DIVISION OF YOUTH and FAMILY SERVICES v. C.M IN THE MATTER OF THE GUARDIANSHIP OF J.J.M., A Minor

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0267-10T4

NEW JERSEY DIVISION OF

YOUTH and FAMILY SERVICES,

Plaintiff-Respondent,

v.

C.M.,

Defendant-Appellant.

____________________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF J.J.M., A Minor.

____________________________________________

October 27, 2011

 

Submitted September 14, 2011 - Decided

 

Before Judges Waugh and St. John.

 

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FG-14-0056-10.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Anthony J. Van Zwaren, Designated Counsel, on the briefs).

 

Paula T. Dow, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Lea C. DeGuilo, Deputy Attorney General, on the brief).

 

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor-respondent (Nancy P. Fratz, Assistant Deputy Public Defender, on the brief).

 

PER CURIAM

Defendant C.M. appeals from an August 2, 2010 final judgment of the Family Part terminating her parental rights and granting guardianship of her son J.J.M. to plaintiff, New Jersey Division of Youth and Family Services (DYFS). We affirm.

These are the relevant facts adduced at the trial. J.J.M., born on January 21, 1998, is the child of defendant and J.K.1 In 2002, J.J.M. was the subject of an earlier removal by DYFS as a result of a referral from the Morris Township Police Department. C.M. had been involved in an automobile accident in the company of J.J.M., which led to a charge of driving while impaired. A guardianship complaint was filed, and J.J.M. was ultimately returned to C.M. after trial in December 2004. In that action, the trial court determined that the State had not proven that C.M. presented a threat of harm to her son. Thereafter, there were several unsubstantiated referrals to DYFS regarding C.M. and her alleged abuse and neglect of J.J.M. As a result of continuing referrals, J.J.M. experienced significant upheavals in his life, including multiple out-of-home placements. In his decision in the present case, Judge Michael P. Wright stated that the court accorded no weight to any of those prior allegations.

In April 2008, there was another referral to DYFS as a result of C.M. being arrested for allegedly driving under the influence, with J.J.M. as a passenger in the car. C.M. signed a case plan in April, specifying that J.J.M. would stay with his maternal grandfather and that C.M. was not to drive with J.J.M. in her car. Reunification occurred shortly thereafter and was maintained until an incident on August 29, 2008, when the police were notified that C.M. had passed out on her bathroom floor, allegedly due to an overdose of prescription pain medication. C.M. was subsequently hospitalized, expressed suicidal ideation, and was admitted to the psychiatric unit.

DYFS removed J.J.M. and filed a new complaint for custody, care, and supervision, which was granted on September 8, 2008. C.M. was ordered to attend substance abuse treatment, random urine screens and psychological evaluation. In October, C.M. entered an inpatient treatment program, but signed herself out after four days. Thereafter, she entered an outpatient substance abuse program. In November, the outpatient program recommended that she receive a higher level of care due to her inability to abstain from substance abuse. She was then referred for inpatient treatment at Summit Oaks Hospital, which she commenced on December 5, but thereafter terminated by signing herself out on December 10, 2008. A stipulation in lieu of fact finding was filed on January 9, 2009, wherein C.M. acknowledged relapsing in the use of prescription medication. The judge found her acknowledgement was consistent with the in camera testimony of J.J.M. and with the general allegation in the complaint of her prescription medication problems. The judge also found that C.M. had prescription medication problems and that she was abusing her medication. However, the stipulation was not signed by C.M. or her attorney. She reentered outpatient treatment in March 2009, but was terminated in April due to her lack of attendance. C.M. again reentered in May, but a lab result showed a relapse on June 23, 2009.

DYFS provided C.M. with individual therapy, which had limited success due to C.M.'s inability to understand the effect of her substance abuse and its impact on J.J.M. In October 2009, the services were terminated. Defendant's clinician noted that visits by C.M. with J.J.M. placed him at risk of emotional/psychological harm, particularly when he observed that she is under the influence.

On August 6, 2009, a permanency plan was adopted calling for termination of parental rights followed by adoption. The judge found that it would "not be safe to return the child home in the foreseeable future because: [C.M.'s] home remains to be a risk to [J.J.M.] due to her substance abuse." He further found that "[C.M.'s] most recent relapse was on 6/23/09 and displays her continued struggle with addiction to prescription drugs."

The complaint for guardianship was filed and an Order to Show Cause for Guardianship was issued on September 22, 2009. A case management order scheduling a bonding evaluation for C.M. and her son was issued. A second case management order required therapeutic visitations to be undertaken as recommended. Evidence was to be exchanged by May 10, 2010, and C.M. was ordered to submit to a hair follicle test. Two additional case management conferences were held in May 2010.

A trial was held for five days between May 24 and June 24, 2010, with a decision terminating C.M.'s parental rights pursuant to N.J.S.A. 30:4C-15.1(a) being issued on August 2, 2010. At trial, Dr. Jewelewicz-Nelson, an expert witness for DYFS, opined that J.J.M. needed the guaranty of permanency that neither reunification nor kinship legal guardianship would provide. This expert further concluded that C.M. possessed deficits in knowledge of child rearing and that C.M. is at serious risk for physical child abuse. The trial court found this expert to be "credible, reliable and supported by the evidence." The Law Guardian expert agreed, and indicated that J.J.M. needed to be free for adoption.

In addition, the trial judge noted that C.M.'s May 19, 2010 psychological evaluation by Alice Nadelman indicated that C.M. "is not actually in recovery, but remains an active addict who lies, distorts, and denies about her drug involvement." Judge Wright found that C.M., during the time of her interaction with DYFS, has suffered from an "ongoing and pervasive addiction to prescription medication." The judge noted that as recently as March 24, 2010, a hair follicle sample tested positive. He also reviewed C.M.'s pharmacy records which disclosed filled prescriptions for at least "1, 000 Hydrocodone and 900 Carisoprodol tablets between January 1, 2010 and May 1, 2010."

C.M. testified in opposition to termination of her parental rights. The trial judge stated that he "had the opportunity to observe C.M.'s demeanor on the witness stand and found her rather disorganized answers less than credible." He also found that "the totality of the record regarding [C.M.'s] history of substance abuse and inappropriate reversal of parent-child roles when [J.J.M.] is in the home, clearly and convincingly indicate that J.J.M.'s safety health and development . . . will continue to be endangered by an ongoing parental relationship with [C.M.]."

After reviewing the evidence adduced at the trial, Judge Wright set forth each of the four prongs of N.J.S.A. 30:4C-15.1(a), found the facts, applied the law to each prong, and determined that "each of the four prongs has been established by clear and convincing evidence." He then terminated C.M.'s parental rights.

C.M. raises the following contentions in support of her appeal:

POINT I

 

THE DIVISION FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT REMOVAL OF J.J.M. FROM HIS FOSTER FAMILY WOULD CAUSE HIM SEVERE AND ENDURING HARM.

 

POINT II

 

THE DIVISION FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT TERMINATING C.M.'S PARENTAL RIGHTS WOULD NOT CAUSE MORE HARM THAN GOOD SINCE THERE WAS NO EVIDENCE THAT J.J.M. WOULD ACHIEVE PERMANENCY WITH A FOSTER FAMILY TO OFFSET THE HARM CAUSED UPON TERMINATION OF HIS RELATIONSHIP WITH HIS BIOLOGICAL PARENT.

 

POINT III

 

THE LAW GUARDIAN FAILED TO REPRESENT THE INTERESTS OF HER CLIENT WHOSE OPINIONS SHOULD HAVE BEEN CONSULTED.

 

POINT IV

 

THE STIPULATION OF FACT-FINDING WAS UNSIGNED AND HENCE DID NOT SATISFY THE REQUIREMENTS UNDER N.J.S.A. 9:6-8.21.

Before addressing the specific issues raised by defendant, we briefly summarize the legal principles that apply to her appeal. Parents have a fundamental constitutional right to raise their children. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986). The constitutional protection of parental rights is tempered, however, "by the State's parens patriae responsibility to protect the welfare of children." In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). Accordingly, DYFS is authorized to petition the court for an order terminating parental rights in the "best interests of the child." See N.J.S.A. 30:4C-15(c).

Under N.J.S.A. 30:4C-15.1(a), 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 is unable or unwilling to provide for 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 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.

The four prongs of the statute are "not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." K.H.O., supra, 161 N.J. at 348. DYFS bears the burden of proving all four prongs by clear and convincing evidence. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 606 (2007).

In a termination of parental rights case, the family court's inquiry is extremely fact-sensitive. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 280 (2007). In this case, Judge Wright heard the evidence at trial and made detailed findings of fact from which he reached appropriate conclusions. Our standard of review on appeal requires that we defer to the family court's findings of fact and conclusions of law based on those findings. G.L., supra, 191 N.J. at 605; N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 433 (App. Div. 2009).

Deference is accorded because the trial judge had the opportunity to "make first-hand credibility judgments" and to gain a "feel of the case," thus sustaining a level of factual familiarity that cannot be duplicated by an appellate court reviewing a written record. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (quoting M.M., supra, 189 N.J. at 293). We also defer to the trial court's assessment of expert evaluations. In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999).

We see no need to recount with detail the evidence presented at the trial proving the unfitness of defendant to care for her son. For our purposes, it is sufficient to say that defendant abuses prescription drugs, even in her home when her child is present, and she is unwilling or unable to stop that abuse. More detrimental to J.J.M.'s welfare, C.M. has driven her child while impaired.

Defendant routinely denies to professional evaluators that she abuses prescription drugs, but her denials are not credible. She fails drug tests, but when asked for an explanation, she admits that she is an addict. DYFS has directed her to assistance and rehabilitation programs, and although she makes a cursory effort, she routinely relapses. While she expresses a desire to modify her behavior and to become a responsible parent, her actions belie any real commitment.

Defendant wants the benefit of a loving relationship with her son, but she is unwilling or unable to bear any responsibility for her own or her son's health and welfare. J.J.M. wishes for more, but he has become resigned to his mother's shortcomings, understanding that she will not be a care-giving parent to him. J.J.M. indicated that if he cannot return to his mother, he would like to be adopted by his foster family. In discussing reunification with his mother during his psychological evaluation, J.J.M. said that he cannot go through it again if his mother is continuing to abuse prescription medication.

Defendant's relationship with her son is loving and mutual, but there is an inappropriate reversal of the parent-child roles when J.J.M is in the home. C.M.'s overdependence on her son to fulfill her emotional needs limits her insight into appropriate parent-child roles.

C.M. appears to concede that J.J.M.'s health and development have been harmed by their relationship, thereby establishing the first prong of the statutory "best interests" test.

"The second prong of the statutory standard relates to parental unfitness." K.H.O., supra, 161 N.J. at 352. DYFS must demonstrate by clear and convincing evidence that the parent "has not cured the initial cause of harm and will continue to cause serious and lasting harm to the child." In re Guardianship of J.C., 129 N.J. 1, 10 (1992). The court must consider whether the parent is unable or unwilling to prevent harm to the child in the future. K.H.O., supra, 161 N.J. at 352. However, "'[p]redictions as to probable future conduct can only be based upon past performance.'" N.J. Div. of Youth & Family Servs. v. Robert M., 347 N.J. Super. 44, 68 (App. Div.) (quoting J. & E. v. M. & F., 157 N.J. Super. 478, 493 (App. Div.), certif. denied, 77 N.J. 490 (1978)), certif. denied, 174 N.J. 39 (2002).

We are also satisfied that there is sufficient evidence in the record to support the trial court's finding that C.M. is unable or unwilling to eliminate the harm to J.J.M., and a delay in a permanent placement will further harm him. The judge noted the testimony of caseworker Crossman, stating that J.J.M.'s foster parents would like to adopt him. Both Crossman and Dr. Nadelman indicated that J.J.M. would like to be adopted if he cannot be reunited with his mother. Although the judge initially deferred making a termination determination in the unlikely hope that C.M. would conquer her dependency, he eventually concluded that further delay would be inconsistent with a need to secure permanency and stability for J.J.M. The trial judge correctly found that DYFS had established the second prong of the test with clear and convincing evidence.

After setting forth the third prong, the judge applied the evidence to determine whether DYFS has met its burden. The judge recognized that DYFS must provide clear and convincing evidence that it has made reasonable efforts to provide services to help C.M. correct the circumstances which led to the child's placement outside the home, and that alternatives to termination of parental rights have been considered. In considering alternatives to termination, Crossman testified that relatives and friends offered by C.M. were not able to be resources for the child and that DYFS ruled out C.M.'s father due to his age and health.

As to reasonable efforts to provide services, the judge noted that reasonable efforts means attempts by an agency authorized by DYFS to assist C.M. in remedying the circumstances and conditions that led to the placement of the child and in reinforcing the family structure. N.J.S.A. 30:4C-15.1(c). The judge detailed the extensive substance abuse treatment and mental health services provided to C.M., and the psychological evaluations offered to both mother and child. These evaluations led to therapy for both J.J.M. and C.M. The bonding evaluations for J.J.M. and C.M. were also referenced by the court. The judge stated that C.M. "has been afforded multiple chances to address her parenting deficits, as well as opportunities to prove her growth as a safe and competent parent throughout the repeated reunifications." We agree with the trial judge that "very little progress in addressing the mental health and substance abuse issues" was evidenced by C.M. throughout her course of treatment. We also concur that DYFS had established the third prong of the test with clear and convincing evidence.

The court then undertook the analysis of the fourth prong and determined that termination of C.M.'s parental rights will not do more harm than good. N.J.S.A. 30:4C-15.1(a)(4). The fourth prong under the statute further "serves as a fail-safe against termination even where the remaining standards have been met." G.L., supra, 191 N.J. at 609. "The question ultimately is not whether a biological mother or father is a worthy parent, but whether a child's interest will best be served by completely terminating the child's relationship with that parent." E.P., supra, 196 N.J. at 108. More specifically:

When a parent has exposed a child to continuing harm through abuse or neglect and has been unable to remediate the danger to the child, and when the child has bonded with foster parents who have provided a nurturing and safe home, in those circumstances termination of parental rights likely will not do more harm than good.

 

[Ibid.]

 

In E.P., supra, the Supreme Court said, "We will not disturb the family court's decision to terminate parental rights when there is substantial credible evidence in the record to support the court's findings." 196 N.J. at 104. "Only when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark' should an appellate court intervene and make its own findings to ensure that there is not a denial of justice." Ibid. (quoting G.L., supra, 191 N.J. at 605).

The judge grounded his decision in the reports and testimony of the treatment providers and expert witnesses. Judge Wright, in his extensive oral opinion, reviewed the evidence adduced from Drs. Jewelewicz-Nelson and Nadelman, and balanced the harm versus the good that termination of parental rights would cause. He recognized that adoption was not assured, but nevertheless found that "[t]he potential psychological harm of returning the child to his biological mother for a third time would outweigh any deficits in the permanency plan, even absent an identified pre-adoptive home, which we do have here." The judge further noted that his finding was "solidified rather than dependant upon the fact that [J.J.M.'s] foster home has recently committed to adoption."2 DYFS presented ample evidence at trial to support termination of defendant's parental rights, including with respect to the third and fourth prongs of N.J.S.A. 30:4C-15.1(a).

The judge found that each of the four prongs has been established by clear and convincing evidence, and even without the certainty of immediate adoption, C.M.'s parental rights should be terminated. Because each prong was supported by credible evidence in the record, we see no reason to disturb his conclusions. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278-279 (2007).

The defendant asserts that the stipulation of fact-finding of January 9, 2009, that she relapsed on prescription medicine, was unsigned and did not satisfy the requirements under N.J.S.A. 9:6-8.21. We have said that "[a] 'fact-finding hearing is a critical element of the abuse and neglect process,' because the court's 'determination has a profound impact on the lives of families embroiled in this type of a crisis.'" N.J. Div. of Youth & Family Servs. v. I.Y.A., 400 N.J. Super. 77, 87-88 (App. Div. 2008) (quoting N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 264-65 (App. Div. 2002)). Although defendant raises this allegation, we have not been provided with a transcript of the hearing, and are unable to assess the merits, if any. However, we need not address this claim since Judge Wright did not base his decision to terminate C.M.'s parental rights under Title Thirty on the facts in the Title Nine stipulation. As we recently noted:

It is thus clear on the face of N.J.S.A. 30:4C-15 that a finding of abuse or neglect in an action under Title [Nine] is only one of five statutory grounds for the termination of parental rights. Indeed, we take judicial notice of the fact that most termination of parental rights cases appealed to this court are based on N.J.S.A. 30:4C-15(c), which provides for termination where "the best interests of any child . . . require that he be placed under guardianship." See also N.J.S.A. 30:4C-15.1(a) (setting forth the four statutory tests for determining whether termination is in the "best interests of the child"). Therefore, except for a guardianship action under N.J.S.A. 30:4C-15(a) based on a finding of abuse or neglect under Title [Nine], DYFS may bring an action for the termination of parental rights under any of the other subsections of N.J.S.A. 30:4C-15 without first bringing an action under Title [Nine].

 

[N.J. Div. of Youth & Family Servs. v. A.P., 408 N.J. Super. 252 (App. Div. 2009) (footnote omitted), certif. denied, 201 N.J. 153 (2010).]

 

The judge's determination in the Title Thirty action is based on findings of fact that are adequately supported by substantial, credible evidence. See Cesare v. Cesare, 154 N.J. 394, 411-12 (1998).

Finally, defendant argues that the family court erred in failing to interview the child, then twelve years old, and capable of expressing his desire to continue the relationship he enjoyed with defendant. C.M. contends that the trial judge had an obligation to determine directly from the child whether termination of her parental rights would do more harm than good.

In E.P., supra, the Court stated that the preferences of a mature child should be one consideration among many in a parental termination proceeding. 196 N.J. at 112-13. Where a mature child more than the age of ten, on his or her own initiative, "requests the opportunity to express an opinion," the court should grant the request. Id. at 114. But, the Court cautioned that where children wish "to return to their abusive or neglectful natural parents, who have endangered and continue to endanger their lives[,]" soliciting his or her opinion would likely be "futile" or "contrary to a child's best interests." Id. at 113. Whether the child should be interviewed is ultimately left within the "sound discretion of the family court." Id. at 114.

In this case, defendant's brief fails to acknowledge that the Law Guardian for the child clearly set forth, in her opening statement, J.J.M.'s position. The Law Guardian stated that J.J.M. wanted to be reunited with his mother if the court could assure him that his mother will not "mess up," and by that he meant relapse into prescription drug overuse. Trial counsel for defendant accepted the Law Guardian's position without objection.

Judge Wright heard testimony from the DYFS caseworker about contacts she had with the child and the child's views about the termination and guardianship case. The caseworker testified the child had indicated that he wanted to be adopted by his foster care parents and, despite caring for his mother deeply and enjoying time with her, he was in disbelief whether she could actually be sober enough to care for him.

Based on the testimony of the DYFS caseworker and representations by the Law Guardian, there was neither plain error nor abuse of discretion stemming from the trial judge not interviewing the child.

A

ffirmed.

1 J.K.'s parental rights were terminated in a previous proceeding. He is not involved in this appeal.

2 Crossman testified that J.J.M.'s foster parents would like to adopt him. In the order under appeal, Judge Wright stated that unless the child's adoption has been finalized, a summary hearing shall be held on October 14, 2009 to track the status of the adoption.