NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. K.B.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

K.B.,

Defendant-Appellant.

__________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF N.M.,

A Minor.

_________________________________

November 18, 2014

Submitted: November 12, 2014 Decided

Before Judges Reisner, Koblitz and Haas.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FG-10-105-13.

Joseph E. Krakora, Public Defender, attorney for appellant (Catherine Reid, Designated Counsel, on the briefs).

John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Andrea D'Aleo, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Louise M. Cho, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant K.B. appeals from the April 23, 2014 judgment of guardianship of the Family Part terminating her parental rights to her daughter N.M., born in 2008.1 Defendant contends the Division of Child Protection and Permanency (Division) failed to prove the third and fourth prongs of N.J.S.A. 30:4C-15.1a by clear and convincing evidence. The Law Guardian supports the termination on appeal as it did before the trial court. After reviewing the evidence presented to the trial court, and in light of prevailing legal standards and the arguments presented, we affirm.

We incorporate by reference the factual findings and legal conclusions set forth in Judge H. Matthew Curry's thorough written opinion. We add the following comments.

Besides N.M., defendant has two older children, both of whom have been adopted by defendant's mother (the maternal grandmother). The Division first became involved with defendant in 2006, after she was arrested for purchasing drugs while caring for her one-year-old son.

In December 2011, the Division received a referral that defendant was in the hospital after "she went on a three[-]week heroin binge." The Division developed a case plan for defendant, which required that she attend substance abuse treatment. Defendant eventually complied with the plan and produced a series of negative urine screens. However, she relapsed in April 2012, when she tested positive for opiates. The Division recommended that defendant move in with her parents, but the maternal grandmother told the Division that she could not care for N.M.2 in addition to defendant's two other children. Therefore, the Division removed the child from defendant's care and placed her with a foster family. N.M. has lived with her foster family since that time and the family wishes to adopt her.

Prior to placing N.M. with her foster family, the Division explored alternatives to non-relative foster placement. As we stated, the maternal grandmother declined to assume care for the child, and a maternal aunt was ruled out after she also refused to act as a resource parent.

The court ordered defendant to complete a substance abuse evaluation, engage in an intensive outpatient treatment program, and submit to random urine screens. Through the ensuing months, however, defendant continued to test positive for a variety of drugs, including heroin, cocaine, morphine, and Oxycodone. She also refused to consistently attend any of the treatment programs the Division arranged for her. In January 2013, defendant was arrested for drug possession and being under the influence.

During this period, the maternal aunt and her husband3 advised the Division they would like to be considered as resource parents for N.M. The Division arranged for a psychological evaluation of N.M., and the psychologist made several recommendations designed to ensure a smooth transition to the aunt's care. After two visits in the Division's office, N.M. went to the aunt's home to spend a weekend. The aunt reported the visit did not go well because N.M. misbehaved and bit another child. N.M. also repeatedly asked for her foster mother during the visit. The maternal aunt advised the Division she had three children of her own to care for and, based on N.M.'s special needs, she concluded she could not act as a resource parent for the child.

At an April 2013 permanency hearing, the trial court approved the Division's plan to terminate defendant's parental rights so that N.M. could be adopted. The court ordered the Division to reach out to the maternal aunt to reassess her intentions. The maternal aunt advised the Division she was again interested in caring for N.M.

The Division arranged for psychological evaluations for the aunt and uncle. The psychologist recommended that N.M. participate in unsupervised weekend visitation with the couple and that neither defendant nor the maternal grandmother be present during the visits. The psychologist believed this arrangement would enable the aunt and uncle to focus during the visits on the issues related to parenting a special needs child. The Division also began to arrange for services for the couple and N.M. in Pennsylvania.

However, in June 2013, the aunt and uncle expressed concerns regarding the placement of N.M. in their home. They advised that transportation to and from the weekend visits; having to comply with court-ordered services, including weekly visits by a caseworker; and weekly therapy for N.M. and other recommended services, created a stressful environment for their family and was a financial hardship. When the couple did not respond to the Division's request for a firm decision regarding their desire to serve as resource parents, the Division ruled them out as a placement alternative.

During this time, defendant continued to abuse drugs. Following a motor vehicle accident in June 2013, defendant was arrested and charged with driving while under the influence.

Dr. Elayne Weitz, Psy.D., who was qualified as an expert in psychology at trial, conducted a bonding evaluation of N.M. and her foster parents. Dr. Weitz found that the child perceived the foster parents as parental figures and was securely bonded to them. She stated that the foster parents "provide continuity of care. They're reliable, predictable, nurturing, stimulating, provide safety and protection, [and] give [N.M.] the therapies she needs." Dr. Weitz opined that N.M. would never "recover emotionally" if she were removed from the foster parents and that removing her, "combined with her severe speech problems[,] would just cause severe psychological problems."

Dr. Weitz also conducted an evaluation of defendant. Based on defendant's severe substance addiction problems, Dr. Weitz concluded that K.B. was not able to provide N.M. with a permanent, safe, and secure home and was unable to provide the care needed for a special needs child. Following a bonding evaluation between defendant and N.M., Dr. Weitz testified that the child viewed defendant "more as [a] playmate" than as a "parental figure[.]" Dr. Weitz stated the child would not suffer serious and enduring harm if she were separated from defendant.

Dr. Maureen Santina, who was also qualified as an expert psychologist, conducted a bonding evaluation between N.M. and her foster parents. Like Dr. Weitz, Dr. Santina found that N.M.

looked to [her foster parents] for comfort, reassurance, security, she clearly identified with them. She appeared well incorporated into their family, looked to them for physical affection, nurturance, guidance and, therefore, her relationship with them was of the quality and caliber of a parental attachment.

Dr. Santina also conducted a psychological evaluation of the maternal aunt. During the evaluation, the aunt minimized the separation issues N.M. would face if placed with her family and did not appear to recognize that the child had special needs that would be difficult to address. Dr. Santina also found that the aunt remained ambivalent about assuming care of the child. She opined that, if the aunt later changed her mind and N.M. "had to be removed and placed again," this "would be devastating" for the child.

At the trial, the maternal grandmother testified that she supported placing N.M. with the maternal aunt. She stated she could be a "secondary option" if the placement with the aunt did not work out. The maternal grandmother conceded she had previously told the Division she was unable to care for the child. The maternal aunt did not testify.

Defendant testified and conceded she had a serious addiction problem and that she had failed to attend the treatment programs provided by the Division. On the last day of the trial, defendant refused to submit to a urine screen. Defendant asked that the child be placed with either the maternal aunt or the maternal grandmother. Defendant did not present any expert testimony.

In his forty-six page written opinion, Judge Curry fully detailed defendant's serious and ongoing drug addiction problem, which prevented her from safely caring for N.M. The judge also recounted the numerous services the Division provided to defendant and her inability to take full advantage of them to overcome her substance abuse issues.

Judge Curry found that both the maternal grandmother and the maternal aunt "refused to become placement options." The grandmother always declined to assume care of the child. While the maternal aunt initially expressed an interest, her first weekend visit with the child did not go well and the aunt and her husband "withdrew themselves as a placement option for their niece indicating they were not equipped to handle her special needs." Although the aunt later asked to be reconsidered as a resource parent, she "refused to comply with the placement transition plan and complained that the process was taking too long . . . [and] that the weekend visitation was too costly . . . ." As a result, the judge concluded the Division properly ruled out the aunt as a possible resource parent.

At trial, the maternal grandmother stated she would be interested as a "secondary option" for the child. In finding that this was not a viable option for N.M., the judge found

[I]n light of all of the circumstances, the time that [N.M.] had been in foster care, the [grandmother's] failure to offer herself as an option on either occasion that the [maternal aunt was] ruled out and her overall reluctance and inability to consider the potential harm to [N.M.,] all led to ruling [the grandmother] out as a possible placement option.

Finally, the judge concluded that "[t]he uncontroverted expert testimony of Dr. Weitz and Dr. Santina[,] in this matter clearly reveals [N.M.] is securely attached to her foster parents and she would suffer severe and enduring harm if that attachment were severed." The judge found that, while N.M. has an "attachment" to defendant, it "can only be described as insecure" and, therefore, N.M. would not suffer permanent harm if defendant's parental rights were terminated. The judge further found that "the foster parents have displayed the insight and ability to provide [N.M.] with the support and care she needs to alleviate the harm and will assist her with dealing with the loss through empathy and unconditional love if her relationship with [defendant] is severed." This appeal followed.

On appeal, defendant argues the Division did not sufficiently explore the maternal grandmother and the maternal aunt as alternatives to termination. She also asserts the judge erred in finding that termination would not do more harm than good.

The scope of our review of a trial court's decision to terminate parental rights is limited. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012). "Because of the family courts' special jurisdiction and expertise in family matters," we accord deference to the trial court's fact-finding and the conclusions that flow logically from those findings of fact. Cesare v. Cesare, 154 N.J. 394, 413 (l998). We are further obliged to defer to the trial judge's credibility determinations and the judge's "'feel of the case' based upon the opportunity of the judge to see and hear the witnesses." N.J. Div. of Youth & Family Servs. v. A.R.G., 361 N.J. Super. 46, 78 (App. Div. 2003) (citing Cesare, supra, 154 N.J. at 411-12; Pascale v. Pascale, 113 N.J. 20, 33 (l988)), aff'd in part and modified in part, 179 N.J. 264 (2004).

When the trial court's findings of fact are supported by adequate, substantial and credible evidence, they are binding on appeal. See Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (l974). Reversal is required only in those circumstances in which the trial court's findings are "so wide of the mark that a mistake must have been made." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (internal quotation marks and citation omitted).

Judge Curry's opinion tracks the statutory requirements of N.J.S.A. 30:4C-15.1a, accords with In re Guardianship of K.H.O., 161 N.J. 337 (1999), In re Guardianship of D.M.H., 161 N.J. 365 (1999), and N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591 (1986), and is supported by substantial and credible evidence in the record. F.M., supra, 211 N.J. at 448-49. After appraising the record in light of the findings of fact contained in the judge's written opinion, we find nothing that requires our intervention. Judge Curry carefully reviewed the relevant evidence and fully explained his reasons in a logical and forthright fashion. We affirm substantially for the reasons the judge expressed in his comprehensive and well-reasoned written opinion. We add the following brief comments concerning defendant's argument that N.M. should have been placed with either the maternal grandmother or maternal aunt.

There is no presumption in favor of placement with a relative. N.J. Div. of Youth & Family Servs. v. M.F., 357 N.J. Super. 515, 528-29 (App. Div. 2003) ("[A]lthough 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."). A child is entitled to the Division's best efforts to be placed with a relative and any siblings and to have regular visitation with any siblings, if that is "consistent with the health, safety and physical and psychological welfare of the child and as appropriate to the individual circumstances of the child's physical or mental development." N.J.S.A. 9:6B-4b, d, f.

The record demonstrates the Division thoroughly considered the possibility of placing N.M. with the maternal grandmother or the maternal aunt. However, the grandmother almost immediately ruled herself out as a possible placement because she was already caring for defendant's two older children. While the maternal aunt expressed an interest in caring for N.M., she withdrew that interest after the initial visit did not go well. When she later renewed her interest, the Division attempted to work with her, but the aunt again stated she was not interested in assuming care for the child in light of the requirements she would be required to meet. Significantly, the aunt did not testify at the trial or subsequently express any desire to serve as a resource parent. The maternal grandmother's trial testimony indicated that she still did not want to be the child's primary guardian.

Under these circumstances, the record fully supports Judge Curry's finding that the Division clearly and convincingly established it made reasonable efforts to secure a relative placement for the child. N.M. has lived with her foster parents since 2012 and is firmly and securely bonded to them. The foster parents want to adopt her and give her the permanency she deserves. Thus, termination of defendant's parental rights will not cause N.M. more harm than good.

Affirmed.

1 N.M.'s father is unknown.

2 N.M. has special needs and requires the care of a speech therapist.

3 N.M.'s maternal aunt and uncle live in Pennsylvania.