DIVISION OF CHILD PROTECTION AND PERMANENCY v. R.R.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0087-15T3

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

R.R.,

Defendant-Appellant,

and

J.O.,

Defendant.

_______________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF Y.O.R.,

A Minor.

_______________________________________

December 1, 2016

 

Submitted September 14, 2016 Decided

Before Judges Simonelli, Carroll and Gooden Brown.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-196-15.

Joseph E. Krakora, Public Defender, attorney for appellant (Richard Foster, Assistant Deputy Public Defender, of counsel and on the briefs).

Christopher S. Porrino, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Eleanor M. Armstrong, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor Y.O.R. (Caitlin McLaughlin, Designated Counsel, on the brief).

PER CURIAM

Defendant R.R.,1 the biological mother of Y.O.R., born in January 2014, appeals from the August 18, 2015 Family Part judgment for guardianship, which terminated her parental rights to Y.O.R.2 Defendant contends the trial court erred in finding that the New Jersey Division of Child Protection and Permanency (Division) proved prong three of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. Specifically, defendant argues that the court's "finding as to the third prong was fatally compromised" by the court having effectively ceded to the Division "its inherent authority over the decision whether to change Y.O.R.'s placement from the non-relative resource parent to the maternal aunt" in Mexico. According to defendant, this error "undermined the court's ability to make a full and valid consideration of alternatives to the termination of defendants' parental rights."

Defendant also argues for the first time on appeal that by allowing the termination trial to proceed with the Mexican adoption assessment of the maternal aunt pending, the court "unreasonably foreclosed at least one alternative to the termination of parental rights" and also undermined "the propriety of the court's finding that alternatives to termination had been considered as required by statute." The Division and Y.O.R.'s Law Guardian argue otherwise and urge us to affirm. Having considered the evidence adduced at the guardianship trial in light of the applicable legal principles, we affirm.

I

We recount the most pertinent portions of the extended procedural history and the substantial evidence adduced throughout the course of these proceedings to address the issues presented on appeal. Defendant has been known to the Division since May 2007. She is the mother of six children, V.R., A.R., M.A., J.A., D.O., and Y.O.R.; none of whom remain in her care. V.R., born in September 2004, resides in Mexico with her maternal grandmother. A.R., born in June 2007, was adopted through the Division following defendant's identified surrender of parental rights in 2008.

M.A., born in July 2008, and J.A., born in August 2009, were ultimately placed in the care of their biological father, S.A., as a result of a finding of abuse and neglect entered on May 9, 2012, in which defendant admitted that J.A. suffered extensive burns to his back, neck and abdomen while in her care, and for which she failed to seek medical treatment. Defendant also pled guilty in a related criminal case.

D.O., born in January 2012, was placed in the Division's custody at birth because defendant was still participating in services as a result of the Division's ongoing litigation involving J.A. and M.A.,3 and because defendant failed to complete additional services in preparation for D.O.'s birth. A finding of abuse and neglect of D.O. was later entered against defendant on that basis. In October 2013, defendant was reunified with D.O., but D.O. was removed again in December 2013 once defendant failed to comply with parenting services, failed to provide healthcare for D.O., and moved without allowing the Division to assess her new home.

Upon removal, the Division's request to transfer legal and physical custody of D.O. to J.O., who was her biological father as well as Y.O.R.'s,4 was granted. Defendant and J.O. were not then cohabitating, but defendant was allowed unsupervised visits with D.O. Upon receiving notification of the birth of Y.O.R. in January 2014, the Division's application for custody of Y.O.R. was granted, as was the Division's request for Y.O.R. to be placed in the temporary legal and physical custody of her father, J.O. As a result, Y.O.R. was placed with J.O. and defendant was awarded unsupervised visitation. A welfare check of the children in J.O.'s home conducted on January 25, 2014, detected no concerns.

On February 2, 2014, while in defendant's care in J.O.'s home, D.O. died from an apparent homicide. Defendant first reported the death to the paternal grandmother who lived on the same street and who also babysat D.O. for her son. The police were called about three hours later. In her statement to the police, defendant claimed that D.O. suddenly started vomiting violently and drowned on her vomit before defendant could get help. Given the safety concerns posed to Y.O.R., the Division conducted an emergency removal and Y.O.R. was placed in an approved foster home.

An autopsy of D.O. found "soft tissue contusions" on the torso, extremities and head region; "fresh and recent" bite marks on D.O.'s face, abdomen, right arm, and back; "head trauma with subdural hemorrhage and mild subarachnoid hemorrhage"; "laceration of scalp and focal contusions"; "pulmonary contusion, bilateral"; "bilateral rib fractures"; and "left renal injury." The autopsy report indicated that the cause of death was "[m]ultiple blunt force trauma and closed head injury" and the manner of death was ruled a homicide. A forensic odontological report dated May 8, 2014, concluded that the bite marks present on D.O. were caused by J.O. Both defendant and J.O. were indicted on July 13, 2014, in connection with D.O.'s death and charged with murder and child endangerment. While they were both incarcerated, a no-contact order was entered prohibiting visitation between defendants and Y.O.R.

On December 16, 2014, following a fact-finding hearing, a finding of physical abuse and medical neglect by clear and convincing evidence was entered against both defendants. Specifically, the court found

[D.O.] died from multiple forms of blunt force trauma. These injuries were caused by the defendants. Both [R.R.] and [J.O.] admit in their statements to using physical discipline on [D.O.]. There were several injuries that were recent and had to occur within 48 hours [of her death], which is the time period that [R.R.] and [J.O.] admitted to caring for [D.O.]. [J.O.] caused the bite marks to [D.O.]. Neither parent sought medical treatment for any of [D.O.'s] injuries, which also constitutes medical neglect.

Given defendants' incarceration and the aggravated circumstances of abuse and neglect resulting in D.O.'s death, on February 12, 2015, the Division was granted an exception to the requirement for reasonable efforts to reunify, pursuant to N.J.S.A. 30:4C-11.3. In addition, both defendants refused to undergo psychological evaluations given the pending criminal charges.

After the fact-finding hearing, the court conducted a permanency hearing during which the Division expressed a goal of adoption for Y.O.R. within a timeframe of six to nine months. Although defendant, who was born in Mexico, expressed her desire for Y.O.R. to be placed with her relatives in Mexico, and the court acknowledged the Division's obligation to assess relatives for placement, the court found the permanency plan of adoption to be reasonable and appropriate given the circumstances and entered a permanency order to that effect. In response to concerns expressed by the Law Guardian and J.O.'s counsel over placing Y.O.R. with her relatives in Mexico, the court reiterated during various interim proceedings, "any party who feels that a [best interest] hearing is necessary . . . would be entitled to an opportunity to be heard."

The Division explored the relative placements identified by both defendants. On the paternal side, J.O. identified his mother, stepfather, sister, and the mother of his other three children; all of whom were subsequently ruled out by the Division and notified accordingly. On the maternal side, defendant identified her sisters, A.R. and Ro.R., both of whom resided in Mexico. Ro.R. was subsequently ruled out and notified accordingly.

In April 2014, the Division began assessing A.R. for placement. On May 27, 2014, a home study was initiated by International Social Services of Mexico (ISS), the agency under contract with the Division to conduct out-of-country home studies. ISS utilized a local agency in Mexico, Casa Alianza (Casa), to conduct a physical assessment of A.R.'s home. In June 2014, Casa provided the Division with a Spanish version of an initial home study. Once the translated home study was received, the Division requested additional information, specifically, A.R.'s bank statements.5

In addition, beginning in October or November 2014, the Division facilitated contact between A.R. and Y.O.R. through Skype. With the court's approval, two face-to-face visits with A.R. were also conducted when Y.O.R. was permitted to travel to Mexico with her caseworkers in April and June 2015 over the strenuous objection of her Law Guardian.

As early as October 2014, A.R. expressed an interest in adopting Y.O.R. and reiterated that interest in December 2014. In January 2015, the Division initiated an adoptive home study for A.R. after being advised by ISS that the study that had been completed for placement was insufficient for adoption.6 Since the foster family, with whom Y.O.R. had resided since the emergent removal, had also expressed an interest in adopting Y.O.R., the Division determined that Y.O.R. would not be placed in a non-adoptive approved home.

By February 2015, over the Law Guardian's objection, the Division advised the court of its intention to place Y.O.R. with A.R. in Mexico as all other relatives had been ruled out. The Division's primary goal for Y.O.R. was adoption by A.R., while the contingent goal was adoption by her foster family. The Division caseworker reported an appropriate interaction between Y.O.R. and her foster family, as well as an appropriate interaction between A.R. and Y.O.R. during both visits to Mexico.

In addition, Y.O.R.'s sister, V.R., and her maternal grandmother who had custody of V.R. resided about two hours away from A.R., and defendant's other maternal sister, Ro.R., was A.R.'s neighbor. When the guardianship trial was conducted on August 18, 2015, the Division was still awaiting an approved adoptive home study for A.R. and was advised that the case was scheduled to be heard in Mexico at the end of the month, when the documents submitted by A.R. would be reviewed.

At the guardianship trial, Neury Trinidad, Y.O.R.'s Division caseworker, testified to the above facts for the Division. Forty-eight exhibits were also admitted into evidence. At the conclusion of the trial, the court analyzed the four-prong best interest standard delineated in N.J.S.A. 30:4C-15.1(a) and found the Division proved all four prongs by clear and convincing evidence. Specifically, regarding the first prong, the judge determined that he had already found that defendant committed abuse and neglect by clear and convincing evidence during the abuse and neglect fact-finding hearing. The judge described the case as "the most horrendous case" he had ever handled.

Regarding the second prong, the judge referenced defendant's history of prior removals, adoptions and surrenders and noted that defendant had "six children, none of [whom] were in her custody, when this horrible incident happened." The judge recounted the history of previous substantiations for both parents, the services that the Division provided along with the planned reunification based on their compliance with those services, and the death of their child, D.O., after those services were provided. The judge concluded that the defendants were "incapable of parenting now or in the future." The judge determined that it would never "be safe in the foreseeable future for these parents to have children in their custody" and ordered that there be no visitation and no contact.

Regarding prong three, while relieving the Division of its obligations to provide reasonable efforts, the judge nonetheless acknowledged the Division's efforts in conducting relative assessments. The court stated

I have to find that [the] Division has made reasonable efforts regarding things they have done and tried to consider. They've ruled out, I think, five or six other relatives

. . . . [T]hey've considered [A.R.], down in Mexico. They've made efforts, I find, reasonable efforts in assessing her. I'm not sure whether that assessment is appropriate or not, under the circumstances and the case law.

I'm not even sure that would be in the best interest of the child, to proceed with placement in Mexico; but, that's not for today. It has nothing to do with it. I'm here to decide whether termination of parental rights, followed by adoption, is the appropriate plan in this particular case. [The] Division, clearly, taking a U.S. citizen and placing [her] with a strange relative in another country, if they acted cautiously, I can understand why in not jumping to that. Clearly, this child has been . . . with a committed foster family, who was interested in adoption a long time ago, has indicated to this [c]ourt that they are interested and want this child . . . .

The evidence is that the child has been well cared for and the child would not do badly by being adopted by the current . . . family; but, that's for another day and another hearing. I'm satisfied that the Division has made reasonable efforts.

Regarding prong four, the judge found that

neither of the parents have . . . any relationship to this child. . . . The child only knows the adoptive home and now, [she's] been introduced, to some degree, to the home in Mexico, that may be an adoptive home; but . . . the child has no relationship to these parents and termination of parental rights could not possibly cause any harm in this particular case, since there is no relationship and these parents have proven themselves to be unfit to parent any children.

The judge entered a conforming order terminating defendant's parental rights and granting the Division guardianship of Y.O.R.7 This appeal followed.

II

Our scope of review of the trial court's order is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). We defer to the trial court's factual findings rooted in its familiarity with the case, opportunity to make credibility judgments based on live testimony, and expertise in family and child welfare matters. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012); see also N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008); Cesare v. Cesare, 154 N.J. 394, 412 (1998). We are mindful that "[t]he considerations involved in determinations of parental fitness are extremely fact sensitive and require particularized evidence that address the specific circumstances in the given case." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999) (internal quotation marks and citation omitted). We will affirm the Family Part's decision to terminate parental rights when substantial, credible evidence in the record supports the court's findings. E.P., supra, 196 N.J. at 104. We will not overturn the trial court's findings unless they were "so wide of the mark that the judge was clearly mistaken." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). However, we are not bound by the trial court's legal conclusions. N.J. Div. of Youth and Family Servs. v. I.S., 202 N.J. 145, 183 (2010) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

We recognize that parents have a constitutionally protected right to raise their children. F.M., supra, 211 N.J. at 447. However, this right is tempered by the State's responsibility, as parens patriae, to protect the welfare of children. Ibid. It is well established that to prove that termination of a parent's rights is in the best interests of the child, the Division must demonstrate by clear and convincing evidence that each of the following four factors are satisfied

(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 [D]ivision 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-15.1(a).]

In the present appeal, defendant only challenges the trial court's findings with respect to the third prong of the statute, and does not contest the court's adverse findings on the remaining prongs. We thus confine our analysis to the third prong, although we note parenthetically our recognition that the remaining prongs were amply proven by the Division.

Defendant's main argument on appeal concerning the third prong is that the court effectively ceded to the Division its inherent authority to decide whether to change Y.O.R.'s placement from the non-relative resource parent to the maternal aunt. Defendant contends that such action undermined the court's ability to make a full and valid consideration of alternatives to the termination of defendant's parental rights. Defendant also asserts that termination of parental rights could have been avoided if Y.O.R. had been promptly placed with her maternal aunt. According to defendant, by allowing the termination trial to proceed with the Mexican adoption assessment of the maternal aunt only weeks away8 the court foreclosed at least one alternative to termination and undermined the propriety of its findings.

We recognize that when the Division accepts a child into its care or custody, it must "initiate a search for relatives who may be willing and able to provide the care and support required by the child." N.J.S.A. 30:4C-12.1(a). We have also acknowledged "the Division's policy to place children with relatives whenever possible." N.J. Div. of Youth & Family Servs. v. M.F., 357 N.J. Super. 515, 527 (App. Div. 2003). Yet, "there is no presumption in favor of placement with relatives." N.J. Div. of Youth & Family Servs. v. K.L.W., 419 N.J. Super. 568, 580 (App. Div. 2011). Nonetheless, the Division may not seek termination of parental rights and adoption by foster parents without first exploring available relative placements. Ibid.

The Division's statutory obligation requires prompt identification of relatives and notice to them of the results of any investigation. Ibid. This obligation does not permit "willful blindness and inexplicable delay" in the approval or disapproval of a relative known to the Division. Id. at 582. New Jersey, however, has a strong public policy in favor of permanency. K.H.O., supra, 161 N.J. at 357. A delay in permanency based on the Division's failure to comply with statutory obligations is warranted only when it is in the child's best interests. K.L.W.,supra, 419 N.J. Super. at 581-83.

The court ultimately must determine whether placement with the relative serves the child's best interests. Id. at 581; M.F.,supra, 357 N.J. Super. at 528. "The reality is that, no matter how fit or willing a proposed relative may be, a child will, in some instances, be better off remaining in a successful foster placement." N.J. Div. of Youth & Family Servs. v. J.S., 433 N.J. Super. 69, 85 (App. Div. 2013). However, we have viewed the Division's obligations under N.J.S.A. 30:4C-12.1 as an additional aspect of the four-prong "best interests" test in N.J.S.A. 30:4C-15.1(a). Ibid. Indeed, the Division's evaluation of a relative placement will factor into a court's consideration of alternatives to termination of parental rights. Id. at 85-87.

"[A]ssessment of relatives is part of the Division's obligation to consult and cooperate with the parent in developing a plan for appropriate services that reinforce the family structure." K.L.W., supra, 419 N.J. Super. at 583 (citing N.J.S.A. 30:4C-15.1(c)(1)). If the Division "fails to comply with its obligation [under N.J.S.A. 30:4C-12.1], the judicial determinations that follow are made without information relevant to the best interests of the child." Id. at 581. However, even when the Division fails to comply with that obligation, "[d]elay of permanency or reversal of termination . . . is warranted only when it is in the best interests of the child." Ibid.

We are unpersuaded that the Division failed to fulfill its obligations under N.J.S.A. 30:4C-12.1. Defendant argues that the Division's failure in its obligation was brought about by "its delay of the assessment and approval process for A.R. through bureaucratic foot-dragging and inattention." Even if the Division could have acted more swiftly, the ultimate determination is the best interests of Y.O.R. This case is distinguishable from K.L.W., where the Division's failure to contact and assess maternal grandparents whom it knew had custody of the child's siblings deprived the court of any meaningful opportunity to make an informed decision as to whether the placement was in the child's best interests. K.L.W., supra, 419 N.J. Super. at 581. Here, potential relative placement with the maternal aunt was extensively reviewed. As the court noted, caution on the part of the Division was understandable before "taking a U.S. citizen and placing [her] with a strange relative in another country." Therefore, the court did not lack "information relevant to the best interests of the child." Ibid.

A court may reject a relative on the grounds of the best interest of the child under N.J.S.A. 30:4C-12.1, rather than a finding that the relative is unfit or unwilling, after conducting a fair investigation of the relative. See J.S., supra, 433 N.J. Super. at 87. Only when the Division has been "lax or capricious in its assessment" of a timely presented relative should the court conclude that the Division has failed to prove by clear and convincing evidence that alternatives to termination of parental rights were appropriately considered. Ibid.

Here, contrary to defendant's argument, the court considered the extensive information presented by the Division regarding alternatives to termination and properly concluded that termination was in Y.O.R.'s best interests. The court did not acquiesce to the Division or cede its authority to decide Y.O.R.'s placement. In fact, the court questioned whether it "would be in the best interest of [Y.O.R.], to proceed with placement in Mexico." Like the Law Guardian, the court expressed reservations and concerns at the prospect of placing Y.O.R., a U.S. citizen, with a relative in Mexico. There was substantial, credible evidence in the record to support the court's findings and we reject defendant's assertions to the contrary.

Affirmed.

1 We use initials to protect the identity of those involved and to preserve the confidentiality of these proceedings. R. 1:38-3(d)(12).

2 The judgment also terminated the parental rights of Y.O.R.'s biological father, J.O., who does not appeal.

3 That litigation was terminated on December 19, 2013.

4 J.O. had three other children: Z.O., born in February 2005; E.O., born in March 2006; and C.O., born in July 2007 -- all of whom were in the care of their mother, T.R. J.O. was substantiated for abuse and neglect after the Division learned that he had, in fact, inflicted the burns on J.A. As a result, J.O. was ordered to participate in services, including parenting classes, drug screening, batterers' intervention program and anger management therapy, which he completed over the course of a year.

5 A.R. was reportedly living with her partner, V.G., and their five-year-old daughter. Although the assessment provided the monthly income and expenses for the family, no supporting documentation was provided. In addition, A.R.'s identification of other relatives to assist with childcare necessitated background checks for those individuals. A decision on A.R.'s assessment was further delayed while the Division assessed the other relatives identified by defendants and awaited the completion of Ro.R.'s assessment in order to determine which placement would be best suited for Y.O.R.

6 The adoptive home study, as confirmed by the Mexican Consulate, the Department of State and defendant's counsel, would be completed by an agency approved by the United States and Mexico pursuant to the Hague Convention.

7 The judge also approved the Division's permanency plan of termination of parental rights followed by adoption, finding the plan to be "appropriate and reasonable." The judge allowed a one-year timeframe for adoption, given the fact that placement and adoption in Mexico was under consideration. While acknowledging that a committee was scheduled to review Y.O.R.'s proposed placement and ultimate adoption in Mexico on August 31, 2015, the Division noted that Mexican officials required a supervisory period in the home before an adoption could take place. Preliminarily, the Division was advised that the only impediment to the home being approved was the fact that A.R. and her partner were not married. However, the Division was advised that they were in the process of getting married. When the Division requested permission to arrange another visit to Mexico for Y.O.R. while the Mexican officials continued to process the adoption assessment, the Law Guardian reiterated her objection to the visit, expressed concerns about the disruption caused to Y.O.R. by the repeated visits, and requested a best-interests hearing for Y.O.R, which was subsequently conducted. We denied the Division's request to supplement the record with the transcript of the best-interests hearing.

8 Notably, defendant did not request an adjournment of the trial.