New Jersey Division of Youth and Family Services v. H.R., A-2002-11T2; Appellate Division; opinion by Ashrafi, J.A.D.; decided and approved for publication June 10, 2013. Before Judges Ashrafi, Espinosa and Guadagno. On appeal from the Chancery Division, Family Part, Morris County, FG-14-70-11. DDS No. 20-2-0237 [25 pp.]

In these consolidated appeals, defendants H.R. (the mother) and N.B. (the father) appeal from the judgment of the Family Part terminating their parental rights to their daughter E.B., now 6 years old. E.B. was removed from their custody when she was 3 because they are drug addicts who endangered her safety and did not provide a stable home for her. She has been in the care of her maternal aunt, who wishes to adopt her, since May 2010.

A few months before the guardianship trial, N.B. began to show some signs of improvement and a legitimate interest in establishing a healthier parental relationship. The mother never improved and has given no indication that she would.

Held: The Family Part had sufficient evidence to support its finding that the best interests of the child require termination of defendants’ parental rights so that she can be adopted as to most of the requirements of N.J.S.A. 30:4-15.1(a). However, because DYFS gave legally incorrect information to the prospective adoptive mother about the potential option of kinship legal guardianship instead of adoption, the Family Court must correct the error and determine if the caretaker parents still wish to adopt the child rather than agree to kinship legal guardianship.

N.J.S.A. 30:4C-15.1(a) provides that parental rights may be terminated when (1) the child’s safety, health or development has 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 to provide for a safe and stable home, and the delay of permanent placement will add to the harm; (3) DYFS has made reasonable efforts to help the parent; and (4) termination of parental rights will not do more harm than good. DYFS must prove all four criteria by clear and convincing evidence.

The panel says the first criterion addresses the risk of future harm to the child as well as past physical and psychological harm. Here, harm and risk of harm were proved because the parents’ drug use resulted in their failure to provide a stable home, with appropriate nurture and care of E.B., and because they had a history of criminal arrests and incarcerations that created a serious risk of emotional long-term harm to her.

As to the second criterion, H.R. has demonstrated an unwillingness and inability to be a parent to E.B. N.B.’s self-proclaimed sobriety was a recent and inadequately proven transformation. Thus, the court concluded appropriately that neither parent had shown the ability or willingness to eliminate the risk of harm to E.B.

The panel says the crux of the fourth criterion is the child’s need for a permanent and stable home and a defined parent-child relationship. When, as here, a bond exists between the child and the caretaker parent, and the biological parents cannot correct their poor conduct, the termination of parental rights will not do more harm than good.

The panel says that in the end, E.B.’s need for a permanent placement takes precedence over N.B.’s struggle with sobriety. He has been given enough time to show a likelihood of overcoming his addiction and is not entitled to additional time. The panel also rejects H.R.’s claim that she should have been given more time to re-engage in therapy and to achieve reunification with her child.

As to the third criterion, the panel says DYFS acted reasonably in providing services to defendants and it rejects defendants’ claim that the family court failed to examine kinship legal guardianship as an alternative to termination of their parental rights. However, it says the court’s review was based on inaccurate advice given to the child’s aunt since a DYFS caseworker told the aunt that kinship legal guardianship was not available for a child less than 12 years old. The Kinship Legal Guardianship Act, N.J.S.A. 3B:12A-1 to -7, has no such restriction and courts have accepted kinship legal guardianship arrangements with children under 12.

The panel explains that kinship legal guardianship permits a caretaker to become the legal guardian of a child until the age of majority without the biological parent permanently losing parental rights. It may be suited to circumstances where the biological parent may yet become fit to care for the child and the caretaking parent is willing to abide that time while taking full responsibility for care of the child. However, the caretaking parent must be made aware that the statute does not provide permanency and protection against future court proceedings in the same way as adoption.

Kinship legal guardianship is only a viable option when adoption is not feasible or likely. Here, the aunt testified that she and her husband want to adopt E.B. However, it is apparent from her testimony that she lacked an adequate and accurate understanding of a potential alternative to termination of the parental rights of persons that she considers to be part of her family and intends to allow to participate in the child’s life if drug-free.

She was entitled to know that kinship legal guardianship is not limited to children 12 years or older and to consider whether that option suited better her long-term wishes for E.B. and the rest of her family.

The caseworker’s misinformation should have been explicitly corrected, and the aunt should have been given a reasonable time to consider kinship legal guardianship with accurate advice. Although kinship legal guardianship cannot be used as a defense to the proper termination of parental rights, it should not be excluded as an alternative by means of faulty information.

Therefore, the panel remands for the Family Part to establish on the record that the aunt and her husband have received correct information, that the differences between kinship legal guardianship and adoption have been explained to them, and that they have indicated their preference for one or the other as in the best interest of E.B.

For appellants: H.R. — Joseph E. Krakora, Public Defender (Richard Sparaco, designated counsel, on the brief); N.B. — Joseph E. Krakora, Public Defender (Thomas Hand, designated counsel, on the brief). For respondent — Jeffrey S. Chiesa, Attorney General (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Elizabeth S. Sherwood, Deputy Attorney General, on the brief). For minor E.B. — Joseph E. Krakora, Public Defender, Law Guardian (Katherine J. Bierwas, designated counsel, on the brief).