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Superior Court of New Jersey, Appellate Division.


DOCKET NO. A–2931–12T4

    Decided: March 19, 2014

Before Judges Waugh, Nugent and Accurso.Joseph E. Krakora, Public Defender, attorney for appellant (Anthony J. Vecchio, Designated Counsel, on the brief). John Jay Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel;  Mary A. Hurley, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor G.K.S. (Damen J. Thiel, Designated Counsel, on the brief).

Defendant E.W. appeals the guardianship judgment that terminated his parental rights to his daughter, G.K.S., now three years old.   Defendant contends that the Division of Child Protection and Permanency (the Division) did not prove that termination of his parental rights was in his daughter's best interests, as codified in the four criteria contained in N.J.S.A. 30:4C–15.1(a).   Specifically, he argues that the Division did not clearly and convincingly prove that his daughter's health, safety, or development had been or would continue to be endangered by their relationship, as required by the first statutory criterion;  and the court did not consider alternatives to termination of parental rights, such as temporarily placing his daughter with her paternal grandmother, as required by the third statutory criterion.   He also argues that the court did not consider kinship legal guardianship (KLG) with the paternal grandmother.   The Division and the Law Guardian oppose defendant's appeal.   Having considered the parties' arguments in light of the trial record and controlling law, we affirm.


The Division received a referral concerning G.K.S. the day after she was born in May 2010.   The newborn weighed only four pounds and nine ounces at birth and her urine tested positive for methadone.   Her mother had tested positive for phencyclidine (PCP) upon her admission to the hospital the previous day.   G.K.S. was admitted to the neonatal intensive care unit.   She remained in the hospital through the end of June. During that time, it became clear that her mother and defendant were either incapable or unwilling to provide her with a safe and secure home.   G.K.S.'s mother proved incapable of caring for an infant.

Following the mother's discharge from the hospital after her child's birth, she showed little interest in the child and visited her only sporadically.   In the first week of June the mother was hospitalized after she threatened to commit suicide.   While hospitalized, she told a Division caseworker that she had no place to go and no money, but she was willing to do whatever was necessary to get custody of her two children:  G.K.S. and another daughter who lived with her maternal grandparents.

G.K.S.'s maternal grandmother informed the caseworker that her daughter, a drug addict, was incapable of caring for G.K.S. or any other child.   The grandmother confirmed that she and her husband were caring for G.K.S.'s sister, who lived with them, and that they could not take another child.   According to the grandmother, the defendant, G.K.S.'s putative father, had a restraining order out against him and was not supposed to come near her, her husband, her daughter, or her granddaughter.

The Division could not locate defendant in the weeks immediately following G.K.S.'s birth.   Although G.K.S.'s birth certificate did not identify anyone as the father, G.K.S.'s mother told a Division caseworker that defendant was the father.   The mother did not know how to locate defendant and did not know any of defendant's family members with whom G.K.S. could be placed.

The Division was unable to locate defendant but obtained his criminal record, which was lengthy.   He had several convictions for drug-related offenses.   He had also been arrested for assault and for unlawful possession of a weapon.   Those charges were pending.

Thus confronted with a baby in need of significant medical treatment and care, a homeless mother who had a drug addiction and suicidal ideation, and a putative father with a serious criminal record who had been restrained from having contact with the mother and her family, the Division filed an order to show cause and a protective services complaint on June 9, 2010, alleging that the mother had abused or neglected G.K.S. The court awarded the Division custody, care, and supervision of G.K.S. the same day.

Twenty days later, when G.K.S. was discharged from the hospital in a medically fragile condition, the Division placed her with her foster parents, with whom G.K.S. has since remained, and who want to adopt her.   During the time that G.K.S. has lived with her foster parents, she has improved considerably.   The foster mother began taking G.K.S. to medical providers for her addiction-related problems, as well as for routine pediatric care, within the week following the child's discharge from the hospital.   Within that same week, the foster mother told the Division she would like to adopt G.K.S. if adoption were an option.   Under her foster parents' care, G.K.S. was weaned from her inherited addiction, gained weight, began eating and sleeping, and developed into a happy child who became very attached to her foster parents.   All visits by Division caseworkers to the foster parents' home were positive, and the foster mother continually stated that she wanted to adopt G.K.S.

The protective services case continued from June 9, 2010, through October 20, 2011, when the Division filed a guardianship complaint seeking, among other things, termination of defendant's parental rights.   During the intervening year and four months, the Division offered a host of services to G.K.S.'s mother to no avail.   Those services included visitation, multiple referrals for substance abuse assessments, detox services, a referral for a parental capacity evaluation, and bus passes to facilitate supervised visitation.   Although the Division's plan throughout this period was reunification, G.K.S.'s mother was unable to overcome her drug addiction.   Eight months after the Division filed the guardianship complaint, G.K.S.'s mother died.   Her death certificate identified the immediate cause of death as the adverse effect of drugs.

Defendant did not visit G.K.S. during the years that passed between the baby's discharge from the hospital and the start of the guardianship trial.   During the first few months of the protective services action, defendant showed little interest in either the case or G.K.S. He did not appear in court on the day the protective services complaint was filed on June 9, 2010.   He did, however, appear at the next hearing on July 2, 2010.   On that day, he refused to submit to a urine screen, leading the court to infer that a screen would be positive.   The court ordered that defendant undergo substance abuse and psychological evaluations.   The court also ordered that the Division permit defendant to have supervised visits with G.K.S. at the Division's local office.   Defendant did not visit G.K.S.

Five days after the hearing, during a telephone conversation, defendant told a Division caseworker that he wanted to visit with G.K.S. and would call back with a house telephone number where he could be reached.   His cellular phone was prepaid and he did not have money to add minutes.   He did not call back.   The caseworker unsuccessfully attempted to telephone him four times during the next two weeks.   On two occasions she left messages, once with defendant's sister and once with another person who answered the phone, but defendant did not return her calls.   The third time she received a message that defendant was not available and she should call later.   The fourth time no one answered the phone.   Unable to contact defendant by telephone, the caseworker sent him a certified letter explaining that she wished to discuss court-ordered services and visitation.   Defendant did not respond.

On August 6, 2010, defendant was transported to a Division office for a substance abuse evaluation.   He refused, claiming that he gave urine samples to the probation department all the time.   When the caseworker requested that he sign a release for the probation records, he again refused, stating that he was not going to sign anything until he found out whether he was G.K.S.'s father.   He said he did not know if the baby was even his and that he wanted to take a paternity test.   Defendant had not seen G.K.S. since she had been released from the hospital.

Defendant was arrested on September 7, 2010, after physically assaulting G.K.S.'s mother.   The assault began in a vacant building after she refused to have sex with him.   She was hospitalized with injuries to her ear, shoulder, arm, and back.   A grand jury subsequently charged defendant in a three-count indictment with two counts of third-degree aggravated assault and one count of third-degree possession of a weapon for an unlawful purpose.   On July 5, 2011, he pled guilty to a single count of third-degree aggravated assault and was later sentenced to a three-year custodial term to be served concurrently with another three-year sentence and an eighteen-month sentence, both for violating probation.   He was not released from custody until after the guardianship trial had begun.   Thus, as a consequence of both defendant's refusal to cooperate with the Division and his criminal behavior, he spent no significant amount of time with G.K.S. during the first two years and four months of her life.

Although defendant remained in jail after his arrest on September 7, on September 9, 2010, the court ordered that he undergo psychological and substance abuse evaluations and that he complete a paternity test.   He completed the paternity test on December 9, 2010.   The results established that he was G.K.S.'s father.   Incarcerated, defendant was obviously unable to provide a home for G.K.S. He would eventually provide the Division with the names of his sister and mother as relatives with whom G.K.S. could be placed, but the Division would rule out both as possible caregivers.

It was apparent to the Division shortly after its caseworkers became involved with G.K.S. that G.K.S.'s mother was dysfunctional and her father either disinterested or non-committal.   The Division began to seek relatives who might be willing to care for the baby.   When a Division worker first interviewed G.K.S.'s mother, the worker inquired about G.K.S.'s maternal grandmother as well as any relatives of defendant who might be willing to care for G.K.S. G.K.S.'s mother denied knowing members of defendant's family.   Later, when the worker interviewed the maternal grandmother, the grandmother said she and her husband could not take another child.

Within three weeks of G.K.S.'s birth, and within one week of the Division's commencement of the protective services litigation, defendant's sister contacted the Division and offered herself as a possible placement for the baby.   The Division ruled her out as a potential placement because she had outstanding warrants as well as criminal charges which had occurred within the previous five years.   The Division subsequently sent defendant's sister a rule-out letter in January 2011 advising her of its decision and her right to request a review of the decision within twenty days.   The letter explained how defendant's sister could go about having the Division's decision reviewed.

The sister's criminal record was not the only potential problem posed by placing G.K.S. with her.   In 2007 defendant had been indicted for assaulting and threatening to kill his sister.   He pled guilty to a single count of terroristic threats, for which he was sentenced to a four-year probationary term on June 11, 2010.   As a condition of probation, defendant was to have no uninvited contact with his sister.

Although the Division had ruled out defendant's sister in January 2011, at a compliance review hearing on February 28, 2011, the court ordered the Division to contact defendant's sister to inquire whether she had appealed the January rule-out letter.   There is no evidence in the record of the sister seeking review of the Division's decision.

During the same February 2010 compliance review hearing, defendant identified his mother as a potential placement for G.K.S. The Division's rule-out of defendant's mother is a central issue in this appeal.

Following the February 28, 2011 compliance review hearing, on March 1 and 7 defendant's mother telephoned the Division caseworker.   During the first conversation defendant's mother confirmed that she wanted G.K.S. placed with her.   During the second conversation she requested an update and asked about visitation.   She said she had visited G.K.S. in the hospital and she repeated that she wanted to take custody of G.K.S. The caseworker responded that she hoped to get a background check completed that week and that the Division does not arrange grandparent visitation.   The caseworker also agreed to keep defendant's mother informed of developments.

In June 2011, a Division worker inspected the apartment where defendant's mother lived and “observed the home to be neat, clean and appropriate.”   Defendant's mother again expressed her desire to care for G.K.S. She said that she had visited G.K.S. in the hospital, and she showed the worker pictures of G.K.S. The worker explained that G.K.S. was “medically fragile.”   Defendant's mother responded that she would have no problem with that.   The worker also expressed concern that G.K.S. had bonded with her foster parents, and that if the court ordered G.K.S. to be placed with defendant's mother, G.K.S. would “experience a lot of loss, separation and anxiety.”   Defendant's mother responded that she knew how to handle children.

Ten days later, at a permanency hearing, the Division caseworker informed defendant's mother that her record revealed several outstanding municipal warrants.   Defendant's mother “admitted to ․ one incident [but] then stated that it was her information with someone else's picture.”   The worker told defendant's mother what the issues were and where to go to fix them.   Nevertheless, the Division ruled out defendant's mother as a potential resource for G.K.S. due to the outstanding warrants.   The Division sent her a rule-out letter by both regular and certified mail on July 7, 2011.   The letter informed defendant's mother of her right to appeal and of the procedure for doing so.   The certified letter was returned because it was never picked up, but the letter sent by regular mail was not returned.   Defendant's mother did not appeal the decision.

Three months later, on September 9, 2011, the court entered a permanency order that approved the Division's plan for termination of parental rights followed by adoption.   The court determined that it would not be safe to return G.K.S. to her natural parents because they did “not have stable housing, mother continues to use illegal substances, father is incarcerated and has failed to visit prior to incarceration or complete services.”   The court further found that the Division had made reasonable efforts to provide services, including “psychological evaluation, substance abuse evaluations, visits, paternity testing, [and] bus passes.”

The Division filed the guardianship complaint on October 20, 2011.   The court conducted an initial hearing that same day and ordered the Division to schedule psychological and bonding evaluations.   A month later, on November 28, 2011, defendant's mother contacted the Division adoption worker to whom the case had been reassigned and said she did not know why she had been ruled out as a placement for G.K.S. She denied receiving a rule-out letter.   The worker promised to look into it and get back to her.

Two days later, the worker telephoned and told defendant's mother that there remained five active warrants totaling $800.   The worker explained that these were the same outstanding warrants that defendant's mother had when she was first assessed for placement and that the Division would not be able to “move forward with assessing her with open active warrants.”   The worker would later explain at the guardianship trial that it was Division policy not to “move forward with someone when they have an open warrant.”   Rather, the Division would ask the person to take care of the warrant.

Defendant's mother acknowledged that the previous caseworker had explained the situation to her.   She told the adoption worker that she had gone to “City Hall” to take care of the warrants, but the person she spoke to could not find anything and “she was told there were no issues.”   The worker repeated that the warrants were still showing up as active and reviewed each warrant:  four for truancy, N.J.S.A. 18A:38–25, and one for simple assault, N.J.S.A. 2C:12–1(a)(1).   There were also references in the records to a conviction for theft by deception.

Thereafter, the Division denied defendant's mother visitation with G.K.S. A worker explained to defendant's mother that the Division was only “obligated to provide the parents with visits and not the extended family.”   During that conversation, the worker again reviewed with defendant's mother each outstanding warrant.

Although the Division had previously ruled out defendant's mother as a potential placement for G.K.S., the court directed the Division to reassess her as a possible placement for the child.   The Division did so, but sent another rule-out letter around March 1, 2012.   On March 9, 2012, defendant's mother told the Division adoption worker that she had a court date to have the warrants dismissed.   On March 20, 2012, she appeared at the Division's local offices and gave the adoption worker papers that confirmed the outstanding warrants had been dismissed.   However, the adoption worker told her that the Division had already sent her another rule-out letter.

Defendant's mother responded by filing a custody complaint under an FD docket.   Following the filing of the complaint, Division workers visited the home where defendant's mother lived and once again found it acceptable.

The next month, on May 31, 2012, the court conducted a pre-trial hearing in the guardianship action.   By then, Dr. James L. Loving, a psychologist, had issued reports concerning his psychological evaluation of defendant and his bonding evaluations between defendant and G.K.S., and between G.K.S. and her foster parents.   The doctor had concluded that G.K.S. shared no sense of attachment or familiarity with defendant, but “experiences strong, positive, and secure emotional attachments with [the foster parents].”   Dr. Loving concluded that severing G.K.S.'s relationship with her foster parents would place her “at high risk for suffering serious and enduring emotional harm.”   The doctor also concluded that defendant would be unable to mitigate the harm for two reasons:  G.K.S. shared no relationship or sense of attachment with him, and defendant “pose[d] a number of parenting-related risks, including risks in terms of housing instability, substance abuse, and exposure to violence.”

The court did not have the FD complaint defendant's mother had filed, but “suspect[ed] ․ based upon the representations of counsel ․ [it was] an application for custody” of G.K.S. The court nevertheless decided to move forward with the guardianship trial.   At a subsequent pre-trial hearing, the court noted that defendant's mother's FD application was outstanding.   The court decided that because “it's essentially in many respects an element of proof that the State must establish,” the court needed “to hear ․ what that proof is in order to really address the FD application in many respects.”   The court determined it would “handle [the FD action] in the course of the [guardianship] trial.”

The court conducted the guardianship trial over eight non-consecutive days commencing September 17, 2012, and concluding with its decision on February 7, 2013.   The Division established through the testimony of one of its caseworkers and through the admission into evidence of voluminous exhibits the facts that we have recounted above.   The Division also presented the expert testimony of Dr. Loving.

Dr. Loving had reviewed records that provided background information about defendant and the guardianship action, as well as defendant's psychological test results.   The doctor had also conducted a clinical interview with defendant.   From those sources, Dr. Loving concluded that defendant posed parenting risks in four areas:  drug abuse, recidivism, domestic violence, and violence generally.   According to Dr. Loving, defendant admitted that during a “roughly three month period leading up to his incarceration in September 2010 he was actively abusing heroin and he acknowledged that he had a physical dependence on heroin and opiates at that point.”   Dr. Loving also understood that because of his history of drug arrests, defendant had been offered substance abuse treatment before his relapse in 2010.   Defendant's history of drug abuse put him at risk of relapsing.

Dr. Loving also testified that in view of defendant's “very long history of arrests and incarcerations,” he was “at a high risk for additional arrests and incarcerations.”   The doctor explained that defendant's risk of recidivism posed a twofold risk to a child:  first, defendant would be an absent parent if he were incarcerated;  second, he could expose a child to criminal behavior.

More significantly, Dr. Loving believed defendant presented the overlapping risks of domestic violence and violence generally.   The doctor explained that the risks concerning violence stemmed from defendant's history of violence and his tendency to downplay his responsibility for the domestic violence.   Defendant's inability to acknowledge responsibility for his past behavior decreased the likelihood that he would change such behavior.   Dr. Loving also believed that defendant's incarceration could impede access to the programs and therapies required to reduce the parenting risks he posed.

Moreover, because defendant had had virtually no contact or relationship with G.K.S., he would have to begin building a relationship with her.   Building such a relationship would take months.   In Dr. Loving's opinion, defendant had a poor prognosis for undertaking and carrying out all of the measures that were needed to address his parenting risks.

Before drawing conclusions about bonding between G.K.S. and defendant, and about G.K.S. and her foster parents, Dr. Loving studied background material on the adults and G.K.S., observed G.K.S. interact with defendant and her foster parents, then separately interviewed defendant and the foster mother.   The doctor's observations as to the foster parents “were entirely positive and healthy.”   G.K.S. was very engaging, very interactive, and “sought out contact with both foster parents.”   She “was very expressive and ․ engaged in what would be considered attachment seeking behaviors with the foster parents.”   In short, Dr. Loving observed that G.K.S. exhibited the type of strong, healthy, and important attachments to her foster parents that one would expect to see in a child of her age toward her parent figures.

As to the interaction with defendant and G.K.S. during the bonding session, Dr. Loving explained that defendant was “effusive and excited to see his daughter,” very affectionate, gentle, and entirely appropriate.   G.K.S. was originally “stand offish ․ [and] silent,” but gradually allowed defendant to become more physically interactive, and by the end of the session permitted him to hold her on his lap.   However, though receptive to defendant's efforts, she “did nothing to show attachment seeking behavior.”   The doctor explained there was no evidence of an attachment on G.K.S.'s part.   The lack of attachment was entirely understandable in view of the lack of interaction or contact with defendant throughout her life.

Dr. Loving concluded that were G.K.S. to lose her contact and relationship with her foster parents, she “would be at a high risk for suffering long-term emotional harm.”   Her foster parents were the most central parent figures for her and losing them, their home, and that sense of family would be extremely disruptive to G.K.S.

Further, that risk would likely occur even if G.K.S. began living with defendant.   Unlike the situation where a child is relocated with someone with whom the child already has an important attachment, no such attachment existed between G.K.S. and defendant.  “[G.K.S.] would be essentially moving in with a stranger and that would be a situation that would not help her overcome [the] risk of harm․”

Dr. Loving explained that in addition to the risks G.K.S. would face if removed from her foster parents, she would face the risks independently posed by defendant based on his psychological profile.   In the doctor's opinion, the Division's plan to have G.K.S. adopted by her foster parents would give her “the best long term prognosis for emotional health.”

Defendant testified that both he and his mother visited G.K.S. in the hospital and he went a couple of times each week.   He did not know if his mother told anyone at the hospital that she wanted custody of G.K.S., but both his mother and his sister wanted custody even before his paternity was established.   Ever since the test established his paternity, he wanted his daughter placed with his mother, and he made his wishes known to the Division.

Defendant also testified that he was released from jail in December 2012, and that he was still trying to become stable.   He was unable to care for G.K.S. on his own because he was trying to “get [him]self situated.”   His mother, however, would take good care of G.K.S. because she was a good person, had raised four children, had cared for other people's children, and had many grandchildren.   He stressed that it was in G.K.S.'s best interests to be with his mother because G.K.S. needed to know that her family loved her.   Defendant emphasized that if G.K.S. were placed with his mother, he would complete all required services and comply with all court orders.

Defendant denied ever hurting G.K.S.'s mother.   He claimed he only pleaded guilty because he was “sitting in the county jail for so long” and he just wanted to get out.

Defendant's mother also testified on his behalf.   She visited G.K.S. at most three times in the hospital and never spoke to anyone from the Division when she visited the baby there.   She claimed to have contacted the Division and spoken with the caseworker about a month after G.K.S. was born.   During that conversation, she told the caseworker that she wanted custody of G.K.S., but the Division never instructed her on how to get custody of the child.   Defendant's mother insisted that she had been telling the Division she wanted custody of G.K.S. since 2010.

Defendant's mother initially claimed that she applied for custody of G.K.S. in July 2011, but when presented with a copy of the FD complaint, agreed that the date on the complaint, March 2012, was correct.

Defendant's mother recalled that after being ruled out as a possible placement because of her criminal record and outstanding warrants, she went to various offices in Camden, including the police department, and “they said they couldn't find [any]thing on [her].”   She then contacted the Division and asked for the warrant numbers, which were provided.   She was then able to have officials locate her outstanding warrants.   She acknowledged the warrants for simple assault and truancy problems with her children, and the theft charge.   She eventually had the warrants dismissed in March 2012.

Although defendant's mother remembered receiving a rule-out letter stating that she had been ruled out due to her background, there was nothing attached to the letter explaining exactly what it was that caused the Division to rule her out.   She was unsure when she received the letter;  if it was not the July 7, 2011 letter, it was something similar to it.   She testified that she had received two rule-out letters.   During cross-examination, she admitted that she knew about the issue with her warrants in July 2011.

Defendant's mother also recalled the Division inspecting her home around “six or seven times,” and it always passed.   She testified that she frequently attended court and that she had a good relationship with G.K.S.'s mother, who wanted her to have custody of G.K.S. This testimony was contradicted by the Division's case notes, which documented that G.K.S.'s mother objected to defendant's mother having custody of G.K.S. Defendant's mother insisted that it was important for her to have custody of G.K.S. because she could not see G.K.S. being cared for elsewhere when she was available.   She said that if she were given custody of G.K.S., she would comply with all court orders and if her son were noncompliant or under the influence of drugs, she would not let him see his daughter.   She insisted that defendant had never harmed a child.   She also testified that she had cared for defendant's older daughter, G.K.S.'s sister, before the sister went to live with her maternal grandparents.

After evaluating the evidence presented by the parties, the court delivered an oral opinion from the bench on February 7, 2013, and concluded that the Division had “proven its case under N.J.S.A. 30:4C–15.1, by clear and convincing evidence,” as stated in its order entering judgment dated February 7, 2013.   Defendant appealed.


Defendant raises the following arguments:





We begin our analysis of defendant's arguments with the applicable legal principles.   Parents have a constitutionally-protected right to raise their children.  N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 165–66 (2010);  N.J. Div. of Youth & Family Servs. v. L.J.D., 428 N.J.Super. 451, 477 (App.Div.2012).  “Indeed, it is among the most fundamental of all rights.”  N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 447 (2012).   Both “ ‘[t]he Federal and State Constitutions protect the inviolability of the family unit.’ ”  L.J.D., supra, 428 N.J.Super. at 477 (quoting In re Adoption of a Child by W.P. & M.P., 308 N.J.Super. 376, 382 (App.Div.1998), vacated on other grounds, 163 N.J. 158 (2000)).

A parent's right to raise a child, however, is not absolute.   It is “tempered 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., supra, 211 N.J. at 447.   When discharging its parens patriae responsibility to protect children, the State must utilize its “weapon of last resort in the arsenal of state power” – termination of parental rights – “with caution and care, and only in those circumstances in which proof of parental unfitness is clear.”   Ibid.

Terminating parental rights must be in the best interests of the child or children.  N.J.S.A. 30:4C–15.1(a);  F.M., supra, 211 N.J. at 447–48.   The “best interests” standard is codified in N.J.S.A. 30:4C–15.1(a), which requires the State to establish the following four elements in order to terminate one's parental rights:

(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;

(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm.   Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;

(3) The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights;  and

(4) Termination of parental rights will not do more harm than good.

These four elements “are not discrete and separate;  they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests.”  In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999).   The State must establish the statutory criteria by clear and convincing evidence.  N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 506 (2004).

When we review a trial court's findings of fact and application of the statutory criteria to those findings, the scope of our review is limited.   F.M., supra, 211 N.J. at 448–49.   We “must determine whether a trial court's decision in respect of termination of parental rights was based on clear and convincing evidence supported by the record before the court.”  P.P., supra, 180 N.J. at 511.   We may not disturb the trial court's findings “ ‘unless they are so wholly unsupportable as to result in a denial of justice.’ ”  Ibid. (quoting In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)).

As a general rule, we should also defer to the court's credibility determinations.  N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007).   Such deference is appropriate because the trial court has a feel for the case and “the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand.”  N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008).   The trial court's legal conclusions, however, and the application of those conclusions to the facts, are subject to plenary review.  Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).


With those principles in mind we address defendant's first contention, namely, that the Division failed to clearly and convincingly prove that G.K.S.'s safety, health, or development had been or would continue to be endangered by the relationship between her and her father.   In its oral opinion, the trial court noted that defendant was on probation when he engaged in an act of domestic violence against G.K.S.'s mother, the crime that resulted in his incarceration from July 2010 to December 2012.   He assaulted G.K.S.'s mother, in the court's words, when “so[ ] much was on the line about providing two parents for this child while he was on [p]robation, i.e., really thin ice.”   As a consequence of defendant's domestic violence and resulting incarceration, he was never able to form any bond with his daughter.   The trial court determined that the Division's establishment of those facts proved the first statutory prong.   We agree.

Defendant's argument is threefold:  he did not cause the harm that resulted in the Division removing G.K.S. from her mother's custody, the harm being the child's exposure to drugs in utero and her mother abandoning her at the hospital;  his initial reluctance to provide a home for and parent G.K.S. is easily explainable by the fact that he did not know he was G.K.S.'s father until the paternity test was completed seven months after her birth;  and his incarceration was not a sufficient basis for the court's conclusion that the Division had clearly and convincingly proved the first prong.   Those arguments understate defendant's conduct during the first several months following G.K.S.'s birth, and misapprehend the risk of harm to his child.

The first prong of the best interests standard requires the Division to demonstrate 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).   This directs the “trial court [to] consider whether the parent has harmed or is likely to continue to harm the child.”  P.P., supra, 180 N.J. at 506.   The harm “must be one that threatens the child's health and will likely have continuing deleterious effects on the child.”  K.H.O., supra, 161 N.J. at 352.   This standard may be triggered by a single or isolated harm, or by an accumulation of harms over time.  P.P., supra, 180 N.J. at 506;  K.H.O., supra, 161 N.J. at 348.

Such harm can occur when a parent does not parent.   There is no question that “[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.”  In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999).   Moreover, “[t]o satisfy this prong, [the Division] does not have to wait ‘until a child is actually irreparably impaired by parental inattention or neglect.’ ”  F.M., supra, 211 N.J. at 449 (quoting D.M.H., supra, 161 N.J. at 383).

In the case before us, contrary to defendant's argument, his assault on his daughter's mother and his extended absence from G.K.S.'s life endangered her development.   G.K.S.'s mother was dysfunctional and homeless due to her drug addiction.   She seldom visited G.K.S. either in the hospital following G.K.S.'s birth, or in the foster home after G.K.S. was placed with her foster parents.   G.K.S.'s maternal grandmother could not care for another child.   That left only defendant, G.K.S.'s father, to provide a safe home and parental nurture.   But the Division was unable to locate him before filing the protective services complaint, and he never so much as visited G.K.S. after G.K.S. was released from the hospital.   Within three months of G.K.S.'s release from the hospital, defendant was incarcerated for committing an assault on his child's mother.   Consequently, his initial failure to act as a father and his subsequent incarceration essentially left G.K.S. without parents, and without the security and emotional support parents provide to a child, during the first two years of her life.   See D.M.H., supra, 161 N.J. at 379.

Defendant claims his initial “reluctance to ․ provide a home for and parent [G.K.S.] is easily explainable” because he did not know he was G.K.S.'s father and the Division did not complete a paternity test until seven months after her birth.   That argument is unavailing.   That hardly explains his assault on his child's mother.   In any event, his argument is refuted by substantial evidence in the record.

According to defendant, he visited G.K.S. and her mother while they were in the hospital.   When asked at trial whether he believed he was the father, he replied “I did, but I didn't know because she was out there prostituting, so I didn't know if I was the father or somebody else was the father at the time.”   Defendant's words, that he believed he was his child's father, were consistent with his actions.   Within three weeks of G.K.S.'s birth, defendant's sister offered herself as a possible placement for the baby, and nothing in the record suggests that defendant denied paternity until nearly three months after G.K.S. was born.   Only after the Division commenced the protective services action, after defendant had made his first court appearance, and after defendant had been ordered to have a substance abuse evaluation, did he first request a paternity test.   And he did so in the context of obstructing the Division's efforts to determine if he was abusing drugs.

Significantly, defendant later told Dr. Loving that he was actively abusing heroin, and that he was physically dependent on both heroin and opiates, for about three months before he was arrested and incarcerated in September 2010.   That means he was addicted to heroin and opiates in June, July, and August 2010, the three months immediately following G.K.S.'s birth.   His addiction, as well as evidence that suggested he may have been homeless during those three months, refute his assertion that he did not provide a home for G.K.S. because he did not believe he was her father.

Defendant also asserts that the trial court unduly relied upon his incarceration in determining that the Division clearly and convincingly established the first statutory prong.   Relying on our decision in New Jersey Division of Youth and Family Services v. S.A., 382 N.J.Super.   525 (App.Div.2006), he argues that the Division “fell short” of clearly and convincingly proving “the requisite magnitude of harm that might justify termination of ․ [his] parental rights.”   He also argues that since “a short incarceration is not in itself sufficient to justify termination of parental rights,” the trial court “erred in finding that prong one of the best interests test was satisfied.”   Defendant's argument is unpersuasive, because the facts in S.A. are significantly different from the facts in this case.

In S.A., supra, 382 N.J.Super. at 527–28, a trial court terminated the parental rights of a mother who suffered from a drug addiction and who, while incarcerated, gave birth to her child.   The child suffered from symptoms of drug withdrawal.  Id. at 529.   Twenty days after the child's birth, the Division filed a verified petition for guardianship.  Ibid. Six months later the court conducted a hearing, and two months following the hearing, the court entered an order terminating the mother's parental rights.  Id. at 529–31.   No psychological evaluations and no bonding evaluations had been conducted, and the Division presented no evidence as to the suitability of its plan for adoption.  Id. at 531.

Moreover, the mother, S.A., was in a halfway house when the guardianship hearing commenced, and was scheduled for release in six months.  Id. at 529.   The child's father had not been in touch with S.A. since the day of the child's birth, had made no effort to make contact with the Division, and had not visited the child.  S.A., supra, 382 N.J.Super. at 528 n.1. His whereabouts were unknown when the guardianship hearing commenced.  Ibid. A default judgment was entered against him.  Ibid.

In contrast, in the case before us, G.K.S.'s mother, who was not incarcerated, wanted to obtain custody of G.K.S. and the Division's initial plan was for reunification of the child with her mother.   The Division provided services to the mother for a considerable period of time.   At the guardianship trial, which commenced more than two years after G.K.S. was born, the Division presented the testimony of an expert who had conducted a psychological evaluation of defendant and bonding evaluations with defendant and the foster parents.   The trial court credited the expert's testimony, including his testimony that defendant posed ongoing parenting risks to G.K.S.

Additionally, in this case, the Division attempted to provide services to defendant after G.K.S. was born, including supervised visitation.   He thwarted those efforts.   The Division also considered placing G.K.S. with defendant's relatives, although both were ruled out because of their criminal histories.   Perhaps most significant, defendant's actual incarceration here was considerably longer than the mother's incarceration in S.A. and defendant here had no contact with G.K.S. for more than two years after G.K.S.'s release from the hospital following her birth.

The trial court's determination that Dr. Loving's testimony was credible is also significant.   The doctor concluded that defendant posed an ongoing parenting risk to G.K.S. Although the court's opinion as to whether it considered the doctor's testimony in relation to both the first and second statutory prongs, or merely the second prong, is not entirely clear, our Supreme Court has explained:

While the second prong more directly focuses on conduct that equates with parental unfitness, the two components of the harm requirement, N.J.S.A. 30:4C–15.1(a)(1) and (2) are related to one another, and evidence that supports one informs and may support the other as part of the comprehensive basis for determining the best interests of the child.

[D.M.H., supra, 161 N.J. at 379.]

Thus, while defendant has not challenged the court's determination as to prong two, the evidence proving prong two also informs our analysis as to whether credible evidence in the record supports the court's determination that the Division proved prong one.   The court's determination is supported by credible evidence.


We turn to defendant's second argument:  the Division failed to clearly and convincingly prove the third statutory prong.   The third prong requires the Division 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 requires the court to consider alternatives to termination of parental rights.  N.J.S.A. 30:4C–15.1(a)(3).   Defendant does not contend that the Division failed to make reasonable efforts to provide services, but rather contends that the Division did not properly consider alternatives to termination.

Defendant argues that his mother “was a perfectly appropriate relative placement who offered herself to the Division at an early juncture in this case.”   He further argues that the Division failed to search for relatives with whom to place G.K.S., and failed to adequately assist his mother with the dismissal of her warrants.   He states that the “Division, for whatever reason, wanted [G.K.S.] placed in foster care rather than with the paternal grandmother,” and suggests that the Division deliberately moved slowly in processing his mother's request and “failed to adequately communicate with her.”   Instead of “bending over backwards to place [G.K.S.] with a family resource, as required by law,” the Division “caused [G.K.S.] to languish in foster care so [G.K.S.] could develop a ‘bond’ with the foster resource.”   Defendant's largely conclusory assertions, steeped in hyperbole, have little support in fact or in law.

We begin by noting that the trial court explicitly rejected the paternal grandmother's testimony that she offered herself to the Division at an early juncture in this case.   Although defendant's mother testified that she sought custody of G.K.S. shortly after the child's birth, her son first identified her as a possible placement during a February 2011 compliance review hearing, and the Division's comprehensive case notes document that defendant's mother contacted the Division for the first time on March 1, 2011.   After reviewing all the evidence on that issue and making a credibility determination, the court concluded that defendant's mother “did not articulate in any clear way to any of the caseworkers that she wanted custody of this child until March of 2011, which was after the paternity test was done and known to [defendant].”   Because the court's credibility determination was supported by ample credible evidence in the record, we will not disturb it on this appeal.

We also reject defendant's assertion that the Division failed to search for relatives with whom to place G.K.S., an assertion refuted by the facts.   When a Division caseworker first interviewed G.K.S.'s mother, the caseworker asked if the maternal grandmother would be willing to care for G.K.S. G.K.S's mother could not answer that question.   The caseworker also asked G.K.S.'s mother about defendant's relatives, but the mother claimed she knew none.   The caseworker promptly followed up with the maternal grandmother, who said that she and her husband could not take another child.   As to paternal relatives, the Division evaluated defendant's sister, who was ruled out because of her criminal record, and assessed and ruled out defendant's mother.

Stripped of its conclusory assertions, defendant's argument boils down to a claim that the Division's decision to rule out defendant's mother as a placement for G.K.S. was wrong, and that the Division should have taken greater measures to help the paternal grandmother qualify as a placement for G.K.S. We reject that argument.

The Division's obligation to search for relatives is contained in N.J.S.A. 30:4C–12.1, which provides in pertinent part:

a.  In any case in which the Department of Children and Families accepts a child in its care or custody, including placement, the department shall initiate a search for relatives who may be willing and able to provide the care and support required by the child.   The search shall be initiated within 30 days of the department's acceptance of the child in its care or custody.   The search will be completed when all sources contacted have either responded to the inquiry or failed to respond within 45 days.   The department shall complete an assessment of each interested relative's ability to provide the care and support, including placement, required by the child.

b. If the department determines that the relative is unwilling or unable to assume the care of the child, the department shall not be required to re-evaluate the relative.   The department shall inform the relative in writing of:

(1) the reasons for the department's determination;

(2) the responsibility of the relative to inform the department if there is a change in the circumstances upon which the determination was made;

(3) the possibility that termination of parental rights may occur if the child remains in resource family care for more than six months;  and

(4) the right to seek review by the department of such determination.

c. The department may decide to pursue the termination of parental rights if the department determines that termination of parental rights is in the child's best interests.

Subsection (a) of the statute requires the Division to “complete an assessment of each interested relative's ability to provide the care and support, including placement, required by the child.”  N.J.S.A. 30:4C–12.1(a).   As we have explained, “the Division's statutory obligation does not permit willful blindness and inexplicable delay in assessing and approving or disapproving a relative.”  N.J. Div. of Youth & Family Servs. v. K.L.W., 419 N.J.Super. 568, 582 (App.Div.2011).   Rather, the Division's

responsibility under subsection (a) [is] ․ to conduct a fair investigation of such a relative who identifies himself or herself as a potential caretaker in a reasonably prompt manner.   The Division cannot ignore such a relative's timely application out of bureaucratic inertia, or consider that application based upon an arbitrary, pre-ordained preference for the foster placement.   The Division must perform a reasonable investigation of such 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 & Family Servs. v. J.S., 433 N.J.Super. 69, 87 (App.Div.2013).]

Subsection (b) of the statute requires the Division, in instances where it has determined that a relative is unwilling or unable to assume the care of a child, to inform the relative, among other things, of the reasons for its decision and the parent's right to seek review of its determination.   N.J.S.A. 30:4C–12.1(b).  “A relative can appeal a Division action that the relative is either unwilling or unable to care for a child.”  N.J.A.C. 10:120A–3.1(b).  Thus, the Division's decision is subject to administrative review.   More importantly, if

the Division has been lax or capricious in its assessment of such timely-presented alternative caretakers, it bears the litigation risk that a Family Part judge will conclude, under N.J.S.A. 30:4C–15.1(a)(3), that it has failed to prove by clear and convincing evidence that “alternatives to a termination of parental rights” have been appropriately considered.

[J.S., supra, 433 N.J.Super. at 87.]

In the case before us, the Division first became aware of the paternal grandmother as a possible placement when defendant identified her on February 28, 2011.   The grandmother first came forward on March 1, 2011, and she did not seek review of the Division's decision to rule her out after the Division sent her a rule-out letter in July 2011.   Consequently, the Division had no reason to further assess her as a possible placement until she made another inquiry four months later.

Defendant's mother next contacted the Division in November 2011 and informed a worker that she wished to obtain custody of G.K.S. The Division thereafter reassessed her as a potential placement, and again ruled her out.   By then, G.K.S. had lived with her foster parents, exclusively, for nearly the entire one and one-half years of her young life.   Following the paternal grandmother's filing of the FD complaint in March 2012, the Division reassessed her yet again, but by that time the bonding evaluations had been conducted.   The Division concluded from the bonding evaluations that it would not be in G.K.S.'s best interests to relocate her from her foster parents' home and place her with defendant's mother.

Based on the foregoing facts, the trial court found that the Division's rule-out of the paternal grandmother “was not institutional blindness or a pretext for allowing the child to stay with the then foster parent.”   The court evaluated the Division's action as to the paternal grandmother in the context of the entire case, including the Division's focus on reunifying G.K.S. and her mother while her mother was alive.   The trial court's determination that the Division did not unreasonably or arbitrarily rule out defendant's mother was not “so wide of the mark that a mistake must have been made.”  M.M., supra, 189 N.J. at 279 (citation and internal quotation marks omitted).   Stated differently, we find no basis for reversing the court's determination.


Lastly, defendant contends that since his mother was willing and able to take custody of G.K.S., the court's failure to consider KLG was plain error.   Defendant's argument is without sufficient merit to warrant discussion in a written opinion.   R. 2:11–3(e)(1)(E).



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