DCPP v. S.M.D AND E.D., IN THE MATTER OF THE GUARDIANSHIP OF C.R.M., Jr. III (FG-12-0022-20, MIDDLESEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-2495-20
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
S.M.D.,
Defendant-Appellant,
and
E.D.,
Defendant.
__________________________
IN THE MATTER OF THE
GUARDIANSHIP OF C.R.M.,
Jr. III, a minor.
__________________________
Argued February 7, 2022 – Decided March 18, 2022
Before Judges Accurso, Rose and Enright.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Middlesex County,
Docket No. FG-12-0022-20.
Adrienne Kalosieh, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Adrienne Kalosieh, of
counsel and on the briefs).
Wesley Hanna, Deputy Attorney General, argued the
cause for respondent (Andrew J. Bruck, Acting
Attorney General, attorney; Jane C. Schuster, Assistant
Attorney General, of counsel; Wesley Hanna, on the
brief).
Todd Wilson, Designated Counsel, argued the cause for
minor (Joseph E. Krakora, Public Defender, Law
Guardian, attorney; Meredith Alexis Pollock, Deputy
Public Defender, of counsel; Todd Wilson, on the
brief).
PER CURIAM
Defendant S.M.D. appeals from a final judgment terminating her
parental rights to the youngest of her six children, C.R.M., Jr. III, whom we
refer to as Chris. 1 Chris is nine-and-a-half years old and has been in foster
care for eight-and-a-half years. S.M.D. contends the Division of Child
Protection and Permanency failed to prove even one of the four prongs of the
best interests standard of N.J.S.A. 30:4C-15.1(a)(1)-(4) by clear and
1
This name is fictitious to protect the child's identity. See R. 1:38-3(d)(12).
Chris's father's rights were also terminated in this action. He has not appealed.
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convincing evidence, and the judge "failed to draw a legal conclusion on the
evidence" regarding the State's obligation to explore alternatives to
termination. Chris's law guardian joins with the Division in urging we affirm
the judgment. Having considered defendant's arguments in light of the record
and controlling law, we affirm the termination of her parental rights to Chris.
Defendant's history with the Division goes back fifteen years to when
she turned to it for help in 2006, having given birth to her second child with no
place for them to live. Although the Division assisted with referrals to parent
support and housing programs, homelessness continued to dog defendant as
did her mental health problems. By 2010, she'd had two more children and
been diagnosed with depression and schizophrenia. She was living in a motel,
suffering a high-risk pregnancy with her fifth child and had stopped taking her
medication. Near the end of 2010, defendant moved with her children into an
apartment and the Division arranged for in-home counseling by a licensed
clinical social worker, the same one she has intermittently continued to treat
with since, and purchased food and clothing for the children.
By the end of 2011, however, the Division received multiple reports that
defendant was neglecting her children, including from defendant's mother, who
claimed defendant no longer wanted her children, physically abused them and
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sold her food stamps instead of buying food to feed them. Defendant struggled
to feed and house her family, relying on food banks, friends and public
assistance. In 2012, her five-year-old son, Chris's older brother, was seriously
injured when he was struck by a car when the family was crossing a street.
The boy was walking slightly ahead of the rest of the family, next to his father,
when the light changed. While the rest of the family remained on the median,
defendant told the boy, who was in the roadway, to run to the other side. He
did so and was struck by an SUV, suffering a broken arm, fractured pelvis and
a laceration to his liver.
In 2013, the Division removed five of the children, including eleven-
month-old Chris, after defendant posted a plea for help on her Facebook page
about killing them and herself, and North Brunswick police responded to her
request for assistance as she walked along Route One pushing four of the
children in a shopping cart. Defendant's oldest daughter was with defendant's
mother in Ohio, and her oldest son, the one injured in the accident, was with
his paternal grandmother.
In the months that followed, defendant did not attend treatment provided
for her at Rutgers University Behavioral Health Care, rarely visited the
children and was difficult to contact. Although over the next few years, the
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Division's plan changed from reunification to termination and back, and two
prior guardianship complaints were dismissed, defendant never regained
custody of the children. The oldest lives with defendant's mother in Ohio,
where defendant was living prior to trial, two others are in kinship legal
guardianships with resource parents and paternal relatives, defendant made a
voluntary identified surrender of one child to the child's resource parents and
the court transferred custody of another to paternal relatives.
Psychological evaluations conducted in 2019 and 2020 by Dr. Barry
Katz echoed those conducted years earlier in noting defendant's prior
diagnoses of depression, schizophrenia and mood disorder. Defendant
reported she'd associated with "bad people" after the children were removed,
lived with a pimp and prostituted herself. Testing revealed defendant suffered
from anxiety, mania, domineering rigidity, impaired interpersonal relationships
and a high level of paranoia. Dr. Katz testified those traits had affected
defendant's functioning, robbing her of the ability to hold down a job, maintain
relationships and achieve stable housing. He also saw those traits reflected in
the record of visitations, where defendant was often reported "to be very
appropriate, punctuated by significant incidents of her acting out towards the
children in a very inappropriate and at times dramatic way."
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Defendant denied any prior mental health problems to Dr. Katz, claiming
she'd been misdiagnosed. Although admitting she had "lived on the streets" at
various times, and had previously acknowledged exposing the children to drug
use and violence, defendant denied any problems with her parenting. She
claimed the children always "had a roof over their heads," even during those
periods when she left them in the care of others. She maintained that any
problems the children experienced were the fault of the Division.
Dr. Katz testified defendant's "inappropriate, emotional abusive
behaviors towards the children," including angry outbursts and excessive and
unusual physical discipline, such as making them stand in a corner with their
arms extended, occurred at the same time she was involved, and reportedly
making good progress, in treatment. Dr. Katz explained that meant "this level
of problem is not something that's impacting" defendant "as a symptom might
traditionally do," but was instead "an ingrained part of [defendant's]
personality structure." He explained the behaviors have "existed for many
years" and persisted "even with interventions" and the "removal of the children
. . . through the current evaluation."
Dr. Katz further testified defendant's harm to Chris continued even after
his removal in her failure to visit him consistently and her sometimes
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inappropriate behavior when she did visit, reflected in the absence of any
secure bond between them. After reviewing defendant's long history with the
Division and the stubborn persistence of her mental health problems and
inability to achieve stable housing for herself and her children, Dr. Katz
concluded there was no sign of defendant making "any significant change at
this time or in the foreseeable future."
Chris unfortunately had a few different placements during the long
pendency of this matter before going to live with a family that wanted to adopt
him. Upon his removal in 2013, Chris and one of his sisters were placed in a
non-relative resource home and then in the home of a family friend. The
Division removed both children from that placement over concerns about the
friend's then boyfriend. In 2014, Chris was placed in a non-adoptive resource
home while the Division explored other family members for placement,
including his maternal grandmother in Ohio. Chris's resource parents told the
Division they loved the boy, but at their age did not want to adopt another
child. They were, however, willing to care for him as long as he required
placement.
In early 2016, Chris, then four-and-a-half, was seriously misbehaving at
his daycare and his resource parents reported problems at home as well. Chris
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also started to isolate himself and play alone during sibling visits. The
Division explored other placements, including the family friend who cared for
him in 2013. She, however, declined although she took in one of his sisters,
and Chris continued in his non-adoptive resource home.
By mid-2017, Chris had been permanently expelled from daycare. His
resource parents enrolled him in a summer camp program, but he was expelled
from it as well after he bit a counselor. The Division referred Chris for play
services and a partial hospitalization program. In August 2017, the Division
moved Chris to respite care while his resource parents went away on vacation.
Although Chris had been with his resource parents for three years at that point,
and had to be consoled and reassured about the temporary move, he
immediately made friends with his respite hosts' daughter. By the end of his
stay, the respite hosts told the Division they wanted to adopt him.
The Division began transitioning Chris to his new pre-adoptive home in
November 2017. By the following February, Chris was successfully
discharged from his partial hospitalization program. He moved into his new
home in March and returned to public school with an Individualized Education
Plan and Behavioral Assistant. Chris's case manager visited him at his new
home and noted he "appeared to be a totally different kid," very well behaved
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and happy. His new resource parents reported he was "usually like this all the
time; that he keeps himself busy with books and toys and they [had] no issues
getting him to listen."
At about the same time the Division began transitioning Chris to his pre-
adoptive home, defendant suggested her second cousin, a New Jersey lawyer,
as a possible caretaker for some of the children. Defendant's cousin advised
she had only recently become aware of defendant's involvement with the
Division, and although she could not take all of the children, she was willing
to provide resource care or adopt "whatever child/children needs her the most."
She didn't have a current relationship with any of the children and had never
met Chis.
The cousin was twenty-eight with a five-year-old son and going through
a divorce. She revealed she had been engaged in an intensive outpatient
program two months before for a "deep depression" occasioned by the divorce
but had been treated, discharged on no medication and was currently stable.
She said she worked fifty to sixty hours a week at a large law firm, but could
see herself looking for a position that required fewer hours in order to make
the children her priority.
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The Division immediately began the process of assessing defendant's
cousin and discussing visits between her and Chris and one of his sisters. In
early January, however, the cousin advised that a woman friend, with an open
case with the Division, would be moving in with her. The Division asked for
some background information on the friend and sent defendant's cousin an
email to confirm she was committed to adopting the children and could be
available for Chris's weekly therapy session and twice weekly therapeutic
visits so she could "start developing a relationship with the children."
The Division's plan at that point was to transition Chris to defendant's
cousin. Chris's resource parents reported he knew he could not stay
permanently with his resource family but was unhappy and confused by the
transition. They reported he was having nightmares and tantrums, and they
worried he was going from being a happy little boy to a troubled child. They
asked he be moved out of their home and placed in the pre-adoptive home he'd
been visiting either until he would go to defendant's cousin or until the pre-
adoptive family would be able to adopt him if that ended up being the
Division's goal. The resource mother said she and her husband were hoping to
continue to be connected to Chris if his future family would allow but felt his
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"being in just one home that [could] eventually become his forever home
might help in ceasing all the anger and confusion he [was] experiencing."
The Division sought advice from Chris's partial hospitalization provider
about the advisability of a concurrent transition plan to Chris's pre-adoptive
non-relative resource home and "whether ongoing contact with [that family]
would pose an issue or be an additional support to the child & [defendant's
cousin] so that he doesn't have to experience another loss." When the Division
followed up its email to defendant's cousin about her availability with a phone
call, she advised she had already told them she could only visit on the
weekends and would only be available by phone for Chris's weekly therapy
session, and thus saw no need to confirm it in an email. She also advised she
was not then willing to "mak[e] any changes to her schedule [because] she
might have to do it in the future once the children arrive to her home."
The plan to transition Chris to defendant's cousin fell apart in March
2018. Defendant had some weeks before begun bringing her eldest daughter,
then almost fifteen, to visits with the children. That child had been living with
her grandmother and defendant in Ohio, and the caseworker believed she was
simply visiting her mother. In mid-March, however, the Division received a
referral reporting the child was living there with defendant and engaging in
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risky and inappropriate behavior. The Division began an immediate search for
her. In the early morning hours of the following day, police informed the
Division that defendant had brought the child to the hospital reporting she had
been raped.
The Division found defendant and the child at the home of defendant's
cousin many hours later. The Division learned the child had moved to New
Jersey more than three weeks before and was not enrolled in school. The child
advised she'd been raped by a family friend two weeks earlier. Defendant
claimed she only learned of the rape the day before from the mother of one of
the child's friends.
Defendant's cousin informed the Division that she'd known of
defendant's plan to bring the child to New Jersey for about a month. She
claimed she'd proposed the child live with her, as she thought it unlikely the
Division would permit the child to live with defendant, given defendant did
not have custody of her other five children. She also reported defendant had
given her a letter transferring custody of the child to her and that they would
be going to court to obtain an order formalizing the arrangement.
After consulting with a supervisor, Division workers effected an
immediate removal of the child, which the court approved a few days later,
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granting the Division custody. Another order entered the same day directed
the Division to immediately assess any potential caregivers identified by
defendant, including a specifically named family friend as well as defendant's
cousin, with the court indicating that were defendant's cousin to offer proof
that she was stable in mental health treatment and remained interested in
caring for defendant's oldest child, the court would consider placing the child
with her.
Defendant's cousin, however, had by that time advised she was no longer
interested in assuming custody of that child or any of defendant's children.
The cousin wrote a letter to the Division objecting to the removal of
defendant's eldest child and its refusal to permit that child to remain with her
"[f]or reasons [she] [could] not begin to grasp." She noted she had "asked
repeatedly for opportunities to meet with the children in the evenings and on
weekends in order to reconcile [her] demanding work schedule with the need
to build a relationship with the children," and expressed the view that "the
Division ha[d] gone out of its way to push [her] out of the picture."
Defendant's cousin further expressed her view that "[d]espite every
effort [she'd] made, the Division ha[d] continually treated [her] like [she was]
an unfit parent working to get her kids back rather than a concerned relative
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attempting to help her little cousins achieve the care they've too long been
denied." She advised "[i]n light of the Division's handling of this case" that
she was withdrawing herself from consideration as a placement for any of the
children. She closed her letter saying, "[s]hould your approach to the matter
change at some time in the future, you all know how to reach me; but, until
then, I ask that you do not." The Division sent defendant's cousin a "rule out"
letter, which she did not appeal, acknowledging her unwillingness to provide a
home for the children due to her concerns with the Division, and that she had
withdrawn her resource application and removed herself from the home study
licensing process. Defendant's cousin testified to those events at trial.
Dr. Katz testified about the bonding evaluations he conducted with
defendant and Chris as well as with Chris and his resource parents. He
testified Chris, seven-years-old at the time of the doctor's 2019 evaluation,
recognized defendant as his mother and had some emotional attachment to her
but did not rely on her as a parental or nurturing figure, which Dr. Katz
attributed to Chris having not been in her care since he was a year old,
defendant's inconsistency in visiting him during the ensuing years and her
sometimes inappropriate behavior when she did visit. Comparing the 2019
bonding evaluation he conducted of Chris and his mother with the one he
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conducted approximately a year later, Dr. Katz noted "it was more dramatic" in
the second evaluation "how [Chris] was not emotionally expressive towards
[his mother]."
In contrast to what Dr. Katz deemed was the insecure and harmful
attachment Chris had to his mother, the psychologist described Chris's "bond
and attachment toward his current resource parents [as] the only stable
functional relationship he has experienced in his life." Dr. Katz offered the
opinion that Chris continued to suffer from his insecure attachment to
defendant, and that terminating her parental rights would not cause him any
appreciable harm. Dr. Katz further opined that Chris needed permanency and
that his best, and possibly only chance at stability and for developing a
reasonably well-adjusted life, would be with the resource parents who wished
to adopt him. Dr. Katz concluded that, in his view, removing Chris from his
resource parents would cause the boy severe and enduring harm. 2
2
After the conclusion of this trial, N.J.S.A. 30:4C-15.1(a)(2) was amended to
delete the former second sentence of the subsection, thus excluding from
consideration evidence of harm to a child caused by removal from his resource
parents. L. 2021, c. 154. Defendant has not argued for retroactive application
of the statute. Accordingly, we do not address it. But see James v. N.J. Mfrs.
Ins. Co., 216 N.J. 552, 563 (2014) (noting "[s]ettled rules of statutory
construction favor prospective rather than retroactive application of new
legislation"); see also In re Guardianship of B.L.A., 332 N.J. Super. 392, 400
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In addition to offering the testimony of her cousin and a treating
therapist, who had been working with defendant for nine months in Ohio and
testified there had been improvement in her treatment goals of minimizing the
effects of depression and working to achieve stable housing, defendant
testified on her own behalf. She claimed she was living temporarily in New
Jersey, but believed she could find permanent housing within a month if she
returned to Ohio. She acknowledged, however, that she was not working and
had no income. She also acknowledged not visiting with Chris regularly , but
claimed the fault lay with the Division, which failed to accommodate her. She
testified Chris was the only one of her six children with whom she was not
permitted a relationship "because of the Division." Significantly, however,
defendant admitted she was not ready to assume custody of Chris. Her plan
was to place Chris with her cousin while she returned to Ohio to secure a job
and appropriate housing.
Finally, defendant presented the brief in camera testimony of eight-year-
old Chris. He testified he would feel "sad" but "okay" if he could not see his
(Ch. Div. 2000) (considering retroactive application of statutes in the context
of child protective services litigation).
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mother or siblings in the future. He testified similarly with regard to the
prospect of being separated from his resource family.
After hearing eight days of testimony over the course of two months, the
judge put a lengthy opinion on the record concluding the Division had carried
its burden of clear and convincing proof on all four prongs of the best interests
test. After summarizing the testimony of the witnesses and putting his
credibility findings on the record, the judge had no hesitation in finding
defendant had endangered Chris's health, safety and development "by her
many years of mental health issues, including depression, many years of lack
of suitable employment, and many years of lack of appropriate housing which
led to the removal of all six of her children, including [Chris] in 2013." The
judge noted defendant had no means of supporting Chris financially and after
seven years of "continuous treatment and support," still had no home for him.
As to the second prong, the parent's unwillingness or inability to
eliminate the harm, the judge found "no question" but that defendant "still
suffers from the same mental health issues," albeit to a lesser extent, she
suffered when the litigation began seven years before. The judge found
defendant's "failure to achieve stability in mental health, housing and
employment after many years of treatment and services by the Division" has
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interfered with Chris's ability to achieve stability, leaving him "in a state of
flux without any clear path to [the] permanency" he deserves.
The judge found the Division "made every reasonable effort to provide
[defendant] with services necessary to correct the reasons for [Chris's]
removal" and bring her to the point where she could safely parent the boy. The
judge chronicled the myriad efforts the Division made to provide defendant the
necessary counseling to deal with her mental health issues, which defendant
minimized at trial despite ample evidence to the contrary, and the ways it had
supported her efforts to find employment and achieve stable housing, including
funding her move to Ohio where she maintained she had greater family
support.
Although acknowledging the requirement of N.J.S.A. 30:4C-15.1(a)(3)
that the court "consider[] alternatives to termination of parental rights," and
thoroughly reviewing the testimony of the case workers who catalogued
Chris's placements and the Division's efforts to place the boy with relatives or
family friends, as well as defendant's cousin's testimony about her dealings
with the Division and one-time willingness to provide a home for some of
defendant's children, including Chris, the court, inexplicably, failed to state it
had considered alternatives to termination. Instead, the court merely found the
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Division proved "all of the elements of the third prong by clear and convincing
evidence."
Finally, the judge concluded, based on the unrebutted expert testimony,
that termination of defendant's parental rights would not do more harm than
good. The judge accepted Dr. Katz's testimony that defendant was not then fit
to parent Chris, and that additional time had not and would not change that.
The judge concluded defendant was "absolutely not capable of resuming her
parental responsibilities for the foreseeable future," and that continuing Chris
"in limbo" would deprive him of the security and stability of a permanent
home with his resource parents.
Our review of a trial court's decision to terminate parental rights is
limited. N.J. Div. of Youth & Fam. Servs. v. F.M., 211 N.J. 420, 448-49
(2012). We generally "defer to the factual findings of the trial court because it
has the opportunity to make first-hand credibility judgments about the
witnesses who appear on the stand; it has a 'feel of the case' that can never be
realized by a review of the cold record." N.J. Div. of Youth & Fam. Servs. v.
E.P., 196 N.J. 88, 104 (2008) (quoting N.J. Div. of Youth & Fam. Servs. v.
M.M., 189 N.J. 261, 293 (2007)). As our Supreme Court has reminded in
respect of termination of parental rights, "a trial court's factual findings 'should
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not be disturbed unless they are so wholly unsupportable as to result in a
denial of justice.'" N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494,
511 (2004) (quoting In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)).
Our review of this record convinces us the judge's findings are amply
supported by the trial testimony and the many records of the Division's
interaction with this family admitted in evidence. Defendant contends reversal
is required as a matter of law because the court "failed to draw a legal
conclusion on the evidence regarding the second subpart of prong three, the
State's requirement to explore alternatives to termination." In addition, she
claims the Division's evidence did not establish: the parental relationship
caused Chris harm; defendant was unwilling or unable to eliminate the harm
given her continued participation in services; the Division assisted defendant
with housing, her primary barrier to reunification, or family planning for
reunification; and that severance of the parental bond would not do more harm
than good.
With the exception of the argument about the court's failure to consider
alternatives to termination, defendant's arguments reduce to quarrels with the
judge's fact-finding we are simply in no position to reject. See F.M., 211 N.J.
at 448-49 (explaining "[i]t is not our place to second-guess or substitute our
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judgment for that of the family court," when "the record contains substantial
and credible evidence to support the decision to terminate parental rights").
They accordingly require no extended discussion here.
Chris had been in placement for over seven years at the time of trial.
The law is well established that "[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," In re Guardianship of
D.M.H., 161 N.J. 365, 379 (1999), and this record amply supports the court's
finding it was true here.
Moreover, the judge accepted the unrebutted expert opinion that
defendant suffers from intractable psychological problems that prevent her
from regulating her emotions, resulting in frequent angry outbursts at the
children.3 Dr. Katz's opinions represent only the most recent reports of
defendant's largely untreated mental health problems. There are at least five
other reports and evaluations from experts and service providers in this record
documenting years of the same. While defendant cites her continued
participation in mental health services, the record reveals her participation was
3
Although defendant underwent a psychological evaluation and bonding
evaluation with her own expert, Gerald Figurelli, no report was offered in
evidence, and the expert did not testify at trial.
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marked by the same inconstancy that characterized all of her efforts to provide
a safe and stable home for her children — and a marked unwillingness to
acknowledge her mental health problems. The judge accepted Dr. Katz's
testimony that defendant may well be sincere in reporting she has benefited
from the many years of treatment in that she feels her own symptoms less
acutely, but it has not improved her ability to care for Chris.
While we acknowledge the error in the judge's failure to explicitly state
he considered alternatives to termination, we find no basis to reverse the
judgment on that basis given the utter lack of evidence of alternatives in the
record. There is, to be sure, a statutory preference for the temporary
placement of children with suitable relatives pending the ultimate
determination of the children's future. N.J.S.A. 30:4C-12.1(a). Although it
has long been the Division's goal "to place, whenever possible, children with
relatives," N.J. Div. of Youth & Family Servs. v. K.F., 353 N.J. Super. 623,
636 (App. Div. 2002), there has been "no presumption in favor of placement
with relatives." 4 N.J. Div. of Youth and Family Servs. v. K.L.W., 419 N.J.
4After the conclusion of this trial, the Governor signed legislation declaring
"[k]inship care is the preferred resource for children who must be removed
from their birth parents because use of kinship care maintains children's
connections with their families." L. 2021, c. 154, § 1 (L. 2021, c. 154, § 1 has
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Super. 568, 580 (App. Div. 2011). "[U]ltimately the question is what was in
[the child's] best interest based upon the circumstances as they existed at the
time of the final hearing." N.J. Div. of Youth & Family Servs. v. M.F., 357
N.J. Super. 515, 527 (App. Div. 2003).
There is no dispute that the Division assessed and ruled out a number of
defendant's relatives and friends as a potential placement for Chris —
including defendant's cousin. Although her decision to withdraw herself as a
placement for him based on her dissatisfaction with the Division's removal of
his sibling from her home was unfortunate, the trial court plainly did not find it
impugned the Division's good faith efforts to consider alternatives to
termination.
Although we, like the trial court, have no reason to doubt the
truthfulness of defendant's cousin's testimony or the sincerity of her feelings,
she acknowledged the Division's inability to discuss the details of the case left
been reproduced in the editor’s note to N.J.S.A. 30:4C-84). Defendant does
not argue for retroactive application of this statute as she maintains N.J.S.A.
30:4C-12.1(a) and existing case law, see N.J. Div. of Youth & Fam. Servs. v.
J.S., 433 N.J. Super. 69, 86-87 (App. Div. 2013); K.L.W., 419 N.J. Super. at
580-83, already express the State's clear preference that children requiring out-
of-home-placement be cared for by relatives. As with the post-trial
amendments to N.J.S.A. 30:4C-15.1(a)(2), because defendant does not argue
for retroactive application, we do not consider it.
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her to speculate about its motives. She testified, for instance, that she believed
the Division wasn't serious about placing Chris with her when she learned the
Division had moved him to the family who had undertaken his respite care,
and they were attending his treatment team meetings. Yet our record reveals
his prior resource family's concern that their unwillingness to provide Chris a
permanent home was contributing to the little boy's insecurity and behavioral
problems, and that the Division consulted with his partial hospitalization
program as to the advisability of moving Chris in response to their concerns
and, specifically, "whether ongoing contact with [the new family] would pose
an issue or be an additional support to the child & [defendant's cousin] so that
he doesn't have to experience another loss."
Critically, however, defendant's cousin did not offer herself as a
placement when she testified at trial, and defendant did not suggest another
alternative. Simply put, there was no evidence of any viable alternative to
termination of defendant's parental rights to Chris at the time of trial. While it
certainly would have been preferable for the trial court to have clearly made
that finding on the record, see In re Adoption of a child by J.D.S., 353 N.J.
Super. 378, 396 (App. Div. 2002), the absence of any viable alternative gives
us no cause to reverse on that ground.
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Justice O'Hern explained in A.W. that there are no victors in a
guardianship case and that "given the need for continuity, the child's sense of
time, and the limits of our ability to make long-term predictions, [the best
interests of the child] are more realistically expressed as the least harmful or
least detrimental alternative." N.J. Div. of Youth & Family Servs. v. A.W.,
103 N.J. 591, 616 (1986) (quoting Solnit, Psychological Dimensions in Child
Placement Conflicts, 12 N.Y.U. Rev. L. & Soc. Change 495, 499 (1983-84)).
We have no doubt that defendant loves Chris and she has long fought to
maintain her relationship with him, but we are also satisfied the evidence
supports the trial court's finding that her intractable emotional issues render
her unable to safely parent him now or in the foreseeable future despite many
years of services, and that his need for permanency and the promise of a secure
and stable home make clear termination of parental rights is in Chris's best
interests in accordance with N.J.S.A. 30:4C-15.1(a)(1)-(4).
Affirmed.
A-2495-20
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