NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. A.M.A.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

A.M.A.,

Defendant-Appellant.

IN THE MATTER OF THE

GUARDIANSHIP OF M.D.-C.A.,

a minor.

October 1, 2014

Submitted September 10, 2014 Decided

Before Judges Alvarez and Carroll.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FG-08-23-13.

Joseph E. Krakora, Public Defender, attorney for appellant (Angelo G. Garubo, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Mary A. Hurley, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor M.D.-C.A. (James J. Gross, Designated Counsel, on the brief).

PER CURIAM

Defendant A.M.A. (Ann)1 appeals from the August 28, 2013 judgment terminating her parental rights in M.D.-C.A. (Matt), born January 2010.2 She contends the trial court erred by failing to consider alternatives to termination, N.J.S.A. 30:4C-15.1(a)(3), and by concluding termination would not do more harm than good, N.J.S.A. 30:4C-15.1(a)(4). We find to the contrary and hence affirm essentially for the reasons stated by the trial judge in her oral decision. There are no reasonable alternatives to termination given Ann's drug usage, which continued unabated during the litigation, and her related difficulties, and thus the termination did not do more harm than good.

The record establishes that Ann has two other sons, both of whom are in the custody of their natural fathers. Ann's first contact with plaintiff New Jersey Division of Child Protection and Permanency (Division) occurred in 2004, years before Matt's birth, when the Division received a report that one of her other children had been born with methadone in his system.

After Matt's birth, the Division received and investigated many referrals regarding Ann and N.A.'s ongoing substance abuse while caring for Matt. Eventually, the Division filed an abuse and neglect complaint against the parents. After the filing on May 6, 2011, the Division initiated a Dodd removal3 of sixteen-month-old Matt. On the day Matt was removed, Ann was taken to a hospital emergency room because she was found unconscious from a drug overdose. That same day, the child's father appeared at his drug treatment facility seemingly under the influence of drugs. Testing indicated he had consumed methadone, opiates, benzodiazepines, and Oxycodone.

Ann's drug use, by her own self-report to the Division's expert, James L. Loving, Psy.D., commenced at age thirteen. She was thirty-two at the time of the January 16, 2013 evaluation, and reported abusing marijuana, LSD, PCP, hallucinogenic mushrooms, inhalants, cocaine, ketamine, prescription pills such as Xanax, and heroin. Ann, her mother, and her stepfather did drugs together as a family when she was an adolescent: "she 'grew up using drugs with [her] parents.'" In fact, although Ann claimed she achieved sobriety for nearly two years while in her twenties, this ended when her stepfather injected her with heroin. That period of sobriety occurred years before Matt's birth. Although seemingly compliant with the host of services provided to her by the Division since the filing of its abuse and neglect complaint in May 2011, including inpatient drug treatment, Ann continued to use, as documented by multiple positive drug screens and her own disclosures.

During the termination trial, Ann testified that she was eligible for two "Mommy and Me" drug treatment programs, but admitted to relapsing the prior month. Ann explained she had used Xanax and a bag of heroin because of her stress from having unspecified charges lodged against her in criminal court. In fact, Ann's continued drug use overlapped substantially with trial: she testified first on July 5, just two days after one relapse, and again on August 1, the same day she took a drug test that came back positive for opiates. Shortly thereafter, she was transferred from the halfway house where she had been living to an inpatient residential program after three relapses in the prior weeks.

Ann testified by phone on the final day of trial, August 14, admitting that her earlier testimony that she had not recently consumed drugs was false. The Division placed in evidence records documenting positive drug screens from her treatment program on July 3, July 8, and August 1, 2013.

Loving described Ann's unsuccessful struggle to remain drug-free in his report and expanded upon it in his testimony. Her drug addiction, if not intractable, caused her to "remain at very high risk for relapse." This was the product not only of beginning use at a young age, but also of her active consumption of a wide range of substances. She has an "impulsive and opportunistic approach to drug use," meaning that even if she was able to remain abstinent from one substance, she would have difficulty in refraining from using others if presented with the opportunity to do so.

Ann's drug difficulties were, in the opinion of Loving, compounded by "intense and longstanding emotional difficulties," including chronic depression and anxiety. Because some of the key people in her life were themselves substance abusers, she faced additional barriers to sobriety since those who ordinarily would be a source of support in her efforts to stay clean were instead potential triggers for the resumption of drug use.

Loving also conducted bonding evaluations between Matt and his mother, and Matt and his foster mother. He found that the child was bonded to both women, but he could not support any option but termination of parental rights because of Ann's extremely high risk of relapse. Matt's attachment to his foster mother, with whom he had lived for almost two years, was as strong as his attachment to Ann, and was more typical of a parent and child.

As Loving explained it, although Matt might suffer some adjustment problems if he lost all contact with his mother, that potential harm was less than the harm that would ensue were he returned to her care. In addition to Ann's very high risk of relapse, she had other "barriers to reunification," and simply "cannot be considered a candidate for safe and healthy reunification, either now or in the foreseeable future." At the time of trial, Ann had open unspecified indictable charges for possession of prescription pills and heroin, as well as disorderly persons charges in municipal court for possession of drug paraphernalia.

Loving's report also included mention of Matt's developmental and behavioral issues. When first placed in the foster home, his speech and language skills were significantly delayed as he said only two words and was generally silent. Matt displayed fine and gross motor skill delays as well as cognitive delays. He has been provided with Early Intervention services and classified for preschool special education support. Loving stated that Matt recently "'graduated' from Early Intervention, and . . . is now testing at above-average [in] speech and language skills. He continues to [undergo] physical therapy, speech therapy, other services, an[d] he continues to display some difficulties (e.g., very poor attention span)." The foster mother advised Loving that additional evaluations have been scheduled in an attempt to identify the source of Matt's continuing difficulties.

It bears mention that the foster mother, who wishes to adopt, is a longtime friend of Matt's maternal great-grandmother and great-aunt, with whom he was initially placed. Despite making him regularly available for visits with Ann and her family, she has no interest in kinship legal guardianship (KLG), N.J.S.A. 3B:12A-6(d), for two reasons. Due to her concerns regarding Ann, she was not interested in enforced visitation. Additionally, it was important to her to provide Matt with a permanent home.

Ann raises the following points of error for our review

POINT I

THE COURT BELOW ERRED IN FINDING THAT THE DIVISION ADEQUATELY CONSIDERED ALTERNATIVES TO TERMINATION OF [ANN'S] PARENTAL RIGHTS.

POINT II

THE COURT BELOW ERRED IN FINDING THAT TERMINATION WOULD NOT DO MORE HARM THAN GOOD AND THE DIVISION FAILED TO SHOW THAT A DELAY OF PLACEMENT WOULD CAUSE OR ADD TO THE HARM.

Ann does not challenge the court's conclusions as to prongs one and two of the termination statute, N.J.S.A. 30:4C-15.1(a)(1) and (2). We therefore limit our discussion to prongs three and four. See N.J.S.A. 30:4C-15.1(a)(3) and (4).

An appellate court may not disturb the trial judge's findings in a termination of parental rights case "'unless they are so wholly unsupportable as to result in a denial of justice.'" In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002) (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). Although a parent "'allege[s] error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom,'" deference must still be afforded to the trial judge's finding unless the judge "'went so wide of the mark that a mistake must have been made.'" N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (quoting J.T., supra, 269 N.J. Super. at 188-89, and Snyder Realty v. BMW of N. Amer., 233 N.J. Super. 65, 69 (App. Div. 1989)). An appellate court must nonetheless ensure that the trial judge's decision is "based on clear and convincing evidence supported by the record before the court." N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004).

Applying this standard to the contentions of error Ann raises, we conclude that the trial judge's evaluation of the circumstances in this case warrant the deference to which they are legally entitled. Focusing on her first contention of error, we find no mistake in the trial judge's determination that no reasonable alternative existed to termination. See N.J.S.A. 30:4C-15.1(a)(3).

To reiterate, KLG was simply not an available option. When adoption is feasible and likely, the KLG statute does not provide a defense to termination under N.J.S.A. 30:4C15.1(a)(3). P.P., supra, 180 N.J. at 513. In this case adoption is both feasible and likely. Furthermore, Matt's foster mother rejected KLG as an option.

Ann also argues that the court erred in failing to consider her proposals for long-term inpatient placements for herself and Matt. This contention also lacks merit. Even if programs were available, she has not established any track record of sobriety while in any program since Matt's birth. Indeed, Ann could not remain clean while the termination of parental rights trial was ongoing, though she must have known she would likely be tested, and the consequences were she found to have used. Hence the trial judge's conclusion that the risk of relapse was too great, and the potential risk to the child if returned to his mother was too substantial, is unassailable. Had the trial judge ordered Ann and Matt into a "Mommy and Me" program, it would have severely disrupted the child's life. That would have been a high price for Matt to pay for an effort that had little likelihood of success. The Division established by clear and convincing evidence that there were no alternatives available to termination of parental rights.

Lastly, Ann asserts that termination would do more harm than good because of her bond with the child. This child, like all children, has "an essential and overriding interest in stability and permanency . . . ." In re Guardianship of J.C., 129 N.J. 1, 26 (1992). Matt has finally attained stability, but only in his foster home. He has significant developmental needs which have been met through his placement there. Although improved, he faces the prospect that these challenges will require services in at least the foreseeable future. Removing him from the environment in which he is thriving while breaking his bond to his foster mother would constitute the greater harm. This child cannot be returned to Ann's care without endangering his safety in the most literal sense. See Div. of Youth & Family Servs. v. L.J.D., 428 N.J. Super. 451, 492 (App. Div. 2012). Ann exposed the child to harm through her drug use, and that usage shows no signs of abating despite her efforts to engage in services.

The trial court substantially relied upon Loving's testimony in deciding that termination would not do more harm than good. Loving reviewed extensive materials regarding Ann and her family, in addition to conducting interviews and administering psychological tests. Loving also conducted the bonding evaluations of Matt, Ann, and the foster mother. He opined that Ann could serve as an appropriate and loving parent if clean and sober. But he also concluded that at present she lacks the ability to remain clean and sober for more than a few weeks, even after participating in a variety of services.

The judge observed that the child had been "in placement for almost three years. [Ann] had a period recently of sustained abstinence for seven months." This contrast is stark. No benefit is to be gained by prolonging Matt's impermanent status while waiting to see if his mother can eventually accomplish that which she needs to do to provide him with a safe home. See N.J. Div. of Youth & Family Servs. v. B.T.S., 291 N.J. Super. 582, 592 (App. Div. 1996). Given these proofs, we agree with the trial judge that the Division demonstrated by clear and convincing evidence that termination of Ann's parental rights would not do more harm than good. See J.C., supra, 129 N.J. at 26.

Affirmed.

1 For ease of reference, we refer to the parties by pseudonyms.

2 Matt's father, N.A., died of a drug overdose on July 7, 2012, during the pendency of these proceedings. As Ann testified, he and she had been "partying" with illegal drugs that night. When she awoke, N.A. was dead.

3 N.J.S.A. 9:6-8.28 authorizes the Division to remove children "to avoid imminent danger to the child's life, safety[,] or health."