NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. C.V.

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NOT FOR PUBLICATION WITHOUT THE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.

C.V.,

Defendant-Appellant.

_________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF S.C.V.,

Minor.

_________________________________

December 4, 2014

Submitted November 18, 2014 Decided

Before Judges Reisner, Koblitz and Higbee.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-178-13.

Joseph E. Krakora, Public Defender, attorney for appellant (Evelyn F. Garcia, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea Silkowitz, Assistant Attorney General, of counsel; Michelle D. Perry-Thompson, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor S.C.V. (Lisa M. Black, Designated Counsel, on the brief).

PER CURIAM

Defendant C.V. appeals from a January 2014 order terminating her parental rights to her daughter S.C.V., who was born in 2006.1

On this appeal, defendant raises the following arguments

POINT I. THE TRIAL COURT ABUSED ITS DISCRETION BY TERMINATING C.V.'S PARENTAL RIGHTS BECAUSE THE DIVISION FAILED TO PROBE PRONG ONE BY CLEAR AND CONVINCING EVIDENCE, PURSUANT TO N.J.S.A. 30:4C-15.1a, THAT C.V. WOULD CONTINUE TO ENDANGER THE [HEALTH] AND WELFARE OF [THE CHILD].

POINT II. THE DIVISION FAILED TO PROVE PRONG TWO BY CLEAR AND CONVINCING EVIDENCE.

POINT III. THE DIVISION FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT IT MADE REASONABLE EFFORTS TO PROVIDE SERVICES TO C.V., AS REQUIRED BY PRONG THREE.

POINT IV. THE DIVISION FAILED TO PROVE THAT TERMINATION OF PARENTAL RIGHTS WILL NOT DO MORE HARM THAN GOOD, PURSUANT TO PRONG FOUR.

Having reviewed the record, we conclude that Judge Linda G. Baxter's comprehensive oral opinion, issued on January 2, 2014, is supported by sufficient credible evidence and properly applies the legal standards set forth in N.J.S.A. 30:4C-15.1a. See R. 2:11-3(e)(1)(A). Finding no merit in defendant's appellate contentions, we affirm substantially for the reasons stated in Judge Baxter's opinion.

I

Because the facts are stated in detail in the trial judge's opinion, a summary will suffice here. Defendant has a serious, long-standing drug abuse problem. In December 2011, the child was placed in foster care with her maternal grandmother, after defendant took a combination of heroin, alcohol and prescription drugs, and passed out while the child was in her care.2 When the police and workers from the Division of Child Protection and Permanency (Division) arrived during the December incident, they found crack pipes and syringes in the house. At the guardianship trial, defendant claimed she was using the syringes to practice giving injections as part of her dental hygienist training. Judge Baxter found that testimony incredible.

Defendant tested positive for cocaine, heroin and morphine in December 2012. Despite being offered services, she relapsed in June 2013, and was dismissed from a drug treatment program in July 2013 for refusing to take a drug test. In October 2013, a substance abuse evaluator reported that defendant stated she was not interested in attending a drug rehabilitation program. However, in her trial testimony defendant claimed that the report was inaccurate and she was willing to attend treatment. She admitted that she had not completed any drug treatment program since her 2009 overdose. During the guardianship trial, which was conducted during December 2013 and January 2014, defendant tested positive for opiates. She claimed that a doctor had prescribed Oxycodone to her for back pain.

As a result of defendant's continuing drug problems, and the maternal grandmother's inability to continue caring for the child, she was placed with her paternal aunt in Arkansas.3 At the trial, the aunt testified that defendant behaved inappropriately several times during a September 2013 visit with the child. Among other things, defendant became drunk at the child's birthday party, and later showed up for a family dinner obviously under the influence of either alcohol or drugs. The next day, defendant attended a barbecue briefly but left without even saying good-bye to the child. The aunt also testified that when defendant visited her house, she screamed at the child and demanded to know why the child did not want to live with her. As a result, the child was frightened and upset. Judge Baxter found the aunt's testimony credible.

The Division produced expert testimony from Dr. Linda R. Jeffrey, Ph.D., that defendant suffered from mental health issues as well as drug addiction, was not capable of safely parenting the child, and would need at least two years of therapy before she could possibly do so. Dr. Jeffrey testified that defendant needed formal drug treatment, and attending twelve-step meetings would not be sufficient to address her longstanding and serious addiction problem. Dr. Jeffrey also opined that the child had only an insecure attachment to her mother. On the other hand, Dr. Jeffrey found that the child had the basis of a secure attachment to the aunt, who was a capable parent and could mitigate any harm that might be caused by severing the child's relationship with defendant.4 Dr. Jeffrey testified that the child told her she wanted to live with the aunt. She also testified that it would be devastating to the child if she were taken from the aunt, reunited with defendant, and defendant once again relapsed into drug use.

Defendant's expert, Dr. Ange Puig, agreed with Dr. Jeffrey that defendant had mental health and drug addiction issues. He also agreed that defendant had an "ongoing struggle" with her addiction. However, he opined that the child could gradually be returned to defendant's custody so long as defendant was in treatment for her issues.

Judge Baxter found Dr. Jeffrey entirely credible. The judge did not credit testimony from defendant's expert, because he rendered his opinion without having been provided with critical information. That information included defendant's drug overdose in 2009, her relapse in June of 2013, her refusal to give a drug screen at her treatment program in July 2013, her "bizarre" behavior at the visit in September 2013, and the child's expressed wishes to live with the aunt.

After a comprehensive discussion of the evidence, the judge found that the Division had satisfied all four prongs of the best interests test. N.J.S.A. 30:4C-15.1a. Among other findings, she concluded that defendant "has an addiction that is long standing and severe which is not in remission." She found that defendant had relapsed on multiple occasions, two of which involved defendant collapsing and almost dying while she was caring for the child. The judge also found, contrary to defendant's testimony, that defendant expressed disinterest in drug treatment during the October 2013 evaluation. The judge further found that defendant had failed to consistently visit the child even when she lived in New Jersey, had engaged in frightening and inappropriate behavior in the child's presence, and was incapable of caring for the child despite receiving repeated opportunities for assistance with her drug problem.

The judge credited Dr. Jeffrey's testimony that the child has only an insecure attachment to defendant, and the child's aunt would be able to mitigate any emotional harm to the child caused by termination of defendant's parental rights. The judge found that the child's aunt and her husband were capable, loving parental figures, the child was happy and well-adjusted in their home, and her right to a permanent home was paramount. Judge Baxter concluded that "there comes a time when a child's need for permanency outweighs the parent's right to maintain a relationship with his or her child. And for [S.C.V.] that time has now come."

II

In striking a balance between a parent's constitutional rights and the children's fundamental needs, courts employ the four-part guardianship test articulated in New Jersey Division of Youth and Family Services v. A.W., 103 N.J. 591, 604-11 (1986), and codified as N.J.S.A. 30:4C-15.1a

a. The division shall initiate a petition to terminate parental rights on the grounds of the "best interests of the child" pursuant to subsection (c) of section 15 of P.L. 1951, c. 138 (C. 30:4C-15) if the following standards are met

 
(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.

[N.J.S.A. 30:4C-15.1a.]

In their application, the four factors above "'are not discrete and separate, but relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests.'" N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 167 (2010) (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 606-07 (2007)).

On this appeal, our review of Judge Baxter's decision is limited. We defer to her expertise as a Family Part judge, Cesare v. Cesare, 154 N.J. 394, 413 (1998), and we are bound by her factual findings so long as they are supported by sufficient credible evidence. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J.261, 279 (2007); In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1983). In addition, we owe special deference to a trial judge's credibility determinations. Cesare, supra, 154 N.J. at 413. After reviewing the record, we conclude that Judge Baxter's factual findings are fully supported by the record, and in light of those facts, her legal conclusions are unassailable.

Defendant's appellate arguments are insubstantial and without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following comments.

Defendant contends that the Division failed to prove each of the four prongs of the best interests test. However, defendant's arguments rest on her version of the facts, which the judge found not credible, and her expert's opinion, which the judge likewise found unpersuasive.

Defendant's reliance on Title Nine cases concerning parental drug use is misplaced. See N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 330-31 (App. Div. 2011); N.J. Div. of Youth & Family Servs. v. A.L., 213 N.J. 1, 34 (2013). In V.T., a father twice failed drug tests administered before supervised visits with his eleven-year-old daughter, but there was no proof he behaved inappropriately at the visits or that the daughter knew he had taken drugs. Supra, 423 N.J. Super. at 326, 331. A.L. involved pre-natal drug use, but there was no proof that the unborn child had been negatively affected by the mother's conduct. Supra, 213 N.J. at 29-30. Neither case is on point here, where defendant repeatedly overdosed while caring for her young child; could not safely care for the child for a prolonged period of time due to her drug addiction; still had not completed drug treatment by the time of the guardianship trial; failed to visit the child for months at a time; and subjected the child to frightening and inappropriate behavior.

Affirmed.

1 The child's father voluntarily surrendered his parental rights.

2 In May 2009, a similar event occurred in which defendant passed out while the child was in her care. The Division was alerted but did not substantiate the referral, because defendant denied that she had been using drugs and would not release her medical records to the agency. However, in her trial testimony, defendant admitted that she suffered a heroin overdose on that occasion.

3 The child's father lives in Arkansas. The child was already familiar with the aunt from prior visits with her, and the maternal grandmother recommended the aunt as a caregiver when the grandmother could not continue caring for the child. The record reflects that when the child was at the grandmother's house, defendant sometimes failed to visit the child for months at a time. Defendant claimed her sporadic visitation was her mother's fault.

4 Although it is not the basis for our decision, we note that at an earlier case conference, the aunt appeared and told the judge that she intended to allow defendant to maintain a relationship with the child even if the aunt adopted her. Such a promise is not legally enforceable, but it is consistent with the aunt's description of her repeated efforts to include defendant in family events despite defendant's inappropriate behavior.