NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. S.M.

RECORD IMPOUNDED

 

 

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

DOCKET NO. A-0004-12T1

 

 

 

 

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES,1

 

Plaintiff-Respondent, v.

S.M.,

 

Defendant-Appellant, and

A.N.,

 

Defendant.

 

 

 

IN THE MATTER OF THE GUARDIANSHIP OF C.N. and C.N.,

 

Minors.

 

 

 

 

Argued January 13, 2014 - Decided

February 4, 2014

 

Before Judges Parrillo, Harris, and

Guadagno.

 

 

 

 

 

 

1 Effective June 29, 2012, the Division of Youth and Family Services (Division) was renamed the Division of Child Protection and Permanency. L. 2012, c. 16.

On appeal from the SuperiorCourt of New Jersey,ChanceryDivision,Family Part, Camden County, Docket No. FG-04-154-12.

 

Ryan T.Clark, Designated Counsel, argued the cause for appellant(Joseph E. Krakora, Public Defender,attorney;Mr. Clark, on the brief).

 

Michelle D.Perry-Thompson,Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Perry- Thompson, on thebrief).

 

Todd Wilson, DesignatedCounsel,arguedthe cause for minorsC.N. and C.N. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Wilson, on the brief).

 

PER CURIAM

 

Defendant S.M. (Sandra)appeals from the July 16, 2012 judgment ofguardianship terminating her parental rights to two of her children,Cl.N.(Charles)and Cn.N.(Christopher).2 The boys' father, A.N., surrendered his parental rights to both children. Because theDivisionof Child Protection and Permanency(the Division) provedall four statutory prongsof

N.J.S.A.30:4C-15.1(a) by clear and convincing evidence, we

 

affirm.

 

 

 

 

 

 

2We employfictitious namesto protect theprivacy of the minor children and forease of reference.

 

I.

 

Sandra began using drugs as a teenager andwas convicted in

 

2001 ofpossession of acontrolled dangerous substance and sentenced to probation. She continued to use drugs while on probation,testing positivein 2001, 2002,and 2004. After violating her probation, she wassentencedto the Drug Court program.3 Although she completedthat program, she continued to abuse drugs.

Charleswasbornon September 30, 2004,andChristopher, on August 17,2007. In May 2007, while she was pregnant with Christopher, theDivision received a referral that Sandra was abusingalcohol and phencyclidine (PCP), and hadleft Charles with her sister Sh.M. (Sheila), who wasnotpermitted to care

for anychildrenbecause she wassubstantiated for neglectin

 

2006. Sandra denied knowledge of her sister's history andthe referral was deemed unfounded.

In June2007, the Divisionreceived a referral from Cooper

 

Hospital that inMarch 2007, Sandra testedpositive forPCP

 

during a prenatal visitwhile pregnant withChristopher.

 

 

 

 

 

 

3"Drug Courts are specialized courts withinthe Superior Court that targetdrug-involved offenders whoaremostlikelyto benefitfrom treatment anddo not pose a risk topublicsafety." Statev.Meyer,192 N.J.421, 428 (2007).

Becausethereferral was received threemonths after the test, the Division chose not to investigate the allegation.

On December6, 2007, the Division receiveda referral that

 

Sandra appeared to be highon narcotics, and wasincoherent.

 

The Division investigated,and Sandra admitted to thecaseworker that she had smoked marijuana, but denied using it in the presence of the children. Sandra declinedservices, and the Division closed the case.

On January2, 2008, theDivisionreceived a referral that Sandra hadleft five-month-old Christopheraloneon herfront steps. A neighbor found him andcalledthepolice, whobrought the baby to the hospital. Sandra claimed that she steppedaway momentarily. The Divisionsubstantiated Sandra for neglectand she wasreferredfor a substanceabuse evaluation.

On January14, 2008, the Division receivedanother referral

 

that Sandrawas abusingPCPand marijuana. Sandra admittedto using PCP,marijuana, and alcohol, butdenied that it affected her abilityto care forherchildren. Sherefused to attend a substance abuse evaluationor give a urinesample. Duringa subsequentfamily team meeting, a Divisionsubstance abuse evaluator observed thatSandra appearedtobe ondrugs.

Sandra completeda substance abuse evaluation and was

 

referred to a treatmentprogram. AfterSandra refused to

complete a safety plan or participate in the treatment program, the Division filed a complaint for careandsupervisionof CharlesandChristopher. Sandraagain refused to take a drug screening,but admittedthat, iftested, she would testpositive for marijuana. The Division wasawarded care and supervision of the children andSandraagreed to a safetyplan. When Sandra again refused toparticipate in a treatmentprogram, the

Division executed an emergency removal of thechildren.

 

The court ordered the children returnedtoSandra as soon as she began substance abuse treatment andchildcare was arranged. Sandra tested positive for PCP and marijuanaincourt and refusedreferrals for services.

The Division explored placing the childrenwith their

 

father buthe had a guncharge pending. The maternal grandmotherdeclined totake them and no other relatives were identifiedas placementresources.

On February22, 2008, Sandra began treatment at My Father's House and the children werereturned toherone week later.Two weeks later, at a courthearing,Sandratested positivefor

drugs againand the children were againremoved and placedin foster care.

In April 2008, My Father'sHousereported that Sandra had made significantprogress since the start of treatment. InMay

2008, the court returned custodyof thechildrento Sandra,who initially complied withservicesand provided negative urine screens.

In July2008, Sandra againtested positivefor PCP but the

 

children remained in her custody. On August 1, 2008, Sandra called a Division caseworker andstatedthat sheleft the home, the children arealone,andthe Division should go get them.

She statedthat "she nolonger wanted her children" andthat

 

"she has had it." Sandra admitted thatshehad not attended the programatMy Father's House since Juneofthat year. Charles "expressedthat he no longer wanted to remain inthe home and wanted to 'go with his DYFSworker.'" Thechildren were removed from Sandraa third time and shewas substantiated for neglect.

On August 5, 2008, the Division was grantedcustody. Sandra tested positive formarijuana and PCP in court and appeared lethargic and non-responsive. Onthe following day, Sandra wasarrested andjailed for assaulting her sister. While incarcerated, she was charged with aggravated assault of four correctionsofficers.

After Sandra submitted to apsychological evaluation, Dr. Meryl Udellfound that shesuffered from moderate depression and mild anxiety, and had potentialfor emotional and behavioral

problems. Dr. Udell recommendeda long-term inpatient drug treatment program and individualcounseling.

In November2008, Sandra stipulated that she abused or neglected the children andadmitted to using drugs and leaving the children alone withoutappropriate supervision whenshe asked the Division to takeher children. The court ordered

Sandra to attendsubstanceabusetreatmentat MyFather's House,

 

submit to urine screens, attend counselingat Center for Family Services, and submit toa hair follicletest. The following day, Sandra's hair follicletestwas positive for PCP.

Sandra attended treatment at My Father's House and

 

initially made progress.She began supervised visitation with the children at Robin'sNest, Inc. butshewas terminated from Robin'sNest in March 2009,due to her continueddrug use.

The court ordered another hair follicletest andagreedto

 

return thechildren if Sandra tested negative, but the testwas positive for PCP.

In March 2009, Sandra was sentenced to probationfor her

 

assaultonthe correctionsofficers. In May 2009, Sandra resumedvisitation withthechildren atRobin's Nest but those services were again terminated after two months for her noncompliance with drugscreening and substanceabuse treatment.

Also inMay2009, Sandra began an intensiveoutpatient drug treatment at Cooper House but was discharged in June for non- compliance. Theprogram workerssuspectedthat Sandra was "cleaning her urine" because sheprovidedasample thatwas

below bodytemperature andrefused to givea second sample. She

 

also exhibited angry disruptive behavior.Sandra's mothertold the Division that Sandra had been submitting hersister's urine for drug tests. Sandralater admitted to smoking PCP.

Sandrawasreadmitted to Cooper House in July 2009, butwas terminatedthreeweeks later when she tested positive for

alcoholandPCP. Sandra then enrolled in outpatient drug treatment at Sikora, but never attended, missingfive scheduled intake appointments.

After completinganother substance abuse assessment in September 2009, Sandra tested positive foralcohol and was recommendedfor an inpatient program. Shewas referredto TurningPoint, and thenBergen RegionalMedical Center for treatment.

The Division explored placement of the children with their

 

paternal grandmother and a paternal aunt but neither were able to careforthem. A.N.wasnot a placementoption, as he was incarcerated in Pennsylvania serving a sentence for a firearms offense.

In November2009, Sandra began treatment at BergenRegional MedicalCenter and was successfully discharged and referredto aftercare treatment at Kennedy Hospital.

In December2009, the Division filed a complaintfor

 

guardianship of the children. In February2010,Sandrabegan outpatientsubstance abusetreatment atSODAT but was discharged two monthslaterfor failing to attend allof the treatment sessions.

After Christopher was diagnosed with a cognitivelearning delay and anger issues,theDivision beganto provide early intervention services. Dr.Walter Frankelperformed a psychological evaluation of Charles andconcluded that his behavioralissues couldbeaddressed with a secure and consistentfamily environment. Dr. Frankelrecommendedthat Sandra attend a parenting skillsclassbutafterthe Division arranged for theclasses, Sandrawas terminated for failureto attend appointments.

In April 2010, Sandra was arrested for aggravated assault

 

and unlawful possessionofa weapon andincarcerated until

 

December 2010, when shewassentenced to one year probation.

 

On May 13,2010,Sandrasubmitted to a psychological and bondingevaluation by Dr. James Loving. Dr. Loving diagnosed her with alcoholand drug abuse,adjustmentdisorder with

chronicanxiety and depressed mood, andantisocial personality traits. He"cautiously" recommended that the Division continue workingtoward reunification notwithstanding Sandra's arrest, becauseshehad "a fairprognosis for achieving safe, appropriatereunification[.]" Dr. Loving also found that the children demonstrated an attachment to Sandra.

In June2010, the courtdismissed the guardianship

 

complaint and re-openedthecareand supervisiondocket. The judge notedthatSandrahad"completed inpatientsubstanceabuse treatment and will be resuming intensive outpatient treatment with SODATupon her releasefromjail and both childrenare bonded to her per the Division'spsychologist expert; the Division will continue to work with hertoward[]reunification with both children."

In October2010,the courtrejected theDivision's planfor

 

terminationof parentalrights because A.N.had recently been released from jail and theDivision wasordered to providehim with services.

Dr. RonaldS. Gruen completed anupdated psychological and

 

bondingevaluation of Sandra andthe children and concludedthat she is narcissistic andremaineda "drug dependent person psychologically," and proneto re-abusing. He found a mildbond betweenSandra and Charles,but no bondwith Christopher, and

concluded "neither child would suffer significant emotional harm" if Sandra's parentalrights were terminated. Dr.Gruen found thatChristopher wasalready bonded to hisfostermother, and Charleswould do sorapidly if Sandra'sparental rightswere terminated.

After Sandra's release fromjail, she resumed visitation with the children and was referred to substance abuse treatment after testing positive foralcohol. InMarch 2011, Sandrawas enrolled inoutpatient treatmentbut testedpositive for alcohol and oxycodone.

In March 2011, the Divisionfiled a secondguardianship

 

complaint but the courtordered the Division to continue to provideservicesto Sandraincluding payingfora security depositandfirst month's rent for housing. Sandra failedeight urine testsfor alcoholfrom March to May 2011.

Sandra submittedto anotherpsychological and bonding

 

evaluationby Dr. JamieGordon-Karp whoconcluded that reunification was not in the children'sbest interest because Sandra hadnot demonstratedthe abilitytolivesubstance-free and participate in treatment.

In October2011,Sandrabegan outpatient substance abuse

 

treatment,attended regularly, and tested negative for substancesthrough November2011. Dr. Gordon-Karp then

recommendedthe children bereturned totheir mother. Based on that recommendation, the court returnedcustody of the children to Sandra and dismissedtheguardianship litigation.

In January2012,the Division received a referral that

 

Sandra andher sister wereunderthe influence of drugsand alcoholandhad been fighting inthe home. Sandra was arrested on a warrant andthe children were being cared for by an aunt. When a caseworker determined that the auntwas under the influence of alcohol, the children wereremoved for thefourth and final time and returnedto their previous foster mother. In February 2012, Sandra tested positive for PCP.

In March 2012, the Divisionfiled a third guardianship complaint. Dr. Gordon-Karpconducted another psychologicaland bondingevaluation and noted that the boyswere happy and bonded to their foster mother whoexpressed interest inadopting them. She recommended that Sandra's parental rights beterminatedso that the children couldbeadopted by theirfoster mother.

Sandra pledguilty to aggravatedassault and wasreleased

 

from jail in May2012. In June 2012, Sandra again tested positive for PCPwhile in court.

On July16,2012, the Family Part conducteda one-day

 

guardianship trial. Division caseworker Lisa Capone testified to the Division's involvement with the family since 2008.

Dr. Gordon-Karp testified that Sandra was not able to parent herchildren andshehad been givennumerous opportunities to demonstrate herfitness as a parent. She recommendedthatthe children should obtainpermanency through adoption by their foster mother and it would harm the children to waitlonger for Sandra to improve. Shetestified that the

children would suffer severe andenduring harm if separatedfrom

 

their foster mother, including depression,anxiety, andbehavior problems, and would notsuffer the samelevel ofharm if separated from their mother.

Sandra testifiedthat she was not working and living with

 

an aunt. She admitted thather aggravatedassault chargeswere still pending atthe time. Sandra did notpresent any other witnesses or evidence.

The court issuedan oral decision, findingthat the

Division had proved allfour prongs of the"bestinterests"test pursuant toN.J.S.A.30:4C-15.1(a) by clearand convincing

 

evidence. The court foundDr. Gordon-Karpto becredible and accepted her opinions.

The court noted that the children needed permanency andan end to thecycles of removals and reunification,and they had permanencywith their foster mother. Giventhe long case history, any further delaywouldadd to theharm.

The court found that Sandrahad endangeredthe children, was unableto overcome heraddiction, and there was "nothing in any of thetestimony that would indicate that there would be any differencein the next fiveyears." Sandra's psychological problems resulted in her inability to eliminate the harm for the children, and she was unable to providea safe and stable home for them.

The court found that the Division had madereasonable effortstohelp correctthecircumstances and that alternatives to termination of parentalrights had beenconsidered.

Finally, the court found that a terminationof parental

 

rights would notdo more harm than good, accepting the opinion of Dr. Gordon-Karp as to the foster mother's ability to ameliorateany harm causedby separation.

On appeal,Sandra concedesthe sufficiencyof the

 

Division's proofon thefirst prong of thebest interests test but arguesthat the Division failed to prove thesecond, third, and fourthprongs by clearand convincing evidence and, therefore,the court erredin terminating her parental rights to the children.

II.

 

"Appellatereview of a trial court's decision toterminate parental rights is limited,and the trial court's factual

findings, 'should not be disturbed unless they are sowholly

 

unsupportable asto resultin a denial of justice.'" Inre

 

GuardianshipofJ.N.H.,172N.J.440, 472 (2002)(quoting Inre

 

GuardianshipofJ.T., 269 N.J.Super.172,188 (App. Div.

 

1993)). The findings of the trial court "are considered binding on appeal when supported byadequate, substantial and credible

evidence." RovaFarmsResort,Inc.v.InvestorsIns.Co.of

 

Am., 65 N.J.474, 484 (1974).

 

An appellate court must"rely onthe trialcourt's acceptanceof the credibility ofthe expert's testimonyandthe court'sfact-findings basedthereon, [as] the trial court is better positioned to evaluate the witness'credibility, qualifications, and theweight to be accorded her testimony."

InreGuardianshipof D.M.H., 161 N.J.365,382 (1999). In

 

addition, a family court's findings of factare entitled to specialdeference because of its"special expertise in thefield

of domesticrelations." Cesarev.Cesare,154 N.J.394, 412

 

(1998).

 

There are two exceptions to thisvery limited scope of appellate review. First, when the trial judge'sdecision is so wide ofthemark, as tobe"clearly mistaken andso plainly unwarrantedthatthe interests of justice demandintervention

and correction." Formosav.EquitableLifeAssuranceSoc'y, 166

N.J.Super.8, 20 (App.Div.), certif.denied, 81 N.J.53

 

(1979). Second,"wherethefocus of the disputeis not credibilitybut,rather, allegederror in the trial judge's evaluationof the underlying facts and theimplicationstobe

drawn therefrom[.]" SnyderRealtyInc.v.BMWofN.Am.Inc.,

 

233 N.J.Super.65, 69 (App. Div.), certif.denied, 117N.J.165

 

(1989).

 

Terminationof a parent's rightsoccurswhen, inthe "best interests of thechild," the Division meetsthe following standards by clear and convincing evidence:

(1) The child's safety, health or

developmenthasbeen or willcontinuetobe endangeredby the parentalrelationship;

 

(2) The parentis unwillingor unable to eliminate the harm facingthechildor is unableor