NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. L.M.

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NOT FOR PUBLICATION WITHOUT THE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.

L.M.,

Defendant-Appellant,

and

J.G.,

Defendant.

________________________________________

IN THE MATTER OF THE GUARDIANSHIP OF

D.S.M., a minor.

_____________________________________________________

November 12, 2015

Submitted October 5, 2015 Decided

Before Judges Messano and Maven.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG 04-140-14.

Joseph E. Krakora, Public Defender, attorney for appellant (Theodore J. Baker, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa Dutton Schaffer, Assistant Attorney General, of counsel; Michelle D. Perry-Thompson, Deputy Attorney General, on the brief),

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor D.S.M. (Lisa M. Black, Designated Counsel, on the brief).

PER CURIAM

Defendant L.M. appeals from the Family Part's order terminating his parental rights to his son, D.S.M. (Daniel).1 Daniel's mother, J.N.G. (Jane), executed a general surrender of her parental rights during the guardianship trial and has not participated in this appeal. We set forth the salient facts and procedural history.

I.

When Daniel was born on July 10, 2012, both he and Jane tested positive for heroin. Plaintiff, the Division of Child Protection and Permanency (the Division), substantiated a finding of neglect and opened a case to provide services. During the ensuing months, while Daniel remained in the hospital, the Division had difficulty contacting Jane and defendant. Jane missed several appointments for substance abuse evaluations, and the Division could locate no relatives willing to take custody of Daniel. On October 2, 2012, the Division filed a verified complaint seeking care, custody and control of the child. Daniel was discharged from the hospital on October 10 and placed with resource parents who could attend to his special medical needs. He remained in this placement throughout the litigation.

Defendant did not visit Daniel until January 2013 and did not appear in court until February. During a visitation that month, defendant told the Division's caseworker that he intended to speak to his mother in Florida and ask whether she would care for Daniel. In the following months, defendant failed to comply with court orders requiring him to undergo substance abuse evaluation, attend counseling and complete parenting skills classes.

Defendant was incarcerated on September 27, 2013, when the court conducted a permanency hearing.2 By then, the Division had ordered an interstate investigation of defendant's parents, H.M. (Herb) and N.M. (Nancy), and Daniel's aunt, L.M. (Lois), all of whom resided in Florida. The judge ordered the Division to check on the status of Florida's investigation, and he approved the Division's plan for termination of parental rights followed by adoption. Additionally, on September 27, 2013, Herb and Nancy filed a complaint seeking custody of Daniel under an FD docket.

Lois indicated that she could not accept custody of Daniel because of limited space in her home. Consequently, on November 13, 2013, the Division ruled out Lois as a possible placement. On the same day, the Division informed Herb and Nancy that Child Protective Services in Florida had not approved them as a possible placement because of Herb's 1966 conviction for assault. Herb, however, had already applied for an exemption, and he and Nancy had completed thirty hours of foster care classes in Florida. Pursuant to the court's prior order, the Division filed a guardianship complaint on November 21, 2013.

In March 2014, Herb and Nancy appeared at a case conference, asked that custody of Daniel be immediately transferred to them, and orally moved to intervene in the guardianship trial. A second judge, who was now handling the case, advised that a written motion needed to be filed. However, the judge ordered that Herb and Nancy be permitted supervised visitation with Daniel, and she increased the visitation time at the following case conference.

Herb and Nancy apparently filed a formal motion to intervene.3 On April 29, 2014, after considering oral argument, the judge denied the request. Nonetheless, the judge explained that she was "obliged to consider the overall best interest o[f] the child," and that would require her to "fully and fairly evaluate the interests of the paternal grandparents in caring for their grandchild." The judge further stated that she would be "hearing the FD custody complaint at the same time as [she heard] the FG[,]" and she would "relax the normal rules" and permit Herb and Nancy "to be present in the court room during the full FG trial." However, the judge also made clear that Herb and Nancy would not have the right to call witnesses or testify themselves. The judge also noted that she would hear the FD case "right after" the FG, and not make a decision in the FG case "until the custody case is completed." In response to a request for clarification by the deputy attorney general, the judge reiterated that Herb and Nancy could not participate in the FG but rather "just be present."

Dr. Linda Jeffrey, a psychologist, performed a bonding evaluation between Daniel, and Herb and Nancy. Dr. Jeffrey found that Daniel "relate[d] to his paternal grandparents as familiar pleasant visitors." However, the child "did not relate to them as sources of parenting authority or of safety and security." Herb and Nancy did not have a good understanding of defendant's and Jane's drug dependency. While the grandparents were "sincerely motivated to be a positive factor in [Daniel's] life and well-being," Dr. Jeffrey concluded they were "not prepared to provide safe parenting to him" and recommended that Daniel not be placed in their care.

Dr. Jeffrey also conducted a bonding evaluation between Daniel and his foster parents. She concluded that Daniel was "securely attached to his foster parents," and severing that relationship was "likely to place him at risk for serious and enduring harm." Dr. Jeffrey recommended that Daniel remain in their care.

The guardianship trial took place before a third judge, Kathleen M. Delaney, who had reviewed the proceedings to date, including the prior judge's rulings regarding the grandparents' participation in the FG trial. After Jane voluntarily surrendered her parental rights, the trial continued only as to defendant, with the grandparents and their counsel present.

Dr. Jeffrey testified consistent with her prior bonding evaluations. Upon recessing for the day, counsel for the grandparents asked if he would be able to recall the doctor during the FD hearing. The following exchange ensued

Counsel: . . . [W]hat assurance do I have if a decision made . . . at the end of this trial involuntarily terminates the rights that the Court's not going to move forward with the adoption by the foster family and we don't have our opportunity

Judge: Sir, there's no adoption [c]omplaint that's been filed, so I won't be moving an adoption [c]omplaint, if that's your question. I can't give you any assurances of how this case is going to go after we break right now.

. . . .

Counsel: When do my grandparents have an opportunity to refute what was just said here . . . that pertained directly to them?

Judge: We'll have to see how the trial pans out, sir.

Counsel: Am I going to be able to ask her questions?

Judge: Sir, we'll have to see how the trial pans out. . . .

There was no further discussion of the issue when Dr. Jeffrey appeared the next day to complete her testimony. The transcript reveals that defense counsel and the grandparents' counsel were permitted to consult with each other during Dr. Jeffrey's testimony.

Daniel's foster mother testified regarding Daniel's medical condition, events that could "trigger" medical complications, the child's current medications and her desire to adopt the child. The Division's caseworker, Rebecca Bell, also testified. Bell had a conversation with defendant at the hospital upon Daniel's birth. Defendant claimed that he was living with his aunt, and he wanted custody of Daniel. The Division contacted defendant's aunt, who denied that defendant lived there and indicated emphatically that she was not interested in having Daniel placed in her home.

The Division also called defendant as a witness on its case-in-chief. We need not recount defendant's testimony in detail because much of it is irrelevant to the issues raised on appeal. It suffices to say that when asked if it was in Daniel's best interest to be returned to his care, defendant responded: "Well, I'm not worrying about him being returned to me. It's my parents. I know I'm not going to get him back. But I don't want my parents to suffer for mistakes that I made in my life."

Defendant acknowledged that he did not tell the Division to contact his parents in February 2013, nor did he supply contact information. Rather, he first told the Division to contact Herb and Nancy sometime in summer 2013, when Daniel was nearly one year old. He waited because he "didn't want to let [his] parents know that [his] son was in foster care." Defense counsel initially deferred questioning defendant until after the Division rested, but changed tack after consulting with the grandparents' counsel. Defendant testified that his parents would "do a better job than [he would]" raising Daniel.

The Law Guardian called as a witness Dr. John Quintana, a psychologist who had conducted bonding evaluations between Daniel and the foster parents, and Daniel and his grandparents. Dr. Quintana testified that Daniel was uncomfortable and insecure when visiting alone with his grandparents. Dr. Quintana opined that Daniel "did not have a strong emotional bond to the grandparents[,] [a]nd . . . did not see the grandparents as [] psychological parent[s]."

The Division called Herb as a witness. Herb, who was 75 years old, was the father of seventeen children, eight with Nancy, and the remaining nine with three other women. At the time of his application for custody of Daniel, two of his daughters were living with him in Florida, as well as a grandchild that he had adopted due to another daughter's "trouble[s]." At the time of trial, three grandchildren, including one of defendant's older children, were living with Herb and Nancy.

Herb testified that he had no knowledge of Daniel's birth until August 2013, because he and defendant had been estranged for ten years. Herb stated he "absolutely" wanted custody of Daniel and would support him and whatever medical needs he had. He also testified that Nancy had worked in a nursing home and had some medical training. Defense counsel consulted with the grandparents' counsel during Herb's cross-examination.

When Judge Delaney scheduled closing arguments for a date in August, the grandparents' counsel objected, stating he would not be available. The judge explained that there would plenty of time to consult with defense counsel beforehand, and she refused to adjourn the scheduled date. Counsel "renew[ed] [his] standing objection" that this was not in "the spirit of the order" allowing his presence at trial. On August 19, 2014, after considering summations, Judge Delaney rendered an oral opinion on the record. Herb and Nancy were present, although their attorney was not.

The judge began by recounting defendant's history of incarceration and non-compliance with court-ordered services, evaluations, and classes. She then addressed the only significant issues raised during defense counsel's summation, i.e., 1) whether the Division had made reasonable efforts by properly considering Herb and Nancy as an alternative placement; and 2) whether termination of defendant's parental rights was in Daniel's best interests. In this regard, the judge acknowledged that despite Herb's conviction for atrocious assault and battery in 1966, Florida's child services agency granted Herb an exemption, making him an eligible adoptive caretaker in Florida.

Judge Delaney found Daniel's foster mother to be a credible witness, who, with "her husband[,] would love to adopt [Daniel] and would be open to maintaining contact with his biological family." The judge recounted and accepted the testimony of Drs. Jeffrey and Quintana. Judge Delaney found defendant and Herb were not credible, noting Herb's testimony "was unclear, disjointed and inexact."

Citing extensively to the trial evidence, Judge Delaney concluded that the Division had proven the first two prongs of the statutory test by clear and convincing evidence. Addressing the requirement under the third prong that the Division consider alternatives to termination, the judge concluded that "[i]n no way did the Division shirk its duties or delay the search for relatives." Despite defendant's delay in informing the Division of Herb and Nancy as potential placement resources, it properly contacted the grandparents, conducted an investigation and cooperated with the Florida authorities.

However, citing the expert testimony and other evidence in the record, Judge Delaney concluded that placement with the grandparents did "not provide an alternative to termination of parental rights." Judge Delaney moved on to consider the fourth prong of the statutory test and concluded that the Division had met its burden. She entered the order under review terminating defendant's parental rights to Daniel. Immediately thereafter, the judge dismissed the FD complaint as moot.

This appeal followed. We note that Herb and Nancy did not file an appeal from the dismissal of their FD complaint, nor did they seek to intervene in this appeal.

II.

Defendant asserts that the Division failed to satisfy the third prong of the statutory best-interests-of-the-child test, N.J.S.A. 30:4C-15.1(a), and the judge failed to properly consider and evaluate evidence regarding that standard. The third prong requires that the Division prove by clear and convincing evidence that it "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[.]" N.J.S.A. 30:4C-15.1(a)(3) (emphasis added). Specifically, defendant argues that the judge failed to properly consider Herb and Nancy as a placement alternative, and she "failed to permit [the admission of] evidence pertaining to [the] paternal grandparents" during trial. Both the Division and the Law Guardian on Daniel's behalf argue that the evidence was sufficient and placement with the paternal grandparents was inappropriate. Both urge us to affirm the termination order.

We have considered these arguments in light of the record and applicable legal standards. We affirm substantially for the reasons expressed by Judge Delaney in her comprehensive oral opinion. We add only the following.

"We will not disturb the family court's decision to terminate parental rights when there is substantial credible evidence in the record to support the court's findings." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). Because of "'the family courts' special jurisdiction and expertise in family matters,'" we accord even greater deference to the judge's fact finding. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010). "Only when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark' should an appellate court intervene and make its own findings to ensure that there is not a denial of justice." E.P., supra, 196 N.J. at 104 (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007)).

"The focus of a termination-of-parental-rights hearing is the best interests of the child," New Jersey Division of Youth and Family Services v. F.M., 211 N.J. 420, 447 (2012), assessed through application of the standards contained in N.J.S.A. 30:4C-15.1(a)

(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.

[Ibid.]

The four prongs require a fact-sensitive analysis, and "'are neither discrete nor separate. They overlap to provide a composite picture of what may be necessary to advance the best interests of the children.'" N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 280 (2007) (quoting N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 258 (App. Div. 2005)).

The "reasonableness" of the Division's efforts under the third prong "'is not measured by their success.'" N.J. Div. of Youth & Family Servs. v. L.J.D., 428 N.J. Super. 451, 488 (App. Div. 2012) (quoting In re Guardianship of D.M.H., 161 N.J. 365, 393 (1999)). "'[E]ven if the Division ha[s] been deficient in the services offered to' a parent, reversal of the termination order is not necessarily 'warranted, because the best interest of the child controls' the ultimate determination . . . ." Ibid. (quoting N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 620 21 (App. Div.), certif. denied, 192 N.J. 68 (2007)).

N.J.S.A. 30:4C-12.1(a) provides in pertinent part

In any case in which the [Division] accepts a child in its care or custody, including placement, the [Division] shall initiate a search for relatives who may be willing and able to provide the care and support required by the child. . . . The [Division] shall complete an assessment of each interested relative's ability to provide the care and support, including placement, required by the child.
 
[Ibid.]

Clearly, the statute "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). Nevertheless, we have explained that "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." N.J. Div. of Youth and Family Servs. v. J.S., 433 N.J. Super. 69, 82 (App. Div. 2013), certif. denied, 217 N.J. 587 (2014). Importantly, "'[d]elay 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 82 (quoting K.L.W., supra, 419 N.J. Super. at 581).

Here, Judge Delaney found that the Division fully complied with its statutory obligations to investigate and consider Daniel's placement with Herb and Nancy. Defendant does not seriously challenge that determination. Instead, he takes issue with the judge's decision that placement with the grandparents was not in Daniel's best interests. In our view, Judge Delaney's conclusion is amply supported by the evidence and there is no reason to overturn it.

Defendant also raises a procedural argument. He contends that, contrary to the prior judge's order, Judge Delaney refused to permit his parents to meaningfully participate in the guardianship trial and failed to consider the FD complaint after conducting the FG trial.4 These arguments lack sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).

Judge Delaney implemented the prior judge's order. She permitted the grandparents to be present during trial and permitted consultation between counsel for defendant and counsel for the grandparents. Herb testified at length. Defendant fails to explain what additional evidence should have been admitted, either at the guardianship trial or at a subsequent FD hearing. Since the judge concluded that the Division had met its burden of proof as to all four prongs of the statutory test, the grandparents' FD complaint was indeed moot.

Affirmed.

1 We have fictionalized the names of those involved to maintain their privacy.

2 Testimony at trial revealed that defendant was incarcerated on a "child support" warrant in August 2013.

3 The motion is not in the record.

4 We consider the claim, though defendant fails to explain how he can assert an argument on behalf of Herb and Nancy.