NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. S.R.R. and K.L.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4531-08T44531-08T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

S.R.R.,

Defendant,

and

K.L.,

Defendant-Appellant.

IN THE MATTER OF THE GUARDIANSHIP

OF E.A.S. AND M.M.S., MINORS.

________________________________________________________________

 

Submitted March 1, 2010 - Decided

Before Judges Lisa and Baxter.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-203-08.

Yvonne Smith Segars, Public Defender, attorney for appellant (Miles Lessem, Designated Counsel, on the briefs).

Paula T. Dow, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ayelet Hirschkorn, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minors E.A.S. and M.M.S. (Melissa Vance, Assistant Deputy Public Defender, on the brief).

PER CURIAM

K.L. appeals from the April 3, 2009 order terminating her custodial rights to two girls, E.A.S. (born March 1, 1998) and M.M.S. (born December 15, 2001). K.L. is not a relative of these children, but is a friend of their biological mother and the godmother of E.A.S. The order appealed from was entered in a guardianship action in which the parental rights of the mother, who defaulted, were terminated as to both children. The order also terminated the parental rights of the unknown father or fathers.

Appellant had obtained custody of E.A.S. in 1998, when E.A.S. was two or three months old. She obtained custody of M.M.S. on April 1, 2003, when M.M.S. was about one-and-one-half years old. A legal custody order in her favor was entered on November 6, 2003. However, her custodial status ended on May 15, 2006, when the Division of Youth and Family Services (DYFS or Division) obtained legal custody and placed the children in foster care because of substantiated neglect by appellant. When the guardianship proceeding was ultimately commenced, appellant was included as a defendant. She was represented by counsel throughout the proceedings.

The judge ultimately decided that, based upon the evidence presented at a multi-day hearing, the best interest of these children would not be served by returning them to appellant's custody. The ultimate determination in the proceedings was that guardianship was awarded to the Division with a permanency plan of select home adoption. The Law Guardian joined the Division in the trial court in requesting that appellant's custodial rights should be terminated, and again joins with the Division on appeal in urging us to affirm the trial court decision.

Appellant argues that the judge's findings of fact and conclusions of law were inadequately stated, in violation of Rule 1:7-4(a). She also argues that the four-prong best interest test of N.J.S.A. 30:4C-15.1a, applicable to termination of parental rights, should have been applied with respect to her, and that the Division did not satisfy its burden under that test. Finally, she argues that the statutory disqualification of N.J.S.A. 30:4C-26.8d(3), which precludes her from being a resource parent or adopting the children because of a prior conviction for third-degree aggravated assault, should not have been applied to her. For the first time on appeal, she raises several equitable arguments to avoid the applicability of this statutory disqualification, including estoppel, waiver, and laches. We reject appellant's arguments and affirm.

I

The Division's involvement with the family of the two children involved in this appeal began in 1993, before either of them were born. Their biological mother, S.R.R., has a total of six children. S.R.R. had a long history of illegal drug involvement. Some of the referrals to DYFS resulted in substantiation of abuse or neglect by S.R.R., and the Division provided services for her.

In 1998, S.R.R. gave physical custody of E.A.S. to appellant. On April 1, 2003, S.R.R., expecting that her home was going to be the subject of a drug raid, gave appellant custody of two of her children, M.M.S. and her brother, O.S. S.R.R. later retrieved O.S., but left M.M.S. in appellant's custody. This custodial arrangement continued for a number of years thereafter.

Appellant sought services from the Division in 2003. A background check revealed that appellant had been convicted in 1995 of third-degree aggravated assault, N.J.S.A. 2C:12-1b(2), and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5. Notwithstanding these convictions, the Division requested a waiver of the statutory disqualification, which was signed by a caseworker, but never approved by Division supervisory personnel. On November 6, 2003, with S.R.R.'s consent, an order was entered transferring legal custody of the two girls from S.R.R. to appellant.

On April 28, 2004, the Division received its first referral regarding appellant, alleging that she was under the influence of alcohol when she took E.A.S. to the dentist. The allegation was not substantiated. A second referral was received on February 9, 2006, alleging that E.A.S. was not being picked up on time from an after school program, and that the various individuals who picked her up smelled like alcohol. This allegation was also unsubstantiated. Indeed, during this timeframe, Division reports revealed that the children were well cared for and in good health, and on February 8, 2006, the Division concluded that the case should have been closed.

On May 11, 2006, appellant was injured when she fell down stairs as a result of her extreme intoxication. Appellant was taken to the hospital by her two nineteen-year-old children and E.A.S. Blood testing revealed a .323% blood alcohol content. Appellant's children left, and no one could be found to care for E.A.S., as a result of which hospital staff notified DYFS. Neglect was substantiated, and both girls were removed from appellant's custody. They were placed with relatives of appellant. Appellant was referred to a drug and alcohol evaluation. On May 15, 2006, the Division initiated an action for appointment of a law guardian. Appellant's relatives were not able to continue providing care for the girls. The Division placed them in foster care.

On June 14, 2006, appellant completed a case plan with the Division requiring her to complete a drug and alcohol evaluation and abide by its findings, as well to undergo a psychological evaluation. Visitation was included in the plan, and reunification of the girls with appellant was under court consideration.

Appellant began a rehabilitation program at St. Michael's Medical Center on June 15, 2006. She tested positive for marijuana on three occasions in June and July 2006. The odor of alcohol was detected on her breath on July 11, 2006, and appellant admitted she began drinking at 9:00 a.m. Subsequent urine screens in November and December 2006 were negative.

Dr. Mark Singer, a psychologist, evaluated appellant on September 18, 2006. He concluded that appellant minimized her alcohol abuse issues and found significant alcohol abuse and dependency issues. He also concluded that appellant had an immature understanding of appropriate child discipline and that her psychological disposition limited her ability to address the needs of others. In his view, if the children were "placed back into the home without these factors being addressed, there would be a significant risk that the events that brought about [the Division's] involvement would reoccur." He recommended that appellant participate in individual psychotherapy, maintain appropriate housing and obtain appropriate employment, and complete the substance abuse treatment program and a parenting skills program. He also recommended continued supervised visitation and that the children participate in a psychological evaluation. He did not recommend reunification at that time.

The Division approved a family counseling program at St. Michael's on September 26, 2006. On December 12, 2006, appellant completed parenting classes with the "Strengthening Families Program." Throughout the latter half of 2006, appellant's visitation with the children went well.

However, an unfavorable visitation incident occurred on December 29, 2006. Appellant arrived for the visit at Tri-City, which was overseeing visitation, and exhibited red eyes and slurred speech. When she was told the visit had to be cancelled, she became very angry and abusive, using profane language with the Tri-City staff. The visitation was allowed to proceed, and appellant continued using profanity. She attempted to induce the children to complain about their foster home, but the children informed her that there was nothing wrong in the home. Eventually, E.A.S. began to cry. Appellant left the visitation about one-half hour early after it failed to go her way. DYFS recommended that visitation be cancelled until a meeting could take place with appellant to discuss this incident. Appellant was referred to anger management counseling, and she completed the program on July 28, 2007.

The Division arranged for another psychological evaluation of appellant with Dr. Minerva C. Gabriel on February 14, 2007. Dr. Gabriel noted that appellant had good reality testing, did not exhibit evidence of a thinking disorder or other psychiatric condition, and was pleasant and cooperative. However, appellant acknowledged her continued use of alcohol, despite her participation in Alcoholics Anonymous meetings through St. Michael's. Dr. Gabriel concluded that appellant had problems with impulse control and anger and recommended continuation of her alcohol abuse program at St. Michael's. Dr. Gabriel further recommended further parenting skills training, individual psychological counseling, random substance screenings, and completion of her anger management training. She also recommended continued supervised visitation, but did not recommend reunification. Finally, she recommended a six-month reevaluation before custody of the children should be further considered.

On March 2, 2007, another unfavorable visitation incident occurred. Appellant arrived forty minutes late at Tri-City. When informed that because of her lateness the children would not be transported to the visit, appellant became angry and began using profanity. In response, Tri-City terminated appellant's visitation privileges that day.

As a result of this incident, appellant was referred for a psychiatric evaluation by Dr. Ronald Crampton, M.D., which took place on April 11, 2007. She acknowledged her continuing regular consumption of alcohol. Dr. Crampton diagnosed appellant with a mood disorder, depressive disorder, anxiety disorder, and alcohol dependence with physiological dependence. He recommended referral for further psychiatric assessment and treatment through appellant's primary physician and continuing substance abuse interventions. He opined that reunification with the children was not appropriate and should not be considered until appellant demonstrated a reasonable period of documented sobriety and adherence with all treatments and services.

Dr. Crampton also evaluated the girls on April 25, 2007. He recommended psychotherapy to deal with their interpersonal and emotional issues, as well as an evaluation by a school Child Study Team. Although he noted that the children missed appellant, he advised caution in considering further visitation, which should be guided by appellant's progress with her treatment plan. The Division indicated that visits would continue under strict supervision and referred appellant to the Family Connections Reunity House Program and a parenting skills program. However, appellant failed to show up for two intake appointments at the Family Connections program.

By this time, the girls had lived in several different foster homes. They had now come under the care of Ms. H., who informed the Division on May 9, 2007 that appellant picked up E.A.S. from school without her permission or the Division's. E.A.S. confirmed this and told DYFS workers that appellant encouraged her to steal from Ms. H.'s home. On May 11, 2007, the children expressed their preference to stay at the home of Ms. H. rather than attend a visit with appellant.

On May 11, 2007, the Division developed a new case plan for appellant, requiring her to undergo an evaluation and follow up with behavioral health services at New Hope Behavioral Health, and submit to a substance abuse assessment and treatment as recommended. Appellant did not sign the case plan and an order was entered on May 17, 2007 suspending visitation and ordering substance abuse treatment. Appellant's progress in an anger management program was deemed unsatisfactory, and appellant failed to attend several substance abuse evaluation appointments.

During the summer of 2007, visitation was reinstated. Appellant participated in a parenting skills program. Although her attendance was unsatisfactory, her performance when she attended was satisfactory. By August 2007, the children expressed their wish to live with appellant. A November 12, 2007 report stated that appellant was very nurturing toward the children and there was a clear bond between them and appellant.

However, during the fall of 2007, appellant missed several family visits and parenting classes, as well as behavioral sessions at New Hope, where her attendance was described as "poor." The Division also had difficulty reaching appellant to secure a urine screen. Appellant tested positive for opiates on November 14, 2007.

Another permanency hearing was held on December 4, 2007. The court approved the Division's plan of termination of parental rights followed by adoption. The court found that appellant had not fully cooperated with the behavioral health services she had been offered.

On March 10, 2008, the Division filed the guardianship complaint. On April 7, 2008, the court ordered DYFS to provide therapeutic visitation between appellant and the children, to investigate increasing appellant's visitation time, and to assess appellant's home. The next day, appellant came to the Division office with her attorney and a family friend. The caseworker observed that appellant was very incoherent, speaking with a slur, could not answer simple questions, and could not walk a straight line.

At an unannounced home inspection, the Division discovered approximately nine people in appellant's home that looked like "addicts." The home was described as "cluttered and dirty." Rabbit feces were observed on the floor, and there was no furniture for the children.

A July 16, 2008 inspection revealed that appellant's apartment had been cleaned up and there were no safety or health hazards present. On August 16, 2008, the Division received appellant's fingerprint results and a report revealing her prior third-degree aggravated assault conviction. The Division advised the court that, pursuant to N.J.S.A. 30:4C-26.8d(3), appellant was no longer eligible to have the children returned to her care.

On August 27, 2008, DYFS received a referral stating that appellant had no running water in her home and was using a bucket as a bathroom and obtaining water from neighbors. The referent also stated that there were drug dealers selling drugs out of the home, there was no food present, and appellant was babysitting children while intoxicated. Upon investigation, appellant admitted to drinking alcohol and not having running water. The home appeared to be roach infested. Appellant denied the presence of drug dealers or that she had been caring for any children.

In September 2008, appellant tested positive for alcohol in a drug screen at New Hope, with a blood alcohol content of .388%. New Hope also reported on October 20, 2008 that appellant's attendance had been sporadic. Between August and December 2008, appellant attended thirty-nine sessions and was absent for fifty-two. On October 29, 2008, appellant again tested positive for alcohol, with a blood alcohol content of .122%.

At a September 19, 2008 permanency hearing, the court faulted DYFS for not timely assessing appellant's criminal background, but found that the Division had made efforts to reunite the children with her. The court found that appellant failed to complete the services offered and accepted the Division's permanency plan of termination of parental rights followed by select home adoption. The court scheduled a best interest hearing for March 9, 2009 to address the potential for appellant to obtain legal custody.

The children were living with Ms. H. during this time. The Division requested a progress report from Family Intervention Services, Inc. (FIS), which reported on December 11, 2008 that the children had been encouraged by appellant to disobey their foster parents and that appellant was not a positive role model. The report also noted that appellant had confused the children by informing them that they would be returning to her care. FIS further expressed the concern that appellant encouraged the children to engage in antisocial behavior, including stealing.

Based on this report, as well as others, the court ordered appellant to attend a psychological evaluation. On February 4, 2009, Dr. Andrew Brown conducted the evaluation. He reported that appellant admitted drinking through December 2008. She also stated that she was taking medication for a mood disorder, but denied problems with her mood prior to removal of the children. Based upon the administration of psychological tests, Dr. Brown noted that appellant scored in the "marked" range for Negative Affect and Psychotic Features, and she did not endorse any items on the "Alcohol Problem" measure. He found that appellant's potential for emotional and behavioral problems was greater than average, and he recommended a sustained course of mental health treatment.

Other testing revealed that appellant had few friends, spent most of her free time alone, often felt ashamed of herself, worried frequently, and had poor insight. He placed her in the "borderline" range of intellectual functioning. He concluded that appellant failed to demonstrate an understanding of the connection between excessive alcohol consumption and compromised parenting and that she was not ready to parent the children. He opined that her prognosis for parenting was poor.

Dr. Brown also conducted bonding evaluations between the children and appellant and between the children and Ms. H. The bonding evaluation with appellant occurred on September 16, 2008. Dr. Brown found a positive attachment and concluded that appellant was the psychological parent of the children. However, his interview with appellant raised questions about her psychological status, and thus whether the bond lent itself to "aberrant personality development."

The bonding evaluation with Ms. H. occurred on March 4, 2009. Dr. Brown found an emotional attachment between Ms. H. and the children, that a bond was developing at a rapid pace, and that the children expressed a desire to remain with Ms. H. He also opined that it was in the best interest of the children to remain with Ms. H.

Dr. Brown later testified in accordance with his reports. In his testimony, he noted that appellant had difficulty keeping appointments, that she may suffer from a mood disorder, and that she had an ongoing need for mental health services. He opined that appellant was unable to stop drinking, had poor insight into her alcohol abuse problem, and did not understand the impact of her alcohol use on her ability to parent.

Dr. Brown also testified that, although there was a bond between the children and appellant, she communicated poor moral values to the children through this bond. In contrast, he opined that the developing bond with Ms. H. was moral in nature and that the children could perceive that Ms. H. was consistent and could provide an environment that was emotionally nurturing and stable. He was of the view that individual counseling and family therapy would mitigate any harm accompanying termination of the children's contact with appellant. He also noted that by March 2009, both children expressed their desire to stay with Ms. H.

Dr. Brown also testified that he would not recommend returning the children to appellant because her psychological problems remained unresolved, she would not resolve her alcohol abuse in the near future, and placement with Ms. H. would give the children safety and stability. He also recommended against returning the children to appellant in the event placement with Ms. H. should fail, noting that appellant's behaviors had not changed and she continued to demonstrate poor insight.

Appellant engaged the services of Dr. Gerard Figurelli to conduct a psychological evaluation. He conducted the evaluation on October 11, 2008. He noted appellant's report that she had been diagnosed with and treated for bipolar disorder and had experienced depression. Appellant also reported a history of seizure disorder. She told Dr. Figurelli her last alcohol use was around 2005, and that her last marijuana use was "years ago." She said that none of her urine specimens had tested positive for illicit substances while at New Hope, but she did believe she had a problem with alcohol and was "undecided" as to whether she would use it again in the future.

Psychological testing revealed narcissistic traits, but Dr. Figurelli opined that such traits alone would not preclude adequate parenting capacity. Testing also revealed that appellant had a history of marijuana and alcohol abuse, but that her alcohol abuse appeared to be in remission. Dr. Figurelli found that appellant displayed limited insight and understanding of the nature of her mood disorder, and although her judgment was adequate, she had a history of self-defeating judgment related to her substance using behavior. He also found a need for continued substance abuse and mental health treatment.

Dr. Figurelli concluded that if appellant could adequately address her psychological problems, remain abstinent from substance abuse, and comply with all mandatory services, then she would possess the capacity to adequately parent the children. He opined that it was in the best interest of the children to be with appellant as long as she presented a viable placement option, and that she would offer stability as long as she did not engage in substance abuse.

Dr. Figurelli also conducted bonding evaluations between appellant and the children and between Ms. H. and the children. At the October 23, 2008 bonding evaluation with appellant, he noted appellant's consistently appropriate behavior with the children and that there appeared to be a sense of family connectedness. However, he was of the view that appellant could benefit from ongoing parenting instruction. He concluded that the children had a significant attachment to appellant, recognizing her as a significant parental authority. He recommended that as long as appellant presented a viable permanent placement option, the best interest of the children would be served by preserving this relationship.

During the February 25, 2009 bonding evaluation with Ms. H., Dr. Figurelli noted that the children shared a strong bond with Ms. H. and regarded her as a significant parental authority in their lives. However, Ms. H. related to the children primarily in an authoritarian manner with a neutral tone, while the interaction with appellant was more spontaneous and affectionate. Dr. Figurelli was concerned that Ms. H. expressed ambivalence regarding adopting the children given their history of stealing.

Dr. Figurelli also individually interviewed the two girls. They both said they wanted to remain with Ms. H. Nevertheless, he noted that despite their attachment to Ms. H., emotional conflicts existed regarding the security of the placement and the possibility of separation of the girls from each other (which Ms. H. had apparently threatened if the girls did not behave). In light of those concerns, Dr. Figurelli recommended that as long as appellant remained abstinent, placement with her offered the more stable environment for the children and would be in their best interest.

Dr. Figurelli testified on behalf of appellant at the hearing. He admitted that it would be risky to place the children with appellant immediately, given her continuing elevated tendency toward alcohol abuse. However, he adhered to the position that appellant had the capacity to parent the children if she continued her treatment at New Hope and developed an appropriate plan for avoiding relapses.

The best interest hearing occurred over several days in March 2009. As we have stated, the Division produced the expert testimony of Dr. Brown and appellant provided the expert testimony of Dr. Figurelli. The Division also presented the testimony of the current caseworker, Charles Walsh, who described the services offered to appellant and noted three separate psychological recommendations against reunification due to appellant's continuing alcohol abuse. He said he was not aware of appellant's aggravated assault charge when he received the case, but once it was discovered, he promptly advised the court that the Division could no longer proceed with any consideration of approving appellant for adoption.

Walsh also noted the inappropriateness of returning the children to appellant because of her continued alcohol use and because she had not attained a sufficient level of parenting skills, as well as because of her aggravated assault conviction. He also stated that the children had separately advised him that they wished to stay with Ms. H. and, from his perspective, the girls were bonding with Ms. H. and were receiving a good level of care in that home. However, he acknowledged that when the Division received Dr. Brown's report of March 10, 2009, there was concern that Ms. H. and the children needed additional services, including counseling and parenting skills classes. He said the Division would arrange a psychological evaluation of Ms. H.

Appellant was present at the hearing and represented by counsel. She chose not to testify. On April 3, 2009, the court issued its decision, finding that it would be in the best interest of the children if the Division's plan were implemented rather than if the children were returned to appellant. The court acknowledged appellant's commitment to the children, but determined that adoption by Ms. H. was a preferable plan. Alternatively, the court found appellant was disqualified under N.J.S.A. 30:4C-26.8d(3) from being either a resource parent or an adoptive parent due to her aggravated assault conviction. In addition to terminating the parental rights of the biological parents of the children, the court terminated appellant's custodial rights and dismissed her from the litigation.

Over the next several months, the Division attempted to implement services to support the placement with Ms. H. However, Ms. H. was not responsive. On July 2, 2009, the Division learned that Ms. H. had beaten M.M.S. with a belt and hit E.A.S. when she tried to intervene. The girls acknowledged being physically stricken by Ms. H., although they denied the use of a belt. As a result of this incident, the Division removed the children from Ms. H. and placed them in a different foster home.

A second permanency hearing was conducted on July 7, 2009. Walsh testified that a number of different families were interested in taking the girls. B.R., the foster mother who had taken the children after they were removed from Ms. H.'s home, indicated a willingness to take the children on a permanent basis. A report from the school the children were attending indicated that while the children had been in B.R.'s custody, there had been an improvement in cleanliness and overall happiness. The Law Guardian said the children seemed happy in B.R.'s home. The court approved the Division's plan of select home adoption, with an understanding that the current placement with B.R. would be supported with services. The court again found that the children could not be returned to appellant based on her mental health and alcohol issues, which would create a risk of harm for the children.

On May 15, 2009, appellant filed a notice of appeal from the April 3, 2009 order terminating her custodial rights.

II

The Division is the State agency charged with "the care, custody, guardianship, maintenance and protection of children." N.J.S.A. 30:4C-2(a). To fulfill this charge, the Division is authorized to create and implement rules and regulations. N.J.S.A. 30:4C-4(h). Such regulations are "designed to insure that all children requiring foster care are placed in safe homes with nurturing substitute families who can meet their individual needs." State ex rel. J.B., 293 N.J. Super. 485, 489 (Ch. Div. 1996). The Division is better equipped to make placement decisions than courts, and therefore, "a judge must be careful not to usurp the function delegated to [the Division]." In re Guardianship of J.T., 269 N.J. Super. 172, 187 (App. Div. 1993).

The Child Placement Review Act (CPRA), N.J.S.A. 30:4C-50 to -65, "establishes procedures for administrative and judicial review of each child's placement in order to ensure that the placement serves the best interest of the child." Div. of Youth and Family Servs. v. D.H., 398 N.J. Super. 333, 338 (App. Div. 2008); N.J.S.A. 30:4C-51. The Family Part is charged with reviewing and approving permanency plans proposed by the Division. N.J.S.A. 30:4C-61.2a. At such a proceeding, all alternatives for the long-term permanent placement of the child must be considered and evaluated. N.J.S.A. 30:4C-61.2c. The judge must determine which plan most effectively "ensures the safety and health and serves the best interest of the child." N.J.S.A. 30:4C-51.

In making the "best interest" determination, the court must focus on a child's safety, happiness, physical, mental and moral welfare. Fantony v. Fantony, 21 N.J. 525, 536 (1956). To this end, a court is to give weight to the factors set forth in N.J.S.A. 9:2-4c. V.C. v. M.J.B., 163 N.J. 200, 228 cert. denied, 531 U.S. 926, 121 S. Ct. 302, 148 L. Ed. 2d 243 (2000). The analysis should be structured by considering all relevant evidence in the record, including the Division's recommendations, together with information obtained from other pertinent sources relating to the welfare of the child. See N.J.S.A. 30:4C-61; see also In re C.R., 364 N.J. Super. 263 (App. Div. 2003), certif. denied, 179 N.J. 369 (2004).

Upon appellate review, such findings by the trial judge are considered binding "when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). In particular, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare v. Cesare, 154 N.J. 394, 413 (1998).

Applying these principles, we are satisfied that the record contains substantial credible evidence to support the decision denying appellant custody of the children. The record establishes that appellant has a long history of alcohol abuse, with which she has continued to struggle, notwithstanding assistance from DYFS through various services over the course of several years. Her psychological problems also have not been resolved. Both children stated that they have witnessed appellant drinking alcohol in their presence. Her frequency of intoxication has been great, and her degree of intoxication at times has been severe.

After the children were removed from appellant's care, the Division made substantial efforts and provided extensive services in efforts to assist in reunification. Appellant's participation in and compliance with these services were unsatisfactory. Appellant also failed to provide proper moral guidance to the children and was a poor role model. Moreover, appellant has not shown a capacity to maintain a suitable home for the children.

The court credited the testimony of Dr. Brown, who concluded that appellant was not ready to parent the children. Even appellant's psychological expert, Dr. Figurelli, acknowledged that appellant continued in her tendency toward alcohol abuse, and that it would be risky to place the children with her immediately. Referring to the recommendations of both doctors, the court noted that appellant "has been either unwilling or unable to remedy the challenges that she has in parenting the children specifically related to her alcohol use and bipolar condition and need for treatment." The court therefore concluded that "the Division's plan at this time of select adoption will meet the children[']s[] needs" and that "[t]he children would be at risk if returned to [appellant]."

The selection of the Division's plan over placement with appellant was based on substantial credible evidence. The court balanced one plan against the other, and the conclusion that appellant's challenges presented a greater threat to the interests of the children was supported by the record.

Although the children were eventually removed from Ms. H.'s care due to the incident involving violence, DYFS presented a new plan for select home adoption at the second permanency hearing on July 7, 2009. The court again balanced the new plan against placement with appellant. The conclusion that appellant's alcohol and psychological problems warranted a continued finding in favor of the Division, considering the risk of harm placement with appellant posed, was supported by the record.

III

We are also satisfied that the court applied the correct legal standard in making its determination as to appellant's custodial rights. The relationship between a child and the person seeking custody determines the standard to be used in deciding a custody dispute. Watkins v. Nelson, 163 N.J. 235, 253 (2000). In the context of guardianship cases, a "parent" has been defined to mean a "biological or adoptive parent," and does not include an individual who is merely in an "in loco parentis status to the child." N.J. Div. of Youth and Family Servs. v. J.C., 346 N.J. Super. 277, 279 (App. Div.), certif. denied, 172 N.J. 178 (2002).

Although typically such non-natural parents are not entitled to the same custodial rights as natural parents, so-called "psychological parents" may have standing to contest custodial rights. P.B. v. T.H., 370 N.J. Super. 586, 590, 604-05 (App. Div. 2004). "Psychological parents" are those that satisfy four conditions which were laid out by this court in its opinion in V.C. v. M.J.B., 319 N.J. Super. 103, 118 (App. Div. 1999), aff'd, 163 N.J. 200 (2000). In P.B., we applied the psychological parent concept in holding that a non-relative neighbor could retain custody of a child. P.B., supra, 370 N.J. Super. at 605. In doing so, we applied a "best interest" standard to determine the optimal custody placement of the child. Ibid.

In a termination of parental rights proceeding, the Division must prove four specific statutory elements provided by N.J.S.A. 30:4C-15.1a by clear and convincing evidence to determine if termination is in the best interest of the child. In re Guardianship of K.H.O., 161 N.J. 337, 347-48, 363 (1999); In re Guardianship of D.M.H., 161 N.J. 365, 375-76 (1999). However, if such a termination of parental rights is not at stake and the proceeding instead involves a simple determination of custody, a court should analyze the matter according to the usual "best interest" of the child standard. See Kinsella v. Kinsella, 150 N.J. 276, 318 (1997); C.R., supra, 364 N.J. Super. at 278-79. In contrast to a termination of parental rights proceeding, the standard of proof for an ordinary best interest hearing is preponderance of the evidence. Comas v. Comas, 257 N.J. Super. 585, 592 (Ch. Div. 1992) (quoting Fiore v. Fiore, 49 N.J. Super. 219, 225 (App. Div.), certif. denied, 28 N.J. 59 (1958)).

Finally, we find unpersuasive appellant's reliance on the two-step test set forth in Watkins for determination of a custody dispute between a third party and a parent. See Watkins, supra, 163 N.J. at 253-54. This analysis is necessary only where the custody dispute is between a third-party and a natural parent. That is not the case here, and that standard does not apply.

We are satisfied that the court properly applied the best interest test. We reject appellant's contention that the court failed to satisfy its obligations under Rule 1:7-4(a) by not adequately articulating its factual findings and legal conclusions. Over the course of several proceedings, the court found that appellant failed to remedy her alcohol abuse problem and address her bipolar disorder. The court concluded that placing the children in appellant's care would not be in their best interest and would place them at risk. In making this ruling, the court stated that it found persuasive Dr. Brown's testimony that appellant continued to have dependency issues with alcohol and challenged abilities. The court also found that the Division's plan for select adoption would better meet the children's needs.

IV

Finally we address the issue involving appellant's prior conviction for third-degree aggravated assault. A person is disqualified from being a resource family parent or from being an adoptive parent who has been convicted of, among other crimes, second or third degree aggravated assault. N.J.S.A. 30:4C-26.8d(3). In addition to finding that the best interests of the children would not be served by placing them with appellant based upon the reasons we have previously described, the court alternatively found that she was disqualified from placement under this statute. Appellant did not raise equitable defenses at trial, but she raises them now. She argues that the Division knew for several years about the conviction, but chose not to enforce it sooner, instead permitting her to go through the procedures geared toward her regaining custody of the children. She thus urges estoppel, waiver, and laches as bars against enforcement of the statute.

We will not address these arguments raised for the first time on appeal. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Further, they are lacking in substantive merit under the circumstances of this case. Finally, the statutory disqualification was only an alternative basis for terminating appellant's custodial rights, as a result of which, even if we agreed with appellant on this issue, the outcome of this appeal would be the same.

 
Affirmed.

(continued)

(continued)

30

A-4531-08T4

RECORD IMPOUNDED

March 29, 2010