NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. S.K.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5949-10T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,1

Plaintiff-Respondent,

v.

 

S.K.,

 

Defendant-Appellant.

__________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF F.M.K., a minor.

__________________________________

December 20, 2012

 

Submitted October 30, 2012 - Decided

 

Before Judges Alvarez, Waugh, and St. John.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FG-20-57-10.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Wroblewski, Designated Counsel, on the brief).

 

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Tara Beth LeFurge, Deputy Attorney General, on the briefs).

 

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Nancy P. Fratz, Assistant Deputy Public Defender, on the briefs).

 

PER CURIAM

Defendant S.K. (Susan2) appeals the Family Part's June 30, 2011 order terminating her parental rights to her daughter F.M.K. (Frances), who was born in May 2009.3 She also appeals the March 30, 2012 order determining that she failed to demonstrate that her trial attorney provided constitutionally ineffective assistance of counsel. We affirm both orders.

I.

We discern the following facts and procedural history from the record on appeal.

Susan was thirty-eight years old when she gave birth to Frances at a hospital in Somerset County on May 4, 2009. Following her birth, Frances displayed symptoms of drug withdrawal, including tremors, seizures, vomiting, and loose bowel movements. She tested positive for the opiate morphine, and was placed on phenobarbital to alleviate withdrawal symptoms.

A hospital social worker noted that, although Susan appeared to have developmental delays, her interactions with Frances were "appropriate." Another social worker observed that Susan was "appropriate, loving and gentle with her newborn." Nevertheless, the birth was reported to the Division because of the withdrawal symptoms and positive drug test.

Frances remained hospitalized for three weeks. She was then placed in the care of a specialized foster home because of her elevated heart rate, rapid breathing, exaggerated startle reflex, and high-pitched screaming between feedings. Frances's maternal great aunt, Carol, eventually assumed care of Frances in June 2009. Carol is now seeking to adopt Frances.

Prior to any attempt at reunification, the Division expected Susan to attend a parenting skills course and "to complete a substance abuse evaluation and follow-up substance abuse treatment, along with a psychological evaluation to determine parenting ability and service needs." Susan agreed to comply with services recommended by the Division.

Susan had a lengthy history of drug use. In her middle twenties, she used cocaine and marijuana socially. Susan admitted that she used heroin on and off over a three-year period in her early thirties. She had stopped using heroin on her own and had remained off drugs for approximately seven years.

After a motor vehicle accident and the death of a cousin, Susan started abusing Percocet. She enrolled herself in a methadone maintenance program, Organization for Recovery (OFR), in September 2008. The OFR counselor's plan was to wean her from methadone.

Susan discovered she was thirteen weeks pregnant in November 2008. Although she wanted to stop using methadone, the clinical staff instructed her not to do so because a miscarriage could result. Susan tested positive for methadone and opiates on December 2, 2008, February 11 and 20, March 27 and 31, April 3, and May 11, 2009, according to OFR's toxicology screenings.

Susan completed a comprehensive drug and alcohol evaluation at Trinitas Hospital in June 2009, following Frances's birth. The hospital staff recommended that she attend the Women's Addiction Services Program five days a week. Treatment was scheduled to begin on June 2. However, Susan's urine screen that day tested positive for benzodiazepines, opiates, and methadone. Although she initially claimed she had not used drugs for at least two to three weeks, she subsequently admitted to taking a benzodiazepine pill a few days earlier. However, she was unable to explain the methadone or opiates. Program staff told Susan that she could not participate in the daily program until her urine drug screen tested negative. She was offered a detox referral in the interim, but refused. Susan was also informed that she could return to provide another screen test. She promised to return a few days later but did not show up.

On June 10, Susan contacted one of the clinicians at Trinitas, apologized for her absence, and said she would come in the next day. She did not. Susan then called on June 29, explaining that she had been depressed but would appear to submit a urine sample. She did not do so. On July 14, Susan's court-ordered urine screen tested positive for morphine.

Susan contacted Trinitas again on August 10, and informed the clinician that she continued to use opiate pills on a daily basis and needed detox. The clinician explained that Trinitas had an "ambulatory detoxification program" for which she could be assessed. Susan did not follow up with the ambulatory program, and never started treatment at Trinitas. She told her case worker that she had transportation problems, but declined his offer of assistance. The substance abuse coordinator assigned by the Division closed Susan's case in mid-August and recommended that the Division send Susan for intensive outpatient treatment. In late August, Trinitas informed the Division that Susan had not complied with any of its instructions or recommendations, and suggested that Susan receive inpatient services.

Susan was briefly hospitalized on August 16. She admitted to using heroin for the first time in six years, and tested positive for opiates and benzodiazepine. On September 9, Susan enrolled in a program for individual addiction treatment sessions at JFK Medical Center (JFK), which was closer to her home than Trinitas. She tested negative at her initial intake. She tested positive for alcohol on September 23, and positive for methadone, cocaine, and opiates on October 8. In addition, Susan provided water instead of a urine sample on October 22.

When asked about the test results by the Division caseworker, Susan responded that she did not know why she tested positive for cocaine. She denied submitting water instead of a urine sample, but admitted to treating migraines with Percocet that she said her doctor had prescribed. However, the doctor had moved away and Susan was unable to explain how she could have obtained such a prescription. The case worker informed Susan that JFK recommended inpatient treatment, but Susan declined.

On November 17, Susan's court-ordered urine screen tested positive for benzodiazepine and morphine. She did not attend a November 30 substance abuse assessment. Susan's court-ordered urine screen tested positive for methamphetamine on March 23, 2010. She left the courthouse without permission when ordered to undergo a second test.

On April 26, Susan was diagnosed as opioid dependent after a substance abuse evaluation based on self-reported information. The same report indicated that Susan said she was doing well in St. Michael Hospital's intensive outpatient program. St. Michael's subsequently referred Susan to the inpatient program at Sunrise House, which she attended from May 19 until June 16. According to her patient narrative, Susan had been using Percocet for six years and had started using OxyContin during the previous year.

Sunrise House reported the following to the Division:

She reported numerous aches and pains, requesting medications and bed rest. She was spoken to about this issue and agreed to refrain from requesting bed rest. She did show improvement towards the end of treatment, however, she continued to believe her physical discomfort still warranted bed rest.

 

[Susan] has shown difficulty accepting feedback. She has some limited cognitive abilities and tends to focus on one topic. She continues to believe her biggest problem is with DYFS. [Susan] showed limited insight and denied responsibility for her legal ramifications.

 

[Susan] struggled to fully participate and she required continued redirection. Her social skills are childlike and she used her cognitive limitations as excuses to avoid making changes.

 

[Susan] was unable to completely acknowledge that she needed to make changes in her behavior and attitude and develop coping skills to remain sober, in order to be the primary caregiver to her daughter.

 

Susan returned to St. Michael's for an outpatient intake appointment on June 17, but never returned for treatment.

In July, Susan enrolled herself at the Steps Recovery Center at JFK, which she was to attend three times a week for twelve weeks. She attended approximately half of her scheduled sessions in July and tested positive for opiates on July 15 and 26. She was discharged from the JFK program in September. JFK reported to the Division that Susan was still testing positive for benzodiazepine, and that she had tried to use someone else's urine for a screening.

Subsequently, Susan was referred to the Union County Psychiatric Clinic (UCPC) for outpatient drug treatment. Although she missed her initial intake appointment on December 7, Susan began the program on December 28. Between December 28, 2010, and February 3, 2011, Susan attended three sessions. She tested positive for benzodiazepines and opiates on December 28, but tested negative for drugs on January 20.

Between February 7 and May 31, Susan attended the UCPC program three days a week on a consistent basis. On May 31, her schedule was reduced to two days a week because of her compliance. Although she tested negative on February 8, March 14 and May 23, Susan tested positive for benzodiazepines on February 23, March 29, April 14, and May 10. UCPC's June report stated that "[Susan] currently reports 9 months clean and sober," a self description that was not consistent with the record of her test results at the program.

At the time the Division chose Carol as Frances's foster parent in May 2009, Susan had "a good prognosis of reunification" with Frances because she was "willing to comply with any services the Division recommends in order to be reunified with [Frances]." Susan completed a parenting skills course in June 2009. However, the course was not approved by the Division because it could not confirm the curriculum.

Both Susan and her mother, Linda, were advised that "they would have to refrain from visiting [Carol's] home while [Frances was] there and that all visits must be supervised by the Division." The Division initially allowed Susan weekly visits with Frances. There was a delay in setting up a visitation schedule as the Division waited for Susan to schedule her substance abuse treatment sessions. The visits were changed to bi-weekly in November 2009. On average Susan visited with Frances one to two times per month.

Susan was observed feeding and changing Frances's diaper, as well as playing with her by making faces and engaging her with toys that Susan brought from home. Susan continued to "interact[] appropriately" with Frances as the visits continued. The Division took Frances to visit Susan at Sunrise House on May 26, 2010. At an August 4 visit, the social worker observed that Frances "seemed to be familiar and comfortable with [Susan]."

Linda's involvement with Susan and Frances was problematic for the Division. When Frances was placed with the resource family trained in caring for drug-addicted babies, the Division told Susan that because of confidentiality concerns she could not attend the June 2, 2009 follow-up pediatric appointment, but that she would have a scheduled visit with Frances on June 3. However, on June 2, Linda appeared with Susan at the hospital. Linda approached the resource parent's vehicle, asking, "Is that [Frances]?" She also discussed details of the case aloud in the hospital common area. The resource parent reported that Linda appeared distraught and unstable, and was of the opinion that Linda was "attempting to manipulate [Susan] and control the energy of this situation." Security escorted the resource family out of the hospital when the appointment was finished.

In addition, Linda has treated Carol and her family inappropriately in ways that undermined Susan's interests. In late June 2009, Linda left "harassing" voice mail messages on Carol's son's cell phone and told Carol's son that "the only reason why your mother wants [Frances] is for the money." On July 1, during parenting time, Linda was asked to leave after engaging in a verbal argument with Carol. The Division instructed Linda not to attend visitations "due to her inconsistent and confrontation[al] behaviors." In contrast, the social worker observed that Susan "remained compliant and appropriate during all supervised visitations."

In early August 2009, Carol reported receiving "random, erratic text messages and voicemails" from Susan and Linda. According to Carol, their relationship had been amicable until she began serving as Frances's caregiver. On September 8, when a social worker informed Linda that she was not to participate in the parenting time, Linda "raise[d] her voice and argue[d] with [the] worker" in front of Susan and Frances and then "stormed out of the room."

On September 16 the Division informed Linda that Frances could not be placed with her because she lived with Susan, from whom Frances had been removed. In October, Carol reported that she continued to receive harassing calls and text messages, and that Susan and Linda attempted to pressure her into bringing Frances for unauthorized visits, claiming that they had been authorized.

On November 11, a nurse met with Susan and Linda to discuss Frances's diagnosis of congenital adrenal hyperplasia, a condition which affects the production of hormones by the adrenal glands. The nurse observed that while "[Susan]'s only concerns were what information she needed to care for [Frances] and what resources would be available in aiding her to meet [Frances]'s need if she gain[ed] custody temporarily or for weekend visits," Linda "continued to interrupt and express her anger with [Carol] . . . and the caseworker." Linda told the nurse, "They want to put [Susan] in a program for six months that is ridiculous." When the nurse attempted to ask Susan for further information, Linda stated "I have been unemployed for more than a year . . . [I] can't afford to lose [Susan]'s check and if she goes in a program my money will stop; I depend on this money for my income." In December, Carol reported that Linda had threatened her life.

On May 12, 2010, Linda came to the visitation and stated that she was not visiting the child but waiting for Susan. After clarifying the court order, the supervisor advised Linda that she could not wait in the adjacent waiting area during the visit. Linda left the office and went downstairs. On June 23, Linda came to the visitation but complied and sat in the lobby.

Susan underwent several mental health evaluations. Jacob Jacoby, M.D., a psychiatrist, conducted an evaluation on behalf of Susan on August 30, 2010. Jacoby concluded that Susan could parent with help. He explained that, because of Susan's "learning impairment and . . . intelligence impairment that's on the borderline of perhaps retardation but perhaps over that line, . . . she would benefit from some social supports, from people helping her, people helping with regard to guiding her and what's effective parenting." Jacoby noted that Susan "has also engaged in responsible and independent activities," such as babysitting after high school. However, he described Susan's relationship with her mother as a "two edged sword." Although Linda provided "balance and direction," she was "responsible for initiating behaviors that have been questionable and problematic in [Susan]'s quest to get her child back." That conduct included appearing "at unscheduled or restricted meetings with her child or family, and . . . periodic discouragement of [Susan] taking medications that were prescribed by physicians."

On August 31, Richard Klein, Ed.D., a psychologist, conducted a psychological evaluation on behalf of Susan. He observed that Susan "is capable of functioning within the borderline to low average range of measurable intelligence" and is "free of significant psychopathology with the exception of a reactive depression to the placement of her infant daughter." He opined that Susan would be capable of parenting her daughter if she entered psychotherapy for depression and for support while parenting, participated in an additional parenting skills program, slowly transitioned from part-time to full-time custody with both homemaker and visiting nurse services provided, and continued aftercare drug treatment.

Klein did not conduct a bonding evaluation. When asked about bonding at the hearing, he opined that Frances, given her young age at the time, would not be harmed by being removed from Carol, her current caretaker. According to Klein's interpretation of the literature, "it takes approximately three years for a child to really be permanently bonded to a caretaker."

Mark Singer, Ed.D., a psychologist, conducted a psychological evaluation for the Division on September 28. In addition to a clinical interview, Singer administered a Mental Status Examination, a Sentence Completion Task, a Rorschach test, a Kaufman Intelligence test, and a three-wishes test. The Kaufman Intelligence test indicated that Susan has an IQ score of fifty-seven, within the lower extreme range of IQ. Singer testified that Susan informed him that she cooks for herself and manages her own money, which are forms of adaptive functioning. He opined that "the data does not suggest that [Susan] has the emotional resources needed to provide an appropriate environment for [Frances], but certainly the wish, the desire is there" and that her "cognitive limitations are . . . likely to continue and not be able to be fully remediated, and they're going to impact upon her ability to parent."

Based upon his analysis, Singer believed that Susan "would function most effectively in a very highly structured repetitive environment where things are . . . very black and white, things are very concrete." Opining that raising children involves "a lot of shades of gray," he testified that "[Susan] is likely to have continued difficulty creating stability in her own life never mind being able to create the kind of stability that she would need to meet the challenges involved in the very . . . not so black and white world of raising a child."

Singer did not view Susan as someone who would actively wish harm upon her child, but rather as "an individual who's cognitively limited and with the ongoing substance abuse issue is does not have the emotional resources needed to provide the type of structure and environment to [Frances] that would best serve the child."

On October 8, Alexander Iofin, M.D., conducted a psychiatric evaluation for the Division. Susan's scores on IQ tests conducted by Iofin were in the mid and moderate levels of mental retardation. Iofin opined that "[w]ithout 24/7 supervision of [Susan] by a person who has normal cognitive functioning, putting the child in the care of a person . . . functioning in the low end of mild level of mental retardation, is equivalent to playing Russian Roulette with the child." Iofin testified that Susan's cognitive limitations would not be treatable. He opined that she was sometimes so depressed that she could not get out of bed, which meant that she would probably not be able to take care of Frances at those times. He was concerned that "with even best intentions, [Susan] will have difficulties to understand what to do properly with the child," and "any simple task . . . will [present] tremendous difficulties for this person," which could "create [the] possibility of terrible consequences for the child."

On September 28, when Frances was nearly seventeen months old, Singer conducted separate bonding evaluations involving Susan and Carol. He observed that "[t]he bonding data suggest that [Frances] has come to view [Carol] as being her central parental figure. Considering that [Frances] has never lived with her mother, and considering the length of time [Frances] has been in the care of [Carol], such a finding is not surprising." He found Frances to be "appropriately verbal, both responsively and spontaneously" with Carol, while "[p]hysical interactions were mutual and [Frances] engaged in exploratory behaviors." When separated from Carol, "[t]he child . . . experienced some anxiety, consistent with her age." In contrast, Frances "was slow to warm up to her mother" and "did not initially acknowledge her mother's presence and resisted efforts to display physical affection." However, "[Susan] did interact with [Frances] appropriately and [Frances] did warm up as the session progressed."

Singer concluded, "within a reasonable degree of psychological certainty, [that] should [Frances]'s relationship with [Carol] be severed, the child would likely experience a significant adverse reaction" and "would experience anxiety and regress emotionally and behaviorally." He pointed to the fact that the "literature suggests that, as a child moves into the age range of 2 to 3 years, primary attachments become internalized and solidified." He anticipated that should Frances's relationship with Carol be severed, "[Frances] would experience feelings of loss, sadness, insecurity, and have difficulty establishing and maintaining future healthy attachments." In comparison, Singer believed that "should [Frances]'s relationship with [Susan] be severed, the child would not likely experience such a reaction."

The guardianship trial took place on seven trial days between January 12 and June 8, 2011. The Division presented the testimony of Singer, Iofin, and two caseworkers. Susan testified on her own behalf, and also presented the testimony of Klein and Jacoby. The Law Guardian presented testimony by Carol.

On June 30, Judge Robert A. Kirsch issued a sixty-page opinion setting forth his detailed findings of fact and conclusions of law. He determined that the Division had sustained its burden of proof by clear and convincing evidence. Relying on the testimony offered by Singer and Iofin, he concluded that Susan's "sustained and varied drug use" posed "dangers" to Frances, and that her "severe cognitive limitations rendered her incapable of parenting a child now, or, most likely, in the future." He also concluded that Susan's "continued interdependence on [Linda] pos[ed] additional and compounded risks of stability and security to [Frances]." He entered an order terminating parental rights on the same day. This appeal followed.

In February 2012, Susan sought leave to supplement the record on appeal to raise the issue of ineffective assistance of counsel. We granted the application and ordered a limited remand to the trial court on the issue. The trial judge held the remand hearing on March 15. On March 30, Judge Kirsch issued a second detailed opinion, containing his findings of fact and conclusions of law based upon the remand hearing. He determined that Susan had not established that she had been denied the effective assistance of counsel. His conclusion was that

counsel's overall performance was not objectively deficient. [Counsel] appeared fully engaged, diligent, appropriate, zealous, and prepared during the entire course of the trial. As stated, his advocacy included objecting to numerous exhibits offered by the Division, at the outset, such that certifications regarding same were provided, and at least one (1) of the exhibits was withdrawn. He cross-examined each of the Division's witnesses, and offered the testimony of three (3) witnesses, including two (2) experts and [Susan]. He provided relevant documenta-tion, including medical documents, to both defense experts in order to aid their preparation, and both experts conducted evaluations of the defendant-appellant.

 

It is also clear that [counsel] gave [Susan] sufficient attention and time to meet her needs, by conducting numerous telephonic discussions; face-to-face meetings at the courthouse, including lengthy discussions; meeting her at his office; and through multiple letters which, in part, encouraged her to contact him with questions. The relative frequency of their contact, including excessive demands by [Susan]'s mother prompting [counsel] to remind her that he represented [Susan] alone, demonstrates that [counsel]'s representation was more than adequate in terms of availability and communication. His suggestion that [Susan] seek her own blood work and lab results to dispute the court-ordered drug tests appeared sound; the fact that she apparently ignored same is irrelevant for purposes of determining whether counsel was deficient. [Counsel]'s conduct with regard to review of [Susan's] file; advice given; amount of contact and availability; and performance at trial, certainly falls within the wide range of reasonable professional assistance, and was certainly reasonable under prevailing professional norms.

 

The judge went through each of Susan's criticisms of her attorney's representation and found them to be without merit. Finally, he concluded that nothing allegedly omitted by the attorney would have changed the result.

In summary, the judge found no reason to depart from his findings and conclusions resulting from the termination trial, and entered an appropriate order on the same day. The appeal was expanded to include that order.4

II.

Susan raises the following issues on appeal:

POINT I THE TRIAL COURT ERRED IN FINDING THAT THE "BEST INTERESTS" TEST WAS PROVEN BY CLEAR AND CONVINCING EVIDENCE.

 

(A) CLEAR AND CONVINCING EVIDENCE DID NOT EXIST TO SUPPORT THE FINDING THAT THE HEALTH AND DEVELOPMENT OF THE CHILD WAS AND CONTINUED TO BE ENDANGERED BY THE PARENTAL RELATIONSHIP.

 

(1) The Division Failed To Present Clear And Convincing Evidence That [Susan] Has Cognitive Limitations That Prevented Her From Safely Parenting Her Daughter.

 

(2) The Division Failed To Present Clear And Convincing Evidence That [Susan] Harmed Her Daughter By Abusing Controlled Substances.

 

(3) The Judge Erred In Finding That [Susan's] Criminal History Constituted A Potential Harm to [Frances].

 

(B) CLEAR AND CONVINCING EVIDENCE DID NOT EXIST TO SUPPORT A FINDING THAT [SUSAN] IS UNWILLING OR UNABLE TO ELIMINATE THE HARM FACING HER CHILD.

 

(C) CLEAR AND CONVINCING EVIDENCE DID NOT EXIST THAT THE DIVISION MADE REASONABLE EFFORTS TO PROVIDE SERVICES TO HELP [SUSAN] CORRECT THE CIRCUMSTANCES WHICH LED TO HER CHILD'S PLACEMENT OUTSIDE THE HOME.

 

(D) DYFS DID NOT PREVAIL ON PRONG FOUR OF N.J.S.A. 30:4C-15.1(a) BECAUSE IT DID NOT PROVE BY CLEAR AND CONVINCING EVIDENCE THAT TERMINATION OF PARENTAL RIGHTS WOULD NOT CAUSE MORE HARM THAN GOOD.

 

POINT II [SUSAN] WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL DUE TO COUNSEL'S FAILURE TO OBTAIN TREATMENT RECORDS FROM [SUSAN'S] PHYSICIANS (Not Raised Below).

 

Before addressing those issues, we outline the general legal principles that govern our review of judgments terminating parental rights.

The scope of our review of a Family Part judge's factual findings is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278-79 (2007) (citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). Those findings may not be disturbed unless they are "'so manifestly unsupported by or inconsistent with the com petent, relevant and reasonably credible evidence as to offend the interests of justice.'" Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)); see also N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004). "A reviewing court should uphold the factual findings undergirding the trial court's deci sion if they are supported by 'adequate, substantial and credi ble evidence' on the record." M.M., supra, 189 N.J. at 279 (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)).

As a general rule, we should also defer to the judge's credibility determinations. Ibid. Such deference is appropri-ate because the trial judge has a feel for the case and "the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008); see also M.M., supra, 189 N.J. at 293. In New Jersey Division of Youth & Family Services v. M.C. III, 201 N.J. 328, 343 (2010) (alteration in original), the Supreme Court reiterated the standard first used in Cesare v. Cesare, 154 N.J. 394, 413 (1998), recognizing that "'[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding.'"

We have held that, "'where thefocus of thedispute is . . . alleged error in the trial judge's evalua tion of the underlying facts and the implications to be drawn therefrom,' the tradi tional scope of review is expanded." J.T., supra, 269 N.J. Super. at 188-89 (quoting C.B. Snyder Realty Inc. v. BMW of N. Am. Inc., 233 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989)); see also N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). Deference is appropriate even in that circumstance "unless the trial court's findings 'went so wide of the mark that a mistake must have been made.'" M.M., supra, 189 N.J. at 279 (quoting C.B. Snyder Realty, supra, 233 N.J. Super. at 69).

Nevertheless, the trial judge's legal conclusions, and the application of those conclusions to the facts, are sub ject to plenary review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). We need not defer to the trial court's legal conclusions reached from the established facts. See State v. Brown, 118 N.J. 595, 604 (1990). "If the trial court acts under a misconception of the applicable law," we need not defer to its ruling. Ibid.

Parents have a constitutionally-protected right to enjoy a relationship with their children. N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 165-66 (2010); E.P., supra, 196 N.J. at 102; In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). Strict standards have consistently been imposed in the termination of parental rights. K.H.O., supra, 161 N.J. at 347. To balance these constitutional rights against potential harm to the child, when applying for guardianship, the Division must institute "a termination proceeding when such action would be in the best interest of the child." N.J. Div. of Youth & Family Servs. v. K.M., 136 N.J. 546, 557 (1994). The burden of proof is on the Division to establish its case by clear and convincing evidence. Ibid.; J.N.H., supra, 172 N.J. at 464; see also P.P., supra, 180 N.J. at 511 ("On appeal, a reviewing court must determine whether a trial court's decision in respect of termination of parental rights was based on clear and convincing evidence supported by the record before the court.").

The Supreme Court first articulated the best interests stan dard in New Jersey Division of Youth & Family Services v. A.W., 103 N.J. 591, 602-11 (1986). The Legislature subse quently amended Title 30 in 1991 to conform with the court's holding in A.W., codifying the standard at N.J.S.A. 30:4C-15.1(a). See L. 1991, c. 275, 7. The statute provides that the Division must prove:

(1) The child's safety, health or devel opment 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 par ents 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).]

These four factors are not independent of each other; rather, they are "interrelated and overlapping[,] . . . designed to identify and assess what may be necessary to promote and protect the best interests of the child." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006) (citing K.H.O., supra, 161 N.J. at 348), certif. denied, 190 N.J. 257 (2007). Application of the test is "extremely fact sensitive," requiring "particularized evidence that addresses the specific circumstances of the individual case." Ibid. (internal quotation marks omitted).

Under the first prong of the best interests standard, the Division must prove by clear and convincing evidence that "[t]he child's safety, health or development has been or will continue to be endangered by the parental relationship." N.J.S.A. 30:4C-15.1(a)(1). "The harm shown . . . must be one that threatens the child's health and will likely have continuing deleterious effects on the child." K.H.O., supra, 161 N.J. at 352. There are situations where "[t]he potential return of a child to a parent may be so injurious that it would bar such an alternative." A.W., supra, 103 N.J. at 605. Accordingly, the "absence of physical abuse or neglect is not conclusive"; indeed, serious emotional and developmental injury should be regarded as injury to the child. Ibid. (internal quotation marks omitted). More over, trial courts must consider the potential psychological damage that may result from reunification with a parent. Ibid. "[T]he psychologi cal aspect of parenthood is more important in terms of the development of the child and its mental and emo tional health than the coincidence of biological or natural par enthood." Sees v. Baber, 74 N.J. 201, 222 (1977); see also In re Guardianship of K.L.F., 129 N.J. 32, 44 (1992) ("Serious and lasting emotional or psychological harm to children as the result of the action or inaction of their biological parents can constitute injury sufficient to authorize the termination of parental rights." (citing J.C., supra, 129 N.J. at 18)).

Under the second prong of the best interests standard, a trial court is required to determine whether it is "reasonably foreseeable that the parents can cease to inflict harm upon" their child. A.W., supra, 103 N.J. at 607. "No more and no less is required of them than that they will not place their children in substantial jeopardy to physical or mental health." Ibid. This prong may be satisfied "by indications of parental dereliction and irresponsibility, such as the parent's continued or recurrent drug abuse, the inability to provide a stable and protec tive home, [and] the withholding of parental attention and care, . . . with the resultant neglect and lack of nurture for the child." K.H.O., supra, 161 N.J. at 353. This harm includes "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). The second prong focuses on parental unfitness and its proofs overlap with the proofs supporting the first prong. In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999).

Under the third prong of the best interests standard, the Division must make "reasonable efforts to provide services to help the parent correct the circumstances" that necessitated removal and placement of the child in foster case. N.J.S.A. 30:4C-15.1(a)(3); K.H.O., supra, 161 N.J. at 354. "Reasonable efforts" may include parental consultation, plans for reunification, services to further the goal of reunification, notice to the family of the child's progress, and visitation facilitation. N.J.S.A. 30:4C-15.1(c). Those efforts depend upon the facts and circumstances of each case. D.M.H., supra, 161 N.J. at 390. The services provided to meet the child's need for permanency and the parent's right to reunification must be "coordinated" and must have a "realistic potential" to succeed. N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 267 n.10 (App. Div. 2002) (quoting N.J.A.C. 10:133-1.3).

The third prong also requires that the court consider "alternatives to termination of parental rights." N.J.S.A. 30:4C-15.1(a)(3). Where a relative caregiver agrees to raise a child to adulthood, the court may award kinship legal guardianship to that relative pursuant to N.J.S.A. 3B:12A-6. N.J. Div. of Youth & Family Servs. v. S.V., 362 N.J. Super. 76, 87 (App. Div. 2003). However, this option is not appropriate where adoption is feasible and likely. Id. at 88 (citing N.J.S.A. 3B:12A-6(d)(3)); see also N.J. Div. of Youth & Family Servs. v. S.F., 392 N.J. Super. 201, 213 (App. Div.), certif. denied, 192 N.J. 293 (2007).

Under the last prong of the best interests standard, the question to be addressed is "whether, after considering and balancing the two relationships, the child will 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." K.H.O., supra, 161 N.J. at 355. The overriding consideration under this prong is the child's need for perma nency and stability. Id. at 357. "If a child can be returned to the parental home without endangering [her] health and safety, the parent's right to reunification takes precedence over the permanency plan." N.J. Div. of Youth & Family Servs. v. L.J.D., ___ N.J. Super. ___, ___ (App. Div. 2012) (slip op. at 51). The mere existence of a bond with the foster parent does not alone justify the termination of parental rights. N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 263-64 (App. Div. 2005); see K.L.F., supra, 129 N.J. at 44-45.

In meeting this prong, the Division should adduce testimony from a "well qualified expert who has had full opportunity to make a comprehensive, objective, and informed evaluation of the child's relationship" with the natural parent and foster parent. J.C., supra, 129 N.J. at 19. "[T]ermination of parental rights likely will not do more harm than good" where a child has been exposed to continuing harm by the parent and, in contrast, "has bonded with foster parents who have provided a nurturing and safe home." E.P., supra, 196 N.J. at 108. The Division "must show 'that separating the child from his or her foster par ents would cause serious and enduring emotional or psychological harm.'" Ibid. (quoting J.C., supra, 129 N.J. at 19).

III.

Based upon our review of the record in light of the applicable law, we conclude that the record supports the trial judge's conclusion that all four prongs of the statutory test were proven by clear and convincing evidence. We review each of the prongs separately.

 

 

A.

The first prong requires the Division to establish that the child's safety, health or development has been and will continue to be endangered by the parental relationship.

The Supreme Court has concluded that "a child born addicted to drugs and suffering from the symptoms of drug withdrawal as a result of her mother's substance abuse during pregnancy has been harmed by her mother and that harm endangers the child's health and development." K.H.O., supra, 161 N.J. at 349. In K.H.O., the Court found that even if the child had recovered from the drug addiction and progressed in foster care, the fact that she was born drug-addicted and hospitalized for one month following her birth satisfied the first prong of the test. Id. at 351.

It is uncontroverted that Frances was born drug-addicted and hospitalized for more than three weeks before being placed with a foster family with the specialized training to address her needs. Consequently, the first prong of the parental termination requirements has been satisfied by clear and convincing evidence.

B.

The second prong requires a finding that a parent is "unwilling or unable to eliminate the harm . . . or . . . to provide a safe and stable home" to the child, and that a delay in permanent placement "will add to the harm." N.J.S.A. 30:4C-15.1(a)(2); K.H.O., supra, 161 N.J. at 352. "The question is whether the parent can become fit in time to meet the needs of the child." N.J. Div. of Youth & Family Servs. v. T.S., 417 N.J. Super. 228, 244 (App. Div. 2010) (citing J.C., supra, 129 N.J. at 10), certif. denied, 205 N.J. 519 (2011).

Susan attended several treatment programs. Although her attendance was inconsistent initially, she was more successful in 2011 by the time the trial started. Nevertheless, as the trial judge determined, when taken as a whole Susan's efforts were largely unsuccessful. Indeed, Susan had positive drug screens during and after the trial. Although her efforts may have been compromised by her mother's unwillingness to let her participate in a long-term inpatient treatment program, the end result is that Susan has not resolved her drug problem. There is nothing in the record to suggest that she will do so in the foreseeable future.

The problems presented by Susan's drug addiction are enhanced by her cognitive limitations. Both Singer and Iofin testified that Susan's cognitive limitations cannot be remediated. The trial judge found their testimony to be credible. He pointed to Iofin's observation that Susan "is in a subset of individuals who themselves require care." He found Susan's testimony to be "disjointed and rambling." She "had difficulty testifying consistently" and struggled to understand and formulate responses to her counsel's questions.

Although Susan requires assistance, her dependence on her mother has largely been a negative influence, undercutting her attempts to comply with Division recommendations. There is also no reason to conclude that this situation will improve in the foreseeable future.

Based on Susan's inability to overcome her substance abuse, her cognitive limitations, and her mother's inability to provide the positive support Susan requires, singularly and in combination, the trial judge correctly concluded that, based on clear and convincing evidence, Susan was "unable or unwilling to provide a safe and stable home" for Frances. N.J.S.A. 30:4C-15.1(a)(2).

C.

The third prong requires the Division to make reasonable efforts to help the parent correct the circumstances that led to the child's placement outside the home and that the court consider alternatives to the termination of parental rights. "The reasonableness of the Division's efforts depends on the facts in each case." N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 435 (App. Div. 2001) (citing D.M.H., supra, 161 N.J. at 390), certif. denied, 171 N.J. 44 (2002). Nevertheless, "the parent's failure to become a caretaker for [her] children is not determinative of the sufficiency of [the Division's] efforts at family reunification." D.M.H., supra, 161 N.J. at 393.

The Division followed the appropriate course toward reunification by allowing Susan weekly or bi-weekly parenting time and by providing services. The record reflects that the Division made many attempts to assist Susan in addressing her substance abuse problem so that she could be reunified with Frances. These efforts were unsuccessful.

The Division made successful efforts to place Frances with a relative who considered a kinship legal guardianship. However, Carol testified at trial that she wanted to adopt Frances. Although Carol initially believed that kinship legal guardianship (KLG) was an option, she testified that "the insanity of everything that has gone on leads me to believe it's not in [Frances]'s best interest to . . . ever have to be put through that lifestyle."

The Division also considered a placement with Linda. It determined she was unsuitable because she lived with Susan, the parent from whom Frances had been removed. Linda subsequently informed the Division that Susan no longer lived with her, but she did not provide requested documentation of their separate living arrangements. Additionally, the Division determined that placement with Carol, the relative resource that Susan provided to the Division, was in the child's best interests. At the hearing, Linda testified that she was still living with Susan. It was also adduced that she had never served as sole caretaker for Frances and that her visitation with Frances had been terminated. Accordingly, she was not an appropriate option for KLG or adoption.

The record clearly reflects that Susan's inability to achieve reunification did not result from the Division's failure to provide services. In addition, alternatives to the termination of parental rights were considered. The trial judge's finding that the Division satisfied the third prong by clear and convincing evidence is fully supported by the record on appeal.

D.

The important issue in addressing the fourth prong is "'whether . . . the child will suffer a greater harm from the termination of ties with her natural parents than from permanent disruption of her relationship with her foster parents.'" I.S., supra, 202 N.J. at 181 (quoting J.N.H., supra, 172 N.J. at 478). "That the parents may be morally blameless is not sufficient to tip the scales in their favor." A.G., supra, 344 N.J. Super. at 438. The trial judge must base this determination on clear and convincing evidence including "testimony of a well qualified expert" who has evaluated both the child's relationship with the foster parent and the child's relationship with the biological parent. J.C., supra, 129 N.J. at 19.

Susan is not to blame for her cognitive limitations. Nevertheless, her cognitive limitations enhance the problems resulting from her continuing drug problems. The issue here is whether, given the situation as it exists and is likely to exist for the foreseeable future, termination of Susan's parental rights would cause Frances more harm than good.

After evaluating the bond between Frances and Susan, and the bond between Frances and Carol, Singer concluded that Frances had developed a stronger and more stable bond with Carol than with Susan. Frances is now approximately three and one-half years old.

As the trial judge observed, Singer testified that severing Frances's "stable, nurturing, and longstanding relationship" with Carol, "her only psychological parent," could result in both short-term harm and enduring injury. In contrast, Singer testified that Frances will not suffer similar harm from being separated from Susan because she does not see Susan as "a consistent parental figure in her life," or even a familiar figure. Because the judge credited Singer's testimony, he found by clear and convincing evidence that terminating the parental relationship would not do Frances more harm than good. There is substantial and credible evidence to support the judge's finding. There was also persuasive evidence that further delay would cause more harm than good because there was no reason to believe that Susan would be able to parent Frances in the foreseeable future.

E.

Susan argues that her trial attorney provided her with ineffective assistance, particularly because he did not obtain her treatment records from doctors to show why her drug tests were positive, nor did he have those doctors testify. After the remand hearing, the trial judge found that there was no ineffective assistance of counsel. We agree.

In order to establish that a defendant in a parental termination case has been denied effective assistance of counsel, defendant must show that counsel's performance was "objectively deficient," meaning that it fell "outside the broad range of professionally acceptable performance." N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 307 (2007). Additionally, it must be shown that there is "'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Ibid. (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 697 (1984)). A court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance" and that "under the circumstances, the challenged action 'might be considered sound trial strategy.'" Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S. Ct. 158, 164, 100 L. Ed. 83, 93 (1955)).

As to the first prong, the judge found and the record reflects that defense counsel was not deficient. He made objectively reasonable efforts to contact some of the physicians and strategic decisions regarding others. He testified that he telephonically contacted Dr. Ceraulo of the Freeman Pain Institute several times to discover whether the doctor had prescribed Susan Percocet and Restoril in October 2010. He received no response. Although Susan and her mother told him that they would send him a letter from Ceraulo, he never received one.

With regard to Susan's medications for a bladder infection coinciding with some of her positive tests, defense counsel contacted Dr. Cunicella, who informed him that the prescribed antihistamines could show up as narcotics on a drug screen. However, Cunicella explained that he was not the appropriate authority to testify on that subject. Defense counsel then searched for an expert on the subject. He explained Susan's case to an expert whom he hoped would testify on Susan's behalf, but the conclusions reached by that expert were unfavorable to Susan.

With respect to Susan's Topomax and Treximet prescriptions, defense counsel wrote a letter to Dr. Gan in January 2011, inquiring whether either medication would show up positive on urine screens. He received no response.

Defense counsel contacted Dr. Rao concerning the issue of whether Susan's seizures would affect her care of a child. According to Susan's certification on her motion to supplement, defense counsel told her that he had spoken with Rao and believed that her involvement would not assist the case. In essence, defense counsel made a strategic decision not to have Dr. Rao testify.

As to the second prong of the test for ineffective assistance of counsel, even if defense counsel had been able to introduce evidence that the prescriptions caused positive results for certain narcotics on certain dates, there is no reason to believe that the trial judge would have reached a different conclusion regarding Susan's drug abuse. Susan admitted to using heroin, tested positive once for methamphetamines and once for cocaine, and tested positive for opiates and morphine on court-ordered urine screens in 2009 and 2010. Testimony that Susan's seizures would not interfere with her parenting would not have changed the facts, found by the trial judge, that Susan was unable to address her drug problems and that her inherent cognitive limitations contributed significantly to her inability to parent.

Affirmed.

1 Effective June 29, 2012, the Division was renamed the Division of Child Protection and Permanency. L. 2012, c. 16.

2 We use pseudonyms to refer to the individuals in this case for the purposes of confidentiality and clarity.

3 The parental rights of Frances's purported father were also terminated. He has not appealed that decision.

4 The record was further supplemented to reflect Susan's failure of additional drug tests and the birth of a second child, who is under the care and custody of the Division.