NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES1 v. J.H.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

A-6307-11T2

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES1,

Plaintiff-Respondent,

v.

J.H. and W.W.,

Defendants-Appellants.

__________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF A.W., JR.,

Minor.

___________________________________

November 8, 2013

Submitted October 1, 2013 Decided

Before Judges Espinosa, Koblitz and O'Connor.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FG-12-87-11.

Joseph E. Krakora, Public Defender, attorney for appellant J.H. (Alan I. Smith, Designated Counsel, on the brief).

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

John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa Puglisi, Assistant Attorney General, of counsel; Angela Melchionna, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor A.W., Jr. (David Valentin, Assistant Deputy Public Defender, on the brief).

PER CURIAM

J.H. (mother) and W.W. (father) are the parents of A.W., born November 11, 2009. The parents appeal the termination of their parental rights to A.W. Following our review of the record and the arguments presented by the parents, the Law Guardian, and the Division of Child Protection and Permanency (Division), we affirm the judgment terminating the parental rights of both parents and awarding the Division guardianship.

I.

At birth A.W. tested positive for cocaine and opiates. After being hospitalized for approximately a month for seizures and other neurological problems, A.W. was discharged to a Special Home Service Provider, where he has remained since. At the time of trial in June 2012, A.W. was two and a half years of age. The foster mother wants to adopt A.W.

A.W. has special needs, for which he has received early intervention services since he was an infant. At two years of age A.W. was still non-verbal and unable to understand or follow commands. Atypical of most children, A.W. slept only four hours a day. When awake he was irritable and aggressive, hitting and biting others and throwing objects around, sometimes violently. A.W. required constant one-on-one supervision.

Concerned about the child's lack of development, insomnia, and aggressive behavior, the foster mother took A.W. to a physician who specializes in developmental medicine. The doctor corroborated the child's "quite disruptive and aggressive" behavior and his inability to speak or follow commands. The doctor concluded A.W. had "severe global developmental delays" with a "very significant language disorder." The only recommendations the doctor could make were that A.W. submit to a sleep study and continue early intervention services. A subsequent sleep study revealed A.W. had sleep apnea; unfortunately, A.W. could not tolerate the treatment prescribed for this disorder.

An assessment by the Division's nurse just a month before trial revealed A.W. was still aggressive and hyperactive, and continued to sleep only four hours a night. Despite his challenging behavior, the foster mother was noted to be affectionate toward and supportive of A.W. The child was also noted to be strongly bonded to the foster mother. Other witnesses testified to the pronounced attachment A.W. has to the foster mother. If physically separated from the foster mother for just moments, A.W. cries and screams inconsolably until the mother reappears. One expert psychologist commented that even if a special needs day care could be found for A.W., he would be unable to attend because of his inability to separate from the foster mother.

II.

The mother, thirty-one years of age at the time of trial, started using marijuana at eleven, alcohol at thirteen, cocaine at seventeen and heroin at twenty-one. Her parental rights to three other children have been terminated because of drug use. The father was the parent of two of these three children; his parental rights were terminated as well, also because of her drug use.

The mother was jailed within a week of A.W.'s birth for drug possession and remained incarcerated for approximately two months. After her release, the Division arranged admission into a shelter and set up a visitation schedule with the baby. But within weeks the mother disappeared and did not provide the Division with any contact information. The Division was unable to locate the mother over the ensuing months. In October 2010, the mother called the Division to report she was incarcerated for possession of drugs. She asked for visits with the baby. At trial she admitted that, before October 2010, she did not want to see her son because she was not "in the right state of mind."

The mother remained incarcerated until April 2011. While in jail, the Division arranged for various evaluations of the mother and monthly visits with A.W. (the jail did not allow visitation more than once per month). Due to the child's poor health, however, visits did not always occur.

As a condition of Drug Court, the mother was released from jail and admitted into an in-patient treatment facility to address her drug problem. She successfully completed the in-patient drug treatment plan. By the time of trial, she had been drug free for twenty-one months. She was still living in the drug treatment facility, but was permitted to live in a residential home on the premises. She was participating in out-patient drug treatment several times a week and holding down a full-time job. The mother did concede she had had two other periods of sobriety, one lasting over two years, only to succumb again to drugs. She was optimistic she was not going to relapse again, as it was her choice to be drug free; in the past she refrained from using drugs only to placate the Division.

The Division's expert psychologist, Dr. Karen Wells, Psy.D., conducted psychological evaluations of both parents. She also conducted two bonding evaluations of the mother and one of the foster mother. Her prognosis of the mother's ability to parent A.W. was "poor." While she acknowledged the mother had been doing well within the confines of an institutional setting, the concern was that, once out in the world, the mother would relapse given her significant history of being unable to resist using illicit substances. A.W.'s particularly demanding needs would only place greater stress upon the mother.

During the first bonding evaluation of the mother and A.W., A.W. cried throughout and at times uncontrollably. Although the mother behaved appropriately in her efforts to try and soothe A.W., he was not responsive to her and remained distressed and distraught. A second bonding evaluation just two months before trial showed little change in A.W.'s behavior toward the mother. Although he was more familiar with her, A.W. refused to separate from the foster mother.

The expert emphasized the importance of permanency for a child and how critical it is that a child have a stable home life and feel safe. The expert observed that A.W. and the foster mother had an affectionate and loving relationship. Although he could not speak at all, A.W. was able to communicate what he needed and the foster mother seemed to understand his non-verbal sounds and gestures.

The expert opined that if A.W. were removed from the foster mother's care, he would suffer irreparable emotional and psychological harm of an enduring nature. A.W. needs continuous contact with the foster mother. Further, no matter how vigilant and loving the mother might be toward A.W., the trauma A.W. would experience if separated from the foster mother could not be ameliorated, even with the assistance of a mental health professional. Therefore, the termination of the mother's parental rights would not do more harm than good.

The mother's expert, Ronald Silikovitz, Ph.D., also did a psychological evaluation of the mother, as well as two bonding evaluations of the mother and one of the foster mother. He concluded the mother was fit to parent because she had successfully followed through with a plan to overcome her addiction, had engaged in effective psychotherapy, was still availing herself of substance abuse treatment, was holding down a full time job and had found stable housing. The fact it was her choice to stay away from drugs and had abstained from drugs for over a year made her prognosis "good" for remaining drug free.

Dr. Silikovitz concluded gradual reunification would be "appropriate" for A.W., and that he would not suffer irreparable harm if removed from the foster mother's care, as long as a mental health professional oversaw the transition. The expert forecasted that a successful reunification could be accomplished in as little as four months. As reunification was in A.W.'s best interests, he concluded termination of parental rights would do more harm than good.

Dr. Silikovitz admitted that during the bonding evaluation he could not get A.W. to separate from the foster mother. Further, because the foster mother had to be present during the bonding evaluation of the mother, he was unable to determine if the child was bonded to the mother. He noted that while there was a bond between A.W. and the foster mother, he did not observe any love and affection between them. He further commented that the foster mother did not seem to know how to control A.W. when he became aggressive, and opined that if A.W. remained in her care, he would become more defiant and violent toward others.

III.

The father has been incarcerated for most of the A.W.'s life. The father's earliest release date is May 2014. The father has a long history of substance abuse and engaging in criminal behavior relating to drug possession, and admitted to being addicted to cocaine. A substance abuse evaluation indicated he needed in-patient treatment of eighteen to twenty-four months duration. During his psychological evaluation and at trial, the father admitted he could not take care of A.W. and is not seeking to have the child placed with him when he is released.

The father recommended two of his adult children and a family friend as alternate caretakers. However, one of his adult children told the Division she was not interested in caring for A.W. and the other adult child was ruled out. "Rule out" letters were sent to both and neither appealed. The family friend did not answer the Division's telephone calls.

By the time of trial A.W. had had only one visit with the father. Despite the fact A.W.'s doctor recommended against visits with the father because the long car rides were too physically demanding on A.W. (the father is imprisoned in Southern State Correctional Facility), monthly visitation was arranged. However, either the prison did not produce the father or A.W. was too sick to attend visitation. Given the absence of a relationship between the father and A.W., the Division's expert opined it would not do more harm than good to terminate the father's parental rights.

IV.

The trial judge made factual and legal findings in connection with each of the four prongs in N.J.S.A. 30:4C-15.1a (1) through (4) to support his decision to terminate both parents' parental rights. The mother and the father contend that there was insufficient evidence to support the court's findings.

Under N.J.S.A. 30:4C-15.1a, parental rights may be terminated when:

(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.

The Division bears the burden of proving the statutory criteria by clear and convincing evidence. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 606 (2007). The Family Part's inquiry is extremely fact-sensitive. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 280 (2007). The four subsections of the statute 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." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999).

The scope of review of a trial court's decision to terminate parental rights is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). We are obliged to accord deference to the trial judge's factual findings and credibility determinations respecting the judge's "feel of the case" based upon the opportunity to see and hear the witnesses. N.J. Div. of Youth & Family Servs. v. A.R.G., 361 N.J. Super. 46, 78 (App. Div. 2003) (citing Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)), aff'd in part and modified in part, 179 N.J. 264, 845 (2004). "We will not disturb the family court's decision to terminate parental rights when there is substantial credible evidence in the record to support the court's findings." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (quoting M.M., supra, 189 N.J. at 293); accord J.N.H., supra, 172 N.J. at 472. "Only when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark' should an appellate court intervene and make its own findings to ensure that there is not a denial of justice." E.P., supra, 196 N.J. at 104 (quoting G.L., supra, 191 N.J. at 605).

V.

Here, the trial court's conclusions as to the second, third and fourth prongs of N.J.S.A. 30:4C-15.1a were not wide of the mark but well-supported by the evidence. While we affirm the finding that the first prong was met, we do so for reasons different from those stated by the trial court. See Aquilio v. Continental Ins. Co. of New Jersey, 310 N.J. Super. 558, 561 (App. Div. 1998); Isko v. Livingston Tp. Planning Bd., 51 N.J. 162, 175 (1968) ("[i]t is a commonplace of appellate review that if the order of the lower tribunal is valid, the fact that it was predicated upon an incorrect basis will not stand in the way of its affirmance").

As for the first prong, there is no evidence the mother's use of drugs prenatally caused any harm to A.W. We therefore must reject the trial court's finding that the mother's use of drugs during gestation, without more, satisfied the first prong. See K.H.O., supra, 161 N.J. at 349. But there are other reasons to find the first prong was met.

To satisfy the first prong, the Division must show endangerment of the child's safety, health or development resulting from the parental relationship. N.J.S.A. 30:4C-15.1a. This includes "[a] parent's withdrawal of solicitude, nurture, and care for an extended period," which itself is considered "a harm that endangers the health and development of the child." In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999). Consequently, a parent's failure to provide a "permanent, safe, and stable home" engenders significant harm to a child. Id. at 383.

As for the mother, her dependence on drugs and subsequent incarceration precluded her from providing care for A.W. for a prolonged period of time. The mother was not even willing to see her son for almost a year after he was born.

The father is admittedly addicted to cocaine. He has been imprisoned for most of the child's life and the earliest he will be released from prison is May 2014. He, too, has been unable to provide care for A.W. for an extended period of time and he has not overcome the problems which led to the child's removal. The Division satisfied the first prong of the statute as to both parents.

As for the application of the second prong to the mother, the question here is not whether the mother is willing but whether she is able to resist using drugs and thereby provide a safe and stable home for A.W. Although by the time of trial the mother had successfully completed in-patient treatment and had not used drugs for twenty-one months, the trial court's concern was that the mother would relapse once she was no longer living within the "cocoon" of the rehabilitation facility.

The trial court's concerns were supported by the evidence. The mother has been abusing substances since she was eleven. Her current sobriety does not provide any assurance she will not relapse because she has abstained from drugs before, only to relapse. If the mother were to gain custody of A.W., in addition to trying to abstain from drugs, hold down a job, and maintain a home, the mother would have the added stress of caring for a special needs child who is often agitated and requires one-on-one supervision for twenty hours a day.

The trial court's apprehension the mother will relapse is also supported by the opinion of Dr. Wells. Further, the trial court specifically rejected the opinion of Dr. Silikovitz that the mother will not relapse as

simply hopeful [and] . . . he does not provide, nor account for the many variables that would be in place with this child in a new situation . . . . He has no idea what her reaction will be when she gets out into society on her own without the controlled circumstances. He has not, in my opinion, provided for the variables that happen by putting a child with these medical problems in her household. It would be an extraordinary amount of extra stress for [the mother] to deal with and still deal with her own problems of sobriety. I know she's willing. I doubt she's able.

As for the father, he admitted to Dr. Wells he is addicted to cocaine. He has not yet addressed his addiction. There is evidence the father cannot provide a safe and stable home for A.W. either now or in the foreseeable future, and the father is not even claiming that he can. A child need not wait indefinitely to see if a parent will finally surmount a drug addiction. A child need not endure "protracted efforts for reunification with a birth parent." See N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super.76, 111 (App. Div.), certif. denied, 180 N.J.456 (2004). A child is entitled "to an expeditious, permanent placement to promote the child's well-being." Ibid. (citations omitted).

The second prong permits the trial court to consider evidence whether separating the child from his resource family parent would cause serious and enduring emotional or psychological harm to the child. The trial court found Dr. Wells' testimony about the bond between A.W. and the foster mother as "the more credible assessment." There was evidence of A.W.'s acute attachment to his foster mother. Many observed A.W.'s unremitting distress when the foster mother left his presence. As Dr. Wells found, A.W. will suffer irreparable emotional and psychological injury of an enduring nature if removed from the foster mother's care. The Division satisfied the second prong as to both parents.

The Division satisfied the third prong. The Division provided various evaluations and visitation for the parents. The amount of visitation was less than what the parents wanted, but the Division was hampered in providing more frequent visits by either A.W.'s health or by prison regulations, which limit the time an inmate can visit with a child. Finally, while the mother offered the maternal grandmother as an alternate caretaker for A.W., when the Division contacted the grandmother she was not interested in caring for the child. The Division investigated the father's recommendations for alternate caretakers, also to no avail.

As for the fourth prong, the court found Dr. Wells reliable when she found that A.W. has a bond with only the foster mother and that she, unlike the parents, can provide A.W. with stability, security and permanency. The conclusion that it would not do more harm than good to terminate both parents' parental rights is supported by substantial credible evidence in the record. See E.P., 196 N.J. at 104. Accordingly, we will not disturb the trial court's findings that the Division satisfied the fourth prong.

Affirmed.

1 L. 2012, c. 16, effective June 29, 2012, reorganized the Department of Children and Families and renamed the Division of Youth and Family Services (DYFS) as the Division of Child Protection and Permanency.