Dcpp v. B.C. and A.A., in the Matter of the Guardianship of A.A. and J.A. ( 2024 )

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NOT FOR PUBLICATION WITHOUT THE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-2191-22
NEW JERSEY DIVISION OF
CHILD PROTECTION AND
PERMANANCY,
Plaintiff-Respondent,
v.
B.C.,1
Defendant-Appellant,
and
A.A.,
Defendant.
_________________________
IN THE MATTER OF THE
GUARDIANSHIP OF A.A.
and J.A., minors.
__________________________
Submitted March 12, 2024 – Decided April 2, 2024
1
We employ initials and pseudonyms to identify the parties, the children, and
others to protect the children's privacy and because the records relating to
Division proceedings held under Rule 5:12 are excluded from public access
under Rule 1:38-3(d)(12).
Before Judges Smith and Perez Friscia.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Cumberland County,
Docket No. FG-06-0035-23.
Jennifer Nicole Sellitti, Public Defender, attorney for
appellant (John Andrew Albright, Assistant Deputy
Public Defender, of counsel and on the briefs).
Matthew J. Platkin, Attorney General, attorney for
respondent (Janet Greenberg Cohen, Assistant Attorney
General, of counsel; Julie Beth Colonna, Deputy
Attorney General, on the brief).
Jennifer Nicole Sellitti, Public Defender, Law
Guardian, attorney for minors (Meredith Alexis
Pollock, Deputy Public Defender, of counsel; Jennifer
Marie Sullivan, Assistant Deputy Public Defender, of
counsel and on the brief).
PER CURIAM
Defendant B.C. (Bianca) appeals from the Family Part's March 6, 2023
judgment terminating her parental rights to her twin sons, A.A. (Adam) and J.A.
(John), and granting guardianship to the New Jersey Division of Child
Protection and Permanency (Division) with the permanency plan that the twins
be adopted by their resource parents. Bianca argues the trial court erroneously
issued her a time ultimatum rather than undertaking a best interests analysis.
She further argues the court erred in finding the Division had proven by clear
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and convincing evidence the four prongs of the best interests test warranting
termination of her parental rights under N.J.S.A. 30:4C-15.1(a). The law
guardian argues the Division has proven that each of the best interests prongs to
terminate Bianca's parental rights and that the court's judgment should be
affirmed. Having reviewed the record, the parties' contentions, and the
applicable law, we affirm the judgment because the court correctly applied the
law, and substantial credible evidence supports its findings.
I.
We summarize the pertinent facts established during the guardianship
proceeding. Following a two-day trial, the court terminated Bianca's parental
rights due to her history of substance abuse. Bianca is Adam and John's
biological mother. Bianca was married to the twins' biological father, A.A.
(Alex).2 Adam and John have a sister, A.A. (Ashley), two half-sisters, A.P. and
M.P., and other half-siblings. Bianca shares joint legal custody of Ashley with
her mother, D.W. (Diane), who has residential custody. Bianca, however, does
not have physical custody of any of her children.
2
Although his name is not on the birth certificate, Alex's paternity has not been
disputed. The court also terminated Alex's parental rights. Alex is not a party
to this appeal.
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Between 2009 and 2020, the Division received multiple referrals
involving Bianca related to substance abuse, domestic violence, and inadequate
supervision. On November 2, 2020, the Division received a referral from an
Inspira Hospital employee reporting that Bianca was homeless, had delivered
twin boys, and tested positive for opiates. She had admitted to recently using
four bags of heroin.
While at the hospital, Bianca was accompanied by a man who claimed his
name was Joey. During the Division's investigation, Joey refused to provide his
last name, and would not cooperate with the caseworker. They denied Joey was
the twins' father, maintaining he was only a "best friend and support person."
After the Division interviewed Bianca at the hospital, she left against medical
advice. The twins remained in the neonatal intensive care unit for twenty-four
days and were observed for withdrawal symptoms. On November 25, 2020, the
hospital discharged the twins to the Division's care, and they were placed in a
resource home. Although Bianca provided the Division with possible family
members for placement, the Division placed the twins with a family friend
because, after investigation, no family placement provided was appropriate.
Diane had declined placement as she had joint legal custody of Ashley; Bianca's
maternal aunt was ruled out due to a history of substance abuse; Bianca's sister
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had declined; and Alex's aunt was ruled out as Bianca provided her name too
late and her partner, who had a criminal record, would not complete a
background check.
The Division offered Bianca immediate services, including a substance
abuse evaluation, random urine screens, a meeting with a domestic violence
liaison, and a referral for Keeping Families Together (KFT) housing assistance.
Parenting time initially occurred at Diane's house; however, due to ongoing
COVID-19 pandemic concerns, the Division moved visits to its local office.
Bianca acted appropriately with the twins but complained about the visitation
site.
After missing several evaluations, Bianca attended a substance abuse
evaluation, which recommended intensive outpatient treatment. She began the
recommended treatment at a rehabilitation center in February 2021, but was
discharged before reentering and completing the substance abuse program in
October 2021.
On May 17, 2021, the Division placed the twins in a new home with
resource parents, E.W. (Eric) and A.W., friends of Bianca's sister who were
willing to adopt. In June 2021, Bianca began having supervised parenting time
at Diane's home with the twins, which permitted her other children time with
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their brothers. Thereafter, Bianca had unsupervised parenting time for two-hour
visits.
In November 2021, KFT approved Bianca for housing assistance;
however, a housing unit was unavailable until April 2022. The Division
additionally referred Bianca to parent support services for assistance in finding
employment despite her criminal record, though she did not utilize the services.
In December 2021, Bianca received increased parenting time with unsupervised
overnights at Diane's house after completing treatment and maintaining negative
drug tests. On December 20, 2021, the court entered a self-executing order
granting the Division "authority to allow for reunification."
From January to May 2022, Bianca was employed and continued
unsupervised parenting time. However, in January, February, and March 2022,
Bianca tested positive for benzodiazepines, marijuana, and methadone. On May
26, 2022, Bianca tested positive for cocaine and in June admitted to using
cocaine for a few months to the caseworker. The Division reinstated supervised
visitation at the Division office, and KFT advised that Bianca was at risk of
losing her housing. Bianca failed to: maintain contact with the Division,
consistently attend visits with the twins, complete multiple drug screens, and
attend substance abuse evaluations. On August 25, 2022, Bianca re-entered
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substance abuse treatment; however, she continually tested positive for cocaine
and fentanyl, resulting in her November 2022 discharge from the treatment
program.
On October 23, 2022, the Division filed an order to show cause and a
complaint seeking termination of Bianca's parental rights. Upon attempting to
serve Bianca at her apartment, the caseworker observed a man with a neck tattoo
like Alex's "walking a dog." The caseworker inquired the man's name, and he
responded "Joey." A few days later, Alex contacted the caseworker to schedule
a meeting, which he failed to attend. After she left the meeting place, Alex
telephonically threatened the caseworker who thereafter filed a police
complaint. The next day, the Division placed a "red alert on the case" and
informed Multi Therapy Services (MTS)—who supervised parenting time—of
their safety concerns. MTS ceased supervision outside of the Division office,
specifically excluding visits at Bianca's residence.
Bianca continued to decline referrals to substance abuse evaluations and
test positive for illicit substances, including heroin and fentanyl. She also failed
to attend multiple psychological and bonding evaluations scheduled by t he
Division. In January 2023, while facing eviction, Bianca re-entered a substance
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abuse treatment program, but tested positive for cocaine and fentanyl
continually through the first day of trial on March 2, 2023.
During the Division's guardianship trial, the law guardian, appearing for
the twins, supported termination of Bianca's parental rights. At trial, Bianca,
resource parent Eric, and the Division caseworker testified.
Bianca admitted to being addicted to illegal substances since she was
eighteen years old, specifying heroin was her drug of choice. She acknowledged
receiving a recommendation for inpatient treatment but alleged "there wasn't a
bed available" until the Monday following the trial. Although Bianca claimed
compliance with the court-ordered Division services offered, she acknowledged
she failed to complete random drug screenings, some scheduled parenting times,
and the most recent substance abuse program. She further admitted she had
violated the probation she was on resulting from shoplifting and drug possession
convictions. Regarding housing, Bianca testified she "voluntarily withdrew"
from the KFT program but remained in the apartment with family financial
assistance.
Eric testified he and his wife had a loving relationship with the twins, who
called the couple "dada" and "mama." They "tr[ied] to keep [a] consistent"
routine with the twins. The twins awakened each day between 5:00 and 6:30
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a.m., ate breakfast, listened to music, and danced around. Eric did not believe
kinship legal guardianship (KLG) was in the twins' best interests "because . . .
they need[ed] a routine." He expressed KLG would "be confusing for the kids"
since it "end[ed] when [the twins turn eighteen] years old." He stated he was
committed to the twins "to [his] last breath." While acknowledging Bianca
would likely not retain guardianship of the children in a KLG arrangement, Eric
was concerned for the twins' stability. He stated, "say, somehow, she does get
. . . them back, how do we know they're going to be in a stable house? With us,
. . . we have stability, routine, structure, consistency."
The caseworker observed the twins were "very happy" and "excited" with
the resource parents. She testified, "the children really connected to th[e] foster
father" and when everyone, including Bianca, was together, the twins "wanted
to go to [Eric]."
The caseworker relayed the Division's main concern remained Bianca's
substance abuse. Of nine substance abuse evaluation referrals, the caseworker
confirmed Bianca only completed one. Bianca was "noncompli ant" with
her current substance abuse treatment program and was discharged from her
previous substance abuse treatment as "unsatisfactory." While the program had
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recommended Bianca attend inpatient services, the caseworker testified Bianca
informed the Division "that she was going to go" to outpatient treatment.
Bianca missed approximately fifteen court-ordered random urine
screenings. Further, she refused to attend the court-ordered domestic violence
services. Following a court-ordered urine screen during the trial, Bianca tested
positive for cocaine, methadone, and fentanyl.
In an oral decision, the trial court granted the Division's request for
guardianship. The court found the Division had proven all four prongs of the
best interests standard under N.J.S.A. 30:4C-15.1(a), entered an order
terminating the parents' parental rights, and awarded guardianship of the twins
to the Division for permanent placement and adoption.
On appeal, Bianca argues:
POINT I
THE FAMILY PART IMPROPERLY TERMINATED
[BIANCA]'S RIGHTS TO HER SONS BY
APPLICATION OF A TIME SENSITIVE
ULTIMATUM ADMINISTERED AND FULFILLED
BEFORE TRIAL RATHER THAN THE
STATUTORY BEST INTERESTS TEST
WARRANTING REVERSAL.
POINT II
GIVEN [BIANCA]'S COMPLETION OF
TREATMENT AND SUSTAINED SOBRIETY
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LEADING TO UNSUPERVISED WEEKEND
VISITATION UNTIL JUNE 2022, HER UNFITNESS
FOR PURPOSES OF PRONGS ONE AND TWO WAS
NOT ESTABLISHED BY RELAPSE SHORTLY
BEFORE TRIAL, WHICH WAS AT MOST A
TEMPORARY PART OF THE RECOVERY
PROCESS
POINT III
THE FAMILY PART'S PRONG THREE
CONCLUSIONS ARE UNSUPPORTED BY THE
RECORD AND THE RESULT OF IMPROPER
BURDEN-SHIFTING, AS THE COURT IMPOSED
THE BURDEN ON [BIANCA] TO PROVE HER
CONDUCT MET WITH ITS DEMANDS WHILE
[THE DIVISION]'S EFFORTS DID NOT INCLUDE
THE REQUISITE LEVEL OF INPATIENT DRUG
TREATMENT, AND KLG WAS NOT
APPROPRIATELY CONSIDERED AS AN
ALTERNATIVE TO TERMINATION OF
PARENTAL RIGHTS.
A. The Family Part's prong three holding that
[Bianca]'s efforts "fell short," reveals it
improperly imposed a burden of proof on her.
B. Unreasonable efforts: [the Division] admitted
that its "job in this case" was to provide [Bianca]
with "whatever services she needs," established
that inpatient level drug treatment was necessary,
and then utterly failed to provide the necessary
treatment for more than two years.
C. KLG was not appropriately considered as an
alternative to termination of parental rights when
the foster caregiver rejected KLG due to his
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perception of his own "stability," as contrasted
with [Bianca]'s present instability and poverty.
POINT IV
THE FAMILY PART'S FOURTH PRONG
CONCLUSIONS THAT "THE BEST PLACE FOR
THESE CHILDREN IS WITH THE RESOURCE
PARENTS AT THIS POINT" AND THE CHILDREN
COULD POTENTIALLY BE HARMED BY
[BIANCA]'S "ACCESS" TO THEM IN THE FUTURE
ARE LEGALLY ERRONEOUS AND
TANTAMOUNT TO A PROHIBITED "BETTER
INTERESTS" CONCLUSION.
A. The Family Part judge incorrectly relied on a
"bond" between the foster caregivers and the
children while utterly failing to consider
[Bianca]'s relationship to her sons, or the
catastrophic harm that will result from the
destruction of that relationship, at all.
B. KLG was improperly used as a basis to
terminate parental rights under the fourth prong.
II.
We review a trial court's decision to terminate parental rights with
deference when its factual findings are "grounded in substantial and credible
evidence in the record." N.J. Div. of Child. Prot. & Permanency v. D.C.A., 256
N.J. 4, 19 (2023). "Deference is especially appropriate 'when the evidence is
largely testimonial and involves questions of credibility.'" Cesare v. Cesare,
154 N.J. 394, 412 (1998) (quoting In re Return of Weapons to J.W.D., 149 N.J.
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108, 117 (1997)). "We accord deference to factfindings of the family court
because it has the superior ability to gauge the credibility of the witnesses who
testify before it and because it possesses special expertise in matters related to
the family." N.J. Div. of Youth & Fam. Servs. v. F.M., 211 N.J. 420, 448 (2012).
"[A] trial court's factual findings 'should not be disturbed unless they are so
wholly unsupportable as to result in a denial of justice.'" N.J. Div. of Youth &
Fam. Servs. v. P.P., 180 N.J. 494, 511 (2004) (quoting In re Guardianship of
J.N.H., 172 N.J. 440, 472 (2002)). We owe no deference to a judge's legal
conclusions which are reviewed de novo. N.J. Div. of Child Prot. & Permanency
v. A.B., 231 N.J. 354, 369 (2017).
"Parents have a constitutionally protected right to maintain a relationship
with their children." N.J. Div. of Youth & Fam. Servs. v. M.M., 189 N.J. 261,
279 (2007). That right, however, "is not absolute" and is limited "by the State's
parens patriae responsibility to protect children whose vulnerable lives or
psychological well-being may have been harmed or may be seriously
endangered by a neglectful or abusive parent." F.M., 211 N.J. at 447. In
guardianship and adoption cases, such as here, it is well-established that
"[c]hildren have their own rights, including the right to a permanent, safe[,] and
stable placement." N.J. Div. of Youth & Fam. Servs. v. C.S., 367 N.J. Super.
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76, 111 (App. Div. 2004). We acknowledge "the need for permanency of
placements by placing limits on the time for a birth parent to correct conditions
in anticipation of reuniting with the child." Ibid. Thus, a parent's interest must,
at times, yield to the State's obligation to protect children from harm. See N.J.
Div. of Youth & Fam. Servs. v. G.M., 198 N.J. 382, 397 (2009).
When terminating parental rights, the trial court applies the statutory best
interests test, which requires considering 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
provide a safe and stable home for the child and the
delay of permanent placement will add to the harm;
(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.
[N.J.S.A. 30:4C-15.1(a).]
The Division must prove each prong by "clear and convincing evidence."
N.J. Div. of Child Prot. & Permanency v. D.H., 469 N.J. Super. 107, 115 (App.
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Div. 2021). These prongs are not separate and overlap to inform a more general
inquiry that the termination of parental rights is in a child's best interests. N.J.
Div. of Child Prot. & Permanency v. R.L.M., 236 N.J. 123, 145 (2018). "The
question ultimately is not whether a biological mother or father is a worthy
parent, but whether a child's interest will best be served by completely
terminating the child's relationship with that parent." N.J. Div. of Youth & Fam.
Servs. v. T.S., 417 N.J. Super. 228, 249 (App. Div. 2010) (quoting N.J. Div. of
Youth & Fam. Servs. v. E.P., 196 N.J. 88, 107 (2008)). "[P]arental fitness is the
key to determining the best interests of the child." N.J. Div. of Youth & Fam.
Servs. v. I.S., 202 N.J. 145, 170 (2010) (quoting In re Guardianship of K.H.O.,
161 N.J. 337, 348 (1999)).
In 2021, the Legislature amended Title 30, which governs guardianship
proceedings and contains the best interests standard, and Title 3B, which
concerns KLG proceedings. L. 2021, c. 154. The Legislature amended only
prong two of the best interests standard under N.J.S.A. 30:4C-15.1(a) by
deleting the sentence, "[s]uch 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." Compare L. 2021, c. 154, § 9
(current N.J.S.A. 30:4C-15.1(a)(2)), with L. 2015, c. 82, § 3 (prior version). The
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amendment did not preclude a court's consideration of a child's bond to a
resource parent under prong four. The Supreme Court elucidated "[t]he
Legislature acted to preclude trial courts from considering harm resulting from
the termination of a child's relationship with resource parents when they assess
parental fitness under the second prong, but not to generally bar such evidence
from any aspect of the trial court's inquiry." D.C.A., 256 N.J. at 26 (citing L.
2021, c. 154). To foreclose a child's bond with their resource parents from
consideration "would deprive a court of crucial information as it determines a
child's future, and could imperil children whom New Jersey is charged to
protect." Id. at 27-28.
As to Title 3B, the Legislature removed the requirement that courts find
"adoption of the child is neither feasible nor likely" before courts can appoint a
caregiver as a KLG. Compare L. 2021, c. 154, § 4 (current N.J.S.A. 3B:12A-
6(d)(3)), with L. 2006, c. 47, § 32 (prior version). As amended, the KLG Act
ensures that a resource parent's willingness to adopt no longer forecloses KLG.
See N.J.S.A. 3B:12A-6(d)(3). However, "awarding kinship legal guardianship"
must still be "in the child's best interests." N.J.S.A. 3B:12A-6(d)(4).
A-2191-22
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A.
The Division, under prong one of N.J.S.A. 30:4C-15.1(a), must prove by
clear and convincing evidence "the child's safety, health, or development has
been or will continue to be endangered by the parental relationship." "[T]he
Division must prove harm that 'threatens the child's health and will likely have
continuing deleterious effects on the child.'" N.J. Div. of Youth & Fam. Servs.
v. A.L., 213 N.J. 1, 25 (2013) (quoting K.H.O., 161 N.J. at 532). "Although a
particularly egregious single harm" can suffice, the "focus is on the effect of
harms arising from the parent-child relationship over time on the child's health
and development." K.H.O., 161 N.J. at 348.
Bianca's contention that the court improperly terminated her parental
rights based on a prejudicial "time-sensitive ultimatum" of drug use abstinence
rather than a best interests analysis is unsupported. The record demonstrates the
court comprehensively recited the factual background before providing findings
under each of the four prongs. Describing the origination of the action, the court
described the undisputed harm caused to the twins "at birth because of [Bianca's]
drug use." The court further reasoned that the Division brought the guardianship
action because of Bianca's "ongoing drug use," "housing instability,"
"unwillingness to find employment," and "unwillingness to address those things
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that would allow her to parent her children." Describing Bianca's struggle "with
substance abuse, cocaine, heroin, [and] fentanyl" and inability to take the
necessary "steps to abate her drug use and addiction over the past two years ,"
the court referenced the "explicit" notice given to Bianca when it rejected the
Division's prior permanency and termination plan affording her further time to
become substance abuse free.
The court explained it warned Bianca that her actions and "conduct over
the next [thirty] days" would determine the ultimate outcome. The court had
hoped "that [she] would have done" what was necessary to discontinue her
substance abuse and engage in the services offered before returning to court.
The argument that the court demonstrated bias in finding she was unable to "stay
clean" is unsupported by the record. We discern no error in the court's recitation
of factual findings, which included Bianca's history of relapse and instability.
Further, while Bianca correctly posits that relapse is a potential step in
substance abuse recovery, that reality does not serve to indefinitely delay the
court's guardianship review of the twins' best interests. In addition to Bianca's
inability to be free of substance abuse, the court found her lack of "effort" to
find steady employment and housing detrimentally affected the twins' safety,
health, and development. "Courts need not wait to act until a child is actually
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irreparably impaired by parental inattention or neglect." In re Guardianship of
D.M.H., 161 N.J. 365, 383 (1999). Indeed, "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." Id. at 379. The court's
findings are supported by substantial credible evidence.
B.
Pursuant to prong two, the Division must demonstrate that 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." N.J.S.A. 30:4C-15.1(a)(2). The
Division may seek termination when there are "indications of parental
dereliction and irresponsibility, such as the parent's continued or recurrent drug
abuse, [and] the inability to provide a stable and protective home." K.H.O., 161
N.J. at 353. Because the first two prongs are closely intertwined, "evidence that
supports one [prong] informs and may support the other as part of the
comprehensive basis for determining the best interests of the child." D.M.H.,
161 N.J. at 379.
The record establishes that Bianca was: unwilling to eliminate the harm
her substance abuse caused to the twins; unable to provide a safe and stable
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home; and delaying permanent placement due to the long-term lack of stability.
The court correctly noted the twins were born dependent on substances in 2020
and required twenty-four days of hospitalization to ensure detoxification and
withdrawal from the narcotics. Bianca's failure to take the necessary "steps" to
cease "her drug use" and her failure to complete "referral after referral for drug
evaluation and treatment" demonstrated she was unwilling or unable to eliminate
the harm. Bianca had finished the treatment program in October 2021, after
being discharged as non-compliant in April 2021 and reentering the program,
but her continuous relapses required further treatment. After limitedly
maintaining sobriety and having successful overnight unsupervised parenting
time, Bianca relapsed in January 2022 and tested positive for cocaine and
fentanyl consistently until trial.
Bianca's argument that "treatment was never provided" and that with
treatment, "she would be fine in relatively short order" is belied by the record.
After Bianca had reentered treatment, she failed to complete the program and
was discharged in November 2022. The Division made a new referral on
November 23 for substance abuse treatment, but Bianca failed to attend the
necessary evaluation. For over two years, while the twins were in the resource
parents' care, Bianca failed to complete multiple programs.
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The court found Bianca credibly testified that she struggled with
substance abuse since she was eighteen but determined her testimony regarding
waiting for an inpatient treatment "bed" was incredible. We have recognized
the balance of children's rights, and determined "[p]arents do not have the right
to extend litigation indefinitely until they are able to safely care for their
children." N.J. Div. of Child Prot. & Permanency v. S.D., 453 N.J. Super. 511,
524 (App. Div. 2018). The court's finding under prong two that it was "clearly
convinced" Bianca "continued to abuse opiates and cocaine . . . [a]nd remained
in that situation," which prevented her from eliminating the harm to the twins,
was amply supported by substantial credible evidence.
C.
Prong three of the best interests test requires the Division to have "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
[must have] considered alternatives to termination of parental rights." 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"; (3) "informing the
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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). Courts do
not measure reasonableness by the "success" of the efforts. N.J. Div. of Youth
& Fam. Servs. v. J.S., 433 N.J. Super. 69, 90 (App. Div. 2013) (quoting D.M.H.,
161 N.J. at 393). What is reasonable "depend[s] on the facts and circumstances
of each case." N.J. Div. of Child Prot. & Permanency v. R.G., 217 N.J. 527, 557
(2014).
We reject Bianca's argument the Division failed "to provide the necessary
level of treatment" and identify an "inpatient drug treatment" program until the
eve of trial. The record demonstrates the Division referred Bianca to multiple
scheduled evaluations to ascertain appropriate alternative treatment, including
nine referrals for substance abuse evaluations. Bianca failed to attend eight of
those nine evaluations. The record supports the court's finding under prong three
that the Division made "reasonable efforts to provide the services and reunify
Bianca with her children." As the court correctly reasoned, the Division's
reasonable efforts were demonstrated by the scheduled "evaluations for drug
use" and coordinated "visits" she attended.
Bianca's contention that the court improperly shifted the burden upon her
to prove her "efforts" is also without merit, as the court's reference to her efforts
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was regarding her failure to utilize the Division services offered and to avail of
the appointments scheduled for her and the twins' benefit. The Division made
services available to help "correct the circumstances" but could not force Bianca
to attend. See N.J.S.A. 30:4C-15.1(a)(3). We discern no error in the court's
finding.
Finally, the court's prong three findings regarding alternatives to
termination noted the resource parents have had the twins for almost two years
and sought adoption. The court stated it was convinced, "if the children were
placed . . . in a KLG situation, . . . where [Bianca] would have more access to
the children, those children would be put into a life of turmoil because of [her]
ongoing . . . drug use, instability, [and] lack of ability to support herself." We
note the court provided its findings regarding KLG as an alternative to
termination after addressing the prong four findings. The sequence of the court's
findings does not negate that it correctly made KLG determinations, which were
amply supported by the record. Therefore, Bianca's argument that alternatives
to termination were not considered is misplaced.
The Division clearly investigated KLG alternative options, but the record
demonstrates no family members qualified. It is undisputed Bianca's three other
children were in the care and custody of different grandparents who were not
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willing to care for the twins, and other family members were not willing or
available. Thus, the court correctly concluded no KLG opportunities existed.
D.
Under prong four, termination of parental rights must "not do more harm
than good." N.J.S.A. 30:4C-15.1(a)(4). The issue is "whether a child's interest
will best be served by completely terminating the child's relationship with that
parent." E.P., 196 N.J. at 108. Consideration of a child's bond with resource
parents is permitted to ensure "the State's parens patriae obligation to protect the
welfare of children." D.C.A., 256 N.J. at 27.
The court determined "termination of parental rights will not do more
harm" under prong four, finding Eric's testimony that the twins were "thriving"
and "in a stable home" credible. Further, the court found the "best place for
these children [wa]s with the resource parents" who had "bonded with the
children." Again, the court had found credible Bianca's acknowledgement that
her drug dependency had an "injurious effect" and had determined "she ha[d]
been unwilling and unable to fix" her substance abuse dependency. Further, it
was established that the resource parents wanted adoption and were not in
agreement with KLG.
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Bianca's argument that an expert was required for the court to conclude
the twins had bonded with the resource parents is also misplaced. Generally,
the Division's proofs should include testimony by an expert who has had an
opportunity to make a "comprehensive, objective, and informed evaluation of
the child's relationship with the foster parent," id. at 22 (quoting In re
Guardianship of J.C., 129 N.J. 1, 19 (1992)), and the court must also consider
"parallel proof relating to the child's relationship with his or her natural parents
in assessing the existence, nature, and extent of the harm facing the child," N.J.
Div. of Youth & Fam. Servs. v. A.R., 405 N.J. Super. 418, 440 (App. Div. 2009)
(quoting J.C., 129 N.J. at 19). However, where the termination is "not
predicated upon bonding, but rather reflect[s] [the child's] need for permanency
and [the biological parent's] inability to care for [the child] in the foreseeable
future," a lack of a bonding evaluation is not fatal to the Division's case. See
N.J. Div. of Youth & Family Servs. v. B.G.S., 291 N.J. Super. 582, 593-94 (App.
Div. 1996).
We observe that while Bianca argues the necessity for expert testimony,
she failed to appear for multiple scheduled psychological and bonding
evaluations, thus thwarting the Division's ability to obtain an expert report with
her participation. After her failure to participate, Bianca cannot now credibly
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argue the Division failed to obtain a bonding expert. The court's finding that
credible evidence existed to conclude the twins had bonded with the resource
parents after being in their care for almost two years and that it was in their best
interests to be adopted into a stable home, noting no alternative option, is well
supported by the record.
Finally, to the extent we have not otherwise addressed any of Bianca's
remaining arguments, we determine they lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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