New Jersey Division of Child Protection and Permanency v. Q.G.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2560-12T1

New Jersey Division of Child

Protection and Permanency,

Plaintiff-Respondent,

v.

Q.G.,

Defendant-Appellant.

______________________________

In The Matter of the

Guardianship of J.L.J.,

A Minor.

______________________________

January 23, 2014

Argued January 7, 2014 - Decided

Before Judges Reisner and Carroll.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FG-01-15-11.

Carleen M. Steward, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Steward, on the brief).

Cassandra E. Rhodes, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Rhodes, on the brief).

Nancy P. Fratz, Assistant Deputy Public Defender, argued the cause for minor J.L.J. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Fratz, on the brief).

PER CURIAM

Defendant Q.G. appeals from an October 19, 2012 order terminating parental rights to his son J.L.J., who was born in June 2009. We affirm, substantially for the reasons stated in Judge Patricia M. Wild's written opinion issued on September 12, 2012, finding that the Division satisfied the four prongs of the best interests test, N.J.S.A. 30:4C-15.1a. Having reviewed the record, we conclude that the judge's factual findings are supported by sufficient credible evidence, R. 2:11-3(e)(1)(A), and in light of those findings her legal conclusions are unassailable.

The facts can be summarized relatively briefly. Both parents are developmentally disabled, and the Division took custody of the child shortly after his birth, due to the parents' manifest incapacity to care for him. The child has been with the same foster family since he was four months old. The foster parents are committed to adopting him. At the guardianship trial, the foster parents both testified that they were committed to letting the child maintain a relationship with his biological family. The child is now four and one-half years old. On this record, there is no dispute that he has been emotionally bonded with the foster parents since at least age two, and he would suffer "serious and enduring" emotional harm if that bond were severed.

The birth parents' past, present, and future unfitness is not in dispute. While they love J.L.J., due to their significant intellectual limitations neither of them is capable of acting as his parent. The child's mother made an identified surrender of her parental rights in favor of the child's foster family. Defendant, who has an I.Q. of forty-six, essentially concedes that he is incapable of caring for the child. However, he contends that the Division of Child Protection and Permanency (Division) failed to satisfy the third prong of the best interests test, N.J.S.A. 30:4C-15.1a(3), and failed to comply with N.J.S.A. 30:4C-12.1, by delaying consideration of an available relative placement (a paternal great aunt), and instead placing the child with a foster family.

There is no dispute that, when the Division first obtained custody of the child, it investigated and ruled out approximately ten possible relative placements. However, at the time, the Division did not consider the great aunt. It is unclear exactly when the agency became aware of her interest in the child, but in June 2010, a Family Part judge ordered the Division to consider the great aunt. The Division eventually determined to place the child with the great aunt in July 2011, but changed that decision about two weeks later, based on the child's age, the length of time he had lived with the foster family, and his bond with them.

The great aunt and her husband, the great uncle, are now in their early sixties. While they clearly love the child, the record supports a conclusion that placement with them is not in the child's best interests. The child is not bonded with them, and is strongly bonded with the foster family. The great uncle has end-stage renal failure and has already had one failed kidney transplant.

There is also evidence that the great aunt is hostile to the foster parents and would be unable to help the child overcome the trauma of separation from them. At a bonding evaluation with Dr. Joanne Schroeder, she demonstrated an unwillingness to interact with the foster parents, even for the purpose of making the child more comfortable during the visit. She told Dr. Schroeder that if she had custody of the child, "she would not continue a relationship between [J.L.J.] and the foster parents." At the guardianship trial, the great aunt stated briefly that she would allow visits but she thought it would be counterproductive to the child's interests.

The trial judge found as fact that the great aunt "had no plan to allow [the child] to have contact with the foster parents," a step necessary to any transition of custody between the foster family and the great aunt. The judge noted that neither of the expert witnesses testified that the great aunt and her husband could mitigate the serious psychological harm the child would suffer if he were taken from the foster parents. The record supports the trial judge's finding that the great aunt "is not capable of mitigating the harm that would result upon [the child's] removal from the foster parents."

Pursuant to N.J.S.A. 30:4C-12.1, when the Division takes custody of a child, it must promptly search for relatives to care for the child:

In any case in which the Department of Children and Families accepts a child in its care or custody, including placement, the department shall initiate a search for relatives who may be willing and able to provide the care and support required by the child. The search shall be initiated within 30 days of the department's acceptance of the child in its care or custody. The search will be completed when all sources contacted have either responded to the inquiry or failed to respond within [forty-five] days. The department shall complete an assessment of each interested relative's ability to provide the care and support, including placement, required by the child.

[Ibid.]

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

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

 
(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;
 
(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;

 
(3) The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and

 
(4) Termination of parental rights will not do more harm than good.

[N.J.S.A. 30:4C-15.1a.]

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

In a recent opinion, New Jersey Division of Youth and Family Services v. J.S., 433 N.J. Super. 69 (App. Div. 2013), we addressed the Division's obligation to search for available relative placements, as required by N.J.S.A. 30:4C-12.1, and the relationship of that requirement to the third and fourth prongs of the best interests test set forth in N.J.S.A. 30:4C-15.1a.

As this court has previously observed, 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." N.J. Div. of Youth & Family Servs. v. K.L.W., 419 N.J. Super. 568, 580 (App. Div. 2011). An important objective of the statutory scheme is "prompt identification of relatives and notice to them of the results of the investigation and the potential for termination if the child remains in foster care." Ibid. "So understood, the Division's compliance with N.J.S.A. 30:4C-12.1 is not in any way inconsistent with the goal of permanency." Ibid. "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." Id. at 581 (citing N.J. Div. of Youth & Family Servs. v. M.F., 357 N.J. Super. 515, 527 (App. Div. 2003)).

That said, although the Division has a statutory duty to evaluate relatives as potential caretakers, there is no presumption favoring the placement of a child with such relatives. As we have explained, "although there are statutory provisions in Title 30 and Title 9 which refer to relative placements, the statutes do not create a presumption in favor of such placement." M.F., supra, 357 N.J. Super. at 528-29. Rather, "[a] presumption of custody only exists in favor of a natural parent as opposed to placement with relatives or foster parents." Id. at 528 n.3 (citing Watkins v. Nelson, 163 N.J. 235, 246 (2000)).

[J.S., supra, 433 N.J. Super. at 81-82.]

Applying those principles here, we agree with defendant that the Division should have acted sooner to evaluate the great aunt. But that does not change the result in this case. As previously noted, by the time the Division began focusing on the great aunt as a possible placement, the child had bonded with the foster family, who were the only parents he had ever known. As a result, although the Division may not have fully complied with its obligation to consider available relatives, N.J.S.A. 30:4C-12.1, changing the child's placement was not in his best interests.

As in J.S., this case does not present a choice between the parent and a foster family. Hence, the legal presumption in favor of parental custody does not apply, and there is no presumption favoring the placement of the child with the great aunt. J.S., supra, 433 N.J. Super. at 82. Defendant cannot care for the child and has no parental bond with him. Both potential placement families wish to adopt the child, and in view of defendant's unfitness, it is clear that whether the child is placed with relatives or stays with the foster family, defendant's parental rights will be terminated. See N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 513 (2004). The only question is where the child will be placed after termination. Under these circumstances, we conclude that the Division properly ruled out the great aunt based on the child's best interests.

We understand that the Division initially expressed its intention to transfer the child from the foster family to the great aunt, based on an acknowledgement that it mistakenly failed to consider her earlier and in consideration of the Division's policy in favor of placement with relatives. However, the Division quickly changed that decision after further considering the child's bond with the foster family and his best interests. As heartbreaking as that decision must have been for the great aunt, it was correct.

To be clear, we in no way condone the Division's error in overlooking the great aunt, and then losing her paperwork twice. But child placement is not a bureaucratic exercise involving the mechanistic implementation of general policies. If the Division makes a mistake of this type, it is not appropriate to remedy the error by removing a child from a long-time foster placement without considering the child's best interests.

According to Division Area Supervisor Charles Jones, whom the judge found credible, when he realized that Division staff were about to move the child without having made a best interests determination, he reevaluated the case and determined that the child should stay with the foster family. Contrary to defendant's argument, we find nothing nefarious in that process. By the time the Division was ready to move the child, he had bonded with the foster family, and on this factual record, it was not in his best interests to place him with the great aunt.

Affirmed.