NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. N.D.D.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4123-11T3

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,1

Plaintiff-Respondent,

v.

N.D.D.,

Defendant-Appellant,

and

K.J.B.,

Defendant.2

_________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF F.R.D., a minor.

_________________________________

April 3, 2013

Submitted March 20, 2013 - Decided

Before Judges Axelrad, Sapp-Peterson and Happas.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-121-12.

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

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Michelle D. Perry-Thompson, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for F.R.D., a minor (Olivia Belfatto Crisp, Assistant Deputy Public Defender, on the brief).

PER CURIAM

N.D.D. appeals the Family Part order terminating her parental rights to F.R.D. and granting guardianship to the Division of Youth and Family Services (Division). The Law Guardian urged the court to terminate N.D.D.'s parental rights at trial and continues to do so in this appeal. We affirm substantially for the reasons expressed by Judge Octavia Melendez in her March 7, 2012 well-reasoned written opinion.

The Division presented two witnesses at the guardianship trial, one being clinical psychologist, Dr. Frank Schwoeri, who performed the bonding evaluation between F.R.D. and the foster mother, F.D. The Division also presented Gwendolyn Weber, the case worker who was assigned to N.D.D.'s case in November 2011.

The evidence at trial revealed that at the time of F.R.D.'s birth, N.D.D. tested positive for drugs. The hospital placed a hold on F.R.D.'s discharge in order to prevent his release to N.D.D.'s custody at that time. F.R.D.'s birth did not mark the Division's first involvement with N.D.D. She also has a daughter who was born in 2006. The Division became involved at that time due to N.D.D.'s substance abuse and mental health problems. N.D.D.'s mother has custody of the child because N.D.D. has continued to use drugs and has been unable to care for her daughter.

The court awarded custody and supervision of F.R.D. to the Division and, over the next eighteen months, the Division undertook efforts towards reunification between N.D.D. and F.R.D. Those efforts proved futile because of N.D.D.'s continuing refusal to comply with orders to receive treatment, submit to psychological evaluations, or complete parenting classes.

Judge Melendez found N.D.D.'s persistent substance abuse, lack of commitment to sobriety, diagnosed major depressive disorder, lack of stable housing and periods of incarceration demonstrated, by clear and convincing evidence, that F.R.D.'s safety, health and development had been endangered by N.D.D. and would continue to be at risk. Likewise, the judge found the conditions N.D.D. suffered, which caused harm to F.R.D., continued and were not likely to be eliminated, while at the same time, F.R.D. had developed a secure attachment to his resource mother, with whom he had resided since he was six months old. Judge Melendez was also satisfied there were no alternatives to termination.

Judge Melendez outlined the efforts the Division took to assist N.D.D. in correcting the circumstances that led to F.R.D.'s removal, including supervised parenting time, drug treatment programs, parenting classes, and psychological and bonding evaluations. Finally, noting her failure to attend the bonding evaluation, her transient living arrangements throughout the litigation, and inconsistent visitation with F.R.D., the judge found termination would not do more harm than good. The present appeal followed.

On appeal, N.D.D. raises the following points for our consideration:

POINT I

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

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

(B) N.[D.]D. IS WILLING OR ABLE TO ELIMINATE THE HARM FACING HER CHILD.

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

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

POINT II

THE COURT ERRED BY NOT CONTINUING THE MATTER IN ORDER FOR N.[D.]D. TO UNDERGO A BONDING EVALUATION WITH HER SON. (NOT RAISED BELOW).

The standards governing the termination of a parent's rights are strict, and our scope of review is limited. In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). A trial judge's factual findings should not generally "be disturbed unless 'they are so wholly insupportable as to result in a denial of justice,' and should be upheld whenever 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 Insurance Co., 65 N.J. 474, 483-84 (1974)); Meshinksy v. Nichols Yacht Sales, Inc., 110 N.J. 464, 475 (1988).

In N.J. Division of Youth & Family Services v. A.W., 103 N.J. 591 (1986), the Supreme Court identified four factors that must be analyzed when deciding whether the termination of parental rights is in a child's best interests. Id. at 604-11. In accord with the standards articulated in A.W., the Legislature codified these factors as follows:

(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 division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and

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

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

The four factors "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.

The Division bears the burden of establishing each enumerated prong by clear and convincing evidence. N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 506 (2004). In that vein, "all doubts must be resolved against termination of parental rights." K.H.O., supra, 161 N.J. at 347 (internal citations omitted). However, the best interests of the child remain the ultimate consideration. N.J.S.A. 30:4C-15.

In the present matter, we are satisfied Judge Melendez's findings, related to each of the four prongs, are supported by substantial credible evidence in the record and are entitled to our deference. We are additionally persuaded the judge applied the correct legal principles in reaching the conclusion from those facts that the Division established, by clear and convincing evidence, termination was in F.R.D.'s best interests. We add the following comments.

The appropriate test under the first prong is not whether N.D.D. has actually harmed F.D., as N.D.D. would urge, but "whether the child's safety, health or development will be endangered in the future and whether the parents are or will be able to eliminate the harm." N.J. Div. of Youth and Family Servs. v. A.G., 344 N.J. Super. 418, 440 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002). Causing harm and the inability to eliminate it are related factors. Thus, the evidence that supports one, informs, and may support the other. In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999). The record supports Judge Melendez's finding that the Division satisfied its burden of proof as to the first prong of the best interests test.

N.D.D. suffers from drug addiction, which adversely affects her ability to parent. Her drug use causes her to sleep during the day, leading to missed appointments. There is no evidence to demonstrate that she has the capacity to eliminate the risk of future harm. To the contrary, N.D.D. tested positive for drugs at F.R.D.'s birth, at a number of court hearings, and at drug treatment programs. Further, she admitted to smoking two to three blunts of marijuana daily and smoking two jars of PCP daily, and based upon information contained in the case file, which was admitted into evidence without objection, expressed her plan to continue her drug use to Division worker Jennifer Sabatino. N.D.D. failed to complete any treatment programs, missed several appointments, and had no desire to change. Proof of N.D.D.'s persistent, significant and treatment-resistant drug abuse demonstrated the harm to which F.R.D. was subjected as a result of her substance abuse under the first prong, by clear and convincing evidence.

This same evidence also clearly and convincingly demonstrated N.D.D.'s inability to prevent harm to her child's physical or emotional health, thereby supporting the judge's findings under the second prong. See K.H.O., supra, 161 N.J. at 353 (stating that "indications of parental dereliction and irresponsibility, such as a parent s continued or recurrent drug abuse" may be probative of the second prong). Since N.D.D. is unable to ameliorate the harm in this situation, most notably her drug use, and F.R.D. would suffer substantially from disruption with his foster mother, the requisite proofs to establish the second prong were satisfied.

Turning to the third prong, the Division provided numerous substance abuse evaluations and treatment, psychiatric evaluations, parenting classes and visitation, but N.D.D. continued to disregard them. A parent's continued refusal to engage in services suggests that the Division's efforts to provide services are no longer reasonable. A.W., supra, 103 N.J. at 610. N.D.D. is clearly not willing to participate in services, evidenced by the number of appointments she missed. While she attended some services, she did not commit to them, as she left or was kicked out due to noncompliance. To continue to offer services where the parent is not engaging is futile and only prolonging the inevitable. Ibid. The Division thus provided reasonable services.

Finally, the fourth prong requires a court to ask the question: "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.

Judge Melendez accepted Dr. Schwoeri's testimony and opinion that F.R.D. would suffer significant and enduring harm if his relationship with his foster mother were severed, because, at the time of the hearing, he had lived with her from the age of six months until eighteen months. On the other hand, the record was devoid of any evidence of a bond between N.D.D. and F.R.D. She missed both of her bonding evaluations, despite being given a bus pass to attend, and also missed numerous visits with F.R.D. Nor did she take advantage of the services provided to her by the Division, which would have reflected positive steps towards bonding and reunifying with F.R.D.

Therefore, the only harm that would befall F.R.D. from termination of parental rights is harm which naturally inures from severing a relationship with a biological parent, and that harm is insufficient to defeat termination of the parent's rights. See K.H.O, supra, 161 N.J. at 357-358. "[W]here, [as 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, that evidence will satisfy the requirement of N.J.S.A. 30:4C-15.1(a)(4) that termination of parental rights will not do more harm than good to the child." Id. at 363.

In her final point, N.D.D. argues the court should have sua sponte continued the matter to allow her another opportunity to undergo a bonding evaluation with Dr. Schwoeri, since she missed the scheduled evaluation. She argues a bonding evaluation was necessary in light of the positive interactions between N.D.D. and F.R.D. during visitations.

It may have been more desirable for the judge to order an additional bonding evaluation. However, N.D.D. did not request that such measures be taken. Additionally, she had an extremely poor history of complying with court orders and appearing at scheduled appointments. There was nothing to indicate that N.D.D. would appear for an evaluation if another was scheduled, especially since she missed not only the Division s evaluation but also the evaluation scheduled by her attorney. Moreover, the record did not support the possibility that F.R.D. was significantly bonded to N.D.D. because he had never been in her care and her visitations with him were only sporadic. The bonding evaluation likely would have only prolonged the inevitable. "When a parent has exposed a child to continuing harm through abuse or neglect and has been unable to remediate the danger to the child, and when the child has bonded with foster parents who have provided a nurturing and safe home, in those circumstances termination of parental rights likely will not do more harm than good." N.J. Div. of Youth and Family Servs. v. E.P., 196 N.J. 88, 108 (2008).

A

1 On June 29, 2012, the Governor signed into law A-3101, which reorganizes the Department of Children and Families, which includes the renaming of the Division as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. July 2, 2012.

2 K.J.B. executed a voluntary surrender of his parental rights on September 28, 2011.