SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-1188-97T2
IN THE MATTER OF THE GUARDIANSHIP
OF A.R.G., M.A.G., C.M.G., E.D.G.,
and J.N.G.
Submitted January 26, 1999 - Decided February 19, 1999
Before Judges Long, Kestin and Carchman.
On appeal from Superior Court of New Jersey, Chancery
Division, Family Part, Burlington County.
David H. Dugan, III, attorney for appellant.
Peter Verniero, Attorney General, attorney for
respondent New Jersey Division of Youth and Family
Services (Mary C. Jacobson, Assistant Attorney General,
of counsel; Debra Hope Masser, Deputy Attorney General,
on the brief).
No brief was filed by any other party.
The opinion of the court was delivered by
CARCHMAN, J.A.D.
Defendant L.M.G. appeals from a judgment of the Family Part
terminating her parental rights to four of her children, M.A.G.,
C.M.G., E.D.G. and J.N.G.See footnote 1 We affirm.
The facts describe circumstances which unfortunately are not
atypical. Defendant was involved with drugs and a victim of an
abusive relationship with her husband. During the infant years
of the children, defendant was using crack cocaine. Despite some
progress away from addiction, defendant's drug evaluation
suggested more denial than true recovery.
The Division of Youth and Family Services (DYFS) first
became involved in defendant's case on January 8, 1993, when
informed by the Children's Hospital of Philadelphia that
defendant had delivered twins, not subject to this proceeding,
prematurely due to her cocaine abuse. Over the next six months,
DYFS documented numerous instances of abuse and neglect of the
children while defendant remained unreceptive to rehabilitation
efforts. Finally, on June 1, 1993, a neighbor reported to DYFS
that defendant regularly hit the children and left them
unattended for extended periods of time.
DYFS obtained custody of the children on June 7, 1993, after
the Burlington Police informed DYFS that the children were again
left unattended. According to defendant's DYFS caseworker, the
children were hungry and dirty. The children were eventually
placed in foster care, and, despite several search attempts, DYFS
remained unaware of defendant's location for the next two years;
defendant occasionally contacted DYFS but refused to indicate her
whereabouts.See footnote 2
Also on June 7, 1993, defendant was admitted to the Rancocas
Hospital and diagnosed with major recurrent depression, cocaine
abuse, chronic alcoholism and pharyngitis. While her condition
was improving with medical care, she eloped from the unit eleven
days later.
Within a few months of DYFS's involvement with the children,
it received information regarding sexual abuse of the children.
Further investigation revealed that A.R.G., the children's older
sibling, had sexually abused one of the children, and a former
foster mother's nephew abused two of the other children.
Finally, the children had been exposed to their mother engaging
in sexual relations with men.
The children's lives with their mother were self-described
as ones filled with drug use, sexual activity and domestic
violence. One of the children described being forced to steal
money from her mother to buy food as defendant would otherwise
spend the money on drugs.
Dr. Ronald S. Gruen conducted comprehensive psychological
and bonding evaluations and a psychological assessment of the
parties. Dr. Gruen determined that defendant was indifferen[t]
to the psychological suffering of her children, and consistently
minimized the damages to the children as a result of her history
of drug and alcohol abuse. He added that she is very
narcissistic, meaning she is her own central concern while the
children are kind of peripheral. Furthermore, Dr. Gruen noted
that her addiction potential is great and her current remission
is relatively short-term. Also, while he found no strong
bonding between defendant and the children, Dr. Gruen observed a
positive and developing psychological bond between the children
and the foster parents." Dr. Gruen concluded that the children
were thriving with the foster parents, and removing them would
create enduring harm. Therefore, he recommended that the
children's long-term best interests would be served by
terminating defendant's parental rights and allowing foster-parent adoption. Dr. Gruen also advised DYFS that visitation
between defendant and the children was not in the children's best
interests.
Defendant's expert, Dr. Kenneth Goldberg, found that the
children bonded to defendant, but that she may be limited in
addressing the children's needs separate from her own need to
assuage her guilt. Therefore, while Dr. Goldberg agreed that
the children should remain with the foster parents and that
serious and enduring harm would occur if they were moved, he also
argued that permanently severing L.M.G's parental rights would be
harmful. Dr. Goldberg concluded both that the children should
not be returned to defendant and that her parental rights should
not be terminated. Therefore, after acknowledging that it was
difficult to reconcile his opinion with current law and public
policy, he recommended continuing and increasing visitation
between defendant and the children and deferring the possibility
of reunification until later evaluations are made.
An addendum that Dr. Goldberg provided to his initial report
after conducting a bonding evaluation of the children and the
foster parents significantly altered his opinion:
In my opinion, the foster parents are highly
bonded to the . . . children, they are
motivated by legitimate and loving parental
concerns, and are capable of meeting the
children's physical, personal, educational
and psychological needs. The children are
bonded to them, have gained enormously from
placement in this foster home, and would be
harmed if they could not continue the
relationship they have with the foster
parents. Consequently, it is my opinion that
the children would thrive if adopted by the
foster parents.
Obviously, this statement contradicts the
position I took prior to this addendum. It
certainly is not intended to contradict the
observations I made, that there is bonding to
the mother, and that the children may need
some form of contact with her in the future.
However, the quality of the foster family is
so impressive (in comparison to foster
family's [sic] I have seen in other cases),
that it would be foolhearty [sic] not to
support the foster parents in their efforts
to offer the children a stable and permanent
environment. [Emphasis added.]
Judge Smith granted DYFS guardianship and terminated
defendant's parental rights. While he found that defendant's
lack of contact with the children did not constitute abandonment,
N.J.S.A. 30:4C-15(d), he concluded that the best interests of the
children required guardianship, N.J.S.A. 30:4C-15(c). He
analyzed the factors set forth in N.J.S.A. 30:4C-15.1a and
determined that the State had established the factors by clear
and convincing evidence.See footnote 3 See New Jersey Div. of Youth and
Family Servs. v. A.W.,
103 N.J. 591, 604-05 (1986).
On appeal, defendant asserts that DYFS failed to establish
the statutory factors by clear and convincing evidence.
Additionally, relying on our decision in In re Guardianship of
K.H.O.,
308 N.J. Super. 432 (App. Div.), certif. granted,
156 N.J. 405 (1998), defendant argues that the trial judge failed to
consider the additional option of long-term foster care combined
with continuing visitation. We have carefully reviewed the
extensive record and considered defendant's arguments, and while
we conclude that they are without merit, R. 2:11-3(e)(1)(E),
additional comment is warranted regarding the applicability of
K.H.O.
Subsequent to the trial judge's decision in this case
terminating defendant's parental rights, we decided K.H.O. and
noted that the alternative of long-term foster care with
continued contact with the biological family remains a viable
option and may, in appropriate, albeit limited, circumstances,
satisfy the potentially harmful consequences of outright
severance of biological ties." K.H.O., supra, 308 N.J. Super. at
450 (emphasis added). While the defendant's circumstances and
those of the mother in K.H.O. may appear to be similar, the cases
are substantially different.
In K.H.O., the biological mother, B.S., abused drugs and
agreed to place her child, K.H.O., in temporary foster care.
K.H.O. remained with the foster parents, bonded with them and
thrived under their care. Nevertheless, B.S. maintained
visitation, although the record was unclear to what extent, and
K.H.O. established a good relationship with B.S. Further, the
State's expert provided an initial report stating that, while
B.S. was not yet ready for reunification, K.H.O. would benefit
from continued and increased contact with her. Only four days
before the hearing, however, and without a justifiable change in
circumstances, the expert reversed his opinion and recommended
termination of B.S.'s rights. He did not testify at the hearing
to explain his reversal. After a hearing at which only the DYFS
caseworker testified, the trial court terminated B.S.'s parental
rights.
On appeal, we reversed the trial court's termination of
B.S.'s parental rights. Although we acknowledged that long-term
foster care provided an option, we, nevertheless, stated that our
review was primarily concerned with the trial court's analysis of
the four prongs of N.J.S.A. 30:4C-15.1. We concluded that the
inadequate record did not clearly and convincingly support the
trial judge's findings and reversed the trial court because DYFS
failed to sufficiently establish the four prongs. We instructed
DYFS that, should it attempt to pursue termination further, it
should present competent expert testimony evaluating K.H.O.'s
ties with her biological and foster families as well as the
potential impact of breaking those bonds. Again as to the third
option, we acknowledged that [w]e do not know whether
continuation of the 'status quo' . . . is the appropriate
solution, albeit not entirely 'permanent.' Id. at 456-57.
Rather, should K.H.O.'s ties with both her biological and foster
parents remain positive, expert evidence should be provided that
forms a basis for the trial judge to cogently consider the
viability of long-term foster care with continuing biological
family visitations as an appropriate alternative to termination
and adoption on the one hand, and reunification on the other.
Id. at 458.
Here, unlike in K.H.O., the record was sufficiently
developed so as to enable Judge Smith to evaluate the children's
case under the statutory factors. Both the State and L.M.G.
presented experts who conducted psychological and bonding
evaluations of the children, L.M.G. and the foster parents. Both
experts also recommended against reunification at this time.
Just as suggested in K.H.O., L.M.G.'s expert, Dr. Goldberg,
presented Judge Smith with his opinion favoring a foster parent
adoption with visitation. The record clearly supported Judge
Smith's conclusion that termination and adoption would be in the
children's best interests. Such conclusion was based on
substantial credible evidence in the record. Cesare v. Cesare,
154 N.J. 394, 411 (1998); Rova Farms Resort, Inc. v. Investors
Ins. Co. of America,
65 N.J. 474, 484 (1974). We see no reason
to alter this determination. K.H.O. should not be seen as a
vehicle for delaying termination where the record warrants and
supports that result.
The application of long-term foster care raised in K.H.O.
requires a waiting period and substantial time. The children
have been in foster care since 1993 and expressed fear over being
taken away from the foster parents. There is no reason to delay
permanent resolution any longer. L.M.G.'s suggestion of
remanding these proceedings pursuant to K.H.O. is misplaced - she
seeks only to indefinitely postpone permanent placement until
such time, if ever, she finally becomes prepared to function as a
parent for the children. The children do not have that time
available to them. Termination is warranted in this case. We
affirm substantially for the reasons set forth in Judge Smith's
thorough written opinion of August 15, 1997.
Affirmed.
Footnote: 1A fifth child, A.R.G., was originally named in the complaint
but was subsequently removed from the case and consideration by the
court.
Footnote: 2The caseworker indicated that she successfully located
defendant once in 1995 after reading in the newspaper that
defendant had been arrested at a certain address.
Footnote: 3The four elements required by N.J.S.A. 30:4C-15.1a are:
(1) The child's health and development have
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 foster parents will cause
serious and enduring emotional or
psychological harm to the child;
(3) The division has made diligent 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.