was incarcerated for a period of three years. During the time that his mother was incarcerated, A.G. lived with his aunt, P.R., who had obtained legal and physical custody. L.G. was not released from imprisonment until August 30, 2003. Thus, for the first four years of her son's life, L.G. was incarcerated for all but one.
Because L.G. expressed interest in regaining custody of her son once she was released from prison, DYFS made an effort to provide her with substance abuse treatment. In particular, DYFS instructed her to report for a substance abuse evaluation with a DYFS Certified Alcohol and Drug Counselor (CADC). L.G. failed to appear for three scheduled appointments with the CADC in February and March 2004. By failing to show up for those appointments, L.G. also avoided providing urine drug screens.
On September 15, 2004, L.G. again contacted DYFS to request services. A DYFS caseworker reminded her that DYFS had already arranged several appointments for her with the CADC in the past, but she had failed to show up. Accordingly, the caseworker advised L.G. that she would be required to enroll in substance abuse treatment through Christ Hospital (the hospital), and would also be required to attend parenting classes.
L.G. completed the parenting classes the next month. Although three months elapsed before L.G. began her drug treatment at the hospital, hospital staff notified DYFS on January 4, 2005, that L.G. had been compliant with substance abuse treatment and had three negative urine screens in the month of December 2004. Based on her progress in treatment, the judge who was presiding over a custody complaint that L.G. had filed against P.R., ordered that L.G. be permitted to have overnight visits with her son every weekend until she completed her substance abuse treatment program on February 5, 2005. On February 5, 2005, legal and residential custody of A.G. was transferred to L.G. During a visit to L.G.'s apartment shortly thereafter, a DYFS caseworker observed the apartment to be "clean and appropriately furnished" with "plenty of food and suitable sleeping arrangements." A.G. was "clean and healthy."
Unfortunately, L.G.'s progress did not last long. On June 16, 2005, DYFS learned that L.G. had been arrested three days earlier on charges of simple assault, terroristic threats and bail jumping and was still incarcerated. As a result of his mother's incarceration, A.G. went to live with his father. L.G. posted bail and was released from custody on June 23, 2005. L.G. retrieved A.G. from his father and she and A.G. moved to the home of L.G.'s friend in Hoboken. During a visit, a DYFS caseworker observed that L.G. had a black eye. L.G. told the worker that sheriff's officers had been required to throw her to the floor and restrain her after a violent outburst in a courtroom recently. Concerned by L.G.'s difficulties in controlling her temper, a problem that had also surfaced during L.G.'s angry confrontation with officials at A.G.'s school a few months earlier, DYFS referred L.G. to the Urban League for anger management classes. On July 31, 2005, DYFS received a report from the Urban League that despite multiple efforts to engage L.G. in anger management classes, she never established any contact with them.
A mere three weeks after L.G. was discharged from jail on June 23, 2005, she was locked up again on July 16, 2005. When she was arrested, L.G. made arrangements for A.G. to stay with one of her friends. Upon locating A.G., DYFS placed him with L.G.'s maternal aunt, M.W. Because of L.G.'s incarceration and because A.E.'s whereabouts were unknown, DYFS filed a complaint for care, custody and supervision of A.G. on July 29, 2005. The judge ordered A.G. placed in the custody of DYFS and noted in the order that "[i]t is contrary to the welfare of the child to return to biological mother as she is incapacitated due to incarceration . . . . "
On August 19, 2005, L.G. contacted DYFS to report that she was released from jail the previous day after having completed her sentence. The DYFS worker advised her that a substance abuse evaluation was scheduled for August 23, 2005. L.G. completed that evaluation, which resulted in a recommendation for long-term inpatient substance abuse treatment. During that evaluation, L.G. tested positive for marijuana. Two days later, when the CADC notified L.G. that DYFS had made arrangements for her to enter a long-term inpatient drug treatment program the following week, L.G. insisted that she wanted a program that would begin that very day because she was experiencing suicidal ideations. DYFS arranged for L.G. to be immediately transported to a local hospital for a psychiatric evaluation. After an evaluation, the hospital discharged her later that day. Despite the arrangements made by DYFS for L.G. to enter an inpatient drug treatment program, L.G. never enrolled.
At an August 31, 2005 compliance review hearing, the judge ordered that custody of A.G. remain with DYFS and physical custody with M.W. The judge ordered L.G. and A.E. to attend psychological evaluations as well as substance abuse treatment at a local outpatient program. The judge also ordered L.G. to attend anger management at Christ Hospital beginning on September 12, 2005. During the hearing, L.G. admitted to using drugs for fifteen years and acknowledged that her "drug of choice" was PCP and marijuana. The judge granted L.G. supervised visitation with A.G., to be arranged directly with M.W. A few days later, on September 2, 2005, during a home visit with A.G. at M.W.'s home, A.G. reported to the worker that he was happy there and glad his mother could visit with him.
On October 3, 2005, a DYFS worker contacted the hospital to find out if L.G. had ever enrolled in the anger management classes the court had ordered. The hospital told DYFS that although L.G. had agreed to an appointment for September 26, 2005, she failed to appear and never called to explain her absence or cancel the appointment.
Shortly thereafter, DYFS informed L.G. that she should schedule an intake appointment in order to begin her inpatient drug treatment. Again, L.G. refused to do so, this time stating that she needed to resolve three outstanding criminal charges, including an old narcotics charge from March 15, 2005. She insisted that she wanted to address her criminal charges before beginning inpatient treatment. When the caseworker asked to meet with her to discuss these problems, she refused to meet with the caseworker and refused to tell the worker where she was.
On November 21, 2005, DYFS wrote to L.G. by regular and certified mail, requesting that she contact her caseworker as soon as possible to advise as to her current whereabouts and her plans for her son once she surrendered on the outstanding bench warrants. Approximately one week later, L.G. responded to that letter and agreed to meet the caseworker at Walker's home. During that meeting, although L.G. expressed concern for her son's well-being, she was unable to provide the worker with a definitive plan for him.
At the next compliance review hearing on December 7, 2005, the judge ordered that legal custody of A.G. remain with DYFS and physical custody with M.W. L.G. failed to appear in court despite having been notified of the court date. The judge ordered that L.G.'s visits with her son be suspended until she made herself available for services. During the hearing, the judge also ordered DYFS to begin exploring a permanent plan for A.G., including adoption, because M.W. stated she was not willing to adopt him. Less than a week later, M.W. changed her mind and informed DYFS that she would be willing to adopt A.G. if he could not be reunited with his mother.
In December 2005 and January 2006, L.G. was in contact with DYFS concerning possible enrollment in an inpatient drug treatment program. Before she was able to enroll, however, L.G. was again arrested. When a DYFS caseworker visited her at the Hudson County jail, L.G. told the worker that she had been "using heavy" prior to being incarcerated. She admitted to the use of PCP and marijuana.
On March 1, 2006, at the next compliance review hearing, the judge again ordered that legal custody of A.G. remain with DYFS and physical custody with M.W. In anticipation of the April 28, 2006 sentencing date on L.G.'s criminal charges, both Probation and DYFS began to explore the available options for inpatient drug treatment. Probation notified DYFS that L.G. "blew her interview" at one program. A second program rejected her because of "serious mental health issues" and L.G. herself had refused to consider a third program. To assist in placement, DYFS arranged for L.G. to undergo a psychological evaluation while confined at the Hudson County jail. On May 6, 2006, Dr. Manuel Iser, Psy. D., completed a psychological evaluation in which he recommended that L.G.: engage in long-term substance abuse treatment; be prohibited from regaining custody of A.G. unless she was able to remain drug-free for at least one year; engage in long-term individual psychotherapy to address family of origin issues, parental abandonment and her history of childhood physical abuse; and begin taking anti-depressant medication.
On May 10, 2006, L.G. was sentenced on the outstanding criminal charges. The judge ordered that she begin long-term inpatient drug treatment at Eva's Village on May 15, 2006. At the next compliance review hearing on July 12, 2006, the judge again ordered that legal custody of A.G. remain with DYFS and physical custody continue with M.W. Because A.E. was still non-compliant with prior court-ordered treatment, he was not deemed a suitable placement for his son. At the July 12, 2006 compliance review hearing, the judge ordered DYFS to file a complaint for guardianship both because of L.G.'s inability to address her drug problem and her repeated incarcerations. On September 19, 2006, DYFS filed the complaint for guardianship that is the subject of this appeal.
From May 15, 2006, until the guardianship trial began in February 2007, L.G. remained at Eva's Village where she participated in substance abuse treatment. In anticipation of trial, DYFS asked Dr. Frank Dyer, Ph. D., to conduct a psychological evaluation of L.G., as well as a bonding assessment of A.G. with both his mother and with M.W. During L.G.'s interview with Dyer, she acknowledged that she had been arrested more than twenty times as a juvenile, beginning at the age of eleven, and six or seven times as an adult, twice for assault and the balance for drugs. She explained that during her incarceration at the Edna Mahan Correctional Facility, she had spent most of her time in maximum security because of various infractions. She admitted to heavy use of marijuana and PCP during the past few years.
Dr. Dyer opined that L.G. was an "extraordinarily deprived and traumatized individual with a severe drug problem . . . anti-social personality disorder and probable borderline personality disorder as well." Based on the psychological testing he administered, he found her to be "a traumatized client with a history of aggressive behavior who is drug dependent, irresponsible, contemptuous of rules and laws, exploitive of others, and severely emotionally unstable." At the end of his psychological evaluation of L.G., Dyer opined:
[L.G.] is too emotionally unstable, impulsive, immature, and irresponsible to be entrusted with the care of a young child such as [A.G.]. She is at an extremely early stage in the process of recovery from drug dependence and remains at risk for relapse. Her drug of choice, PCP, which she described as giving her a "zoned out" feeling is actually known for inducing wild, irrational and frequently violent behavior in users. [L.G.] remains at risk for further anti-social behavior that would lead to a sudden disruption in the continuity of care for any child placed with her.
For that reason, Dyer recommended that DYFS "not consider [L.G.] as a viable candidate for custody of [A.G.]."
During his bonding assessment of A.G. and L.G., Dyer observed that A.G. appeared to be "somewhat awkward around his mother." Dyer noted that while L.G. interacted with her son in an appropriate manner, she was "without the typical enthusiasm or effusiveness of a birth parent who is generally bonded to the child." During the evaluation, A.G. reported that he enjoys living with M.W. and liked to play with his four cousins who also lived there.
Dyer opined that A.G. "does retain a very positive emotional tie to [L.G.], however, given the long periods that she was unable to care for him, it is unlikely that [A.G.] experiences an attachment to her in the sense that this term is discussed in the technical literature." Dyer also observed that A.G.'s "regression in the frequency of his bed-wetting when his visitation with his mother resumed, suggests very strongly that contact with her is anxiety-provoking rather than comforting for him, which is the opposite of what would be expected in the case of genuine attachment."
Dyer acknowledged in his testimony that if L.G.'s rights to A.G. were terminated and a complete cessation of contact were to occur, A.G. would suffer a painful loss. He commented, however, that A.G. "has already suffered such a loss many times during the periods where his mother . . . would disappear and he would be left in the care of others. So, it would not be something that would be unique in the child's experience." Dyer opined that if a termination of parental rights were to include continued contact between A.G. and his mother, there would be no negative psychological consequences to A.G. In contrast, if L.G.'s rights were not terminated, A.G. would suffer harm from protracted foster care and lack of permanency. Dyer also opined that uprooting A.G. from M.W. would have a destructive effect on him because of how long he had been in her care and the positive quality of her interactions with him.
Dyer also interviewed M.W. After interviewing her, Dyer repeated M.W.'s promise to adopt A.G. if A.G.'s bed-wetting could be controlled. Dyer endorsed that result and commented, "It is likely that [A.G.] would have his best chance at overcoming the negative affects of his chaotic early childhood" because "Ms. [W.] is attuned to [his] needs, affectionate toward him, and assuming a successful resolution of the bed-wetting situation, [is] committed to caring for him permanently." Based upon all of his observations, Dyer recommended that DYFS pursue adoption of A.G. by M.W.
At trial, Dyer was qualified as an expert and testified to the same opinions that we have already described. He also elaborated on some of his opinions. Discussing L.G.'s history of arrests, Dyer opined that such history is highly problematic because the likelihood of its continuation poses an enormous threat to L.G.'s ability to maintain a safe and stable environment for her son.
Dyer also expressed considerable concern about L.G.'s use of PCP because, according to his testimony, PCP is known to cause extreme emotional and behavioral reactions in users that can persist for as much as a year once the use of PCP is discontinued. Dyer noted that although L.G. was currently "stabilized" as a result of the "intensive support and structure of an inpatient drug program," he viewed her "as being at a very early stage in the process of recovery from drug abuse." He further opined, "it can't be emphasized strongly enough what a danger this drug PCP poses to users and to others around them, because of the extremely unstable behavior and psychotic symptoms that PCP produces . . . . "
Dyer opined that based upon the psychological testing he administered as well as his clinical interview and observations, L.G. is "somebody who really lacks the capacity to provide a stable, secure, nurturing environment for a child, and who lacks the capacity to serve as a positive role model for a child." In light of the chronicity and the severity of L.G.'s psychological, emotional and behavioral problems, he rated her prognosis for being able to effectively parent A.G. as "poor." He further opined that L.G. would need to remain in a program such as Eva's Village for another "year or two" until she would reach a point where her prognosis would no longer be poor.
DYFS also presented the testimony of three of its employees who explained the history of L.G.'s incarceration and drug treatment that we have already described. L.G. testified on her own behalf and admitted testing positive for PCP when she was approximately four to five months pregnant. She also acknowledged using PCP from September 1999, when A.G. was born, until the end of 2005. Although she planned to enter a transitional residential program at Eva's Village after she finished inpatient treatment there, she admitted that the time frame for her entry was "still up in the air." She also acknowledged that although she had completed a six-week program in anger management at Eva's Village, she had been forced to repeat the program after becoming involved in an altercation with another resident. She also admitted that despite being incarcerated for the first three years of her son's life, she had continued to engage in additional criminal activity, with resulting repeated incarceration, even after she regained custody of her son.
Dr. Gerard Figurelli, Ph. D., testified on L.G.'s behalf. He opined that her "drug problem was in early stages of a sustained remission." It was Dr. Figurelli's opinion that if L.G. refrained from using drugs, completed her inpatient treatment, continued to receive outpatient treatment, secured an adequate and stable living arrangement, and found employment, she would be able to provide adequate care for A.G. He went on to state that "the loss of [the mother-son] relationship for [A.G.] would have significant adverse impacts upon his development during later childhood and adolescence. Those would be significant and enduring impacts. There might be some short term impacts, specifically a separation anxiety."
In a comprehensive and well-reasoned oral opinion covering fifty-eight transcript pages, Judge Bovino concluded that DYFS had presented clear and convincing evidence to warrant the termination of L.G.'s parental rights, thereby satisfying the statutory standard set forth in N.J.S.A. 30:4C-15.1(a). The judge explained his reasoning in this fashion:
[L.G.] deprived [A.G.] of having a mother for most of his life, she is at risk of re-involvement, she is at risk of relapse, which, again, would interrupt, disrupt her ability to provide a safe and stable, nurturing home to the child. No question that this child has been harmed by the lack of parental responsibility.
. . . .
It's highly [doubtful] that [L.G.] is in a position to care for the child by herself at this time.
. . . .
I do [not] think anybody could legitimately argue that [DYFS] did not provide services to [L.G.].
. . . .
The third prong also requires [DYFS] to consider alternative[s] to termination. The transfer of custody returned to [L.G.] or [A.E.], kinship guardian[ship], or termination are the only options in this case. And I have clearly considered all of those options. The application [for] kinship guardian[ship] is the most appropriate plan for the child, based upon [M.W.'s] testimony, the statute, and perhaps case law.
. . . .
Criteria for kinship guardian[ship] is that the child, as I recall, should be over the age of 12, the child has to be with the caretaker for . . . a minimum of 12 months, there must be some emotional, if not blood relationship with the child, that the parents suffer from some inability, incapacity that will not be re-mediated in the foreseeable future.
. . . .
I certainly recognize that [M.W.'s] testimony is clear . . . that her plan would be to continue the status quo, a custody arrangement with [L.G.] having her parental rights, continued contact with [L.G.] until such time as [L.G.] is able to stabilize her life, restore herself to competency to be a parent, and then regaining custody of the child.
Having said all that . . . the most appropriate plan for [A.G.] is termination of the rights of [L.G.] and [A.E.], so that he can attain permanency with [M.W.]. [M.W.] is willing to adopt, wishes to adopt to prevent him from going to any other type of home.
On appeal, L.G. argues: (1) the trial court erred when it terminated her parental rights because the State failed to satisfy the applicable statutory standard by clear and convincing evidence; and (2) the trial court erred when it ruled that kinship legal guardianship was not appropriate. After the February 16, 2007 order was entered and while this appeal was pending, M.W. advised the Law Guardian that she now wishes to adopt A.G. During the trial, she expressed a preference for providing long-term care similar to that which would be provided under a kinship legal guardianship. Because her change of mind did not appear of record, we ordered a remand for the limited purpose of conducting a short supplementary proceeding to ascertain Walker's present intentions. During the remand proceeding, the court heard additional testimony from M.W., in which she expressed her desire to adopt A.G. and her lack of interest in kinship legal guardianship. We now address the claims L.G. had raised on appeal.
Due to the fact-sensitive nature of family cases in general and parental rights cases in particular, the scope of our review of the findings of fact made by a trial judge is limited. In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). When we review a trial judge's findings, we are obliged to accord deference to the trial court's credibility determinations and its feel of the case based upon its opportunity to see and hear the witnesses. Indeed, a trial court's findings are "binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).
"A parent's right to enjoy a relationship with his or her child is constitutionally protected." K.H.O., supra, 161 N.J. at 346. However, these parental rights are not absolute because the State has a parens patriae responsibility to protect minor children from serious physical or emotional harm. In re Guardianship of J.N.H., 172 N.J. 440, 471 (2002). When a child's physical or mental health is at stake, "a state is not without constitutional control over parental discretion." In re Adoption of Children by G.P.B., 161 N.J. 396, 414 (1999) (O'Hearn, J., concurring) (quoting Parham v. J.R., 442 U.S. 584, 603, 99 S. Ct. 2493, 2504, 61 L. Ed.2d 101, 119 (1979)). In some cases, in order to protect the child, the severance of the parent-child relationship may be required. N.J. Div. of Youth & Fam. Servs. v. A.W., 103 N.J. 591, 599 (1986).
In a termination case, "[t]he burden falls on the State to demonstrate by clear and convincing evidence that the natural parent has not cured the initial cause of harm and will continue to cause serious and lasting harm to the child." In re Guardianship of J.C., 129 N.J. 1, 10 (1992). DYFS must present sufficient evidence to demonstrate that the child's "best interests" will be substantially prejudiced if the parent-child relationship is preserved. A.W., supra, 103 N.J. at 603.
New Jersey courts follow a four-part standard in a termination case, as articulated in A.W. and codified in N.J.S.A. 30:4C-15.1(a). The statute authorizes a court to terminate parental rights if DYFS proves by clear and convincing evidence that:
(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.
These four statutory criteria are "not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." K.H.O., supra, 161 N.J. at 348.
A. The First Prong
The first prong of the statute requires DYFS to establish by clear and convincing evidence that the child's safety, health or development has been "endangered by the parental relationship." N.J.S.A. 30:4C-15.1(a)(1).
L.G. argues that the trial court incorrectly applied the first prong because DYFS failed to present any evidence demonstrating that her drug use "had actually endangered A.G." Second, she argues that the trial judge "incorrectly focused" on her absence from the life of her child and "should have instead focused on the manner that [she] acted when she was with A.G."
Applying that standard, we are satisfied that the proofs submitted by DYFS amply fulfilled the requirements of the first prong. In particular, the evidence of L.G.'s numerous incarcerations, one of which lasted for three years, demonstrates that she defaulted on her responsibility to rear and nurture her son during those lengthy periods. When she was not incarcerated, L.G.'s constant use of PCP caused her to be, as Dr. Dyer opined, "too emotionally unstable, impulsive, immature and irresponsible to be entrusted with the care of a young child such as [A.G.]." The judge accepted Dr. Dyer's opinion that L.G.'s incarceration and unrelenting drug use had substantially endangered her son's emotional well-being, an opinion that was also reached by Dr. Iser a year earlier. We are satisfied that L.G.'s drug use and repeated incarcerations not only deprived A.G. of the care, nurturing and sustenance to which he is entitled, but also caused him to be constantly moved from place to place because of his mother's problems. While his mother was locked up, A.G. was moved to the homes of three different relatives and was left for brief periods of time with two of L.G.'s friends as well. We are satisfied that the record amply supports the judge's conclusion that DYFS established the first prong of the statutory standard by clear and convincing evidence.
B. The second prong
The second prong requires DYFS to establish that the parent is unwilling or unable to eliminate the harm facing the child and that a delay in permanent placement will add to that harm. Here, we agree with the trial court's determination that only after nearly seven years of being told by DYFS, Probation, various substance abuse professionals and the court that she suffered from a serious substance abuse problem, did L.G. finally enter the Eva's Village drug treatment program in May 2006. Significantly, even then, she did not do so voluntarily. It was only to avoid incarceration that L.G. ultimately complied and entered Eva's Village. DYFS, unlike a Criminal Division judge, has no authority to jail a non-compliant parent. It is significant that fear of the permanent loss of her child was not enough to motivate L.G. to enter a drug treatment program. Only the threat of further incarceration produced that result. Nothing could be more telling of L.G.'s unwillingness to eliminate the harm facing her son than this.
Although by the time the trial began, L.G. had completed six months of inpatient drug treatment, the record contains uncontroverted evidence that she was still at the beginning stages of her recovery and that years more of treatment would be necessary before she would become a suitable caregiver for A.G.
Even L.G.'s own witness, Dr. Figurelli, did not offer an opinion that L.G. had eliminated the harm facing her son. At best, Figurelli opined that if she continued with her inpatient treatment, followed up with aftercare treatment upon her release, remained abstinent from any other drug use, refrained from further criminal activity, and was able to establish adequate and stable living arrangements and a consistent source of income, only then would L.G. be able to provide adequate care for her son. It does not escape our notice that Figurelli's opinion was premised upon six separate "ifs." A child should not be required to wait years for a parent to take the steps necessary to become a fit parent. N.J. Div. of Youth & Fam. Servs. v. C.S., 367 N.J. Super. 76, 114 (App. Div.) certif. denied, 180 N.J. 456 (2004). L.G.'s years of indifference to her son's well-being amply satisfy the second prong.
C. The third prong
To satisfy the third prong, DYFS is required to establish by clear and convincing evidence that it made "reasonable efforts" to help L.G. correct the circumstances that led to A.G.'s placement outside the home. This first part of the third prong requires DYFS to make "diligent efforts to enable [the parent] to become a functioning parent and caretaker." K.H.O, supra, 161 N.J. at 354. In the second portion of the third prong, DYFS must additionally demonstrate that alternatives to the termination of parental rights were considered and rejected. L.G. argues that DYFS "did not make any reasonable efforts whatsoever to assist [her], other than the minimal effort of providing a bus pass." She argues that the programs in which she enrolled "were under the auspices of a state court judge, not DYFS." Her argument mischaracterizes the record. The record demonstrates that DYFS provided L.G. with constant referrals for parenting courses, anger management, substance abuse evaluation, substance abuse treatment and psychological evaluations. Moreover, DYFS provided supervised visitation with A.G.
Although it is true that L.G.'s ultimate admission to Eva's Village was at the behest of a Criminal Division judge, rather than DYFS, we note that L.G. repeatedly spurned DYFS's ongoing and persistent efforts to help her enroll in drug treatment programs. We are thus satisfied that DYFS made not just the reasonable efforts required by the statute, but instead made extraordinary efforts, to provide services that would have helped L.G. avoid the ultimate loss of her son.
The second portion of the third prong of the statute requires the trial court to consider alternatives to termination of parental rights. We are satisfied that the trial court did exactly that. The judge rejected kinship legal guardianship and found that adoption by M.W. was "feasible and likely." Thus, the trial court fully considered alternatives to termination of parental rights.
D. The fourth prong
In the fourth prong, DYFS is required to prove that termination of parental rights "will not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4). Inherent in the fourth prong is a child's paramount need for a permanent and defined parent-child relationship. See J.C., supra, 129 N.J. at 26.
When the judge analyzed the proofs supporting the fourth prong, he relied heavily on Dr. Dyer's expert testimony. The judge's findings that A.G. has benefited considerably from the loving care and undivided attention that M.W. provides and that A.G. would suffer no lasting consequences if L.G.'s parental rights were terminated, especially if L.G. were permitted to maintain some contact with her son, are amply supported by evidence in the record. The record also demonstrates that M.W. is eager and willing to permit such continued contact, and that a strong bond exists between M.W. and A.G.
While A.G. will undoubtedly suffer from some degree of loss from the termination of L.G.'s rights, A.G. cannot and should not be expected to wait for his mother to "get herself together." C.S., supra, 367 N.J. Super. at 114. "A child is not a chattel in which a parent has an untempered property right." Id. at 110. Children must not languish indefinitely in foster care while a birth parent attempts to correct the conditions that resulted in an out-of-home placement. Id. at 111. "A child cannot be held prisoner of the rights of others, even those of his or her parents. Children have their own rights, including the right to a permanent, safe and stable placement. Ibid.
Under the circumstances presented here, the judge correctly rejected L.G.'s argument that she was in the process of "learning how to . . . become a functioning, stable member of society" and that she should be afforded more time in which to do so. As our opinion in C.S. makes abundantly clear, there comes a time when a child's need for permanency outweighs the parent's right to maintain a relationship with his or her child. Ibid. That time has now come. In light of C.S., Judge Bovino properly rejected L.G.'s argument that "children are resilient" and that A.G. will eventually recover from the years of separation caused by her past incarcerations and, we add, from her year or years in Eva's Village. Accordingly, we see no basis upon which to disturb the judge's finding that because of L.G.'s unfitness as a parent and M.W.'s ability to fully provide for A.G.'s needs, termination would not do more harm than good.
Thus, we hold that the judge's findings of fact and conclusions of law concerning all four prongs of N.J.S.A. 30:4C-15.1(a) are correct. We are satisfied, as was the trial judge, that termination of L.G.'s parental rights is warranted.
L.G. argues in Point II that the trial judge erred when he rejected kinship legal guardianship and instead terminated her parental rights, thereby freeing A.G. for adoption by M.W. We need not tarry long on this issue. In relevant part, the kinship legal guardianship statute provides that appointment of a kinship legal guardian should only be pursued when "adoption of the child is neither feasible nor likely." N.J.S.A. 3B:12A-6d(3). Here, the record on remand demonstrates that M.W. is strongly committed to adopting A.G. Therefore, his adoption is both "feasible" and "likely." L.G.'s arguments to the contrary lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
We did not request additional briefs subsequent to the remand because the issues on appeal remain the same as they were prior to the remand.
Our recent decision in Div. of Youth & Fam. Servs. v. D.H., ___ N.J. Super. ___ (App. Div. 2008) is distinguishable. There we held that where a grandparent was unwilling to adopt the child, but was willing to maintain custody under a kinship legal guardianship, termination of the mother's parental rights followed by select-home adoption by a stranger was reversible error. Id. at 2. Here, in contrast, A.G.'s great-aunt is eager to adopt him. Therefore, this case, unlike D.H., does not present the choice between kinship legal guardianship and adoption by a stranger that we faced there.
December 27, 2007
April 3, 2008