NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. S.F.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

A-2726-13T3

NEW JERSEY DIVISION OF

CHILD PROTECTION AND

PERMANENCY,

Plaintiff-Respondent,

v.

S.F. and H.S.,

Defendants-Appellants.

____________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF S.S.S.S. and S.R.S., minors.

_____________________________________

December 16, 2014

Submitted December 9, 2014 Decided

Before Judges Yannotti and Fasciale.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-156-13.

Joseph E. Krakora, Public Defender, attorney for appellant S.F. (Dianne Glenn, Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, attorney forappellant H.S.(Alan I.Smith, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorneyfor respondent(Andrea M. Silkowitz, Assistant Attorney General, of counsel; Merav Lichtenstein, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors S.S.S.S. and S.R.S. (Caitlin McLaughlin, Designated Counsel, on the brief).

PER CURIAM

S.F. (the "mother") and H.S. (the "father") (collectively referred to as "defendants") appeal from a February 7, 2014 order1 terminating their parental rights to their biological children, ten-year-old S.S.S.S. ("Sam") and eight-year-old S.R.S. ("Susan") (collectively referred to as the "children").2 We affirm.3

I.

The Division of Child Protection and Permanency (the "Division") first learned of possible physical abuse to the children by the father on September 18, 2008. The Division determined that any contact between the father and the children must be supervised because of the pending physical abuse allegations and a prior charge that the father sexually abused his younger cousin. While the Division investigated the allegations of physical abuse, it received another referral that the father hit the children with a belt, leaving bruises on Sam's back and Susan's face.

The Division then performed a Dodd removal due to the imminent danger to the children.4 Based on its investigation, the Division required defendants to undergo drug tests. Defendants tested positive for marijuana, and the father additionally tested positive for cocaine.

The Division offered defendants reasonable services to help them eliminate the harm that led to the removal including domestic violence counseling, drug rehabilitation, and parenting classes. The father failed to complete a domestic violence counseling program because he made terroristic threats to the staff. The mother initially did not comply with her drug treatment referrals, but eventually completed an outpatient drug and parenting program, resulting in the children being returned to the mother's care. By this time, the father had been incarcerated on charges related to murder and possession of a controlled dangerous substance.

After reunification with the mother, the Division investigated additional reports that she physically abused the children. The children confirmed that the mother punched Sam in the eye, and that she gave Susan a "whooping" with a belt. The Division then removed the children from the mother's care. The father remained incarcerated.

The Division provided defendants with additional services, such as parenting classes, substance abuse counseling, and psychological and bonding evaluations. Although the Division had made available these continued services, defendants were unable to overcome the circumstances that led to the second removal.

The judge conducted a guardianship trial, concluded in an oral opinion that the Division satisfied its burden by proving clearly and convincingly all four prongs of N.J.S.A. 30:4C-15.1a, and entered the order under review.

II.

On appeal, defendants contend that the trial judge misapplied only the third and fourth prongs of N.J.S.A. 30:4C-15.1 A. 5 The father also asserts that we should remand the matter and direct the judge to conduct a kinship legal guardianship ("KLG") hearing.

In reviewing a decision by the trial court to terminate parental rights, we give "deference to family court[s'] fact[-] finding" because of "the family courts' special jurisdiction and expertise in family matters[.]" Cesare v. Cesare, 154 N.J. 394, 413 (1998). The judge's findings of fact are not disturbed unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Id. at 412 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). "[T]he conclusions that logically flow from those findings of fact are, likewise, entitled to deferential consideration upon appellate review." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 89 (App. Div. 2006), certif. denied, 190 N.J. 257 (2007).

A.

The judge's conclusion that the Division satisfied its burden under N.J.S.A. 30:4C-15.1a(3) is supported by substantial credible evidence in the record.

Pursuant to N.J.S.A. 30:4C-15.1a(3), the Division is required to make "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 must consider alternatives to termination of parental rights. This third "prong of the [best interests of the child] standard contemplates efforts that focus on reunification of the parent with the child and assistance to the parent to correct and overcome those circumstances that necessitated the placement of the child [30] into foster care." In re Guardianship of K.H.O., 161 N.J. 337, 354 (1999).

Here, the record demonstrates that the Division made reasonable efforts to provide defendants with parenting classes, substance abuse counseling, and psychological and bonding evaluations.

As to the mother, the judge found that "[the] Division has made so many referrals to [the mother]" and added that

[It has been] over two years since the second removal, and she's still not complied with any of the services.

She's been through three or four different drug programs, she's still not complying. She's testing positive [for drugs], she never went for the [domestic violence counseling], she hasn't complied with all counseling. It's . . . unfathomable that a mother who wants her children back can spend two years not complying with services. . . . Either she refuses to change, refuses to comply with services, or doesn't have the wherewithal to . . . look for change in her life so that she could be a viable parent for these children.

As to the father, the judge recognized that he had been incarcerated since 2010 on charges of murder and possession of controlled dangerous substances. The judge found that the father had not seen his children

in four or five years, hasn't talked to them, has made no efforts, and . . . admits [he does not know] whether they're alive or dead. . . .

He caused the initial harm that created the first removal . . . . [He] continued to cause harm by his failure to be involved, involvement in the criminal process, his constantly being in jail, [and] his other criminal acts.

Clearly, he could not comply with services. He's not been available nor does he really offer himself as a plan at this particular point and continues that harm.

Also, pursuant to the third prong, the judge considered and ruled out any potential relatives as placement options for the children. The Division presented credible evidence that none of the relatives were viable caretakers for the children. One relative failed to receive the requisite training, and the Division could not confirm the children were actually related to this individual. Another relative was a "substantiated perpetrator" with the Division, and a third relative had the children placed with her in 2009 only to have them removed.

B.

The judge's conclusion that the Division satisfied its burden under N.J.S.A. 30:4C-15.1a(4) is also supported by substantial credible evidence.

N.J.S.A. 30:4C-15.1a(4) "requires a determination that termination of parental [31] rights will not do more harm than good to the child[ren]." K.H.O., supra, 161 N.J. at 354-55. "A child's need for permanency is an important consideration under the fourth prong." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 281 (2007). It is well-established that to satisfy this prong, the State should present a "well qualified expert who has had full opportunity to make a comprehensive, objective and informed evaluation of the child's relationship with . . . the natural parents . . . ." Ibid. (citations and internal quotation marks omitted).

Here, the Division presented expert testimony that defendants were not a viable parenting option for the children and were not likely to become a viable parenting option in the foreseeable future. The expert concluded within a reasonable degree of psychological certainty that termination of defendants' parental rights "would provide more benefit to the children then harm."

The Division's expert testified that the mother had "difficulty placing the needs of children in the forefront and [has] difficulty understanding appropriate childhood development." During her bonding evaluation with the children, the expert stated that "[the mother] made a phone call and had a gentleman on the phone for about [thirty-five] minutes" and that [she] "was more interested in maintaining that phone contact than in interacting with the kids." The father was incarcerated at the time of the proceedings and admittedly "did not equate the best interest of the children with himself or with [the mother]."

The judge found the expert's testimony "extremely honest" and "totally unrefuted." Based upon the testimony provided, the judge concluded that the children "will not achieve permanency and stability" with defendants. The judge determined that the mother failed to demonstrate her bond with the children by spending thirty-five of the fifty-minute bonding evaluation on the phone with another individual, repeatedly putting the children in danger, and failing to give the children stability and permanency. He found that the father is "totally disconnected from the children" to the point where he admitted he "doesn't know whether they're alive or dead."

C.

The father's contention that the matter should be remanded for a KLG hearing is "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(1)(E). We add the following brief remarks.

"A kinship legal guardian is defined as 'a caregiver who is willing to assume care of a child due to parental incapacity, with the intent to raise the child to adulthood . . . .'" N.J. Div. of Youth & Family Servs. v. L.L., 201 N.J. 210, 223 (2010) (quoting N.J.S.A. 3B:12A-2). KLG is "an alternative permanent placement option without the need for termination of parental rights and 'where adoption is neither feasible nor likely.'" Ibid. (quoting N.J.S.A. 3B:12A-1c). Here, the Division presented credible evidence that adoption is feasible and likely.

III.

We now turn to the Law Guardian's motion seeking to vacate the order terminating the parental rights as to the mother, or in the alternative, requesting that we remand for the judge to rule on the motion.

The Law Guardian contends that after the judge terminated the mother's parental rights, the mother has since overcome the circumstances leading to the second Dodd removal. As a result, the Law Guardian requests that we, rather than the judge, vacate the order terminating the parental rights as to the mother. The Law Guardian filed the motion to vacate the order pursuant to Rules 4:50-1(e) and (f), which provide that

On motion, with briefs, and upon such terms as are just, the court may relieve a party or the party's legal representatives from a final judgment or order for the following reasons: . . . (e) . . . a prior judgment or order upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or order should have prospective application; or (f) any other reason justifying relief from the operation of the judgment or order.

"A motion under Rule 4:50-1 is addressed to the sound discretion of the trial court, which should be guided by equitable principles in determining whether relief should be granted or denied." Hous. Auth. of Morristown v. Little, 135 N.J. 275, 283 (1994) (emphasis added).

Generally, we decline to consider issues not properly presented in the trial court. Neider v. Royal Indemnity Insurance Co., 62 N.J. 229, 234 (1973). Furthermore, the Law Guardian's request would require us to make findings of fact, which we also decline to do. See State v. Harris, 181 N.J. 291, 417 (2004) (stating that an appellate court's ability to invoke original jurisdiction "is permissive" and "it is correspondingly discretionary"); accord Vas v. Roberts, 418 N.J. Super. 509, 524 (App. Div. 2011) (noting that the exercise of original jurisdiction "should not occur routinely"). Therefore, Rule 4:50-1 motions should be made in the trial court, not this court.

Accordingly, we focus on and reject the Law Guardian's alternative argument that the matter should be remanded for the trial court to consider the Rule 4:50-1 motion. As previously noted, "[a] child's need for permanency is an important consideration under the fourth prong" of the best interest of the child standard. M.M., supra, 189 N.J. at 281. Because of this well-settled goal, the "strong judicial interest in protecting children and preserving the stability of their foster-care arrangements, and in many cases their ultimate adoption, counsels against permitting collateral attacks on [termination of parental right] judgments except in rare cases." In re Guardianship of J.N.H., 172 N.J. 440, 479 (2002). This is not one of those rare cases.

Here, the Law Guardian acknowledges that within a few weeks of the order terminating the mother's parental rights as to Sam and Susan, the mother gave birth to a third child ("Adam"),6 who tested positive for opiates at birth and was placed into the Division's custody. The Law Guardian maintains that following Adam's removal, the mother has successfully attended all services provided by the Division, has tested negative for drugs, and now has unsupervised home visits with Adam.

Although the mother's current efforts are relevant to the circumstances that led to the removal of Adam, they do not change the judge's findings as to Sam and Susan. We disagree with the Law Guardian's contention that the Court's decision in J.N.H. requires a remand. The Court in J.N.H. noted that "unrebutted evidence of [a parent's] rehabilitation" is not enough to require a Rule 4:50-1 hearing when termination of parental rights has already been ordered. Id. at 479-80. This is because the case is not about the mother, "who by her prior actions is wholly responsible for the position in which she finds herself[,]" but rather the children's "long-term well-being." Id. at 480.

The trial court in this case properly determined by clear and convincing evidence that Sam and Susan will not achieve the permanency and stability they require with the mother. And, pursuant to J.N.H., the Law Guardian has not provided a sufficient basis to delay disposition of the appeal by requiring the judge to rule on the motion to vacate. We are convinced that a remand would unnecessarily delay the select-home adoption process and thereby unfairly deprive the children of the opportunity for permanency they require.

Affirmed.

1 Defendants' appeals were consolidated pursuant to a March 28, 2014 order.

2 The names "Sam" and "Susan" are fictitious.

3 In her merits brief, the Law Guardian urged us to affirm the February 4, 2014 order. However, on December 4, 2014, the Law Guardian filed a Rule 4:50-1 motion seeking to vacate the order solely as to the mother contending that the mother has since eliminated the harm that led to the children's removal. Alternatively, the Law Guardian requests that we remand the matter for the judge to decide the motion. Without filing a separate motion, the mother and father filed separate briefs on December 9, 2014, requesting the relief sought by the Law Guardian.

4 A "Dodd removal" refers to the emergency removal of a child from the home without a court order, as authorized by N.J.S.A. 9:6-8.29 of the Dodd Act, N.J.S.A. 9:6-8.21 to -8.82.

5 In their merits brief, defendants conceded that they harmed the children and were unable to eliminate the harm that led to the removal of the children. As a result, we need not address prongs one and two of N.J.S.A. 30:4C-15.1a. See Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011) (noting "[a]n issue not briefed on appeal is deemed waived").

6 The name "Adam" is fictitious. Adam's birth father is different from Sam and Susan's and he is not a party to the appeal.