NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. W.A IN THE MATTER OF THE GUARDIANSHIP OF D.J.S A Minor

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3902-07T43902-07T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

W.A.,

Defendant-Appellant.

_________________________________

IN THE MATTER OF THE

GUARDIANSHIP OF D.J.S.,

A Minor.

_________________________________

 

Submitted January 22, 2009 - Decided:

Before Judges Stern, Waugh and Newman.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-257-06.

Yvonne Smith Segars, Public Defender, attorney for appellant (Durrell Wachtler Ciccia, Designated Counsel, on the briefs).

Anne Milgram, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Emily Weisslitz, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian for minor (Patricia Dulinski, Designated Counsel, on the brief).

PER CURIAM

Defendant W.A. appeals the judgment of the Family Part terminating her parental rights with respect to her son, D.J.S. We affirm.

I

The Division of Youth and Family Services (DYFS) initially became involved with W.A. in January 1993. DYFS was contacted when W.A.'s then five-year old son, D.A., was found alone and crying in her home. DYFS was contacted again in December 1993 when D.A. was found alone in the courtyard of a building wearing only a t-shirt and pants. In both instances, the allegations of abuse and neglect were substantiated against W.A. DYFS provided services to the family and the case was closed in June 1994.

In April 1999, W.A. took D.A. to the hospital alleging that her brother had physically abused D.A. The allegations of abuse were substantiated against W.A.'s brother. DYFS provided services to the family and the case was closed in July 1999.

In February 2005, D.A. was brought to the emergency room by police. The police had picked D.A. up, but could not locate W.A. The maternal grandmother was contacted and she informed DYFS that she had been taking care of W.A.'s second child, R.M., and that she was not sure where W.A. was living.

Shortly thereafter, DYFS was again contacted concerning W.A. It was alleged that W.A., who was five months pregnant, was using cocaine and not receiving any prenatal care. The referent also alleged that W.A. was not sending R.M. to school regularly. DYFS subsequently made contact with W.A., who agreed to a case plan which included her receiving drug abuse treatment, random drug screenings, and assistance in locating stable housing. It was determined that R.M. would live with her maternal grandmother and D.A. would live with an uncle.

DYFS scheduled three substance abuse evaluations for W.A. during March and April 2005. However, W.A. either cancelled or did not show up for these appointments.

On April 25, 2005, D.J.S. was born prematurely to W.A. D.J.S. tested positive for cocaine and for exposure to HIV from his mother. It was subsequently determined that D.J.S. was "medically fragile" and required placement in a "skilled home with a caretaker who is knowledgeable about the care of [a] premature, drug exposed and HIV exposed infant."

On April 27, 2005, DYFS informed W.A. that they would be filing for custody of both R.M. and D.J.S. A notice of emergency removal was filed the following day. DYFS filed a guardianship complaint on May 2, 2005. Following a hearing on the same day, the court granted DYFS custody of both R.M. and D.J.S.

D.J.S. was released from the hospital on May 27, 2005, and placed in foster care. He has resided in the same foster home since his release from the hospital.

At a hearing on June 3, 2005, both W.A. and D.J.S.'s father, J.S., were present. Both parents were drug tested. J.S.'s test came back negative while W.A. tested positive for cocaine. The court continued DYFS's custody of both R.M. and D.J.S. and granted both parents supervised visits with their children.

After the hearing, a DYFS caseworker visited D.J.S. at his foster home. The worker noted that D.J.S was doing well and the foster mother reported no issues or concerns.

W.A. attended a substance abuse assessment on June 7, 2005. During her assessment, W.A. admitted to using cocaine and drinking alcohol every day. W.A. also told the assessor that she had two life-threatening illnesses. The assessor concluded that W.A. would benefit from both drug abuse treatment as well as mental health treatment. Concerns about W.A.'s ability to find stable employment and housing were also noted.

On August 9, 2005, a psychological evaluation of W.A. was conducted by Dr. Mark H. Seglin. He suspected that W.A. "was under the influence during the assessment" and found her to be "irritable, uncooperative, and demanding." He described W.A.'s personality as "paranoid and antisocial." In conclusion, Seglin found:

[W.A.'s] psychological evaluation appears to reinforce the impressions of the Substance Abuse assessment . . . which found her to be both alcohol and drug addicted, with no history of sustained clean time. However, unlike with the substance abuse evaluation, the client was only minimally cooperative. Further, since the time of her substance abuse evaluation, she has done nothing to address her addictions - preferring to construe that as [DYFS's] responsibility.

She exhibited few characteristics that would recommend her as a parent in this evaluation. On the contrary her indifference to the destruction her drug abuse and overall lifestyle has visited on her family and significant others in her life, borders on depravity in this examiner's professional opinion. Indeed it appears from the testimony of [J.S.], her most recent child's father, which she knowingly engaged in unprotected sex without informing him of her [HIV-positive] condition. Further, once she had conceived a child with him, she continued with the pregnancy with no prenatal care. These are criminal offenses, and this examiner saw nothing about her that would inhibit her repeating future endangerment of the public if that were seen to be instrumental to perpetuating her life style. If these are indeed the facts, then it seems to me that it is a greater priority to deliberate on what legal protections the public can be afforded from this very dangerous woman, before considering restoring her to any parental functions whatsoever.

At a compliance review on August 11, 2005, the court continued DYFS's custody of both R.M. and D.J.S. W.A., who admitted that she would test positive for cocaine during the hearing, was ordered to attend inpatient substance abuse treatment. Weekly-supervised visitations were continued between W.A. and the two children.

W.A. failed to attend a second substance abuse assessment that was scheduled for November 14, 2005. The assessment was rescheduled for December 5, 2005, which W.A. again did not attend.

On December 1, 2005, the maternal grandmother informed DYFS that she was willing to adopt R.M. Also on that day, D.J.S.'s foster mother expressed concerns about taking the baby to the scheduled visits with W.A. because she was developing a pattern of not attending the visits. She also informed the caseworker that she had taken D.J.S. to J.S.'s home so that he and W.A. could visit with the child. She reported that the visit had not gone well and the caseworker instructed her that there were not to be any unsupervised visits between D.J.S. and his biological parents.

On January 11, 2006, D.J.S.'s foster mother expressed her interest in adopting D.J.S.

W.A. attended a second substance abuse assessment on January 20, 2006. The results of the assessment mirrored those of the initial assessment in June 2005. The assessor found W.A. to have both a cocaine and alcohol dependency and to have failed to follow through with the recommended treatment plans from the first assessment.

In March 2006, W.A. expressed her desire to DYFS to work on ending her addictions to illegal substances and alcohol. To effectuate this, DYFS transported W.A. to an intake appointment with the Straight and Narrow drug treatment program on April 1, 2006. W.A. failed to follow through with this program.

On April 7, 2006, W.A. was transported to the emergency room after slitting her wrists in an attempt to commit suicide.

On April 27, 2006, following a compliance review hearing, a permanency order was entered establishing kinship legal guardianship of R.M. with her maternal uncle serving as the primary caretaker and adoption of D.J.S by his foster mother as the appropriate plan for the children.

On June 23, 2006, DYFS filed a guardianship complaint seeking to terminate W.A. and J.S.'s parental rights to D.J.S. An order was entered by the trial court on August 11, 2006, setting the time and place for bonding evaluations between D.J.S. and his biological parents as well as D.J.S. and his foster mother.

W.A. began a drug treatment program with Project FIRST in September 2006. She also began a step-down program with Beth Israel Medical Center in November 2006.

Dr. Frank J. Dyer conducted a psychological evaluation of W.A. and bonding evaluations between W.A. and D.J.S. and between D.J.S. and his foster mother in late 2006. Dyer found W.A.'s "overall behavioral impression was that of a chronic drug addict with a prominent antisocial dimension to her personality as well as a vulnerability to Major Depressive Episodes." W.A. told Dyer she was financially able to support her drug addiction by taking her son's welfare checks, her daughter's social security checks, and by stealing from J.S.

In his written report, Dyer concluded:

[W.A.] is much too disorganized, unreliable, impulsive, and lacking in mature judgment to be able to provide the level of stability, nurturance, and physical protection characteristic of adequate parenting of a young child. The subject is in an extremely early phase of her process of recovery from drug abuse, having recently entered her first drug rehabilitation program ever, and claiming a period of sobriety of only a month before the present evaluation. She is at extremely high risk for relapse. The subject's chronic, severe medical problems complicate her psychological difficulties enormously.

Based on the above observations, it is my recommendation that DYFS not consider [W.A.] as a viable candidate for custody of [D.J.S.]

Dyer found that D.J.S. was "very clearly attached to his foster mother." He recommended that DYFS pursue foster-home adoption as a permanent placement option for D.J.S.

Project FIRST updated DYFS on W.A.'s involvement with the program on January 5, 2007. W.A. was reported "to be adjusting well to the program" and attending all scheduled meetings. Additionally, W.A. had not tested positive for illegal drugs since starting the program in September 2006. DYFS received a similar letter from the Beth Israel step-down program reporting W.A.'s regular attendance and negative drug tests.

Project FIRST sent a second letter to DYFS on May 31, 2007. This letter noted W.A.'s continued involvement with the program and also that all of her drug screening tests continued to be negative. A third letter was sent on September 10, 2007. Again, it reported that W.A.'s drug screening tests had all returned negative.

The New Jersey Community Research Initiative (NJCRI) sent the trial court a letter on September 9, 2007, discussing the advancements that W.A. had made in counseling sessions. W.A. had been attending counseling at NJCRI since August 14, 2007.

A case management order was entered by the trial court on September 12, 2007. The order established December 3, 2007, as the start date for the guardianship trial. New evaluations were requested for W.A. because of the progress she had been making in the drug treatment programs. The order also increased W.A.'s weekly visitation with her son from one hour to two.

On October 23, 2007, DYFS was informed by Project FIRST that W.A. had left the program following a confrontation with the staff regarding her failure to follow the rules of the program and deviating from the schedule.

W.A. did not appear at a hearing on November 14, 2007. The trial judge denied DYFS's request for a default judgment against W.A. and set December 4, 2007, as the start date for the guardianship trial. D.J.S.'s foster mother was at the hearing and expressed her continued desire to adopt D.J.S.

W.A. appeared at a subsequent hearing on November 28, 2007. An order entered the same day delayed the start of the guardianship trial until February 11, 2008, to allow for W.A. to be reevaluated by Dyer and for new bonding evaluations to be prepared.

Dyer issued his second report on January 16, 2008. He was unable to reevaluate W.A. because she failed to attend the scheduled appointment. Dyer did observe D.J.S. with his foster mother and found that D.J.S. was "profoundly attached to his foster mother" who was his "primary source of nurturance, affection, emotional security, and protection." Dyer again recommended that DYFS pursue foster home adoption for D.J.S.

On January 29, 2008, the trial court entered an order reflecting that J.S. had voluntarily surrendered his parental rights to D.J.S. so that he could be adopted by his foster mother.

The guardianship trial commenced on February 11, 2008. At the start of trial, W.A.'s counsel informed the court that W.A. had been present earlier in the day, but had subsequently left the courthouse. The trial judge noted on the record that W.A. had been notified of the trial date, the importance of being at the trial, that she had been present, and had then chosen to leave.

Shamequa Bryant, a caseworker, testified for DYFS. She stated that W.A. had not made any plans for D.J.S.'s care nor provided any viable family resource. She testified that D.J.S. was doing well in his foster home and that he was receiving the care necessary for an HIV-positive child. W.A.'s attorney did not cross-examine Bryant.

Dyer also testified on behalf of DYFS. He reiterated the statements that he had made in his initial assessment of W.A. and the bonding evaluation between W.A. and D.J.S. He stated that her prognosis was "extremely bleak" and that his opinion would not be changed even if she had been in a drug treatment program for a year. Dyer testified that D.J.S. would suffer no harm if W.A.'s parental rights were terminated, but that he would "suffer a traumatic loss" if removed from his foster mother. W.A.'s attorney again did not cross-examine DYFS's witness.

Because no other witnesses were called, the court requested closing statements. In his closing argument, W.A.'s attorney stressed the changes he had seen in his client during the two and a half years since he had met her. He pointed out that, while she had left her drug treatment program before completing it, she had been with the program for almost a year and that she had been very consistent in her attendance at court hearings and in visiting D.J.S. Both the law guardian and DYFS argued for the termination of W.A.'s parental rights, both pointing to her long history of drug abuse and failure to take steps to end her addictions.

The trial reconvened on February 13, 2008, at which time W.A. was present in court. Her attorney informed the trial judge that she had left the court on the first day of the trial because she had panicked. The judge offered W.A. an opportunity to make a motion to provide additional evidence or to testify herself. W.A. declined to do either.

The trial judge then rendered his decision, reviewing each of the four prongs of N.J.S.A. 30:4C-15.1(a) separately. For the first prong, the court found that there was clear and convincing evidence of harm to D.J.S. because he was born addicted to cocaine resulting from W.A.'s drug use during the pregnancy.

With respect to the second prong, the court reviewed the facts of the case and the testimony of Bryant and Dyer. Following this review, the judge concluded:

Now what this case presents is what the Courts have to deal with and that is where you have a situation of a parent not being in a child's life because of drug addiction since the child was born and not doing anything for at least a year and five months. And showing for approximately a year progress in trying to remove the harm to the child and trying to get to a point of providing a safe and stable home for the child stops that progress and where there's no no completion at least for the last three or four months to try and get to a point where consideration of her to parent this child would be a factor. It's this Court's determination that there is clear and convincing evidence that the harm has not been eliminated and the ability of the parent to provide a secure and stable home for the child has not been met.

The judge also addressed the issue of whether the progress W.A. managed to make during the year she was in drug treatment could serve as a basis for delaying adoption by the foster parent. He concluded that it was not.

This Court's determination that [W.A.] was given more than adequate time to confront her addictions and problem including any psychological problems, alcohol problems. And at this point I agree with Dr. Dyer that if we waited longer the child would not be receiving the permanency and it would be traumatic with lasting affects if he was removed from his foster parent at this time. Also as I said there's - there's nothing in the record to for this Court to make a reasonable inference that [W.A.] is now or will be in the foreseeable future be able to parent [D.J.S.] So the second prong of the four factors is certainly met in that the delay of permanent placement will add to the harm of the child.

With respect to the third prong, the judge pointed to Bryant's uncontroverted testimony that neither W.A. nor J.S. were able to provide any viable relative resource to be considered for a kinship legal guardianship of D.J.S. He also noted the various services that were provided to W.A. and found the prong satisfied.

For the fourth prong, the court again focused on Dyer's expert testimony and his conclusion that "significant trauma and lasting psychological problems" would result from D.J.S. being removed from his foster mother and that it was unlikely any harm would result to the child if W.A.'s parental rights were terminated.

Based upon these findings, the trial court ordered the termination of W.A.'s parental rights. This appeal followed.

II

On appeal, W.A. raises the following issues:

I. The trial court erred in concluding that the best interests of the child will be served by terminating W.A.'s parental rights.

ii. the judgment of guardianship should be vacated and the matter remanded for a new trial as W.A.'s trial counsel was ineffective.

A

Parents possess a fundamental right to raise and maintain a relationship with their children that is protected by the United States and New Jersey Constitutions. New Jersey Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 102 (2008) (citing Stanley v. Illinois, 405 U.S. 645, 651-52, 92 S. Ct. 1208, 1212, 31 L. Ed. 2d 551, 558-59 (1972); In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999)). However, despite this fundamental right, the State has the obligation "to protect children from serious physical and psychological harm, even from their parents." Ibid. (citing K.H.O., supra, 161 N.J. at 347). When it becomes necessary, the State may even sever the relationship between the parent and child. Ibid. (citing New Jersey Div. of Youth and Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986)).

Our Supreme Court has stated that due to the "elemental nature of the parent-child relationship," and because the severing of the relationship is one of the "most 'severe and . . . irreversible' forms of state action," E.P., supra, 196 N.J. at 102 (quoting Santosky v. Kramer, 455 U.S. 745, 759, 102 S. Ct. 1388, 1398, 71 L. Ed. 2d 599, 610 (1992)), "all doubts must be resolved against termination of parental rights." K.H.O., supra, 161 N.J. at 347. In A.W., supra, the Supreme Court applied a "best interests of the child" standard for determining when parental rights are to be terminated, placing the burden on the State to show that such action is necessary. 103 N.J. at 604-12.

The standard established by the Supreme Court in A.W. was codified in N.J.S.A. 30:4C-15.1(a), which requires the showing of the following by clear and convincing evidence before a parent's rights are terminated:

(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 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 resource family parents would cause serious and enduring emotional or psychological harm to the child;

 
(3) The division has made reasonable 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.

"Those four factors are not 'discrete,' but rather 'relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests.'" E.P., supra, 196 N.J. at 103 (quoting K.H.O., supra, 161 N.J. at 348).

When reviewing the record in a termination of rights case, we will not disturb a trial judge's findings of fact when they are "supported by adequate, substantial and credible evidence." New Jersey Div. of Youth and Family Servs. v. G.L., 191 N.J. 596, 605 (2007). Further, because of the particularized expertise of family court judges in family matters, we accord enhanced deference to family court factfinding. Cesare v. Cesare, 154 N.J. 394, 413 (1998).

W.A. does not contest that DYFS proved the first prong of the best interest standard. See K.H.O., supra, 161 N.J. at 349 ("[A] child born addicted to drugs and suffering from the symptoms of drug withdrawal as a result of [the] mother's substance abuse during pregnancy has been harmed by the mother and that harm . . . . satisfies the first prong of the best interests standard.").

We turn to the second prong of N.J.S.A. 30:4C-15.1(a), which focuses on parental unfitness. K.H.O., supra, 161 N.J. at 352. When a court is considering this prong, it "should only determine whether it is reasonably foreseeable that the parents can cease to inflict harm upon the children entrusted to their care." A.W., supra, 103 N.J. at 607. Parental unfitness can be demonstrated by the failure of the parent to provide a stable home and by delaying the permanent placement of the child. K.H.O., supra, 161 N.J. at 353. Additionally,

the second prong may be met by indications of parental dereliction and irresponsibility, such as the parent's continued or recurrent drug abuse, the inability to provide a stable and protective home, the withholding of parental attention and care, and the diversion of family resources in order to support a drug habit, with the resultant neglect and lack of nurture for the child.

[Id. at 352.]

W.A. suffers from a long-term history of drug addiction. She has had periods of homelessness and no stable employment. To support her drug addiction, W.A. has admitted to using child support money for her oldest son, as well as the social security death benefits intended for her daughter. After months of failing to follow through on drug treatment opportunities supplied by DYFS, W.A. finally entered a drug treatment program and showed some signs of progress. However, she left the program before completing it, failed to attend the scheduled reevaluation with Dyer, and then did not testify at trial as to her reasons for doing so. These facts alone are sufficient to support a finding that the second prong of the best interest standard has been met.

Additional evidence showing W.A.'s inability or unwillingness to remove the harm to D.J.S. was gathered at trial. At the time of the termination trial, W.A. had not acquired adequate housing or employment in order to provide a stable environment for D.J.S. Additionally, Dyer testified at trial that:

My overall conclusion about [W.A.] was that the severity . . . of her psychological problems and drug addiction really ruled out any realistic possibility of her achieving adequate parenting capacity. And usually when I evaluate the client in a termination action like this, the client has some positive features going for them, they're cooperating at least superficially with drug rehabilitation or they've found a job, or they've resolved some mental health crisis. But in [W.A.'s] case all of these areas of her life were still at pathological. So the prognosis is unfortunately extremely bleak for [W.A.].

Q. Now Doctor you did not have a chance to re-evaluate [W.A.]; did you?

A. I did not, I had tried unsuccessfully to schedule a reevaluation of [W.A.], but she either failed to come or refused to come.

Q. And Doctor if you were told, hypothetically that [W.A.] attended drug treatment for approximately one year and did not complete would that have any significance or change your opinion in any way what you rendered in December of '06?

A. No, that's entirely consistent with the conclusion that I expressed in December of '06.

D.J.S.'s HIV-positive status requires that he receive medication everyday. There exist significant questions as to W.A.'s ability to maintain D.J.S.'s medical regimen, particularly in light of Dyer's psychological assessment that W.A. lacked the realistic possibility of being able to achieve adequate parenting capacity. Under the present facts, it was not "reasonably foreseeable" that W.A. would be able to "cease [] inflict[ing] harm upon the children entrusted to [her] care." A.W., supra, 103 N.J. at 607.

For these reasons, we find that the trial court correctly determined that DYFS presented clear and convincing evidence satisfying the second prong of N.J.S.A. 30:4C-15.1(a).

Under the third prong of the best interest standard, DYFS is required to make reasonable efforts to provide the parent with services to correct the problems that led to the removal of the children from their care. What is reasonable in a situation needs to be determined on an individualized basis.

DYFS must encourage, foster and maintain the bond between parent and child as a basis for the reunification of the family. DYFS must promote and assist in visitation and must keep the parent informed of the child's progress in foster care. DYFS should also inform the parent of the necessary or appropriate measures he or she should pursue in order to continue and strengthen that relationship and, eventually become an effective caretaker and regain custody of his or her children.

[In re Guardianship of D.M.H., 161 N.J. 365, 390 (1999).]

It is the public and judicial policy of the State to do all that is practicable to maintain the biological family unit. A.W., supra, 103 N.J. at 608.

In the present matter, DYFS has provided W.A. and her family with considerable services aimed at reunification. Prior to D.J.S.'s birth, DYFS set appointments for three drug assessments for W.A.; she failed to attend any of them. DYFS also sent out letters to several groups in an effort to assist W.A. in obtaining housing for herself and her children.

Although W.A. finally attended a drug assessment arranged by DYFS after D.J.S.'s birth, she failed to carryout any of the recommendations from the assessment. DYFS arranged for four other follow-up assessments, but W.A. failed to attend at least three of them.

DYFS arranged for W.A. to have visitation with her son, the first few being supervised by DYFS itself. The visitations continued through the pendency of the litigation.

DYFS also arranged transportation for W.A. to attend intake appointments for drug treatment programs. W.A. was able to enroll with Project FIRST for drug treatment with the assistance of DYFS. However, as previously noted, she did not complete the program.

N.J.S.A. 30:4C-15.1(a)(3) also requires that the court have considered alternatives to the termination of parental rights. One common alternative would be the placement of the children with family members. Neither parent provided any viable family resources for a kinship legal guardianship of D.J.S., as was done with R.M. Without any potential family resources and the unlikelihood that D.J.S. could be returned to W.A. at any point in the reasonable future, we are satisfied that the trial court adequately considered alternatives to termination.

Consequently, we find that the trial court correctly determined that DYFS presented clear and convincing evidence meeting the third prong of N.J.S.A. 30:4C-15.1(a).

The final prong of the best interest standard in N.J.S.A. 30:4C-15.1(a) requires the determination of whether the termination of the parental rights will do more harm than good to the child at issue. The Supreme Court stated: "Given the need for continuity, the child's sense of time, and the limits of our ability to make long term predictions, [the best interests of the child] are more realistically expressed as the least harmful or least detrimental alternative." A.W., supra, 103 N.J. at 616 (citation omitted).

In cases where the child has been placed in foster care, the necessary inquiry is "whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with [the] natural parents than from the permanent disruption of [the] relationship with [the] foster parents." K.H.O., supra, 161 N.J. at 337. This inquiry requires expert opinion testifying to the strength of the relationship between the child and their biological and foster parents. Ibid.

Dyer's uncontroverted testimony was that D.J.S. had formed no significant bond with W.A. He concluded that termination of W.A.'s parental rights would cause no harm to D.J.S. On the contrary, Dyer determined that D.J.S. had formed a very strong bond with his foster mother. He testified that removing him from her care would cause D.J.S significant emotional and psychological harm.

Consequently, we conclude that the trial court correctly found that DYFS presented clear and convincing evidence that the "[t]ermination of parental rights will not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4).

B

We turn now to W.A.'s contention that she was deprived of the effective assistance of counsel. Because "the termination of parental rights implicates a fundamental liberty interest," the Supreme Court has held that "Article I, paragraph 1 of the New Jersey Constitution serves as a bulwark against the loss of parental rights without counsel being offered." New Jersey Div. of Youth and Family Servs. v. B.R., 192 N.J. 301, 305 (2007) (citations omitted). When the State seeks to terminate parental rights, the court must give the parent notice of the right to retain counsel and must provide counsel through the Public Defender if the parent is indigent. N.J.S.A. 30:4C-15.4(a). "[T]he performance of that counsel must be effective." B.R., supra, 192 N.J. at 306.

In B.R., the Supreme Court adopted for the use in termination cases the two-part Strickland test for determining whether counsel was ineffective. B.R., supra, 192 N.J. at 308-09. To establish an ineffective assistance of counsel claim under Strickland:

counsel's performance must be objectively deficient i.e., it must fall outside the broad range of professionally acceptable performance; and (2) counsel's deficient performance must prejudice the [client] i.e., there must be "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."

[B.R., supra, 192 N.J. at 307 (citation omitted).]

In the present matter, W.A. argues that her counsel at trial was ineffective because of errors committed over the course of the representation, including the fact that counsel failed to object to any of the documents submitted as evidence by the State, failed to cross-examine either of the State's witnesses at trial, and failed to present any evidence on W.A.'s behalf.

For purposes of this appeal only, we will assume that W.A. can demonstrate that her trial counsel was ineffective as required under the first Strickland prong, despite the strong presumption against such a finding. B.R., supra, 192 N.J. at 307-08. We do so only because we are satisfied that W.A. cannot satisfy the second prong of Strickland, that the outcome at trial would have been different had it not been for counsel's ineffective assistance.

Although W.A. asserts that numerous documents were improperly admitted, she does not demonstrate how or why the trial court's decision would have been different had they been excluded. In fact, as the Law Guardian points out, many of the documents at issue, such as the reports from her visitations with D.J.S., in reality are helpful to W.A. because they document some positive interaction with her son.

While it is true that defense counsel did not cross-examine either of the Division's two witnesses, W.A. does not outline how a more effective counsel would have cross-examined either Bryant or Dyer. W.A. failed to appear at trial to provide assistance to her trial counsel, just as she failed to appear for a reevaluation by Dyer following her involvement with Project FIRST. Even when the trial court offered W.A. the opportunity to reopen her case to present testimony, or other evidence in her defense, W.A. herself declined the opportunity to do so.

Consequently, W.A. has not demonstrated a basis under Stickland or B.R. to warrant a remand for further fact finding, which would further delay the adoption and permanency. Instead, we are satisfied that the trial judge's findings of fact were firmly based in the record and that his conclusions of law were soundly based in the applicable statutory and decisional law, and that they do not result from representation by ineffective counsel.

III

For all of the reasons set forth above, the judgment terminating W.A.'s parental rights is affirmed.

 
Affirmed.

Paternity has been confirmed through DNA testing. J.S. subsequently entered a voluntary surrender of his parental rights and is not a party to this appeal.

In finding the first prong satisfied, the trial court relied solely on the holding of K.H.O. and the fact that D.J.S. was born addicted to cocaine. We note that D.J.S.'s HIV-positive status at birth and any injury resulting from that status would also be sufficient evidence to meet the first prong of N.J.S.A. 30:4C-15.1(a). New Jersey Div. of Youth and Family Servs. v. L.V., 382 N.J. Super. 582, 587-90 (App. Div. 2005) (analogizing being HIV positive to illegal drug use during pregnancy for the finding of abuse and neglect under N.J.S.A. 9:6-8.44 and N.J.S.A. 9:6-8.46(b) if DYFS can show that exposure to the virus caused the child "suffering or injury after birth"). However, the HIV status was not relied upon by the trial judge and we do not consider it in reviewing his decision.

The trial court relied heavily on the expert opinion of Dyer in making the decision to terminate W.A.'s parental rights. We recognize that, "[w]hen the credibility of witnesses is an important factor, the trial court's conclusions must be given great weight and must be accepted by the appellate court unless clearly lacking in reasonable support." New Jersey Div. of Youth and Family Servs. v. F.M, 375 N.J. Super. 235, 259 (App. Div. 2005).

We note that even if a family resource had been offered by W.A., "when the permanency provided by adoption is available, kinship legal guardianship cannot be used as a defense to termination of parental rights under N.J.S.A. 30:4C-15.1(a)(3)." New Jersey Div. of Youth and Family Servs. v. P.P., 180 N.J. 494, 513 (2004).

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

(continued)

(continued)

28

A-3902-07T4

RECORD IMPOUNDED

March 2, 2009