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

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3502-11T3

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

S.R.,

Defendant-Appellant.

_______________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF S.D.R. AND D.R.M., Minors.

_______________________________________

March 4, 2013

Submitted February 12, 2013 Decided

Before Judges Yannotti, Harris and Hoffman.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FG-16-40-10.

Joseph E. Krakora, Public Defender, attorney for appellant (Celeste Dudley-Smith, Designated Counsel, on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Toni Lynn Imperiale, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for S.D.R. and D.R.M., minors (Sean Lardner, Designated Counsel, on the brief).

PER CURIAM

S.R. appeals from a judgment entered on January 30, 2012, terminating her parental rights to two minor children, S.D.R. and D.R.M. We affirm.

I.

S.D.R. was born on November 9, 2005, and D.R.M. was born on August 7, 2007. J.L. is S.D.R.'s father, and R.M. is D.R.M.'s father. The Division of Youth and Family Services (Division) learned that S.R. tested positive for marijuana when D.R.M. was born.1 S.R. admitted that she smoked marijuana while pregnant but she denied that she drank alcohol during the pregnancy.

The Division found no evidence that the children were abused or neglected. S.R. was referred to the Substance Abuse Initiative (SAI), but she only attended four appointments. SAI closed S.R.'s case and it was unable to rule out alcohol or marijuana dependence.

In January 2008, the Division received a report that S.R. was living in an apartment with the children and her two brothers. The Division was informed that a stove was being used to heat the apartment and the apartment was "filthy with garbage and trash all over the place[.]" S.R. met with a caseworker and agreed to clean the apartment, keep the premises free from substance abuse, and take the children to a doctor.

In June 2008, the Division received a report indicating that S.R. was leaving the children alone at night. The report also indicated that S.R.'s apartment did not have electricity or gas, S.R. was not feeding the children appropriately, and S.R. was drinking alcohol and taking ecstasy pills.

The Division confirmed that S.R.'s apartment did not have electricity. The investigator noted that one of the children did not have appropriate sleeping arrangements. S.R. agreed to contact a welfare agency to obtain a bed for the child. She also agreed to purchase food and clean the apartment.

In July 2008, the Division received a referral indicating that S.R. had moved. It seems that S.R. and the children relocated to another apartment and were staying with S.R.'s friends. A caseworker visited the apartment and noticed an empty bottle of liquor on the kitchen counter, as well as an empty beer can on the floor.

S.R. was told she had to participate in a substance abuse assessment. On July 16, 2008, S.R. completed a urine screen, which was negative for drugs and alcohol. On July 22, 2008, S.R. agreed to a new case plan, which required that she and the children move in with her stepparents.

Shortly thereafter, S.R.'s stepmother contacted the Division and said that S.R. had come home drunk late the previous night and gotten into a verbal dispute with her stepfather. S.R. and the children left the stepparents' home. The caseworker spoke that day with S.R. She said she had moved with the children to her old apartment because her stepparents did not have room for them. She denied that she had been drinking the previous evening.

S.R. agreed to participate in another substance abuse assessment. She completed a drug screen on August 4, 2008, which was positive for amphetamines. On August 7, 2008, the Division effected an emergency removal of the children. The children were placed in the care of Y.T., their maternal aunt. Seven days later, at Y.T.'s request, the children were placed with K.M., another maternal aunt.

On August 27, 2008, Kenneth M. Schulman, Ph.D. (Dr. Schulman), performed a psychological evaluation of S.R. She told Dr. Schulman she drank alcohol occasionally and had last consumed alcohol several weeks before the evaluation. S.R. admitted she had previously used marijuana.

Among other things, Dr. Schulman found that S.R. "reflects an inflated sense of self-importance combined with mistrust of others, defensiveness, and an inclination to misinterpret the actions of others and project her own motives onto others." Dr. Schulman recommended a psychiatric assessment, individual psychotherapy, parenting education and continued substance abuse treatment.

On October 1, 2008, Dr. Samiris Sostre (Dr. Sostre) performed a psychiatric evaluation of S.R. At that time, S.R. was not employed and was relying on welfare and food stamps. S.R. admitted she had previously smoked marijuana, drank alcohol and used ecstasy. Dr. Sostre noted that S.R. had a history of failing to follow through on substance abuse treatment recommendations.

Dr. Sostre also noted that S.R. failed to recognize that her substance abuse could affect the children and place them at risk of danger. She recommended that S.R. continue substance abuse treatment. She also recommended anger management, parenting and life skills training, attendance at meetings of Narcotics Anonymous/Alcoholics Anonymous (NA/AA), and, if necessary, individual counseling.

In October 2008, the children were removed from K.M.'s care, after tests revealed the presence of unsafe levels of lead in her apartment. The children were placed with a foster parent, where they have remained since.

In January 2009, S.R. completed a intensive outpatient substance abuse treatment program at Options Counseling (Options). The following month, a caseworker visited S.R.'s new apartment and spoke with S.R.'s brother, who was also living there.

S.R.'s brother admitted that he had been arrested several months earlier for possible involvement in a prescription drug scheme, and that he had been arrested in 2004 for possession of marijuana. He also admitted that he used marijuana several times a week but he claimed he only did so outside the apartment. In March 2009, the Division informed S.R. that the children could not be returned to her at that time because of her brother's criminal history.

On April 27, 2009, Dr. Sostre performed another evaluation. S.R. reported that she had completed the treatment program at Options but had not complied with the Division's other recommendations, including attendance at NA/AA meetings and finding work.

In her report, Dr. Sostre noted that S.R.'s motivation to be reunified with the children was poor and S.R. was not motivated to make other changes in her life. Dr. Sostre concluded that S.R. had not shown sufficient progress to regain custody of the children.

In June 2009, S.R. attended a scheduled substance abuse assessment and tested negative for drugs and alcohol. It was determined that further substance abuse treatment was not required. On July 8, 2009, S.R. contacted the Division and said she did not have a place to stay, and she asked the Division to assist her in finding a place in a homeless shelter. The Division referred S.R. to Eva's Village. S.R. did not remain there long, apparently because of the shelter's stringent requirements.

The Division subsequently changed its permanency plan from reunification to termination of S.R.'s parental rights. However, in July 2009, after a hearing, the court refused to approve the Division's revised plan. The court determined that the Division must do more to address S.R.'s substance abuse problems.

The Division referred S.R. to the Challenge Program for another substance abuse assessment. On October 23, 2009, the Division was informed that S.R. had been discharged from the program for lack of attendance.

On October 26, 2009, the Division presented the court with another plan for S.R.'s reunification with the children. The court approved the plan. On October 28, 2009, S.R. informed the Division that she would not participate in substance abuse treatment, despite the court's order.

On November 30, 2009, the Division submitted another permanency plan to the court. The plan called for the termination of S.R.'s parental rights due to her failure to comply with substance abuse treatment and counseling. The court approved the plan. Thereafter, S.R. failed to attend several scheduled substance abuse assessments.

On February 4, 2010, the Division filed its complaint seeking termination of S.R.'s parental rights to the children. The Division also sought the termination of J.L.'s parental rights to S.D.R, and R.M.'s parental rights to D.R.M.

Shortly thereafter, S.R. tested positive for alcohol. In March 2010, she admitted that she recently consumed alcohol. She agreed to attend outpatient substance abuse treatment at Options, parenting skills classes, and AA meetings. Options later discharged S.R. from its program. She also missed several substance abuse assessments.

On March 2, 2011, following a four-day trial, the court rendered an oral decision. The court determined that, as to J.L. and R.H., the Division had presented clear and convincing evidence establishing all four prongs of the best interests test for termination of parental rights in N.J.S.A. 30:4C-15.1(a). The court noted that neither J.L. nor R.M. had participated in the trial and had not contested the termination of their parental rights.

Regarding S.R., the court determined that the Division had established prongs one, two, part of prong three and prong four of the best interests test. The court stated that it was "beyond dispute" that the children had been harmed by their relationship with S.R., and that S.R. was unwilling and unable to eliminate the harm. The court also found that the Division had made reasonable efforts to address the reasons the children had been removed from S.R.'s care, and termination of S.R.'s parental rights would not do more harm than good to the children.

The court determined, however, that the Division had not adequately considered alternatives to termination of S.R.'s parental rights, as required by prong three. The court remanded the matter for further proceedings in the protective services litigation so that the Division could consider the possible placement of the children with K.M. or Y.T.

The Division thereafter ruled out placement of the children with K.M. She did not appeal the Division's decision. In addition, Dr. Robert Miller (Dr. Miller) conducted a bonding evaluation of Y.T. and the children. In a report dated July 22, 2011, Dr. Miller concluded that Y.T. did not have an emotional bond with the children. He noted that, during the evaluation, Y.T. was unable to manage the children's behavior.

Dr. Miller stated that the children viewed their foster parent as a "stable, competent adult from whom they receive care and comfort." He expressed the opinion that removal of the children from their foster parent would cause them harm. The court terminated the protective services litigation. Proceedings in the guardianship case continued thereafter.

After hearing additional testimony, the court determined that the Division had properly ruled out K.M as a placement for the children. The court also determined that Y.T. was not an appropriate placement. The court noted that Y.T. had not appeared for the hearing. The court found that Y.T. failed to take advantage of the visitation afforded to her to establish a relationship with the children. The court further found that the children would suffer serious and enduring harm if they are removed from their foster parent.

The court thereupon concluded that the Division had satisfied all of the requirements for termination of parental rights under N.J.S.A. 30:4C-15.1(a). On January 30, 2012, the court entered its judgment terminating S.R.'s parental rights to the children. The judgment also terminated J.L.'s parental rights to S.D.R, and R.M.'s parental rights to D.R.M. S.R.'s appeal followed. J.R. and R.M. have not appealed.

II.

S.R. argues that the Division failed to prove by clear and convincing evidence all four prongs of the best interests test for termination of her parental rights under N.J.S.A. 30:4C-15.1(a). We cannot agree.

It is well-established that a parent has a fundamental right to enjoy a relationship with his or her child. In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). However, "[p]arental rights, though fundamentally important, are not absolute." Id. at 347. "The constitutional protection surrounding family rights is tempered by the State's parens patriae responsibility to protect the welfare of children." Ibid. (citing In re Guardianship of J.C., 129 N.J. 1, 10 (1992)). "The balance between parental rights and the State's interest in the welfare of children is achieved through the best interests of the child standard." Ibid.

The best interests standard precludes termination of parental rights unless the Division establishes by clear and convincing evidence each of the following:

(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;

(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;

(3) The [D]ivision has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and

(4) Termination of parental rights will not do more harm than good.

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

These statutory criteria "are not discrete and separate; they relate to and 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. See also N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 166-67 (2010).

The scope of our review of an order terminating parental rights is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). The trial court's findings must be upheld if they are supported by "'adequate, substantial and credible evidence.'" 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)). Moreover, we accord special deference to the Family Part's fact-finding because of that court's special jurisdiction and expertise in family matters. Cesare v. Cesare, 154 N.J. 394, 413 (1998).

A. Prongs One and Two.

S.R. argues that, assuming the children were harmed by their relationship with her, the evidence established that she was willing and able to eliminate that harm and provide a safe and stable home for the children. We disagree.

Here, the record clearly and convincingly supports the trial court's finding that the children were harmed by their relationship with S.R. The children were removed from the home because S.R. tested positive for illegal drug use. S.R. was unemployed and she was not providing the children with a safe and stable home.

The record also clearly and convincingly established that S.R. was unwilling or unable to eliminate the harm to the children and a delay in permanent placement will cause the children further harm. In its decision, the trial court noted that that it was "abundantly clear" that S.R. was "still not ready to parent" the children.

S.R.'s living arrangements remained unstable. S.R. showed a lack of motivation in having the children returned to her care. She was unemployed, had stopped looking for work, and was not capable of providing the necessities for the children. Although S.R. had completed the Options program, she failed numerous times to follow through on additional substance abuse treatment, apparently in the belief that she did not require such treatment.

The court drew a negative inference from S.R.'s repeated failures to appear for scheduled substance abuse assessments. The court inferred that S.R. knew when she would test negative and when she would test positive. S.R. also had tested positive for alcohol in February 2010.

In addition, Dr. Miller testified that S.R. had not fully addressed her substance abuse problems. Dr. Miller noted that S.R. had a propensity to engage in illegal drug use. She had not complied with the Division's services and remained homeless. Dr. Miller opined that S.R. was unable to parent the children and they would be at risk of emotional neglect if placed in her care.

B. Prong Three.

Next, S.R. argues that the Division did not provide her with "significant" services. She also argues the trial court erred by finding the Division adequately considered alternatives to termination of her parental rights. Again, we disagree.

The record clearly and convincingly supports the trial court's finding that the Division made reasonable efforts to address the causes for the children's removal from S.R.'s care. The Division provided substance abuse assessments, substance abuse treatment, homemaker services, psychological and psychiatric evaluations, individual counseling, family intervention services, parenting skills classes and visitation with the children. S.R.'s contention that the services were not "significant" is entirely lacking in merit.

The record also clearly and convincingly establishes that the Division adequately considered alternatives to termination of S.R.'s parental rights. As we stated previously, the children were placed briefly with K.M., but the Division removed the children from K.M.'s care when it found high levels of lead in her apartment.

After the court remanded the matter for further proceedings in the protective services litigation, the Division's caseworker contacted K.M. about placement of the children with her. She told the caseworker she was not interested in becoming a caretaker for the children. The Division sent K.M. a letter ruling her out as a possible placement, and she did not appeal that determination.

K.M. later denied that she told the caseworker she was not interested in caring for the children. She also denied receiving the Division's rule-out letter. The trial court found that the caseworker had credibly testified to the contrary. The court determined that the Division had properly ruled out K.M. as a potential caretaker. There is sufficient credible evidence in the record to support the court's findings.

The record also supports the court's finding that the Division adequately evaluated Y.T. as a potential caretaker for the children. The children had been placed with Y.T. after their removal from S.R.'s care, but shortly thereafter Y.T. asked that they be placed with K.M.

In March 2010, the Division ruled out Y.T. as a possible caretaker after she informed the Division she was not interested in adopting the children. In November 2010, the Division again ruled out Y.T. as a possible placement. The Division had provided Y.T. with a relative resource packet but she failed to complete and submit the necessary paperwork.

After the case was remanded for further proceedings in the protective services litigation, the Division again explored placement of the children with Y.T. and she was afforded the opportunity for visitation with them. Furthermore, Dr. Miller conducted a bonding evaluation and concluded that the children did not have a stable relationship with Y.T. and would suffer serious harm if removed from their foster parent.

The trial found that Dr. Miller's testimony was "most credible." We must defer the trial court's findings, particularly those that are informed by the court's assessment of a witness' credibility. Cesare, supra, 154 N.J. at 412 (citing In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)).

S.R. argues that the trial court failed to consider kinship legal guardianship (KLG) as an alternative to termination of her parental rights. However, as we have explained, the record established that the Division considered the potential caretakers and reasonably ruled them out. Furthermore, the children's foster parent is committed to adopting them. Under these circumstances, KLG is not a defense to termination of S.R.'s parental rights. N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 512-13 (2004).

C. Prong Four.

S.R. further argues that the trial court erred by finding the termination of her parental rights will not do more harm than good. Again, we disagree.

Here, the children have been living with their foster parent since October 2008. Dr. Miller's bonding evaluations established that the children had a stronger attachment to their foster parent than to S.R. Dr. Miller opined that the children would be harmed if they are removed from their foster parent and reunited with S.R.

Moreover, as the trial court found, S.R. is not capable of parenting the children. She has not fully addressed her substance abuse problems, has not obtained employment, and failed to find suitable housing. The evidence therefore established that S.R. is not capable of providing the children with a safe and stable home.

We are accordingly satisfied that the evidence clearly and convincingly supports the court's determination that the Division established all four prongs of the test for termination of S.R.'s parental rights.

III.

S.R. argues that she was denied the effective assistance of counsel in the guardianship proceedings. The record does not support her argument.

Parents have a constitutional right to counsel when faced with an application for termination of their parental rights. N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 306 (2007). A claim of ineffective assistance of counsel is considered in light of the two-part test articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). B.R., supra, 192 N.J. at 309.

To establish a denial of effective assistance of counsel, the parent first must show that counsel's performance was objectively deficient. Id. at 307 (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 697). The parent must establish that the attorney's representation fell outside the "broad range of professionally acceptable performance." Ibid. (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 697).

The parent also must show that his or her defense was prejudiced by counsel's deficient performance. Ibid. (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 697). The parent must establish there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Ibid. (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 697).

We will assume for purposes of our decision that S.R.'s attorney erred by failing to retain an expert to testify at the guardianship trial. Nevertheless, we are convinced that S.R. has not shown that the result here would have been different if an expert had been retained.

S.R. has not provided a certification or affidavit setting forth the testimony an expert would have provided. Furthermore, the evidence supporting termination of S.R.'s parental rights was clear and convincing, if not overwhelming. S.R. has not shown that the case would have been decided in her favor even if an expert had been called to testify on her behalf.

Affirmed.

1 The Division is now known as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.