DIVISION OF YOUTH AND FAMILY SERVICES v. R.G.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2762-08T42762-08T4

DIVISION OF YOUTH AND

FAMILY SERVICES,

Plaintiff-Respondent,

v.

R.G.,

Defendant-Appellant.

IN THE MATTER OF THE

GUARDIANSHIP OF A.K.,

Minor.

___________________________________________________

 

Argued March 2, 2010 - Decided

Before Judges Wefing, Grall and Messano.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FG-05-03-08.

Howard Danzig, Designated Counsel, argued the cause for appellant R.G. (Yvonne Smith Segars, Public Defender, attorney; Mr. Danzig, on the brief).

Lisa J. Godfrey, Deputy Attorney General, argued the cause for respondent (Paula T. Dow, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Godfrey, on the brief).

James A. Louis, Deputy Public Defender, argued the cause for minor A.K. (Yvonne Smith Segars, Public Defender, Law Guardian, attorney; Janet L. Fayter, Assistant Deputy Public Defender, of counsel and on the brief).

PER CURIAM

Defendant R.G. appeals from the termination of her parental rights to her daughter A.K. We have considered the arguments she raises in light of the record and applicable legal standards. We affirm.

I.

R.G. is the mother of two daughters: A.K., born March 6, 1999; and G.V., who was born September 22, 1994 and is not a subject of this litigation. Commencing in August 2000, the Division of Youth and Family Services (D.Y.F.S.) received three referrals regarding the family. In each instance the allegations involved drug use by R.G. and domestic violence between her and her boyfriend, M.K. R.G. obtained a restraining order against M.K., and D.Y.F.S. opened a case file on the family after substantiating a finding of abuse and neglect against R.G.

On November 28, 2000, D.Y.F.S. received a referral claiming that R.G. was addicted to pain killers and was permitting M.K. to reside with her and the children. A finding of neglect was again substantiated, and the children were removed from R.G.'s custody and placed in the care of R.V., their father. Shortly thereafter, however, R.V. indicated that he could no longer care for the children. They were placed with M.G., R.G.'s sister, who cared for the children for approximately one month and then also voluntarily relinquished custody. The children were placed in foster care.

Following the removal, R.G. was allowed supervised visits with her children, and D.Y.F.S. provided the family with services that included drug abuse assessment and treatment, and counseling. R.G. complied with referrals made by D.Y.F.S., but she struggled to maintain her sobriety. The children remained in foster care for approximately two years, until November 2002, when both were returned to R.G.'s custody.

In November 2005, A.K. was hospitalized due to a severe tooth infection that resulted from the lack of any dental care. The child underwent oral surgery and remained in the hospital for treatment. D.Y.F.S.'s investigation revealed that G.V. was enrolled in school, but A.K. was not. R.G. told the caseworker that she did not take A.K. to a dentist because she did not know who would accept Medicaid and because she had no transportation or money. D.Y.F.S. substantiated a finding of neglect against R.G.; although the children were not removed from the home, a case file was opened and services were provided again to the family.

On December 7, 2005, D.Y.F.S. was called because R.G. failed to pick up G.V. after school. The guidance counselor was unable to contact R.G. at the motel where the family was living. When police went to the motel, R.G. was there and claimed she had lost track of time. However, a family member advised D.Y.F.S. that R.G., who was participating in a methadone maintenance program, was disoriented and not capable of parenting the children. In January 2006, the D.Y.F.S. caseworker reported that R.G. had failed to keep appointments with an oral surgeon for A.K.'s dental care. R.G. agreed to permit Family Preservation Services to assist with any problems that might arise.

On May 9, 2006, R.G. admitted to her caseworker that she had used crack cocaine with a neighbor three nights earlier. The landlord at the motel told the worker that R.G. often left the children unattended. The school reported that both children had not been in school for a week prior to the date of the referral, that A.K. had missed twenty-nine days of school since December, and that the child appeared less happy and more withdrawn than previously. The children were once again removed from the home, taken to a doctor for placement exams, and placed in a foster home together.

On May 1l, 2006, D.Y.F.S. filed a verified complaint and order to show cause seeking custody of A.K. and G.V. The judge granted the request on an emergent basis, and ordered R.G. to cooperate with any services provided by D.Y.F.S., attend substance abuse treatment, and submit to random urine screens. On June 7, R.G. tested positive for cocaine and inpatient treatment was recommended at Seabrook House, a facility that permitted R.G. to reside with her daughters. R.G. refused to participate in any inpatient treatment.

At a fact-finding hearing held on August 16, R.G. stipulated to a finding of abuse and neglect, admitting that she had placed her children at substantial risk of harm because of her substance abuse. She continued to participate in an intensive out-patient drug treatment program and produced negative urine screens through November.

R.G. was unable to secure permanent housing, however, and D.Y.F.S.'s efforts to assist her were unsuccessful; she later moved in with a friend. In March 2007, R.G., who suffers from Crohn's disease, was hospitalized and underwent surgery for an intestinal blockage. She required post-surgical rehabilitation and a second surgery in April. Concerned about her health, R.G. expressed an unwillingness to seek employment. D.Y.F.S. decided to seek termination of R.G.'s parental rights over both children.

On September 11, R.G. once again tested positive for cocaine. In October, she moved in with another friend and obtained employment. Although R.G. was still participating in her methadone maintenance and relapse prevention classes, she tested positive for cocaine twice in January 2008, and again in February, March, May, and June. She left her job, explaining to D.Y.F.S. that she did not want to work during the summer. Throughout the entire litigation, R.G. regularly and routinely participated in visitation with her two daughters.

In the interim, upon removal, A.K. and G.V. were placed in the same foster home. However, on October 9, 2006, G.V. was removed from the foster home and placed in the Adolescent Unit of Bridgeton Hospital after threatening to burn down her house and kill her foster sister. On October 12, G.V. was discharged from the hospital and placed with M.M. and her family, with whom both girls had resided during their prior separation from their mother. The next day, A.K. joined the same foster family.

In December, G.V. was removed from the foster home and again placed in Bridgeton Hospital due to behavioral concerns. M.M. refused to take G.V. back in the home but wanted A.K. to remain with her. A.K. expressed to her caseworker that she missed her sister a great deal, and D.Y.F.S. arranged for visits between the two girls. M.M. eventually indicated that she wished to adopt A.K.; however, she expressed concerns about A.K.'s behavior after her visits with R.G. and G.V.

D.Y.F.S. caseworker Patricia Handshaw recounted much of this history at the trial that commenced in April 2008. Handshaw also testified regarding D.Y.F.S.'s efforts to provide A.K. with counseling during the entire process, noting that the child preferred not to be adopted and wanted to be reunited with her mother; if that was not feasible, A.K. wished to be placed somewhere with her sister; and, if that was not possible, A.K. wanted to stay in her current foster home. Handshaw testified that at the time of trial, M.M. indicated that she was not in a position to adopt A.K. Handshaw explained that if D.Y.F.S. was granted guardianship of A.K., it would continue to look for an adoptive home, but there was no guarantee that if adopted, A.K. would be able to maintain contact with R.G. and G.V.

Linda R. Jeffrey, D.Y.F.S.'s psychological expert, testified regarding her evaluation of R.G. and the bonding evaluations she conducted between R.G. and A.K., and M.M and A.K., in December 2007. R.G. acknowledged to Jeffrey that she had abused prescription drugs and heroin, having started using pain medication ten years earlier, and heroin five years after that.

Jeffrey found it significant that R.G. was not attending twelve-step meetings to prevent any possible relapse. She also found it problematic that R.G. had tested positive for drug use in January, February, and March of 2008, after Jeffrey conducted her evaluation but before her trial testimony. Although R.G. expressed a heartfelt desire to have her children returned to her custody, Jeffrey believed the relapses immediately before trial indicated it was unlikely that R.G. could maintain sobriety and provide permanency in A.K.'s life.

Regarding R.G.'s parenting skills, Jeffrey found that she was "cognizant of the importance of a parent's responsibility to role model appropriate behavior." However, based upon various standardized tests she administered, Jeffrey concluded that R.G. "had a mildly severe mental disorder that may require assessment and the need for ongoing clinical intervention[]"; that R.G. was more likely to handle anger in a way that would cause anxiety and depression; and that "there [wa]s a high probability that [R.G.] has a substance dependence disorder." Regarding R.G.'s ability to parent, Jeffrey concluded:

[R.G.] ha[d] significant mental health issues and substance dependence issues that significantly decrease[d] her parenting capacity. . . . [S]he was not prepared to provide reliable parental affection, protection, and guidance, to establish appropriate limit setting and role modeling, o[r] coping techniques, or sufficient consistent parental involvement so that the child's physical and emotional needs can be filled. . . . [S]he was not prepared to serve as an appropriate model for identification, to enforce rules and demands consistently, with conscientious vigilance to differentiate her child's needs from her own needs, and to teach her children to tolerate anxiety and frustration or to handle stress. She's not prepared to promote interpersonal skills. These are specific parenting capacity skills that are negatively affected by the kinds of mental health problems and substance dependence issues that she was manifesting.

Regarding the bonding evaluations, Jeffrey opined that A.K. had a secure attachment to M.M. Jeffrey found that the child "had acclimated to her school and her foster home." A.K. "was relaxed, personable, talkative . . . [and] appeared comfortable, happy, interested, talk[ed] with her foster mother and engage[d] in play with her." Jeffrey concluded that M.M. "had apparently created a safe context where [A.K. could] . . . express her feelings and thoughts, including [those] about her birth mother and her previous experiences."

Jeffrey observed that R.G. "was affectionate to [A.K.,] [who] . . . received her verbal and physical gestures, [and] appeared comfortable and happy to interact with [R.G.]" Nonetheless, Jeffrey opined that A.K. had an "insecure attachment to [R.G.]" and recommended that A.K. not be returned to her care. She found that A.K. was likely to experience some harm if her relationship with her R.G. was severed, but that it was unlikely that the harm would be "serious and enduring."

John Quintana testified as R.G.'s psychological expert. He conducted a psychological evaluation of R.G., as well as bonding evaluations between her and A.K., and between A.K. and M.M. In his expert report, Quintana recommended that D.Y.F.S. postpone the termination proceedings and monitor R.G. during a six-month trial period to evaluate her ability to maintain sobriety. At trial, he testified that his evaluation of R.G. found her to be emotionally stable, heading toward recovery from her substance abuse problems, and likely able to parent A.K. in the near future.

Quintana, however, was unaware of the numerous positive drug screens that R.G. provided immediately before trial, and, on cross-examination, he admitted that such information raised a concern about R.G.'s ability to stay drug-free. Quintana opined that R.G. needed to maintain her substance abuse treatment and attend counseling to address her depression.

Regarding the bonding evaluations, Quintana concluded that R.G. and A.K. were emotionally attached to each other. A.K. "ma[de] plenty of physical contact with her mother and enjoy[ed] her attention and warmth." Contrary to Jeffrey's opinion, Quintana believed that A.K. was "well bonded" to R.G. and that she would suffer at least an initial severe emotional reaction if R.G.'s parental rights were terminated. Quintana further opined that if permanently separated from her mother, A.K. might become disruptive, unhappy, angry, and/or depressed. However, Quintana could not state with a reasonable degree of psychological certainty that A.K. would suffer severe and enduring harm if R.G.'s parental rights were terminated.

As to the relationship between A.K. and M.M., Quintana noted that the two talked and played together, but that there was no physical contact between them. While comfortable with M.M., A.K. had no emotional bond with her, and instead was focused on returning home to her biological mother. In short, Quintana opined that while "there was a cordiality and fondness [directed from A.K. toward M.M.], . . . there wasn't a strong attachment."

On October 10, 2008, after the close of testimony and during summations, both counsel for D.Y.F.S. and R.G. advised the judge that M.M. had changed her mind and was now willing to adopt A.K. On November 3, 2008, the judge rendered his oral opinion from the bench. Citing the four-prong best-interests test contained in N.J.S.A. 30:4C-15.1(a), the judge concluded that D.Y.F.S. had proven by clear and convincing evidence that termination of parental rights was warranted. Under the first prong, the judge found that A.K.'s health and development was endangered and would continue to be endangered if she was in R.G.'s custody. Citing R.G.'s continued drug abuse, her failure to provide A.K. with adequate dental care, and the fact that she left her daughters alone in order "to get high," the judge described A.K.'s experience as "living on the edge for nearly half of her young life, wondering when, if ever, her mother would get herself together enough so that she could come home."

Relying on Jeffrey's testimony, the judge concluded that R.G. "w[as] unwilling or unable to eliminate the harm facing [A.K.]" and "provide a safe and stable home for [her,]" the second prong of the statutory test. Citing the testimony regarding R.G.'s positive drug screens immediately before and during trial, the judge concluded "that the harm that [A.K.] faces . . . persists and looks actually more foreboding than it did before, since [R.G.] is unable even to stay off . . . illegal drugs[] at this pivotal hour." The judge also concluded that R.G. had not proposed a feasible alternative to her nomadic lifestyle. In this regard, the judge specifically rejected the testimony of L.G., the eighty-three-year-old man with whom R.G. was currently living, who testified that he was willing to accept A.K. as a member of his household.

The judge also found that D.Y.F.S. had made "reasonable efforts to deal with and resolve the issues that resulted in the out-of-home placement[,]" the third prong of the statutory test. Although these efforts were ultimately unsuccessful, the judge concluded that D.Y.F.S. had carried its burden of proof on the issue.

In assessing the fourth prong of the statutory standard, the judge concluded that Jeffrey was a more credible witness than Quintana. The judge also noted that Quintana was unable to state with a reasonable degree of psychological certainty that A.K. would suffer serious and enduring harm if R.G.'s rights were terminated. He accepted Jeffrey's testimony that A.K. could "successfully reattach if her mother's rights were terminated and if she ended up having to move to a select home for adoption, rather than the home she currently resides in."

The judge concluded D.Y.F.S. had proven all four prongs of the statutory standard, and entered the order terminating R.G.'s parental rights to A.K. R.G.'s motion to stay the termination order, and to permit visitation with A.K. pending appeal was denied. This appeal followed.

We subsequently granted R.G.'s and the law guardian's motions to supplement the record. The supplemental information supplied by R.G. revealed that as of April 2009, she remained in outpatient drug counseling, and had not produced a positive urine screen since June 2008. R.G. also entered into a lease for an apartment in April 2009.

The supplemental information supplied by the law guardian included A.K.'s therapist's notes. These included reports regarding A.K.'s termination visit with R.G., and reflected the therapist's opinion that A.K. was "her normal self." Those notes further indicated that A.K. and G.V. were visiting each other once per month as of April 2009, and that M.M. continued in her desire to adopt A.K. In addition, the law guardian's supplemental information revealed that in July 2009, R.G. had tested positive for cocaine.

II.

R.G. contends that D.Y.F.S. failed to prove prong four of the statutory test, noting in particular the trial judge's allegedly inadequate consideration of A.K.'s opinions and the strong bond between her and her daughter. R.G. also argues that reversal is warranted because the judge "gave the issue of permanently separating A.K. from her sister no consideration at all." R.G. also challenges a number of evidential rulings including the admission of "all of [D.Y.F.S.'s] contact sheets[,]" the agency's "referral response reports," and a police report regarding her arrest on shoplifting charges that never resulted in her conviction; she also argues that the judge improperly relied upon Jeffrey's testimony. R.G. argues that the summation comments of counsel regarding M.M.'s willingness to adopt A.K. were "improperly placed on the record," and require reversal; however, in her reply brief, R.G. urges us to consider the supplementary information she supplied, and argues that the supplemental information supplied by the law guardian does not establish that she has relapsed into drug use, that M.M. is a proper "adoptive" parent for A.K., or that sibling visitation will continue in the future.

D.Y.F.S. and the law guardian counter by arguing that the evidence regarding prong four was clear and convincing, that the documentary evidence was properly admitted at trial, that Jeffrey's testimony was reliable, and that while A.K. may desire visitation with her sibling, that fact alone is insufficient to overcome the other proof that demonstrated termination was in A.K.'s best interests. D.Y.F.S. additionally argues that R.G. lacks standing to assert a claim for continued, post-termination sibling visitation. The law guardian further urges that the supplemental information supplied bolsters the trial judge's conclusion that A.K.'s best interests were served by severing R.G.'s parental ties.

We initially note the limited nature of our review regarding the factual determinations made by the trial judge. "A reviewing court should uphold the factual findings undergirding the trial court's decision if they are supported by 'adequate, substantial and credible evidence on the record.'" N.J. Div. of Youth and Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (internal quotation and citations omitted)). We accord particular deference to credibility determinations made by the trial judge, and we recognize the special expertise of those judges assigned to the Family Part. See Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). "However, where the focus of the dispute is . . . alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom, the traditional scope of review is expanded. Still, even in those circumstances, we will accord deference unless the trial court's findings went so wide of the mark that a mistake must have been made." M.M., supra, 189 N.J. at 279 (internal quotations and citations omitted).

When the State seeks to terminate parental rights, it must prove by clear and convincing evidence each of the following four standards:

(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) [D.Y.F.S.] 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); see also In re Guardianship of K.H.O., 161 N.J. 337, 347-48 (1999).]

These four prongs "relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." K.H.O., supra, 161 N.J. at 348.

(a)

R.G. challenges the adequacy of D.Y.F.S.'s proofs regarding only the fourth prong of the statute. As to that part of the best interests test, the judge is required to determine "whether a child's interest will best be served by completely terminating the child's relationship with that parent." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 108 (2008). In considering the adequacy of the proofs, a court "cannot require a showing that no harm will befall the child as a result of the severing of biological ties" because there is always some inherent harm to a child when a biological parent's rights are terminated. K.H.O., supra, 161 N.J. at 355. The Court has further provided the following guidance:

To determine whether the comparative harm is proscribed by the fourth prong in a case involving a child in foster care . . . the court must inquire into the child's relationship both with her biological parents and her foster parents. Weighing the potential harm that terminating [the child's] relationship with her mother against that which might come from removing her from her foster home is painfully difficult, but it is a decision that necessarily requires expert inquiry specifically directed to the strength of each relationship.

[Ibid. (citation and quotation omitted).]

Relying upon E.P., supra, R.G. argues that D.Y.F.S. failed to prove the fourth prong by clear and convincing evidence. While that case presents some similarity to the case at hand, it is factually distinguishable in a number of important respects.

In E.P., supra, the biological mother suffered from drug addiction, homelessness, and unemployment. 196 N.J. at 93. The child remained in foster care for ten years but the biological mother maintained an emotional relationship through regular visitation. Id. at 93-95. The child was shuttled between seven foster homes, suffered abuse in some, and was considered emotionally unstable. Id. at 95-96. Initially, one of the foster families expressed interest in adopting the child, but decided against it shortly before trial. Id. at 96.

The defense expert concluded that the child had a strong attachment to the mother and had no other parental figures. Id. at 97. The expert believed that if the mother could continue with counseling and remain drug free she would be capable of parenting and that even a failed reunification with her mother was better than no reunification. Ibid. D.Y.F.S.'s expert also concluded that the biological mother was the only consistent figure in the child's life, but opined that termination of parental rights was the only option. Id. at 98. The Court reversed the termination order finding that "[i]n the unique circumstances of th[e] case, a parent-child relationship that continued to provide emotional sustenance to the child should not have been severed based on the unlikely promise of a permanent adoptive home." Id. at 114 (emphasis added).

The child in E.P. was emotionally unstable and had attempted suicide on more than one occasion; thus, the likelihood that severing the only parental relationship she knew would cause severe, permanent psychological harm was a significant factor weighing against termination. Id. at 96. In this case, the testimony is undisputed that A.K. is a remarkable child who has displayed an unusual level of maturity, intelligence, and resiliency. Even Quintana would not offer an opinion that severing the parental relationship with her mother would cause A.K. to suffer significant, permanent emotional harm.

Additionally, unlike the child in E.P., A.K. has not been shuttled between various foster homes. By all accounts, she had grown acclimated to life with M.M. and her family. In E.P., there was no evidence that the child had created a significant emotional bond with any other parental figure; here, Jeffrey opined, and the judge found, that A.K. had developed a true emotional bond with M.M. even though, at the time of trial, her adoption by M.M. was not likely.

R.G. also relies upon the Court's decision in In re Guardianship of J.C., 129 N.J. 1 (1992) to argue that "bonding trumps all," i.e., that because A.K. had a strong bond with her mother, the court should have denied termination. We believe the reliance upon J.C. is misplaced.

In J.C., supra, although the Court reversed a termination order, it did so in the context of a "case[] in which [D.Y.F.S.] s[ought] termination of parental rights, not on grounds of current unfitness but because of potential harm to the child based on separation from a foster parent with whom the child has bonded . . . ." 129 N.J. at 18. The Court remanded the matter to the trial court for further testimony, but specifically noted "that termination may . . . be an appropriate resolution" despite the "significant relationship [the child had] with her natural mother . . . ." Id. at 25. Contrary to R.G.'s assertion, the Court in J.C. was not positing the proposition that a strong bonding evaluation overrides the best interests test; it merely held that given the facts of that particular case, the bonding issue had not been properly analyzed. See id. at 18.

In this case, in considering the fourth prong, the judge noted that while A.K. "has clearly expressed that she does not want to be adopted[,] [and] remains hopeful for reunification, [she] feels that . . . may not occur." He noted that A.K. was doing well academically, was "quite resilient," and would, with therapy, "eventually accept adoption." The judge noted in particular that A.K. "expressed a desire for a decision to be made soon so she can begin to deal with the outcome."

Thus, although at the time of trial M.M. was unwilling to adopt A.K., the judge found that his own conversations with the child corroborated Handshaw's testimony that D.Y.F.S. "anticipated no issues finding a select home for [A.K.]" The judge further noted that even Quintana acknowledged that severing the parental bonds might not cause "serious and enduring" harm to A.K., and that if an adoptive home was likely, Quintana's opinion regarding reunification with R.G. might change. In sum, the judge concluded that even if M.M. was unwilling to adopt A.K. at the time of trial, the child "must be permitted to move on, unencumbered by [R.G.] . . . ." We see no fault with the judge's thoughtful and thorough analysis.

Moreover, the supplemental evidence in the record supports the judge's conclusion in this regard. M.M. has expressed a willingness to adopt A.K. and the therapy records indicate A.K. has continued to thrive in her foster mother's care. We find no reason to reverse the termination order because of the lack of sufficient, credible evidence regarding prong four of the best interests test.

(b)

R.G. contends that the judge failed to consider that termination of her parental rights, followed by possible adoption, would result in a concomitant severing of contact between A.K. and her sister. We discern R.G.'s argument to be that the possible severing of the sibling bond is a factor that must be considered in the analysis regarding prong four of the statutory test.

The law guardian argues that "when in the best interests of the children, . . . courts should preserve the relationship between the siblings post-termination" even though the "courts have so far declined to do so." Nonetheless, A.K. supports the termination order and "recognizes that she needs to move on." Moreover, the law guardian notes that M.M. is permitting visitation between the sisters, and "[t]here is nothing in the record to question her good faith." D.Y.F.S. contends that in light of M.M.'s willingness to permit the visitation, the issue "is not in dispute . . . ."

New Jersey recognizes the importance of children maintaining relationships "with family members other than parents." In re the Adoption of a Child by W.P., 163 N.J. 158, 196 (2000); see also N.J.S.A. 9:6B-4(d) and (f) (providing that "best efforts . . . should be used to place the child in the same setting with the child's sibling if the sibling is also being placed outside his home"; and permitting visitation and contact between siblings that are separated).

The Court has declined to address the issue of post-adoption sibling visitation where there is no real dispute. See N.J. Div. of Youth and Family Servs. v. S.S., 187 N.J. 556, 563-64 (2006) (declining to rule on the issue because there was no controversy); In re Guardianship of J.N.H., 182 N.J. 29, 31 (2004) (declining to rule on the issue of post-adoption visitation because the foster parents indicated a willingness to permit same). We decline to do so for the same reason since the record reflects that A.K. is visiting with her sister.

Additionally, the Court has yet to rule on whether the potential severing of sibling bonds is a factor that impacts the analysis under the statutory standards for termination, and if so, how such evidence should be considered by the trial judge.

(c)

The balance of R.G.'s arguments lack sufficient merit to warrant extensive discussion in this opinion. See R. 2:11-3(e)(1)(E). We add only the following comments.

R.G.'s objection to the admission of D.Y.F.S.'s records into evidence ignores the express language of Rule 5:12-4(d) that permits them to be introduced. While this general rule of admissibility is predicated upon on a finding that the documents possess "'a reasonably high degree of reliability as to the accuracy of the facts contained therein[,]'" N.J. Div. of Youth and Family Servs. v. M.C. III, 405 N.J. Super. 24, 38 (App. Div. 2008) (quoting In re Cope, 106 N.J. Super. 336, 344 (App. Div. 1969)), rev'd on other grounds, ___ N.J. ___ (2009), R.G. has asserted no specific argument regarding the unreliability of any particular document that was admitted into evidence. As to her contention that an arrest report was admitted without any evidence that she was convicted of the charge, it is clear from the record that the report did not influence the judge's decision.

R.G. contends that the trial judge should not have relied upon Jeffrey's testimony in makings his decision. She provides no support for this argument, other than claiming that Jeffrey improperly relied upon the Diagnostic and Statistical Manual of Mental Disorders (DSM IV) in reaching her conclusions and that she was "careless" in her knowledge of the underlying facts of the case. The judge, however, had a thorough opportunity to assess the testimony of both experts. We find no basis to disturb his reliance upon Jeffrey's opinions.

Lastly, any challenge R.G. makes to the comments of counsel during summation regarding M.M.'s willingness to adopt A.K. is moot in light of our subsequent decision to grant her motion and the law guardian's motion to supplement the record. Additionally, it is clear from the judge's oral opinion that he did not rely upon counsel's summation representations in reaching his decision in the case.

Affirmed.

 

The order under review also terminated R.V.'s parental rights to A.K. He has not appealed.

Handshaw did not testify until the second day of trial in August.

A.K. expressed these same preferences during an in-camera interview with the trial judge.

We do not consider D.Y.F.S.'s position that R.G. "lacks standing" to request sibling visitation. As noted, we believe that is not the thrust of R.G.'s argument on appeal.

A panel of our colleagues recently affirmed the Family Part's denial of an application for post-adoptive sibling visitation brought by three children who were the subject of termination proceedings, finding, in part, that "the State's legislative policy is against forced sibling visitation post-adoption . . . ." N.J. Div. of Youth and Family Servs. v. N.J., ___ N.J. Super. ___, ___ (App. Div. March 30, 2010) (slip op. at 23). In this case, neither child has sought the court's intervention which presents another reason why we need not address the issue directly.

(continued)

(continued)

26

A-2762-08T4

RECORD IMPOUNDED

April 12, 2010