Opinion
DOCKET NO. A-4606-10T3
05-09-2012
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. C.T., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF T.T., a minor.
Joseph E. Krakora, Public Defender, attorney for appellant C.T., (Jennifer M. Kurtz, Designated Counsel, on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Toni Lynn Imperiale, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor T.T., (Christopher A. Huling, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodríguez, Ashrafi and Fasciale.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FG-16-32-11.
Joseph E. Krakora, Public Defender, attorney for appellant C.T., (Jennifer M. Kurtz, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Toni Lynn Imperiale, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor T.T., (Christopher A. Huling, Designated Counsel, on the brief). PER CURIAM
Defendant C.T. appeals from an April 8, 2011 judgment terminating her parental rights to her adopted son, T.T. She argues that the judgment should be reversed because the trial judge did not set forth sufficient findings of fact and conclusions of law, as required by Rule 1:7-4(a), regarding the four prongs of the "best interests of the child" standard, N.J.S.A. 30:4C-15.1(a). Alternatively, C.T. contends that the Division of Youth and Family Services (DYFS or the Division) failed to establish each prong of the best interests standard by clear and convincing evidence.
We conclude that the judge's decision "adopting" the summation arguments of the Deputy Attorney General (DAG) and the law guardian and allowing a psychological evaluation to "largely speak for itself with regard to the fourth prong" did not conform to the requirements of Rule 1:7-4(a), and was therefore inappropriate to support a judgment terminating the parental rights of C.T. Nonetheless, we recognize that T.T., who is now eleven years old, has a compelling need for permanency and stability in his life. See N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 610 (1986) (addressing the importance of permanence in the nurture of a child). To avoid further delay, therefore, we make findings and conclusions pursuant to our constitutional grant of necessary original jurisdiction and Rule 2:10-5. Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 1:7-4(a) (2012) (citing Farmingdale Realty Co. v. Farmingdale, 55 N.J. 103, 106 (1969)); see also N.J. Const. art. VI, § 5, ¶ 3 (authorizing original jurisdiction "as may be necessary to the complete determination of any cause on review").
The record reflects that the Division established, by clear and convincing evidence, prongs one and two and the "reasonable efforts" requirement of prong three. However, we cannot complete the analysis because, as the law guardian argues on appeal, the judge did not consider whether kinship legal guardianship (KLG), N.J.S.A. 3B:12A-6d, presented a reasonable alternative to termination of C.T.'s parental rights, N.J.S.A. 30:4C-15.1(a)(3). We therefore affirm in part, reverse in part, and remand for the judge to determine whether adoption is feasible and likely and, if not, whether KLG would be in T.T.'s best interests.
We derive the following relevant facts from our intensive review of the record.
T.T. was born in 2001, and pediatricians classified him as autistic with global developmental delay. At four weeks old, C.T. became his foster parent. She later adopted him at age two and a half. Until T.T.'s removal from the home, the two resided in a two-story home with C.T.'s elderly mother, E.T, who was eighty-six years old at the time of the guardianship trial.
C.T. was sixty-one years old at the time of the trial.
On March 28, 2006, the Clifton police reported to DYFS that T.T. had run away from home and been found on Route 46. On April 5, 2006, the Division received a referral from the Clifton Health Department, but determined that the abuse and neglect allegations were unfounded.
On April 18, 2006, the Division received a referral that C.T. had been hospitalized for obesity, and that for the past week, E.T. had been caring for T.T. The referral stated that the home conditions were deplorable, and that C.T. slept in a recliner, was wheelchair bound, and was unable to care for T.T. After investigation, the Division determined that the allegations of abuse and neglect were unfounded. On June 21, 2006, May 29, 2007, and January 18, 2008, the Division received similar referrals but determined that the allegations of abuse and neglect were unfounded.
On February 29, 2008, the Division received a referral from T.T.'s school principal stating that T.T. had run away and been picked up by police on Route 46. The principal further reported that C.T. stated that she "didn't call police because this has happened before and she knew that police would bring him home."
T.T. attends a special education school.
On May 14, 2008, the Division received a referral that E.T. was caring for T.T. because C.T. was hospitalized. The next day, a Division caseworker spoke to E.T.'s Adult Protective Services worker, who reported that the home was cluttered, and that E.T. cared for T.T. when C.T. was hospitalized, which was three to four times that year. E.T. confirmed that C.T. had been hospitalized since May 9, 2008, due to asthma and bronchitis. E.T. expressed difficulty caring for T.T. and maintaining the home. Later, the caseworker contacted C.T. at the hospital, and C.T. promised to address the clutter.
On May 20, 2008, the caseworker interviewed C.T. at home. C.T. reported that she was seeking assistance through Value Options and the Division of Developmental Disabilities (DDD). The Division referred C.T. to the Emergency Child Assistance Program (ECAP) and to a cleaning service. In August 2008, C.T. was hospitalized for two weeks due to asthma.
On October 23, 2008, the Division caseworker and a Division Child Health Nurse visited the home to assess the family's health and medical needs. They observed that C.T. had difficulty with mobility, and that T.T. was permitted to leave the house unsupervised and run down the sidewalk. C.T. stated that T.T. had run away before, and that she usually waited for him to return because she was unable to follow him.
The Division nurse expressed concern that C.T. was not properly attending to T.T.'s developmental and medical needs. She noted that C.T. had cancelled five appointments for T.T. to visit an audiologist. She also noted that in 2005, a neurodevelopmental consultant had diagnosed T.T. with pervasive developmental delays, pervasive autism, and speech and language delays, and had recommended that T.T. receive speech and language services, behavioral modification therapy, and occupational therapy. T.T.'s early intervention program, dated January 31, 2008, indicated that he was years overdue to see multiple medical professionals, including a hematologist,ophthalmologist, and ear, nose and throat specialist.
T.T. was diagnosed with neutropenia (low white blood cell count), requiring regular follow-ups with a hematologist or oncologist.
On February 18, 2009, DYFS received a referral that C.T. could not ambulate to the bathroom, due to her obesity, and was instead defecating into buckets, causing a stench in the home. A Division caseworker visited and spoke to E.T., who stated that C.T. had been hospitalized for vomiting and headaches and admitted that C.T. was defecating into buckets. The caseworker observed that E.T. had difficulty moving around the cluttered home. The caseworker visited C.T. at the hospital, and C.T. admitted to using buckets. C.T.'s nurse stated that C.T. suffered from kidney stones, cellulitis, and cardiac problems. The Division substantiated C.T. for neglect because the "egress in the home [was] significantly obstructed with clutter . . . pos[ing] a significant safety and risk issue to [T.T.]" The Division noted that C.T. had a "history with [the Division] citing the same concerns."
In February and March 2009, the Division referred T.T. to the Youth Advocate Program and the Future Project for mentoring and recreation services. On March 6, 2009, an ECAP worker reported that C.T. had taken seventeen minutes to answer the door, and that she was still wearing a feces-stained hospital gown. The worker indicated that T.T. was very active, and that C.T. had been rushed to the hospital, but returned the same day.
On March 11, 2009, clinical consultant Heather Adams reported that she had met with C.T., and that C.T. was suffering from depression and was in denial about her medical problems. Adams recommended that C.T. submit to a psychological and psychiatric evaluation. Thereafter, the Division submitted a referral to Family Preservation Services for intensive in-home assistance, and C.T. began receiving ECAP services for four hours per day. Additionally, in April 2009, the Division approved approximately $2,100 to pay for a home cleaning service, which performed twenty hours of work, removed forty-five bags of garbage, and purchased twenty-four storage bins.
On April 23, 2009, at the Division's request, Dr. Samiris Sostre, M.D., performed a psychiatric evaluation of C.T. and issued a report. Dr. Sostre concluded that although C.T. denied symptoms of mood disorder and hoarding behavior, there were indications that she was suffering from such problems. She noted her "inability to supervise the child outside of the home [and] inability to keep a neat home, her hoarding behaviors, and the disarray in the home as well as her need to rely on her elderly mother for the care of the child." She also noted that C.T. "minimizes her own disabilities as well as the needs of her child," and that she "did not seem to acknowledge that she is relying on the help of her mother in caring for her son." Dr. Sostre recommended that an occupational therapist evaluate C.T. to assess her capacity to care for the specific needs of T.T.
Dr. Sostre also psychiatrically evaluated E.T. She found no indications of mental illness, and made no recommendations.
On April 29, 2009, C.T.'s sister made a referral to the Division, indicating that E.T. had fallen in March, and that C.T. had not helped her up or called for medical assistance. The sister reported that E.T. remained on the floor for two hours, until a relative arrived to assist. E.T. was taken to the hospital and treated for bruises on her back and shoulders.
In May 2009, C.T. was hospitalized again, this time for over two weeks. Later that month, a Division nurse reported that T.T. had missed his annual pediatric appointment, and had not seen a dentist or eye specialist.
In June 2009, the Division received a letter from ECAP, which had been monitoring the family with home visits for over a year. The letter expressed concerns regarding the deteriorating health of C.T. and E.T. It stated that C.T. was obese, had open wounds on her legs, and was unable to move from her chair. It noted that she would eat large quantities of food with ECAP workers present, that she was unable to digest her food due to immobility, and that she often became constipated or started to vomit, resulting in her being taken to the hospital. The letter also stated that C.T. did not address T.T.'s behavioral problems, such as kicking and pushing, and that no one chaperoned T.T. when he played outdoors. Further, the letter stated that T.T. defecated himself and smeared feces on the walls and carpeting. Photographs submitted with the letter showed piles of feces on T.T.'s bedroom floor.
In July 2009, C.T. was hospitalized again. Several days later, a Division caseworker inspected the home and observed feces all over the bedroom floors. The caseworker reported that E.T. had not been upstairs in two days to clean up the feces. On August 2, 2009, it was discovered that C.T. was administering three to four doses of Children's Triaminic Thin Strips Night Time Cold & Cough to T.T. every night for "itching."
On August 10, 2009, the Division filed a verified complaint for custody, care, and supervision of T.T. On August 26, 2009, the court granted the Division temporary custody, and T.T. was thereafter placed with his current foster parents. C.T. provided names of two relatives possibly willing to care for T.T., but both later declined.
In September 2009, Dr. Margaret DeLong, Psy.D., performed a psychological evaluation of C.T., which included administration of the Adult Adolescent Parenting Inventory, a measure of parenting knowledge and skills, and the Millon Clinical Multiaxial Inventory, a self-report measure of mental health and personality functioning. Dr. DeLong observed that C.T. "minimized" T.T.'s needs as an autistic child and denied having trouble meeting his needs. She concluded that although C.T. "loves [T.T.] a great deal," she is "unwilling to recognize the serious safety, hygiene, and supervision problems" and "not capable of providing T.T. with adequate supervision and safety." She further concluded that "[d]ue to [C.T.'s] serious medical and health issues, these concerns are unlikely to significantly improve in the foreseeable future."
Dr. DeLong recommended that C.T. have supervised visitation with T.T., participate in parenting skills training, and maintain her medical appointments. Dr. DeLong also recommended that if T.T. was returned to C.T.'s home, it would require the presence of a fulltime aide to ensure T.T.'s proper supervision, hygiene, and safety.
Dr. DeLong also performed a psychological evaluation of E.T., and concluded that E.T. "is unwilling to recognize the serious safety, hygiene, and supervision problems," and "minimized" T.T.'s autism needs. Dr. DeLong further concluded that because of E.T.'s age, health, and functioning issues, she is not capable of providing T.T. with adequate supervision and safety, and that these concerns were unlikely to improve.
From December 2009 to February 2010, the Division scheduled weekly visits for C.T., E.T. and T.T. through the YMCA Supervised Visitation Program. However, C.T. missed numerous visits for her health problems, and was unavailable for visits from April to August 2010 because of hospitalization. In September 2010, T.T.'s resource parents determined that they would not seek adoption but were interested in KLG.
On August 11, 2010, the court rejected the Division's plan of a three-month extension to effectuate reunification, finding that "defendant has been unable due to illness to participate in services thus far, [and that] the [likelihood] of changes in the next three months is small." Thereafter, on October 15, 2010, the Division filed a guardianship complaint seeking termination of C.T.'s parental rights to T.T.
In January and February 2011, the Division referred C.T. to Dr. Donna LoBiondo, Ph.D., for a psychological evaluation. Dr. LoBiondo also conducted a home visit, a bonding evaluation between C.T. and T.T., and an adult-child observation between T.T. and his foster parents.
In her psychological evaluation, Dr. LoBiondo observed that C.T. "externalized or denied every negative issue and took little responsibility for the environmental and parenting problems leading to removal of her son." Dr. LoBiondo found:
[C.T.] denied ever defecating into a bucket despite documentation to the contrary. She denied that her disabilities continue to place [T.T.] at risk if returned, claiming that she can pursue him by wheelchair if he runs even though she cannot afford a ramp for her wheelchair. . . .
She demonstrated much denial and general ignorance about her son's specific delays, about his past aggression and behavior issues, and about the disorder of Autism. She denied that the clutter in her home requiring extraordinary cleanup measures stemmed from difficulty throwing things out or hoarding behavior. The cluttered and non-functional status of many of the rooms in her home during a home visit
by the undersigned, in addition to the presence of baby clothing, three cribs, and an entire room full of her deceased father's belongings strongly suggests continued tendencies in this direction.
[C.T.] cannot parent an active autistic child like [T.T.] for a variety of reasons. She is wheelchair bound with multiple medical problems and cannot control him. She is limited in her ability to move, to clean, to pursue [T.T.] if he runs into danger, or to quell his behavior if he acts out, yet she remains in denial of these limitations. She cannot adequately parent a special needs child whose special needs she does not understand or accept. She cannot maintain a safe and uncluttered home for her child's safety if she does not recognize her hoarding tendencies or address these formally such as in a counseling setting. In brief, there is no evidence that anything has substantially changed in [C.T.'s] understanding of or ability to address the issues that led to neglect of her son and his removal. As such, she is at high risk to replicate these conditions if he were returned.
In her bonding evaluation and adult-child observation, Dr. LoBiondo observed that T.T. "seemed content and comfortable in [C.T.'s] presence," and that he "then reunite[d] with his foster mother in an enthusiastic and well-related manner." She found that T.T. "holds roughly equivalent attachments to both his mother and foster mother as parental figures, but the foster mother's upbeat, warm, and active style of relating encouraged and fostered a higher level of social and verbal responsiveness from [T.T.]" Dr. LoBiondo concluded that T.T.'s "clear ability to form new and significant attachment relationships with caring adults balanced with the potential harm of returning him to a neglectful environment, suggests that termination of [C.T.'s] parental rights would be unlikely to do more harm than good to [T.T.] or to result in enduring emotional or psychological harm."
On April 4, 2011, the judge commenced a three-day guardianship trial. C.T. testified on her own behalf and presented testimony from E.T. The Division presented testimony from two DYFS caseworkers, a DYFS adoption worker, and an ECAP home health aide. The Division also introduced into evidence thirty exhibits, including the reports of Drs. Sostre, DeLong, and LoBiondo.
In her testimony, C.T. admitted that she could not ascend the stairs in her home, and that she could not go outdoors because she did not have a wheelchair ramp. She testified that if T.T. had an emergency upstairs, "hopefully, my mom would be there to go up or one of my friends would be over at the house." When asked how she would secure T.T.'s safety in the home, C.T. stated that she would purchase a baby monitor and listen for him. Further, she admitted that T.T. had run away on at least two occasions when she was unable to follow him. She testified that on one occasion the police brought him home, and that on the other occasion T.T. "came home with some guy or kid. I don't know who he was or where he came from." C.T. denied defecating into buckets. She stated that she was aware that T.T. was defecating on the upstairs floors, but that because she "couldn't get up the steps [E.T.] would be the one who would go up and check."
The Caseworkers testified that they had noticed positive changes in T.T. since his removal. One testified that T.T. was "more verbal," could hold a conversation, and "was able to vocalize . . . and verbalize" what he was learning in school. She testified that before the removal, T.T. "was just kind of all over the place." The other caseworker testified that, since his removal, there had been no reports of T.T. running away or acting violent or aggressive. She testified that his foster parents had no problems with his bathroom habits, and that school authorities had reported that he had become "very social" and "was actually doing better in his academics." The Division adoption caseworker testified: "[T.T.'s] vocabulary has increased. Originally coming into foster care he was unable to read. He's now able to read, pronounce words, answer questions. He's more self sufficient. He's less hyper. He's more attentive."
On April 8, 2011, following summation by the attorneys and a brief period of deliberation, the judge issued an oral decision finding that the Division had proven by clear and convincing evidence that C.T.'s parental rights to T.T. should be terminated. On that same date, he entered an order terminating C.T.'s parental rights to T.T.
In his oral decision, the judge stated that he had "reviewed substantial portions of the notes that [he] took during the testimonial portion" and "[s]ome, but not all[,] of the exhibits, at this juncture," and that he was "familiar with this case[,] having handled the matter from . . . the very beginning of the FN proceedings." The judge stated that "[a]lmost all of the problems . . . seem[] to be related to [C.T.'s] obesity, whether it's congestive heart failure[,] respiratory problems [or] asthma, . . . and there are, of course, lots and lots of other problems." He further stated that although C.T.'s health "records are hardly complete, comprehensive or anything else[,] they speak of the health problem which is severe [and] chronic."
The judge also expressed concern regarding the future of the family home:
The house is going to be sold when E.T. passes away. She turns 87 in September she said. . . . [T]he reality is that she may not be with us long. And [C.T.'s] planningFurther, he found that C.T. had failed to have a wheelchair ramp built for the home, due to her lack of effort and fiscal irresponsibility. He stated, "How there wasn't a concerted effort to get a ramp installed some time in the last five years is hard to fathom. [C.T.] has not been able to exit the house except on a wheelchair." The judge also found that C.T. and E.T. had "memory or credibility" problems and "testified in contradictory fashion a number of times."
for that contingency, for that eventuality[,] is vague at best.
The judge then stated that he was "adopting" the arguments of the attorneys into his decision:
I don't want to take anyone's time or clutter, to use the word, the record with further references to the arguments and summation by the law guardian and the DAG, but I found all of their arguments were appropriate and persuasive. And I will be adopting those as part of the Court's finding but will, of course, be adding to that.Later in his decision, the judge stated that "all those prongs [of the best interests standard] were well covered in the points made by both the DAG and the law guardian." He also stated that the report of Dr. LoBiondo would "largely speak for itself with regard to the fourth prong."
Although apparently having finished delivering his decision, at the request of the law guardian, the judge made additional findings as to the Division's reasonable efforts. He found the efforts were "quite extensive," that the Division had provided:
all that cleaning service. Home health aide, extensive home health aide services, four hours daily, weekend hours. Family Preservation Services 20 hours a week, DDD services in the home, specifically for the child[,] but [C.T.] was provided with parenting classes, regular visitation. And, again, her disability was accommodated by having the parenting classes done in her home and in the rehab facility. Same with the visitation, either at the Y[MCA] or the rehab facility. All sorts of transportation assistance until the situation was so severe that she had a transportation need that they couldn't readily meet[.]The judge also found that the Division had arranged psychiatric and psychological evaluations for C.T.
The judge then stated that he would be issuing a written decision. However, he had not done so by the time C.T. filed her appeal. Thereafter, he notified the parties that he would not supplement his oral decision with a written one, explaining that he had been without a law clerk, was primarily assigned to matrimonial work, and was transitioning to Criminal Part.
Typically, we employ a very limited standard of review of a trial court's findings and consider them "binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). We recognize that "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare v. Cesare, 154 N.J. 394, 413 (1998).
However, a trial judge "shall, by an opinion or memorandum decision, either written or oral, find the facts and state [his or her] conclusions of law thereon in all actions tried without a jury . . . ." R. 1:7-4(a). "The rule requires specific findings of fact and conclusions of law . . . ." Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 1:7-4 (2012). The Supreme Court has expounded on this essential obligation:
Failure to perform that duty constitutes a disservice to the litigants, the attorneys and the appellate court. Naked conclusions do not satisfy the purpose of [Rule] 1:7-4. Rather, the trial court must state clearly its factual findings and correlate them with the relevant legal conclusions.
[Curtis v. Finneran, 83 N.J. 563, 569-70 (1980) (citation and internal quotation marks omitted).]
The rule does not indicate any particular method by which a judge must present his or her findings, and we have recognized that such presentation is "vested in the sound discretion of the trial judge." In re Trust Created by Agreement Dated Dec. 20, 1961, 399 N.J. Super. 237, 253 (App. Div. 2006), aff'd, 194 N.J. 276 (2008). In In re Trust, for example, we stated:
[A] judge may grant or deny a new trial motion for the reasons posited by the parties rather than issue a statement of its grounds, as long as the judge makes such reliance explicit. The purpose of the rule is to make sure that the court makes its own determination of the matter.In that case, we concluded that the trial judge had not erred by adopting the proposed findings and conclusions submitted in a brief of one of the parties. Id. at 254. The judge "made clear the extent of his agreement with and reliance on [the] proposed findings of fact and conclusions of law," and "supplied a summary of his findings in his oral opinion," which "provide[d] clear evidence that the trial judge carefully considered the evidentiary record and did not abdicate his decision-making responsibility." Ibid.
[Id. at 253-54 (citations and internal quotation marks omitted).]
Here, the judge stated that he was "adopting" the arguments of the law guardian and the DAG "as part of the [c]ourt's finding." However, he did not identify which aspects of the arguments of the DAG and law guardian he was adopting, make clear the extent of his agreement and reliance on those arguments, or clearly set forth his reasons for adopting them. Similarly, the judge stated that Dr. LoBiondo's report would "largely speak for itself with regard to the fourth prong." Wholesale incorporation of an extensive psychological evaluation does not fulfill a trial judge's obligation under Rule 1:7-4(a). Moreover, the piecemeal fashion in which the decision now appears frustrates appropriate appellate review and is a "disservice" to the parties. Curtis, supra, 83 N.J. at 569-70.
Typically, in a termination of parental rights case, the failure to make required findings as to each prong of the best interests standard would warrant remanding the case to afford the judge the opportunity to find the facts and state his or her conclusions thereon. Here, the facts are not largely in dispute, and we are provided with an extensive record and substantial briefing.
We begin with the legal standards relevant to our review. It is well-recognized that parents have a fundamental right to raise their children and maintain a relationship with them without undue state interference, a right that is protected by the United States and New Jersey Constitutions, but not without limitation. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 102 (2008). Termination of parental rights, therefore, "is limited to situations in which the [Division] has demonstrated that the child's parent or custodian is unfit, or the child has been neglected or harmed." In re Guardianship of J.C., 129 N.J. 1, 10 (1992) (citation omitted). The Division bears "a heavy burden" of proving, by clear and convincing evidence, that termination of parental rights is in the best interests of the child. E.P., supra, 196 N.J. at 103 (citing A.W., supra, 103 N.J. at 604-12).
To succeed in a termination of parental rights case, the Division must prove by clear and convincing evidence each of the four prongs of the statutory best interests standard:
(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;"Specific evidence is required in each case because the four prongs are extremely fact sensitive." N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 435 (App. Div. 2009) (citing N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 280 (2007)).
(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).]
Prongs one and two of the best interests standard focus on a finding of harm arising out of the parent-child relationship. In re Guardianship of D.M.H., 161 N.J. 365, 378-79 (1999). "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 [each other], 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; In re Guardianship of K.H.O., 161 N.J. 337, 348-49, 351-52 (1999).
As to prong one, "[r]ather than focusing on a single or isolated harm, the standard may be triggered by an accumulation of harms over time." N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 506 (2004) (citing K.H.O., supra, 161 N.J. at 348). 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. Further, our Supreme Court has stated that "the attention and concern of a caring family is 'the most precious of all resources.'" D.M.H., supra, 161 N.J. at 379 (quoting A.W., supra, 103 N.J. at 613). Thus, "[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." Ibid. (citing K.H.O., supra, 161 N.J. at 352-54).
Here, the Division produced clear and convincing evidence to establish that T.T.'s safety, health, and development were endangered by the parental relationship. C.T.'s inability to provide T.T. with reliable, consistent attention and care severely undermined his developmental progress. While in C.T.'s care, T.T. continually defecated on himself and the floors, had behavioral outbursts marked by aggressiveness, was nonverbal, and was prone to running away. C.T. was unable to supervise T.T., whether due to her extensive hospitalizations or her inability to ambulate outdoors or inside the home. On at least two occasions, this resulted in the police finding T.T. on a busy highway. Moreover, C.T.'s continual inability to recognize or understand T.T.'s needs as an autistic child demonstrates a very significant neglect to T.T.
Dr. DeLong's evaluation notes that "referral information indicated that the police reported that [T.T.] has run to a major highway three times."
Additionally, the conditions in the home present compelling examples of an unsafe and unhealthy environment for childrearing. In 2009, the Division substantiated neglect against C.T. due to the safety risks to T.T. Later that year, workers cleared forty-five bags of garbage and clutter from the home, but Division caseworkers have indicated that since T.T.'s removal the home has again become cluttered. Furthermore, there was feces on the floor and walls of T.T.'s bedroom, and C.T. was defecating into buckets because she could not walk to the bathroom. These unsanitary conditions constitute endangerment to T.T.'s health over time.
The second prong of the best interests standard, N.J.S.A. 30:4C-15.1(a)(2), "relates to parental unfitness" and "may be established in several ways," including demonstration of a parent's inability to eliminate the harm that endangered the child's health and development. K.H.O., supra, 161 N.J. at 352. The "cornerstone" of the harm analysis is not whether the parent is fit but whether she can "cease causing [her] child harm." J.C., supra, 129 N.J. at 10 (citing A.W., supra, 103 N.J. at 607). Also "[i]ncluded in that inquiry is whether delay in permanency will cause further harm and whether the child has bonded to his or her foster parents to the extent that separation from them would in itself 'cause serious and enduring emotional or psychological harm to the child.'" P.P., supra, 180 N.J. at 507 (quoting N.J.S.A. 30:4C-15.1a(2)).
Here, the Division proved by clear and convincing evidence that the harm was likely to continue because C.T. is unable to overcome the serious health problems that prevented her from providing reliable, consistent care to T.T. Dr. DeLong found that C.T. was "unwilling to recognize the serious safety, hygiene, and supervision problems" and "not capable of providing T.T. with adequate supervision and safety," and that, "[d]ue to [C.T.'s] serious medical and health issues, these concerns are unlikely to significantly improve in the foreseeable future." Furthermore, C.T.'s testimony clearly reveals that she has made no plans in case of the death of her now eighty-seven-year-old mother, who provided as much, if not more, support for T.T. before his removal. Nor has C.T. made plans for her living arrangement if her mother dies and the current house is no longer available.
Moreover, Dr. LoBiondo opined that C.T. was incapable of parenting T.T. because she could not understand or accept his needs as an autistic child. Drs. Sostre and DeLong reached a similar conclusion, each stating that C.T. "minimized" T.T.'s needs as an autistic child. Furthermore, Dr. DeLong reported that, during the evaluation, C.T. said, "'[T.T.'s] autistic, but he's not autistic. For benefits for him, [the doctors are] going to say he's autistic.'"
Finally, Dr. LoBiondo's bonding evaluation and adult-child observation indicated that T.T. has "roughly equivalent attachments" to C.T. and his foster mother, but that "the foster mother's upbeat, warm, and active style of relating encouraged and fostered a higher level of social and verbal responsiveness from [T.T.]" Given these observations, we cannot say that returning T.T. to C.T.'s custody would not "'cause serious and enduring emotional or psychological harm to the child.'" P.P., supra, 180 N.J. at 507 (quoting N.J.S.A. 30:4C-15.1a(2)).
The third prong has two requirements: that the Division make "reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home," and that the court consider "alternatives to termination of parental rights." N.J.S.A. 30:4C-15.1(a)(3). The first requirement "contemplates efforts that focus on reunification of the parent with the child and assistance to the parent to correct and overcome those circumstances that necessitated the placement of the child into foster care." K.H.O., supra, 161 N.J. at 354. "Reasonable efforts" include:
(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 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).]
Here, the Division proved by clear and convincing evidence that it made reasonable efforts. As the judge observed, the Division provided "quite extensive" services, including home cleaning services, home health aides, family preservation services for twenty hours per week, in-home parenting classes, regular visitation with T.T. at the YMCA or C.T.'s rehabilitation facility, transportation assistance, and psychological and psychiatric evaluations.
Prong three also requires that the court consider "alternatives to termination of parental rights." N.J.S.A. 30:4C-15.1(a)(3). The law guardian argues, for the first time on appeal, that the judge erred by not considering KLG, and that we should remand the case "for the sole purpose of ascertaining whether KLG with the foster parents provides an alternative to termination of C.T.'s parental rights in terms of protecting the best interests of [T.T.]." The law guardian contends that "removing [T.T.] from the [foster] home where [he] has permanency and stability in favor of a 'treasure hunt' for a select home adoption sacrifices the stability [T.T.] has already gained." T.T. has been with his foster parents for over two years, and they have indicated their interest in KLG.
The attorneys did not explore the prospect of KLG during trial. In September 2010, a Division caseworker told the foster parents that KLG was not an option because T.T. was "too young" and "considered adoptable." The Legislature, however, did not restrict the availability of KLG to a particular age group.
"Select home adoption" is "a process that includes looking for an adoptive home in New Jersey and registering the child on the national adoption exchange." E.P., supra, 196 N.J. at 98.
The Kinship Legal Guardianship Act, N.J.S.A. 3B:12A-1 to -7 (the KLG Act), does not terminate parental rights, but rather provides "an alternative, permanent legal arrangement . . . for children and their caregivers." P.P., supra, 180 N.J. at 508. In enacting the KLG Act, the Legislature made the following findings and declarations relative to kinship legal guardianship:
KLG does not sever a parent's legal relationship with the child. N.J.S.A. 3B:12A-4a. The parent retains visitation rights and child support obligations, and may later seek to terminate the KLG and resume custody if subsequently able to provide a safe and secure home. P.P., supra, 180 N.J. at 510 (quoting N.J. Div. of Youth & Family Servs. v. S.V., 362 N.J. Super. 76, 87 (App. Div. 2003)).
a. There is an increase in the number of children who cannot reside with their parents due to the parents' incapacity or inability to perform the regular and expected functions of care and support of the child;
b. An increasing number of relatives,including grandparents, find themselves providing care on a long-term basis to these children without court approved legal guardianship status because the caregivers either are unable or unwilling to seek termination of the legal relationships between the birth parent and the child, particularly when it is the caregiver's own child or sibling who is the parent. In these cases, adoption of the child is neither feasible nor likely, and it is imperative that the State create an alternative, permanent legal arrangement for children and their caregivers. One such alternative arrangement, which does not require the termination of parental rights, is a court awarded [KLG] that is intended to be permanent and self-sustaining, as evidenced by the transfer to the caregiver of certain parental rights, but retains the birth parents' rights to consent to adoption, the obligation to pay child support, and the parents' right to have some ongoing contact with the child;
c. In considering [KLG], the State is seeking to add another alternative, permanent placement option, beyond custody, without rising to the level of termination of parental rights, for caregivers in relationships where adoption is neither feasible nor likely; and
d. Therefore, it is in the public interest to create a new type of legal guardianship that addresses the needs of children and caregivers in long-term kinship
relationships.
[N.J.S.A. 3B:12A-1.]
The KLG Act does not restrict KLG to caregivers with a biological relationship to the child; it extends the "kinship relationship" to "a family friend or a person with a biological or legal relationship with the child." N.J.S.A. 3B:12A-2; P.P., supra, 180 N.J. at 508.
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The KLG Act also provides a standard for appointment of a kinship legal guardian. Based on clear and convincing evidence, the court must find:
(1) each parent's incapacity is of such a serious nature as to demonstrate that the parents are unable, unavailable or unwilling to perform the regular and expected functions of care and support of the child;
(2) the parents' inability to perform those functions is unlikely to change in the foreseeable future;
(3) . . . (a) the [D]ivision exercised reasonable efforts to reunify the child with the birth parents and these reunification efforts have proven unsuccessful or unnecessary; and (b) adoption of the child is neither feasible nor likely; and
(4) awarding [KLG] is in the child's best interests.
[N.J.S.A. 3B:12A-6d.]
Although this provision "echoes the best interests standards for termination of parental rights . . ., one difference stands out: a kinship legal guardian may only be appointed when 'adoption of the child is neither feasible nor likely.'" P.P., supra, 180 N.J. at 509 (quoting N.J.S.A. 3B:12A-6d(3)(b)). Furthermore, "it is the inability or unwillingness of a caregiver to adopt that renders adoption 'neither feasible nor likely.'" N.J. Div. of Youth & Family Servs. v. T.I., 423 N.J. Super. 127, 135-36 (App. Div. 2011); see also N.J. Div. of Youth & Family Servs. v. S.F., 392 N.J. Super. 201, 213 (App. Div. 2007) (finding adoption neither feasible nor likely when the grandparents, with whom the children had "lived continuously," "although very committed to the care of both boys, [were] not willing to adopt them and wish[ed] to proceed with KLG"), certif. denied, 192 N.J. 293 (2007).
In a recent case similar to the present, we determined that the trial judge had erred by approving the Division's permanency plan for select home adoption and rejecting the maternal grandmother as a kinship legal guardian. Div. of Youth & Family Servs. v. D.H., 398 N.J. Super. 333, 335 (App. Div. 2008). The grandmother had cared for the child for seventeen months and wanted a long-term custody arrangement instead of adopting. Ibid. Thus, a permanency plan that called for adoption by strangers was not in the child's best interests, and we remanded for the judge to consider KLG as an appropriate alternative to termination. Ibid.
Similarly, we remand here because the judge did not consider KLG as an alternative to termination of C.T.'s parental rights, N.J.S.A. 30:4C-15.1(a)(3). On remand, the judge should first determine whether adoption of T.T. is feasible and likely. N.J.S.A. 3B:12A-6d(3)(b). If so, KLG is not an available alternative, and the judge should complete the best interests analysis by determining whether termination of C.T.'s parental rights would do more harm than good. N.J.S.A. 30:4C-15.1(a)(4). On the other hand, if adoption is neither feasible nor likely, the judge should consider KLG as an appropriate alternative to termination of parental rights, N.J.S.A. 30:4C-15.1(a), and determine whether appointing T.T.'s foster parents as kinship legal guardians is in T.T.'s best interests, N.J.S.A. 3B:12A-6d.
Affirmed in part, reversed in part, and remanded for further findings of fact and conclusions of law consistent with this opinion. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION