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

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3359-07T43359-07T4

A-2034-08T4

NEW JERSEY DIVISION OF YOUTH AND

FAMILY SERVICES,

Plaintiff-Respondent,

v.

M.M.B.,

Defendant-Appellant.

______________________________________

IN THE MATTER OF THE GUARDIANSHIP OF

A.J.T.,

Minor.

_______________________________________

 

Argued September 29, 2009 - Decided

Before Judges Reisner, Yannotti and Chambers.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket Nos. FG-15-60-07 and FN-15-04-07.

Thomas G. Hand, Designated Counsel, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Mr. Hand, on the briefs).

Lisa F. Nemeth, Deputy Attorney General, argued the cause for respondent (Anne Milgram, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel in A-3359-07T4; Melissa H. Raksa, Assistant Attorney General, of counsel in A-2034-08T4; Ms. Nemeth, on the briefs).

Phyllis G. Warren, Assistant Deputy Public Defender, argued the cause for minor (Yvonne Smith Segars, Public Defender, attorney, Law Guardian; Ms. Warren, on the briefs).

PER CURIAM

In these back-to-back appeals, M.M.B. appeals the order of September 19, 2006, continuing her son A.J.T.'s placement in the custody, care, and supervision of the Division of Youth and Family Services (Division), and the order of January 23, 2008, terminating her parental rights to A.J.T. We affirm.

I

We discern from the record the following salient facts and procedural history. A.J.T. was born on June 23, 2005, to M.M.B. and A.T. The Division's involvement with this child began on July 10, 2006, when the Division received an anonymous call that M.M.B. was using heroin and methadone and that M.W., the child's grandmother, used marijuana. In response, the Division sent a caseworker to the home where the child lived with his mother, aunt, maternal grandmother, and step-grandfather. The grandmother acknowledged that she and her husband smoked marijuana regularly, and advised that she had done so forty-five minutes before the worker's visit. The caseworker observed that the grandmother's eyes were dilated. The grandmother also indicated that until recently, A.T., the child's father, had lived in the household and that he was a heroin user. In addition, M.M.B. still saw him daily. The grandmother also had an open Division case regarding another daughter. She advised that M.M.B. was in recovery for heroin use and had been attending a methadone clinic for the past three weeks. The child attended day care, and M.M.B., the grandmother, and step-grandfather were all employed. The home was found to be in an unkempt condition.

The caseworker's attempt to put in place a safety protection plan met resistance. M.M.B. declined to sign releases allowing the Division to obtain her urine screens from the methadone clinic. The grandmother refused to stop smoking marijuana or to complete a treatment program. The step-grandfather was uncooperative. As a result, the child was removed from the home on an emergent basis under N.J.S.A. 9:6-8.29. A medical exam revealed that the child was healthy.

The Division filed a Title 9 protective services complaint pursuant to N.J.S.A. 9:6-8.21 to -8.73, with docket number

FN-15-04-07, (the protective services action) against M.M.B., the grandmother, and step-grandfather, seeking the continuing care and custody of A.J.T. At the hearing on July 12, 2006, the Division advised the court that M.M.B. had stopped going to the methadone clinic on July 3, 2006, and that she had not provided the clinic with her urine screens. Without receiving methadone, M.M.B. would be very sick unless she had gone back to taking the heroin. M.M.B. acknowledged that she had been a heroin user since the age of seventeen; she described her desire to be free of this habit; and she explained why she left the methadone clinic. The grandmother testified that she did not take marijuana and that she had lied to the caseworker about her use of that drug allegedly in order to keep the Division involved regarding her other daughter.

The trial court issued an order to show cause why the child should not remain under the custody, care and supervision of the Division. On the return date, provisions were made for defendant to undergo psychological and substance abuse evaluations and to attend parenting skills training, and the child was continued in foster care.

At the subsequent fact-finding hearing on September 19, 2006, M.M.B. stipulated to abuse and neglect, namely, that due to her ongoing substance abuse issues, she was in need of the Division's services to stabilize herself and have A.J.T. returned to her care. Thereafter, M.M.B. tested positive for opiates and missed several visits, parenting classes, and substance abuse evaluations.

In a psychological evaluation conducted on October 12, 2006, Dr. Alan J. Lee found that M.M.B.'s "overall cognitive and intellectual functioning appears to be fairly adequate and free of severe overall deficits or disease." Although M.M.B. was found to be immature with "some maladaptive aspects of her personality functioning," Dr. Lee found at that time that reunification of M.M.B. with her child was a viable goal. He recommended that she undergo an updated substance abuse evaluation, urine monitoring, psychotherapy, parenting education, and vocation or occupational training. In his psychological evaluation of the grandmother dated October 19, 2006, Dr. Lee recommended that certain services also be provided to her before reunification.

In December 2006, M.M.B. was admitted to a detoxification facility due to her drug use. M.M.B. successfully completed the program. On March 1, 2007, A.J.T. was returned to her, and the mother and child were placed in a "Mommy and Me" program in a halfway house. An order was entered on March 19, 2007, finding that the Division's plan for the child's reunification with M.M.B. was appropriate and acceptable.

On April 25, 2007, less than two months after M.M.B. entered the "Mommy and Me" program, the Division learned that M.M.B. had relapsed and taken heroin. She tested positive for opiates, and the child was removed from her care on an emergent basis. Shortly after that removal, the child was placed with the foster parents who previously had cared for him. He was still with those foster parents at the time of the termination hearing.

At the court hearing of May 30, 2007, M.M.B. stipulated to a finding of abuse and neglect on the basis that she had relapsed, thereby placing the child at risk. The court entered a permanency plan for termination of M.M.B.'s parental rights. M.M.B. did not consent to this plan, and the Division agreed to continue to provide her with services. On July 16, 2007, the Division filed a Title 30 guardianship complaint pursuant to N.J.S.A. 30:4C-15 with docket number FG-15-60-07 to terminate M.M.B.'s parental rights (the termination of parental rights action), and the protective services action was dismissed.

M.M.B. did not appear for the guardianship trial for the termination of her parental rights held on January 23, 2008. Her attorney advised the court that his client had contacted him the preceding day to advise that she was in California, hoping to be admitted into a substance abuse program there. He requested that his client be allowed to appear by telephone so that she could hear the Division's case. The court denied this request, explaining that the court would not be able to identify the person on the phone. Although the State requested that M.M.B.'s failure to appear be treated as a default, the judge did not grant that request. M.M.B.'s attorney was given an opportunity to object to the admission of the Division's exhibits into evidence, to cross-examine its witness, to present evidence, and to make a closing statement, although he did not do so. The judgment terminating M.M.B.'s parental rights states that it was entered after a trial, not after a proof hearing.

At trial, the Division presented the testimony of an adoption specialist working for the Division and voluminous exhibits reflecting the facts noted above were admitted into evidence. The witness recounted the various services the Division had offered M.M.B., including parenting classes, substance abuse and individual counseling, psychological evaluations, a thirty-two day in-patient program, and the "Mommy and Me" program. The witness also enumerated the various relatives who had been approached about placement and testified that those inquiries proved unsuccessful. She indicated that A.J.T.'s current caretakers, who had cared for him for a total of thirteen months by that time, wanted to adopt him.

Dr. Lee's psychological evaluations of M.M.B. and the maternal grandparents and the bonding evaluations of the child with M.M.B. and the foster parents were included in those exhibits. In his psychological assessment of M.M.B. on November 20, 2007, Dr. Lee found that M.M.B. "remains a very heightened risk for substance abuse relapse." Noting her recent relapse, Dr. Lee wrote that she continued to have problems "despite her having been involved in numerous and repeated efforts to abate her substance abuse." He did not recommend A.J.T.'s reunification with M.M.B. as a permanent plan for the child. By June 28, 2007, Dr. Lee had conducted psychological evaluations of the grandmother and step-grandfather, and for the reasons expressed in his reports, he did not recommend that they serve as independent caregivers for A.J.T.

In his bonding evaluations conducted on December 17, 2007, Dr. Lee found that while the child recognized his mother and "seems to enjoy some elements and the interaction that they have," he nonetheless concluded that "there appears a relatively low risk of severe, enduring, or irreparable psychological harm to [A.J.T.] if his relationship with his birth mother was permanently ended." With respect to A.J.T.'s foster parents, Dr. Lee found that A.J.T. had "formed a significant psychological attachment and psychological bond" with them and that terminating that relationship would cause A.J.T. "severe, enduring, and irreparable psychological harm."

While the law guardian did not object to the termination of parental rights, she did request that the child be placed with family members.

II

The trial judge found by clear and convincing evidence that termination of parental rights was in the child's best interests, following the four-prong test set forth in N.J.S.A. 30:4C-15.1.

Regarding the first prong, the trial court recounted the history of the case and the numerous times M.M.B. relapsed into substance abuse. The court noted that as recently as October 2007, M.M.B. had completed a substance abuse program and reunification was being considered, and then in December 2007, she relapsed again, testing positive for opiates and cocaine. The court concluded that the Division had proven "that this child's safety, health and development was continued to be endangered by the parental relationship."

With respect to the second prong, in light of M.M.B.'s ongoing drug abuse, despite participation in a number of programs, the trial court found that M.M.B. was unable to eliminate the harm.

Finding that the third prong had been met, the trial court recounted efforts by the Division to locate family members to take the child and noted that the grandparents were not cleared for placement. It concluded "that 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 that alternatives to terminating M.M.B.'s parental rights were considered. The court also acknowledged the many services that the Division had provided to M.M.B.

With respect to the fourth prong, the trial court found that termination of parental rights will not do more harm than good. The court stated that "[t]he situation here is that a sufficient amount of time has gone by for there to be a realization that this could go on forever. We have had a number of relapses with regard to the mother." Quoting from 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), the court noted that "[t]he emphasis has shifted from protracted efforts for reunification with a birth parent to an expeditious, permanent placement to promote the child's well-being." The court also considered the findings of Dr. Lee that terminating the child's relationship with his foster parents would cause him severe and irreparable harm.

III

On appeal, M.M.B. raises a variety of issues. In her appeal in the protective services action (A-2034-08), M.M.B. argues:

POINT ONE

[THE DIVISION] NEVER ESTABLISHED A BASIS TO OBTAIN JURISDICTION OF THIS CASE AND [M.M.B.'S] COUNSEL WAS INEFFECTIVE FOR FAILING TO HAVE THE MATTER DISMISSED (Not Raised Below).

A. Removal of A.J.T. on July 10, 2006 Was Improper.

B. [The Division] Provided No Competent Reliable Independent Evidence To Support Its Claim That A.J.T. Was Abused Or Neglected.

C. [The Division] Provided No Tie Between [M.M.B.'s] Alleged Drug Use And Abuse Or Neglect Of A.J.T.

POINT TWO

NEITHER OF [M.M.B.'S] STIPULATIONS WERE KNOWING AND VOLUNTARY BECAUSE SHE RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN SHE MADE BOTH OF HER STIPULATIONS (Not Raised Below).

A. [M.M.B.'s] September 19, 2006 Stipulation was Not Knowing and Voluntary.

B. [M.M.B.'s] May 30, 2007 Stipulation Was Not Knowing And Voluntary.

In her appeal in the termination of parental rights action (A-3359-07), M.M.B. argues:

POINT ONE

THE GUARDIANSHIP HEARING WAS DEFECTIVE AND VIOLATED [M.M.B.'S] FEDERAL AND STATE RIGHTS TO DUE PROCESS AND FUNDAMENTAL FAIRNESS (Not Raised Below).

A. Default Judgment Could Not Have Been Entered On January 23, 2008.

B. [The Division] Failed To Produce Necessary Evidence To Support Its Case At The Default Hearing.

C. [The Division] Attempted To Use Procedures From Title 9 and Title 30 To Circumvent Its Own Duties Related to the Appeal Of [M.W.'s] Rule-Out Letter.

D. By Relying On An Incomplete Record To Make Her Ruling [the trial judge] Violated The Terms of Matthews v. Eldridge.

E. [The Division] Used Incompetent And Unreliable Evidence To Support A Finding Of Abuse Or Neglect Against [M.W.]

POINT TWO

[M.M.B] WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL (Not Raised Below).

IV

M.M.B. contends that she had ineffective assistance of counsel in both the protective services action and in the termination of parental rights action. A parent has a right to effective assistance of counsel in a termination of parental rights case and in a protective services action. See N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 305-07 (2007); N.J. Div. of Youth & Family Servs. v. B.H., 391 N.J. Super. 342-46 (App. Div.), certif. denied, 192 N.J. 296 (2007). When determining whether counsel has been ineffective, the Court applied the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). N.J. Div. of Youth & Family Servs. v. B.R., supra, 192 N.J. at 308-09; N.J. Div. of Youth & Family Servs. v. B.H., supra, 391 N.J. Super. at 346-47. Under that standard, for counsel to be considered ineffective, two criteria must be met:

(1) counsel's performance must be objectively deficient - i.e., it must fall outside the broad range of professionally acceptable performance; and (2) counsel's deficient performance must prejudice the defense - i.e., there must be 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'

[N.J. Div. of Youth & Family Servs. v. B.R., supra, 192 N.J. at 307.]

The issue of ineffective assistance of counsel is properly raised in the direct appeal of a termination of parental rights case. Id. at 311. "[A]ppellate counsel must provide a detailed exposition of how the trial lawyer fell short and a statement regarding why the result would have been different had the lawyer's performance not been deficient. That will include the requirement of an evidentiary proffer in appropriate cases." Ibid. We may resolve the question of ineffective assistance of counsel on the appeal record alone, unless a genuine issue of fact is present, in which case we must remand for an expedited hearing before the trial court on the factual question. Ibid.

After a careful review of the record, we conclude that defense counsel was not ineffective. We reject M.M.B.'s argument that her trial counsel was ineffective at the July 12, 2006 hearing, the first hearing before the trial court, for failing to seek dismissal of the complaint because the emergency removal was improper and for failing to argue that the Division had insufficient proofs to establish abuse and neglect warranting its continuing custody of the child. Under the circumstances facing the caseworker noted above, including the fact that both parents were heroin users, that the maternal grandparents regularly used marijuana, that the house was in disarray, and that the grandmother had an open case with the Division regarding another child, as well as the unwillingness of M.M.B. and the grandparents to cooperate with a safety protection plan, we conclude that the record is sufficient to support the emergency removal and the trial court's decision to continue the child in the Division's custody and care on July 12, 2006.

Further, we note that N.J.S.A. 9:6-8.29 permits an emergency removal of a child from a home "if the child is in such condition that his continuance in said place or residence or in the care and custody of the parent or guardian presents an imminent danger to the child's life, safety or health." The law does not require that a child experience actual harm before he may be removed from an unsafe home. In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999) (stating that "[c]ourts need not wait to act until a child is actually irreparably impaired by parental inattention or neglect."). Even if defense counsel had raised the specific legal arguments proffered by appellate counsel, we see no reasonable probability that the trial court's decision would have been any different, given the factual evidence presented supporting the Division's application.

We also reject M.M.B.'s argument that her trial counsel was ineffective for allowing her to enter into the stipulation on September 19, 2006, that she was in need of the Division's services due to her drug abuse and the stipulation of May 30, 2007, to abuse and neglect, due to her relapse into drug abuse. The determination of abuse and neglect was based on M.M.B.'s drug usage and not any other conduct. The evidence in the record supports the factual basis of the stipulations, namely M.M.B.'s drug abuse, and no evidence has been submitted to this court contradicting the stipulation that M.M.B. had lapsed into drug abuse at that time.

V

With respect to M.M.B.'s appeal of the trial court's decision in the termination of parental rights action, we recognize that parental rights will be terminated when, by clear and convincing evidence, the Division establishes that to do so is in the best interests of the child. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 103 (2008). In evaluating whether parental rights should be terminated under this standard, the courts apply the four-part test first enunciated in N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986), and now codified in N.J.S.A. 30:4C-15.1(a). Under that test, the following four prongs must be proved by clear and convincing evidence in order to terminate parental rights:

(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 [d]ivision 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).]

These four prongs "are neither discreet nor separate. They overlap to provide a composite picture of what may be necessary to advance the best interests of the children." N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 258 (App. Div. 2005).

We are mindful that our review of the trial court's decision is limited. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008). We will not disturb the factual findings of the trial judge 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)). Further, we accord deference to the fact-finding of the family court, recognizing its special expertise in this area. Cesare v. Cesare, 154 N.J. 394, 413 (1998). However, "'[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.'" N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 89 (App. Div. 2006), certif. denied, 190 N.J. 25 (2007) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

We have considered the trial court's decision in light of these legal standards and conclude that the trial court's decision to terminate parental rights was supported by clear and convincing evidence in the record. The mother's drug addiction and relapses into drug use despite participation in a number of programs rendered her unfit to parent this child. Further, "[c]hildren must not languish indefinitely in foster care while a birth parent attempts to correct the conditions that resulted in an out-of-home placement." N.J. Div. of Youth & Family Servs. v. S.F., 392 N.J. Super. 201, 209 (App. Div.), certif. denied, 192 N.J. 293 (2007) (referring to a kinship legal guardianship determination).

M.M.B. contends that the grandmother was improperly ruled out as a caregiver for the child and raises numerous procedural issues and alleged improprieties with respect to the trial court's and the Division's handling of the grandmother's desire to become the caregiver for the child. The brief argues that the grandmother's rights were violated. This appeal is not the proper procedural vehicle to vindicate the grandmother's rights; she is not the appellant here; she has not appealed the finding of abuse and neglect against her in the protective services proceeding; she did not intervene in the termination proceedings. To the extent M.M.B. is attempting to prevent the termination of her parental rights on the basis that the grandmother is an appropriate caregiver, we reject this argument. When adoption is feasible and likely, kinship legal guardianship is not an alternative to termination of parental rights and need not be considered under prong three. N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 512-13 (2004).

Affirmed.

 

A.T.'s parental rights have been terminated, and that decision is not a subject of this appeal.

(continued)

(continued)

19

A-3359-07T4

RECORD IMPOUNDED

October 27, 2009