DCPP VS. A.M.W. AND S.O.F., IN THE MATTER OF THE GUARDIANSHIP OF T.O.F. (FG-07-0085-19, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2020 )

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NOT FOR PUBLICATION WITHOUT THE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-5369-18T3
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
A.M.W.,
Defendant-Appellant,
and
S.O.F..
Defendant.
____________________________
IN THE MATTER OF THE
GUARDIANSHIP OF T.O.F.,
a Minor.
____________________________
Submitted May 11, 2020 – Decided June 5, 2020
Before Judges Rothstadt and Moynihan.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Essex County, Docket
No. FG-07-0085-19.
Joseph E. Krakora, Public Defender, attorney for
appellant, A.M.W. (Robyn A. Veasy, Deputy Public
Defender, of counsel; Laura Orriols, Designated
Counsel, on the briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Sookie Bae-Park, Assistant Attorney
General, of counsel; Casey Jonathan Woodruff, Deputy
Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minor (Meredith Alexis Pollock, Deputy
Public Defender, of counsel; Nancy P. Fratz, Assistant
Deputy Public Defender, of counsel and on the brief).
PER CURIAM
Defendant A.M.W. (Amy) appeals from a judgment of guardianship
terminating her parental rights to her son T.O.F. (Tommy)—born in 2012—and
awarding guardianship to plaintiff, New Jersey Division of Child Protection and
Permanency (Division), which was entered after a two day trial. 1 Amy argues
the Division failed to meet its burden to establish by clear and convincing
evidence that her admitted substance abuse impacted her ability to care for
1
We repeat the pseudonyms defendant used in her merits brief to protect Amy
and Tommy's privacy and preserve the confidentiality of these proceedings. R.
1:38-3(d)(12); R. 5:12.
A-5369-18T3
2
Tommy, and the trial court's termination decision was "not supported with
adequate, substantial and credible evidence." Instead,
[b]ecause there [was] no actual abuse or neglect in this
case, the removal and continued separation of mother
and child [was] premised on the idea of a substantial
risk of harm from the mother's struggle with addiction.
However, the [Division] failed to produce any evidence
that the allegation that the child was in danger of his
parental relationship with his mother was reasonable.
There were no contacts with unsavory individuals,
dealers or users. There were no house parties or times
when the child was left unattended.
We disagree. The trial court's conclusions are supported by clear and convincing
evidence and the best interests of the child are served by termination of Amy'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 trial court'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) (first alteration in original) (quoting Cesare, 154 N.J. at 413).
We will not disturb the trial court's factual findings unless they are "so wide of
A-5369-18T3
3
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,'
we expand 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 court's legal conclusions 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:
A-5369-18T3
4
(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;
(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.
Amy contends the trial court erroneously found the first statutory prong
was met by evidence that Tommy was born methadone-exposed; he was twice
removed from Amy by the Division; Amy admitted to drug use while caretaking
Tommy; and an expert opined Amy had "parenting deficits." She argues that
A-5369-18T3
5
evidence does not clearly and convincingly prove "the relationship between
Tommy and his mother was detrimental to his health and development."
The record, however, demonstrates that and other evidence established the
first prong. In determining if the Division met its burden with regard to the first
prong, we consider not only "whether the parent has harmed the child[, but also
whether the parent] 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). 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
A-5369-18T3
6
treatment for that condition, the 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).
The record evidence, including Amy's admissions, supports the trial
court's findings of fact, delineated in its fifty-six-page written decision, upon
which we base our decision. The trial court determined Tommy's "safety, health
and development" was endangered by his relationship with Amy. Tommy's
methadone exposure at birth evidenced Amy's long-standing, ongoing drug
abuse that she admitted started when she was fourteen-years-old2 with marijuana
use, progressed to heroin use at age fifteen and then to cocaine use in 1997.
The first Dodd removal 3 in May 2014, took place after Amy tested
positive for cocaine. The Division substantiated her for abuse or neglect after
she admitted using four to five bags of cocaine at least once per week while
caretaking her children. The second removal occurred after Amy—who left
Tommy with B.H., whom she identified as his godmother—was admitted to a
hospital in January 2017 and tested positive for cocaine, methadone and opioids.
2
Amy was born June 7, 1975.
3
Prior to obtaining a court order, the Division may remove a minor in an
emergency. N.J.S.A. 9:6-8.21 to -8.82 (the "Dodd Act"); see also N.J. Div. of
Youth & Family Servs. v. P.W.R., 205 N.J. 17, 26 n.11 (2011).
A-5369-18T3
7
Although Amy denied drug use, she admitted going to a methadone clinic and
later admitting to ingesting cocaine and heroin. In fact, she tested positiv e for
all three substances during a drug screen performed four days prior to her
hospital admission.
The removals showed not only the duration of Amy's drug use, but that
her use took place—as she admitted—while Tommy was in her care. The trial
court's finding that Amy "admitted to the abuse and neglect of [Tommy] because
of a 'significant history of substance abuse, spanning at least seventeen years,
indicating a pattern of substance abuse and relapsing on cocaine and heroin,
while remaining in the caretaking role of [Tommy,]'" is well-supported by the
record.
Despite her expressed desire to complete an intensive outpatient program,
maintain sobriety, mental health treatment and continued compliance with
substance abuse treatment, Amy: "was inconsistent in attendance and testing
positive for illicit drugs" while in treatment at Integrity House in August 2014;
was admitted to an Integrity House inpatient substance abuse program that
month, but was discharged in September 2014 because she had a physical
altercation there; re-entered the program in October 2014 and "agreed to comply
with [the] substance abuse program at Integrity and any next[-]level
A-5369-18T3
8
recommendations; participate in parenting skill classes; and to comply with
mental health treatment"; in February 2015, expressed a desire to leave the
program, where she "was receiving parenting skills, individual therapy and
psychiatric medication monitoring" because "she did not realize it was a long -
term program"; nonetheless completed the Integrity House program in March
2015 "and was discharged to complete further treatment at the Integrity House
– WISE program."
Unfortunately, in June 2015, two of Amy's three urine screens were
positive for cocaine and she had missed treatments; Amy admitted relapsing in
May 2105; in July 2015, four of Amy's six urine screens were positive for
cocaine and one for alcohol, and she missed treatments. The WISE program did
not report any further positive drug screen and, although it reported in October
2015 that Amy's attendance was poor, she successfully completed the program
requirements in December 2015. After testing negative the following month,
Amy and Tommy were reunited in February 2016, and the Division closed its
case in November 2016.
Two months later, the Division received a referral after Amy's hospital
admission. It ultimately effectuated the second Dodd removal after she tested
positive for, and admitted, heroin and cocaine use. She entered an intensive
A-5369-18T3
9
outpatient program at East Orange Substance Abuse Program in February 2017.
She tested positive in February, March and April, and was discharged from the
program. Thereafter, she attended the Sunrise House substance abuse program
for relapse prevention and group therapy, where she was reported compliant in
August and December 2017. She also engaged in psychiatric treatment at
Newark Beth Israel Medical Center "for major depressive disorder and post -
traumatic stress disorder, but acknowledged that she was not taking the
prescribed medication." And, although she missed or canceled without adequate
notice three scheduled appointments with CYFS – YDC4 (CYFS), in November
2017, CYFS reported she attended consistently; in March 2018, CYFS reported
that though she missed some sessions, Amy "appeared motivated to process her
trauma and maintain her sobriety."
In April 2018, the Division's permanency plan to again reunify Amy and
Tommy was approved because she "was compliant with services; she was
receiving individual therapy and parenting skills classes at CYFS; substa nce
abuse treatment and methadone maintenance at Sunrise House[;] and she then
had unsupervised visits" with Tommy.
4
CYFS is an acronym for Clinic for Youth & Family Solutions. YDC, an
acronym for Youth Development Clinic, is a section of CYFS with which the
Division contracts to provide services.
A-5369-18T3
10
Supervised visitation was reinstated, however, after Sunrise House
reported Amy tested positive for cocaine. In June 2018, Amy advised the
Division that she did not want to take prescribed psychotropic medication
because she felt it was not needed. That month, CYFS reported Amy missed,
without adequate notice, three scheduled appointments in May and June, it
would not schedule additional appointments and would close Amy's case. Later
that month, YDC reported Amy's "expressed desire to continue with treatment
were inconsistent with her actions"; despite being warned on June 19 that it
would close her case if she missed any more appointments, she missed one on
June 26. On July 10, 2018, YDC closed Amy's case for lack of attendance.
In September 2018, Sunrise house "reported that despite [Amy's] initial
success, she exhibited problematic behaviors, had misdirected anger and was
combative and argumentative," and recommended her care level be changed to
intensive outpatient treatment. Amy advised the Division "she could not go to
Sunrise Clinical because the clients were 'really crazy.'"
An October 4, 2018 court order noted Amy tested positive for various
controlled dangerous substances in March, May, June, July, August and
September. Her treatment at Sunrise had stagnated in November 2018 to the
point that she was transferred to American Habitare & Counseling, Inc. That
A-5369-18T3
11
month, the Division also noted Amy was not addressing her mental health and
referred her to Rutgers Behavioral Early Intervention Support Systems. In
February 2019, Habitare reported Amy had not taken prescribed medications.
The following month, Habitare reported Amy tested positive for cocaine twice
in February and once in early March but tested negative later in March; it also
said Amy met her monthly requirements of meeting with her primary counselor
and in group session, and submitting to urine screens. In April 2019, Habitare
reported Amy was not compliant, inconsistent and tested positive for cocaine.
On June 25, 2019, Habitare reported:
To date, [Amy] ha[s] not met her monthly
requirements. [Amy] has not attended treatment for the
month of June with the exception of once. [Amy] has
[attended] for the month of May as scheduled, but has
not attended any group session as required. [Amy] is
monitored for uds for the month of May and June as
follow[s]: May 9[] and 13[] tested negative for illicit
substances. May 21[] tested positive for cocaine and
May 29[] tested negative. June 5[] tested negative for
illicit substances. June 11[] tested positive for cocaine,
and June 19 tested positive for oxycodone. [Amy] is
also scheduled to see the program APN every [three]
months and is prescribed Prazosin 2 mgs. For Night
Terrors. [Amy's] attendance at treatment program has
not been consistent and she is not an active participant
of treatment program. Patient [h]as not attended any
scheduled groups as a requirement of treatment
program.
A-5369-18T3
12
Not only do the trial court's findings support that Amy's drug use while
Tommy was in her care presented a danger to his safety and health, her continued
drug use and failures to address both her substance abuse and mental health
issues evidence a continued danger for the foreseeable future. See C.S., 367
N.J. Super. at 113. Amy's inability and, at times, unwillingness, to obtain and
complete appropriate treatment caused a risk of harm to Tommy, including his
continued impermanent home life. See H.R., 431 N.J. Super. at 223.
As Dr. Elizabeth Stilwell, whose qualifications as an expert in psychology
and bonding were stipulated by the parties and found by the trial court, opined:
The available history and current data suggests that
[Amy] presents with a number of parenting deficits that
have not been ameliorated to the point of her becoming
a viable parenting option for [Tommy]. Despite being
given several opportunities to achieve stability, [Amy]
continues to engage in self-defeating behaviors and has
not complied with recommended services. To [Amy's]
credit, she appears to love her son and wants to care for
him. Her parenting assessment suggests that she has a
rational and factual understanding of parenting and
child rearing practices. However, she lacks the
emotional resources and fortitude to achieve stability in
her own life let alone a child with emotional and
behavioral needs. Additionally, [Amy] does not appear
to appreciate that harm she continue[s] to perpetrate by
inconsistently visiting and remaining in contact with
her son. In accordance with prior psychological
opinions, [Amy's] inability to engage in services and
consistently attend visitation with [Tommy] is
indicative of [her] inability to parent.
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It is the opinion of this evaluator, within a reasonable
degree of psychological certainty that the totality of
available information suggests that [Amy] is unlikely
to become a viable parenting option for [Tommy] in the
foreseeable future.
The trial court's acceptance of that unrebutted opinion also supports a
finding of harm engendered, not only by Amy's inability to parent, but by her
long and continual absences from Tommy's life because of her many attempts —
and failures—to free herself from the grip of cocaine and other drugs. See
K.L.F., 129 N.J. at 43-44; D.M.H., 161 N.J. at 379. All that time, Tommy was
cared for, not by his mother, but by resource parents. And the record reveals
Amy frequently missed visits with Tommy, last visiting him on July 3, 2019,
despite having Division-provided transportation. The Division's evidence,
including Amy's admissions, as found by the trial court from competent
evidence it deemed credible, amply proved the first statutory prong.
As is common, 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 common proofs in this case support the trial court'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
A-5369-18T3
14
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. 2001) (first alteration in original)
(quoting N.J.S.A. 30:4C-15.1(a)(2)).
[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.]
Of great concern to the A.W. Court was the lack of 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 616.
The trial court properly considered evidence, including Dr. Stilwell's
opinion, that Amy was unable to correct her "conduct within the reasonably
foreseeable future." N.J. Div. of Child Prot. & Permanency v. T.D., 454 N.J.
Super. 353, 380 (App. Div. 2018). That evidence proved that the harm to
Tommy would continue because Amy was unable or unwilling to overcome or
remove it, thus satisfying the second prong. N.J. Div. of Youth & Family Servs.
v. P.P., 180 N.J. 494, 506-07 (2004).
A-5369-18T3
15
Amy failed to avail herself of the provided services to address her co-
occurring problems and her resultant failure to consistently provide a safe and
stable home for Tommy. As Dr. Stilwell testified, Amy's entwined substance
abuse and mental health issues "negatively impact[ed] her prognosis." Her
absence from Tommy's life necessitated alternate caregivers, chiefly B.H. who
consistently stepped into the breach to care for Tommy and provide support for
Amy. The trial court considered Amy's conduct and Dr. Stilwell's opinion that
Amy was not, nor in the foreseeable future would be, a source of permanency.
See K.H.O., 161 N.J. at 348-49, 363 (holding the second prong may be met by
showing "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,"
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").
The court also adopted Dr. Stilwell's view that Tommy would suffer a
traumatic loss that would produce significant and enduring harm which Amy
could not mitigate if he was separated from his psychological parent, B.H. This
evidence supported the court'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
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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 permanenc y continues
or adds to the child's harm." Importantly, "[c]hildren must not languish
indefinitely in foster care while a birth parent attempts to correct the conditions
that resulted in an out-of-home placement." N.J. Div. of Youth & Family Servs.
v. L.J.D., 428 N.J. Super. 451, 483-84 (App. Div. 2012) (alteration in original)
(quoting N.J. Div. of Youth & Family Servs. v. S.F., 392 N.J. Super. 201, 210
(App. Div. 2007)).
Amy also argues the Division failed to prove part of the third statutory
prong because it failed to make a good faith effort to investigate relatives to care
for Tommy after his removal in May 2017. She claims the Division began its
investigation nearly two years later, when the court ordered it to investigate
relatives that she submitted when the Division "finally made . . . a request in
February 2019." She contends the delay contravened the Division's statutory
obligation to "initiate a search for relatives who may be willing and able to
A-5369-18T3
17
provide the care and support required by the child." N.J.S.A. 30:4C-12.1(a).
She argues the Division, in compliance with that statute, should have initiated a
search for relatives within thirty days after it took custody of Tommy.
The argument overlooks the Division's efforts as found by the trial cou rt.
Within a week after the court granted the Division care, custody and supervision
of Tommy after his first removal in May 2014, Tommy was placed with B.H.,
who hosted visits between Amy and Tommy while Amy attended her program.
The Division placed Tommy with paternal grandmother, A.F., in September,
2014, but had to move him back with B.H. in August 2015, until he was placed
with a new resource parent the next month.
In December 2015, after Amy resigned from her job, she was asked her
plans for supporting Tommy after reunification; among the resources she cited
were both B.H. and A.F. She also noted their continued support through 2016.
With this contextual background, we are unsurprised that Amy did not
object to or press for an alternate placement after Tommy was placed with B.H.
after the second removal. The record is bereft of any request by Amy or her
counsel for an alternate placement while Amy attempted to address her issues.
We note as late as April 2018, that the permanency plan was to reunite mother
A-5369-18T3
18
and son. Meanwhile, B.H. continued to host visits between the two through
February 2019.
In January 2019, Amy disagreed with the modified Division goal of
adoption and refused to supply names when the Division requested family
members with whom Tommy could be placed. Her counsel supplied names and
phone numbers for Amy's sister, W.W., and her aunt, J.L., to the court on
January 24, 2019. 5
The Division contacted J.L. on February 11, 2019, and ordered
background checks. J.L. reported she had been incarcerated in 1989 on a drug
charge. On May 1, 2019, the Division requested that she provide court
dispositions and written explanations of her criminal record. During an in-office
assessment on May 17, 2019, the Division reiterated the need for the requested
documents. When the documents were not submitted, the Division wrote a letter
to J.L. on June 3, 2019, requesting she send the specifically-detailed documents
within ten days. Although J.L delivered some documents to the Division office
5
Amy does not argue the Division failed to satisfy the third prong with regard
to its investigation of A.F. or a possible placement in New York. As the trial
court found, A.F. was ruled-out because she was unable or unwilling to care for
Tommy because of her health and inadequate space in her home; and an
investigation of the New York home revealed "serious violations in the home
environment."
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19
on June 7, after review, it was explained what documents were missing. The
Division followed that explanation with a telephone call to J.L. on June 11.
Similarly, the Division called W.W. on February 11, 2019, and left a
message. A letter to her sent on April 9, 2019 was returned on May 6, and the
Division called and left another message. 6 When the Division finally spoke to
W.W. on May 17, it requested documents relating to her criminal background.
The request was reiterated during a telephone call on June 4; the Division
followed that same day with a letter detailing the required documentation. Not
having received the documents, the Division repeated the request in a telephone
call on June 11, 2019.
After the Division received Dr. Stilwell's report in June 2019, the Division
called J.L. on June 20 and advised she was being ruled out in Tommy's best
interests because the doctor opined Tommy would suffer loss and harm if
removed from B.H.; J.L. had yet to supply all requested documentation. The
Division also called W.W. that same day to advise her she was being ruled out
6
In its written decision, the trial court noted a Division caseworker admitted
during her trial testimony that a letter sent to W.W. "listed the wrong address
and the child indicated on the second page was not [Tommy]. Nonetheless, the
court [found] credible [the caseworker's] explanation that she subsequently
provided a letter to [W.W.] and spoke with her." It is unclear to which letter the
court was referring.
A-5369-18T3
20
because she had not submitted the required documentation; her voice mailbox
was full.
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.'" N.J. Div. of Youth & Family Servs. 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 investigation, begun in early
February after counsel's disclosure in late January—following Amy's refusal
earlier that month to name relatives—could have been completed by the July
trial date had J.L. and W.W. cooperated. In any event, we cannot conclude the
Division embarked "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 we decried in J.S. Ibid. (quoting K.L.W., 419 N.J.
Super. at 580). 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
application based upon an arbitrary, preordained
preference for the foster placement. The Division must
perform a reasonable investigation of such relatives
A-5369-18T3
21
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.
[Id. at 87.]
This, however, was not the case where the Division failed to investigate a
timely-disclosed relative. To be sure, "alternatives to termination of parental
rights" were considered as required by N.J.S.A. 30:4C-15.1(a)(3).
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.
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The reality is present in this record. As we already noted, Dr. Stilwell
opined that breaking the bond between Tommy and B.H. would not be in his
best interests. Certainly, neither J.L. nor W.W. had any significant bond with
Tommy. And, considering their failure to submit documentation regarding their
respective criminal histories, it is unknown if they were qualified as resource
parents. Inasmuch as "there is no legal presumption in favor of a child's
placement with relatives," id. at 88, and Amy was not in any position to parent
Tommy, there is no evidence to controvert Dr. Stilwell's opinion, as adopted by
the trial court, that it was in Tommy's best interests to remain with B.H.
The Division satisfied the fourth prong through Dr. Stilwell, 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 resource] parent []." M.M.,
189 N.J. at 281 (quoting J.C., 129 N.J. at 19). Finding Dr. Stilwell's testimony
credible, the trial court evaluated the strength of Tommy's relationship to both
Amy and B.H., the relative harm that would befall Tommy if he 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 court found compelling the strength of the bond
between Tommy and B.H. and B.H.'s ability to ameliorate any harm caused by
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the termination of Amy's thin bond with Tommy. The court quoted Dr. Stilwell's
observation: "Preserving [Tommy's] relationship with his only consistent
caregiver would likely serve to mitigate any reaction, not significant or
enduring, he may experience through the loss of another relationship. In
actuality, due to [Amy's] behavior, her relationship with [Tommy] has already
begun to be severed." The court's decision was amply supported by Dr.
Stilwell'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.
We recognize the trauma that Amy suffered during her life. But contrary
to her argument that she is a "beleaguered parent with an uneven track record,"
Amy has a consistent track record of inability to address the demons that have
been visited upon her, perhaps by that trauma, and also visiting those demons
on Tommy, directly by drug use while in her care and indirectly by her absence
as a mother providing safety, security and permanency in his life.
We determine Amy's remaining arguments are without sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). These include her
argument, not raised to the trial court, that Dr. Stilwell rendered a net opinion.
The trial court described in detail the doctor's record review, interviews,
A-5369-18T3
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behavioral observations and interpretation of administered psychological tests
used in reaching her opinions. The court's findings and our review of Dr.
Stilwell's comprehensive nineteen-page, single-spaced report leads us to
conclude the doctor set forth "the whys and wherefores rather than bare
conclusions"; hence she did not render a net opinion. Beadling v. William
Bowman Assocs., 355 N.J. Super. 70, 87 (App. Div. 2002).
Affirmed.
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