DCPP VS. R.I.O. AND E.K.W., IN THE MATTER OF THE GUARDIANSHIP OF C.R.W. AND R.K.W. (FG-07-0092-19, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (CONSOLIDATED) ( 2021 )

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NOT FOR PUBLICATION WITHOUT THE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 NOS. A-3835-19
A-3836-19
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
R.I.O.1 and E.K.W.,
Defendants-Appellants.
_________________________
IN THE MATTER OF THE
GUARDIANSHIP OF
C.R.W. and R.K.W., minors.
_________________________
Submitted July 27, 2021 – Decided August 9, 2021
Before Judges Sumners and Firko.
1
We use pseudonyms or initials to protect the privacy of the children and
parents. R. 1:38-3(d)(12). We use first names for ease of reference; we mean
no disrespect.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Essex County, Docket
No. FG-07-0092-19.
Joseph E. Krakora, Public Defender, attorney for
appellant R.I.O. (Christine Olexa Saginor, Designated
Counsel, on the briefs).
Joseph E. Krakora, Public Defender, attorney for
appellant E.K.W. (Stephania Saienni-Albert,
Designated Counsel, on the briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Melissa H. Raksa, Assistant Attorney
General, of counsel; Julie B. Colonna, Deputy Attorney
General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minors (Meredith Alexis Pollock, Deputy
Public Defender, of counsel; Nancy P. Fratz, Assistant
Deputy Public Defender, of counsel and on the brief).
PER CURIAM
Following a trial concluding on March 2, 2020, Judge Linda Lordi
Cavanaugh rendered an oral opinion, a seventy-three-page written opinion, and
entered a May 28, 2020 order terminating the parental rights of R.I.O. (Rachel)
and E.K.W. (Evan) to their sons, C.R.W. (Caden), and R.K.W. (Ryan). Caden
was born in October 2017, and Ryan was born in January 2019. For the same
reasons that follow, we reject Rachel and Evan's contentions that the Division
of Child Protection and Permanency (Division) failed to meet its statutory
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burden under the four-prong best interests test, codified at N.J.S.A. 30:4C-
15.1(a), by clear and convincing evidence. The Division and Law Guardian seek
affirmance.
I.
Caden was born at University Hospital with special medical needs and
required an extended hospitalization. On November 21, 2017, Caden was
transferred to Newark Beth Israel Medical Center (NBIMC) for placement of a
gastronomy tube (G-tube) in order to address feeding issues. The Division first
became involved in Caden's life on December 6, 2017, when medical personnel
at NBIMC made a referral because two days earlier, a hospital security guard
witnessed Evan hitting Rachel during an argument about where Caden was going
to live upon his discharge.
The Division learned of the parents' financial difficulties and lack of
suitable housing. Rachel and Evan had to sell their cellular phones in order to
purchase bus tickets to visit Caden at the hospital. The Division's interview with
Rachel revealed her argument with Evan was about her intention to live at her
aunt's home with Caden, and her aunt did not want Evan to visit Caden. Rachel
denied any domestic violence in her relationship with Evan. Rachel also told
the investigators she applied for welfare and was residing in a shelter despite
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available housing with her aunt in order to become eligible for temporary rental
assistance (TRA).
Evan's interview revealed that he was unemployed but collected $844 a
month in social security disability benefits, which he used to cover housing costs
for himself and Rachel. When questioned about the altercation at the hospital,
Evan also denied domestic abuse. Neither parent visited Caden at the hospital
the weekend following their interviews, and consequently, they missed training
on how to care for his physical needs. A Division worker advised Rachel that a
request for bus tickets would be made to facilitate her visits with Caden, provide
additional training on how to feed him using the G-tube, and run errands,
including welfare appointments.
In addition, Division workers visited Rachel at the shelter and reinforced
the need for Rachel and her aunt to receive additional training on the proper use
of Caden's G-tube prior to his discharge because he was going to reside with
them. Rachel was also provided with paperwork, which would enable her to
apply for temporary employment.
Evan visited Caden on December 16, 2017, and received an update on his
condition. A social worker contacted Rachel two days later about evaluating
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Caden for admission to St. Clare's Hospital 2 where he would receive twenty-
four-hour care. Rachel objected to admitting Caden at St. Clare's.
On December 20, 2017, a hearing was held under the FN 3 docket, and the
Family Part judge granted the Division care, custody, and supervision of Caden
based on the Division's ongoing concerns about the parents' unstable housing
and domestic violence. On December 26, 2017, Caden was transferred from
NBIMC to St. Clare's with a diagnosis of "poor oral feeding, [G-]tube
placement." Additionally, Caden was diagnosed with a milk allergy and severe
eczema.
On January 5, 2018, both parents appeared at the court hearing represented
by counsel. The judge granted the parents liberal, unsupervised visitation with
Caden at St. Clare's and ordered them to participate in training on his G-tube
feedings. The parents visited Caden but missed his January 11, 2018 medical
appointment because they were looking for an apartment.
On February 1, 2018, Caden was transported to the NBIMC emergency
department due to congestion. He remained hospitalized there for four days.
2
The briefs refer to St. Clare's at St. Clare's Hospital and St. Clare's Home for
Children interchangeably. We refer to the hospital as St. Clare's.
3
Docket number FN-07-0243-18.
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Despite the Division's offer to transport the parents to the hospital to see Caden,
they did not visit him during the month of February 2018, with the exception of
two visits by Rachel. The parents moved out of the shelter and did not inform
the Division as to their new address.
In the months that followed, the parents' visitation with Caden declined—
Rachel only saw Caden once on March 19, 2018, and Evan did not visit him at
all. Caden's maternal grandparents, R.F. and P.F., and his maternal aunt, M.F.,
commenced visiting Caden at St. Clare's because they were being assessed as
potential resource parents. Prior to court-ordered psychological evaluations
being performed, Evan threatened a caseworker in March 2018, stating, "I don't
want my son with anyone, I'm going to take you out and do what I have to do,
I'm going to take the Division and the mother out (referring to the maternal
grandmother) and nobody is going to mess with my son." Both parents were
referred to Wraparound Intensive Services for Families for parenting skills
classes but failed to attend.
Rachel underwent a psychological evaluation with Denise M. Williams
Johnson, Ph.D., who recommended that Rachel attend weekly individual
counseling and substance abuse education, undergo random drug screens,
consult with a domestic violence liaison, and receive additional G-tube training.
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Evan refused to attend a psychological evaluation. Instead, Dr. Williams
reviewed Division records regarding Evan and noted he had been diagnosed with
depression and a learning disability 4 and was non-compliant with his psychiatric
medication. Rachel attended the substance abuse assessment but failed to
comply with treatment or domestic violence counseling.
Both parents failed to appear at the June 8, 2018 summary hearing. The
maternal grandparents, R.F. and P.F., continued to visit Caden and receive the
requisite training for his medical needs. The Division submitted an interstate
assessment of R.F., who resides in Pennsylvania. Rachel and Evan continued to
be unemployed and share a room in a boarding house. Their visits with Caden
continued to be sporadic. Caden continued to improve in terms of growth,
speech, and feeding therapies, but had not achieved appropriate developmental
milestones, such as walking and talking, after his first birthday.
On November 1, 2018, R.F. and P.F. were approved as a resource
placement for Caden through the Interstate Compact for the Placement of
Children (ICPC). R.F. offered to bring Caden to New Jersey for visitation
purposes, but Rachel and Evan were nonresponsive to attempts made by the
4
The record only reflects that a Division case note states Evan was diagnosed
with autism and has a history of mental illness.
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Division to arrange a visitation schedule. Rachel and Evan did not attend the
December 19, 2018 permanency hearing. The judge approved the Division's
proposed permanency plan for Caden, which included termination of Rachel's
and Evan's parental rights followed by adoption by R.F.
In January 2019, Rachel gave birth to Ryan, who was born without
medical complications. Hospital staff notified the Division upon Ryan's birth
because Rachel had been placed on an "alert list." Evan was ordered to undergo
a paternity test because Rachel did not list him as Ryan's father on the birth
certificate.5 After Rachel misrepresented her living arrangements to the
Division, Ryan was removed from Rachel's care. 6 At the time of Ryan's birth,
both parents were unemployed and noncompliant with Division services. On
January 8, 2019, the judge held a hearing on an order to show cause with respect
to the care, custody, and supervision of Ryan. Neither Rachel nor Evan attended
the hearing. The judge granted the Division care, custody, and supervision of
5
Evan's paternity of Ryan was not confirmed until October 2019 because Evan
missed three scheduled testing appointments.
6
The record refers to the removal as an "emergency removal." A Dodd removal
is an emergent removal of a minor without a court order pursuant to N.J.S.A.
9:6-8.21 to -8.82, known as the Dodd Act. N.J. Div. of Youth & Family Servs.
v. P.W.R., 205 N.J. 17, 26 n.11 (2011).
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Ryan and instructed the Division to place him in a non-relative resource home
in Newark, rather than with R.F. in Pennsylvania, in order to facilitate visitation
for Rachel and Evan.
By way of a letter dated January 23, 2019, the Division advised Rachel
and Evan that Caden's permanency goal was changed from reunification to
adoption, but the parents could work toward reunification with Ryan. On
January 30, 2019, the Division filed a verified complaint for guardianship of
Caden. Rachel and Evan failed to visit Ryan during the month of January.
Consequently, on February 8, 2019, the judge ordered Ryan be placed at R.F.'s
home, along with Caden. The parents failed to maintain contact with the
Division and their children throughout the month of February.
The judge conducted monthly case management review hearings relative
to Caden's guardianship matter between March 2019 and January 2020. On May
3, 2019, Rachel and Evan failed to appear for Ryan's permanency hearing, and
the judge granted the Division's application to amend the guardianship
complaint to include Ryan. In addition, the judge approved the Division's plan
to terminate Rachel and Evan's parenting rights to both children followed by
adoption by R.F. and P.F., who expressed their willingness to adopt.
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After failing to visit their children in May and June 2019, the Division
arranged for supervised visitation between the parents and the children
commencing July 7, 2019, and every Sunday thereafter. Visitation by Rachel
and Evan was sporadic. In August 2019, both parents underwent substance
abuse assessments. Rachel tested positive for marijuana, was referred to drug
treatment, and was ultimately discharged from the program due to
noncompliance. Evan also tested positive for marijuana and benzodiazepines.
He was referred to treatment but did not attend.
The parents appeared for the September 2019 case management
conference. They also attended a supervised visit with their children on
September 27, 2019, in Pennsylvania. Mark Singer, Ed.D. performed individual
psychological evaluations and bonding evaluations—one between the children
and the parents and one between the children and the grandparents.
In his November 25, 2019 report, Dr. Singer concluded as to Evan:
Overall, [Evan], based upon the data, is an impulsive
individual who is likely to continue to use substances
and to have difficulty creating and maintaining
appropriate stability in his own life, never mind in the
lives of the [two] children with whom he has never
resided and with whom he has not had consistent
contact with.
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Dr. Singer's findings with respect to Rachel stated, "[Rachel], much like [Evan],
is likely to continue to struggle with substance use issues (although minimizing
these issues), residential stability, [and] is likely to have difficulty complying
with limits placed on her behavior . . . ." On the issue of stable housing, Dr.
Singer opined: "Despite significant time, the data suggest that both [Rachel] and
[Evan], either individually or collectively, will likely continue to struggle with
residential instability." Overall, Dr. Singer found the data did not suggest
Rachel and Evan were "viable parenting options for these children" and were
"not likely [to] become viable parenting options in the foreseeable future."
The Division began providing transportation for Rachel and Evan to visit
their children in Pennsylvania. On November 20, 2019, Division personnel were
transporting Rachel and Evan back from a visit when the couple began arguing
in the back of the worker's car, prompting the worker to pull over. Evan was
apparently agitated by Rachel's request to be dropped off in downtown Newark
and pulled on Rachel's clothes, threw her cellular phone out of the window,
jumped on top of Rachel, and began biting Rachel's face while Rachel screamed.
The worker sought police intervention which caused Evan to flee. Then, the
worker transported Rachel to a Division office, and Rachel was placed in a
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safehouse. Following this incident, the trial court suspended Evan's visitation
rights from November 2019 to January 2020.
On December 19, 2019, Rachel successfully completed the parenting
skills program. The next day, December 20, 2019, was Rachel's last day at the
safehouse. Rachel was not eligible for an extension because she had two
unauthorized overnight absences, missed two counseling sessions, and did not
participate in services.
At the March 2, 2020 trial, the Division presented two witnesses, Dr.
Singer, and N.T.E., a Division worker assigned to the adoption unit. The Law
Guardian supported the Division's application to terminate both Rachel and
Evan's parental rights. Neither the Law Guardian nor the parents presented any
witnesses, and Evan did not appear for trial.
Dr. Singer testified that Evan minimized his shortcomings by denying his
substance abuse issues and any incidents of domestic violence. Additionally,
Evan blamed his lack of visitation on the Division, claiming it was the Division's
responsibility to transport him to the visits. Evan acknowledged his inability t o
provide stable housing for the children, a significant factor in light of Caden's
ongoing medical needs.
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As to Rachel, Dr. Singer opined her prognosis to change was poor. In
addition to her lack of housing, Dr. Singer found Rachel's inability to comple te
a substance abuse program to be troubling. He explained that Rachel's longest
period of sobriety lasted eight months, and sustainable remission with a
decreased risk of relapse does not occur until twelve months. And, Rachel
continued to use illicit substances despite ongoing litigation and referrals for
treatment.
Finally, Dr. Singer described the bonding evaluations. Dr. Singer testified
that the children were comfortable with Rachel and Evan but did not view them
as attachment figures. There was minimal verbal and physical interaction
between the children and their parents, and when leaving the room, the parents
did not kiss their children goodbye.
On the other hand, Dr. Singer described the bonding evaluation between
Caden and Ryan and R.F. and P.F. as a "very free-flowing session." The
children were both spontaneously verbal and responsive. Caden also felt free to
explore the room in order to gather toys and play with his grandparents. Dr.
Singer opined that the children viewed R.F. and P.F. as their psychological
parents because the grandparents have been the "only consistent, healthy,
accessible caregivers" in the boys' lives. Moreover, the children would
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experience a negative reaction to separation from their grandparents which
Rachel and Evan would not be able to mitigate. Based upon these evaluations,
Dr. Singer supported the plan of termination of parental rights followed by
adoption by R.F. and P.F.
N.T.E., the Division caseworker, also testified that Rachel and Evan did
not provide proof of stable housing, and Rachel failed to provide recent pay
stubs. In sum, because the proofs were lacking, the Division concluded the
parents failed to remediate the issues of stable housing and employment, which
led the Division to seek a resource placement for the children.
The judge determined the Division proved all four prongs of N.J.S.A.
30:4C-15.1(a) by clear and convincing evidence, terminated the parental rights
of Rachel and Evan, awarded the Division guardianship of Caden and Ryan, and
directed it file its complaint for adoption. This appeal followed.
II.
In reviewing a decision by a trial court to terminate parental rights, we
give "deference to family court[s'] fact[-]finding" because of "the family courts'
special jurisdiction and expertise in family matters." Cesare v. Cesare, 154 N.J.
394, 413 (1998). The judge's findings of fact are not disturbed unless they are
"so manifestly unsupported by or inconsistent with the competent, relevant and
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reasonably credible evidence as to offend the interests of justice." Id. at 412(quoting Rova Farms Resort, Inc. v. Invs. Ins. Co., 65 N.J. 474, 484 (1974)).
"[T]he conclusions that logically flow from those findings of fact are, likewise,
entitled to deferential consideration upon appellate review." N.J. Div. of Youth
& Fam. Servs. v. R.L., 388 N.J. Super. 81, 89 (App. Div. 2006).
Here, the judge carefully reviewed the evidence presented, and thereafter
concluded the Division had met, by clear and convincing evidence, all the legal
requirements for a judgment of guardianship. Her oral opinion tracks the
statutory requirements of N.J.S.A. 30:4C-15.1(a), accords with In re
Guardianship of K.H.O., 161 N.J. 337 (1999), In re Guardianship of D.M.H. 161
N.J. 365 (1999), N.J. Division of Youth & Family Services. v. F.M., 211 N.J.
420 (2012), and is supported by substantial credible evidence in the record. We
therefore affirm substantially for the reasons the judge expressed in her
comprehensive and well-reasoned opinions. We add the following remarks as
to each prong.
A. Prongs One and Two
As to prong one, the Division must prove that "[t]he child's safety, health,
or development has been or will continue to be endangered by the parental
relationship." N.J.S.A. 30:4C-15.1(a)(1). "[T]he relevant inquiry focuses on
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the cumulative effect, over time, of harms arising from the home life provided
by the parent." N.J. Div. of Youth & Fam. Servs. v. M.M., 189 N.J. 261, 289
(2007).
"Serious and lasting emotional or psychological harm to children as the
result of the 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) (citing In re Guardianship of J.C., 129 N.J. 1, 18
(1992)). As a result, "courts must consider the potential psychological damage
that may result from reunification[,] as the 'potential return of a child to a parent
may be so injurious that it would bar such an alternative.'" N.J. Div. of Youth
& Fam. Servs. v. L.J.D., 428 N.J. Super. 451, 480-81 (App. Div. 2012) (quoting
N.J. Div. of Youth & Fam. Servs. v. A.W., 103 N.J. 591, 605 (1986)).
"The absence of physical abuse or neglect is not conclusive." A.W., 103
N.J. at 605 (quoting In re Guardianship of R., 155 N.J. Super. 186, 194 (App.
Div. 1977)). "A parent's withdrawal of . . . 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. "Courts need not wait to
act until a child is actually irreparably impaired by parental inattention or
neglect." Id. at 383 (citation omitted).
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As to prong two, the Division must prove that "[t]he parent is unwilling
or unable to eliminate the harm facing the child[ren] or is unable or unwilling to
provide a safe and stable home . . . and the delay of permanent placement will
add to the harm." N.J.S.A. 30 4C-15.1(a)(2). Harm may include evidence that
separating the children from their resource parents "would cause serious and
enduring emotional or psychological harm." Ibid.
The Division can establish the second prong by proving that a "child will
suffer substantially from a lack of stability and a permanent placement[,] and
from the disruption of" a bond with the resource parents. K.H.O., 161 N.J. at
363. Because they are related, evidence supporting the first prong may also
support the second prong "as part of the comprehensive basis for determin ing
the best interests of the child." D.M.H., 161 N.J. at 379.
Here, based on the judge's credibility findings of the Division's
witnesses—Dr. Singer and N.T.E.—there is clear and convincing evidence to
support the judge's finding that a continued parental relationship with Rachel
and Evan would harm Caden and Ryan because of the parents' problematic
behaviors and their instability. Moreover, despite numerous opportunities to do
so, Rachel and Evan had not remedied the circumstances leading to the
placement of their first child, Caden, in 2017.
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Under the first prong, the judge determined Evan's actions demonstrated
"a complete inability, unwillingness, or utter lack of interest" in complying with
Division services that would have enabled Evan to provide a safe and stable
home for his children. Evan never provided the Division with proof of
employment or stable housing throughout the entirety of the litigation. He also
never attended services, including domestic violence counseling, drug
assessment, and parenting classes; missed several paternity tests to establish
paternity of Ryan; and failed to visit his children with regularity, which the judge
found to be "extremely telling" and evidenced a "lack of interest."
Although Rachel was more compliant with the Division than Evan, the
judge still found her unable to remedy the issues which led to the removal of her
two sons. Rachel lacked stable housing for several years and had not provided
proof of stable housing at the time of the guardianship trial. Moreover, she was
only able to provide proof of employment for one month, October 2019. The
court described Rachel's compliance with services as "sporadic, at best" which
hindered her ability to achieve long term stability, and that visitation with her
sons was "simply not consistent."
Also of "substantial concern" under this prong was the couple's history of
volatility and domestic violence. While the children did not witness the
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domestic violence, the judge found, "[Evan] simply denies or simply refuses to
acknowledge his violent nature, although there is ample evidence of his threats
to the resource parent and caseworker and his physical assaults on [Rachel]." In
addition, the judge emphasized "[a]lthough [Rachel] has often denied the
existence of domestic violence, she has met with the domestic violence liaison
on more than one occasion and has pursued counseling." However, these efforts
were undermined by Rachel's continuing relationship with Evan despite being
advised by the Division "that a continuing relationship with [Evan] would
jeopardize her chances of having the children placed [with] her."
As to the second prong, the judge found neither parent "cured or overcame
the initial harm that endangered the health, safety, and welfare" of their children
because Evan’s "virtually nonexistent cooperation and compliance," and
Rachel’s "minimal cooperation and compliance," resulted in the couple’s
"complete lack of meaningful progress achieved." The judge highlighted that
Evan did not take advantage of either the repeated referrals or opportunities to
visit his children and minimized his personal responsibility for the Division's
involvement with his family. It was "very clear" to the judge that Evan had
sufficient time to remediate the deficits in his parenting but was either unable or
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unwilling to do so. We are satisfied the record fully supports the judge's findings
as to prongs one and two.
B. Prong Three
As to prong three, the Division is required to make "reasonable efforts to
provide services to help the parent correct the circumstances which led to the
child's placement outside the home[,] and the court [will] consider[] alternatives
to termination of parental rights." N.J.S.A. 30:4C-15.1(a)(3). This prong
"contemplates efforts that focus on reunification of the parent with the child and
assistance to the parent to correct and overcome those circumstances that
necessitated the placement of the child into foster care." K.H.O., 161 N.J. at
354.
The Division must prove that it "has made reasonable efforts to provide
services to help the parent correct the circumstances which led to the child's
placement outside the home." N.J.S.A. 30:4C-15.1(a)(3). "Reasonable efforts"
include but are not limited to:
(1) consultation and cooperation with the parent in
developing a plan for appropriate services;
(2) providing services that have been agreed upon, to
the family, in order to further the goal of family
reunification;
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(3) informing the parent at appropriate intervals of the
child's progress, development, and health; and
(4) facilitating appropriate visitation.
[N.J.S.A. 30:4C-15.1(c).]
"Whether particular services are necessary in order to comply with the
[reasonable] efforts requirement must . . . be decided with reference to the
circumstances of the individual case before the court . . . ." D.M.H., 161 N.J. at
390.
The Division
must encourage, foster and maintain the bond between
the parent and the child as a basis for the reunification
of the family. [It] must promote and assist in visitation
and keep the parent informed of the child's progress in
foster care. [It] should also inform the parent of the
necessary or appropriate measures he or she should
pursue in order to continue and strengthen that
relationship and, eventually, to become an effective
caretaker and regain custody of his or her children.
[Id. at 390 (citing N.J.S.A. 30:4C-15.1(c)).]
A court is required to consider alternatives to the termination of parental
rights. N.J.S.A. 30:4C-15.1(a)(3). "[A]ssessment of relatives is part of the
Division's obligation to consult and cooperate with the parent in developing a
plan for appropriate services that reinforce the family structure." N.J. Div. of
Youth & Fam. Servs. v. K.L.W., 419 N.J. Super. 568, 583 (App. Div. 2011).
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N.J.S.A. 30:4C-12.1(a) requires the Division to initiate a search for
relatives who may be willing and able to provide the care and support required
by the child within thirty days of accepting a child into its care or custody. The
Division must assess each interested relative and, if it determines that the
relative is unable or unwilling to care for the child, inform them of its reasons
for a denial of placement. N.J.S.A. 30:4C-12.1(a)-(b).
"It is the policy of [the Division] to place, whenever possible, children
with relatives when those children are removed from the custody of their
parents." N.J. Div. of Youth & Fam. Servs. v. K.F., 353 N.J. Super. 623, 636
(App. Div. 2002). "The Division's statutory obligation does not permit willful
blindness and inexplicable delay in assessing and approving or disapproving a
relative know to the Division[.]" K.L.W., 419 N.J. Super. at 582. It cannot
ignore relatives "based upon an arbitrary, preordained preference for the foster
placement" and "must perform a reasonable investigation of . . . relatives that is
fair, but also sensitive to the passage of time and the child's critical need for
finality and permanency." N.J. Div. of Youth & Fam. Servs. v. J.S., 433 N.J.
Super. 69, 87 (App. Div. 2013).
Under this prong, an alternative to termination of parental rights is
Kinship Legal Guardianship (KLG). KLG allows a relative to become the
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child's legal guardian and commit to care for the child until adulthood, without
stripping parental rights. N.J. Div. of Youth & Fam. Servs. v. P.P., 180 N.J.
494, 508 (2004). The Legislature created this arrangement because it found
"that an increasing number of children who cannot safely reside with their
parents are in the care of a relative or family friend who does not wish to adopt
the child or children." N.J. Div. of Youth & Fam. Servs. v. L.L., 201 N.J. 210,
222-23 (2010).
While KLG is "a more permanent option than foster care when adoption
'is neither feasible nor likely,'" the State's public policy heavily favors
permanency. P.P., 180 N.J. at 512 (quoting N.J.S.A. 3B:12A-6(d)(3) to (4)).
Consequently, "when a caretaker . . . unequivocally asserts a desire to adopt,"
the standard to impose a KLG is not satisfied because the party seeking a KLG
arrangement will not be able to show that adoption is neither feasible nor likely.
N.J. Div. of Youth & Fam. Servs. v. T.I., 423 N.J. Super. 127, 130 (App. Div.
2011). In other words, when permanency through adoption is available to a
child, KLG cannot be used as a defense to the termination of parental rights.
N.J. Div. of Youth & Fam. Servs. v. D.H., 398 N.J. Super. 333, 341 (App. Div.
2008).
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For the first time on appeal, Evan contends there is no competent evidence
in the record to support a finding that R.F. and P.F. were committed to adopting
their grandchildren. Evan claims the hearsay statements from the Division
worker who testified at the guardianship trial were insufficient to establish by
clear and convincing evidence that the grandparents were "committed
unambiguously, unequivocally, and unconditionally to adoption, regardless of
the possible alternative of KLG." N.J. Div. of Child Prot. and Permanency v.
M.M., 459 N.J. Super. 246, 273 (App. Div. 2019). We disagree.
The grandparents' desire to adopt Caden and Ryan is undisputed. R.F. and
P.F. have been committed to adoption as early as their completion of the ICPC
form on which R.F. indicated adoption as her permanency option of choice. The
record shows the Division regularly documented R.F.'s and P.F.'s desire to adopt
the children in its case notes. At the guardianship trial, the judge considered the
testimony of the Division worker about the grandparents' commitment to adopt
the children, which Rachel and Evan did not object to. Further, the Divisio n
admitted into evidence R.F.'s acknowledgement of the fact sheet explaining
KLG and adoption, which demonstrated that the Division informed the
grandparents about different permanency options. Because the Division
demonstrated that adoption was both feasible and likely, the judge properly
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concluded there was no alternative to termination of parental rights under prong
three. T.I., 423 N.J. Super. at 130.
C. Prong Four
Under prong four, the Division must demonstrate by clear and convincing
evidence that "[t]ermination of parental rights will not do more harm than good."
N.J.S.A. 30:4C-15.1(a)(4). The prong characterizes a child's need for
permanency as "an important consideration." M.M., 189 N.J. at 281. "The
question to be addressed under that prong is 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. In order
to weigh any potential harm from terminating parental rights against a child's
separation from his or her foster parents, a court must consider expert testimony
on the strength of each relationship. J.C., 129 N.J. at 25. "[W]here it is shown
that the bond with foster parents is strong and, in comparison, the bond with the
natural parent is not as strong, that evidence will satisfy . . . N.J.S.A. 30:4C -
15.1(a)(4) . . . ." K.H.O., 161 N.J. at 363.
Rachel asserts that the judge erred by giving undue weight to Dr. Singer's
expert opinion because his assessment was "outdated, unreliable, and
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incomplete." She also argues the Division failed to provide Dr. Singer with
updates related to her "successful completion of a parenting skills course, her
full-time employment at UPS, her consistent and very positive visits with her
children, . . . her termination of her relationship with [Evan] and that there were
no additional domestic violence incidents." Evan contends there was
insufficient evidence in the record to support a finding termination of parental
rights will result in permanency for Caden and Ryan and that separation from a
biological parent is a harm in and of itself. Again, we disagree.
"[T]o satisfy the fourth prong, the State should offer testimony of a
well[-]qualified expert who has had full opportunity to make a comprehensive,
objective, and informed evaluation of the child's relationship with both the
natural parents and the foster parents." F.M., 211 N.J. at 453 (quoting M.M.,
189 N.J. at 281). Termination is appropriate, "even in the absence of evidence
showing that [the child] has bonded with [the] foster parents," if the court is
presented with "a clear and compelling record warranting the termination of
parental rights." N.J. Div. of Youth & Fam. Servs. v. F.H., 389 N.J. Super. 576,
623 (App. Div. 2007).
Here, the Division proffered the expert opinion of Dr. Singer, who had a
full opportunity to assess each parent individually as well as perform bonding
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evaluations for the family. Based on his unrefuted evaluations and observations,
Dr. Singer opined both children view R.F. and P.F. as significant parental figures
and as their psychological parents. Moreover, Dr. Singer testified that neither
Rachel nor Evan "developed, or maintained, a healthy meaningful relationship"
with the children. If the judge were to remove the children from the
grandparents' care, Dr. Singer found the children would likely experience a
negative reaction.
In finding the Division satisfied prong four, Judge Cavanaugh found
neither parent was a viable parenting option as of the time of trial, nor would
they become a viable parenting option in the future. The judge reasoned
termination of parental rights would provide "permanency, stability, and safety"
for Caden and Ryan. In balancing the relationships, the judge found that since
the biological parents were not a viable parenting option, delaying permanency
and separating the children from their grandparents would result in harm to the
children.
Considering the credible evidence cited by the judge, she properly
determined the Division satisfied prong four by clear and convincing evidence.
We conclude the judge's termination of Rachel and Evan's parental rights was
in the children's best interests.
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Affirmed.
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