N.J. Div. of Child Prot. & Permanency v. S.H.

• Decision Date: 28 March 2023
• Docket Number: A-1666-21,A-1997-21
• Parties: NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. S.H.,[1] Defendant-Respondent, and N.F., Defendant. IN THE MATTER OF THE GUARDIANSHIP OF A.F., minor, Appellant. NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Appellant/ Cross-Respondent, v. S.H., Defendant-Respondent and N.F., Defendant, IN THE MATTER OF THE GUARDIANSHIP OF A.F., minor, Cross-Appellant.
• Court: New Jersey Superior Court — Appellate Division

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NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. S.H.,^[1] Defendant-Respondent, and N.F., Defendant. IN THE MATTER OF THE GUARDIANSHIP OF A.F., minor, Appellant. NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Appellant/ Cross-Respondent, v. S.H., Defendant-Respondent and N.F., Defendant, IN THE MATTER OF THE GUARDIANSHIP OF A.F., minor, Cross-Appellant.

Nos. A-1666-21, A-1997-21

Superior Court of New Jersey, Appellate Division

March 28, 2023

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

Argued February 1, 2023

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No FG-20-0022-21.

Julie Goldstein, Assistant Deputy Public Defender, argued the cause for minor-appellant/cross-appellant A.F. (Joseph E. Krakora Public Defender, Law Guardian, attorney; Meredith Alexis Pollock, Deputy Public Defender, of counsel; Julie Goldstein of counsel and on the briefs).

Mary L. Harpster, Deputy Attorney General, argued the cause for appellant/cross-respondent New Jersey Division of Child Protection and Permanency in A-1997-21 (Matthew J. Platkin, Attorney General, attorney; Sookie Bae-Park, Assistant Attorney General, of counsel; Salima E. Burke, Deputy Attorney General, and Mary L. Harpster, on the briefs).

Mary L. Harpster, Deputy Attorney General, argued the cause for respondent New Jersey Division of Child Protection and Permanency in A-1666-21 (Matthew J. Platkin, Attorney General, attorney; Sookie Bae-Park, Assistant Attorney General, of counsel; Mary L. Harpster, on the brief).

Adrienne Kalosieh, Assistant Deputy Public Defender, argued the cause for respondent S.H. (Joseph E. Krakora, Public Defender, attorney; Adrienne Kalosieh, on the brief).

Before Judges Gooden Brown and DeAlmeida.

PER CURIAM

In these consolidated appeals, the Law Guardian, on behalf of its client A.F., and the Division of Child Protection and Permanency (Division) each appeal from a January 20, 2022 order denying termination of parental rights of A.F.'s mother, defendant S.H., and dismissing the Division's guardianship complaint. For the reasons that follow, we reverse and remand for reconsideration of the evidence adduced at the guardianship trial.

I.

On April 15, 2021, the Division filed a verified complaint seeking to terminate defendant's parental rights and obtain guardianship of A.F. for the purpose of adoption. We will not recite in detail the circumstances that led to the filing of the guardianship complaint, which began with the emergency removal of A.F. on December 18, 2019. The removal was prompted by defendant's unremitted substance abuse during her pregnancy, which resulted in A.F. suffering from withdrawal symptoms and testing positive for cocaine and opiates at birth several days prior. Upon A.F.'s discharge from the hospital, she was placed with her paternal grandparents, who have cared for her since her removal and are committed to adoption.

Both defendant and A.F.'s father, N.F., subsequently entered stipulations admitting to child neglect resulting from their drug use, and the Division was granted custody of A.F pursuant to N.J.S.A. 9:6-8.29 and N.J.S.A. 30:4C-12. N.F. later executed a voluntary surrender of parental rights, surrendering his parental rights to his parents. As a result, N.F. was dismissed from the litigation and is not participating in this appeal. During the ensuing litigation spanning over two years, defendant has been plagued with unrelenting substance abuse issues and untreated mental illness. Critically, defendant failed to maintain sobriety for any extended period of time and repeatedly tested positive for illicit drug use despite the Division's efforts in affording her substance abuse and mental health treatment.

The four-day guardianship trial commenced on September 21 and concluded on November 12, 2021. At the trial, in addition to the introduction of numerous documentary exhibits, the Division presented three witnesses: Division supervisor, Fabiola Ricaldi; Division adoption caseworker, Allison James-Frison; and Dr. Alison Strasser Winston, the Division's psychological expert. Defendant produced one witness: A.F.'s paternal grandmother and resource parent, A.R.F. The Law Guardian presented no witnesses but supported termination.

At trial, Ricaldi testified about the Division's extensive involvement with defendant, detailing the services provided to reunify the family and help defendant correct the circumstances that led to A.F.'s removal. According to Ricaldi, defendant advised that she had a lengthy "history of using cocaine and heroin," and "had a diagnosis of bipolar [disorder]" for which she had been "prescribed . . . psychotropic medication." However, defendant explained that she "had weaned herself off of the medication."

As a result, the Division provided defendant with substance abuse evaluations and treatment, drug screens, psychological and psychiatric evaluations and counseling, parenting skills training, supervised visitation, and transportation services. However, defendant never successfully completed any of the substance abuse treatment programs and consistently tested positive for illicit drugs. She also failed to attend any psychiatric evaluations and did not complete the psychological evaluation. Further, defendant never completed the parenting classes and was "inconsistent with visitation." Ricaldi testified that despite bouts of regular attendance, generally, defendant would either "not show up" for visitation, "arrive late or leave early." In addition, the Division routinely had difficulty contacting and communicating with defendant, either in-person, telephonically, or electronically. Although defendant experienced periods of unstable housing, she normally resided with her mother and step-father.

Notwithstanding defendant's initial preference for A.F. to be placed with the paternal grandparents, who spoke mostly Portuguese, Ricaldi testified that the Division also "assessed a paternal uncle, the maternal grandmother, and . . . a maternal great aunt" for A.F.'s placement. However, all three were ruled out or declined to be considered as a placement option. Ricaldi also recounted her observations of A.F.'s interaction with the paternal grandparents, describing the grandparents as "very loving towards [A.F.]," "very careful with her," and "very nurturing." Ricaldi testified that the grandparents had also "continually allowed" defendant and her mother to visit A.F. "in their home."

James-Frison, the custodian of the Division's records, testified about the Division's permanency plan for A.F. According to James-Frison, after defendant failed to correct the circumstances that led to A.F.'s removal, "[t]he plan [was] for termination of parental rights and adoption [by] the paternal grandparents." She explained that the plan was predicated on defendant's inability to "provide a safe and stable home for [A.F.]," defendant's "unresolved mental and substance abuse issues," and the fact that A.F. was "happy and healthy in the home of the paternal grandparents." James-Frison testified that defendant had acknowledged her inability to raise A.F. and had previously expressed a willingness to surrender her parental rights to the paternal grandparents, provided they agreed to never "take [A.F.] out of the country." However, as the relationship between defendant and the paternal grandparents deteriorated, defendant's plan changed.

In January 2021, a Division concurrent planner, accompanied by a Portuguese interpreter, met with the paternal grandparents to discuss the differences between kinship legal guardianship (KLG) and adoption. James- Frison testified that the role of a concurrent planner was to speak with resource parents to ensure that they understood the differences between KLG and adoption. At the conclusion of the conversation, the paternal grandmother stated that she wanted to adopt A.F. Subsequently, following an August 31, 2021 court hearing, the court ordered the Division to review the new legislation regarding KLG with the paternal grandparents. James-Frison testified that she complied with the court order and discussed the new legislation with the paternal grandmother, who "was adamant about doing the adoption." However, no Portuguese interpreter was present.

During her testimony, A.R.F. confirmed that she and her husband had spoken with Division representatives "[s]everal times" about the difference between adoption and KLG.^[2] She stated that a Portuguese interpreter was "[s]ometimes" present during the discussions. A.R.F. reiterated that she "want[ed] to adopt" A.F. so that she could "love" her and keep her "safe[]." She stated that defendant "can always . . . visit [A.F.] whenever she wants "and she would "teach [A.F.] who her parents [were]." A.R.F. explained that she wanted to adopt A.F. because under KLG, "in a few years, [the parents could] come to [c]ourt and take [A.F.] away from [her]. "She understood that if she adopted A.F., she would be "her mother" and would be responsible for raising A.F. "with love and tenderness." Although A.R.F. understood that with either adoption or KLG, she would have the right to make major decisions for A.F., she was adamant that the parental rights of defendant and her son should be terminated so that she could adopt A.F. and "have full custody of [her]," including inheritance rights.

Dr Strasser Winston, the Division's expert, testified about the psychological evaluation she conducted of defendant and the comparative bonding evaluations sh...