OF YOUTH AND FAMILY SERVICES v. M.V.S IN THE MATTER OF THE GUARDIANSHIP OF A.L.S., a minor

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3742-10T3

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

M.V.S.,

Defendant-Appellant.

_________________________________________

IN THE MATTER OF THE GUARDIANSHIP OF

A.L.S., a minor.

__________________________________________________

February 9, 2012

Submitted January 10, 2012 - Decided

Before Judges Messano, Yannotti and Espinosa.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-0043-10.

Joseph E. Krakora, Public Defender, attorney for appellant (Anna F. Patras, Designated Counsel, on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Vonnetta C. Fermin, Deputy Attorney General, on the brief).

JosephE. Krakora,Public Defender,Law Guardian,attorneyfor minorA.L.S. (MelissaR. Vance, Assistant Deputy Public Defender, of counsel and on the brief).

PER CURIAM

Defendant M.V.S. appeals from the December 3, 2010 order of the Family Part terminating her parental rights to her daughter, A.L.S. Defendant raises the following issues on appeal:

THE DECISION TO TERMINATE M.V.S.'S PARENTAL RIGHTS WAS NOT SUPPORTED BY ADEQUATE, SUBSTANTIAL AND CREDIBLE EVIDENCE.

A. PRONG 3: THE TRIAL COURT ERRED IN FINDING THAT DYFS HAD DEMONSTRATED, BY CLEAR AND CONVINCING EVIDENCE, THAT REASONABLE EFFORTS WERE MADE TO PROVIDE THE MOTHER WITH APPROPRIATE SERVICES.

B. PRONG 4: THE TRIAL COURT ERRED IN FINDING THAT DYFS HAD DEMONSTRATED, BY CLEAR AND CONVINCING EVIDENCE, THAT TERMINATION OF M.V.S.'S PARENTAL RIGHTS WILL NOT DO MORE HARM THAN GOOD TO A.L.S.

Having considered these arguments in light of the record and applicable legal standards, we affirm.

I

Defendant had an extensive history with the Division of Youth and Family Services (DYFS or the Division) that preceded the birth of A.L.S. in October 2008. One son was in the legal custody of a family member, and DYFS provided supervisory services to the child through 2006, when the case was closed. Defendant's parental rights to her other two children were terminated in prior guardianship proceedings brought by the Division.

On September 29, 2008, DYFS received a referral from Newark Beth Israel Hospital after defendant appeared there pregnant, not feeling well, and apparently under the influence of drugs or alcohol. The Division unsuccessfully attempted to contact defendant over the next few days. On October 24, defendant, after testing positive for cocaine and heroin, delivered A.L.S., who tested positive for benzodiazepines, cocaine and opiates at birth. Defendant admitted abusing drugs for "many years," and acknowledged she sought no prenatal care during her pregnancy. A.L.S. was transferred to the Neonatal Intensive Care Unit after exhibiting "generalized twitching and jerky movement of [her] upper and lower extremities."

On October 29, DYFS filed a verified complaint seeking custody of A.L.S.1 The judge entered an order to show cause and temporarily awarded care, custody and supervision of the child to DYFS. DYFS contacted defendant's sister and niece regarding their willingness to accept custody of A.L.S. Both women indicated they were unable to care for A.L.S., and DYFS sent them "rule-out" letters. On November 20, 2008, DYFS placed A.L.S. in an approved resource home with Ms. K. Shortly thereafter, DYFS arranged visitation for defendant and scheduled defendant for a substance abuse assessment.

When defendant missed her visitation on December 23, 2008, the Division attempted to contact her without success. One month later, DYFS learned that defendant was incarcerated based upon old warrants charging her with possession of drug paraphernalia. Defendant was unable to attend her substance abuse assessment because she was incarcerated.

Defendant did not appear at a fact-finding hearing on January 6, 2009. The judge entered an order that provided, in part:

[Defendant] is in default and the facts are uncontested that [she] has an extensive DYFS history, had her parental rights terminated to her other children, the current case [arose] because [A.L.S.] was born drug exposed, and [defendant] did not appropriately plan for [her].

Upon her release from custody, defendant and E.T., with whom she was now living, met with the Division's caseworker. Defendant attended parenting classes DYFS arranged with the Wise Women Group at Essex County Community College. Defendant attended three sessions, but was late for two of them. In April, defendant advised DYFS that she had been diagnosed with breast cancer.

On May 5, 2009, defendant was psychologically evaluated at the Division's request by Diane McCabe, Ed.D. Defendant acknowledged her recent use of cocaine, but also told McCabe she was "proud of the things [she was] doing to stay straight." McCabe concluded that defendant "remain[ed] a strong risk as far as providing care for her infant[,]" and recommended that she continue attending the parenting program and enroll in an appropriate inpatient drug treatment facility.

Defendant completed another substance abuse assessment on May 6, at which she again tested positive for benzodiazepines, cocaine and heroin. It was recommended that defendant enter a detoxification program, and she was referred to St. Michael's Hospital. At trial, defendant testified that she completed the three-day program, but there was no documentation to support that assertion.

A drug screen conducted on May 19, the date of a compliance review, defendant tested positive for cocaine, benzodiazepines, and morphine. On June 3, defendant was late for her scheduled visitation with A.L.S. and appeared intoxicated. On June 15, the court issued a permanency order that approved DYFS's plan to terminate defendant's parental rights.

The Division's caseworker conducted a home visit in August. Defendant and E.T. lived in a portion of a basement living area with exposed electrical panels and pipes. DYFS informed defendant that E.T. was not a viable resource parent because of his criminal record, and, because defendant resided with him, it was unlikely that A.L.S. would be returned to her custody. Defendant advised of impending surgery to remove the tumor in her breast.

On September 18, 2009, DYFS filed a complaint for guardianship. At a September 22 hearing, defense counsel advised that defendant could not enter a substance abuse treatment program until she completed post-surgical cancer treatment.

Defendant continued to insist that she and E.T. could appropriately care for A.L.S. She failed to appear in court in November and default was entered against her. However, the judge vacated that order after being advised that defendant was suffering from seizures. Defendant's visitation with A.L.S. became more sporadic.

In January 2010, the judge directed DYFS to meet with defendant, update her substance abuse assessment, and devise a new case plan. Defendant acknowledged to the assessor that she had been using crack cocaine and heroin for at least ten years. A home visit in February found defendant's and E.T.'s basement apartment to be unacceptable. In the revised case plan, defendant agreed to find stable housing and income, remain drug-free, and attend substance abuse counseling.

DYFS referred defendant to the Substance Abuse Initiative, a program that would permit her to enter treatment while she maintained her cancer and anti-seizure medications. Defendant missed the intake appointment. Although visitation with A.L.S. continued, defendant missed several appointments and arrived late for others.

Between July and September 2010, defendant and E.T. resided at the Carlton Hotel in Newark. By October, she and E.T. had separated, and defendant was living in a shelter in Irvington.

The trial commenced in November. Mark Singer, Ed.D., had conducted a psychological evaluation of defendant and a bonding evaluation with A.L.S. on June 29, 2010. Singer observed that defendant possessed "narcissistic personality features[,]" "tend[ed] to utilize denial as a coping skill[,]" and had difficulty "acknowledging and responding to the needs of others." Noting defendant's intractable drug addiction, Singer concluded that "within a reasonable degree of psychological certainty, [defendant was] not likely to become a viable independent parenting option for [A.L.S.] in the foreseeable future."

Singer noted that A.L.S. "ha[d] achieved a level of familiarity with [defendant], although the child [had] also experienced increased discomfort while with her mother." Singer further concluded that, "within a reasonable degree of psychological certainty, should [defendant's] relationship with [A.L.S.] be severed, the child would not likely experience significant and enduring harm."

Singer, thereafter, conducted a bonding evaluation of A.L.S. with Ms. K., who had cared for A.L.S. since she was three weeks old. Singer concluded from the evaluation that A.L.S. "has come to view Ms. K. as . . . her[] central parental figure," and, if the relationship between them were to be severed, A.L.S. would suffer a "significant adverse reaction" because "as a child moves into the 2-3 years of age range, primary attachments solidify and internalize." Singer opined that A.L.S.'s relationship with defendant would not mitigate the harm that would result from the severance of the relationship between A.L.S. and Ms. K. Singer opined that the "totality of the data suggest[s] that termination of parental rights in order to provide A.L.S. with the ability to achieve permanency through adoption would produce more good than harm."

Preston Ackridge, the DYFS caseworker assigned, testified regarding the numerous services provided to defendant, including substance abuse assessments, supervised visitation, and referrals to substance abuse treatment programs and parenting classes. Ackridge noted defendant's failure to attend her interview at the Substance Abuse Initiative.

Defendant testified that she was turned away at the program by a receptionist who told her she needed a second referral from DYFS. Defendant further claimed that she informed Ackridge of this, and he agreed to get the second referral but could not specify how long it would take.

Defendant also testified that she had no seizures within the past three months, the result of both the medication she took and her abstinence from drugs and alcohol. Defendant acknowledged the surgical removal of the tumor in her breast, and claimed that the "lumps in [her] breasts . . . went away from a shot they gave" her.

Defendant continued to live at the shelter, but testified she was planning to move into an apartment the next day. A friend of defendant's had arranged for her to enter a treatment program, "Sebastian's Program with Dr. Anita Vaughn," in which she was still enrolled at the time of trial.

On December 3, 2010, the judge entered an oral opinion on the record finding that DYFS had satisfied by clear and convincing evidence the four statutory prongs of N.J.S.A. 30:4C-15.1(a). He entered the order under review and this appeal ensued.

II

We state some general principles that inform our review.

"We will not disturb the family court's decision to terminate parental rights when there is substantial credible evidence in the record to support the court's findings." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). "We ordinarily defer to the factual findings of the trial court because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a 'feel of the case' that can never be realized by a review of the cold record." Ibid. (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007)).

We accord particular deference to the judge's fact finding because of "the family courts' special jurisdiction and expertise in family matters." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)). "Only when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark' should an appellate court intervene and make its own findings to ensure that there is not a denial of justice." E.P., supra, 196 N.J. at 104 (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007)).

When the State seeks to terminate parental rights, it must prove by clear and convincing evidence each of the following four standards:

(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) [DYFS] 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); see also In re Guardianship of K.H.O., 161 N.J. 337, 347-48 (1999).]

These four prongs require a fact-sensitive analysis, and "are neither discrete nor separate. They overlap to provide a composite picture of what may be necessary to advance the best interests of the children." M.M., supra, 189 N.J. at 280 (citation and internal quotation marks omitted). Defendant only contests the judge's findings and conclusions as to prongs three and four.

As to prong three, defendant argues that DYFS provided "no services" to her "that could have eliminated the [underlying] causes for removal." Addressing the third prong, the trial judge noted that DYFS contacted and evaluated family members and E.T. as potential resource parents for placement of A.L.S., and, for various reasons, they were ruled out. Although he recognized that defendant's medical conditions limited her visitation with A.L.S., the judge noted that DYFS provided her with other services that included outpatient drug treatment programs, which could accommodate her medical conditions and parenting classes. The judge concluded that DYFS had established the third prong by clear and convincing evidence.

N.J.S.A. 30:4C-15.1(c) defines "reasonable efforts" to consist of actions by the Division "to assist . . . 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," K.H.O., supra, 161 N.J. at 354, and "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." M.M., supra, 189 N.J. at 281. 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).

Defendant tested positive for drugs as late as September 21, 2010. Clearly, the underlying problem that led to A.L.S.'s removal was not resolved, but that was not because of the Division's failure to make "reasonable efforts" to address defendant's pervasive drug abuse. The record does not support defendant's claim that DYFS failed to provide services that addressed her substance abuse and her medical conditions. The trial judge's findings in this regard were based upon substantial credible evidence, and we find no basis to disturb them.

Regarding the fourth prong, defendant contends that the strength of her relationship with A.L.S. disproves the finding that termination would not cause more harm than good. The trial judge relied upon Singer's report and testimony in reaching his conclusion that DYFS had met its burden of proof.

The judge credited Singer's opinion that although defendant had "achieved a level of familiarity with [A.L.S.], . . . there was discomfort" between them, and that defendant "lack[ed] the emotional . . . [and] physical resources needed to [be a] parent." The judge noted that Singer opined A.L.S. viewed Ms. K. as the "central parental figure in her life[,]" "has come to view the foster mother as her psychological parent and should the relationship be severed[,] the child would likely experience a significant adverse reaction both short term and . . . long term."

To the contrary, the judge found that based upon Singer's testimony, should the relationship between defendant and A.L.S. be severed, A.L.S. would not "experience significant and enduring harm." The judge therefore concluded that "more harm than good would befall [A.L.S.] were she to be removed from the foster parent and that reunification . . . is not possible."

The statute's fourth prong mandates a determination as to "whether a child's interest will best be served by completely terminating the child's relationship with that parent." E.P., supra, 196 N.J. at 108. The court must examine the child's bond with both biological and foster parents. K.H.O., supra, 161 N.J. at 355. "[W]here it is shown that the bond with foster parents is strong and, in comparison, the bond with the natural parent is not as strong," termination may be appropriate. Id. at 363. "[A]fter considering and balancing the two relationships," the question becomes will "the child . . . suffer a greater harm from the termination of ties with her natural parents than from the permanent disruption of her relationship with her foster parents[?]" Id.at 355. Answering that question "necessarily requires expert inquiry specifically directed to the strength of each relationship." Ibid. (quoting In re Guardianship of J.C., 129 N.J. 1, 25 (1992)). Adequate proof as to prong four does not "require a showing that no harm will befall the child as a result of the severing of biological ties." Ibid.

In this case, the judge's findings and conclusions are supported by substantial, credible evidence in the record. There was no expert opinion offered by defendant. The judge relied upon Singer's opinion that although defendant and A.L.S. have a positive bond, it is not as strong as the bond between A.L.S. and Ms. K., who has cared for her since shortly after her birth. Moreover, the termination of the child's bond with her "psychological parent" would result in severe harm. The Division met its burden of proof as to prong four.

Affirmed.

1 The complaint named M.V. as co-defendant based upon information received from defendant that either he, or E.T., could be A.L.S.'s father. Subsequent paternity tests were negative as to both men, and DYFS filed an amended complaint on June 15, 2009, removing M.V. as a party.