OF YOUTH AND FAMILY SERVICES v. E.B IN THE MATTER OF THE GUARDIANSHIP OF J.T.X.B., a minor

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2569-10T2

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

E.B.,

Defendant-Appellant.

____________________________________________________

IN THE MATTER OF THE

GUARDIANSHIP OF J.T.X.B., a minor

____________________________________________________

December 13, 2011

Submitted October 12, 2011 - Decided

Before Judges Messano, Espinosa and Kennedy.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-147-10.

Joseph E. Krakora, Public Defender, attorney for appellant (Eric Foley, Designated Counsel, on the brief).

Paula T. Dow, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Veronica Beke, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Nancy E. Scott, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant E.B. appeals from the Family Part's December 8, 2010 order terminating her parental rights to her son, J.T.X.B. Defendant raises the following points on appeal:

POINT I. THE TRIAL COURT MISAPPLIED THE APPROPRIATE LEGAL STANDARDS AND AS A RESULT ERRED IN TERMINATING E.B.'S PARENTAL RIGHTS WHERE THERE WAS NOT CLEAR AND CONVINCING PROOF SUFFICIENT TO SATISFY THE FOUR PRONGS OF N.J.S.A. 30:4C-15.1(a).

A.

There Was Not Clear and Convincing Evidence To Support The Trial Court's Determination that E.B. was Unwilling or Unable to Parent Her Child and the Trial Court's Decision Is Not Supported by Substantial Credible Evidence.

B.

The Division's Efforts to Reunify the Family Were Insufficient to Satisfy Its Obligations Under The Third Prong.

We have considered these arguments in light of the record and applicable legal standards. We affirm.

I.

J.T.X.B. was born on November 1, 2008, when defendant was thirty-one years old. He was the defendant's sixth child.1 None of J.T.X.B.'s siblings, who range in age from fourteen years to three years, are in E.B.'s custody. Two of the children are in the legal and physical custody of their maternal grandmother and the remainder have been adopted by others.

The involvement of the Division of Youth and Family Services (DYFS or the Division) began shortly after the birth of J.T.X.B., when the maternity hospital called the Division to report that the child was born with intrauterine exposure to cocaine. The Division's investigation resulted in an emergency removal of J.T.X.B. from defendant's custody and the placement of J.T.X.B. in foster care on November 6, 2008. The court upheld the emergency removal by order dated November 7, 2008.

The Division initiated child-parent visits on November 12, 2008. E.B. failed to attend thirty-one out of forty-seven scheduled visits and in July 2009, the Division had to initiate a search for E.B. due to her failure to remain in contact with her caseworker. The Division attributed E.B.'s parenting problems to substance abuse dependency, unstable housing, lack of income maintenance, mental health issues and lack of parenting skills. E.B.'s drugs of choice were cocaine and cannabis. The Division caseworker advised E.B. that she would be required to attend either in-patient or out-patient substance abuse treatment, obtain stable housing, and complete parenting skills and individual counseling.

The Division referred E.B. to a Certified Alcohol and Drug Counselor (CADC) and a Substance Abuse Initiative Program a total of thirteen times beginning on November 7, 2008. On March 31, 2009, E.B. was evaluated as part of the Division's Substance Abuse Initiative which determined that an out-patient program would be appropriate. E.B. was referred to an out-patient program but the program eventually dismissed her for failure to attend program services and for non-compliance, given her positive tests for both cocaine and marijuana.

E.B. finally enrolled at Integrity House, an in-patient drug program, in September 2010. Prior to that date, E.B. had never completed either an in-patient or an out-patient drug treatment program.

In addition to failing to follow up on substance abuse referrals, E.B. also failed to follow up on referrals for individual counseling as well as parenting skills classes. The DYFS caseworker testified that, under the circumstances, these services had not successfully corrected E.B.'s parenting difficulties and deficiencies.

On April 9, 2010, defendant was psychologically evaluated by Frank J. Dyer, Ph.D. In his review of records pertaining to E.B., Dr. Dyer noted that the Division first became involved with her in 1995, shortly after she gave birth to twins. It was reported she was using cocaine on a weekly basis and thereafter a total of eleven additional reports of abuse and neglect involving her other children were generated. Dr. Dyer also administered a series of tests and undertook a bonding evaluation that involved E.B., J.T.X.B. and his foster mother.

Dr. Dyer noted that defendant presented with a history of chronic drug addiction and a significant criminal history including various arrests for aggravated assault and drug offenses. He found that the "most prominent aspect of the clinical picture, which overshadows everything else, is [E.B.'s] intractable addiction to drugs." E.B. did not appear to regard her drug use as problematic despite the fact that DYFS had intervened with respect to her other children, in large measure, because of her drug related problems.

Dr. Dyer's overall diagnostic impression of E.B. was dependence upon cannibis and cocaine; and personality disorder, "NOS with Schizotypal, borderline, and anti-social features." He found that the "current implications of the above psychological profile are extremely negative with respect to parenting capacity." Dr. Dyer explained that the prognosis for a recovery from drug dependency within the foreseeable future was "extremely poor" and that "this sole factor should disqualify [E.B.] as a caretaker for any child."

He also found that E.B. had problems with impulse control, insight, judgment and appreciation of the consequences of her behavior. His final recommendation was that E.B. should not be considered a "viable candidate for custody" of J.T.X.B.

In the interim, DYFS continued to assess other individuals connected with E.B. for foster care placement. A family friend was ruled out because she never followed up with the Division, and another was ruled out because she had earlier been determined to be a perpetrator of child abuse and neglect. E.B.'s mother had custody of E.B.'s two oldest children and could not care for J.T.X.B., in the estimation of the Division.

Dr. Dyer testified during the termination proceeding that E.B. was incapable of parenting J.T.X.B. because of her active and longstanding drug addiction and because her personality problems impaired her contact with reality and her capacity to think rationally on issues important to parenting. He added that E.B. was incapable of parenting within the foreseeable future because she remained at high risk for drug relapse and had a history of refusing drug treatment even when faced with an alternative of incarceration.

On December 8, 2010, the trial judge rendered her oral

decision terminating the defendant's parental rights to J.T.X.B.

This appeal followed.

II.

Under N.J.S.A. 30:4C-15.1(a), parental rights can be terminated only when the State proves that:

(1) The child's safety, health or development has been and 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 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.

Our task is to determine whether the trial court's decision was "based on clear and convincing evidence supported by the record before the court." N.J. Div. of Youth and Family Servs. v. P.P., 180 N.J. 494, 511 (2004). The scope of our review is limited, and the trial court's factual findings "should not be disturbed unless 'they are so wholly unsupportable as to result in a denial of justice.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)).

Further, "'[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should show deference to Family Court factfinding.'" N.J. Div. of Youth and Family Servs. v. A.R.G., 361 N.J. Super. 46, 78 (App. Div. 2003)(quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)), aff'd and remanded, 179 N.J. 264 (2004). Moreover, consideration of the four prongs of the statutory test must be made as a whole. See In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999).

Clear and convincing evidence is evidence which results in a firm belief or conviction as to the truth of the fact or matter sought to be established. Aiello v. Knoll Golf Club, 64 N.J. Super. 156, 162 (App. Div. 1960). We are satisfied after our review of the record overall that the Division met the statutory test by clear and convincing evidence.

E.B. claims on appeal that the Division failed to meet its burden under prong two of the statutory test because evidence existed in the record that E.B. made "notable progress . . . in a short period of time" at Integrity House, demonstrating that she had "finally received the appropriate services and is able to overcome her problems and become fit."

E.B. also challenges the trial court's findings and conclusions with respect to prong three, claiming that while the Division's psychological expert substantiated E.B.'s mental health problems, "at no point was there a referral for psychiatric evaluation."

We agree with the trial judge that E.B. is unwilling or unable, despite her stated good intentions, to eliminate the harm that caused the child to be removed in the first instance, and is unable or unwilling to provide a safe and stable home. Since the Division assumed custody, E.B. failed to attend thirty-one out of forty-seven scheduled parenting visits because she either cancelled or failed to show up for the visitation. The trial judge relied upon the expert finding of Dr. Dyer that E.B.'s long history of drug abuse, her steadfast refusal to submit to treatment until recently and her failure to complete a drug treatment program, together with her personality problems, made her a high risk for drug relapse. The judge also considered whether delay in permanent placement would add to the harm suffered by the child, concluding that it was in the best interest of J.T.X.B. that he achieve permanency without further unnecessary delay.

The trial judge explained:

To this point, E.B. has been unable or unwilling to eliminate the harm facing her son. While it is commendable that E.B. has entered a drug treatment program, albeit in late September 2010, she is only at the beginning of her inpatient program which, if she is successful, will not be completed until April 2011. Assuming E.B. successfully completes her inpatient program, she must also enroll in an aftercare program which will continue well beyond the April 2011 date. These programs are designed to help a patient become drug free and remain drug free. This is an enormous challenge for E.B., who began abusing drugs at a young age and had never entered into a drug treatment program before September 2010, lost custody of her 5 other children and finally entered the program in September 2010 when she was 33 years old.

The judge noted that while she is sympathetic to E.B.'s strong desire to parent her child and her apparently sincere, although late, attempt to address her drug abuse problem, she was convinced that the "harm to J.T.X.B. caused by his mother's abuse continues to this day." The judge added that E.B. has a long history of substance abuse and that "as of today, and for the foreseeable future, this court finds that E.B. is not in a position to parent her child." The judge was satisfied that the Division proved by clear and convincing evidence that E.B. was unable and unwilling to eliminate the harm to her son.

The judge also considered the second aspect of this prong which requires the court to determine whether the delay in permanent placement will add to the harm suffered by the child. The judge explained that while she "recognizes E.B.'s attempt to undertake drug rehabilitation and her plea for more time, the court cannot delay permanency for J.T.X.B., especially in light of Dr. Dyer's concerns for relapse and the willingness of the child's foster mother to adopt him now. J.T.X.B. has been in foster care since November 2008. It is in the best interests of this child that he achieve permanency without further unnecessary delay."

A child's best interests cannot be sacrificed because of a parent's inability to address potential future harm, despite her willingness to try. See N.J. Div. of Youth and Family Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div.)("[T]he New Jersey statutes reflect reforms acknowledging the need for permanency of placements by placing limits on the time for a birth parent to correct conditions in anticipation of reuniting with the child."), certif. denied, 180 N.J. 456 (2004). In this case, the trial judge correctly concluded that the Division had established the second prong of the statutory test by clear and convincing evidence.

As to the third prong, the judge found by clear and convincing evidence that the Division met its obligation to provide reasonable efforts to unify the family and to provide services and counseling to E.B. The judge found that the Division had made reasonable efforts to assist E.B. with her parenting difficulties including referrals for drug treatment, parenting skills, individual counseling, psychological evaluation, parent-child evaluations and visits and transportation. She was given a psychological bonding evaluation with Dr. Dyer and referrals for parenting classes and counseling.

The court stressed that E.B. had been referred to services for CADC evaluations, drug treatment, psychological evaluations with the Division's psychologist Robert Kanen, Psy.D., and psychological and bonding evaluations with Dr. Dyer. The court additionally found that services were offered to the child, including early intervention, speech therapy, monthly nurse examinations and transportation to physician appointments and evaluations.

N.J.S.A. 30:4C-15.1(c) defines "reasonable efforts," which consist of actions by the Division "to assist the parents in remedying the circumstances and conditions that led to the placement of the child and in reinforcing the family

structure . . . ." Provision of services under the third prong "contemplates efforts that focus on reunification." In re Guardianship of K.H.O., supra, 161 N.J. at 354. Such services "may include consultation with the parent, developing a plan for reunification, providing services essential to the realization of the reunification plan, informing the family of the child's progress and facilitating visitation." N.J. Div. of Youth and Family Servs. v. M.M., 189 N.J. 261, 281 (2007). The reasonableness of the Division's efforts "is not measured by their success." In re Guardianship of D.M.H., 161 N.J. 365, 393 (1999).

Here, the Division, as noted, made reasonable efforts to reunite the defendant with J.T.X.B. and to assist E.B. with her manifold problems. The Division's involvement began in 2008 when it referred defendant to services and various parenting classes. The Division continued to intervene thereafter, as the trial court noted, by scheduling psychological evaluations, parenting classes, individual counseling and demanding she attend parenting sessions and substance abuse counseling.

We accord great deference to the trial judge's evaluation of the testimony before her, particularly as it relates to the credibility of the witnesses presented. See N.J. Div. of Youth and Family Servs. v. E.P., 196 N.J. 88, 104 (2008); See also N.J. Div. of Youth and Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (noting the deference accorded to the judge's factfinding because of "the family court's special jurisdiction and expertise in family matters") (citation omitted)). We find no reason to disturb the trial judge's findings of fact and conclusions of law in this case.

1 N.V., the biological father of J.T.X.B., surrendered his parental rights and the surrender was accepted by court order dated January 22, 2010. He is not involved in this appeal.