NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. J.R.O.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NEW JERSEY DIVISION OF

CHILD PROTECTION AND

PERMANENCY,

Plaintiff-Respondent,

v.

J.R.O.

Defendant-Appellant,

and

S.W.

Defendant-Respondent.

__________________________________

IN THE MATTER OF J.W., a minor.

__________________________________

May 14, 2014

Submitted April 2, 2014 - Decided

Before Judges Sapp-Peterson and Hoffman.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FN-11-9-12.

Joseph E. Krakora, Public Defender, attorney for appellant J.R.O. (Janet A. Allegro, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Division of Child Protection and Permanency (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Julie B. Christensen, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, attorney for respondent S.W. (John A. Salois, Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor J.W. (Phyllis G. Warren, Assistant Deputy Public Defender, on the brief).

PER CURIAM

J.R.O. and S.W. are the biological parents of J.W., born August 2002. J.R.O. appeals from the Family Part order granting legal and physical custody of J.W. to K.F., the paramour of S.W. We affirm.

On appeal, J.R.O. raises the following points for our consideration:

POINT I

THE COURT ERRED IN TRANSFERRING CUSTODY TO S.W.'S PARAMOUR PURSUANT TO N.J.S.A. 30:4C-12 AS SAID TRANSFER WAS NOT ONE EFFECTED AFTER A PROPER SUMMARY HEARING WITH ADEQUATE FINDINGS BASED ON COMPETENT EVIDENCE.

POINT II

THE COURT ERRED IN FINDING THAT J.R.O. WAS UNFIT, AND THEREFORE FAILED TO SATISFY THE STANDARDS OF N.J.S.A. 30:4C-12.

POINT III

THE COURT ERRED BY GIVING CUSTODY TO A NON-FAMILY MEMBER WHEN TWO RELATIVES WERE WILLING AND CAPABLE OF TAKING CUSTODY OF J.W.

I.

Following his birth, J.W. resided with J.R.O. until he was six months old, and with S.W. thereafter. Subsequently, East Windsor Township Police Department contacted the Division of Child Protection and Permanency (Division) to report that S.W. had been involved in a high speed police chase with J.W. in his vehicle. S.W.'s vehicle struck a police vehicle head-on and continued at a high speed. S.W. eventually stopped the vehicle, exited and ran on foot, leaving J.W. in the vehicle with the engine running. Police apprehended S.W., charging him with aggravated assault upon a police officer and various motor vehicle offenses.

The Division executed an emergency removal of J.W., and S.W. offered his mother D.W., who resided in Georgia, as a resource placement for J.W. By order dated February 23, 2011, the court transferred legal and physical custody of J.W. to D.W.

D.W. contacted the Division on March 7, 2011, reporting that when released from jail, S.W. kidnapped J.W. while he was playing outside. The court held a hearing and ordered that J.W. remain in D.W.'s custody. On July 12, 2011, however, Georgia Child Protective Services ("GCPS") notified the Division that D.W. had died a few days earlier. GCPS ordered J.W.'s return to foster care in New Jersey, and on July 15, 2011, he was transported back to New Jersey for placement. During this time period, the Division attempted to contact J.R.O. at a Pennsylvania number provided by Northampton Pennsylvania Child Protective Services; both times a female voice answered but disconnected the call when the Division asked for J.R.O.

The Division filed a verified complaint for custody, care and supervision. The court granted the application, and the Division placed J.W. in the physical custody of one of S.W.'s family friends. The court additionally ordered the Division to investigate and evaluate S.W. s plan for the care of J.W. in the event there were further incarcerations or emergencies. The court also ordered liberal and reasonable visitation with J.W. The court additionally directed the Division to continue to make efforts to serve copies of its pleadings on J.R.O., and ordered that "if she cannot be located, [it was] to institute a search and file an affidavit of diligent inquiry at the earliest possible time." Further, the court directed the Division to provide counseling for J.W. and services to S.W. because S.W. expressed an interest in caring for J.W., but was unable to do so pending disposition of the criminal charges. In accordance with the court's order, the Division arranged services for S.W. It also continued to search for J.R.O., but remained unsuccessful in locating her.

On October 7, 2011, the Center for Neurological and Neurodevelopmental Health performed a neurological evaluation of J.W. The report indicated that J.W. was performing below grade level, and his psychological evaluation indicated he was in the "Low Average" range. The report also noted J.W. was a classified student, had been recommended for occupational therapy for sensory issues and poor fine motor coordination, demonstrated impulsivity, attention issues, oppositional behavior, defiance, hitting, spitting, and aggression towards others. Finally, the report indicated J.W. had also required restraint in school.

The neurobehavioral history in the report stated that in the foster home, J.W. exhibited behavioral problems such as biting his two-year-old foster brother on the face and threatening the foster mother's niece. It was also reported he spits on himself, scratches others, and runs away. The report stated his sleep history involved snoring, nightly bedwetting and nightmares.

The diagnostic impression was that J.W. displayed evidence of Fetal Alcohol Effects ("FAE"), Post-Traumatic Stress Disorder ("PTSD"), and Attention Deficit Hyperactivity Disorder ("ADHD"). The report recommended that J.W. undergo several evaluations to assess his cardiac health, cognitive health and function, behavioral function, and sleep-related issues. It was also recommended that he receive cognitive behavioral therapy to address his PTSD.

The court held a case management conference on October 17, 2011. The Division informed the court that S.W. was once again incarcerated for violating a previously issued domestic violence restraining order. The Division also reported that it had located J.R.O., who was living out of state. The court scheduled a fact-finding hearing for October 31, 2011.

The hearing proceeded as scheduled. S.W. remained incarcerated at that point and did not appear for the proceeding, and although J.R.O. had been served with a copy of the pleadings, she failed to appear, despite the Division offering to provide transportation from Pennsylvania for her. The Division case worker, Kamilla Banks, testified J.R.O. had not visited J.W. in years, nor had she requested any visits. However, J.R.O. had asked about J.W.'s well-being, and offered her aunt, A.G., as an alternate plan to reunification. She reported that the aunt lived in North Carolina and requested the Division to initiate an interstate process.

The court exercised jurisdiction and converted the matter into a Title 30 proceeding for the care and supervision of J.W. At the conclusion of the hearing, the court ordered the Division to arrange visitation with S.W. at the Mercer County Correctional Facility, as both he and J.W. requested visitations. The court also entered a finding, by a preponderance of the evidence, that J.R.O. was in need of Division services and that she was unable to provide for her child's needs.

J.W. was psychiatrically evaluated on November 22, 2011 by Jagwinder Sandhu, M.D. J.W. reported that his mood was "happy to sad" and that he would bang his head when he was angry. He reported having friends in school, but also that he had difficulty controlling his anger because other children would make him angry. Dr. Sandhu opined J.W. had difficulty with interpersonal relationships and authority figures, which impacted his "low self-esteem, feelings of abandonment, anger, insecurity and interpersonal difficulties." He recommended individual psychotherapy, a stable living environment, continued placement in special educational settings and medication monitoring for his ADHD.

On December 5, 2011, J.W. entered Twin Oaks Community Services ("Twin Oaks"), a therapeutic foster home where he received services to address his behavioral needs. His treatment also included weekly therapy to address grief and separation.

On December 28, 2011, the Division forwarded a request to North Carolina to assess J.R.O.'s maternal aunt, A.G., through the Interstate Compact on the Placement of Children ("ICPC"); however, the application was later withdrawn when A.G. relocated to Philadelphia before the assessment was completed. J.R.O. also expressed interest in caring for J.W. in North Carolina where she resided with her sister, J.F.; however, the Division first required her to complete all recommended services.

J.W.'s foster parent informed the Division that S.W. called the home to speak to J.W., despite a directive that he only have supervised contact with J.W. through the Division. In January 2012, his foster parent asked that J.W. be removed due to concerns that S.W. would come to her home upon release from jail. The foster parent also indicated J.W. was exhibiting behavioral problems in the home and in school where he attacked a teacher by spitting and urinating on her, and kicking her in the stomach.

At a compliance review hearing held on February 7, 2012, the Division advised the court that S.W. failed to appear because he was being detained on another criminal matter. The Division provided J.R.O., who was living in North Carolina, with airfare, lodging and transportation to attend court and she appeared with counsel. The Division advised the court of its plan to reunify J.W. with J.R.O., contingent upon her completion of a substance abuse assessment in North Carolina, which was scheduled for March 15, 2012. The court accepted the Division's plan and ordered J.R.O. to complete an assessment prior to any transfer of custody to her. The court suspended visitation between S.W. and J.W. because, reportedly, J.W.'s behavior deteriorated during and after a visit with S.W. on January 24, 2012. The court also prohibited S.W. from contacting J.W.'s foster home.

To effectuate reunification with J.R.O., the Division forwarded an ICPC request to North Carolina for an assessment of J.R.O.'s home and background checks. The Division also provided information regarding substance abuse assessment programs in her area, and J.R.O. indicated she would complete an evaluation on March 15, 2012.

On March 8, 2012, Twin Oaks provided a report to the Division regarding J.W.'s placement and services. According to the report, J.W. participated in weekly therapy to address aggression, grief, trauma, fire-setting and medication monitoring. He also received psychiatric monitoring and a neurological examination. It was reported that J.W. was doing well in his latest placement, which began on February 6, 2012 in a therapeutic home. A therapeutic home has caregivers who have enhanced training to assist children who have special mental health needs. The report also indicated that during a supervised visit between J.R.O. and J.W., he expressed a desire to live with his mother and the Division agreed, at that time, that it would arrange phone contact between J.R.O. and J.W. during his weekly therapy sessions. After this particular visit, however, the Division's attempts to reach J.R.O. proved unsuccessful.

On March 16, 2012, the parties returned for a subsequent compliance review, at which J.R.O. was present with counsel. J.R.O. had not attended the court-ordered substance abuse assessment. She, however, submitted to a urine screen at court, the results of which were positive for marijuana. The court ordered J.R.O. to complete a substance abuse assessment in North Carolina within two weeks and also ordered her to cease all drug use prior to a transfer of custody. The court also ordered that J.W. remain in the Division's custody and in a therapeutic foster home.

The Anuvia Prevention and Recovery Center informed the Division, by way of letter dated May 7, 2012, that J.R.O. did not enter substance abuse treatment in North Carolina on April 25, 2012 or May 2, 2012, as scheduled. She also tested positive for marijuana on May 9, 2012. On June 1, 2012, ICPC of North Carolina rejected J.R.O. as a placement for J.W. following the home assessment. Instead, ICPC required that she complete a substance abuse treatment program, attend parenting classes, and secure employment. J.R.O. provided her sister, J.F. as an alternate placement option.

The court held the next compliance review hearing on June 5, 2012. J.R.O. did not appear, but was represented by counsel. The Division advised the court that S.W.'s paramour, K.F., would be reassessed as she had an ongoing relationship with J.W. At this time, S.W. remained incarcerated on criminal charges. The court found that J.R.O. was "choosing drugs over her child" because she tested positive for marijuana and then failed to comply with any services regarding her drug use.

On June 12, 2012, J.W. underwent a neurological evaluation at the Children's Specialized Hospital. Dr. Zeenat Malik, a neurologist, performed the evaluation. He reported that J.W.'s maladaptive behaviors had begun to improve. He also observed J.W. exhibited signs of FAE and that the therapeutic placement had been the most beneficial to him since he had been in the Division's custody. He recommended that J.W. remain in a therapeutic foster home because removal could be detrimental to him. Lastly, Dr. Malik recommended that J.W. continue psychiatric therapy. The Division conducted a home assessment of K.F.'s home on June 18, 2012. K.F. discussed her domestic violence history with her son's father and his jealousy toward S.W. The Division expressed its concern how her son's father would react to J.W. residing with her and, at that time, ruled her out as a potential placement for J.W.

The court conducted a compliance review hearing on July 24, 2012. J.R.O. did not appear but was represented by counsel. A.G. submitted a letter indicating her interest in caring for J.W. In the letter, she indicated she had just completed a criminal background investigation for her Certified Nurse's Assistant certification. The court found A.G.'s expressed interest in taking custody of J.W. was vague. The Division reported its concerns about any placement with K.F., based upon the reported jealousy of her son's biological father. The court, nonetheless, found that K.F. had a strong relationship with J.W. and ordered a full assessment of K.F., noting that it had been reported she understood his needs, and J.W. wanted to live with her. The court noted that J.R.O., on the other hand, failed to provide proof of employment to the court and had no recent communication with the Division case worker.

In August 2012, the Division reassessed K.F.'s home and found she had adequate space to accommodate J.W. K.F. expressed a strong desire to care for J.W. in her home and also expressed an understanding of his intensive needs. S.W. was released from jail on August 8, 2012, and the Division referred him for a substance abuse evaluation, parenting skills training, anger management and counseling. He entered a drug treatment facility on August 22, 2012.

In September 2012, Twin Oaks reported that J.W. had begun supervised therapeutic visits with his father and K.F., whom he called "mom." Twin Oaks also reported that S.W.'s behavior was appropriate during the visits. As for J.W., however, it relayed to the Division that he was exhibiting extreme behaviors, including throwing stones at a window in the foster parent's home, expressing that he wanted to kill the foster parent and her grandson, attempting to kick out a window in a moving vehicle, and having outbursts. Twin Oaks recommended that a psychiatrist administer medication to stabilize his mood. Due to his unstable behaviors, Twin Oaks also recommended that visits with S.W. be temporarily suspended. Neither J.R.O., J.F. nor A.G. made an effort to telephonically contact J.W. during this time period.

The ICPC report denied J.F. as a placement because J.W. needed to reside in a therapeutic home. The report also indicated that the North Carolina Interstate office did not license therapeutic homes and returned the case to New Jersey.

On October 2, 2012, the court held a permanency and compliance review hearing at which both J.R.O. and S.W. appeared with counsel. In addition, K.F. also appeared at this proceeding. J.R.O.'s attorney presented documentation from Anuvia Prevention and Recovery Center drug treatment program indicating that J.R.O. had enrolled in the program on September 19, 2012, and had attended three out of five sessions.

The court approved the Division's permanency plan to transfer custody of J.W. to K.F., finding that the Division's plan was reasonable and that its efforts, in working towards reunification with J.R.O. and S.W., had been "more than reasonable, they've been extensive, to the extent that they could have even been put in place." The court also noted that J.W. wanted to live with K.F. The court notified all parties that it was required to conduct a dispositional hearing, stating:

A [c]ourt just can't change custody, either everybody has to agree or you have to have a hearing. At a hearing then any additional evidence or testimony that would be necessary could be heard. Today is not a day that I can hear three witnesses with direct examination and cross[-]examination by three attorneys, so that would have to be scheduled for another day.

Further, in order to make sure that [J.W.] is continuing to receive the therapeutic services that the Division can offer- - which is here in New Jersey. It's where the Division operates, not in Pennsylvania, not in North Carolina, or any place else, that can only be here. The Division- - the [c]ourt is going to continue to bring the case back.

In that regard since there may be testimony that has to be heard at such a dispositional hearing or custody hearing or whatever kind of hearing you want to call it, probably custody. But, in the event that there's testimony or additional evidence that needs to be brought in[,] I'll schedule it on a day other than a status conference day. How about Monday, December 10th?

J.R.O.'s attorney had not brought her calendar to court, but she advised the court she would appear on December 10, as scheduled by the court. She also confirmed that J.R.O. opposed awarding custody of J.W. to K.F. However, S.W. agreed to the proposed change in custody. The Division placed J.W. with K.F. on October 17, 2012. He continued to receive therapy through Twin Oaks.

The court conducted the dispositional hearing on December 10, as scheduled. Neither J.R.O. nor S.W. appeared at this proceeding, but both were represented by counsel. J.R.O.'s attorney advised the court that she was noticed for a compliance review hearing and had not learned that it was to be a dispositional hearing until that very morning. The Division's attorney stated that all parties had been present on October 2, when the court advised that the next proceeding would be a full custody hearing because both parties had not consented to the custody transfer. S.W.'s attorney and the law guardian also agreed that the purpose of the proceeding was to determine custody. The court overruled J.R.O.'s attorney's objection to the matter proceeding as a custody hearing. The court stated:

Well I think we were--I think it was fairly clear, on the record, what the issues were, what to be prepared for. I'm going to go ahead with the hearing today. I don't know where [J.R.O.] is. Whether calling it one kind of hearing or another, and I've heard them called so many different kinds of hearings, it's really important to, really, define what the issues are. I think they were pretty clear the last time we were here, so that everybody had notice and an opportunity to be heard. That is the essence of due process.

After hearing testimony from the Division caseworker and K.F. and finding their testimony credible, the court found that "[J.R.O.] has a substance abuse problem with marijuana," which, at the time of the hearing, continued to exist. The court addressed J.R.O.'s contention that she had participated in a few classes at a rehabilitative facility. The court reasoned that participation in a program was not equivalent to completing treatment as had been ordered. The court concluded that J.R.O. was "using drugs and choosing drugs over her child." The court stated:

[J.R.O.] continues to be unfit to be a parent for all of the reasons that are stated in Title 30. She doesn't provide for protection, maintenance, and education. She doesn't ensure health, and safety of the child. She - - that behavior endangers the welfare of the child, because she is not there for him, and he needs stable housing, stable relationships, stable parenting, in order to be able to grow and develop.

The court found that the other placements offered by J.R.O. were not better because the assessments were incomplete and there was no competent evidence before the court reflecting otherwise. Further, the court observed that the other prospective resource persons had not attended any of the hearings, testified telephonically, or submitted certifications.

The court assessed the case pursuant to N.J.S.A. 9:2-4. The court found the parents' ability to agree, communicate, and cooperate in matters relating to the child was inapplicable because J.R.O. "has been absent from that and not available for meaningful consultation." N.J.S.A. 9:2-4(c). Next, the court looked at the parents' willingness to accept custody and the history of the court's disallowance of parenting time based upon substantial abuse. Ibid. Thecourt foundthat J.R.O. has not been willing to accept custody because she has not demonstrated a willingness to undergo rehabilitation or complete other services recommended by the Division. Next, the court looked at the interaction and relationship of J.W. with his parents. Ibid. The court found that J.W. hadn't had much interaction with J.R.O., and further noted that he would have the opportunity to interact with his siblings as K.F. saw fit.

Fourth, the court assessed the history of domestic violence. However, the judge found this factor inapplicable to this case. Ibid. Fifth, the court assessed the safety of J.W., safety of either parent from physical abuse by the other parent, but also found this factor inapplicable. Ibid. Sixth, the court assessed J.W.'s preference, noting that at ten years old, he "has some meaningful, well-reasoned decision[s] here," but expressed hesitancy as to how much weight should be accorded to J.W.'s expressed preference related to where and with whom he would reside. Ibid.

Next, the court assessed J.W.'s needs. Ibid. The court found that J.W. had significant needs, and found that K.F. had a "very good understanding of exactly what his needs are and, is capable of taking care of them." The court further found that there was no stable environment with J.R.O. because she suggested family placements, requested services, and then disappeared. In contrast, the court found K.F. offered a stable home. The court also found J.W. needed quality and continuous education, and found that he may have a chance to receive that with K.F.

The court further found that J.W.'s geographic location in New Jersey allows S.W. to be able to have involvement in J.W.'s life and to provide support to him. The court assessed the extent and quality of the time that had been spent with J.W., and, in doing so, found there was no evidence that J.R.O. had had much involvement in J.W.'s life up to that point. The court also considered the parents' employment responsibilities and found that not to be relevant because S.W. had been incarcerated and there was no evidence J.R.O. had established stable employment. Ibid. Lastly, the court considered J.W.'s age and found that K.F. would facilitate a relationship with his siblings. The court concluded that J.R.O. was not a fit parent.

The court granted sole legal and physical custody to K.F. The present appeal followed.

II.

J.R.O. argues the trial court ignored the standards set forth in N.J.S.A. 30:4C-12, requiring evidentiary summary hearings every six months after the court transfers custody of a child to the Division. Specifically, J.R.O. contends the trial court did not have competent evidence before it during the court hearings to properly assess the case. J.R.O. further argues that the court failed to adhere to the statutory guideline that requires the court to conduct a summary hearing and asserts there was one and one-half years between the complaint and custody hearing. Lastly, J.R.O. argues the court's failure to properly categorize the hearing resulted in insufficient notice to all parties.

Both the Division and S.W. urge that J.R.O. was afforded procedural due process throughout the course of the proceedings. The Division further argues that the numerous court hearings satisfied the statutory requirement mandating summary hearings every six months because the hearings addressed J.W.'s continued need to remain in the Division's custody and J.R.O.'s lack of compliance with services.

Judge William Anklowitz presided over the underlying proceedings from the inception of the Division's involvement in February 2011, when S.W. was arrested in connection with the aggravated assault on a police officer and motor vehicle offenses. The judge continued his involvement, to include presiding over the October 2, 2012 fact-finding proceeding and the December 10, 2012 custody hearing. His factual determinations made in the fact-finding and dispositional hearings are entitled to our deference because those findings are supported by substantial, credible evidence in the record. N.J. Div. of Youth & Family Servs. v. I.Y.A., 400 N.J. Super. 77, 89 (App. Div. 2008) (quoting Cesare v. Cesare, 154 N.J. 394, 412 (1998)). As the judge who presided over the numerous proceedings in this matter, he was best suited to assess credibility, weigh testimony and develop a feel for the case. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010). As such, we extend special deference to his expertise as a Family Part judge. Ibid.; see also Cesare, supra, 154 N.J. at 413. Unless the judge's factual findings were "so wide of the mark that a mistake must have been made[,]" the findings should not be disturbed, even if we, as a reviewing court, would not have made the same decision if hearing the case in the first instance. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007). Measured by these standards, we have no occasion to disturb the judge's factual findings or application of the law to the facts here.

Judge Anklowitz met the procedural requirements of N.J.S.A. 30:4C-12 and considered competent evidence in reaching his ultimate conclusions. J.W. was officially placed with the Division on July 19, 2011, following the death of his paternal grandmother, D.W. After the July 19, 2011 placement, the court held numerous hearings in which exhibits were submitted and evaluated by the court. The judge's decision not only was based upon his consideration of testimony from the Division representative most familiar with the case, but also upon the numerous reports admitted into evidence without objection. Those exhibits included reports from J.W.'s treating doctors and therapists. At the conclusion of each hearing the judge entered corresponding orders continuing custody of J.W. with the Division until custody was transferred to K.F. in October 2012.

In so far as proceeding with the dispositional hearing on December 10, 2012 without affording proper notice, J.R.O.'s attorney advised the court the notice for the December 10 hearing identified the proceeding as a compliance review hearing. We find no basis, as a result of that misidentification, to set aside the court's order. During the October 2, 2012 hearing, the court informed the parties that without the consent of both parents for a change in custody, a custody hearing was required. The court stated: "A court can't just change custody, either everybody has to agree or you have a hearing." The court proceeded to schedule the hearing for December 10. J.R.O. was present at that hearing as was her attorney. We are satisfied that J.R.O. and her attorney were put on notice that the December 10 hearing would be a custody proceeding.

J.R.O.'s argument that the evidence did not support the court's conclusion that she had a substance abuse problem is belied by the record. She tested positive in a drug screen conducted during her court appearance as well as in North Carolina during its investigation on behalf of the Division. We agree that the fact of her substance abuse alone may not be dispositive of her fitness to parent J.W. N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 331 (holding that "Title 9 is not intended to extend to all parents who imbibe illegal substances at any time"). The court, however, did not base its determination that J.R.O. was unfit to parent J.W. solely upon her substance abuse. The judge also noted that J.R.O. failed to have a meaningful presence in J.W.'s life since he was six months old, and had essentially "cut herself off from [J.W.]."

The record supports the judge's finding in this regard. It revealed that J.R.O. has done nothing for J.W. other than to participate in one supervised visit in February 2012 and engage in an occasional telephone conversation with J.W. J.R.O. did not complete the drug assessment or services offered by the Division as a prerequisite to being granted custody, despite her awareness that the Division was attempting to reunify her with J.W. She also failed to provide documentation proving that she had stable employment or housing.

A parent fails to exercise a minimum degree of care where a parent knows of the dangers inherent to a particular situation and fails to adequately "supervise the child" or creates a risk of injury to that child. G.S. v. Dep't of Human Servs., 157 N.J. 161, 181-82 (1999). "Whether a parent or guardian has failed to exercise a minimum degree of care is to be analyzed in light of the dangers and risks associated with the situation. . . . Ultimately, we leave it to [the Division] and the courts to determine, on a case-by-case basis, whether a caregiver has failed to exercise a minimum degree of care in protecting a child." Ibid.

Having notice that J.W. had been removed from S.W.'s custody and being aware the Division was seeking to reunify J.W. with her, J.R.O. took no meaningful steps to affirmatively work toward putting herself in a position to provide the minimum degree of care necessary to provide a nurturing and stable home for J.W. "Courts need not wait to act until a child is actually irreparably impaired by parental inattention or neglect." In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999). Fact-finding hearings are critical in establishing whether a child has been abused or neglected, and such a determination must be based on "competent, reliable evidence." N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 264-65. In short, there was substantial, credible evidence in the record supporting Judge Anklowitz's determination that J.R.O.'s behavior endangered the health and safety of J.W. and that she was therefore unfit to parent him.

J.R.O. additionally argues the court erred in granting custody to K.F. as opposed to his maternal aunt, which is contrary to legal precedent favoring relatives over non-relatives for placement options. J.R.O. also argued the court's decision was not in the best interest of J.W., but was done for expedience. We disagree.

"Since the right of parents to the custody of their minor children is both a natural and legal right, the law should not disturb the parent/child relationship except for the strongest reasons and only upon a clear showing of a parent's gross misconduct or unfitness or of other extraordinary circumstances affecting the welfare of the child." Moriarty v. Bradt, 177 N.J. 84, 112 (2003) (quoting Watkins v. Nelson, 163 N.J. 235, 245 (2002)). In exceptional and limited circumstances, courts have granted custody rights to non-relatives to protect the best interests of the child. V.C. v. M.J.B., 163 N.J. 200, 205-06, 227-28 (2000). A non-biological parent who has willingly, and with the consent of the biological parent, undertaken duties of a parent to a child not related by blood or adoption and has become a psychological parent, may stand in "parity with the legal parent" with custody and visitation decided based on the best interest of the child standard. Ibid.; Watkins, supra, 163 N.J. at 253 (holding that a custody dispute between third party and parent first requires application of the parental termination standard or a finding of "exceptional circumstances").

The Division has a statutory obligation to contact relatives of a child in its custody. N.J.S.A. 30:4C-12.1 provides that "[i]n any case in which the Department of Children and Families accepts a child in its care or custody, including placement, the department shall initiate a search for relatives who may be willing and able to provide the care and support required by the child." However, there is no presumption in favor of placement with relatives. N.J. Div. of Youth & Family Servs. v. M.F., 357 N.J. Super. 515, 528 (App. Div. 2003). In reviewing a child's placement, courts must determine whether "such placement ensures the safety and health and serves the best interest of the child." N.J.S.A. 30:4C-51. Thus, "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).

Here, in weighing the best interest of J.W., the court found there was no evidence that A.G. or J.F. were better placements than K.F. The court also found that J.R.O.'s relatives did not complete the assessments, did not come to court to testify, did not submit certifications, and A.G. moved without informing anyone, which the court found raised a question of her willingness to assume custody of J.W.

The court considered the appropriate statutory factors outlined in N.J.S.A. 9:2-4 (c) and concluded that awarding custody to K.F. was in J.W.'s best interest, specifically finding that J.W.'s emotional needs would be better served by K.F., who had a clear understanding of his needs and was in the best position to address those needs.

The record supports the court's findings and those findings are entitled to our deference. Cesare, supra, 154 N.J. at 411. There is no evidence in the record that A.G. had a relationship with J.W. The record clearly demonstrated, however, J.W. viewed K.F. as his mother, referred to her as "mom" and had developed a relationship with her. More importantly, she has been a consistent presence in his life since she assumed custody and worked cooperatively with his therapists.

Affirmed.