NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. K.A.G.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4143-06T44143-06T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

K.A.G.,

Defendant-Appellant.

_________________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF C.A.G.,

A Minor.

__________________________________________

 
Argued Telephonically November 14, 2007 - Decided

Before Judges Wefing, Parker, and Lyons.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FG-15-29-06.

Alan I. Smith, Designated Counsel, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Mr. Smith, on the brief).

Stephanie Anatale, Deputy Attorney General, argued the cause for respondent (Anne Milgram, Attorney General, attorney (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Keith S. Massey, Jr., Deputy Attorney General, on the brief; Lisa B. Landsman, Deputy Attorney General, on the supplemental brief).

Olivia Belfatto Crisp, Assistant Deputy Public Defender, argued the cause for minor child (Yvonne Smith Segars, Public Defender, Law Guardian, attorney; Ms. Crisp, on the brief).

PER CURIAM

K.A.G., the natural mother of C.A.G., appeals from a judgment of guardianship entered on February 20, 2007, terminating the parental rights of K.A.G. to C.A.G. and ordering that C.A.G. will be placed with L.R. and L.P. for adoption. Because we find that the trial court's decision with respect to the termination of parental rights was based on clear and convincing evidence supported by the record before the court, and that the trial court's order with respect to placement ensures the safety and the health of C.A.G. and serves his best interests, we affirm. The following factual and procedural history is relevant to our consideration of the issues advanced on appeal.

FACTS AND PROCEDURAL HISTORY

C.A.G., currently six years old, is the youngest child of K.A.G. and L.G. He has two brothers, T.G., currently twelve years old, and L.G., Jr., currently ten years old. The Division of Youth and Family Services (DYFS) became involved with the family in September 1998 as the result of the maternal grandmother's report of substance abuse and domestic violence by the biological parents. In November 1998, an anonymous caller reported that K.A.G. was involved with drugs and that there was a history of domestic violence in the family. The caller stated that the children had special needs and that there was a concern for the safety and well-being of the children. In July 2002, K.A.G. reported that, while left in charge of the children, L.G. had become intoxicated, and C.A.G., then one year old, fell off the couch.

In June 2003, a paternal aunt reported that L.G. was a "nasty," "violent," and "verbally abusive" alcoholic, while K.A.G. "smoked pot." DYFS substantiated neglect by L.G. based on his alcohol abuse and the domestic violence between the parents. According to DYFS, L.G. has left the children alone when he went to the liquor store for more beer and had spit on K.A.G. during a "big fight." In August 2003, DYFS was referred again. L.G. and K.A.G. went to the liquor store after fighting throughout the day while the children were left alone outside all day long. No neglect was substantiated on that referral.

K.A.G. had a history, dating back to 1993, of seeking domestic violence restraining orders (ROs) against L.G. and subsequently dismissing them. When the DYFS caseworker, Angela Sarantinutis (Sarantinutis), became involved with C.A.G. in July 2004, L.G. was incarcerated for violation of an RO. That RO was dropped in September 2004. K.A.G. filed for another RO, however, in October 2004 as a result of yet another domestic violence incident. Also at the time of Sarantinutis' first involvement with C.A.G., K.A.G. was reportedly engaged in parenting classes and counseling for domestic abuse. K.A.G. was not, however, receiving any treatment for substance abuse and was still smoking marijuana.

The children were first removed from their parents by DYFS as a result of a May 16, 2004, referral. It was reported that the police were contacted due to a domestic violence incident at the parents' home that resulted in K.A.G.'s arrest for outstanding warrants. An in-home case plan provided that L.G. could not be left alone with the children due to his substance abuse problem. Consequently, C.A.G. was placed with L.R., a close friend of K.A.G. L.R. lived with her paramour, L.P., during this time. The other two boys were initially placed with another family friend but it was later discovered she had a DYFS history. When this was discovered, L.G., Jr. and T.G. were placed with their maternal grandmother and then later with another family, the M's.

When C.A.G. was initially placed with L.R., the only three foods that he would eat were saltines, Ramen noodles, and chicken nuggets. L.R. was able to secure speech therapy through Jersey Shore Medical, which also addressed his eating habits. C.A.G.'s behavior was also an issue. C.A.G. was not toilet trained until approximately May 2005. In addition, C.A.G.'s behavior was very defiant and aggressive, spitting and cursing, for example. Although C.A.G.'s behavior improved at L.R.'s, the therapist, school, and foster mother decided that C.A.G. needed a neurological evaluation. C.A.G. was diagnosed with attention-deficit hyperactivity disorder (ADHD) and medication was recommended. The biological parents were opposed to C.A.G. taking the medication, but a judge later ordered that C.A.G. was permitted to take the medication.

Sarantinutis testified that DYFS offered reunification services for K.A.G. and L.G. Both parents were referred for psychological and psychiatric evaluations, substance abuse evaluations and counseling, including referrals for both out-patient and in-patient programs, domestic violence counseling, parenting classes, scheduled supervised visitations, and referrals for vocational and housing assistance.

In November 2004, K.A.G. began complying with services recommended by DYFS. The caseworker testified that K.A.G.'s housing situation was then the "biggest obstacle" preventing her reunification with the children. When K.A.G. separated from L.G., she lost all of her financial support and became homeless. Dottie's Home, a residential facility for women victims of domestic violence, was reluctant to accept K.A.G. due to concerns regarding her history of substance abuse. DYFS guaranteed that K.A.G. would be monitored weekly through urinalysis. Additionally, DYFS provided the security deposit, engaged K.A.G. in weekly counseling, provided daycare vouchers, and implemented in-home therapy for the children to address the transition back home to their mother. As a result of Sarantinutis' intervention, K.A.G. was accepted into Dottie's Home. Dottie's Home permitted the three children to live there with K.A.G. As a result, in July 2005, after almost fourteen months, T.G., L.G., Jr., and C.A.G. were reunified with K.A.G. at Dottie's Home.

The transition was "rocky," but a therapist was able to address issues as they arose. In October 2005, Dottie's Home informed DYFS that K.A.G. had been written up because "her house was a mess; she wasn't following the rules; [and] she failed to attend certain meetings." In addition, DYFS was aware that K.A.G. had struck T.G. with a belt. In November 2005, DYFS received a referral that K.A.G. starting drinking again and came home drunk at 1:30 a.m. That K.A.G. had started drinking again was confirmed by both video surveillance and her own admission.

Dottie's House terminated her participation in the program, leaving K.A.G. and the three boys homeless. L.G. had just begun complying with his services and was not eligible at that time to be a caregiver. Therefore, in November 2005, C.A.G. was returned to L.R. and the other two boys returned to their previous placement. Shortly after the second removal, there was a permanency hearing in January 2006. DYFS had requested that the court set the permanency goal as termination of parental rights followed by adoption. At that time, no relatives came forward for the children, and T.G. and L.G., Jr.'s then-current caregivers were not committed to the children long term.

In June 2006, L.G., Jr. and T.G. were placed with their maternal uncle, R.A., and aunt, S.H.A. R.A. and S.H.A. had contacted DYFS after the first removal in May 2004 to inquire about C.A.G. As a result of the reunification with K.A.G. in July 2005, there was no longer a need for another placement option and DYFS' background checks into S.H.A. and R.A. were, therefore, then terminated. S.H.A. testified that later, at the time of the second placement in November 2005, she did not have the room for C.A.G. because she had a four-week-old infant and a two-year-old, which prevented her from providing C.A.G. with "the level of care that he needed." Thus, at their request, S.H.A. and R.A. were only evaluated for the care of T.G. and L.G., Jr.

C.A.G. would visit his brothers at S.H.A.'s on holidays, family occasions, and once a month on Sundays. C.A.G. also began overnight sibling visits at S.H.A.'s home. Although L.R. and S.H.A. scheduled sibling visits every two to three weeks, scheduling conflicts stretched the interval out to once every four to six weeks. L.R. and S.H.A. live approximately ninety minutes away from each other and meet at a convenience store at the approximate half-way point.

On March 14, 2006, DYFS filed a complaint in Ocean County, Docket No. FG-15-29-06, against K.A.G. seeking to terminate her parental rights to L.G., Jr., T.G., and C.A.G. pursuant to N.J.S.A. 30:4C-15 to -20. The complaint also sought to terminate the parental rights of L.G.

GUARDIANSHIP TRIAL

On January 29, 30, and 31, 2007, Judge Strelecki presided over the guardianship trial. On January 29, 2007, the court heard testimony from Sarantinutis and Letizia Zindell, DYFS caseworkers, who testified to the family's DYFS history as outlined above. On January 30, 2007, before hearing testimony from Dr. Alan Lee, a psychologist, the court discussed the doctor's bonding evaluations and the possibility of S.H.A. renovating her home to accommodate C.A.G. The trial judge asked to have S.H.A. and R.A. testify as to their intent and ability to care for C.A.G., as well as T.G. and L.G., Jr.

Dr. Lee then testified on behalf of DYFS. He was retained to conduct certain psychological and bonding evaluations. The doctor testified that he had diagnosed K.A.G. as having depressive personality disorder with dependent personality and borderline personality traits, rule out bipolar disorder, cocaine abuse in remission, and cannabis abuse in remission. Dr. Lee testified that because K.A.G. has problems with compliance, and because K.A.G.'s prognosis for significant or lasting change is poor, he could not support the defendant as an independent caretaker for any of the children. Dr. Lee then testified that he could not support L.G. either as an independent caretaker for the children.

Dr. Lee further testified that C.A.G. has learned to rely on L.R. for primary care and support. The doctor found that C.A.G. has a significant and positive relationship, psychological attachment, with both L.R. and her then-fiancé, L.P. Dr. Lee testified that C.A.G. would suffer enduring, significant, and irreparable psychological harm if removed from his current placement with L.R. In contrast, C.A.G. had an ambivalent relationship with, and an insecure attachment to K.A.G. According to Dr. Lee, there is no evidence that C.A.G. has a significant or enduring relationship, attachment, or bond with L.G. In Dr. Lee's opinion, the best permanency plan for C.A.G. is to leave him in his current placement with L.R. Dr. Lee further testified that permanency is very important for C.A.G. and a delay in securing permanency will harm the child.

Dr. Lee testified that siblings who are placed in separate homes should maintain contact with each other. Dr. Lee also testified that while sibling relationships are important in determining the best interests of a child, it is more important to sustain a positive relationship between a child and an adult who is able to provide permanency for the child. Finally, Dr. Lee testified that he did not conduct a bonding evaluation between the siblings in this case because DYFS did not request one.

On January 31, 2007, the court heard from K.A.G. and L.G. before entering its opinion regarding termination of parental rights on the record:

K.A.G. COUNSEL: Your Honor, [K.A.G.] has discussed in great depth with [L.G.], with me, with the caregivers for [L.G., Jr.] and [T.G.], and her counselors, and has given a great deal of thought to the situation. At this time her position is that what she would like to see happen to the children is adoption of all three children by [R.A.] and [S.H.A.] Now, I understand that that is not the Division's position. However, what [K.A.G.] would like to do today rather than testify because she acknowledges that she has issues that have not yet been resolved and that reunification of her with the children at this time would not be appropriate, is she would like to execute an Identified Surrender of all three children to [R.A. and S.H.A.], understanding that the Court is going to take testimony next week from all of the caregivers and that ultimately it would be the Court's decision what the final analysis would be. So what she would like to do this morning is do an Identified Surrender of all three children to [R.A. and S.H.A.], and she has prepared a very short statement of that position that she would like to give to the Court.

THE COURT: Okay. My question is, is she also prepared to [provide] an Identified Surrender of the two children who are with them at this point in time? Because the Court can't accept an Identified Surrender with regard to all three because at this point in time I would have no way of knowing what's going to happen with the information that I'm going to get. [Referring to the court's earlier request to have R.A. and S.H.A. testify regarding their interest and ability to care for C.A.G.] I don't even know if they wish to adopt all three. I need to get that testimony.

K.A.G. COUNSEL: We understand that. We understand that.

DYFS COUNSEL: And, Judge, if I could just speak. There is a published decision -- the Division would not accept that surrender -- there is a published decision where the Division has the power and authority to reject that. In this situation, the Division would. We'd like to proceed to trial.

THE COURT: Well, would you accept an Identified Surrender for the two children to [R.A.] and [S.H.A.]?

DYFS COUNSEL: The two, yes.

THE COURT: Okay.

K.A.G. COUNSEL: Well, here's our position, Your Honor.

THE COURT: Okay.

K.A.G. COUNSEL: What we would like to do is, she does not wish to contradict any of the testimony with regard to her alcoholism and her substance abuse. What she wants to do is put her feelings with regard to the disposition of this matter on the record, understanding that with [T.G.] and [L.G., Jr.] it would be surrender to [R.A. and S.H.A.].

K.A.G. COUNSEL: Her position would be that she would like to have [C.A.G.] with [R.A. and S.H.A.] and she would put that position as an Identified Surrender on the record, understanding that the actual finalization of that would depend upon the rest of the testimony.

THE COURT: And where would we go with regard to -- if that doesn't happen -- in other words, if the Court does not find that it would be appropriate for [C.A.G.] to also go with them, where are we with regard to the [C.A.G.] trial?

K.A.G. COUNSEL: The [C.A.G.] trial, what we would do is just return to the trial status and have the Court make the decision based upon the rest of the testimony.

THE COURT: Okay. But she's already going to say on the record that she accepts the testimony that's been placed upon the record from the Division. So that will not be contradicted by her; right? We would just return to trial status and then the Court would decide whether the testimony that I have before me would terminate her rights with regard to [C.A.G.]; is that what you're saying?

K.A.G. COUNSEL: Yes. It's disposition that she's quarreling with, and she's not quarreling with the disposition of adoption.

THE COURT: Right.

K.A.G. COUNSEL: It's not [termination of parental rights] and adoption. It's the placement of the child [C.A.G.].

THE COURT: Okay. So that's the issue. So in a sense she's saying that she accepts the fact that the testimony is clear and convincing with regard to the fact that there should be a termination. With regard to the first two, she would like to do the Identified Surrender with regard to that, but she will accept the Court's decision with regard to whether or not there would be a placement of [C.A.G.] with her relatives or with the former friend, [L.R.]; is that correct?

K.A.G. COUNSEL: Well, no. She won't accept that decision if it's not placement with [R.A.] and [S.H.A.]. In that case she would want to appeal the placement of [C.A.G.].

THE COURT: The placement. I don't have a problem with that. I don't have a problem with that.

THE COURT: Mr. [L.G.].

[L.G.]: I agree. I feel the same way.

THE COURT: So your position would be the same --

[L.G.]: Right.

THE COURT: -- and you would testify to that under oath?

[L.G.]: Yes.

After this colloquy, K.A.G. was sworn and a voir dire examination was conducted of her, regarding the issue of an identified surrender.

K.A.G. COUNSEL: To that end, are you willing to advise the Court today that your intention and your best wish would be for surrendering your parental rights to all three children on the condition that [R.A. and S.H.A.] were to adopt them?

K.A.G.: Yes.

THE COURT: Well, I think I have to amend that to say that on the condition that the two will be placed with an aunt and uncle, and the Court will make a decision with regard to [C.A.G.], which you will have a right to contest if you disagree with it.

K.A.G. COUNSEL: Your position is to surrender your parental rights on the condition that [R.A. and S.H.A.] adopt [T.G.] and [L.G., Jr.] and that it would be your preference and position that [C.A.G.], who is presently in the care of someone else, you would like to see [C.A.G.] placed with [R.A. and S.H.A.] and adopted by them, as well; is that correct?

K.A.G.: Yes.

K.A.G. COUNSEL: So you are asking the -- your identifying surrender of your parental rights to [T.G.] and [L.G., Jr.] to [R.A. and S.H.A.] today?

K.A.G.: Yes.

K.A.G. COUNSEL: And you are advising the Court that in the event that [C.A.G.], that the Court should decide to place [C.A.G.] with [R.A.] and [S.H.A.], it would be your position to surrender your parental rights to [C.A.G.] to them, as well.

K.A.G.: Yes.

The court then questioned K.A.G. regarding her not contesting the DYFS testimony that has been placed on the record.

THE COURT: You know, [your counsel] has indicated on your behalf that you do not contest the testimony that has been placed upon the record. You agree that the testimony that has come in with regard from the caseworkers is true and accurate with regard to what's been happening with you?

K.A.G.: Yes.

THE COURT: Okay. And she said that you also acknowledge that you do admit that at this point in time you have issues that you haven't resolved so that you could not be a placement for any of the children at this time; is that correct?

K.A.G.: Yes.

THE COURT: And there are problems that apparently are going to go on into the future that you're trying to work out for yourself; is that correct?

K.A.G.: Yes.

K.A.G. COUNSEL: Your Honor, there is a statement that I had asked that K.A.G. has prepared that she would like to read to the Court before we finish this portion of it.

K.A.G. conceded that she is not contesting DYFS' proofs that were admitted, or the caseworkers' testimony that was adduced at trial concerning the application to terminate her parental rights. She represented to the court that she was only contesting DYFS' permanency case plan with regard to C.A.G. by arguing C.A.G. should be placed with S.H.A. and R.A., to whom she had offered her identified surrender of parental rights to L.G., Jr. and T.G.

The trial court then accepted the identified surrenders of parental rights to L.G., Jr. and T.G.. Then, after finding that DYFS proved all four prongs of the best interests test with regard to all three children, Judge Strelecki terminated K.A.G. and L.G.'s rights to all three children.

PLACEMENT HEARING

Judge Strelecki then presided over a hearing to determine the placement of C.A.G. on February 5, 8, 15, and 20, 2007. On February 5, 2007, L.R. and S.H.A. testified before the court. L.R. testified to the problems C.A.G. had when he was placed with her and the improvements that C.A.G. has made. She related how C.A.G. was diagnosed with ADHD, obsessive defiant disorder, and encephalopathy as well as the medications he was taking. L.R. also discussed C.A.G.'s visits with his brothers and the difficulties that scheduling presented. L.R. testified that C.A.G. is really part of her family and that he calls her mommy, and her fiancé daddy. She stated that he refers to her children as his brothers and sisters. On cross-examination, L.R. testified that she no longer speaks to or has a relationship with K.A.G.

S.H.A. testified that she has always wanted C.A.G., but there was a "space issue" with her three-bedroom home. S.H.A. and R.A. had four children living at their home -- two children of their own, L.G., Jr. and T.G. S.H.A. testified that she had recently learned that the State offered financial assistance for minor construction projects "in an effort to keep a family together." S.H.A. proposed renovating their garage to create a fourth bedroom that would accommodate C.A.G., in addition to the other children.

Following the testimony of S.H.A. and L.R., Judge Strelecki advised that the permanency hearing would resume on February 8, 2007.

Before February 8, 2007, K.A.G.'s attorney notified the court that she was sick and would not be able to be in court that day. When the hearing resumed, S.H.A. again testified concerning the grant available to her to convert the garage to an additional bedroom. The requirement that S.H.A. and her husband complete PRIDE training was discussed. Additionally, the judge pointed out to S.H.A. the financial ramifications of the grant -- a lien on the house. Later, the court also heard telephonic testimony from a DYFS representative regarding the grant.

On February 15, 2007, the trial court had anticipated entering the decision regarding the placement of C.A.G. on the record, but decided to wait until February 20, 2007. On February 20, 2007, Judge Strelecki issued an oral decision continuing the placement of C.A.G. with L.R. and L.P. She found that the "parents' rights have been terminated. There's been a surrender by both of the parents and the two older children were at the request of the parents and all people concerned placed with the relatives who are [R.A.] and [S.H.A.], and they've been with them since July of 2006." She continued that, "[t]he question came up after the termination with regard to whether or not C.A.G. should remain with [L.R.] or whether since the two siblings are now with a relative since July, it would be appropriate to C.A.G. to be placed with [S.H.A. and R.A.]."

Judge Strelecki entered on the record that she reviewed all of the evaluations, and made findings of fact. She recited the parents' history of substance abuse and domestic violence, the history of all three boys' placements. She determined that the standard to be used is the child's best interests and acknowledged her concern with any bond the children may have among themselves. She also was concerned though with permanency. Judge Strelecki concluded that

permanency in any child is very important and that it is particularly important in this case with regard to C.A.G. because he is a child with many, many needs and has spent the majority of his young life with this family whom he regards as mommy and daddy. So I see no basis for removing him. In fact, I think it would be substantially detrimental to him and I accept the evaluation of Dr. Lee and his belief that it would cause irreparable harm for him to be removed from this family. I will sign the Order to that effect.

On February 20, 2007, Judge Strelecki signed an order that stated that "[C.A.G.] will remain in placement with [L.R.] and [L.P.] in terms of adoption." On April 4, 2007, K.A.G. appealed from the February 20, 2007, final order terminating defendant's parental rights to C.A.G.

APPEAL

This case was originally on our November 8, 2007, calendar. Prior to that date, counsel for DYFS advised us and the parties of additional information which "completely change[s] the posture of the case and the appeal." S.H.A., the caretaker of the two older children, T.G. and L.G., Jr., had requested the immediate removal of T.G. from her home. DYFS' counsel informed us that this was the second time S.H.A. had asked for the removal of the child and that DYFS' plan would be to remove the children, T.G. and L.G., Jr., from R.A. and S.H.A.'s home and attempt to place them together in a new home. Given the arguments made by the parties in this matter and these recent developments, we scheduled oral argument for November 14, 2007. At the argument, we requested supplemental briefs from all parties be submitted. All parties submitted timely supplemental briefs to us.

On appeal, K.A.G. presents the following arguments for our consideration in her initial brief:

POINT I

THE JUDGMENT OF GUARDIANSHIP SHOULD BE REVERSED AND THE MATTER REMANDED FOR A SUPPLEMENTAL PLACEMENT HEARING BECAUSE THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE MOTION FOR ADJOURNMENT IN ORDER TO OBTAIN RELEVANT AND UP-TO-DATE BONDING EVALUATIONS.

POINT II

THE JUDGMENT OF GUARDIANSHIP SHOULD BE REVERSED BECAUSE THE TRIAL COURT'S FINDINGS WITH REGARD TO THE FOURTH PRONG WERE BASED ON BONDING EVALUATIONS THAT LACKED PROBATIVE VALUE AND BECAUSE THE TRIAL COURT PRECLUDED THE DEFENSE FROM CONDUCTING A BONDING EVALUATION BETWEEN C.A.G. AND HIS SIBLINGS, T.G. AND L.G. [JR.], AND BETWEEN C.A.G. AND HIS MATERNAL AUNT AND UNCLE, S.H.A. and R.A.

In addition to the points set forth above, K.A.G., in her supplemental brief, advanced the following point:

POINT I

SINCE THE MATTER MUST BE REMANDED FOR THE RELITIGATION OF THE TERMINATION OF K.A.G.'s PARENTAL RIGHTS TO HER TWO OLDEST SONS, IN LIGHT OF THE "CHANGED CIRCUMSTANCES" OF THE DEFENDANT, AND BECAUSE THE TRIAL COURT'S FINDINGS TERMINATING THE DEFENDANT'S RIGHTS TO C.A.G. WERE PREMISED ON CIRCUMSTANCES THAT NO LONGER EXIST, THE JUDGMENT OF GUARDIANSHIP TERMINATING THE DEFENDANT'S RIGHTS TO C.A.G. SHOULD BE VACATED AND THAT MATTER, TOO, SHOULD BE REMANDED FOR RELITIGATION.

The law guardian, on behalf of C.A.G., argues that the judgment of guardianship should be affirmed because DYFS satisfied the statutory proofs for termination of parental rights by clear and convincing evidence. The law guardian argues that K.A.G. executed a voluntary surrender of C.A.G. as well, which would mandate the guardianship of C.A.G. being affirmed. The law guardian also argues that the trial court's decision regarding the placement of C.A.G. should likewise be affirmed given the bonding evaluation between C.A.G. and his foster parents, L.R. and L.P., and the fact that any interruption in the relationship with his current caregivers would cause C.A.G. severe and enduring psychological harm.

DYFS' counsel argues that the termination of parental rights of K.A.G. should be affirmed because K.A.G. executed a voluntary surrender of her rights and that the placement with L.P. and L.R. was appropriate given C.A.G.'s bonding with them.

GUARDIANSHIP - TERMINATION OF PARENTAL RIGHTS

We begin our consideration of the termination of K.A.G.'s parental rights to C.A.G. by restating applicable legal principles. The grounds for termination of parental rights are codified in subsections (1) through (4) of N.J.S.A. 30:4C-15.1(a), and are designed to balance parental rights and the State's parens patriae responsibility to protect the welfare of children. In other words, under the "best interests of the child" standard, as set out in the statute, parental rights may be terminated on a showing by clear and convincing evidence that the following criteria have been 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 foster 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-15.1(a); Div. of Youth & Fam. Servs. v. P.P., 180 N.J. 494, 506 (2004).]

On appeal of a parental rights matter, a reviewing court's role is limited. The reviewing court "must determine whether a trial court's decision in respect of termination of parental rights was based on clear and convincing evidence supported by the record before the court." P.P., supra, 180 N.J. at 511. A trial court's factual findings "should not be disturbed unless they are so wholly unsupportable as to result in a denial of justice." Ibid. (internal quotations omitted).

Additionally, the record on appeal should be analyzed in the light of the arguments advanced by the parties and prevailing principles of law. Div. of Youth & Fam. Servs. v. D.M.B., 375 N.J. Super. 141, 144 (App. Div.), certif. denied, 183 N.J. 586 (2005). In reviewing the factual findings and conclusions of a trial judge, we are obliged to accord deference to the trial court's credibility determinations and the judge's "feel of the case" based upon his or her opportunity to see and hear the witnesses. Ibid.; Cesare v. Cesare, 154 N.J. 394, 411-13 (1998); see Div. of Youth & Fam. Servs. v. A.G., 344 N.J. Super. 418, 442-43 (App. Div. 2001); Div. of Youth & Fam. Servs. v. V.K., 236 N.J. Super. 243, 254 (App. Div. 1989), certif. denied, 121 N.J. 614, cert. denied sub nom., Kliewer v. New Jersey, 495 U.S. 934, 110 S. Ct. 2178, 109 L. Ed. 2d 507 (1990); see also In re Guardianship of J.C., 129 N.J. 1, 17-18 (1992) (holding that there was not clear and convincing evidence to support the trial court's finding). The trial judge's findings of fact should not be disturbed unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Cesare, supra, 154 N.J. at 412 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)); A.G., supra, 375 N.J. Super. at 144; see also In re Guardianship of S.C., 246 N.J. Super. 414, 418 (App. Div.), certif. denied, 126 N.J. 334 (1991), appeal after remand, 260 N.J. Super. 304 (App. Div. 1992).

Generally, courts do not terminate parental rights when the parent has maintained a nurturing relationship with a child. Conversely, our courts have ruled that when an adoptive parent has provided the child with a permanent home, the child will be protected from interference from a biological parent with whom he or she has no relationship. In re G.P.B., 161 N.J. 396, 404 (1999). "The termination of parental rights involves consideration of the nature of the right, the permanency of the threatened loss, and an evaluation of parental unfitness. Merely showing that a child would be better off with an adoptive parent rather than with the biological parent is not enough." Ibid.

When the child's biological parents resist the termination of their parental rights, the court's function is to decide whether the parents can raise their children without causing them further harm. In the majority of cases, "proofs will focus on past abuse and neglect and on the likelihood of it continuing. However, the cornerstone of the inquiry is not whether the biological parents are fit but whether they can cease causing their children harm." J.C., supra, 129 N.J. at 10 (internal citations omitted). Moreover, DYFS must make an affirmative demonstration that the child's best interests will be "substantially prejudiced" if parental rights are not terminated. In re Guardianship of K.L.F., 129 N.J. 32, 37 (1992). Such a showing usually requires "clear and convincing evidence of serious impairment of the child's health or development caused by the parent, the inability of the parent to rectify or overcome that kind of harm, the detrimental effects of delay in arranging for permanent placement of the child, and the absence of alternatives to termination." Ibid.

In this case, counsel for DYFS and the law guardian argue that K.A.G. voluntarily surrendered her rights to C.A.G. We disagree. Ordinarily, parents should surrender rights on the record and they should sign a written form evidencing that surrender. A review of the record here indicates that K.A.G. attempted to do an identified surrender pursuant to N.J.S.A.

9:34-1(d) of C.A.G. to R.A. and S.H.A., which the court did not accept. As stated in the record, it was the intention of all parties that, if the trial court did not accept the identified surrender of C.A.G. to R.A. and S.H.A., the court would proceed with the trial. There is no written signed voluntary surrender of K.A.G.'s parental rights to C.A.G. in the record. It was understood, however, that K.A.G. would not testify or contest any of the proofs submitted to the court regarding the termination of her parental rights. The trial court, therefore, on the record, set forth its findings with respect to the four-prongs that must be met under N.J.S.A. 30:4C-15.1(a) in order to terminate a parents' parental rights.

Consistent with our scope of review, we find that the trial judge's findings were adequately supported and consistent with the competent, relevant, and credible evidence in the record.

With respect to the first prong, that the child's safety, health, or development has been or will continue to be endangered by the parental relationship, the court, after looking at the long record of substance abuse and domestic violence, as well as employment and housing instability, concluded that the child's safety would continue to be endangered by the parental relationship, if the relationship were to continue. We agree that the trial court's finding is adequately supported in the record.

The second prong in the analysis requires the court to find by clear and convincing evidence that the parent is unwilling or unable to eliminate the harm facing the child, or is unwilling or unable to provide a safe and stable home for the child and the delay in permanent placement will add to that harm. The court clearly stated that these parents were unable to eliminate the harm and unable to provide a safe and stable home for the children and that the delay of permanently placing C.A.G. would only add to that harm. The record also adequately supports this. During K.A.G.'s colloquy with the court, she readily admitted the difficulty she was having overcoming her own personal problems and that they prevented her from providing a safe and stable home for her children. The testimony of Dr. Lee also points out the need for permanency. In addition, Dr. Lee testified to the strong bond between C.A.G. and L.R. We note that at the time of the hearing, C.A.G. had spent over forty percent of his life with L.R. and L.P.

The third prong requires a demonstration that DYFS has made reasonable efforts to provide services that help the parent correct circumstances which led to the child's placement outside the home, and that the court has considered alternatives to termination of parental rights. This record clearly reflects the efforts of DYFS to provide services to K.A.G. The DYFS caseworkers went to great lengths to place K.A.G. in Dottie's Home, and to provide services to her. Reunification was attempted. K.A.G., however, was sadly unable to remain sober and care for her children. This prong was certainly demonstrated by the proofs in the record.

Lastly, the fourth prong requires that termination of parental rights will not do more harm than good. K.A.G. argues, however, that given the current circumstances, the termination of parental rights will, in fact, do more harm than good. We strongly disagree. Dr. Lee's uncontroverted testimony indicates that placement with L.R. and L.P. is necessary for permanency planning and that removing C.A.G. from these caregivers would cause irreparable and permanent harm to C.A.G. Further, Dr. Lee found C.A.G. had an "ambivalent" relationship with K.A.G. In sum, we find that the judge's findings leading to the termination of K.A.G.'s parental rights are well supported in the record.

K.A.G. argues that the judgment of guardianship should be reversed because the trial court abused its discretion in denying a motion for an adjournment in order to obtain relevant and up-to-date bonding evaluations regarding C.A.G. and his siblings, as well as C.A.G. and S.H.A. and R.A. This issue is moot. "An issue is 'moot' on appeal when a decision sought in a matter, when rendered, can have no practical effect on the existing controversy." Greenfield v. N.J. Dept. of Corr., 382 N.J. Super. 254 (App. Div. 2006). Given the recent developments, there would be no purpose served in having a bonding evaluation concerning any bond between C.A.G. and S.H.A. and R.A. T.G. and L.G., Jr. are about to, if they have not already been, removed from this home at S.H.A. and R.A.'s request. Consequently, a placement of C.A.G. in this home is not feasible and any bonding evaluation would be impractical and wasteful. A bonding evaluation dealing with C.A.G.'s relationships with his siblings would also have no practical effect at this point since there is no available single home for all of these children that is acceptable and C.A.G.'s removal from L.R. would be harmful.

While K.A.G. argues that she has made significant personal progress and reunification should be considered, the time has long past for that option to be explored. As the Supreme Court has noted, a delay in securing permanency may continue or add to a child's harm. See In re Guardianship of K.H.O., 161 N.J. 337, 348-49 (1999). The Court has also stated it is "mindful of [the] strong policy considerations that underscore the need to secure permanency and stability for the child without undue delay." In re Guardianship of D.M.H., 161 N.J. 365, 385 (1999) (emphasis added). In this case, Dr. Lee made it clear that there would be "significant risk of significant, enduring, irreparable psychological harm to the minor" if his relationship with L.R. was terminated. The trial court appropriately weighed the need for permanency and stability in C.A.G.'s life.

THE PERMANENCY ORDER

The standard by which a child's placement is reviewed, as well as the statutory basis for same, has recently been addressed:

In reviewing the child's placement, the court is required to determine whether the "placement ensures the safety and health and serves the best interests of the child." N.J.S.A. 30:4C-51; In re E.M.B., 348 N.J. Super. 31, 52 (App. Div. 2002). Accordingly, "'the best interests' of the child is the polestar in the implementation of a placement plan." State in the Interest of L.L., 265 N.J. Super. 68, 77 (App. Div. 1993); see also Div. of Youth & Fam. Servs. v. M.F., 357 N.J. Super. 515, 528 (App. Div. 2003). In this case, the court is required to determine what is in [the minor's] best interest based upon circumstances as they exist at the time of the hearing. M.F., supra, 357 N.J. Super. at 527 (citing In re Baby M., 109 N.J. 396, 456 (1988)).

. . . This is a hearing to determine a child's permanent placement pursuant to Title 30. "The phrase 'permanent placement' is not synonymous with the phrase 'termination of parental rights.'" E.M.B., supra, 348 N.J. Super. at 48. Accordingly, as stated above, the best interests standard applies. Id.; M.F., supra, 357 N.J. Super. at 528; L.L., supra, 265 N.J. Super. at 77; see also In re C.R., 364 N.J. Super. 263 (App. Div. 2003), certif. denied, 179 N.J. 369 (2004). Indeed, the "best interest" standard employed by the court requires that the court not rely on such a presumption, but rather, engage in "the meticulous fact finding required in custody cases." M.F., supra, 357 N.J. at 528 (quoting Beck v. Beck, 86 N.J. 480, 488 (1981); L.L., supra, 265 N.J. Super. at 77). Ultimately, the court must determine "whether [DYFS's] proposed placement plan satisfies the legislative goals and objectives of the Act by providing a stable, safe and healthy environment for the child considering all of the circumstances surrounding the placement." L.L., supra, 265 N.J. Super. at 79.

[Div. of Youth & Fam. Servs. v. S.A., 388 N.J. Super. 324, 335-36 (Ch. Div. 2005).]

In 1999, the Legislature amended N.J.S.A. 30:4C-51 to declare that "it is in the public interest, whereby the safety of children shall be of paramount concern, to afford every child placed outside his home by [DYFS] with the opportunity for . . . placement in an alternative permanent home . . . ." N.J.S.A. 30:4C-51 (emphasis added to amended text).

We are satisfied that the trial judge, after reviewing the bonding evaluations between C.A.G. and L.R. and L.P. appropriately utilized the best interests of the child standard and determined that the best permanency plan for C.A.G. was adoption by L.R. and L.P. That finding was based on sufficient credible evidence and we see no basis to disturb it.

K.A.G. argues, however, that this case must be remanded for re-litigation for determination of K.A.G.'s parental rights to her two older sons, T.G. and L.G., Jr., in light of the fact that R.A. and S.H.A. are no longer potential adoptive parents for these two boys. K.A.G. argues that because the trial court's findings terminating K.A.G.'s rights to C.A.G. were premised on circumstances that no longer exist, the judgment of guardianship terminating K.A.G.'s rights to C.A.G. should also be vacated and the matter be remanded and re-litigated. We disagree. There is no appeal before us of the termination of K.A.G.'s rights to T.G. and L.G., Jr. If, in fact, the identified surrender that K.A.G. made with respect to her two older sons cannot be consummated, then any of the parties to this matter may move before the trial court to obtain relief with respect to the termination of K.A.G.'s rights to T.G. and L.G., Jr. That, however, is not before us and there is, therefore, nothing for us to remand.

We note, however, that the developments regarding the placement of T.G. and L.G., Jr. with S.H.A. and R.A. do not materially affect C.A.G.'s placement. Nor would these developments affect the basis upon which the court terminated K.A.G.'s parental rights to C.A.G. The four-prong statutory criteria to terminate parental rights set forth in N.J.S.A. 30:4C-15.1 were clearly met, regardless of the availability of S.H.A. and R.A. to serve as caregivers to C.A.G. As the trial court and we have specifically pointed out, there is, and was a strong bond between C.A.G. and L.R. and L.P., which clearly and convincingly demonstrates that the termination of K.A.G.'s parental rights to C.A.G. will not do more harm than good. Consequently, while the removal of T.G. and L.G., Jr. from S.H.A. and R.A.'s home may make continued sibling visits problematic, that is the only relevant effect on C.A.G. brought about by the recent developments.

CONCLUSION

Accordingly, for the reasons set forth, we affirm the trial court's order terminating K.A.G.'s parental rights in C.A.G. and the court's permanency order placing C.A.G. with L.R. and L.P. with the intended goal of adoption.

Affirmed.

We are informed by DYFS' counsel in its supplementary brief that L.R. and L.P. are now married.

In February 2006, K.A.G. and L.G. divorced.

The court also terminated L.G.'s parental rights to the children. He has not participated in this appeal.

(continued)

(continued)

34

A-4143-06T4

RECORD IMPOUNDED

December 24, 2007