DIVISION OF CHILD PROTECTION AND PERMANENCY v. J.S.
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3964-16T2
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
J.S.,
Defendant-Appellant,
and
J.A.S., III,
Defendant.
_____________________________________
IN THE MATTER OF THE GUARDIANSHIP
OF J.J.S., J.J.A.S., III and
J.A.S., IV,
Minors.
______________________________________
Submitted January 17, 2018 - Decided February 1, 2018
Before Judges Hoffman, Gilson and Mayer.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Ocean County,
Docket No. FG-15-0010-17.
Joseph E. Krakora, Public Defender, attorney
for appellant (Carol A. Weil, Designated
Counsel, on the brief).
Gurbir S. Grewal, Attorney General, attorney
for respondent (Melissa H. Raksa, Assistant
Attorney General, of counsel; Constance
Russell Tous, Deputy Attorney General, on the
brief).
Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minors (Melissa R.
Vance, Assistant Deputy Public Defender, on
the brief).
PER CURIAM
Defendant J.S. (Jena) appeals from a May 3, 2017 Family Part
order terminating her parental rights to her three youngest
children: Jeff, born in February 2012, Jack, born in March 2013,
and Jimmy, born in September 2016.1 The Division of Child
Protection and Permanency (Division) and the children's Law
Guardian argue in support of the judgment.
Defendant's brief raises the following points of argument:
POINT I
THE MOTHER WAS DENIED HER CONSTITUTIONAL RIGHT
TO DUE PROCESS WHEN THE PERMANENCY HEARING FOR
A THREE[-]MONTH[-]OLD BABY WAS CONDUCTED
BEFORE THE MOTHER WAS REPRESENTED BY COUNSEL
AND WITHOUT THE OPPORTUNITY FOR HER TO
CHALLENGE [THE DIVISION'S] FAILURE TO COMPLY
WITH FEDERAL AND STATE REQUIREMENTS.
1
We use pseudonyms to protect the children's privacy interests.
R. 1:38-3(d)(12).
2 A-3964-16T2
POINT II
THE TRIAL COURT ERRED BY TERMINATING THE
MOTHER'S PARENTAL RIGHTS BECAUSE ALTERNATIVES
TO TERMINATION, INCLUDING EVALUATION OF FAMILY
MEMBERS AND FAMILY FRIENDS AS POTENTIAL
CAREGIVERS, WERE NOT FULLY OR PROPERLY
CONSIDERED.
POINT III
TERMINATION OF THE MOTHER'S PARENTAL RIGHTS
MUST BE REVERSED BECAUSE THE COURT WRONGLY
FOUND THAT THE DIVISION HAD MED ITS BURDEN OF
PROOF AS TO THE FOURTH PRONG OF THE BEST
INTERESTS TEST.
Following our review of the record, we affirm substantially for
the reasons expressed by Judge Madelin F. Einbinder in her oral
opinion issued on May 3, 2017.
I
Jena and J.A.S., III (Joe)2 are the biological parents of
J.J.S (Jeff), J.J.A.S., III (Jack), and J.A.S., IV (Jimmy). Jena
also has two older children, Felix and George, by different
fathers. The case under review does not involve these older
children.
Jena's involvement with the Division dates back to October
2009 and pertained to Felix and George. However, following Jeff's
birth, the Division received numerous referrals regarding Jena.
2
Joe did not appeal from the order terminating his parental
rights.
3 A-3964-16T2
The Division was providing Jena services in 2012 when she
gave birth to Jeff. In July 2012, Jena's drug treatment program
discovered she had opiate prescriptions at multiple pharmacies.
Subsequently, the treatment program discharged Jena after she
refused to sign a release that would allow it to contact her
prescribing physician.
In December 2012, the Division received a referral that Jena
was pregnant (with Jack) and using heroin or morphine. The
reporter also told the Division there was domestic violence in the
home, and Jeff appeared developmentally delayed. At the time,
Jena was attending a methadone clinic. In January 2013, the
Division learned Jena was receiving methadone from two sources,
and she left her drug treatment program after it confronted her
about this allegation.
On January 11, 2013, the Division filed a complaint for care
and custody of Felix, George, and Jeff. The Family Part granted
care and supervision, and ordered Jena and Joe to attend substance
abuse treatment and attend psychological evaluations.
On March 12, 2013, Dr. David R. Brandwein, Psy.D., completed
a psychological evaluation of Jena. He endorsed Jena as "an
independent caretaker"; however, he also opined that "should
[Jena] test positive for any substance not prescribed to her and/or
should she permit [Joe] to have access to her children while he
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is suspected or using drugs and/or under the influence, the
Division should immediately re-petition the Court for custody of
the minor children."
In November 11, 2013, a referral alleged Jena was using and
selling drugs, had a "disgusting" home, and was not properly caring
for her children. The Division determined the allegations were
unfounded, but noted Jena refused to allow her caseworker to count
how many pills she had in her pain medication bottle; Jena claimed
she had given some pills away.
In June 2014, the police contacted the Division and reported
that Jeff and Jack were found "wandering unattended" on Route 9.
Jena stated that at the time of the incident, George — eight at
the time — was tasked with watching the children and "making sure
the doors [stayed] locked" because she was "ripping up carpet."
Jena refused to complete a substance abuse evaluation, but the
caseworker noted she did not appear to be under the influence of
drugs.
In July 2014, the State Police found Jeff and Jack again
unattended outside the home. Jena tested positive for alcohol on
the date of the incident, but denied drinking.
In December 2014, Jena's substance abuse program reported she
only sporadically attended the program, and she tested positive
5 A-3964-16T2
for alcohol. Jena also stated she no longer took medication to
treat her bipolar disorder.
In March 2015, a Division caseworker referred Jeff and Jack
to Early Intervention. However, no services were put into place
due to the family's noncompliance.
On June 20, 2015, the Division received a referral from the
Ocean County Board of Social Services, which alerted the Division
that Jena claimed she was homeless and sought housing due to
domestic violence. Jena also reported Joe threatened to kill her.
On June 25, 2015, the Family Part granted the Division custody
of the children. Felix and George went to live with a maternal
aunt, and the Division placed Jeff and Jack in resource care. On
July 2, 2015, the Division relocated Jeff and Jack to a different
resource home.
On August 18, 2015, Dr. Brandwein again evaluated Jena. He
did not endorse her as an independent caretaker, and recommended
"[a]ll of her contact with [her children] should occur under
supervision." He "made recommendations designed to move [Jena]
toward levels of personal and psychological stability that could,
potentially, allow her to care for her children." However, the
doctor remained "extremely pessimistic" that Jena would comply
with his recommendations.
6 A-3964-16T2
Between September and December 2015, Jeff and Jack underwent
developmental evaluations, which showed numerous delays. Shortly
thereafter, they began receiving special services and therapies.
In October 2015, Jena commenced inpatient drug treatment, and
started parenting classes. She successfully completed the
inpatient program in November 2015, and subsequently began an
outpatient program, where she consistently provided negative urine
screens. In February 2016, Jena successfully completed the
parenting program.
Shortly thereafter, however, Jena began missing her
outpatient treatment sessions, and provided a diluted urine
screen. In March 2016, her urine screen tested positive for
morphine.
Dr. Brandwein re-evaluated Jena on March 24, 2016. He found
Jena had "appeared to make significant strides towards her personal
and case goals"; however, he was concerned that Jena maintained
contact with Joe, who was noncompliant and refused to attend
substance abuse evaluations or provide urine screens. Dr.
Brandwein also noted concerns regarding Jena's recent arrest,
diluted urine screens, and positive morphine screen. Accordingly,
he did not endorse her as an independent caregiver.
In April 2016, Jena disclosed to the Division she was twenty-
weeks pregnant with Jimmy. During this time, she was charged with
7 A-3964-16T2
shoplifting, and was later arrested for possession of controlled
dangerous substances (CDS), to which she pled guilty to
"wandering/prowling to obtain/sell CDS." In May 2016, she was
again arrested for possession of CDS and a hypothermic syringe,
and plead guilty to possession of the syringe.
On July 20, 2016, the Division served Jena and Joe with a
guardianship complaint. The Family Part held a hearing on August
3, 2016, which Jena and Joe failed to attend.
On September 5, 2016, Jena gave birth to Jimmy; her urinalysis
tested positive for cocaine, opiates, and alcohol. The hospital
discharged Jimmy directly to the Division, pursuant to the
Division's order to show cause and complaint for custody alleging
abuse and neglect under Title 9.
On December 6, 2016, the Family Part held two consecutive
hearings — first addressing the Division's Title 9 charges
regarding Jimmy and second addressing the guardianship case
regarding Jeff and Jack. Jena completed an application for
appointed counsel — a 5A form — for the guardianship action, but
apparently did not realize she needed to fill out a separate form
for the Title 9 action.
During the guardianship hearing, Jena's appointed attorney
for the guardianship litigation indicated she was present for the
Title 9 hearing. She asked "the Division not at this point
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encourage [Jena] to fill out a 5A form . . . ." The judge and the
Division agreed with this request.
On January 10, 2017, the Division filed an amended complaint
for guardianship to include Jimmy. At the next hearing on February
24, 2017, both Jena and Joe were present and represented by
counsel. The Family Part terminated Jimmy's Title 9 action "due
to the fact that a [c]omplaint for termination of parental rights
ha[d] been filed."
Trial commenced on May 2, 2017. The Division presented
testimony from Dr. Brandwein and two caseworkers. Dr. Brandwein
testified as to his findings from his three psychological
evaluations. He further recommended the termination of parental
rights, and found the children — aside from Jimmy who was too
young — bonded with their resource mother. He opined that
terminating parental rights would not cause more harm than good.
In her oral opinion, Judge Einbinder concluded that the
Division had satisfied the four prongs of the best interests test
by clear and convincing evidence. We briefly summarize her
findings, which are supported by sufficient credible evidence. R.
2:11-3(e)(1)(A).
Regarding prong one, Judge Einbinder found that the "safety,
health, [and] development" of all three children have been and
will continue to be endangered by Jena and Joe, citing their long
9 A-3964-16T2
history of substance abuse, domestic violence, criminal behavior,
and incarceration. The judge noted that both parents often missed
substance abuse evaluations and substance abuse treatment.
As to prong two, the judge found that the Division proved
that both parents are unwilling or unable to eliminate harm facing
their children and delaying permanent placement would add to the
harm. The judge credited the testimony of Dr. Brandwein, and the
psychological evaluations he completed in 2013, 2015, and 2016.
The judge found both parents failed to benefit from the many
services the Division offered, and both lacked the ability to
provide safety, nurture and guidance to their children due to the
instability in their own lives. On the other hand, the judge
found the resource parent developed a strong bond with the children
that, if terminated, would cause the children "serious and enduring
emotional or psychological harm."
Regarding prong three, the judge found the Division "made
more than reasonable efforts to provide services to help both
[parents] correct the circumstances which led to the three
children's placement outside the home." The Division properly
considered alternatives to termination of parental rights and
reasonably ruled out several alternative placement options
suggested by the parents.
10 A-3964-16T2
As to prong four, the judge relied upon the findings and
conclusions of Dr. Brandwein, who could not endorse either parent
as an independent caretaker now, or in the foreseeable future.
The judge also cited Dr. Brandwein's unopposed testimony that
termination of parental rights would not do more harm than good.
II
The scope of this court's review of a determination
terminating parental rights is limited. Div. of Youth & Family
Servs. v. M.M.,
189 N.J. 261, 278 (2007). The factual findings
that support such a judgment "should not be disturbed unless 'they
are so wholly insupportable as to result in a denial of justice,'
and should be upheld whenever they are 'supported by adequate,
substantial and credible evidence.'" In re Guardianship of J.T.,
269 N.J. Super. 172, 188 (App. Div. 1993) (quoting Rova Farms
Resort, Inc. v. Inv'rs Ins. Co. of Am.
65 N.J. 474, 483-84 (1974));
Meshinksy v. Nichols Yacht Sales, Inc.,
110 N.J. 464, 475 (1988)).
This court accords no special deference to the family judge's
interpretation of the law and the legal consequences that flow
from established facts. See Div. of Youth & Family Servs. v. I.S.,
202 N.J. 145, 183 (2010).
Parents have a constitutionally protected right to enjoy a
relationship with and to raise their children. In re Guardianship
of K.H.O.,
161 N.J. 337, 346 (1999). However, "the right of
11 A-3964-16T2
parents to be free from governmental intrusion is not absolute."
Div. of Youth & Family Servs. v. A.W.,
103 N.J. 591, 599 (1986).
"When [a] child's biological parents resist the termination of
their parental rights, the court's function" is to decide whether
the parents can raise the child without causing him or her further
harm. In re Guardianship of J.C.,
129 N.J. 1, 10 (1992).
III
Jena first argues the Family Part deprived her of her right
to due process when it did not provide her with the opportunity
to be represented by counsel at the Title 9 permanency hearing for
Jimmy. See, e.g., Div. of Youth & Family Servs. v. N.S.,
412 N.J.
Super. 593, 634 (App. Div. 2010) ("When faced with the temporary
loss of parental rights, a parent's right to have legal
representation is assured by the due process guarantee of Article
I, paragraph 1 of the New Jersey Constitution and by
N.J.S.A. 9:6-
8.30(a)."). Jena's argument lacks merit.
Jena's guardianship attorney — who was present at both the
Title 9 and guardianship hearings — explicitly requested the
Division abstain from urging Jena to complete another 5A form.
Specifically, she stated:
[S]o that this does not become too utterly
confused, I would just ask that the Division
not at this point encourage [Jena] to fill out
a 5A [form] for the [Title 9 case] because
that would obviously be dismissed at the next
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case, and I'm already here on the
[guardianship action].
Furthermore, at the next hearing, when the judge asked whether
"anybody wish[ed] to be heard in regards to the Division's
application to terminate the [Title 9] litigation because a
[guardianship litigation] has been filed," all counsel responded
in the negative. Thus, the attorney who represented Jena at the
following hearing declined an opportunity to object to the
Division's amended guardianship complaint and the dismissal of the
Title 9 action. Moreover, we note that no finding of abuse or
neglect was made in the Tile 9 proceeding before the court
dismissed it. The record only reflects that Jena admitted to
being part of a "family in need of services" pursuant to Tile 30;
such an admission clearly had no adverse impact in the guardianship
case. Jenna was provided with the opportunity to contest all of
the Division's allegations during the guardianship trial.
Additionally, we note the Division is not required to file a
Title 9 complaint before filing a guardianship complaint, nor is
it obligated to conclude or commence a Title 9 action before
bringing an action under
N.J.S.A. 30:4C-15.1 to terminate parental
rights. N.J. Div. of Youth & Family Servs. v. A.P.,
408 N.J.
Super. 252, 260-61 (App. Div. 2009). This is because "[i]f [the
Division] cannot bring a termination proceeding until an abuse or
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neglect action finally winds its way through the courts, the
Legislature's goal of achieving permanency in the placement of
children will be frustrated and the child will suffer." Ibid.
(first alteration in original) (citation and internal quotation
marks omitted). Accordingly, Jena's due process argument clearly
lacks merit.
IV
Jena next argues the Division failed to satisfy its burden
regarding prongs three and four of the best interests standard.
Our examination of the record discloses the Division met these
prongs by clear and convincing evidence.
Regarding the third prong, Jena argues the Division neglected
to adequately pursue kinship legal guardianship (KLG). This
argument lacks support in the record.
"
N.J.S.A. 30:4C-12 simply does not permit the Division to
embark on a course set for termination of parental rights and
adoption by a foster parent without at least first exploring
available relative placements." Div. of Youth & Family Servs. v.
K.L.W.,
419 N.J. Super. 568, 580 (App. Div. 2011). However, "[i]f
adoption is readily available, KLG cannot be used to defend against
termination of parental rights." Div. of Youth & Family Servs.
v. D.H.,
398 N.J. Super. 333, 341 (App. Div. 2008).
14 A-3964-16T2
Here, the Division pursued, and ruled out, Jena's relatives.
In May 2016, a maternal aunt stated she was unable to care for the
children. In both May 2016 and September 2016, Jena's mother
declined to care for the children. Therefore, at the time of the
hearings, KLG was not a viable option. See Div. of Youth & Family
Servs. v. E.P.,
196 N.J. 88, 105 (2008) (holding the court may
proceed with terminating parental rights when, "at the end of the
family court hearings, there [is] no person available to serve as
kinship legal guardian.").
Moreover, the children's resource mother indicated she wished
to adopt all three boys. See In re Guardianship of J.E.D.,
217 N.J. Super. 1, 17 (App. Div. 1987) (holding when a resource parent
wishes to adopt, an "influential factor is introduced into the
best interests" standard). Accordingly, the record supports the
judge's finding that the Division satisfied the third prong.
Finally, Jena argues the Division failed to satisfy the fourth
prong regarding Jimmy because he "never had a valid bonding
evaluation with the [resource parent] or [Jena]." This argument
also lacks merit.
The fourth prong considers whether terminating parental
rights will not do more harm than good.
N.J.S.A. 30:4C-15.1(a)(4).
"The crux of [this prong] is the child's need for a permanent and
stable home, along with a defined parent-child relationship." Div.
15 A-3964-16T2
of Youth & Family Servs. v. H.R.,
431 N.J. Super. 212, 226 (App.
Div. 2013). There exists a "paramount need [for] children [to]
have . . . permanent and defined parent-child relationships."
J.C.,
129 N.J. at 26.
Here, Dr. Brandwein was unable to perform a bonding evaluation
on Jimmy because he was too young. However, the doctor testified
that over the course of Jena's ten-year involvement with the
Division, she "struggled to achieve the stability [she] need[ed]
to achieve to parent any child." He did not believe Jena currently
or "in the foreseeable future" would be able to provide permanency
for the children, and did not recommend reunification. In
contrast, he testified that the resource mother was a stable
provider, who had developed "a secure psychological bond" with the
two older children and had demonstrated the ability to meet Jimmy's
needs.
Dr. Brandwein cautioned that reunification of the children
with their parents, at this point, would "result in a grave
psychological risk to these children." He concluded that
"termination of parental rights . . . will not do more harm than
good." We find no reason to alter the Family Part's judgment of
guardianship terminating parental rights.
Affirmed.
16 A-3964-16T2
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