NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. W.G.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2255-08T42255-08T4

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

W.G.,

Defendant-Appellant.

______________________________

IN THE MATTER OF THE

GUARDIANSHIP OF A.G.,

a minor.

_______________________________

 

Argued October 6, 2009 - Decided

Before Judges Carchman, Parrillo and Ashrafi.

On appeal from the Superior Court of New

Jersey, Chancery Division, Family Part,

Hudson County, Docket No. FG-09-69-08.

Anna F. Patras, Designated Counsel, argued

the cause for appellant (Yvonne Smith Segars,

Public Defender, attorney; Ms. Patras, of

counsel and on the brief).

Lisa Nicole Brown, Deputy Attorney General,

argued the cause for respondent (Anne Milgram, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Adebukola Osuntogun, Deputy Attorney General, on the brief).

Melissa R. Vance, Assistant Deputy Public

Defender, argued the cause for minor A.G.

(Yvonne Smith Segars, Public Defender, Law

Guardian, attorney; Ms. Vance, on the

brief).

PER CURIAM

Defendant W.G. appeals from the judgment of the Chancery Division, Family Part, terminating her parental rights so that her now seven-year-old daughter can be adopted by W.G.'s mother. W.G. contends that the judgment is against the weight of evidence and does not satisfy the four criteria established in N.J.S.A. 30:4C-15.1a for termination of parental rights. The Division of Youth and Family Services (DYFS or the Division) and the Law Guardian for the child both argue for termination of parental rights followed by adoption.

We affirm the family court's judgment. The court carefully considered the evidence as it applies to the four criteria listed in the statute and concluded by the clear and convincing standard of proof that it is in the best interests of the child to proceed to adoption. We find substantial credible evidence in the record to support the court's findings of fact and the conclusions of law based on those findings.

As did the judge in the family court, we too note the conflict of our law with the opinions of the expert evaluators in this case, who uniformly concluded that the best interests of the child also favor a continuing relationship with her biological mother. See In re Guardianship of J.N.H., 182 N.J. 29, 31-32 (2004) (issue discussed in majority opinion and dissenting opinion of Long, J.). Neither the applicable statutes nor our case law can guarantee both adoption and a continuing relationship with a biological parent. The Supreme Court has said that such so-called "open adoptions" are a matter of social policy that is appropriate for legislative consideration. In re Guardianship of K.H.O., 161 N.J. 337, 361 (1999); In re Adoption by D.M.H., 135 N.J. 473, 493-94 (1994); see also N.J. Div. of Youth & Family Servs. v. S.S., 187 N.J. 556, 562-63 (2006) (commending to legislative consideration the issue of post-adoption rights of visitation by siblings).

For purposes of this case, we conclude that the family court addressed the conflict to the best of its ability and in accordance with existing law.

I.

W.G. is a thirty-four year-old, drug-addicted, single mother of two girls. This appeal concerns her older daughter, A.G., born in early 2002. After a series of hearings and a two-day trial, the family court entered a judgment on October 18, 2008, terminating W.G.'s parental rights and placing A.G. in the custody of DYFS pending her adoption by M.G., who is W.G.'s mother and A.G.'s grandmother. The judgment was based on the following facts developed during trial and earlier proceedings in the family court.

W.G. was born in the Dominican Republic. As a very young child, she witnessed turbulence in the relationship of her mother and father. She immigrated to the United States with her mother M.G. and never saw her father again. She lived with her mother and siblings in New Jersey, and she graduated from high school at the age of nineteen. Later, she told the evaluating psychologists and psychiatrist that her mother had been physically abusive when disciplining her and her siblings. Although DYFS had become involved on one occasion, the allegation of abuse against M.G. was not substantiated. DYFS counseled M.G. about appropriate discipline for her children and had no further involvement.

W.G. began exhibiting symptoms of psychological conditions in her teenage years, including chronic depression and severe anxiety. The psychiatrist who evaluated her in 2008 diagnosed her as suffering from the effects of drug abuse, anxiety disorder NOS ("not otherwise specified"), personality disorder NOS, and post traumatic stress disorder.

W.G. began abusing marijuana, cocaine, and other drugs at the age of twenty-two. She gave birth to A.G. when she was twenty-six. She denied using drugs during the pregnancy. W.G. stated under oath in court that she did not know the identity of A.G.'s father. She told the evaluating doctors that A.G.'s father was also a drug abuser with whom she had sexual contact only once, apparently consensual. M.G., however, reported to DYFS that W.G. had been raped and was seriously distraught during her pregnancy.

After A.G.'s birth, W.G. and A.G. lived with M.G. and W.G.'s half-sister. In December 2005, W.G. gave birth to another daughter. The younger daughter is not part of this appeal, her biological father having obtained custody after the children were removed from the custody of W.G.

In about March 2006, within months after her younger daughter's birth, W.G. began using crack cocaine. On July 24, 2006, a relative called DYFS to report that W.G. was smoking crack in her home while the children were present and that she was fighting physically with her mother M.G. about her use of illegal drugs. DYFS immediately began an investigation. W.G. denied using drugs in the presence of her children and initially resisted drug testing. After agreeing to be tested, she admitted that she had used cocaine the night before. The drug screen conducted on July 25th was positive for cocaine, and another conducted on July 31st was positive for marijuana.

Because the children seemed safe, DYFS left them in the home under M.G.'s supervision and directed W.G. to undergo evaluation by a certified alcohol and drug counselor. The counselor recommended that W.G. attend intensive outpatient drug rehabilitation treatment. Following that advice, W.G. began outpatient treatment at Health Path Outpatient Substance Abuse Treatment Program on August 10, 2006.

Two days later, on August 12th, M.G. called the police to report that W.G. was again under the influence of drugs, was acting erratically, and would not allow M.G. to leave the home with the children. The police responded and contacted DYFS. A special response unit of DYFS came to the home and determined that the children should be immediately removed from the custody of W.G. and the home. A drug screen of W.G. on August 14th was positive for cocaine.

On August 15, 2006, DYFS filed with the family court an application for an order to show cause and a verified complaint for legal and physical custody of the children. Upon their emergency removal, the children were initially placed in the temporary custody of the younger girl's father. Within a few days, however, DYFS determined that its investigation of M.G. years earlier had not substantiated abuse and that A.G. could be safely returned into M.G.'s care. On August 17, 2006, A.G. returned to M.G.'s home, and she has lived there continuously since that time under the care of M.G.

While attending outpatient treatment at Health Path, W.G. continued to use drugs, and her drug screens were positive on several occasions during the next several months. Also, she repeatedly missed scheduled appointments for treatment.

On September 6, 2006, the family court conducted a hearing to consider the application of DYFS for custody of the children. W.G. stipulated that she had used illegal drugs and was in need of drug treatment. The court ordered that A.G. continue in the physical custody of M.G. while W.G. attended psychological and substance abuse evaluation and treatment. Although the September 6 order did not refer to W.G.'s living arrangements, DYFS directed W.G. to stay out of the home and to visit with A.G. only under the supervision of M.G.

A few days later, M.G. called DYFS to report that she and W.G. had argued during a visitation. On October 13, 2006, M.G. reported to DYFS that she had taken W.G. to a hospital because W.G. had smoked crack and said that her body felt paralyzed. On October 17th, Health Path reported to DYFS that it had called an ambulance to take W.G. to a hospital because she was talking about suicide. W.G. was admitted for psychiatric evaluation and remained hospitalized for one week. The DYFS case worker visited W.G. to discuss plans for her rehabilitation and reunification with her children.

On October 31, 2006, W.G. was evaluated by Robert Kanen, Psy.D. In his report to DYFS, Dr. Kanen reached the following conclusions:

[W.G.] shows evidence of severe parenting deficits at this time. She is mentally ill, suffering from bipolar disorder which goes from manic episodes to severe depression. She abuses crack cocaine and goes on crack cocaine binges. Her cognitive functioning indicates that her problem-solving skills and capacity to function in daily life are severely compromised by mental illness and substance abuse. She is presently homeless with no viable plan or goal to provide a safe, secure or permanent home for her children.

She was hospitalized two weeks ago and as recently as October 17, 2006 was experiencing suicidal ideation. She is emotionally unstable, erratic and undependable. She admits that she does not have the energy to concentrate on her everyday responsibilities anymore. She reports being severely depressed at this time. She is in acute distress.

Dr. Kanen concluded that the children would be exposed to a risk of harm if returned to W.G.'s custody. He recommended that W.G. continue with psychiatric treatment and medication, attend individual psychotherapy, and enroll in an inpatient treatment facility for mentally ill/chemically addicted ("MICA") patients. At about the same time, W.G. told DYFS that outpatient treatment was not working for her and she needed inpatient rehabilitation.

On November 2, 2006, the court conducted a compliance review. W.G. did not attend. The court ordered that W.G. continue with outpatient treatment pending placement in an inpatient facility. The court's order expressly prohibited W.G. from residing in M.G.'s home but granted visitation under M.G.'s supervision.

W.G. continued to use drugs, and periodic drug screens at Health Path were reported positive for use of cocaine. DYFS had difficulty placing her in an inpatient program because she did not have insurance and declined to apply for welfare so that she would be covered by Medicaid. In late November 2006, W.G. told DYFS that she was no longer interested in attending an inpatient program because it was taking too long to place her. In January 2007, W.G. was terminated by the Health Path program for violation of its rules, missed appointments, and lack of participation and motivation to rehabilitate herself.

The court conducted another compliance review on February 6, 2007. W.G. again failed to attend. The court ordered her to enroll in an inpatient treatment program, but DYFS was unable to contact W.G. during the early part of 2007. She later reported that she had been "living in the streets" and using drugs. At one point, she was arrested in New York for possession of drug paraphernalia.

On February 14, 2007, W.G. signed herself into Beth Israel Stuyvesant Square Rehabilitative Center in New York for twenty-eight days of detoxification. After she was discharged in March, DYFS contacted W.G. and offered her three choices for inpatient rehabilitation programs. W.G. said she wanted a halfway house, which was not one of the choices because W.G. would have access to drugs on the streets. DYFS recommended inpatient treatment at Samaritan Village in New York, but W.G. was rejected for the program because she had an outstanding warrant for her arrest.

According to her own admission, almost immediately upon discharge from detoxification treatment, W.G. again returned to using crack cocaine. A drug screen conducted on May 10, 2007, was positive for cocaine. She failed to attend additional drug screens, and the certified alcohol and drug counselor assigned to assist her notified DYFS in June 2007 that he was closing his file on W.G. because of her lack of attendance.

On July 10, 2007, the court conducted a permanency hearing for placement of A.G. Although her attorney was present, W.G. did not attend. Unbeknownst to DYFS and the court, one day earlier, on July 9th, she had enrolled herself in an eighteen-month inpatient program at Anchor House in Brooklyn, New York. DYFS learned about the enrollment directly from Anchor House on July 27, 2007. The permanency plan proposed by DYFS and approved by the court by order dated July 10, 2007, sought termination of W.G.'s parental rights so that M.G. could adopt A.G. The order said:

Termination of Parental Rights followed by Adoption is an appropriate plan because: Mother has failed to comply with substance abuse treatment, has not made herself available for services and has not contacted the Division. Maternal grandmother wishes to adopt and the child's age.

DYFS filed a complaint for termination of parental rights in September 2007. Subsequently, the court conducted hearings on five dates between October 2007 and June 2008 to monitor implementation of the plan and to proceed to adoption.

After successful completion of a "black-out period" at Anchor House, W.G. resumed supervised visits with A.G. She was compliant with the requirements of the Anchor House program through spring 2008. In May 2008, Anchor House reported to DYFS that W.G. had tested positive for use of alcohol after one off-site trip. Anchor House nevertheless allowed W.G. to continue in the program.

In February 2008, the DYFS caseworker discussed with M.G. the option of kinship legal guardianship in accordance with N.J.S.A. 3B:12A-1 to -7 as an alternative to adoption. M.G. expressed a clear desire to adopt A.G.

In September 2008, the family court conducted a trial to determine whether W.G.'s parental rights should be terminated. W.G. was present with counsel. In addition to receiving various reports and documents in evidence, the court heard testimony from psychologist Antonio Burr, Ph.D., who was engaged by DYFS to conduct a psychological evaluation of W.G. and bonding evaluations of A.G. with both W.G. and M.G. Also, the DYFS case worker testified about the history of DYFS involvement and efforts to place W.G. in treatment programs. W.G.'s attorney presented the testimony of psychologist Gerard Figurelli, Ph.D., who had also conducted psychological and bonding evaluations. W.G. also called M.G. to testify. W.G. herself did not testify.

Following the conclusion of testimony and written summations from the attorneys, the court issued a written decision on October 18, 2008, terminating W.G.'s parental rights and approving adoption of A.G. by M.G.

II.

W.G. contends that the evidence was insufficient to terminate her parental rights. On appeal, our standard of review is narrow. A reviewing court must defer to the family court's findings of fact and conclusions of law based on those findings. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007); N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 433 (App. Div. 2009). We also defer substantially to the trial court's assessment of expert evaluations. In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999).

Deference is accorded because the trial court had the opportunity to "make first-hand credibility judgments" and to gain a "feel of the case" over time, thus supporting a level of factual familiarity that cannot be duplicated by an appellate court reviewing a written record. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007)).

In E.P., supra, the Supreme Court said, "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." 196 N.J. at 104; accord In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). "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 G.L., supra, 191 N.J. at 605).

In this case, the family court appropriately analyzed the evidence within the framework of N.J.S.A. 30:4C-15.1a, which provides that DYFS must prove the following four criteria before parental rights can be terminated to foster the best interests of the child:

(1) The child's safety, health and 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 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.

Each of these criteria must be proven by clear and convincing evidence. Santosky v. Kramer, 455 U.S. 745, 747-48, 769-70, 102 S. Ct. 1388, 1391-92, 1403, 71 L. Ed. 2d 599, 603, 617 (1982); N.J. Div. of Youth and Family Servs. v. A.W., 103 N.J. 591, 611-12 (1986). At the same time, the New Jersey Supreme Court explained in K.H.O., supra, that the four statutory criteria are not discrete and separate considerations but "they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." 161 N.J. at 348. In this case, W.G. challenges the sufficiency of evidence as it relates to each criterion separately and in the totality of the Division's proofs.

A.

Addressing the first statutory criterion, harm to the child, W.G. contends that the trial court simply assumed her drug use was harmful to A.G. without actually specifying what harm had befallen the child.

DYFS must show by clear and convincing evidence that "the child's safety, health or development has been or will continue to be endangered by the parental relationship." N.J.S.A. 30:4C-15.1a(1). This provision of the statute requires that "the harm . . . must be one that threatens the child's health and will likely have continuing deleterious effects on the child." A.R., supra, 405 N.J. Super. at 435 (quoting M.M., supra, 189 N.J. at 281). As explained by the Court in K.H.O., supra, the best interests standard does not focus on a single or isolated harm or past harm. 161 N.J. at 348. "Although a particularly egregious single harm can trigger the standard, the focus is on the effect of harms arising from the parent-child relationship over time on the child's health and development." Ibid.

W.G. treats too dismissively the obvious harm that a young child suffers when her only natural parent is unavailable to care for and nurture her because the parent is under the influence of drugs or other intoxicating substances. A child is harmed when a parent has persistently failed "to perform any parenting functions and to provide nurture, care, and support" for an extended period of time. D.M.H., supra, 161 N.J. at 380.

The evidence at trial showed that W.G. lacked the "emotional, psychological, physical or financial means" to provide minimal nurture, care, and support for A.G. Each of the doctors who evaluated W.G. concluded that she suffered from the effects of drug abuse combined with mental illness, specifically major depression and severe anxiety. Dr. Burr concluded that if W.G. is "not maintained psychiatrically she may easily de-compensate, and may become overwhelmed by internal pressures that she may not be able to control or modulate." Tests administered by Dr. Figurelli also demonstrated that W.G. had "obsessive-compulsive, self-defeating and passive-dependent traits." While W.G. did not exhibit active psychotic disturbances in the presence of Dr. Figurelli, she did report past experiences of drug-related visual hallucinations and paranoid ideations. Dr. Figurelli concluded that W.G. "is not able to act as a primary caretaker to her daughter at this time." At the time of trial in September 2008, W.G. had not had a job or a home of her own for more than two years.

Psychiatrist Dr. Gutierrez evaluated W.G. in August 2008 and concluded that she suffered from the effects of drug abuse, anxiety disorder NOS, personality disorder NOS, and post traumatic stress disorder. His conclusion that W.G. was capable of taking care of her daughter with continued DYFS supervision and the support of others does not contradict the opinions of the psychologists that she is not able to function independently as a parent. The doctors uniformly predicted that her future ability to serve independently as a parent to her daughter was either unlikely or at best uncertain.

Although there was no evidence, such as in K.H.O., supra, 161 N.J. at 344, 351, and D.M.H., supra, 161 N.J. at 372, that W.G.'s addiction had injured her children at birth, she had persistently failed to function as a responsible parent because of her heavy drug use. See K.H.O., supra, 161 N.J. at 352. In that way, she had endangered their safety, health, and development, meeting the requirements of N.J.S.A. 30:4C-15.1a(1). There was substantial uncontradicted evidence presented to the family court to support its conclusion that "W.G. harmed her daughter due to her drug use."

B.

DYFS must also prove by clear and convincing evidence that the harm is likely to continue because the parent is unable or unwilling to eliminate the harm and that delay of permanent placement of the child will add to the harm. N.J.S.A. 30:4C-15.1a(2). This "inquiry is aimed at determining whether the parent has cured and overcome the initial harm that endangered the health, safety, or welfare of the child, and is able to continue a parental relationship without recurrent harm to the child." K.H.O., supra, 161 N.J. at 348.

DYFS was able to show through clear and convincing evidence that W.G. was either unwilling or unable to complete drug treatment successfully. She had continued to use drugs while in outpatient treatment at Health Path, missed appointments, and violated other rules of the program. After several months, Health Path had terminated her participation, finding that she was not motivated to rehabilitate herself. DYFS was then unable to locate her for several months while she "lived in the streets" using drugs and facing criminal charges. After completing a twenty-eight day detoxification program, W.G. immediately reverted to using crack cocaine.

She was not sufficiently cooperative in finding an appropriate inpatient program. Although she eventually enrolled at Anchor House, she declined earlier options DYFS had recommended and also declined to apply for Medicaid to pay for inpatient treatment. The experts said that after completion of the Anchor House program, she would have to be evaluated again and most likely would have to enroll in a transitional program. Also, W.G. had at one time been "manipulative and in non compliance with the program" at Anchor House, and had a momentary relapse with alcohol. Dr. Burr's professional opinion was that W.G. requires continuous "aggressive drug and psychiatric treatment, probably necessitating long term use of medication." Even her own expert psychologist, Dr. Figurelli, was not able to predict when she might be able to function as a parent and eliminate harm to A.G.

The record contains substantial evidence to support the trial court's conclusion that "it is still unknown whether [W.G.] will be able to maintain a substance-free lifestyle when she completes the Anchor House in-patient treatment program in March 2009. Nor is it known whether she will be able to maintain a safe and stable environment for her daughter."

The second statutory criterion also requires that the court consider whether delay in permanent placement will add to the harm suffered by the child. N.J.S.A. 30:4C-15.1a(2). Prior court decisions have established the importance of permanency for the safety, health, and nurturing of children. See D.M.H., supra, 161 N.J. at 383; A.W., supra, 103 N.J. at 610; In re Guardianship of S.C., 246 N.J. Super. 414, 425 (App. Div.), certif. denied, 126 N.J. 334 (1991).

The trial court had substantial credible evidence to support its conclusion that "[t]here is simply no indication that W.G. will be able to parent her daughter in the foreseeable future." On the other hand, A.G. has lived safely and beneficially in the home of her grandmother since birth. From August 2006, M.G. has formally been recognized as A.G.'s primary caregiver. Additional delay in permanent placement of this seven-year-old child while her biological mother tries to rehabilitate herself could add to the harm that A.G. has suffered, especially because M.G. is willing and able to adopt her now. See D.M.H., supra, 161 N.J. at 383.

C.

The third subsection of the statute requires that DYFS make reasonable efforts to provide services for the parent and that the court consider alternatives to termination of parental rights. N.J.S.A. 30:4C-15.1a(3). The term "reasonable efforts" is defined in the statute as attempts to assist the parent in remedying the circumstances and conditions that led to the placement of the child and in reinforcing the family structure, including:

(1) consultation and cooperation with the parent in developing a plan for appropriate services;

(2) providing services that have been agreed upon, to the family, in order to further the goal of family reunification;

(3) informing the parent at appropriate intervals of the child's progress, development and health; and

(4) facilitating appropriate visitation.

[N.J.S.A. 30:4C-15.1(c).]

W.G. contends DYFS failed to prove by clear and convincing evidence that it exerted reasonable efforts in reunifying her with A.G. More specifically, she contends that DYFS did not act promptly to provide an inpatient treatment program for her, that she was also in need of psychiatric care that was not offered, and that the court and DYFS did not adequately explore the alternative of kinship legal guardianship under N.J.S.A. 3B:12A

-1 to -7.

The Supreme Court in D.M.H., supra, 161 N.J. at 390-93, stated that the efforts of DYFS are evaluated for their adequacy on a case-by-case basis. In determining whether DYFS has made reasonable attempts, the court may consider factors such as a parent's refusal to engage in therapy or to take advantage of the services DYFS offers. A.W., supra, 103 N.J. at 610.

The evidence shows that DYFS attempted in all ways described in N.J.S.A. 30:4C-15.1a(3) to assist W.G. DYFS consulted with W.G. and offered her several different treatment options in accordance with recommendations of the evaluating doctors. During fall 2006, DYFS tried but could not find a suitable inpatient program because W.G. did not have medical insurance and declined to apply for Medicaid. W.G. then grew impatient and said she was no longer interested in an inpatient program. Later, in early 2007, W.G. was terminated by the Health Path outpatient program and disappeared for some months. After she re-emerged for detox treatment, DYFS again got to work to find her an inpatient program and recommended Samaritan Village, but W.G. was disqualified because of an outstanding warrant for her arrest.

Also, W.G. did not participate cooperatively in the programs that DYFS had set up for her. W.G. failed to adhere to the rules and attendance requirements of Health Path and later failed to attend appointments with the certified alcohol and drug counselor assigned by DYFS.

In addition to making reasonable efforts to assist W.G. in addressing her drug addiction, DYFS also made reasonable efforts to reunite W.G. and A.G. by encouraging continued visitation while W.G. was undergoing treatment. M.G., too, cooperated in this effort by facilitating supervised visitation. W.G. always had access to information about A.G.'s progress, development, and health through contact with M.G. and A.G. herself.

Concerning alternatives to termination of parental rights, DYFS discussed with M.G. the option of kinship legal guardianship, and M.G. rejected it. W.G. argues that the discussion came too late, in February 2008 after DYFS had already proposed a permanency plan in July 2007 for termination of parental rights and adoption. W.G. cites N.J.S.A. 30:4C-15.3 in support of her argument that the family court should have required M.G. to accept kinship legal guardianship instead of insisting on adoption.

When adoption is available, however, the possibility of kinship legal guardianship is not a defense to adequate proof of the statutory criteria for termination of parental rights. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 513 (2004). In P.P., the Court stated that N.J.S.A. 30:4C-15.3a is a permissive not mandatory statute that provides an option for DYFS and the family when the child is being cared for by a relative. P.P., supra, 180 N.J. at 509 n.5. The Court held explicitly that "a kinship legal guardian may only be appointed when 'adoption of the child is neither feasible nor likely.'" Id. at 509 (quoting N.J.S.A. 3B:12A-6d(3)(b)). Because M.G. expressed a desire to adopt A.G., DYFS had no obligation to dissuade her from that option and to attempt to compel kinship legal guardianship in its place.

M.G. again stated her clear preference for adoption over kinship legal guardianship when she was called to testify at the trial during W.G.'s case. W.G. argues on appeal that there was insufficient evidence before the trial court that M.G. fully understood kinship legal guardianship. If lack of understanding was an issue, W.G. had the opportunity to make a record of it at trial but did not do so.

The trial court explored alternatives to termination of parental rights through a fourteen-month record of proceedings to monitor the custody and guardianship status of A.G. It adequately addressed the possibility of kinship legal guardianship but could not force that alternative upon M.G.

In sum, there is substantial credible evidence in the record to support the trial court's conclusions that "there are no alternatives to termination of [W.G.]'s parental rights," and that "the Division has made reasonable efforts to prevent termination without success."

D.

Under the fourth criterion, DYFS must prove by clear and convincing evidence that termination of parental rights will not do more harm than good.

W.G. does not dispute that she is currently unprepared to care for her daughter and that M.G. provides a good alternative home. During the many visits DYFS caseworkers made to M.G.'s home, they observed a positive, affectionate, and nurturing relationship between M.G. and A.G. Dr. Burr reported that A.G. "gave the impression of being a happy, satisfied child, who receives proper care and nurturing from her caretaker." A.G. did not appear anxious, reluctant, apprehensive, or inhibited when she was in the presence of M.G. Dr. Figurelli agreed that M.G. "consistently displayed a caring, nurturing, loving and emotionally supportive attitude toward [A.G.]." A.G. also appeared to feel safe, secure, and comfortable in her interactions with M.G.

Both doctors said that A.G. clearly recognizes W.G. as her biological mother, but both also observed that her interactions with W.G. display a relationship similar to that of siblings or playmates rather than a mother and young daughter. In contrast, A.G. "appears to relate to [M.G.] as the significant adult parental authority figure and caregiver." Therefore, the evidence left no doubt that A.G. is better left at this time in the care of her grandmother.

W.G., however, quotes the reports and testimony of the doctors that cutting off A.G.'s relationship with her biological mother will risk later psychological damage in her life. Dr. Burr acknowledged that he had observed a positive and affectionate relationship between W.G. and A.G. He believed that W.G. should still have some contact with A.G. because she "adds to the emotional needs and well-being" of the child. He testified that it would be detrimental to A.G. to have her biological mother disappear from her life.

Dr. Figurelli went further in advocating for W.G.'s continuing role in her daughter's life. During his bonding evaluations, Dr. Figurelli observed that the "tone of [A.G.'s] interaction with [W.G.] remained cheerful and positive throughout." W.G. was verbally appropriate and "cognitively stimulating" when interacting with A.G., and A.G. was "fully comfortable" with W.G., interacted with her in a "fully spontaneous manner, and displayed no overt evidences of emotional conflicts in her relationship [with] her." She "remained physically close to and focused upon interaction with" W.G. Dr. Figurelli stated that it would be in the best interests of the child to develop further a relationship with W.G. Because M.G. said that she would remain in A.G.'s life even if W.G. were to regain custody, Dr. Figurelli believed it would do A.G. "more harm than good to not have the opportunity to return to the care of her biological mother and fully develop her relationship with her if [W.G.] presents a viable permanent placement option for her." Under those circumstances, "transitioning [A.G.] from the care of her grandmother to her birth mother" would not likely result in enduring harm to A.G., according to Dr. Figurelli.

The trial court considered the experts' advice that W.G. be permitted to continue a relationship with A.G. and M.G.'s testimony that she did not intend to cut off W.G.'s visitations with A.G. In fact, M.G. had told the doctors that she believed W.G. should have the opportunity to be reunited with A.G. if she is able "to stay clean." The court found it "[s]omewhat troubling . . . that there is no room permitted by our legislation to accommodate post termination visitation with a parent even where the adoptive parent is a relative and consents to it."

In J.N.H., supra, 182 N.J. at 31-32, and in K.H.O., supra, 161 N.J. at 361-62, the Supreme Court considered whether the best interests of the child might not favor both adoption and enforceable post-adoption visitation rights of the biological parent. Calling the dilemma a "thorny issue," J.N.H., supra, 182 N.J. at 31, and "a significant policy issue which should be addressed in separate legislation[,]" K.H.O., supra, 161 N.J. at 361, the Court declined to create judicially a right to compulsory post-adoption visitation. The Court has acknowledged conflicting theories among psychologists and other professionals regarding what is best for children whose natural parents cannot care for them but still desire to rehabilitate themselves and their parental relationship. Although "natural parents can be a disruptive influence for children who have been adopted," some commentators have said there is greater harm in trying to eliminate biological parents from the lives of children. Ibid. (quoting In re Guardianship of J.C., 129 N.J. 1, 20 (1992)). The Court also recognized that different states have reached different conclusions about the benefits and risks of so-called open adoptions. Id. at 362.

In this case, the trial court felt constrained to follow the holding of J.N.H. in terminating W.G.'s parental rights rather than imposing an obligation upon M.G. to continue W.G.'s visitations after adoption. The court could only add its "strong recommendation that the maternal grandmother allow for continued contact between the biological mother and the child."

The best interests standard does not require elimination of all harm from severing biological ties. The question is whether the child will suffer a greater harm from the termination of ties with her biological parent than from disruption of her relationship with her substitute parent. Id. at 355. As the trial court said, "neither [expert] testified that termination of parental rights will do more harm than good."

Also, the trial court recognized that "it is against the child's best interest to prolong resolution of [her] status indefinitely by extending [temporary] placement." See N.J. Div. of Youth & Family Servs. v. B.G.S., 291 N.J. Super. 582, 592-93 (App. Div. 1996); see also P.P., supra, 180 N.J. at 507 ("Included in [the] inquiry is whether delay in permanency will cause further harm and whether the child has bonded to his or her foster parents to the extent that separation from them would in itself 'cause serious and enduring emotional or psychological harm to the child.'") (quoting N.J.S.A. 30:4C-15.1a(2)); A.W., supra, 103 N.J. at 610 ("[p]ermanence in itself is an important part of . . . nurture.").

There was substantial credible evidence from which the court could conclude that terminating W.G.'s parental rights would not do more harm than good.

III.

We conclude that the trial court followed the requirements of N.J.S.A. 30:4C-15.1a carefully and reached appropriate conclusions from the evidence before it. The record established clear and convincing evidence of all four criteria in N.J.S.A. 30:4C-15.1a for termination of W.G.'s parental rights so that A.G. can be adopted by her grandmother M.G.

 
Affirmed.

(continued)

(continued)

30

A-2255-08T4

RECORD IMPOUNDED

October 30, 2009