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

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1098-15T2

NEW JERSEY DIVISION OF

CHILD PROTECTION AND

PERMANENCY,

Plaintiff-Respondent,

v.

N.H.,

Defendant-Appellant,

and

E.B.,

Defendant.

________________________________

IN THE MATTER OF THE

GUARDIANSHIP OF I.N.S.B.,

a Minor.

________________________________

November 21, 2016

Submitted October 13, 2016 Decided

Before Judges Lihotz and O'Connor.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FG-08-28-15.

Joseph E. Krakora, Public Defender, attorney for appellant (Anthony J. Vecchio, Designated Counsel, on the brief).

Christopher S. Porrino, 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 (Christopher A. Huling, Designated Counsel, on the brief).

PER CURIAM

Defendants N.H. (mother) and E.B. (father) are the biological parents of I.H. (Illana), presently twelve-years of age.1 The mother appeals from a guardianship judgment, which ordered the termination of both defendants' parental rights to Illana; the father has not appealed from this judgment. The mother argues the Division of Child Protection and Permanency (Division) failed to prove by clear and convincing evidence the four-prong standard codified by the Legislature in N.J.S.A. 30:4C-15.1(a)(1) (4).2 For the reasons that follow, we affirm.

I

In 2010, the Division became involved with the mother after Illana's maternal grandfather contacted the Division, expressing concern the mother's addiction to prescription drugs was impairing her ability to safely parent Illana. For the ensuing five years, the Division expended extensive efforts to help the mother cope with significant mental health problems and overcome her abuse of prescription medications. When the mother was unable to surmount her struggles with addiction and mental illness, the Division filed a guardianship complaint seeking the termination of her parental rights to Illana. By the time of trial, Illana had been living with her resource mother, B.G. (Beth), just shy of four years; Beth wants to adopt Illana.

We set forth the pertinent testimony of psychologists James L. Loving, Psy.D, and Linda R. Jeffrey, Ph.D., both of whom the court found highly credible, because their opinions provided the basis for the trial court's findings that the Division met all of the prongs in N.J.S.A. 30:4C-15.1(a).

Dr. Loving conducted a psychological evaluation of the mother in February 2015. During that evaluation, the mother admitted she had been physically dependent upon opioids for approximately four years, which she had been taking to control pain from injuries sustained in a 2002 car accident. The mother also reported she had been battling anxiety and depression for a number of years and, not only had she been hospitalized for these conditions, but also had attempted suicide three times. Her attempts at suicide were triggered by feeling stressed and overwhelmed.

To help her cope with anxiety and depression, the mother abused medications prescribed to control these conditions. Specifically, she ingested more pills and at a greater frequency than prescribed. She also engaged in "doctor shopping," the practice of visiting multiple doctors to obtain more medication than prescribed by a treating doctor.

The mother admitted to Dr. Loving she initially failed to consistently utilize services the Division offered to address her mental health and substance abuse problems, but she eventually fully participated in the services and, by December 2013, ceased abusing her medication. At the time of Dr. Loving's evaluation, she was taking only the prescribed dosage of medication her treating doctor had ordered for depression and insomnia, and claimed she was able to manage her physical pain without narcotics. When he testified in August 2015, Dr. Loving learned the mother had stopped taking all medications and had ceased going to therapy.

Dr. Loving acknowledged the mother had made genuine efforts to overcome her substance abuse problems, but remained at moderate risk for relapsing and resorting to abusing prescription medications. In his opinion, she was, first, in chronic pain. Second, she had a long history of severe mental health problems, which included depression, anxiety, manic behavior, and a form of psychosis that manifested itself through auditory hallucinations. These mental health conditions interfered with her ability to cope, making her susceptible to becoming overly stressed. When feeling overwhelmed, her behavior becomes erratic or she is tempted to abuse prescribed medication in an effort to handle her feelings of stress. He also noted the mother needed, but was not taking, psychotropic medication and required therapy to remain stable.

Dr. Loving also conducted a bonding evaluation of the mother and the child. He found the mother to be "appropriate," but the child "negative, reserved, and disinterested." He further found the child had a strong attachment to the mother, but it was an attachment that caused her pain.

During the bonding evaluation of the child and Beth, Dr. Loving noticed Illana was relaxed, comfortable, and sought out and freely interacted with Beth. He concluded Illana's relationship with Beth to be strong and healthy. In a private session with the child, Illana told Dr. Loving she loved and wanted to continue seeing her mother, but did not want to live with her. Illana made it clear she wanted to live with Beth, indicating she felt "safer" with Beth than with her mother.

Dr. Loving opined if removed from Beth's care, Illana would be at increased risk for experiencing serious and enduring harm, but she also would be at an increased risk for suffering the same kind of harm if her mother's rights were terminated. However, any harm the child might sustain if her mother's rights were terminated would be mitigated by the psychological and emotional benefits of being with Beth. On the other hand, the mother does not have the ability to mitigate the risk of harm to which the child would be exposed if removed from Beth's care.

Dr. Loving was recalled as a witness at the end of the trial because he had discovered on "NJRX.com"3 the mother had obtained Ambien, Percocet, Xanax, Ativan and Klonopin from "other doctors" since February 2015, suggesting she was again doctor shopping and abusing prescription medication. Dr. Loving reported his discovery to the Division. Although when he initially testified Dr. Loving found the mother at moderate risk for abusing prescription drugs again, his discovery she was seeking drugs caused him to conclude she was now at a higher than moderate risk for relapsing and abusing prescription drugs. He conceded he is not aware of any drug tests that revealed she had in fact taken any of the subject five drugs.

Dr. Jeffrey's testimony was consistent with Dr. Loving's. Dr. Jeffrey conducted a psychological evaluation of the mother in July 2015, and concluded she had serious mental illnesses that had a poor prognosis. Because her conditions are chronic, the mother requires continuing therapy and the appropriate medication. Further, the mother's condition made her vulnerable to decompensation in the face of stress and crisis. In Dr. Jeffrey's opinion, the mother cannot provide even a minimal level of safe parenting and thus, the child should not be in her care. If placed in her mother's care, Illana would be at risk for sustained serious and enduring harm.

Dr. Jeffrey also conducted a bonding evaluation of the child and the mother, as well as the child and Beth. Dr. Jeffrey found the child had an insecure attachment to her mother, who does not give Illana a secure base from which to develop. Illana did not relate to her mother as a source of security or as a parenting authority. Dr. Jeffrey commented a child who has an insecure attachment with a parent has a sense she is not loved, which "can be hard to reach later in therapy."

By contrast, Illana perceives Beth as a parent, with whom Illana has a warm and affectionate relationship and a secure attachment. Beth is Illana's psychological parent; Beth is the person Illana depends upon to fulfill her needs and provide solace and understanding. Illana considers her home to be Beth's home. The severance of the secure attachment she has with Beth would be a "great loss" to Illana. Dr. Jeffrey also noted that when she spoke to the child alone, Illana confided she wanted to live with Beth, although she did want to visit her mother.

The mother did not testify, but she did call psychologist John Quintana, Ph.D. The trial court did not find his testimony to be as credible as Dr. Loving's and Dr. Jeffrey's but, for completeness, we summarize his pertinent testimony. Dr. Quintana commented Beth is a "great foster mother" and can provide structure for Illana, but the child "acts out" when she does not have contact with her mother. Although Illana told Dr. Quintana her home is with Beth, Illana also said she does not want to lose contact with her mother.

Dr. Quintana was of the opinion the child would not be at risk for serious and enduring harm if removed from Beth's care, but would be if the mother's rights were terminated. His conclusion was based upon the fact the child became upset when the mother missed visitation, and his belief Beth was not serious about adopting Illana. He recommended the child remain in Beth's home but maintain a relationship with and engage in therapy with her mother. Because of the discovery during the trial the mother had recently engaged in drug-seeking conduct, Dr. Quintana also recommended the mother engage in intensive substance abuse treatment before there was any attempt at reunification.

Beth testified she is committed to raising Illana. The trial court found Beth's "emotional testimony" that adopting Illana "would be wonderful" to be very credible. Further, "[h]er testimony that [Illana] was destined to be part of [Beth's] family was compelling."

II

On appeal, the mother's primary contentions are the trial court erred because: (1) there is insufficient evidence to support its findings on the first, second, and fourth prongs of N.J.S.A. 30:4C-15.1(a); (2) the Division failed to offer the mother and Illana family counseling, which is "fatal to the trial court's finding" on the third prong; and (3) the court should have ordered kinship legal guardianship, see N.J.S.A. 3B:12A-1 to -7, because Beth was ambivalent about adopting Illana, the child's relationship with Beth was deteriorating before the guardianship trial, the mother was in remission from abusing substances, and the mother and child have a close relationship. We reject the mother's challenges to the evidence undergirding the judgment of guardianship and affirm.

It is well established that when seeking the termination of a parent's rights the Division has the burden of establishing, by clear and convincing proof, all four factors in N.J.S.A. 30:4C-15.1(a). The four criteria 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." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999); see also N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 167 (2010). Importantly, the Division bears the burden of establishing each prong by clear and convincing evidence. N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 506 (2004).

In applying these criteria, our courts have been mindful as we are here that the permanent termination of a parent's relationship with her child implicates fundamental constitutional interests. See, e.g., N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 102 (2008) (noting the constitutional protection afforded to "[t]he right of a parent to raise a child and maintain a relationship with that child, without undue interference by the [S]tate"); see also In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999).

Our scope of review on appeals from judgments terminating parental rights is limited. In such cases, the trial court's findings should be upheld so long as they are supported by "adequate, substantial, and credible evidence." N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014). A decision in this context should be reversed or altered on appeal only if the trial court's findings were "so wholly unsupportable as to result in a denial of justice." P.P., supra, 180 N.J. at 511. We must give substantial deference to the trial judge's opportunity to have observed the witnesses first hand and to evaluate their credibility. R.G., supra, 217 N.J. at 552. We also must recognize the considerable expertise of the Family Part, which repeatedly adjudicates cases brought by the Division under Title 9 and Title 30 involving the alleged abuse or neglect of children. See, e.g., N.J. Div. of Youth & Family Servs. v. A.R.G., 361 N.J. Super. 46, 78 (App. Div. 2003), aff'd in part and modified in part, 179 N.J. 264 (2004) and certif. denied, 186 N.J. 603 (2006).

Applying these well-settled standards, we are satisfied the trial court's assessment of this case is amply supported by the record and consistent with the governing law. Addressing the first two prongs, it was clearly established by the Division's proofs Illana's safety, health, or development will be endangered by her relationship with her mother, who is unable to eliminate the harm facing the child. Proof the second prong has been met may include evidence that separating the child from his or her resource parent would cause serious and enduring emotional or psychological harm to the child.

Here, the trial court found Dr. Loving and Dr. Jeffrey credible. Dr. Loving opined the mother is at a moderate or higher risk for abusing prescription drugs in the future because of her severe mental health problems. If under stress, not only can her behavior become erratic, but she may also resort to abusing prescription medication in an effort to obtain relief. Dr. Jeffrey similarly concluded the mother has a chronic mental illness that makes her vulnerable to decompensation if under stress or in crisis. She opined the mother cannot provide even a minimal level of safe parenting and therefore the child should not be placed in her care.

In her brief, the mother argues there is no evidence she caused Illana any actual harm. However, the absence of physical abuse or neglect does not mean the Division cannot satisfy the first prong. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 605 (1986) (quoting In re Guardianship of R.G. & F., 155 N.J. Super. 186, 194 (App. Div. 1977)) (referring to prong one). A court does not have to wait until a child is "irreparably impaired by parental inattention or neglect" before it acts. In re Guardianship of Dmh, 161 N.J. 365, 383 (1999) (citing A.W., supra, 103 N.J. at 616 n.14). The first prong can be proven by showing with clear and convincing evidence the child's safety, health, or development will be endangered by a parental relationship.

While the mother may be willing to overcome the risk of again abusing prescription drugs, she has not eliminated that risk since Illana was removed from her care over five years ago, and there is no evidence the mother will be able to remove or reduce this risk in the future.

Instability and lack of permanency adversely affects the development of a child, and the child's best interests cannot be sacrificed because of a parent's inability to address potential future harms, despite his or her willingness to try. See N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div.), certif. denied, 180 N.J. 456 (2004). A "delay in permanent placement becomes a harm in and of itself," N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 434 (App. Div. 2001). We emphasize New Jersey's strong public policy favors permanency in a child's residential placement. K.H.O., supra, 161 N.J. at 357-58.

Further, Dr. Loving and Dr. Jeffrey opined separation from Beth would cause Illana serious and enduring harm. While Dr. Quintana found otherwise, the court found Dr. Loving and Dr. Jeffrey more credible than Dr. Quintana, a finding to which we must defer.

As for the third prong, the mother complains the Division failed to afford her and the child family counseling. However, the mother and the child did engage in therapeutic visitation and in-home counseling. Further, we are satisfied the trial court did not err when it declined to order kinship legal guardianship. The mother argues the court should have ordered this alternative to the termination of her parental rights because Beth was ambivalent about adopting Illana, the child's relationship with Beth was deteriorating before the guardianship trial, the mother was in remission from abusing substances, and she and the child have a close relationship. There is no merit to any of these arguments.

Beth credibly testified she wanted to adopt Illana. There was evidence Illana's attachment to Beth was strong, healthy, warm, and affectionate. Although the child "acted out" at times when with Beth, as Dr. Jeffrey explained, Illana did so because she feels so secure with Beth. Finally, although there was no evidence the mother had abused drugs for well over a year before the trial, at the time of the trial she had engaged in drug-seeking activity. More important, because of her mental illnesses, there is the risk when feeling stressed or overwhelmed, she will resort to abusing prescription medications.

With respect to the fourth prong, Dr. Loving opined Illana would be at increased risk for serious and enduring harm if removed from Beth's care. Illana would be at an increased risk for suffering the same kind of harm if her mother's rights were terminated, but Beth will counter Illana's loss of her mother by making Illana feel safe and secure. The mother does not have a comparable ability to ameliorate the harm Illana would suffer were she removed from Beth's care.

Finding no error or basis to interfere with the trial court's conclusion to enter the judgment of guardianship, we affirm.

Affirmed.

1 In this opinion we use initials or pseudonyms to protect the privacy of the family and certain witnesses.

2 These four prongs are

(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-15.1(a)(1)-(4).]

3 The evidence did not clearly identify what this site was and how it assisted the doctor to discover the mother obtained medication from other doctors.