NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. G.B.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4294-11T3

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,1

Plaintiff-Respondent,

v.

G.B.,

Defendant-Appellant,

and

N.G., SR.,

Defendant.

___________________________

IN THE MATTER OF THE

GUARDIANSHIP OF J.G.,

Minor.

___________________________

March 8, 2013

Submitted February 13, 2013 - Decided

Before Judges Simonelli and Accurso.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-121-11.

Joseph E. Krakora, Public Defender, attorney for appellant (Susan P. Gifis, Designated Counsel, on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel and on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor J.G. (Hector Ruiz, Designated Counsel, on the brief).

PER CURIAM

Defendant G.B., the biological mother of J.G., born in November 2007, appeals from the March 21, 2012 Family Part order, which terminated her parental rights to the child. The order also terminated the parental rights of J.G.'s biological father, defendant N.G., Sr., who is not involved in this appeal. On appeal defendant contends that plaintiff New Jersey Division of Youth and Family Services (the Division) failed to clearly and convincingly establish prongs two and three of N.J.S.A. 30:4C-15.1 A. 2 We disagree and affirm.

The Division first became involved with the family in January 2008, after receiving a referral that defendant was abusing prescription pain medication, N.G., Sr. was using marijuana and cocaine, and, as a result, they were neglecting the children. A March 2008 referral indicated that defendant was addicted to pain medication, particularly oxycodone, "doctor shopped" for the medication, slept all day, and neglected her children. In September 2009, the Division placed J.G. with his paternal grandparents, where J.G.'s brother, N.G., Jr., also lived.3 The paternal grandparents want to adopt J.G.

During defendant's nearly three-year involvement with the Division she failed to comply with numerous services the Division offered her, including substance abuse and psychiatric evaluations, pain management assessments, substance abuse treatment, domestic violence and individual counseling, parenting skills training, homemaker services, and supervised visitation.4 She remained addicted to pain medication, tested positive for opiates, oxycodone, phencyclidine (PCP), methadone, and benzodiazepines, lacked permanent housing and employment, failed to keep in contact with the Division or her attorney, and failed to appear for pre-trial psychological and bonding evaluations. She also failed to appear for the guardianship trial.5

At the trial, a Division caseworker testified about the Division's attempts to help defendant and defendant's refusal to comply with court-ordered services. The caseworker testified that with respect to defendant's addiction to pain medication, the court ordered defendant to attend pain management assessment to determine whether the medication she took was necessary, but she never complied.

The Division's expert, Karen Wells, Psy.D., testified about the bonding evaluation she conducted between J.G. and his paternal grandparents. Dr. Wells opined there was an intact, secure and stable child-parent bond between J.G. and his paternal grandparents, who are the child's parental figures and psychological parents. The doctor concluded that if removed from his paternal grandparents, J.G. would suffer enduring and irreparable psychological and emotional harm, including regressive behaviors and a great sense of loss and grief. The doctor recommended that the paternal grandparents adopt J.G.

In a March 21, 2012 oral decision, Judge Lois Lipton made extensive factual findings and described the applicability of those findings to each of the four prongs of N.J.S.A. 30:4C-15.1a. Applying the clear and convincing proof standard, the judge concluded that the Division met all four prongs of N.J.S.A. 30:4C-15.1a. As to the first prong, the judge found that defendant had not complied with services; was unable to provide a home for herself, let alone her child; was unable to function and unable or unwilling to comply with substance abuse treatment; and defendant's continued drug addiction and lack of compliance and stability put J.G. at severe risk of harm. The judge concluded that the Division "overwhelmingly satisfied" the first prong.

As to the second prong, Judge Lipton found that the record was "replete with examples" of defendant's non-compliance with court-ordered services and unwillingness or inability to eliminate the harm facing J.G.

As to the third prong, Judge Lipton found that the Division provided numerous services to defendant, including assisting her with her attempt to obtain rental assistance. The judge determined that the Division made "beyond reasonable efforts" to provide services to defendant, and defendant failed to avail herself of the Division's efforts to resolve the issues that prevented reunification. The judge concluded that defendant's refusal to comply with services and overcome her drug addiction showed she had not corrected the circumstance that led to J.G.'s placement outside the home, defendant was unlikely to be able to provide a safe, stable, consistent, and secure home for J.G. now or in the future, and "there's no indication [that defendant] will be fit to parent [the] child." The judge also determined there were no alternatives to termination of parental rights, and Kinship Legal Guardianship (KLG) was not an option because the paternal grandparents want to adopt J.G.6 This appeal followed.

On appeal, defendant concedes she is dependent on pain medication, cannot care for J.G., and the child is "clearly bonded with his grandparents." She argues, however, that the Division failed to make reasonable efforts to help her overcome her drug addiction because it "refused to focus on fixing the underlying [medical] problem causing [her] drug use." Defendant also argues it was premature to terminate her parental rights and Judge Lipton should have ordered KLG in order to give her time to rehabilitate. None of these arguments has any merit.

"The focus of a termination-of-parental-rights hearing is the best interests of the child." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 447 (2012). To justify termination of parental rights, the Division must establish by clear and convincing evidence that:

(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.

[Id. at 448 (quoting N.J.S.A. 30:4C-15.1a).]7

These "four prongs are not 'discrete and separate,' but 'relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests.'" Ibid. (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 606-07 (2007)).

Our Supreme Court has established the standard of review in parental termination cases:

Our task as an appellate court is to determine whether the decision of the family court in terminating parental rights is supported by substantial and credible evidence on the record. We accord deference to factfindings of the family court because it has the superior ability to gauge the credibility of the witnesses who testify before it and because it possesses special expertise in matters related to the family. . . . We will not overturn a family court's factfindings unless they are so wide of the mark that our intervention is necessary to correct an injustice. It is not our place to second-guess or substitute our judgment for that of the family court, provided that the record contains substantial and credible evidence to support the decision to terminate parental rights.

[Id. at 448-49 (internal quotation marks and citations omitted).]

The first prong of the best interests test requires the Division to show that "the alleged harm 'threatens the child's health and will likely have continuing deleterious effects on the child.'" Id. at 449 (quoting In re Guardianship of K.H.O., 161 N.J. 337, 352 (1999)). "To satisfy this prong, [the Division] does not have to wait 'until a child is actually irreparably impaired by parental inattention or neglect.'" Ibid. (quoting In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999)).

"The second prong, in many ways, addresses considerations touched on in prong one." Id. at 451. The focus is on parental unfitness. K.H.O., supra, 161 N.J. at 352; D.M.H., supra, 161 N.J. at 378-79. In considering this prong, the court should determine whether it is reasonably foreseeable that the parent can cease to inflict harm upon the child. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 607 (1986). The second 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 protective home, the withholding of parental attention and care, and the diversion of family resources in order to support a drug habit, with the resultant neglect and lack of nurture for the child.

[K.H.O., supra, 161 N.J. at 353.]

"Prong two may also be satisfied if 'the child will suffer substantially from a lack of . . . a permanent placement and from the disruption of [the] bond with foster parents.'" F.M., supra, 211 N.J. at 451 (quoting K.H.O., supra, 161 N.J. at 363).

"The third prong requires an evaluation of whether [the Division] 'made reasonable efforts to provide services to help the parent' remedy the circumstances that led to the removal of the children from the home." Id. at 452 (quoting N.J.S.A. 30:4C-15.1a(3)). The emphasis on the third prong

is on the steps taken by [the Division] toward the goal of reunification. The diligence of [the Division's] efforts on behalf of a parent is not measured by whether those efforts were successful. Reasonable efforts 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. Experience tells us that even [the Division's] best efforts may not be sufficient to salvage a parental relationship.

[Ibid. (internal citation and quotations marks omitted).]

As part of the inquiry, "the court must consider the alternatives to termination of parental rights and whether the Division acted reasonably." N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 434-35 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002). "The reasonableness of the Division's efforts depends on the facts in each case." Id. at 435.

We have considered defendant's arguments in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons expressed by Judge Lipton in her comprehensive and well-reasoned oral opinion rendered on March 21, 2012. However, we make the following brief comments.

Defendant had nearly three years to address and resolve the alleged medical problems that led to her addiction to pain medication and resulting inability to care for her children. The court ordered her numerous times to attend a pain management assessment to determine her need for pain medication but she failed to do so. It is, thus, disingenuous, at best, for defendant to now blame the Division for her failure to address the underlying medical problem she claims caused her drug addiction and her failure to overcome her addiction.

In addition, KLG is not proper here because adoption of J.G. by his paternal grandparents is feasible and likely. N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 509 (2004); N.J.S.A. 3B:12A-6d(3).

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. June 29, 2012.

2 Without citation to the record, defendant also contends the trial judge erroneously terminated her parental rights based on finding that defendant abandoned J.G. by relying on prescription medication. Our review of the record confirms the judge made no such finding and terminated defendant's parental rights for other reasons.

3 N.G., Jr. is also the biological child of defendant and N.G., Sr.

4 Defendant was court-ordered to comply with these services.

5 The trial began on December 16, 2011.

6 Judge Lipton also made factual findings and legal conclusions as to the fourth prong, which are not at issue in this appeal.

7 Defendant does not dispute that the Division established the first and fourth prongs by clear and convincing evidence.