NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. A.H.

Annotate this Case

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3880-08T4

NEW JERSEY DIVISION OF YOUTH
AND FAMILY SERVICES,

Plaintiff-Respondent/
Cross-Appellant,

A.H.,

Defendant-Appellant/
Cross-Respondent.
_________________________________

IN THE MATTER OF THE GUARDIANSHIP
OF A.S.,

A Minor.
_________________________________

Submitted January 21, 2010 - Decided March 25, 2010

Before Judges Fisher, Sapp-Peterson and
Espinosa.

On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part, Essex
County, Docket Nos. FG-07-206-06 and FG-07-
56-08.

Courter, Kobert & Cohen, P.C., attorneys for
appellant/cross-respondent (Dina M. Mikulka,
on the brief).

Paula T. Dow, Acting Attorney General,
for respondent/cross-appellant
attorney
(Andrea M. Silkowitz, Assistant Attorney
General, of counsel; Eleanor M. Armstrong,
Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law
Guardian, attorney for minor (Deborah S.
Reed, Assistant Deputy Public Defender, on
the brief).

PER CURIAM

Defendant A.H. appeals from a March 11, 2009 Family Part

order terminating parental rights to her then four-year-old son

A.S.,1 born to A.H. and O.S., Jr. on November 13, 2003,2 and

granting guardianship to the Division of Youth and Family

Services (Division). We affirm.

On September 12, 2007, the Division filed a verified

complaint for guardianship seeking termination of A.H.'s

parental rights to A.S. Trial commenced on November 6, 2008,

and proceeded over seven non-consecutive days before its

conclusion on February 24, 2009. The Division's caseworker,

Patrice Amatrudi (Amatrudi); Dr. Elayne Insler Weitz, an expert

in psychology; Dr. George Jackson, an expert in toxicology; Anne

Claridge, a social worker with an expertise in play therapy;

A.S.'s maternal grandmother, S.H.; and A.S.'s paternal

grandfather, O.S., Sr., testified on behalf of the Division.

1
At various times throughout the record, the minor is also
referred to as A.H. In order to avoid confusion with the
mother's initials, which are also A.H., we will refer to the
child as A.S.
2
During most of the litigation, O.S., Jr. was incarcerated in a
Florida prison. He voluntarily surrendered his parental rights
to A.S. on May 2, 2008.

A-3880-08T4
2

The defense presented A.H. and three expert witnesses: Dr.

Edward Aronow, a psychologist; Dr. Michael Fester, an expert in

alcohol studies; and Dr. Bal Krishena, a toxicologist. S.H.

also testified on behalf of the defense. Additionally, in

excess of fifty-eight exhibits were marked into evidence.

The record disclosed that the Division's first involvement

with A.H. occurred in September 2005 when it received a referral

reporting that A.H. and A.S. were living with A.H.'s mother,

S.H., and that A.H. was abusing drugs. A.S. was almost two

years old at the time. The Division responded to the referral

and first interviewed S.H., who told the caseworker that A.H.

recently returned to New Jersey with A.S. and had nothing but

the clothes on her back. She acknowledged that A.H. had a prior

history of substance abuse but had not observed any abuse of

drugs while A.H. had been living with her. A.H. arrived during

the interview and accused her mother of contacting the Division.

A.H. indicated that she had constant relationship problems with

O.S., Jr., and therefore returned to New Jersey. She indicated

that she was employed and looking for an apartment. The

Division found that the allegations were unsubstantiated, but

opened a case for supervision and services.

On October 6, 2005, the Division received a referral from

the Fairfield Police Department. According to police, they were

A-3880-08T4
3

dispatched to a domestic violence dispute that occurred at a

hotel bar between A.H. and her boyfriend, M.M., earlier that

evening. When they arrived, they went to one of the hotel rooms

where they found A.H., who appeared to be intoxicated, and at

that time they also observed A.S. When police questioned A.H.

as to what she had done with A.S. while she was at the hotel

bar, she claimed that her mother had been watching A.S. She

refused to give the police her mother's telephone number or

address so they could confirm what she had told them.

Ultimately, they were able to contact S.H., who denied she had

been caring for A.S. that evening. A caseworker immediately

responded to the referral and interviewed A.H., whose speech was

slurred. A.H. repeatedly asked the caseworker the same

questions. The caseworker removed A.S. from the hotel and

placed him with S.H.

Following this emergency removal, the Division filed a

verified complaint and order to show cause on October 11,

petitioning the court to grant the Division temporary custody of

A.S. and to appoint a law guardian on A.S.'s behalf. On October

25, the return date of the Division's order to show cause, the

court returned A.S. to A.H.'s physical custody. The Division

represented to the court that because A.H.'s boyfriend no longer

A-3880-08T4
4

lived with A.H., the Division was satisfied that there was no

further risk to A.S.

Two months later, as part of the services being provided to

A.H., she underwent a psychological evaluation conducted by Dr.

Mark Singer. During the evaluation, A.H. acknowledged her

history of substance abuse but indicated that she had not used

any drugs for the last ten years. She reported that she was in

contact with O.S., Jr., but had no relationship with him because

he was not helping her. She did acknowledge her relationship

with M.M., and denied that any domestic violence had occurred as

previously reported to the police and the Division.

In addition to the clinical interview, Dr. Singer conducted

a mental status examination and performed personality testing.

He concluded that A.H. was anxious, in need of support to

achieve her goals, minimized her personal faults, had

unrealistic perceptions of her own level of psychological

functions, was experiencing difficulty responding to the needs

of others, and had the propensity to engage in "dramatic

behavior displays in order to win the approval and affection of

others and likely experienced a conduct disorder during

childhood/adolescence."

Dr. Singer recommended that A.H. maintain appropriate

housing and employment, participate in individual psychotherapy,

A-3880-08T4
5

and be subjected to continued drug screening. Dr. Singer also

recommended that the Division should ensure that M.M. posed no

risk to A.S. and that "[i]f needed," the Division should

facilitate a psychiatric referral "in order to address anxiety

medically as an adjunct treatment modality."

In response to Dr. Singer's recommendations, the Division

arranged for weekly therapy sessions with Dr. Barry Katz, a

clinical psychologist. A.H. commenced her therapy sessions with

Dr. Katz in January 2006. Three months later, A.H. also

separately participated in anger management. A.H. reported at

that time that she was no longer living with M.M. The

caseworker told A.H. that if this representation was confirmed

and she was otherwise compliant with her treatment, it would

seek dismissal of the matter. The Division, however, received

another referral in May 2006 alleging that A.H. was using drugs

and that neighbors regularly heard A.H. and her boyfriend

screaming, cursing and yelling at each other. The caseworker

met with A.H. A.H. indicated that M.M. had moved out of the

apartment three weeks earlier. A.H. denied any substance abuse

and stated that because she had already completed an assessment,

she did not wish to undergo another assessment. She did offer

to complete a urine screen. She also signed a case plan

agreeing to provide A.S. with a drug-free and safe environment.

A-3880-08T4
6

At a June 20, 2006 court appearance, A.H. tested positive

for opiates. The court ordered A.H. to continue with her

therapy sessions, cooperate with law enforcement authorities in

their investigation of the criminal matter stemming from the

October 2005 hotel bar incident, attend all court proceedings in

connection with that matter, and to explain to the court her

positive drug test results at the next compliance review

scheduled for July 25.

On July 19, the caseworker had a telephonic interview with

the superintendent of A.H.'s apartment building. The

superintendent indicated that she lived in the basement of the

same building as A.H. and that both A.H. and M.M. were listed as

the tenants on the apartment lease. The superintendent also

reported that the neighbors living next-door to A.H. and M.M.

reported hearing fighting and smelling drugs emanating from the

apartment. On that same day, the caseworker made an unannounced

visit to the apartment. A.H. denied that M.M. was living with

her, but M.M. arrived at the apartment during the caseworker's

visit. M.M. also denied living with A.H. When A.S. entered the

room where A.H., M.M., and the caseworker were gathered, M.M.

asked A.S., "who am I?" A.S. responded, "daddy." The

caseworker advised M.M. that if he intended to remain in A.S.'s

life, he was required to participate in the domestic violence

A-3880-08T4
7

classes and other services offered by the Division. M.M. told

the caseworker that he would not take domestic violence classes

with A.H. because he did not believe the classes pertained to

him. The caseworker also spoke with A.H.'s anger management

counselor who conducted counseling sessions with A.H. at the

apartment. The counselor reported that these sessions were

conducted in the morning and that he observed M.M. in the

apartment during some of those counseling sessions.

On July 25, 2006, the Division filed an amended order to

show cause and verified complaint seeking the appointment of a

law guardian on behalf of A.S. and the grant of temporary

custody of A.S. to the Division. The court entered an order on

that same date declaring that A.S. was a ward of the court,

appointing a law guardian, and placing A.S. in the immediate

care, custody and supervision of the Division. A.S. was placed

back into the physical custody of his maternal grandmother,

S.H., but removed from her care the following month and placed

in foster care because S.H. was unable to present documentation

from her superintendent that A.S. could reside in her apartment.

Meanwhile, A.H. had contacted the Division on August 2,

reporting that M.M. had locked her out of their apartment and

the superintendent refused to give her another set of keys. The

caseworker encouraged A.H. to seek assistance from the police

A-3880-08T4
8

and to also contact welfare officials in an effort to secure

temporary rental assistance. A.H. expressed a willingness to do

whatever was necessary to regain custody of A.S. but blamed the

Division for his placement in foster care. She continued with

her counseling sessions and regularly visited with A.S. in

accordance with the visitation plan. However, on December 11,

Bloomfield police contacted the Division to report that A.H. had

been arrested and was at the police station with A.S., with whom

she was apparently having an unsupervised visit on that day.

The caseworker interviewed A.H. at the police station. A.H.

denied breaking into the apartment where police found her, A.S.,

and another male, M.C. A.H. explained that she had been invited

into the apartment by her friend, M.C.

Over the next several months, A.H. continued her regular

visits with A.S., underwent a drug assessment at the Division's

request in April at the COPE Center (COPE)3 in Montclair, and

commenced her participation in the COPE substance abuse program.

Although her first three drug screens were negative, COPE

reported that A.H.'s creatinine levels were low, which suggested

"possible specimen adulteration." A.H. attended Alcoholics

Anonymous and participated in two-hour weekly in-home counseling

3
Counseling, Outreach, Prevention, Education.

A-3880-08T4
9

sessions that had been arranged by the Division. Her drug

screens continued to be negative.

On July 10, 2007, just before a court hearing commenced,

A.H. underwent a drug screen at the Division's request. Because

the drug screener described A.H.'s urine as "clear as water,"

the screener suspected that the specimen had been altered. When

confronted with this accusation, A.H. admitted that she had

relapsed and had used cocaine. The Division advised the court

that it would seek termination of parental rights. On September

12, 2007, the Division filed a complaint for guardianship.

In January 2008, after receiving confirmation that A.S.'s

paternal grandparents' home was licensed and approved for

placement, the Division placed A.S. with them. A.H. had

telephonic contact with A.S. and two visitations with A.S. when

he was returned to New Jersey for the visits.

On August 27, A.H. was admitted to Turning Point, Inc.

(Turning Point), an in-patient treatment facility. She

admitted, during her intake interview, that she had a lengthy

history of substance abuse. Contrary to her earlier

representations to the Division and to the court that she had

been drug-free for years, she admitted, during this interview,

that her last period of abstinence was for sixteen months

between 2003 and 2004. For the first time, A.H. was diagnosed

A-3880-08T4
10

with bipolar disorder and prescribed Depakote.4 She was also

treated for her substance abuse dependency. Additionally, A.H.

received individual counseling and also training in parenting

skills. Upon her discharge from Turning Point in October, A.H.

resumed her out-patient treatment at COPE where she received

both substance abuse counseling as well as treatment for her

mental health issues.

On March 6, 2008, A.H. underwent a psychological evaluation

with Dr. Elayne Weitz. Dr. Weitz conducted a clinical

interview, performed psychological testing and consulted with

A.H.'s caseworker, Patrice Amatrudi, an experienced Division

caseworker who took over A.H.'s file in July 2007. In

summarizing her findings, Dr. Weitz found that A.H. had

strengths and weaknesses and expressed her concerns related to

A.H.'s "personality" and "behavioral traits." In her report,

she stated:

4
Depakote is used "for the treatment of episodes associated with
bipolar disorder (manic or mixed episodes with or without
psychotic features). A manic episode is a period of abnormally
and persistently elevated, unreserved, or irritable mood. A
mixed episode is a manic episode with a major depressive episode
(depressed mood, loss of interest or pleasure in nearly all
activities)." http://www.pdrhealth.com (search "Depakote; then
follow "Depakote Prescription Drug Information, Side Effects PDR
Health" hyperlink under "Results").

A-3880-08T4
11

Seven months of recovery is a short time
compared to the 10 plus years [A.H.] abused
various substances. On the positive side,
she has already shown that she can maintain
a stable lifestyle while she is working on
her recovery. The added stress of caring
for her child could be overwhelming at this
stage in her rehabilitation process. Though
[A.H.] would probably say that [A.S.]'s
presence will help her stay sober, I believe
the Division should move slowly and
cautiously with returning [A.S.] to her
care. I often recommend that individuals
demonstrate a year of sobriety while living
independently before they are reunited with
their child.

Dr. Weitz offered a number of other recommendations which

she believed would ensure successful reunification, including

continued substance abuse counseling, regular consultation with

a psychiatrist to monitor the effectiveness of her medications,

and "[i]ndividual psychotherapy [which] would provide additional

support and help [A.H.] balance work and home schedules

effectively." She also recommended that any reunification

should "allow for the gradual placement of [A.S.] with [A.H.]"

Throughout the spring and early summer of 2008, A.H.

continued to participate in COPE, and all of her drug screens

were negative. She also remained in treatment with a

psychiatrist at COPE, Dr. Esha Khoshnu, who had been treating

her since October 2007. In an April 21 letter to Amatrudi, Dr.

Khoshnu wrote, "I consider her prognosis to be guarded as any

A-3880-08T4
12

patient with the [Bipolar Disorder and Cocaine and Heroin

Dependence] diagnosis may relapse."

After receiving a telephone call from A.S.'s law guardian

on April 16, reporting she had information that A.H. was

submitting someone else's urine for her drug screens, Amatrudi

confronted A.H. with the allegation and requested that A.H.

undergo a drug screen. A.H. indicated that she was unable to do

so because of her work schedule. The Division then arranged for

the drug screen to be conducted by COPE after A.H. finished

work. Amatrudi called A.H. to explain the arrangements for her

drug testing and advised A.H. that if she failed to appear for

the drug screen, the Division would assume that her test results

would have been positive for drugs. A.H. did not appear for the

first appointment scheduled by COPE but did submit to a urine

screening on July 14, which was positive for opiates. A.H.

disputed the results and indicated that she had undergone foot

surgery and the medication she was taking post surgery caused

the positive result. Amatrudi told A.H. that the positive drug

screen would impact the direction of the case and requested that

A.H. provide proof that she had been prescribed medication for

her foot.

A.H. did not supply the requested prescriptions to the

Division at that time. She stopped attending COPE and failed to

A-3880-08T4
13

maintain contact with Amatrudi despite the caseworker's attempts

to reach her by telephone and personal contact. A September 2,

2008 letter from COPE reported that A.H. had not been in

attendance at the program since July 14. When A.H. finally

contacted the Division two months later, she attributed her

failure to contact the Division to her recent foot surgery. She

never provided documentation to the Division of her foot

surgery.

Bonding evaluations with A.H., the paternal grandparents

and A.S. were conducted on behalf of the Division by Dr. Weitz,

while bonding evaluations of A.H. and A.S. on behalf of the

defense were conducted by Dr. Edward Aronow. Both doctors found

that A.H. was incapable of providing appropriate care of A.S. at

that time. Dr. Aronow opined that it was "unlikely that [A.H.]

would be able to put her life together to an acceptable degree

in the absence of full and serious treatment of her Bipolar

Disorder." He believed that the period of time A.H. needed to

address the issues impeding her ability to provide a safe and

stable environment for A.S. would take approximately one year

because she could not resume taking Depakote for six months due

to pregnancy and would need another six months thereafter to be

monitored with the increased dosage that A.H. stated her

psychologist was recommending.

A-3880-08T4
14

Both doctors also recognized a strong bond between A.S. and

A.H. as well as a bond between A.S. and his paternal

grandparents. Dr. Weitz testified that in her opinion, A.H.

could not provide a safe and stable environment for A.S. because

of her failed substance abuse rehabilitation, unresolved

bipolarity, employment instability, impulsivity, manic behavior

and problems with her mother. Dr. Aronow recommended that if

A.S. remained in Florida with his paternal grandparents, that he

should continue to have contact with A.H. A.S.'s paternal

grandparents expressed their support for this arrangement.

At the conclusion of the hearing, the court reserved

decision and issued a seventy-three page written opinion on

March 3, 2009. In assessing the testimony of the various

witnesses, the court found Amatrudi to be "an experienced,

competent and honest caseworker [and] [n]othing in her testimony

struck the court as biased or untrue." On the other hand, while

the court indicated that Dr. Weitz came across as competent, the

court concluded that the testimony was "at least arguably

predisposed to favor termination." The court found the

defense's principal witness, Dr. Aronow, more credible than Dr.

Weitz, but noted that both doctors agreed that A.H. could not

"effectively parent now, with their only major difference being

if [A.H.] may be able to effectively parent in the future . . .

A-3880-08T4
15

." In assessing A.H.'s testimony, the court expressed that it

was undisputed that A.H. and A.S. have a strong bond and love

each other. Nonetheless, problematic for the court was A.H.'s

"long[-]time drug use, her on and off attempts to cure it, her

recently discovered bi[]polarity and her tendency to not always

tell the truth[.]" The court did not weigh heavily the

testimony of the remaining witnesses in its decision-making.

In reaching its decision that the Division had satisfied

its burden of proof, the court addressed each of the four

statutory prongs governing termination of parental rights.

N.J.S.A. 30:4C-15.1(a).

With respect to the first prong, the court found:

There is no doubt that [A.H.] presented
a serious danger to [A.S.] At the very
minimum, [A.H.]:

1. Had a difficult, if not, violent
relationship with [M.M.;]

2. Put [A.S.] in dangerous
situations, such as leaving him
alone when she and [M.M.] went
to the bar and got into a
fight[;]

3. Tested positive for illegal
drugs in both 2006 and 2007 (and
then in 2008, although the 2008
test result is disputed);

4. Was arrested for trespassing, at
a time [A.S.] was with her[;]

5. Lived in filthy surroundings[;]

A-3880-08T4
16

6. Did not complete drug therapy.

Any dispute in this case, therefore,
must focus on the second, third and fourth
prongs.

Next, as to the second prong, the court found:

The record makes clear that [A.H.]
continues to present a danger to [A.S.] At
the minimum, [A.H.] has not overcome the
following problems, the bulk of which,
according to Dr. Weitz, may become even more
serious if [A.H.] had to deal with a child
who is himself somewhat difficult:

1. Her drug abuse (despite
occasional progress)[;]

2. Her bi[]polarity[;]

3. Her problems with honesty (which
may be an outgrowth of her drug
abuse issues, and may have been
slightly exaggerated by Dr.
Weitz[,] who called her
"deceitful, manipulative and
untrustworthy[]")[;]

4. Her poor judgment concerning
interpersonal relations,
including:

a. [A.S.]'s father, [O.S.],
Jr.[,] who [is] both a
child abuser and convict[;]

b. Her paramour [M.M.], who
was violent towards her[;]

c. Her current paramour
[A.M.], who has a criminal
history (albeit one that
may be explicable).

A-3880-08T4
17

5. Her somewhat inconsistent
relationship with her mother[;]

6. Her tendency to put her needs
above those of [A.S.;]

7. Her possible inability to
provide secure housing for
[A.S.], since she is pregnant
and relies on [A.M.] for the
rent payments. (This is by far
the least serious of the dangers
she presents.)

While [A.H.] has made efforts to solve
these problems - - and may well be able to
parent her unborn child within the next year
- - this court cannot confidently conclude
that she can now, or in the relatively near
future, safely parent [A.S.] Indeed, it
must conclude, by clear and convincing
evidence, that she cannot do so.

Further, as even Dr. Aronow concludes,
[A.H.] would need six months of treatment to
get to a point where she could successfully
parent [A.S.], and the six months of
medications can't begin until after the
birth of [A.H.]'s next child, who is due on
May 5, 2009. Six months from May 5, 2009 is
November 5, 2009, when [A.S.] will be only a
week short of his sixth birthday and will
have been with his grandparents for two
years.

In addressing the third prong, the court concluded:

No one could deny that [the Division]
has given [A.H.] a great many services in an
attempt to reunify her with [A.S.] Among
other things, [the Division]:

a. Returned [A.S.] to [A.H.]
after the first removal in
2005[;]

A-3880-08T4
18

b. Gave [A.H.] a psychological
examination[;]

c. Gave [A.H.] therapy[;]

d. Gave [A.H.] anger management
training[;]

e. Gave [A.S.] an EIP and
Medicaid card[;]

f. Offered [M.M.] services,
which he generally did not
comply with[;]

g. Gave [A.H.] rental
assistance, therapy, and bus
cards after the 2006
removal[;]

h. Gave [A.H.] extensive drug
therapy at Turning Point and
COPE[;]

Gave [A.H.] MICA[5] psychiatric
i.
treatment[;]

j. Gave [A.H.] extensive
visitation[;]

[A.H.] argues that, despite the
extensive efforts outlined above, [the
Division] cannot be said to have proven its
third prong case because it did not
identify, and move to cure, [A.H.]'s
The court
bi[]polarity soon enough.
acknowledges some surface validity to this
argument. But the truth is that [A.H.]'s
behavior - - particularly the drug use and
relationship with [M.M.] - - was so
troublesome that it was imperative for [the
Division] to focus primarily on those
behaviors.

5
Mentally Ill Chemical Addicted.

A-3880-08T4
19

In addition, the diagnosis of
bi[]polarity was far from obvious or easy.
[A.H.] is 35 years old. She attended very
good public schools in this state from the
age of 5 to 18. No one diagnosed her
bi[]polarity during those 13 years, despite
the fact that she exhibited enough impulsive
and hyperactive behavior to be placed into
special education, transferred to a county
vocational technical institute, expelled
from that institute, and be referred to a
school psychologist (who, in turn, sent her
to an outside expert). She suffers from
ADHD and drug abuse, two conditions that
sometimes cause behavior consistent with
bi[]polar behavior. That [the Division's]
consultants did not diagnose, and arguably
did not properly treat, the bi[]polarity
until recently cannot be considered a
failure to provide services.

[The Division] had a duty to exert
reasonable efforts to reunify [A.H.] and
[A.S.] In hindsight, [the Division] may or
may not have done a perfect job, but that is
not the test. The test is whether [the
Division] utilized reasonable efforts. It
clearly did so.

Finally, as to the fourth prong, the court found:

For several reasons, [the Division] has
made a very strong case that removing [A.S.]
from [A.H.] would do no more harm than good.
The first reason, of course, is that [A.H.]
has not removed the danger or harm which she
presents to [A.S.] In this regard, see the
court's conclusions as to the second prong.

The second reason removing [A.S.] from
[A.H.] will not do more harm than good is
that [A.S.] has now been placed in a safe,
warm and supportive home, with his paternal
grandparents. While it might have been
better for [A.S.] to have been placed there

A-3880-08T4
20

sooner, he has now been with his paternal
grandparents for almost a year and adjusted
well. Indeed, on almost every objective
measure - - educationally, behaviorally,
emotionally - - [A.S.] is thriving and doing
better than he did with either [A.H.] or her
mother.

The third reason removing [A.S.] from
[A.H.] and keeping him with his paternal
grandparents is that the grandparents have
been cooperative in allowing [A.S.] to see
his father (three times a week), allowing
consistent phone calls with his mother, and
in stating that they will allow visits with
his mother.15 Further, the grandparents have
apparently tried, with Ms. Claridge's help,
to get [A.S.] to speak with his mother.16

In some respects, one of the best
summaries of this case was that made by Dr.
Aronow:

It is clear that the court is
faced with a difficult decision to
make. It is typically ideal for a
child to remain with their parent.
If [A.H.] were to be given
appropriate therapy for her
Bipolar Disorder, she would be a
much better risk as a mother. I
would recommend that following the
mother's current pregnancy, she
again be involved in a drug
treatment program, with much more
effective treatment of her Bipolar
Disorder. On the other hand, it
is also clear that [A.S.] is doing
well in Florida with his
grandparents.

What Dr. Aronow does not discuss,
however, is the final reason [the Division]
must prevail: as set out above, the earliest
time [A.H.] can complete therapy for her
drug addiction and bi[]polarity is November

A-3880-08T4
21

2009 when [A.S.] will be six and will have
spent two full years with his paternal
grandparents. At that time, either [A.H.]
will not have recovered and the court will
have kept [A.S.] in limbo for an unnecessary
year, or [A.H.] will be at least partially
recovered and the court will then have to
decide - - assuming [A.M.] is out of the
picture or deemed not too dangerous to place
a child with - - whether to gamble on a
reunification. If that gamble succeeded,
[A.S.] would still have the trauma of being
removed from his grandparents, who are doing
a great job with him. If that gamble
failed, and there are many reasons to fear
it might, [A.S.] would be seriously harmed
when he had to be returned yet again. No
court should take such a terrible gamble
with a young boy's life. For that reason,
in addition to the reasons set out above,
[the Division] prevails by clear and
convincing evidence on the fourth prong.
________
15
The court found [O.S., Sr.] credible on the
issue of whether the grandparents have been
cooperative with visitation and telephone
calls. The court made this credibility
finding because [O.S., Jr.'s] testimony was
corroborated by Ms. Amatrudi and Ms.
Claridge, while the contrary testimony of
[A.H.] and her mother was not corroborated.
16
It is also noteworthy that the grandparents
have proven themselves responsible by not
allowing [O.S., Jr.] unsupervised
visitation.

After finding by clear and convincing evidence that

termination of A.H.'s parental rights was in the best interests

of A.S., the court referenced additional facts that led it to

conclude that when considered in combination the facts "demand[]

A-3880-08T4
22

that [A.H.] have contact with his mother" post termination of

her parental rights. Those facts included the absence of any

evidence that A.H.'s instability would cause a danger to A.S. if

she visited A.S., the fact that A.S. had lived with his mother

for almost three years, knows and remembers her, the age of the

paternal grandparents, and the fact that O.S., Jr. enjoyed

visitation rights. The court concluded that none of the factors

it considered "would be sufficient to cause this court to allow

[A.H.] post termination visitation[,]" but in combination, those

facts led it to conclude that post termination visitation is in

the best interest of A.S.

On appeal, A.H. argues that the weight of the evidence does

not support the court's decision and that in reaching its

decision, the court failed to consider alternatives to

A.H. also urges that the
termination of her parental rights.

order for post termination visitation is unenforceable and

consequently, the order terminating her parental rights should

be reversed and remanded for a "[d]etermination of [w]hether a

[r]eunification [b]etween A.H and A.S. is now [a]ppropriate."

We reject all of these arguments and affirm substantially for

the reasons outlined in Judge James S. Rothschild, Jr.'s

comprehensive March 3, 2009 written opinion. We add the

following comments.

A-3880-08T4
23

"A parent's right to enjoy a relationship with his or her

child is constitutionally protected." In re Guardianship of

K.H.O.,
161 N.J. 337, 346 (1999). Moreover, "[f]ew consequences

of judicial action are so grave as the severance of natural

family ties." N.J. Div. of Youth & Family Servs. v. A.W.,
103 N.J. 591, 600 (1986) (quoting Santosky v. Kramer,
455 U.S. 745,

787,
102 S. Ct. 1388, 1412,
71 L. Ed. 2d 599, 628 (1982)).

Accordingly, courts have consistently imposed strict standards

regarding the termination of parental rights. K.H.O., supra,

161 N.J. at 347. However, "the right of parents to be free from

governmental intrusion is not absolute." A.W., supra,
103 N.J.

at 599. This is because the State, as parens patriae, has a

responsibility to protect the welfare of children. K.H.O.,

supra,
161 N.J. at 347.

The standard for determining the termination of parental

rights is known as the best interests of the child test,

originally set forth in A.W., supra,
103 N.J. at 604-11, and now

codified in N.J.S.A. 30:4C-15.1(a), which authorizes termination

if the Division can show:

(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.

A-3880-08T4
24

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).]

The Division has the burden of proving each factor by clear and

convincing evidence. In re Guardianship of R.G. & F.,
155 N.J.

Super. 186, 193 (App. Div. 1977). Moreover, the four criteria

"overlap with one another to provide a comprehensive standard

that identifies a child's best interests." K.H.O., supra,
161 N.J. at 348.

New Jersey has a strong public policy favoring permanency.

Id. at 357. In all guardianship and adoption cases, the child's

need for permanency and stability must be accorded primary

Id. at 357-58.
status.

The findings of a trial judge sitting without a jury are

"considered binding on appeal when supported by adequate,

substantial and credible evidence." Rova Farms Resort, Inc. v.

Investors Ins. Co. of Am.,
65 N.J. 474, 484 (1974). Further,

because of the particularized expertise of family court judges

A-3880-08T4
25

in family matters, we accord enhanced deference to family court

factfinding. Cesare v. Cesare,
154 N.J. 394, 413 (1998).

From our review of the record, we are satisfied that the

evidence supports the judge's findings that the Division

established by clear and convincing evidence all four prongs of

the best interests of the child test. R.G. & F., supra,
155 N.J. Super. at 193. A.H. repeatedly exposed A.S. to serious

danger or harm on at least three documented occasions after she

returned to New Jersey in 2005. A.S., who was almost two years

old, was left alone in a hotel room while his mother was in the

hotel bar, and in December 2006, A.S. was with his mother when

she was arrested for trespassing. Although the charge was later

dropped, it was undisputed that at the time of A.H.'s arrest,

A.S. was found asleep on the filthy apartment floor. In

addition, despite negative drug screen results between October

2007 and April 2008, A.H. admitted to the court that she was

still using drugs and continued to do so.

The record is also replete with examples of A.H.'s poor

judgment demonstrating her unwillingness or inability to

eliminate the harm facing A.S. under the second prong of the

best interests of the child analysis. N.J.S.A. 30:4C-

15.1(a)(2). A.H. repeatedly exposed A.S. to her abusive

relationships with her boyfriends. She also continued to rely

A-3880-08T4
26

upon her abusive paramours for financial support in maintaining

housing. Rather than admit her difficulty in remaining drug

free, she altered her urine or submitted someone else's urine in

order to ensure negative urine screens. This evidence alone

clearly and convincingly demonstrated A.H.'s inability or

unwillingness to eliminate the harm facing A.S. The weight of

that evidence is not diminished in any way by the court's view

that the question of harm to A.H. resulting from his separation

from his paternal grandparents "at this time is very close[,]"

because consideration of harm under the second prong "may [but

is not required to] include evidence that separating the child

from his resource family parents would cause serious and

enduring emotional or psychological harm to the child."

N.J.S.A. 30:4C-15.1(a)(2) (emphasis added).

There is also no question that the Division provided

numerous services or assisted A.H. in obtaining services aimed

toward reunifying A.H. with A.S. Those services included

psychological and psychiatric treatment, rental assistance, and

extensive visitation with A.S. We do not agree that the failure

of the Division's treatment providers to diagnose A.H.'s

bipolarity until well into the litigation demonstrates that the

Division failed to prove the third prong of the best interests

of the child test by clear and convincing evidence.

A-3880-08T4
27

The Division's obligation under the third prong is to make

"reasonable efforts to provide services to help the parent

correct the circumstances which led to the child's placement[.]"

N.J.S.A. 30:4C-15.1(a)(3). In our view, depending upon the

particular circumstances, those efforts will not always be

appropriate or successful. Nor does the Division's efforts in

working with various treatment providers in providing services

guarantee that the service providers will successfully discover

all conditions affecting a parent's inability to eliminate the

harm that occasioned the Division's removal of the child from

the parent's custody.

We address the late diagnosis of her bipolar condition and

Dr. Aronow's opinion as it relates to the third prong. The

Division arranged for a psychological evaluation with Dr. Mark

Singer as early as December 2005. In his December 7, 2005

report, Dr. Singer recommended a psychiatric referral only "[i]f

needed." As a result of Dr. Singer's recommendations, the

Division referred A.H. to Dr. Barry Katz for weekly therapy

sessions. Dr. Katz treated A.H. from January 2006 through the

spring of that year and did not recommend a psychiatric

referral. During this time period, A.H. was also separately

participating in anger management counseling. A.H. was not

diagnosed as suffering from bipolar disorder until she was an

A-3880-08T4
28

in-patient at Turning Point between August and October 2007.

She was prescribed Depakote and was reportedly "stable on this

medication." The discharge plan called for A.H. to continue

taking Depakote. After leaving Turning Point, she returned to

COPE for out-patient treatment. In April 2008, the Division

learned that between October 2007 and July 2008 when A.H. was

being treated at COPE for her bipolar condition and being

prescribed Depakote, A.H. may have been providing diluted urine

screens. When confronted with this allegation, tested, and

found to have opiates in her system, A.H. discontinued her

treatment at COPE and failed to maintain contact with the

Division for a period of two months.

Dr. Aronow testified that when A.H. was at Turning Point,

"she was on fifteen hundred milligrams of Depakote which is a

high dose[,]" and that the dosage was reduced to 150 milligrams,

which in his opinion was "extremely low." There is, however,

nothing in the record that supports this testimony.

In his October 2008 report, Dr. Aronow wrote:

She has for whatever reason been on a very
low dose of Depakote while in her current
treatment program. [A.H.] tells me that as
of last week, her psychiatrist acknowledged
that she was not on an effective dose of
medication and therefore changed her
treatment regimen. In effect, the treatment
program that she is in did not do its job by
not effectively dealing with the underlying
Bipolar Disorder.

A-3880-08T4
29

Dr. Aronow's report does not reference his review of any

records from Turning Point. The Turning Point records report a

different dosage of Depakote prescribed to A.H. On the first

page of the Turning Point "Discharge Plan and Treatment

Summary," it is reported that "[c]lient was diagnosed Bipolar

and was prescribed Depakote 250mg." The "Medical/Nursing

Discharge Notification & Instructions" list as A.H.'s current

medications, "Depakote 250mg one tab[let] 9[a.m.]" and Depakote

500mg one tab[let] 9[p.m.]" Thus, the basis of Dr. Aronow's

testimony that A.H.'s Depakote dosage was reduced from 1500

milligrams to 150 milligrams is not evident from the record.

It therefore appears that his opinion was based solely upon

A.H.'s statement to him that her treating psychiatrist had

acknowledged that "she [was] not on an effective dose of

medication." That treating psychiatrist, Dr. Esha Khoshnu, was

not called by the defense as a witness. Moreover, later in his

direct testimony, Dr. Aronow admitted that he was making an

assumption that the dosage was too low and did not "know of

[his] own knowledge that it was too low." The court ultimately

concluded that Dr. Aronow would not be allowed to give an

opinion as to whether A.H.'s Depakote dosage level was too low.

Consequently, there was insufficient evidence in the record

from which the court could reasonably conclude that insufficient

A-3880-08T4
30

levels of Depakote caused A.H. to self-medicate, and even

assuming Dr. Aronow's opinion was correct, it does not in any

way negate the reasonableness of the Division's efforts to

provide services to A.H. We therefore agree with the court's

conclusion that "[the Division] had a duty to exert reasonable

efforts to reunify [A.H.] and [A.S.] In hindsight, [the

Division] may or may not have done a perfect job, but that is

not the test. The test is whether [the Division] utilized

reasonable efforts. It clearly did so."

In finding that the Division had satisfied the fourth

prong, the court determined that A.S. had been placed in a safe,

warm and supportive home with his paternal grandparents and, for

nearly one year, was thriving on every objective level. In

contrast, the court observed that A.H.'s expert opined that the

earliest time that A.H. could complete therapy for her drug

addiction and bipolarity would be in November 2009, when A.S.

would be six years old. The court noted that by then, A.S.

would have spent two full years in his paternal grandparents'

custody. Because A.H.'s history of compliance with treatment

recommendations and other Division recommendations had been

inconsistent for nearly three years, the court properly

concluded "[A.S.] would [be] seriously harmed" if there was a

A-3880-08T4
31

further delay establishing permanency and stability in A.S.'s

life:

At that time, either [A.H.] will not have
recovered and the court will have kept
[A.S.] in limbo for an unnecessary year, or
[A.H.] will be at least partially recovered
and the court will then have to decide - -
assuming [A.M.] is out of the picture or
deemed not too dangerous to place a child
with - - whether to gamble on a
reunification. If that gamble succeeded,
[A.S.] would still have the trauma of being
removed from his grandparents, who are doing
a great job with him. If that gamble
failed, and there are many reasons to fear
it might, [A.S.] would be seriously harmed
when he had to be returned yet again.

In short, there is substantial credible evidence in the

record to support the judge's factual findings, and those

findings are entitled to our deference. Cesare, supra,
154 N.J.

at 413. Further, he applied the correct principles of law to

his factual findings, and we find no error in the result

Rova Farms, supra,
65 N.J. at 484.
reached.

Turning our attention to post termination visitation, both

A.H. and the Division, in its cross-appeal, challenge the

enforceability of the post termination visitation provision

contained in the court's order, noting that the grant of

guardianship to the Division "terminates all the parental rights

of the natural parents and is a prerequisite to having the child

adopted by the foster parents or by another family." In re

A-3880-08T4
32

Guardianship of J.C.,
129 N.J. 1, 5 (1992). Moreover, the New

Jersey Supreme Court has previously acknowledged that while

agreements between a biological parent and adoptive parent that

call for continued visitation between the biological parent and

child may potentially be in the best interests of the child,

"such arrangements cannot be judicially enforced, given the

potential for disruption of the child's family life under such

arrangements and the fact that under the adoption laws the

adoptive parents' rights are paramount." K.H.O., supra,
161 N.J. at 362 (citing In re Guardianship of R.O.M.C.,
243 N.J.

Super. 631, 634 (App. Div. 1990)). The judgment under review is

affirmed with the exception that the provisions that mandate

visitation are vacated.

Finally, although the trial court stated that the paternal

grandparents' promise was "a factor" that "helped induce this

court to rule as it did," it is clear from the record that there

were many other factors, as discussed herein, that influenced

that decision and convinced the court, by clear and convincing

evidence, that termination was in the best interests of A.S.

N.J.S.A. 30:4C-15.1(a). Therefore, we discern no basis to

reverse the order terminating A.H.'s parental rights in light of

our reversal of the post termination visitation portion of the

order.

A-3880-08T4
33

The order appealed from is modified and remanded. We do

not retain jurisdiction.

A-3880-08T4
34

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