NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. J.H.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

A-3778-12T3

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

J.H. and V.B.,

Defendants-Appellants.

___________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF J.B.,

Minor.

___________________________________

February 14, 2014

Submitted January 15, 2014 - Decided

Before Judges Grall, Nugent and Accurso.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Hudson County, Docket No. FG-09-128-12.

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

Joseph E. Krakora, Public Defender, attorney for appellant V.B. (Jennifer L. Gottschalk, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Erin O'Leary, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor J.B. (David Valentin, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendants J.H. and V.B. filed separate appeals of a judgment terminating J.H.'s parental rights to their youngest child, J.B.1 Although V.B.'s parental rights were also terminated, he does not challenge that determination. We consolidated the appeals.

The guardianship proceeding initially involved two children J.B., born in July 2010, and his older brother O.B., born in February 2008. Prior to trial, however, defendants voluntarily surrendered their parental rights over O.B. to his maternal grandmother. Accordingly, this appeal implicates the best interests of J.B. only.

Defendants contend that the Division of Child Protection and Permanency (Division) failed to establish that termination of J.H.'s parental rights is in the best interests of J.B. as defined in N.J.S.A. 30:4C-15.1a(1)-(4). Substantially for the reasons stated by Judge Lipton on March 4, 2013, we affirm. J.B. is the youngest of J.H.'s six children and one of four children born of her relationship with V.B. Not one of them is in the custody of either parent.

J.B. and O.B. were both born prematurely and weighed less than two pounds at birth. J.H. had no prenatal care during either pregnancy, and she tested positive for phencyclidine (PCP) when her sons were born. While there was no evidence that O.B. had PCP in his system at birth, J.B.'s toxicology screen was positive for PCP. Both newborns required hospitalization for months O.B. for two and J.B. for three. J.B.'s condition was extremely serious, so much so that his doctors concluded he required specialized care unavailable in that hospital. Consequently, he was moved, despite the risk of his condition worsening in transport.

Between the birth of O.B. and J.B., the Division did not seek custody or care of any of J.H.'s children. Instead, the Division developed a plan to assist her, and J.H. cooperated with that plan. Indeed, her use of PCP during her pregnancy with J.B. followed what appeared to have been a successful course of treatment for drug abuse and assistance with parenting.

When O.B. was discharged from the hospital in April 2008, J.H. was participating in substance abuse treatment and consistently passing random drug screens. Accordingly, O.B. was discharged to her care.

Thereafter, under the supervision and with the assistance of the Division and her mother, who moved in with J.H. and her children for a time, J.H. completed the substance abuse treatment. The Division also provided homemaker services, payments for utility bills and visits from caseworkers. By all accounts, the children were well cared for during that period. Apart from one domestic violence incident involving a father of one of J.H.'s older children, who visited the home while under the influence, there was no evidence that J.H. was having any difficulty. Indeed, after the domestic violence incident, J.H. continued to cooperate with and pass random drug screens. Consequently, the Division discontinued all services in October 2009. When the Division closed its file, O.B. was living with his maternal grandmother. J.H. and the rest of her children had suitable housing elsewhere, and O.B. was spending some weekends with them.

Because J.H. gave multiple conflicting accounts of the duration and frequency of her drug use during her pregnancy, it is not clear whether J.H. relapsed before or during her pregnancy with J.B. In any event, as J.B.'s condition improved enough to permit his discharge from the hospital, the Division obtained a court order assigning it responsibility for the custody and care of J.B. and O.B. The Division did not, however, seek custody of J.H.'s older children. The Division only obtained authority to supervise the care they received while in J.H.'s custody. The Division obtained the order in mid-September 2010, and J.B. was discharged on October 4.

Although the Division originally planned to reunify the family, it determined that J.B. could not be placed with J.H. immediately because of his fragile condition and her recent relapse. Thus, the Division planned to resume its work with J.H. to address her drug use and parenting.

The Division originally planned to place J.B. and O.B. temporarily with a foster mother who was qualified to address the children's special needs until a relative capable of meeting their special needs could be identified and approved. O.B. was returned to his maternal grandmother's care in November 2010, but the Division determined that she did not have a safe place for J.B. in her apartment.

The Division ruled out the option of placing J.B. with his grandmother because the only window in the room available for J.B. opened on an area between that building and another that was too close to permit a rescue from outside in the event of an emergency. Although the Division offered the grandmother financial assistance that would allow her to move to an apartment that could accommodate both children, she was unwilling to do that because two members of her family who would help her with the children had apartments in the same building and on the same floor as hers.

The Division also considered placing the children with an aunt, but ruled her out because of pending criminal charges, at least until such time as she addressed the charges. Although the aunt took care of that problem, she did not return the Division's subsequent phone calls or complete the Division's approval process.

Having ruled out family members suggested by the parents, the Division left J.B. with the same resource family. J.B. was still considered fragile, primarily because of his respiratory distress syndrome and sepsis. His foster mother was trained to provide, and was effectively providing, his nebulizer treatments, monitoring his sleep apnea and maintaining the dust-free environment he required. Although the Division continued its efforts to reunify J.B. with his family, it did not succeed.

While J.B. was being cared for and nurtured by his foster mother, the Division was providing services to J.H. The Division obtained a psychological evaluation in October 2010 and a psychiatric evaluation in March 2011. Both of the specialists were of the opinion that J.H. was at significant risk for continued abuse of PCP, did not recognize the impact of her drug use on her children and had a history of exercising poor judgment, all of which placed her children at risk. The psychiatrist suspected cognitive limitations consistent with either PCP use or an organic brain disorder, and both recommended that J.H. receive outpatient substance abuse treatment with drug screening to detect relapse. In addition, they suggested therapy assistance in developing the parenting skills she would need to meet J.B.'s special needs.

Between October 2010 and October 2013, when the termination case was tried, the Division provided all of the services recommended plus regular visitation. While J.H. cooperated, she continued to relapse.

J.H. successfully completed a monitored treatment program in July 2011, and the Division determined that the children could be returned to her. But when she appeared for a court hearing to address the return of the children on September 6, she again tested positive for PCP. A week later J.H. was arrested and charged with public drunkenness, assault and resisting arrest, and she was confined until October 4. On October 11, she again tested positive for PCP.

This relapse had serious ramifications. J.H. not only lost an opportunity to assume responsibility for J.B. and O.B., but the court approved the Division's request to free O.B. for adoption by his grandmother. In addition, J.H. lost custody of her older children who had been in her care; they were placed with various family members and friends.

The Division also altered its permanency plan for J.B. from reunification with J.H. to adoption. By December 2011, the Division had reconsidered but again ruled out J.B.'s maternal grandmother and aunt because nothing had changed, and the court approved a plan for adoption by J.B.'s foster mother. J.B. was doing well in her care, and she wanted to adopt him and maintain his contacts with his mother and siblings.

Despite the change in J.B.'s and O.B.'s permanency plans, the Division continued to provide services to J.H. Again she cooperated. Between December 2011 and March 2012, J.H. successfully completed another round of substance abuse treatment, participated in individual counseling, and passed parenting skills training. Additionally, J.H. was very consistent, albeit not perfect, in attending scheduled visitations, and there was no evidence of any untoward behavior during any of her many visits.

The only service J.H. declined was vocational training. She explained that she did not want to and did not have to work because her boyfriend of one year was supporting her.

Importantly, psychological evaluations done prior to trial did not reflect any improvement in J.H.'s capacity to parent or her appreciation of the impact of her drug use on her ability to care for her children. According to the reports, the risk of J.H.'s relapse had not dissipated, and she still exhibited cognitive impairment and emotional disorders. For example, J.H. did not recognize that J.B. had special medical or emotional needs and without that recognition was not equipped to deal with those needs. Dr. Barry Katz, who did the final psychological evaluation and a bonding evaluation, testified at trial. In his opinion, J.H.'s cognitive deficits and personality disorder were organic and attributable to her use of PCP.

Dr. Katz and another bonding expert concluded that J.B.'s primary bond was with his foster mother and that he had no secure attachment with J.H. Both concluded that separation of J.B. from his foster mother would be traumatic for the child. In Dr. Katz's opinion, J.H. would be unable to ameliorate the harm of severing J.B.'s bond with his foster mother due to cognitive and emotional problems which impaired her judgment. In his opinion, J.B. would be at "substantial risk for neglect and potential abuse," if returned to J.H.'s care. Termination of J.H.'s parental rights would not harm J.B., but placing J.B. in her care would put him at risk.

On the forgoing evidence, Judge Lipton found that termination of J.H.'s parental rights was in J.B.'s best interests, as defined in N.J.S.A. 30:4C-15.1a and applied by our courts. The judgment is based on findings of fact that are adequately supported by evidence, R. 2:11-3(e)(1)(A); N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008), and the judge's determination is not wide of the mark, N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012), or otherwise a product of abuse of discretion or misunderstanding of the law.

The law governing termination of parental rights is well-settled. The standards are codified and set forth in a four-prong test. N.J.S.A. 30:4C-15.1a(1)-(4). Termination is permissible only if the Division presents clear and convincing evidence establishing that:

(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.

[Ibid.]

Our review of the trial court's application of the facts of this case to these standards is limited. We "must determine whether a trial court's decision in respect of termination of parental rights was 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). We may not disturb the trial court's findings "unless they are so wholly unsupportable as to result in a denial of justice." Ibid. (quoting In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). And, even where the appellant "allege[s] error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom," deference must be afforded unless the court "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) (citations omitted).

Judge Lipton carefully reviewed the evidence that we have summarized above. She found the harm required by prongs one and two of the best interests standard was established by J.H.'s failure to seek prenatal care, use of PCP during pregnancy and inability to provide the care J.B. needed following his discharge due to her relapse, which prolonged the period during which she was unable to care for the child. There is no question that "[a] parent's withdrawal of . . . solicitude, nurture, and care for an extended period of time is in itself a harm that endangers the health and development of the child." In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999). Rightly in our view, Judge Lipton viewed the relapse occurring just before a hearing scheduled to consider the return of J.B. and O.B. to her care as indicative of J.H.'s poor judgment and of her inability or unwillingness to provide the care J.B. needed.

The judge also determined that the record clearly and convincingly established that the Division made reasonable efforts to assist J.H. in addressing her problems and considered alternatives to termination. We have described the Division's extensive and repetitive efforts and see no basis for disturbing the judge's finding. There was no recommendation for any service that the Division did not provide. Moreover, as the judge found, there was no other alternative to termination that would meet J.B.'s needs. His maternal grandmother, who was the only option, declined the Division's offer of assistance to find appropriate housing in another building, even though there was no apartment meeting the Division's standards available in her building.

Finally, the judge determined that termination of J.H.'s parental rights would not do more harm than good to J.B. The expert testimony amply supports that determination. As the judge found, J.B. has special needs that are being addressed by a foster mother who wants to adopt him and with whom he has a strong bond. In contrast, no expert found that J.B. had a secure bond with J.H. and, as the judge put it, Dr. Katz testified that J.H. "is lacking the wherewithal to compensate [for] the trauma [J.B.] would experience in being removed from the foster mother and foster home." J.B. is, as the judge said, "entitled to permanency."

We have considered the other arguments J.H. and V.B. present to establish error in the judge's determination and found them to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Accordingly, we have no basis to disturb the judgment.

Affirmed.

1 The State does not question V.B.'s right to object to the determination of J.H.'s parental rights.