NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. M.K.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,1

Plaintiff-Respondent,

v.

M.K.,

Defendant-Appellant.

___________________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF M.G.K.,

Minor.

___________________________________________

April 24, 2014

Submitted February 24, 2014 Decided

Before Judges Yannotti, Ashrafi and St. John.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-143-12.

Joseph E. Krakora, Public Defender, attorney for appellant (Sarah L. Monaghan, Designated Counsel, on the briefs).

John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ilana Wolk, Deputy Attorney General, on the brief).

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

PER CURIAM

In this appeal, defendant M.K. (Mary) appeals from the Family Part's order terminating her parental rights to her daughter, M.G.K. (Marta), who was born in January 2011.2 Defendant argues that the Division of Child Protection and Permanency (the Division) failed to prove by clear and convincing evidence all four prongs of N.J.S.A. 30:4C-15.1(a). We have considered these arguments in light of the record and applicable legal standards. We affirm.

I.

The Division's initial contact occurred on January 16, 2011, when a hospital reporter notified the Division that Mary and Marta tested positive for methadone at the time of Marta's birth. When the Division caseworker met with Mary at the hospital, the caseworker learned that Mary had tested positive for both methadone and benzodiazepines. On that date, the caseworker was also informed that Marta was receiving .08 mg of methadone every three hours and was experiencing symptoms of withdrawal, including tremors and difficulty feeding.

The caseworker interviewed Mary who informed the worker that she had an extensive history of substance abuse, was unemployed and relying on welfare benefits to support herself and her child. She also explained that prior to becoming pregnant and during the course of her pregnancy, she had used illicit drugs and had prostituted herself. In the weeks after Mary's discharge, she tested positive for marijuana.

After five weeks, on February 28, Marta was released from the hospital and placed in the care of her maternal aunt and uncle. The Division referred Mary to substance abuse evaluations, substance abuse treatment programs, and parenting skills classes. Mary complied with the parenting skills classes, and attended the substance abuse treatment programs regularly; however, she consistently provided positive urine screens. She was non-compliant when the substance abuse evaluator recommended that she attend in-patient treatment through a Mommy-and-Me program because Mary was concerned that she would be taken off her prescribed psychotropic medication.

On March 23, the Division received a report from the Substance Abuse Initiative (SAI) stating that Mary was attending SAI's program up to fifteen hours per week and her drug test from February had been positive for methadone and benzodiazepine, which had been prescribed by her doctor. Although Mary's drug tests had been negative for all illicit substances since February 4, 2011, SAI and Spectrum Health Care Inc. (Spectrum) continued to recommend that she attend Mommy-and-Me residential treatment.

On March 28, Dr. Leslie Trott conducted a psychological evaluation of Mary. The doctor found that "[Mary] appeared cognitively slow and sedated. [She] very much appeared over-medicated, slurring her words and struggling to express herself." A report by the doctor concluded that Mary was at the borderline for sustaining the cognitive skills necessary to adequately parent and she showed cognitive potential to understand her role as a mother. She further determined that Mary was in the earliest stages of drug addiction recovery and was not ready to parent independently. The doctor recommended that Mary be considered for drug rehabilitation in a residential facility.

In April 2011, the Division learned that Mary suffered from edema of the legs and ankles linked to a calcium deficiency. In June 2011, Spectrum informed the Division that Mary was receiving substance abuse treatment through the Methadone Intensive Outpatient Program. The treatment included nine hours of treatment weekly, one hour of individual counseling, eight hours of therapy, relapse prevention and parenting group. Mary completed the program in July 2011.

On June 20, 2011, in lieu of a fact finding hearing, Mary stipulated that she used cocaine near the time of her pregnancy and admitted that she placed her child at risk of harm, and the court ordered that the custody of Marta remain with the Division. The court also ordered Mary to attend visits with her internist so she could be cleared for the Mommy-and-Me program, and allowed Mary to participate in overnight visits once a week at Marta's caretakers' home.

In November 2011, Mary was under the psychiatric care of Dr. Mariza Del Rosario-Garcia at Spectrum. The doctor reported that Mary was prescribed Klonopin, Saphril, Vistaril, and 95 mg of Methadone, and was permitted to take home three bottles of Methadone per week. The doctor found that Mary was cooperative, showed an interest in her overall mental and physical health, and recommended that she be afforded the opportunity to form a mother and child bond with the supervision of a health aid.

A compliance review hearing was held on November 20, 2011, and the court ordered that overnight visits could continue between Mary and Marta with permission of the caretakers. The resource parents did not consent. They informed the court that they were uncomfortable allowing Mary to care for Marta for that length of time.

On December 2, 2011, Dr. Larry E. Dumont conducted a psychiatric evaluation of Mary. He found that Mary is an "extremely psychologically compromised individual . . . who has used drugs for quite an extended period of time . . . may have actually been trying to self-medicate an underlying bipolar disorder that has never been adequately diagnosed." The doctor determined that Mary "is a woman who demonstrates a great deal of immaturity and impulsivity" and found that he "would have grave concerns about [Mary's] daughter being returned to her care at this point in time."

On December 6, the Division conducted a monthly home visit at Mary's home. During the visit, the caseworker informed Mary that she had learned that Mary had recently overdosed on Klonopin. The Division referred Mary to an in-patient treatment program at Straight and Narrow, but she refused to attend. Straight and Narrow also did not accept Mary because of her medical issues, edema and hepatitis. In addition, the caseworker contacted several agencies on Mary's behalf to obtain the court ordered methadone treatment.

On December 27, the Division was informed by a member of Spectrum that Mary's most recent drug screen results showed that she tested positive for Xanax, and had taken twice the amount that is normally prescribed. Mary initially denied using the drug, but later admitted that she had illegally purchased Xanax off the street.

Dr. Trott conducted another psychological evaluation of Mary in January 2012. She concluded that Mary was severely impaired and showed signs of decreased cognitive functions, and impaired social and emotional skills.

On January 28, at the permanency hearing, the judge ordered that the case should be moved to guardianship because Mary had not addressed her substance abuse and mental health issues, and her psychological evaluators determined that she could not parent in the foreseeable future. After the hearing, Mary became volatile and had to be escorted out of the Hudson County Courthouse.

In February 2012, Mary began intensive out-patient treatment at Spectrum, completed parenting skills classes at the Hudson County Child Abuse Prevention Center, and completed twelve hours of group parenting therapy. On March 2, the Division caseworker was informed that Mary was drug tested at Spectrum after she fell asleep during group therapy, and the results showed positive results for a toxic dose of Xanax, three times over the prescribed limit.

In July 2012, Mary enrolled in a methadone treatment program at Mt. Carmel where she was prescribed 50 mg of Vistaril and 10 mg of Saphris by the program's psychiatrist. On July 17, 2012, all parties participated in mediation. No agreement was reached and a sheriff had to be called to escort Mary and her boyfriend out of the courtroom.

On August 6, 2012, SAI reported that Mary tested positive for Xanax, barbiturates and methadone. SAI referred her to in-patient treatment. Later in August, Mary and her boyfriend informed caseworkers that she had been discharged from her methadone treatment program, after being observed taking Xanax from another patient, and receiving a positive result from her urine screen.

Mary attended a meeting at the Division in October 2012, and notified the caseworker that she was attending methadone treatment at Exodus, and she continued to receive methadone and Klonopin from the Spectrum program. Caseworkers determined that Mary appeared to be under the influence during the meeting.

Dr. Samiris Sostre conducted a psychiatric evaluation of Mary in December 2012. The doctor found that Mary's "years of drug use have prevented her from maturing and developing appropriately." She determined that it would be unrealistic to expect her to be able to function independently and in a healthy manner with less than a year of sobriety under her belt. The doctor recommended that Mary undergo significant long term changes before she could be permanently reunited with Marta.

At a case management conference in January 2013, the Division requested that the supervised visits between Mary and Marta be moved to the Division Office. The Division reasoned that this was necessary, as Mary took Marta to get her ears pierced without telling the Division or Marta's caregivers.

The guardianship trial for Marta began on April 17, 2013 and concluded on June 19, 2013. The Division first called Dr. Frank Dyer, a psychologist, who had conducted an individual psychological evaluation of Mary, a bonding assessment of Marta and Mary, and a bonding assessment of Marta with her caregivers. He explained that Mary does not appreciate the impact of her drug abuse and its ramifications with respect to parenting capacity. He determined that Mary had not even started to make a serious attempt at recovery, but was still involved in the kind of behaviors that are consistent with persistent drug use.

The doctor stated that Mary's behaviors predict an extremely poor prognosis with respect to her cooperation and truthfulness with regard to her future relationship with Marta. He found that Mary did not have a well-articulated plan for Marta, other than to state that she and her current paramour would raise the child together. The doctor determined that Mary did not have the capacity to parent Marta in the foreseeable future, and before that capacity developed, she would have to display two or three years of sobriety and emotional stability, become involved in some type of employment, and have a stable relationship that is conflict free.

The doctor testified that the bonding evaluation showed that Marta was attached to her resource parents. He found that Marta had a positive emotional connection to Mary, but no psychological attachment, and removing Marta from her current caretakers would place her at risk of suffering a traumatic loss with long term consequences. Overall, the doctor determined that removing Marta from her current caregivers and giving custody to Mary would be an extremely adverse experience for Marta, and it would place her at risk for developing attachment problems, problems in the area of learning to regulate mood and emotion, and issues with trusting her caregivers.

The doctor concluded that because of the potential harm to Marta in being separated from her present caregivers, and because of Mary's inability to parent and being a continuous risk for relapse and drugs, the appropriate goal for Marta was adoption by her caregivers.

A Division caseworker, Kristy Adams, testified as to the Division's involvement with Mary and the services provided to her. She stated that Mary had complied with three different parenting skills classes and treatment at Spectrum, but she refused to attend in-patient treatment and was unwilling to give up her psychotropic medication. The Division provided Mary with parenting skills classes, psychological evaluations, bus cards, individual therapy, and bonding evaluations. Adams also noted that the Division arranged for regular visitation between Mary and Marta at the caregivers' home. Mary attended visitation sessions at the caregivers' home until they requested that the visits be rescheduled at the Division offices. The caretakers requested the change because it appeared that Mary would fall asleep during the visits, and they believed that Mary was under the influence during visitation.

Adams testified that she observed visits between Marta and Mary, and on a few occasions noted Mary's speech being slurred. She also observed visits between Marta and her resource parents. She found the home to be a very loving environment and Marta appeared to have a special bond with her resource parents. Adams explained that the Division did not feel that it was safe to return Marta to Mary's care because Mary continued to have positive drug screens for medications she was not prescribed and she refused to attend in-patient treatment.

Dr. Sostre testified on behalf of the Division. Dr. Sostre explained that she conducted a psychiatric evaluation of Mary and diagnosed Mary with polysubstance abuse, anxiety disorder, major depressive disorder, and personality disorder not otherwise specified and borderline and narcissistic traits.

The doctor stated that Mary had been prescribed Klonopin, Vistaril, Saphris and methadone. She further opined that Mary was unaware of the impact of her long history of substance abuse, and instead Mary believed that her substance abuse history would be positive for parenting. Dr. Sostre found that Mary was unable to develop the emotional and coping skills that would help her negotiate life's future challenges. She also stated that she had significant concerns about Mary's inability to manage her own prescribed medications, and that Mary was illegally obtaining and using Xanax.

Mary and her boyfriend testified on behalf of Mary. Her boyfriend testified that if Mary and Marta were reunited, he would act as Marta's father and provide her with "whatever she needs in her life." He informed the court that Mary was functioning better and was more alert than she had previously been. Mary admitted to using drugs regularly since she was eighteen and she admitted to using Xanax.

The trial judge issued an order and an oral opinion terminating Mary's parental rights. It is from that decision that Mary appeals.

II.

Our review of an order terminating parental rights is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). "We will not disturb the family court's decision . . . 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). "We ordinarily defer to the factual findings of the trial court because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a 'feel of the case' that can never be realized by a review of the cold record." Ibid. (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007)). Our deference to family court fact finding also stems from recognition of "the family courts' special jurisdiction and expertise in family matters." N.J. Div. of Youth and Family Services v. M.C. III, 201 N.J. 328, 343 (2010).

Accordingly, "[o]nly 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 N.J. Div. of Youth & Family Services v. G.L., 191 N.J. 596, 605 (2007)). "[W]here the focus of the dispute is

. . . alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom, the traditional scope of review is expanded." M.M., supra, 189 N.J. at 279 (alteration in original)(citations and internal quotation marks omitted). Yet, "even in those circumstances[,] we will accord deference unless the trial court's findings went so wide of the mark that a mistake must have been made." Ibid. (citations and internal quotation marks omitted).

"The focus of a termination-of-parental-rights hearing is the best interests of the child[,]" and the Division must "satisfy by clear and convincing evidence four factors, known as the best-interests-of-the-child test, set forth in N.J.S.A. 30:4C-15.1(a)." N.J. Div. of Youth and Family Services v. F.M., 211 N.J. 420, 447 (2012). Those statutory factors are:

(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); see also In re Guardianship of K.H.O., 161 N.J. 337, 347-48 (1999).]

The four prongs require a fact-sensitive analysis and "are neither discrete nor separate. They overlap to provide a composite picture of what may be necessary to advance the best interests of the children." M.M., supra, 189 N.J. at 280 (emphasis and internal quotation marks omitted)(quoting N.J. Div. of Youth and Family Services v. F.M., 375 N.J. Super. 235, 258 (2005)).

Here, the trial judge concluded that the Division established by clear and convincing evidence each of the four prongs. We address each prong, and defendant's corresponding contentions, in turn.

The judge determined prong one was established because Marta's safety, health or development has been or will continue to be endangered by the parental relationship. In support of her findings, the judge highlighted the following facts: (1) Mary's history of mental illness; (2) Mary's anxiety and depression; and (3) Mary's history of polysubstance abuse since she was eighteen.

In addition, the record contains compelling evidence of the harm Marta suffered during her six weeks of withdrawal from methadone. On her date of birth, Marta's drug screen was positive for methadone. She suffered withdrawal symptoms, including tremors and difficulty feeding, which caused her to be treated in the hospital for five weeks with morphine. In addition, Marta's caretakers reported to the Division, that Marta continued to experience tremors when she was first placed in their home.

Mary argues that the court erred since there is no evidence that she caused actual long-term harm to Marta. However, that is not the test. The Division was not obliged to show that Marta was actually harmed. Rather, a showing, by clear and convincing evidence, of potential for future harm is sufficient. N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 440 (App. Div. 2001). Moreover, a parent's inability to nurture or care for her child "is a harm . . . that is cognizable under the best interests standard." K.H.O., supra, 161 N.J. at 356. Likewise, "[a] parent's withdrawal of that solicitude, nurture, and care for an extended period of time is in itself a harm that endangers the health and development of the child." In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999).

The trial judge's fact findings and conclusions were amply supported by the record. The judge did not improperly rely upon Marta's withdrawal symptoms alone to reach her conclusions. Instead, the judge found Mary's conduct independently presented the risk of harm to Marta because Mary was unable to discontinue her drug use, and thereby provide Marta with a safe and secure home.

Likewise, we discern no error in the judge's determination that Marta's safety will likely be endangered by the parental relationship. The judge was presented with sufficient facts evidencing that Mary has been a polysubstance abuser since she was eighteen, yet failed to resolve this problem despite ample opportunities to do so.

On the basis of the foregoing, we conclude that substantial and credible evidence supported the trial judge's findings on prong one.

The second prong requires the Division to show that the parent is unable or unwilling to eliminate the harm facing the child, and a delay in the child's permanent placement will cause further harm. N.J.S.A. 30:4C-15.1(a)(2). The focus of this inquiry is to determine "whether the parent has cured and overcome the initial harm that endangered the health, safety, or welfare of the child, and is able to continue a parental relationship without recurrent harm to the child." K.H.O., supra, 161 N.J. at 348.

Alternatively, the State may show "that the parent is unable to provide a safe and stable home for the child and that the delay in securing permanency continues or adds to the child's harm." Id. at 348-49. "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), certif. denied, 205 N.J. 519, (2011).

The trial judge found clear and convincing evidence of Mary's inability to eliminate the harm facing Marta, as well as her inability or unwillingness to provide Marta with a safe and stable home. We agree.

Mary argues that the court ignored her efforts in attending different treatment programs, her decreased use of methadone, and the few positive drug screenings for Xanax on only four occasions in the two and a half years since Marta's birth. However, the evidence supports the judge's conclusion that Mary's inability to complete drug treatment programs, and her unwillingness to attend the recommended in-patient programs, makes Mary incapable of parenting Marta. The expert evaluations established that Marta had strong bonds with her caretaker parents, and that separation from them would cause her further harm. See M.M., supra, 189 N.J. at 283-85 (holding where there was no evidence that the father's situation was improving or would improve in the future, and where the father had failed to create a stable home, the delay in permanent placement would add to the harm). Therefore, the judge's finding that the second prong of the statutory test was satisfied is fully supported by the record.

Under the third prong of the best interests standard, the Division must demonstrate that it "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." N.J.S.A. 30:4C-15.1(a)(3).

Mary argues that the Division did not provide certain crucial services to her to support reunification. We disagree. The Division referred Mary to several treatment programs at Spectrum, parenting skills classes, and in-patient treatment at Mommy-and-Me. Although Mary attended three different parenting classes, she refused to attend in-patient treatment. Moreover, the Division caseworker testified that Mary has been evaluated on five different occasions by psychological and psychiatric experts and all five evaluations did not recommend reunification.

The trial judge noted that the Division arranged for visitation, offered parenting classes, provided a total of five psychological and psychiatric evaluations, and fostered her participation with treatment programs. Time after time, the Division afforded Mary the chance for permanent rehabilitation.

The judge also noted that the efforts made by the Division were originally guided towards having reunification as a goal for Mary and Marta, and that was the motivation for the continued efforts to get Mary the appropriate substance abuse treatment. Our review of the record reveals sufficient evidence supporting the judge's decision. The Division offered as evidence, and the trial judge cited, a litany of services that were offered to Mary. Accordingly, we conclude that the judge's determination under prong three is supported by the record.

We turn next to the final prong, which requires the Division to prove "[t]ermination of parental rights will not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4). The fourth prong often poses the most difficult and delicate balance of presented facts. K.H.O., supra, 161 N.J. at 355. Under this prong, the question 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." Ibid. "[W]here it is shown that the bond with the 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)." Id. at 363.

Moreover, under the fourth prong, the State 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 and foster parents. In re Guardianship of J.C., 129 N.J. 1, 19 (1992). However, where termination of parental rights is based on parental unfitness, the focus shifts from bonding to the child's need for permanency and the biological parent's inability to care for her in the foreseeable future. N.J. Div. of Youth & Family Servs. v. B.G.S., 291 N.J. Super. 582, 593 (App. Div. 1996).

Mary argues that the Division failed to show that termination of Marta's relationship with Mary would do more harm than good. Instead, Mary argues, the trial judge erred by considering only whether Marta had become bonded with her foster parents, rather than focusing on the bond Mary maintains with Marta.

Here, after balancing Marta relationship with defendant and her foster parents, and crediting the experts' testimony, the trial judge determined that termination of defendant's parental rights would not do more harm to Marta than good.

Children experience harm when parental contact is severed. F.M., supra, 375 N.J. Super.at 264. However, there is sufficient evidence that Marta is securely bonded to her caretakers, and severing the bond would cause Marta to "suffer trauma and long-term consequences." Dr. Sostre stated that it would take at least a year of sobriety for Mary to be in a position to parent Marta. Dr. Dyer opined that it would take two to three years of substance abuse and mental health treatment. Moreover, Marta has been in the uninterrupted care of her maternal aunt and uncle since leaving the hospital and they have provided her with a safe and stable home.

A delay in Marta's permanent placement with her maternal aunt and uncle, in favor of an uncertain hope that Mary could one day assume the care of her child is unwarranted.

We agree with the judge's decision since "in light of the goal of achieving a stable and permanent home for the child, there are 'limits on the amount of time a parent may have'" to meet the conditions of reunification. N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 442 (App. Div. 2009) (quoting K.H.O., supra, 161 N.J. at 358). We are satisfied that there is sufficient credible evidence in the record to support the judge's finding.

Based upon our review, we conclude that there is no basis to interfere with the judgment terminating Mary's parental rights and awarding guardianship of the child to the Division for purposes of her adoption by her maternal aunt and uncle.

Affirmed.

1 L. 2012, c. 16, eff. 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.

2 We have fictionalized the names of some of those involved to protect the identity of the child.