DCPP VS. J.M.S. AND B.M., IN THE MATTER OF THE GUARDIANSHIP OF G.J.S. (FG-11-0042-17, MERCER COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2019 )

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NOT FOR PUBLICATION WITHOUT THE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-5644-17T2
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
J.M.S.,
Defendant,
and
B.M.,
Defendant-Appellant.
_____________________________
IN THE MATTER OF THE
GUARDIANSHIP OF G.J.S.,
a Minor.
_____________________________
Submitted May 21, 2019 – Decided May 31, 2019
Before Judges Rothstadt, Gilson and Natali.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Mercer County,
Docket No. FG-11-0042-17.
Joseph E. Krakora, Public Defender, attorney for
appellant B.M. (Steven Edward Miklosey, Designated
Counsel, on the brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Jason Wade Rockwell, Assistant Attorney
General, of counsel; Alicia Y. Bergman, Deputy
Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minor (Olivia Belfatto Crisp, Assistant
Deputy Public Defender, on the brief).
PER CURIAM
Defendant B.M. (Benjamin) 1 appeals from a judgment terminating his
parental rights to his son, G.J.S. (George), who was born on May 31, 2014. The
child's mother, J.M.S. (Jennifer), whose parental rights were terminated during
the same proceeding, has not appealed. We find no merit in Benjamin's appeal
and affirm.
Benjamin argues that the Division of Child Protection and Permanency
(Division) failed to prove prongs three and four of the "best interests of the
child" test under N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence.
1
We use fictitious names for B.M., G.J.S., J.M.S., L.A.R., and C.T., to protect
their privacy and for ease of reference. See R. 1:38-3(d)(12).
A-5644-17T2
2
With respect to prong three, Benjamin maintains that the Division did not
consider "alternatives to termination of parental rights" because it failed to
promptly locate and evaluate relatives for George's placement, including
Benjamin's mother, L.A.R. (Lacey). He further asserts that the Division
improperly ruled out Lacey as a resource placement, without facilitating a
second bonding evaluation. As to prong four, Benjamin claims that the Division
did not establish by clear and convincing evidence that termination of his
parental rights "will not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4).2
All of the judge's findings are supported by substantial, credible evidence
and, therefore, are entitled to our deference. N.J. Div. of Youth and Family
Servs. v. F.M., 211 N.J. 420, 448-49 (2012); Cesare v. Cesare, 154 N.J. 394,
413 (1998). Accordingly, we reject Benjamin's arguments and affirm
substantially for the reasons set forth by Judge Rodney Thompson in his
comprehensive and well-reasoned forty-eight-page written opinion. We add the
following comments.
2
On appeal, Benjamin has not argued that the Division failed to establish prongs
one and two of N.J.S.A. 30:4C-15.1(a). Nor has he challenged the court's
finding under N.J.S.A. 30:4C-15.1(a)(3) that the Division made "reasonable
efforts to provide services to help [him] correct the circumstances which led to
the child's placement outside the home." We have nevertheless independently
reviewed the record and are satisfied that the Division clearly and convincingly
satisfied those statutory elements as well.
A-5644-17T2
3
Parents have a constitutionally protected right to the care, custody, and
control of their children. Santosky v. Kramer, 455 U.S. 745, 753 (1982). "The
rights to conceive and to raise one's children have been deemed 'essential,' 'basic
civil rights . . . ,' and 'rights far more precious . . . than property rights.'" Stanley
v. Illinois, 405 U.S. 645, 651 (1972) (citations omitted). "[T]he 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); see also In re Guardianship
of K.H.O., 161 N.J. 337, 347 (1999).
The constitutional right to the parental relationship, however, is not
absolute. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986).
At times, a parent's interest must yield to the State's obligation to protect
children from harm. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). To
effectuate these concerns, the Legislature created a test for determining whether
a parent's rights must be terminated in the child's best interests. N.J. S.A.
30:4C-15.1(a) requires that the Division prove by clear and convincing evidence
the following four prongs:
(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
A-5644-17T2
4
provide a safe and stable home for the child and the
delay of permanent placement will add to the harm.
Such harm may include evidence that separating the child
from his resource family parents would cause serious and
enduring emotional or psychological harm to the child;
(3) The [D]ivision 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.
See also A.W., 103 N.J. at 604-11.
With respect to Benjamin's challenge to the court's prong three findings,
as noted, he asserts that the Division failed to conduct a search for appropriate
relative placements. We acknowledge that under N.J.S.A. 30:4C-12.1, the
Division may not "embark on a course set for termination of parental rights and
adoption by a foster parent without at least first exploring available relative
placements." N.J. Div. of Youth & Family Servs. v. J.S., 433 N.J. Super. 69, 81
(App. Div. 2013). In this regard, N.J.S.A. 30:4C-12.1(a) requires that once the
Division accepts a child into its care or custody, it shall "initiate a search for
relatives who may be willing and able to provide the care and support required
by the child." Further, "the Division's statutory obligation does not permit
willful blindness and inexplicable delay in assessing and approving or
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5
disapproving a relative known to the Division . . . ." N.J. Div. of Youth &
Family Servs. v. K.L.W., 419 N.J. Super. 568, 582 (App. Div. 2011). There is
no presumption, however, in favor of relative placement. J.S., 433 N.J. Super
at 82.
Here, three days after George's placement with his resource family,
Benjamin provided the Division with the name of C.T. (Cathy), as a potential
placement for George. 3 The Division promptly assessed Cathy, and determined
that because her boyfriend had two active warrants, George could not be placed
in a home with her. Based on this evidence, Judge Thompson concluded that
the Division "conducted the necessary checks" before ruling Cathy out.
With respect to Benjamin's contention that the Division failed to
appropriately consider Lacey as a relative resource placement, we note that there
is no evidence in the record to suggest that the Division knew, or should have
known, of Lacey's existence prior to her contact with the Division to identify
herself as a prospective relative resource placement. Indeed, as Benjamin
concedes, while Lacey provided support to the family after George's birth, she
"became estranged shortly afterward" and distanced herself from the family for
"many months." As we have previously held, the Division is not expected "to
3
There is nothing in the record describing Cathy's relationship to the parties.
A-5644-17T2
6
locate a relative with no information" or "search the fifty states or even the
twenty-one counties to identify a parent's siblings, cousins, uncles and aunts."
K.L.W., 419 N.J. Super at 582.
As Judge Thompson explained, once Lacey identified herself as a
potential relative placement, "[t]he Division conducted the necessary
background checks and home assessment, and facilitated visits" between Lacey
and George. The Division also assisted Lacey in obtaining a resource license.
The Division thereafter scheduled a bonding evaluation between George
and his resource family. The results of that evaluation, conducted by Amy
Becker-Mattes, Ph.D., concluded that George's resource mother served as his
primary attachment figure and removing George from the resource family's care
would be detrimental to his well-being. Additionally, Dr. Becker-Mattes
testified at trial that severing George's bond with his resource family "would
cause harm that would be ongoing and potentially irreparable." Accordingly,
Dr. Becker-Mattes concluded it was in George's best interests not to be removed
from their care.
Despite the results of the bonding evaluation with George's resource
family, the Division continued to assess Lacey. Indeed, after months of
facilitated visits with George, the Division scheduled a bonding evaluation
A-5644-17T2
7
between Lacey and George. According to the trial record, that evaluation went
poorly as George would only permit the Division worker to console him. In
light of the bonding evaluation between George and his resource family, the
Division issued Lacey a rule-out letter advising her that George would not be
placed with her as the Division concluded it would be contrary to George's best
interests. See N.J.S.A. 30:4C-12.1(c).4
Based on these facts, George's reliance on K.L.W. for the proposition that
the Division failed to satisfy prong three is misplaced. In that case, the
Division's failed to contact and assess a child's maternal grandparents, whom it
knew had custody of the child's siblings, thereby depriving the court of a
meaningful opportunity to determine whether the placement was in the child's
best interests. K.L.W., 419 N.J. Super. at 581-82. Here, Lacey did not have
Benjamin's siblings in her care and custody, nor is there any evidence that the
Division had knowledge of Lacey's existence and abjectly failed to consider her
as a relative resource placement.
4
Neither Benjamin nor Lacey requested a best-interests hearing to address the
propriety of the Division's rule-out letter. See J.S., 433 N.J. Super. at 83-84.
The court, in its prong three findings, however, conscientiously considered all
of the evidence, including the unrebutted testimony from Dr. Becker-Mattes that
adoption by his resource parents was in George's best interests. Based on that
evidence and the court's factual findings, we conclude the Division correctly
ruled out Lacey.
A-5644-17T2
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Rather, based upon the results of bonding evaluations between Lacey and
George, and George and his resource family, the Division concluded it would
be contrary to George's best interests to be placed with Lacey. Accordingly, the
Division complied with its statutory obligations, and the court's determination
was not "made without information relevant to the best interests of the child,"
as in K.L.W. Id. at 581.
Nor do we find any support in the record that a second bonding evaluation
of Lacey was required. Benjamin presented no expert evidence to suggest the
initial bonding evaluation was improper, or that there was a serious and enduring
bond between Lacey and George. To the contrary, the trial evidence supported
the court's conclusion that severing the bond between George and his resource
family would cause George ongoing and irreparable harm.
Finally, we also reject Benjamin's challenge to the court's prong four
finding. Prong four addresses "whether, after considering and balancing the two
relationships, the child will suffer a greater harm from the termination of ties
with her natural parents than from the permanent disruption of her relationship
with her foster parents." K.H.O., 161 N.J. at 355. Here, Benjamin failed to
complete mental health services and substance abuse treatment, remained
unemployed without consistent and stable housing, and failed to present any
A-5644-17T2
9
plan to remedy these issues. Further, he failed to visit George consistently, and
did not participate in his scheduled bonding evaluation.
As Judge Thompson explained, there was no evidence that Benjamin
could appropriately care for now-four-year-old George. In addition, the court
noted that the bonding evaluation with George and his resource family, along
with Dr. Becker-Mattes's unrebutted expert testimony at trial, demonstrated a
strong, positive bond, "and severing th[at] bond would result in severe and
enduring harm" to George.
In sum, after a thorough review of the record, we conclude that Judge
Thompson's factual findings are fully supported by the record developed during
the four-day trial and, in light of those facts, his legal conclusions as to the best
interests of the child test are unassailable. To the extent we have not specifically
addressed any of Benjamin's arguments, we find them to be without sufficient
merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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