SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

In the Matter of the Guardianship of J.N.H., a Minor (A-97-01)

Argued April 29, 2002 - Remanded June 26, 2002

Reargued September 27, 2004 -- Decided November 18, 2004

PER CURIAM

C.H.G. is the biological mother of J.N.H. Almost from the time J.N.H. was born, C.H.G was abusing illegal substances. The Division of Youth and Family Services (DYFS) began monitoring the family in early 1995. Eventually, J.N.H. was placed with his current foster parents in June 1996; he was two years and three months old. On August 18, 1997, DYFS transferred supervision of J.N.H. to the Adoption Resource Center unit because of C.H.G.'s long-term noncompliance with court orders. At the time, J.N.H. had been residing with his foster parents for just over one year.

In September 1997, C.H.G. was incarcerated in the Edna Mahon Correctional Facility for Women for a probation violation. She remained incarcerated until March 20, 1998. J.N.H. had no visitation with his mother during that time.

On December 8, 1997, DYFS filed an action seeking guardianship of J.N.H. and terminating C.H.G.'s parental rights. At the time of the proceeding, C.H.G. also had two older children: Jeremy, age ten, and Benjamin, age nine. Jeremy and Benjamin lived with their maternal grandmother. Three-year-old J.N.H. was living with his foster parents who sought to adopt him.

On October 26, 1998, the trial court entered an order terminating the parental rights of C.H.G. over J.N.H. as a result of C.H.G.'s inability to overcome her alcohol and drug addictions and to provide a safe home for her son. In terminating parental rights, the court found that DYFS provided C.H.G. with various services, including foster care for J.N.H., drug and alcohol evaluations and treatment, and parenting skills training. Despite those efforts, C.H.G. remained homeless, unemployed, continued to abuse illegal substances, and lived in and out of various places. The court noted that C.H.G. failed to cooperate with various programs, including substance-abuse treatment programs, and was ultimately terminated from all programs, remaining in denial about her drug problem. According to the court, C.H.G. provided no care, comfort or nurturing to J.N.H. and had failed in all respects to parent the child. The court did note that since her release from the correctional facility to the Intense Supervision Program in March 1998, C.H.G. showed signs of improvement. Nonetheless, the court concluded that, in light of her conviction of abuse and neglect and the strong expert testimony regarding the harm to J.H.N. in separating him from his foster parents, the requirements for termination of parental rights had been met.

In 2001, C.H.G., who by then had completely transformed her life, moved for vacation of the 1998 Order terminating parental rights pursuant to Rule 4:50-1(e) and (f). At the time, J.N.H. was seven years old and had been living with his foster family for five years. The trial court denied the motion and the Appellate Division affirmed on appeal.

The Supreme Court granted C.H.G.'s petition for certification and reversed the decision of the Appellate Division, remanding to the trial court for a full hearing to determine whether the judgment terminating C.H.G.'s parental rights "continues to be a just and equitable outcome." Among the Court's concerns were evidence of C.H.G.'s present fitness as a parent; a suggestion that J.N.H. was responding negatively to the termination of contact with C.H.G.; the absence of a recent psychological evaluation of J.N.H.; and the foster family's expressed intent to terminate any contact between C.H.G. and J.N.H. upon adoption. The Court retained jurisdiction.

The trial court followed the instructions of the Court on remand and, after a hearing that included updated bonding and psychological evaluations of all parties, issued a thorough and thoughtful opinion concluding that J.N.H.'s need for permanency and his identification with his foster parents as his psychological family warranted termination of the parental rights of C.H.G., notwithstanding her present ability to be a fit parent. In it's ruling, the trial court recognized that all of the experts in the case had concluded that continued contact between J.N.H. and C.H.G. was necessary to foster the child's best interests. The court refused to order such visitation in light of the foster parents' agreement voluntarily to continue contact between J.N.H. and his biological family, and because it viewed an order of post-adoption visitation to be beyond its power under the Court's decision in In the Matter of the Guardianship of K.H.O.

The matter is now before the Supreme Court from the remand to the trial court.

HELD: The record established before the trial court fully supports the decision to terminate the parental rights of C.H.G over her son, J.N.H.

1. The expert and fact testimony in the record fully supports the trial court's conclusion that termination of parental rights is in the best interests of J.N.H. (P. 3)

2. The Court will not address the thorny issue of mandatory post-adoption visitation. The issue is not ripe for review or adjudication because none of the parties in their briefs argued that this Court should revisit K.H.O. and allow for such court-ordered visitation. The Court takes the foster parents at their word and expects that, as they have promised, they will provide J.N.H. such opportunities to visit with C.H.G. and his natural siblings as are necessary for his continued welfare and happiness. (P. 3)

Judgment of the Appellate Division is AFFIRMED.

JUSTICE LONG, concurring in part and dissenting in part, agrees with the majority's affirmance of the judgment terminating C.H.G.'s parental rights. However, Justice Long is not as confident as the majority that the foster parents will promote continued visitation between J.N.H. and his biological mother. For that reason, and to forestall further acrimonious legal proceedings, she would rule now in favor of enforceable post-adoption visitation between C.H.G. and J.N.H. based on the "exceptional circumstances" doctrine that the Court recently recognized as permitting the exercise of its parens patriae jurisdiction to protect a child.

CHIEF JUSTICE PORITZ and JUSTICES LaVECCHIA, ZAZZALI, ALBIN, WALLACE, and RIVERA-SOTO join in this PER CURIAM opinion. JUSTICE LONG filed a separate opinion concurring in part and dissenting in part.

SUPREME COURT OF NEW JERSEY

A- 97 September Term 2001

IN THE MATTER OF THE

GUARDIANSHIP OF J.N.H.,

a Minor,

Argued April 29, 2002 - Remanded June 26, 2002

Reargued September 27, 2004 - Decided November 18, 2004

On remand from the Superior Court, Chancery Division, Atlantic County.

Arlene Gilbert Groch argued the cause for appellant C.H.G.

Sonia G. Wagner, Assistant Deputy Public Defender, Law Guardian, argued the cause for respondent J.N.H., (Yvonne Smith Segars, Public Defender, attorney).

James P. Gentile, Deputy Attorney General, argued the cause for respondent New Jersey Division of Youth and Family Services (Peter C. Harvey, Attorney General of New Jersey, attorney; Michael J. Haas, Assistant Attorney General, of counsel; Lisa J. Godfrey, Deputy Attorney General, on the brief).

PER CURIAM

In 1998, the trial court entered an order terminating the parental rights of C.H.G. over her son, J.N.H., as a result of her unremitting substance abuse. In 2001, C.H.G., who had by then completely transformed her life, moved for vacation of the 1998 order under R. 4:50-1(e) and (f). The trial court denied the motion and the Appellate Division affirmed.

We granted C.H.G.'s petition for certification and, in an opinion that details the history of the case, In re Guardianship of J.N.H., 172 N.J. 440 (2001), remanded the matter to the trial court for a full hearing to determine whether the judgment terminating C.H.G.'s parental rights "continues to be a just and equitable outcome." Id. at 479. Among our concerns were evidence of C.H.G.'s present fitness as a parent; a suggestion that J.N.H. was responding negatively to the termination of contact with C.H.G.; the absence of a recent psychological evaluation of J.N.H.; and the foster family's expressed intent to terminate any contact between C.H.G. and J.N.H. upon adoption.

The trial court did as we instructed, and after a hearing that included updated bonding and psychological evaluations of all parties, issued a thorough and thoughtful opinion concluding that J.N.H.'s need for permanency and his identification with his foster parents as his psychological family warranted termination of the parental rights of C.H.G., notwithstanding her present ability to be a fit parent. The expert and fact testimony in the record fully supports that conclusion and we affirm.

In ruling, the trial court recognized that all of the experts in the case had concluded that continued contact between J.N.H. and C.H.G. was necessary to foster the child's best interests. The court refused to order such visitation, however, in light of the foster parents' agreement voluntarily to continue contact between J.N.H. and C.H.G., and because it viewed an order of post-adoption visitation to be beyond its power under this Court's decision in In the Matter of the Guardianship of K.H.O., 161 N.J. 337 (1999). C.H.G. challenges the trial court's conclusion regarding visitation.

We decline to address the thorny issue of mandatory post-adoption visitation at this point. That issue is not ripe for review or adjudication because none of the parties in their briefs argued that this Court should revisit K.H.O. and allow for such court-ordered visitation. We take the foster parents at their word and expect that, as they have promised, they will provide J.N.H. such opportunities to visit with C.H.G. and his natural siblings as are necessary to his continued welfare and happiness.

Affirmed.

CHIEF JUSTICE PORITZ and JUSTICES LaVECCHIA, ZAZZALI, ALBIN, WALLACE, and RIVERA-SOTO join in this opinion. JUSTICE LONG filed a separate opinion concurring in part and dissenting in part.

SUPREME COURT OF NEW JERSEY

A- 97 September Term 2001

IN THE MATTER OF THE

GUARDIANSHIP OF J.N.H.,

a Minor,

JUSTICE LONG concurring in part and dissenting in part.

I am in full accord with the majority's affirmance of the judgment terminating C.H.G.'s parental rights over J.N.H. I am, however, not as sanguine as my colleagues regarding whether the foster parents will account for their stewardship and continue to promote visitation between J.N.H. and his mother. For that reason, and to forestall further acrimonious legal proceedings, I would rule now in favor of enforceable post-adoption visitation between C.H.G. and J.N.H. based upon the "exceptional circumstances" doctrine that we recently recognized as permitting the exercise of our parens patriae jurisdiction to protect a child. See V.C. v. M.J.B., 163 N.J. 200, 219 (2000)(holding psychological parenthood as one example of exceptional circumstances warranting judicial award of custody or visitation to third party).

Here every shred of evidence adduced at trial supported the conclusion that a continuation of the long-standing visitation between C.H.G. and J.N.H. is essential to avoid serious harm to J.N.H. That said, an enforceable order of visitation should be entered now to protect J.N.H. and to ensure that the termination of C.H.G.'s parental rights will not, in the long run, "do more harm than good." N.J.S.A. 30:4C-15.1. I have absolutely no difficulty denominating the unique circumstances before us as "exceptional", compelling judicial intervention.

SUPREME COURT OF NEW JERSEY

NO. A- 97 SEPTEMBER TERM 2001

ON REMAND FROM Chancery Division, Atlantic County

IN THE MATTER OF THE

GUARDIANSHIP OF J.N.H.,

a Minor.

DECIDED November 18, 2004

Chief Justice Poritz PRESIDING

OPINION BY Per Curiam

CONCURRING/DISSENTING OPINION BY Justice Long

DISSENTING OPINION BY

CHECKLIST

AFFIRM

CONCUR IN PART/DISSENT IN PART

CHIEF JUSTICE PORITZ

X

JUSTICE LONG

X

JUSTICE LaVECCHIA

X

JUSTICE ZAZZALI

X

JUSTICE ALBIN

X

JUSTICE WALLACE

X

JUSTICE RIVERA-SOTO

X

TOTALS

6

1

4

8