RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0498-17T4
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
B.B.,
Defendant-Appellant,
and J.R.,
Defendant. _____________________________
IN THE MATTER OF THE GUARDIANSHIP OF B.R.,
a Minor. _____________________________
Submitted April 3, 2019 – Decided May 15, 2019
Before Judges Accurso, Vernoia and Moynihan. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FG-13-0027-17.
Joseph E. Krakora, Public Defender, attorney for appellant (Catherine F. Reid, Designated Counsel, on the briefs).
Gurbir S. Grewal, Attorney General, attorney for respondent (Jason W. Rockwell, Assistant Attorney General, of counsel; Deirdre A. Carver and Joann M. Corsetto, Deputy Attorneys General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Joseph H. Ruiz, Designated Counsel, on the brief).
PER CURIAM
Defendant B.B. (Bill) appeals from a judgment of guardianship entered
after a three-day trial terminating his parental rights to his daughter, B.R. (Beth)
– who was born July 26, 2014 to her mother defendant J.R. (Jill) 1 – and awarding
guardianship to the New Jersey Division of Child Protection and Permanency
(the Division). 2 The trial court's conclusions are supported by competent
1 Jill entered an identified surrender of her parental rights. She is not a part of this appeal. 2 We utilize the pseudonyms for the parties and the child used in some of the merits briefs to protect their privacy, preserve the confidentiality of these proceedings, and for the reader's convenience. R. 1:38-3(e). A-0498-17T4 2 evidence and the best interests of the child are served by termination of Bill's
parental rights; thus, we affirm.
"Our review of a trial judge's decision to terminate parental rights is
limited." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007).
"The general rule is that findings by the trial court are binding on appeal when
supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154
N.J. 394, 411-12 (1998). We accord even greater deference to the judge's fact-
finding "[b]ecause of the family courts' 'special jurisdiction and expertise in
family matters.'" N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328,
343 (2010) (alteration in original) (quoting Cesare, 154 N.J. at 413). We will
not disturb the trial judge's factual findings unless they are "so wide of the mark
that a mistake must have been made." N.J. Div. of Youth & Family Servs. v.
M.M., 189 N.J. 261, 279 (2007) (quoting C.B. Snyder Realty Inc. v. BMW of
N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div. 1989)).
"Where the issue to be decided is an 'alleged error in the trial judge's
evaluation of the underlying facts and the implications to be drawn therefrom,'
[this court] expand[s] the scope of . . . review." N.J. Div. of Youth & Family
Servs. v. G.L., 191 N.J. 596, 605 (2007) (quoting In re Guardianship of J.T., 269
N.J. Super. 172, 188-89 (App. Div. 1993)). The trial judge's legal conclusions
A-0498-17T4 3 and the application of those conclusions to the facts are subject to plenary
review. Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378
(1995).
The Legislature has declared, as a matter of public policy, "[t]hat the
preservation and strengthening of family life is a matter of public concern as
being in the interests of the general welfare . . . ." N.J.S.A. 30:4C-1(a). Parental
rights, however, are not inviolable. N.J. Div. of Youth & Family Servs. v. A.W.,
103 N.J. 591, 599 (1986). "The balance between parental rights and the State's
interest in the welfare of children is achieved through the best interests of the
child standard." In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). Before
parental rights may be terminated, the Division must prove the following four
prongs by clear and convincing evidence:
(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;
A-0498-17T4 4 (3) The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and
(4) Termination of parental rights will not do more harm than good.
[N.J.S.A. 30:4C-15.1(a); see also A.W., 103 N.J. at 604-11.]
The standards "are not discrete and separate; they relate to and overlap with one
another to provide a comprehensive standard that identifies a child's best
interests." K.H.O., 161 N.J. at 348.
Bill contends the trial judge misunderstood the legal test and burden of
proof applicable to termination of parental rights cases, evidenced by several
comments made by the judge. In assessing Bill's averment that the judge
believed the Division had the burden only to prove that it was unsafe to return
the child to Bill, we consider the context of the judge's statement:
[Bill's attorney] MS. NEWSHAM: But Your Honor, this witness [Dr. Brandwein] is being offered to say that this child will suffer harm, that's part of the fourth prong, that the harm to the child, terminating my client's rights will not be more harmful to the child. This witness through the Division is saying that –
THE COURT: Ms. Newsham, I don't think you understand. The Division doesn't have to prove that the
A-0498-17T4 5 current placement is the best and finest placement in the entire world. That's not their obligation.
MS. NEWSHAM: I agree – THE COURT: All they have to prove is that it's unsafe to return the child to your client.
MS. NEWSHAM: I understand that, Your Honor.
The judge was not commenting on the Division's overall burden. He was
ruling on the Division's objection to Bill's counsel's use of the Division's expert
in psychology, Dr. David Brandwein, "to render some kind of opinion on
something we didn't ask him to evaluate" regarding the assessment of Bill's
cousin, S.R., as a possible resource placement. Inasmuch as the fourth prong of
N.J.S.A. 30:4C-15.1(a) requires balancing the potential future harm from
retaining parental rights with the potential future harm from termination of those
rights, the judge did not err in the limited context relating to that prong. See
N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 108-10 (2008).
Defendant also contends the judge "misidentified the applicable burden of
proof" at a pretrial conference 3 "when . . . the [judge] stated three times that
3 As noted by the Law Guardian's merits brief, the citation to the May 18, 2017 transcript in Bill's merits brief is incorrect; there is no reference in the cited portions in that transcript. The statements appear in the June 27, 2017 trial transcript.
A-0498-17T4 6 statutorily the burden of proof shifted and it was Bill's burden to prove that he
should have 'custody' of Beth." The comments were made prior to the start of
the trial when counsel and the judge were reviewing documentary evidence,
including Bill's judgment of conviction for endangering the welfare of a child,
N.J.S.A. 2C:24-4(a). In ruling the judgment of conviction was admissible, the
judge said:
Well, I think [the judgment of conviction] clearly has relevance and I don't see why, personally I have not found that the statute has been used to preclude supervised visitation, the reason being that if there's a burden shifting that doesn't mean the defendant can't prove that it would be safe and appropriate for him to have custody. It does shift the burden. But if you preclude visitation, supervised, then basically where do you get to a bonding situation, you've precluded the defendant from even coming forward with that information. And you know, I have not necessarily precluded supervised visitation as long as it's safe and appropriate. So I don't see that that's inconsistent. And I think it's admissible, all right.
The statute is not expressly mentioned in the transcript, but Bill suggests
in his merits brief that it may be a burden-shifting statute found in Title Nine.
From the context of the colloquy between the judge and both counsel, it is
apparent they were discussing the impact the conviction would have on custody
and visitation, not on termination of parental rights. In that N.J.S.A. 9:2-4.1(b)
provides that a person convicted of endangering a child's welfare "shall not be
A-0498-17T4 7 awarded the custody or visitation rights to any minor child, except upon a
showing by clear and convincing evidence that it is in the best interest of the
child for such custody or visitation rights to be awarded," the judge's statement
did not conflate the burdens of proof. Bill's attempts to use out-of-context
statements to show the judge misconstrued the law are gainsaid by the judge's
oral opinion in which he correctly stated the burden: "I find that all four prongs
have been met by clear and convincing evidence."
Bill also claims the judge erred in employing a "working backwards"
analysis "from the starting point of a three-year-old girl, who had been with her
foster parents for over two years." Bill urges that the proper analysis should
have started with Beth's birth. We determine this argument is without sufficient
merit to warrant discussion in this opinion. R. 2:11-39(e)(1)(E). The judge
simply addressed Bill's defenses before analyzing the four statutory prongs.
While we find that approach was unusual, it was not improper. We consider this
appeal, not from the trial judge's reasoning, but from his ruling, which we will
now examine. See N.J. Div. of Child Protect. & Permanency v. K.M., 444 N.J.
Super. 325, 333-334 (App. Div. 2016) ("It is a long settled principle of appellate
jurisprudence that 'an appeal is taken from a trial court's ruling rather than
A-0498-17T4 8 reasons for the ruling.'" (quoting State v. Adubato, 420 N.J. Super. 167, 176
(App. Div. 2011))).
In determining if the Division met its burden with regard to the first prong,
we consider "whether the parent has harmed the child or may harm the child in
the foreseeable future." N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J.
Super. 76, 113 (App Div. 2004) (citing A.W., 103 N.J. at 607). The Division
"does not have to wait 'until a child is actually irreparably impaired by parental
inattention or neglect'" to satisfy this prong. N.J. Div. of Youth & Family Servs.
v. F.M., 211 N.J. 420, 449 (2012) (quoting In re Guardianship of D.M.H., 161
N.J. 365, 383 (1999)). "Serious and lasting emotional and psychological harm
to children as the result of action or inaction of their biological parents can
constitute injury sufficient to authorize the termination of parental rights." In re
Guardianship of K.L.F., 129 N.J. 32, 44 (1992). "A parent's withdrawal of that
solicitude, nurture, and care for an extended period of time is in itself a harm
that endangers the health and development of the child." D.M.H., 161 N.J. at
379. "When the condition or behavior of a parent causes a risk of harm, such as
impermanence of the child's home and living conditions, and the parent is
unwilling or incapable of obtaining appropriate treatment for that condition, the
A-0498-17T4 9 first subpart of the statute has been proven." N.J. Div. of Youth & Family Servs.
v. H.R., 431 N.J. Super. 212, 223 (App. Div. 2013).
From the time Bill was identified as Beth's father, he did not have a home
suitable for his child. Except for times when he lived in a house which the
Division caseworker described as "abandoned" and "unlivable" or lived with
someone else in a rented room, Bill was homeless. He admitted to the Division
adoption worker that he could not provide Beth with a home if he gained
custody. In August 2015, he admitted to the Division caseworker that he was
not ready to care for Beth.
Bill's drug use was uncontrolled. On August 7, 2015, Bill admitted
marijuana use and that he missed a substance abuse evaluation appointment; he
also tested positive for cocaine thirteen days later. In October 2015, he was non-
compliant with his intensive outpatient program. He appeared under the
influence at a November 2015 visitation and admitted he "did something" three
days prior; a urine sample taken the same day tested positive for cocaine. Bill
entered an intensive outpatient program at CPC Behavioral Healthcare (CPC),
which reported his attendance was poor and he was noncompliant. On
December 23, 2015, he self-reported to the Division that he tested positive
during a random drug screen performed by his probation officer on December
A-0498-17T4 10 21. A substance abuse evaluation in April 2016 recommended that Bill attend a
long-term inpatient program. Instead, Bill entered and completed a twenty-one
day short-term program at Bergen Pines. Bergen Pines recommended that Bill
continue treatment at an intensive outpatient facility and he enrolled in CPC.
He tested positive for marijuana in October 2016. And in April 2017, he tested
positive for cocaine at CPC.
Dr. Brandwein, who was found to be a credible expert by the trial judge,
conducted a psychological evaluation of Bill and concluded in his report that,
the information he reviewed and his interview with Bill was
indicative of a rather significant personality disorder in multiple realms that has a marked impact on [Bill's] cognition, affectivity, interpersonal relations, and impulse control. These disorders often respond poorly to conventional modes of mental health treatment due to the individual with the personality disorder not believing they are the problem and/or that any change is required of them. Rather, they tend to externalize blame and believe others need to change to fit their whims. As such, it is this examiner's opinion that [Bill] is highly unlikely to ever engage in Division services to the point where he would be able to receive a sufficient benefit from them to safely parent his daughter.
The doctor expressly opined "the prognosis for [Bill] to ever be a safe and
appropriate parent for [Beth], on a scale of poor-fair-good-excellent, is poor."
A-0498-17T4 11 At trial, Dr. Brandwein diagnosed Bill with "a personality disorder . . . in
the narcissistic histrionic antisocial and turbulent realm" with a secondary
diagnosis of an "adjustment disorder." He also testified that people with Bill's
disorders "don't take responsibility for their need to change. The world needs
to change. Other people need to change." Dr. Brandwein concluded that Bill
had difficulty meeting his own needs and therefore would have difficulty
meeting Beth's needs. If placed with a person as unstable as Bill, the doctor
testified that "[t]here would be a risk to the child's physical development, their
emotional development, their intellectual development, really their development
psycho[-]socially."
The evidence also established Bill's criminal involvement. The Division
was informed of Bill's criminal history in June 2015: assault, domestic violence,
child endangerment. On September 14, 2015 he was arrested for resisting arrest,
trespass and hindering apprehension after he broke into Jill's home and was
found hiding in the attic. Jill obtained a restraining order against him. Bill
advised Dr. Brandwein that he was placed on probation for the endangering
charge that stemmed from an incident when he slapped his former girlfriend 's
child for using a racial epithet.
A-0498-17T4 12 The trial judge found Bill was, both presently and for the foreseeable
future, unable to perform the basic functions of a parent:
He's still homeless. He hasn't complied with the drug treatment. And quite frankly, Dr. Brandwein's testimony and evaluation was very telling regarding his capabilities of parenting and he's just not there. He has some severe issues regarding personality issues. He has severe issues in his background regarding domestic violence and criminal [behavior].
And the judge noted Bill's admission that he was not in a position to care for
Beth. The evidence thus supported the trial judge's finding that the Division met
its burden with regard to the first prong. See H.R., 431 N.J. Super. at 223.
It is common that the proofs relating to the first and second prongs
dovetail. N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88
(App. Div. 2006). The proofs common to the first two prongs in this case
support the judge's findings regarding the second prong which requires the
Division to "demonstrate that the parent is 'unable to eliminate the harm facing
the child or is unable . . . to provide a safe and stable home for the child ' . . .
before any delay in permanent placement becomes a harm in and of itself." N.J.
Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 434 (App. Div.
2002) (first alteration in original) (quoting N.J.S.A. 30:4C-15.1(a)(2)). The
second prong may be met by showing "that the parent is unable to provide a safe
A-0498-17T4 13 and stable home for the child and that the delay in securing permanency
continues or adds to the child's harm," or "that the child will suffer substantially
from a lack of stability and a permanent placement and from the disruption of
her bond with foster parents." K.H.O., 161 N.J. at 348-349, 363.
Bill never obtained stable, appropriate housing for Beth. See K.H.O., 161
N.J. at 348-349, 363. He consistently relapsed during his failed drug treatment
efforts. The instability, together with the cluster B personality traits –
"[d]ramatic, erratic and emotional" – that Dr. Brandwein diagnosed in Bill,
which the doctor said was "very, very ingrained in people that have them," led
the doctor to find "there was a lack of evidence that [the] behavior that led to
the instability was going to change." The doctor concluded that he "did not
deem [Bill] to be able to be an independent caregiver" at the time of Bill's
evaluation and opined that Bill would not be able to be a caregiver "in the
foreseeable future."
"[T]he second prong may be met by indications of parental dereliction and
irresponsibility, such as the parent's continued or recurrent drug abuse, the
inability to provide a stable and protective home, the withholding of parental
attention and care . . . with the resultant neglect and lack of nurture for the child."
K.H.O., 161 N.J. at 353. What most concerned the A.W. Court was the lack of
A-0498-17T4 14 evidence of "any realistic likelihood that the parents would ever be capable of
caring for the children." 103 N.J. at 614. Even when parents are not
blameworthy, parental unfitness can be established when their behavior
"indicates a further likelihood of harm to the child in the future." Id. at 615-16.
The trial judge properly considered evidence that Bill was unable to
correct his "conduct within the reasonably foreseeable future." N.J. Div. of
Child Protect. & Permanency v. T.D., 454 N.J. Super. 353, 380 (App. Div.
2018). That evidence proved that the harm to Beth would continue because Bill
was unable or unwilling to overcome or remove it, thus satisfying the second
prong. N.J. Div. of Child Protect. & Permanency v. P.P., 180 N.J. 494, 506-07
(2004).
Bill's inability to remove the harm to Beth resulted in the formation of a
bond between the child and her resource parents which Dr. Brandwein said
represented Beth's "primary parental attachments, and that the resource parents
are [Beth's] psychological parents." Dr. Brandwein also noted that breaking the
bond between the child and the resource parents, because she had been with
them since she was ten months old, "would be separating her from her first bond
. . . [which] has the potential to be highly detrimental to a child. . . . [The child]
would psychologically be lost and [it would] be very, very difficult for her to
A-0498-17T4 15 recover from that." This evidence supported the judge's conclusion that the
Division proved the second prong. See N.J. Div. of Youth & Family Servs. v.
B.G.S., 291 N.J. Super. 582, 592 (App. Div. 1996) (recognizing "harms
attributable to a biological parent include the prolonged inattention to a child 's
needs, which encourages the development of a stronger, 'bonding relationship'
to foster parents, 'the severing of which would cause profound harm'" (quoting
In re Guardianship of J.C., 129 N.J. 1, 18 (1992))). As our Supreme Court held
in K.H.O., 161 N.J. at 348-49, harm may be "shown [by proof that] the parent is
unable to provide a safe and stable home for the child and that the delay in
securing permanency continues or adds to the child's harm."
Bill's third-prong challenge avers: the trial judge's conclusory finding that
the Division made reasonable efforts to provide services was not supported by
the record; the Division delayed in confirming his paternity; it also failed "in
planning with Bill for the care of his child"; and its "delay in processing S.R.
was unreasonable."
In ruling the Division provided reasonable services to Bill, the trial judge
observed that, despite receiving extensions while the case was on the FN docket
to achieve reunification with Beth, he "never complied with services."
Notwithstanding the trial judge's perfunctory finding regarding the services
A-0498-17T4 16 provided to Bill by the Division, the record supports that reasonable services
were offered.
The Division arranged for visitation, transportation, substance abuse
evaluations and treatment; Bill was also working with social services to obtain
housing. Although he attended most supervised visitation sessions, Bill was
unavailable on at least eight occasions. In 2015, Bill: was unreachable when the
Division attempted to contact him to schedule visitation in July; failed to appear
for a confirmed visitation in August; failed to confirm another visit in August,
resulting in a cancellation; was unable to attend visits until they resumed in
September because of his incarceration; and failed to confirm two visits in
December, resulting in more cancellations. He also cancelled two visits in
January 2016, one while Beth was en route. And, as noted, he failed to remain
sober or provide a home suitable for Beth.
We do not measure the reasonableness of the Division's efforts by their
success. D.M.H., 161 N.J. at 393. In light of all the circumstances in this case,
the record supports that the Division made "[c]onsistent efforts to maintain and
support the parent-child bond" thus satisfying its obligation. Ibid.
Bill argues the Division's delay in confirming his paternity "was
completely antithetical" to its obligations under the third statutory prong. The
A-0498-17T4 17 trial judge observed that "it would have been better if the Division got [Bill ]
involved earlier" but concluded "[t]he bottom line is though he has been
involved with the Division now for almost two and a half years[,]" he was still
homeless and noncompliant with drug treatment. We review the circumstances
surrounding the delay in confirming Bill's paternity.
Bill contends in his merits brief that he contacted the Division in February
2014, prior to Beth's birth, and warned that Jill was abusing drugs while pregnant
with what he believed to be his child. The record to which he refers to buttress
this contention, however, make no mention that he disclosed his belief that he
was the father.
It was not until three days after Beth was born that Bill called the Division
and requested a paternity test because "the baby was supposedly his but [Jill]
cheated on him." Indeed, the Division caseworker reported that during her
hospital visit with Jill on July 28, 2014, Jill told the caseworker she was not sure
who the father was and, in fact, registered under a name other than her own,
because "she did not want to deal with the 'drama' from the father." A man
visiting Jill during the caseworker's call told the caseworker he was not sure if
he was the father. Jill, nonetheless, refused to name the father.
A-0498-17T4 18 On August 1, 2014, under an FN docket, a different judge ordered Jill to
"provide the name and whereabouts of the child's biological father so that a
paternity test may be completed" and the Division to offer genetic testing to any
putative father, including Bill. On August 29, Jill disclosed that Beth's father
was either her male hospital visitor or Bill.
Though the Division caseworker said he had frequent conversations with
Bill from July 2014 until June 2015, the Division maintained in March 2015 that
Jill "did name two fathers for [Beth] and a search has been put out for them." It
is perplexing that the Division was still searching for someone with whom they
had contact or why the Division did not arrange a paternity test for Bill. It is
also not clear why Bill did not appear for the first scheduled paternity test in
May 2015. Both he and the male hospital visitor were tested on June 2, 2015.
The Division was notified Bill was the father on June 15, 2015.
Although we look askance at the Division's seemingly dilatory response
to the court's order to have Bill tested, and the lacuna in the court's enforcement
of its order, we recognize that Jill's refusal to identify Beth's father initially
delayed this process. We also note that during the pendency of the paternity
investigation, on July 15, 2015, Bill was named as a defendant in the FN case
and that judge found good cause to extend the FN case because of Bill's recent
A-0498-17T4 19 identification as the father; he was allowed supervised visitation which
continued pursuant to the court's August 25 FN order. In an effort at
reunification, the court granted another extension on October 22, 2015,
remarking Bill was "working with social services to obtain stable housing and
working on services." The order mandated that Bill notify the Division when
he enrolled in drug treatment at CPC and maintain weekly contact with the
Division caseworker and that the Division continue to provide Bill with
supervised visitation and bus passes.
As we have already detailed, Bill did not take advantage of the services
provided by the Division. His continued drug use was recorded in the court's
January 19, 2016 FN order, as was the Division's provision of "visitation,
evaluations and referrals for service." The court, however, found that
termination of parental rights was then inappropriate and gave Bill "more time
to work toward progress in addressing his issues"; another extension was
granted. Three months later, the court entered an almost identical order. Bill
was also ordered to submit to a hair follicle test and follow recommendations
after a substance abuse evaluation; the latter mandate was also ordered on July
12, 2016. Visitation was continued in both the April and July 2016 orders.
A-0498-17T4 20 Despite the extensive services offered for over two years after Bill was
identified as Beth's father in June 2015, both under the FN and FG dockets, he
was still unable to parent Beth. While we do not condone the delay between
July 2014 and June 2015 in identifying him as the father, that delay did not result
in Bill's inability to parent considering the services the Division offered and the
efforts made by the Division and the court to reunify Bill with his daughter . The
record supports the finding that the Division provided reasonable services as
defined in N.J.S.A. 30:4C-15.1(c).
Turning to the second part of the third prong – requiring the Division to
establish that alternatives to termination have been considered – Bill contends
the Division's delay in considering his proposal that S.R. serve as Beth 's
resource parent contravened its statutory obligation to "initiate a search for
relatives who may be willing and able to provide the care and support required
by the child." N.J.S.A. 30:4C-12.1(a). He argues the Division, in compliance
with that statute, should have initiated a search for paternal relatives wi thin
thirty days after it took custody of Beth or, at the latest, within thirty days after
Bill's paternity was confirmed.
As Bill's alternative argument anticipates, we perceive no merit in the
former contention. Jill named two putative fathers. Until paternity was
A-0498-17T4 21 confirmed, it was not reasonable for the Division to investigate relatives of
someone who may not be Beth's father. As to Bill's latter assertion, the court's
July 15, 2015 order, following confirmation of Bill's paternity, required him to
provide the names of possible resource parents and the Division to investigate
those persons. He provided S.R.'s name to the Division in early August. The
Division caseworker contacted S.R. and obtained identifying information for
everyone in her household and ran background checks. On September 11, 2015,
the Division received the results of an inquiry to the Maplewood Police
Department regarding S.R. which revealed S.R. did not have a criminal record
but her son had "some juvenile criminal history and possible mental health
concerns."
Despite the entry of an October 22, 2015 court order requiring the
Division to evaluate S.R. as a resource for Beth, there is no evidence in the
record that anything was done after the September 2015 background check
through March 2016, when the file was turned over to a new caseworker who
had to complete a relative resource care packet (packet) and send it to the
Division's Resource Unit in order for S.R.'s home to be licensed – a prerequisite
for Beth to live in that home. In April 2016, the court entered another order
compelling the Division to investigate parental relatives. The new caseworker
A-0498-17T4 22 started the packet in April and submitted it to the Resource Unit in June 2016.
During a meeting on April 26, 2016, S.R. told the new caseworker that she would
be willing to be a resource parent for Beth and complete PRIDE 4 training. S.R.
testified that a Division resource worker – whom S.R. described as "my guide
through step by step to get to where I needed to be, to finish my classes, any
training and having my home inspection" – then contacted her and provided the
contact information to set up S.R.'s required classes. S.R. also testified that the
home-licensing process began in May 2016. She admitted there was a licensing
delay after her home failed inspection in March because of a water-temperature
problem, but a license was issued in April 2017.
We, again, see no reason for the six-month period of inaction between
completion of the background check in September 2015 and the commencement
of the preparation of the packet. But we cannot characterize that delay as the
Division's embarkation "on a course set for termination of parental rights and
adoption by a foster parent without at least first exploring available relative
placements," a practice which we decried in New Jersey Division of Youth and
4 PRIDE is an acronym that stands for the Parental Resources for Information, Development and Education training program provided by the Division. Department of Children and Families, Training (PRIDE) (May 6, 2019 5:24 p.m.), https://www.nj.gov/njfosteradopt/services/training/; see N.J.A.C. 3A:51- 5.6(a)(1). A-0498-17T4 23 Family Services v. J.S., 433 N.J. Super. 69, 81 (App. Div. 2013) (quoting N.J.
Div. of Youth & Family Servs. v. K.L.W., 419 N.J. Super. 568, 580 (App. Div.
2011)). The Division's actions fairly met the "important objective of the
statutory scheme[: the] 'prompt identification of relatives and notice to them of
the results of the investigation and the potential for termination if the child
remains in foster care.'"5 Ibid. (quoting K.L.W., 419 N.J. Super. at 580).
Although the Division could have been more diligent in investigating S.R.
during that six-month period, we discern other issues delayed the process:
concerns about marijuana use and fighting by her son who was still living in the
home and the regulation of the water temperature. We also observe the Division
apprised S.R. that Beth was in adoption status; nonetheless, S.R. was afforded
visitation with Beth and the Division had to arrange to transport Beth during
evening and weekend hours because S.R. could not accommodate regular
visitation hours due to her work schedule.
In J.S., we held the Division is required to promptly "conduct a fair
investigation" of any identified relative:
The Division cannot ignore such a relative's timely application out of bureaucratic inertia, or consider that
5 We note that the only relative proposed by Jill was a maternal grandmother whose paramour refused to comply with the Division's licensing requirements and was therefore ruled out in August 2014. A-0498-17T4 24 application based upon an arbitrary, preordained preference for the foster placement. The Division must perform a reasonable investigation of such relatives that is fair, but also sensitive to the passage of time and the child's critical need for finality and permanency. If, hypothetically, the Division has been lax or capricious in its assessment of such timely-presented alternative caretakers, it bears the litigation risk that a Family Part judge will conclude, under N.J.S.A. 30:4C-15.1(a)(3), that it has failed to prove by clear and convincing evidence that "alternatives to termination of parental rights" have been appropriately considered.
[433 N.J. Super at 87.]
This was not the case where the Division failed to investigate a timely-
disclosed relative. Bill failed to mention his cousin as a potential resource until
thirteen months after Beth was born, and S.R. was not even aware Beth had been
born until then. Nor did the Division consider S.R. based on "an arbitrary,
preordained preference for foster placement" as evidenced by the provision of
visitation and the considerable attention the Division paid to S.R. 's application
for most of the time it was pending. Ibid.
To be sure, "alternatives to termination of parental rights were considered"
as required by N.J.S.A. 30:4C-15.1(a)(3). The Division conducted an
emergency removal of Beth from the hospital right after her birth because of
Jill's drug use and concerns about her mental health; Jill's refusal to name Beth's
father prevented the Division from considering paternal relatives and caused
A-0498-17T4 25 Beth's placement with a resource parent. She was placed with her present
resource parents when she was ten-months old – before Bill identified S.R. –
because Bill could not parent her. As Beth approached her third birthday, she
had been with her present resource parents for over two years. The Division
sent a rule-out letter to S.R. advising her: "it is in [Beth's] best interest not to
be placed in [S.R.'s] home. [Beth] has been in her current home since she was
[ten] months old and it has been determined by a psychologist that removal from
this home would be detrimental to [Beth]."
N.J.S.A. 30:4C-12.1, in addition to requiring the Division to search for
and assess relatives after it accepts a child in its custody, allows the Division "to
pursue the termination of parental rights if [it] determines the termination of
parental rights is in the child's best interests." N.J.S.A. 30:4C-12.1(c).
According deference to the Division's interpretation of the "best interests"
language in the statute, we determined the statute did not create a "presumption
in favor of placing children with competent and willing relatives. . . . The reality
is that, no matter how fit or willing a proposed relative may be, a child will, in
some instances, be better off remaining in a successful foster placement." J.S.,
433 N.J. Super. at 85.
A-0498-17T4 26 The record supports that determination. As we already noted, Dr.
Brandwein opined that breaking the bond between Beth and the foster parents,
with whom she had been since she was ten months old, "would be separating her
from her first bond . . . [which] has the potential to be highly detrimental to a
child. . . . [The child] would psychologically be lost and [it would] be very, very
difficult for her to recover from that." There is no evidence that Beth developed
a long-standing relationship with S.R. over the course of visitations provided.
Inasmuch as "there is no legal presumption in favor of a child's placement with
relatives," J.S., 433 N.J. Super. at 88, and Bill was not in any position to parent
Beth, there is no evidence to controvert Dr. Brandwein's opinion, as adopted by
the trial judge, that it was in Beth's interests to remain with her resource parents.
We do not perceive that the delay attributable to the Division contributed
in any appreciable way to an increased bond between Beth and her resource
parents or a lessening of a relationship with S.R., who was not licensed for about
ten months after her packet was completed. Even if the investigation was
completed six months earlier, Beth would have been with her present resource
parents for eighteen of her twenty-eight months. The trial judge credited Dr.
Brandwein's
position that removing this child from the only home that [Beth] could possibly remember or know, I mean
A-0498-17T4 27 been there since she was nine or [ten] months old, basically for the last almost three years, the child's whole life has been with these caretakers. To expect, to argue that they are securely bonded, particularly at this age, the child is over three, and that time two and a half, or a little over, I mean it shouldn't be any surprise. And to disrupt that child and take it away from the only placement and put it with a stranger who saw the child four or five visits. The Division's rule out for best interest seems extremely reasonable. This isn't a capricious argument. This isn't something that was done on a whim. This was done based on first of all just the facts of the case. That this child had been there for several years and it's the only home the child knows.
We thus see ample reason for the trial judge to uphold the Division's decision to
rule out S.R. And, as stated, the Division did not eschew its responsibility to
conduct a fair investigation of S.R. even though it ruled her out. J.S., 433 N.J.
Super. at 87.
We pause to address the trial judge's descriptions of Bill's argument
regarding the Division's consideration of S.R. as a "red herring." Those
comments were unfortunate because they may be construed to mean that the
judge ignored the statutory obligation to consider alternatives to termination as
part of the Family Part's analysis under the third prong of the best-interests
standard, N.J.S.A. 30:4C-15.1(a)(3); H.R., 431 N.J. Super. at 226, or to assess
the Division's rule-out determination which is always subject to "the Family
Part's ultimate assessment of that child's best interests," J.S., 433 N.J. Super. at
A-0498-17T4 28 75. Notwithstanding the judge's "red herring" reference, he did, as we have
observed, consider the Division's proofs regarding alternatives to termination
and its reasons for ruling out S.R.
The Division satisfied the fourth prong through Dr. Brandwein, who, the
evidence proves, was "'a well qualified expert who has had full opportunity to
make a comprehensive, objective, and informed evaluation' of the child's
relationship with both [her natural parent] and her foster parents." M.M., 189
N.J. at 281 (quoting J.C., 129 N.J. at 19). Finding Dr. Brandwein's testimony
credible, the trial judge evaluated the strength of Beth's relationship to Bill and
the resource parents, the relative harm that would befall Beth if she was removed
from one or the other and the ability of each to ameliorate that harm. See
K.H.O., 161 N.J. at 355. The judge found compelling the strength of the bond
between Beth and the resource parents and the parents' ability to ameliorate any
harm caused by the termination of Beth's thin bond with Bill, who admits in his
merits brief that he never intended to be her custodial parent. The judge's
decision was amply supported by Dr. Brandwein's testimony and recognized that
"a child has a right to live in a stable, nurturing environment and to have the
psychological security that his most deeply formed attachments will not be
shattered." F.M., 211 N.J. at 453.
A-0498-17T4 29 We determine the balance of Bill's other arguments are without sufficient
merit to warrant discussion in a written opinion. R. 2:11-39(e)(1)(E).
After a careful consideration of the record, we affirm.
A-0498-17T4 30