NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. J.D.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5400-11T3

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,1

Plaintiff-Respondent,

v.

J.D.,

Defendant-Appellant,

and

C.B,

Defendant.

_____________________________________

IN THE MATTER OF THE GUARDIANSHIP OF

A.M.B. and N.B.,

Minors.

______________________________________

May 14, 2013

Submitted April 17, 2013 Decided

Before Judges Grall and Accurso.

On appeal from Superior Court of New

Jersey, Chancery Division, Family Part,

Passaic County, Docket No. FG-16-10-12.

Joseph E. Krakora, Public Defender, attorney

for appellant (Angelo G. Garubo, Designated

Counsel, on the brief).

Jeffrey S. Chiesa, Attorney General,

attorney for respondent (Andrea M.

Silkowitz, Assistant Attorney General,

of counsel; Kimberly Gunning-Marcantonio,

Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law

Guardian, attorney for minors (Todd Wilson,

Designated Counsel, on the brief).

PER CURIAM

J.D. is the biological mother of A.M.B. and N.B., and she appeals a judgment terminating her parental rights to the children. The judgment also terminates the parental rights of the children's father, C.B., but he has not appealed.

J.D. contends that the Division of Youth and Family Services (Division) failed to establish that its efforts to place her children with relatives were reasonable; the trial court failed to consider alternatives to termination; and that the evidence was inadequate to support the conclusion that termination of her parental rights would not do her children more harm than good. N.J.S.A. 30:4C-15.1(a)(3)-(4). She does not claim the trial court erred in determining that her children were endangered by her parental relationship with them or in concluding that she is unwilling or unable to eliminate the harm. N.J.S.A. 30:4C-15.1(a)(1)-(2).

The Division and the children's Law Guardian contend that there was clear and convincing evidence establishing each of the four statutory criteria that are essential to support the conclusion that termination of J.D.'s parental rights is in the best interests of her children. N.J.S.A. 30:4C-15.1(a)(1)-(4). We agree and affirm for the reasons stated by Judge Portelli as amplified here. The judge's factual findings "are supported by 'adequate, substantial and credible evidence' on the record," N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)), and his legal conclusions are wholly consistent with New Jersey Division of Youth & Family Services v. K.L.W., 419 N.J. Super. 568, 577 (App. Div. 2011).

J.D. gave birth to A.M.B. in February 2010. Both A.M.B. and J.D. tested positive for marijuana when the baby was born. Within a day of her birth, A.M.B. had symptoms of withdrawal from methadone attributable to J.D.'s use of prescribed methadone during her pregnancy. A.M.B. was given morphine to address her withdrawal, which required the baby's hospitalization until she was weaned from the morphine.

J.D.'s first visit with a caseworker for the Division was in the hospital, and J.D. admitted to using marijuana and abusing Xanax while taking prescribed methadone during her pregnancy. But J.D. had a plan to address her addictions in place. She advised the caseworker that she had spoken with a counselor at the Paterson Community Counseling Center about enrolling in an inpatient "Mommy and Me" program at Renaissance House in Newark who had made arrangements for her admission.

A.M.B.'s father, C.B., and her maternal and paternal grandmothers were aware and supportive of J.D.'s plan to go to Renaissance House with the baby. Both grandmothers said they were willing to do what they could to help the new parents. When A.M.B. was born, C.B. had recently lost his job and was receiving unemployment benefits, and J.D. was receiving public assistance. The parents were living in a basement apartment that was clean, without hazards and equipped with things the baby would need. J.D.'s relatives, including one of her cousins, had organized a baby shower so that the couple would have things for the baby. In short, despite A.M.B.'s condition, prospects for her future seemed bright.

J.D. went to Renaissance House as planned. By March 8, 2010, A.M.B. was ready for release and joined J.D. at Renaissance House. They did well there until early July, when J.D. tested positive for cocaine and left the program. Had J.D. stayed, she would have completed the program in about a week and been able to leave with A.M.B., who was then about five months old.

While staying at Renaissance House, J.D. had been provided with group counseling, lectures, parenting group sessions, NA meetings and individual counseling once a week. She also had methadone detox treatment and was taking Suboxone. In contrast, C.B., who had denied substance abuse, tested positive for cocaine. J.D.'s discharge summary from Renaissance House indicates a "fair" prognosis, explaining that J.D. was returning to a relationship with an active user of drugs and had a minimal sober support system.

When J.D. left Renaissance House, she went to her mother's home. A caseworker visited her there and suggested that J.D. return to and complete the program, but J.D. complained about how the staff treated her and A.M.B. and refused. J.D.'s mother agreed to have J.D. and A.M.B. stay with her but only temporarily; she noted that she did not want to enable J.D. The Division approved the temporary plan despite the fact that J.D.'s mother was living in a one-room attic apartment equipped with a single twin bed and without a crib for the baby.

Within three days, J.D. left her mother's home and took A.M.B. with her. C.B. said they could not come to his apartment because he was sharing it with a roommate who was the subject of active arrest warrants. He contacted friends and relatives but did not find anyone willing to shelter his family. On J.D.'s agreement to maintain her sobriety, she and A.M.B. were placed in a motel. The Division arranged for supervision by ECAP, an emergency child aid program. ECAP's supervisors' reported observations of J.D.'s interactions with A.M.B. were generally positive but their observations about J.D.'s interactions with her mother were not.

The Division's initial approval of J.D. and A.M.B. living with J.D.'s mother had been conditioned on all three adults agreeing to submit urine samples for drug screens. The results of those tests were obtained while J.D. and A.M.B. were living in the motel. The maternal grandmother had told the caseworker that her sample would be positive for prescribed Xanax and methadone, but the sample she submitted was not urine. The samples J.D. and C.B. provided were positive for alcohol and cocaine.

Upon receipt of the results of the drug tests, the Division removed A.M.B. from J.D.'s care, and on July 27, 2010, the Division filed a complaint and order to show cause to obtain custody and care of A.M.B. A.M.B. has not been in the care of J.D., C.B. or a relative since that removal.

The Division filed a complaint for guardianship and termination of parental rights on July 29, 2011. Between A.M.B.'s removal in July 2010 and the Guardianship trial in May 2012, both parents tested positive for drugs on multiple occasions, missed appointments for evaluations, services and visitation, and were admitted to but either discharged from or dropped out of multiple treatment programs arranged by the Division. Because J.D. does not challenge the Division's effort to provide her with the services she needed to address the problems that led to A.M.B.'s removal, there is no reason to detail the Division's efforts or J.D.'s actions and omissions demonstrating her unwillingness or inability to benefit from them.

It is important to note, however, that J.D. continued her pattern of non-compliance even after she learned she was seven weeks into her second pregnancy in late January 2011. Although J.D. did not have a prescription for methadone or other controlled substances at the time, on March 8 she tested positive for multiple drugs, including methadone and heroin. She was discharged from one of the several drug programs she attended on March 17. She also tested positive for methadone on March 21 and 24 and April 7, 13, and 20. J.D. submitted at least two of those positive samples when she appeared for supervised visitation with A.M.B., and on one of those occasions, the supervisor noted J.D. acted as if she lacked the energy to keep up with A.M.B. Despite J.D.'s continued use of controlled substances, the Division continued its efforts to help her overcome her addiction during her second pregnancy.

When N.B. was born in September, he suffered from withdrawal and was treated as his sister A.M.B. had been. Consequently, he was hospitalized for five weeks. At that time, A.M.B. was living with foster parents, and those parents cared for both children for a few days before realizing that they were unable to meet the needs of both children. By October 29, 2011, the Division found experienced foster parents who were willing and able to care for them together. Those foster parents intend to adopt A.M.B. and N.B.

On March 5, 2012, the Division's expert psychologist, Dr. Robert Kanen, Psy. D., concluded that A.M.B. was securely attached and bonded with her foster parents and that N.B. was in the process of developing a bond with them. In his opinion, both children would suffer serious and enduring harm if not allowed to remain with these adults who were already providing the care and stability the children needed and were willing to do so on a permanent basis.

Dr. Kanen had assessed the bond between the children and their parents in November 2011. He found that both parents were very positive, interactive and appropriate with the children and that the children were comfortable with them. Nevertheless, in his opinion, A.M.B. had no more than an insecure attachment with J.D. and C.B. and did not view either as a parental figure. With respect to N.B., who was just under three months old, Dr. Kanen noted that because of his age and his parents unavailability to him on a daily basis, N.B. had no way to develop a bond or attachment with them.

During this meeting with Dr. Kanen, the parents claimed to be very interested in raising their children but at the same time acknowledged that they had not addressed their drug problems and admitted that they were supposed to be in treatment programs but had not started them. J.D. said, "I've been wasting time."

The parents told Dr. Kanen they did not have any family members who were willing or able to take the children. In Dr. Kanen's opinion the children would not suffer enduring harm if their relationship with J.D. and C.B. were severed and the parents had not made advances toward gaining the capacity to care for the children and becoming a source of stability in their lives.

The following month, December 2011, C.B. was admitted to a residential treatment program, which he left after a few days, and J.D. missed three consecutive opportunities for supervised visitation with her children. At that point, the Division discontinued supervised visitation.

J.D. and C.B. did not identify a relative or anyone else willing to care for A.M.B. or N.B. until March 12, 2012. Prior to that C.B. had suggested his mother, brother and aunt. But the paternal grandmother declined to assume responsibility on the ground that her health did not permit it, and C.B.'s brother said he was not interested. His aunt said she could not care for the children. The Division had ruled out the children's maternal grandmother because of her housing and because she had submitted a substance other than urine when she submitted to the drug screen. As previously noted, J.D.'s mother indicated that she was willing to provide only temporary assistance to J.D. after she left Renaissance House in July 2010.

On March 20, 2012, J.D.'s cousin contacted the Division and indicated that she and her husband were willing to provide the children with a home and adopt them. This cousin was one of the relatives who organized the baby shower before A.M.B.'s birth, and she saw A.M.B. in the hospital and on one other occasion after that. She had not had any other contact with A.M.B., however, and she had never seen N.B. At trial, J.D.'s cousin testified that she had assumed that A.M.B. had been in foster homes since the Division obtained custody.

The Division checked the respective backgrounds of J.D.'s cousin and her cousin's husband and found no problems, but the Division discovered that the cousin's mother, with whom they were living, had two prior findings of substantiated child abuse. The Division did not rely on the substantiated abuse, however, in denying their request to assume responsibility for the children. The Division relied on Dr. Kanen's March 5, 2012 report stating his opinion that the children would be harmed if they were removed from the home of their foster parents. On that basis, the Division determined that placement with J.D.'s relatives at this late date would not be in the children's best interests. The Division's letter advising the couple of that determination is dated April 13, 2012, one month before the first day of the termination trial.

The letter explained that the couple had twenty days to appeal the determination, and they contacted a lawyer. It is not clear whether the lawyer filed an appeal, because the court concluded that his testimony on that point was immaterial.

The judge determined that the Division established that termination of parental rights is in the best interests of A.M.B. and N.B. In his oral decision, the judge set forth detailed findings of fact and explained why the evidence clearly and convincingly established each of the four criteria essential to his conclusion that termination is in the children's best interests. N.J.S.A. 30:4C-15.1(a)(1)-(4). There is no question that the judgment "is based on findings of fact which are adequately supported by evidence," R. 2:11-3(e)(1)(A), and on a proper application of the statute as interpreted by our courts.

That said, J.D.'s arguments challenging the adequacy of the Division's efforts to locate relatives, the court's consideration of alternatives to termination and the balance of harm and good this termination will bring to the children do not require extended discussion beyond that included in the trial judge's oral decision. R. 2:11-3(e)(1)(E). Brief comments on J.D.'s objections to the Division's and the judge's consideration of relatives are all that is required.

The unfortunate reality is that prior to March 20, 2012, the Division had no reason to know that there were any relatives willing or able to care for the children and there were no alternatives to termination for the judge to consider. And by the time J.D.'s cousin contacted the Division, the children had and were developing a bond with foster parents who were willing to adopt them.

In K.L.W., we concluded that the Division failed to comply with its statutory obligation to contact relatives of a child in its custody. 419 N.J. Super. at 577-83; see N.J.S.A. 30:4C-12.1. But this case is not comparable to K.L.W. in any way.

In K.L.W. the Division, at the mother's request, had declined to contact the maternal grandparents even though the Division knew that those grandparents were caring for the mother's other children. Id. at 571-72. We held that N.J.S.A. 30:4C-12.1 "does not permit the Division to embark on a course set for termination of parental rights and adoption by a foster parent without at least first exploring available relative placements." Id. at 580.

The Division did not make that mistake in this case. Here, the maternal and paternal grandmothers initially expressed their respective interest in doing what they could to help the new parents care for their first child. But within weeks of the baby's birth, the maternal grandmother was not willing to open her home to J.D. and her baby on more than a temporary basis. Her position was quite understandable given the accommodations she had to offer and the fact that she had provided a substance other than urine after agreeing to submit to a drug screen. Similarly, the paternal grandmother, who also expressed willingness to do all she could to help, and C.B.'s brother and aunt all recognized and reported to the Division their inability to care for A.M.B.

In K.L.W., we made it clear that our holding had no relevance to cases in which relatives unknown to and not reasonably discoverable by the Division come forward at the eleventh hour, as J.D.'s cousin did in this case. We cautioned:

Our conclusion that the Division violated its statutory obligation in this case should not be misunderstood to provide a last minute defense to termination for a parent who identifies a relative, previously unknown and not reasonably known to the Division, after the guardianship complaint has been filed. Delay of permanency or reversal of termination based on the Division's noncompliance with its statutory obligations is warranted only when it is in the best interests of the child. See [N.J. Div. of Youth & Family Servs. v. M.F., 357 N.J. Super. 515, 527 (App. Div. 2003)]; In re Guardianship of J.R., 174 N.J. Super. 211, 221-25 (App. Div.), certif. denied, 85 N.J. 102 (1980) (affirming a judgment of guardianship even though the Division failed to provide a parent with visitation, because termination was in the child's best interests).

[K.L.W., supra, 419 N.J. Super. at 581.]

The Division's decision to reject J.D.'s cousin's late offer to care for the children, grounded on Dr. Kanen's opinion that they would be harmed if removed from the home of their foster parents, was wholly consistent with the foregoing guidance and with the Division's obligation to act in the children's best interests. Accordingly, the trial court did not err by failing to conclude that placement with J.D.'s cousin and her husband was a viable alternative to termination. Indeed, because the foster parents and J.D.'s cousin and her husband indicated a willingness to adopt, kinship legal guardianship would not have been available as an alternative to termination. See N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 513 (2004).

J.D.'s objections to the trial court's balancing of the relative harm and good termination will likely bring to J.D.'s children lack sufficient merit to warrant any discussion beyond what Judge Portelli stated in his oral decision of May 17, 2012. R. 2:11-3(e)(1)(E).

A

1 On June 29, 2012, the Governor signed into law A-3101, which reorganizes the Department of Children and Families. The reorganization includes the renaming of the New Jersey Division of Youth and Family Services as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.