New Jersey Div. of Child Prot. & Permanency v. D.C.A.

256 N.J. 4

304 A.3d 660

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. D.C.A., Defendant-Appellant, and J.J.C.B., Defendant.

In the Matter of the Guardianship of I.A.C.C., J.S.C.C., A.I.C.C. and I.C.C., Minors-Respondents.

A-44 September Term 2022

087604

Supreme Court of New Jersey.

Argued September 12, 2023

Decided November 16, 2023

John A. Albright, Assistant Deputy Public Defender, argued the cause for appellant D.C.A. (Joseph E. Krakora, Public Defender, Office of Parental Representation, attorney; John A. Albright, of counsel and on the briefs).

Eleanor M. Armstrong, Newark, Assistant Attorney General, argued the cause for respondent New Jersey Division of Child Protection and Permanency ( Matthew J. Platkin, Attorney General, attorney; Melissa H. Raksa, Trenton, and Sara M. Gregory, Trenton, Assistant Attorneys General, of counsel, and Eleanor M. Armstrong and Mary L. Harpster, Deputy Attorney General, on the briefs).

Neha Gogate, Assistant Deputy Public Defender, argued the cause for minors I.A.C.C., J.S.C.C., A.I.C.C., and I.C.C. (Joseph E. Krakora, Public Defender, Office of the Law Guardian, attorney; Meredith Alexis Pollock, Deputy Public Defender, of counsel, and Neha Gogate, of counsel and on the briefs).

Mary M. McManus-Smith argued the cause for amicus curiae Legal Services of New Jersey (Legal Services of New Jersey, attorneys; Mary M. McManus-Smith, Dawn K. Miller, Sylvia L. Thomas, Chiori Kaneko, Anne Gowen, Highland Park, and Jonnelle Casey, on the brief).

Randi Mandelbaum argued the cause for amici curiae Rutgers Child Advocacy Clinic and the Advocates for Children of New Jersey (Rutgers Law School Child Advocacy Clinic and Advocates for Children of New Jersey, attorneys; Randi Mandelbaum and Mary E. Coogan, on the brief).

JUSTICE PATTERSON delivered the opinion of the Court.

The Legislature has long mandated that in order for a Family Part judge to terminate parental rights, the New Jersey Division of Child Protection and Permanency (Division) must prove by clear and convincing evidence all four prongs of the "best interests" test set forth in N.J.S.A. 30:4C-15.1(a). Two prongs of that standard are central to this appeal. The second prong requires a court to decide whether "[t]he 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." N.J.S.A. 30:4C-15.1(a)(2). Under the fourth prong, a court determines whether "[t]ermination of parental rights will not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4).

From 1995 until 2021, the second prong of the standard provided that "[s]uch 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." N.J.S.A. 30:4C-15.1(a)(2) (1995). In a July 2, 2021 amendment to N.J.S.A. 30:4C-15.1(a)(2) (the 2021 Amendment), the Legislature eliminated that language from the statutory standard. L. 2021, c. 154. The Legislature made no change to the fourth prong of the statute, N.J.S.A. 30:4C-15.1(a)(4). See ibid.

In this appeal, we review the Appellate Division's decision affirming the trial court's termination of a mother's parental rights to four of her children. The trial court and the Appellate Division held that notwithstanding the Legislature's amendment of the second prong, a court may rely on evidence of harm that the child will suffer if separated from the resource family when it determines whether the Division has proven the fourth prong. DCPP v. D.C.A., 474 N.J. Super. 11, 24-30, 284 A.3d 1161 (App. Div. 2022). The trial court found that the Division met its burden to prove all four prongs of the statute by clear and convincing evidence, and the Appellate Division affirmed that determination.

Based on the plain language of the 2021 Amendment, we concur with the trial court and Appellate Division that the Legislature did not intend to bar trial courts from considering evidence of the child's relationship with the resource family when they address the fourth prong of N.J.S.A. 30:4C-15.1(a). We agree with the Appellate Division that the trial court properly considered the relationships between the children and their resource families when it considered the fourth prong of the best interests test, N.J.S.A. 30:4C-15.1(a)(4), and that its determination as to all four prongs of that test was grounded in substantial and credible evidence in the record.

Accordingly, we affirm the Appellate Division's judgment.

I.

A.

Defendants D.C.A. (Divina) and J.J.C.B. (Javier) are the parents of I.A.C.C. (Ignacio), born in 2015; J.S.C.C. (Josefina), born in 2016; A.I.C.C. (Antonia), born in 2019; and I.C.C. (Ian), born in 2020. ¹ A fifth child, S.C.C., born in 2021, is the subject of a separate guardianship proceeding and is not involved in this appeal.

As the record before the trial court reflects, the Division presented extensive evidence of domestic violence involving Divina and Javier between 2015 and 2018, when they lived in New York, and additional incidents following their move to New Jersey in 2018. The Division became involved with the family on July 5, 2018, when Divina complained to police that Javier was harassing her, resulting in Javier's arrest. Divina told the Division that Javier had physically and sexually abused her on multiple occasions, but she declined to cooperate with the Division's efforts to ensure her family's safety and refused to provide the Division with information about her children.

The Division conducted an emergency removal of Ignacio and Josefina. On July 9, 2018, citing concerns about continuing domestic violence, Divina's inability to provide a safe environment for the children, and Divina's mental health, the trial court granted the Division care, custody, and supervision of Ignacio and Josefina. The children were placed in a resource family home. ²

The Division offered a range of services to Divina, referring her for psychiatric evaluations, psychological counseling, domestic violence counseling, parenting classes, and supervised visitation. ³ The Division also provided services to Javier. According to the trial testimony of Division caseworkers, the Division's initial goal was the reunification of the family. It explored potential placements with relatives of Divina or Javier, including the children's maternal grandparents and Javier's adult children. The adult children were rejected because of Divina's dislike of them and incidents in their prior histories. The Division presented evidence at trial that despite its efforts, it was unable to identify any family member as a potential caregiver for the children.

Shortly after Antonia's birth, the Division conducted an emergency removal of the child. By order to show cause entered on April 16, 2019, the trial court granted to the Division care, custody, and supervision of Antonia. She was placed in a different resource home from the home in which Ignacio and Josefina had been placed.

In the months that followed Antonia's removal from Divina's and Javier's custody, the Division continued to offer services to the parents, and they participated in supervised visitation with all three children. However, the pattern of domestic violence continued. In July 2019, police were called to the family home four times in response to allegations of domestic violence by either Divina or Javier.

On September 25, 2019, citing the parents’ failure to "make sufficient progress" and their mental health issues, the trial court entered a permanency order changing the permanency plan for Ignacio, Josefina, and Antonia from reunification to termination of parental rights followed by adoption. The Division filed an order to show cause and complaint for guardianship on November 6, 2019, seeking to terminate the parental rights of Divina and Javier to Ignacio, Josefina, and Antonia. In February 2020, the Division transferred Ignacio and Josefina to a different resource family.

Immediately following the birth of Ian the same month, the Division conducted an emergency removal of the child. By Notice of Emergency Removal dated February 8, 2020, the trial court granted care, custody, and supervision of Ian to the Division. The Division initially placed Ian in the resource home where Ignacio and Josefina had been placed, but the trial court later reassigned him to a different resource home. On October 20, 2021, the trial court entered an order establishing termination of parental rights followed by adoption as a permanency plan for Ian.

According to the testimony of the Division caseworker who had primary responsibility for the family until a few weeks before trial, the Division determined that the second resource parents with whom Ignacio and Josefina were placed were not interested in adopting the children. The Division therefore sought a selected adoptive home for the two children. ⁴ As of the time of trial, the Division had identified a prospective adoptive family and the children were visiting the family's home on weekends in anticipation of a potential adoption. Prior to trial, the Division advised the trial court that it anticipated that Antonia's resource parents would adopt her and that Ian's resource parents would adopt him in the event that the court were to terminate the parental rights of Divina and Javier.

B.

1.

The Division's guardianship action was tried before a Family Part judge over five days beginning on June 23, 2021, and concluding on September 22, 2021. ⁵ The Law Guardian, representing the four children, supported the termination of the parental rights of Divina and Javier.

The Division presented the testimony of its expert psychologist, Alan J. Lee, Psy.D. Dr. Lee testified that his provisional diagnosis of Divina was "unspecified schizophrenia spectrum and other psychotic disorder," ...