NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. R.S.

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NOT FOR PUBLICATION WITHOUT THE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,

Plaintiff-Respondent,

v.

R.S.,

Defendant-Appellant.

_________________________________

IN THE MATTER OF THE GUARDIANSHIP OF A.S., a minor.

_________________________________

March 25, 2014

Argued February 24, 2014 Decided

Before Judges Parrillo, Harris and Guadagno.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FG-14-33-13.

Larry Leung, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Leung, on the brief).

Michelle J. McBrian, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Mark E. Critchley, Deputy Attorney General, on the brief).

Elahna Storm Weinflash, Assistant Deputy Public Defender, argued the cause for minor A.S. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Storm Weinflash, on the brief).

PER CURIAM

Defendant R.S., the biological mother of A.S.,1 appeals the Family Part's order terminating her parental rights pursuant to N.J.S.A. 30:4C-15.1(a). We affirm.

A.S. was born on July 11, 2008 to R.S. and A.C., the biological father who voluntarily surrendered his parental rights on September 20, 2012. When A.S. was born, her meconium tested positive for cocaine and opiates and R.S. tested positive for benzodiazepine. After receiving a referral thereafter, the Division of Child Protection and Permanency (Division) executed the emergency removal of A.S. from R.S.'s custody.

Throughout A.S.'s life, the Division maintained care over her due to R.S.'s persistent substance abuse and inability to maintain stable housing. From July 2008 through March 2013, R.S. was admitted into numerous substance abuse treatment facilities where she experienced limited periods of sobriety followed by relapses, which eventually resulted in her discharge from the programs. Despite being admitted to several different inpatient facilities, R.S. failed to complete any program she entered because of her inconsistent attendance and failed drug tests.

For instance, on August 5, 2008, the court ordered A.S. remain in the legal custody of the Division, but returned physical custody to R.S. and permitted A.S. to live with R.S. at the Renaissance House. While caring for A.S. at the Renaissance House, R.S. tested positive for opiates on October 8, 2008 and May 29, 2009. Renaissance House reported that R.S., nearly a year into her treatment, "has shown minimal behavioral improvements" and "continues to be in denial about her substance abuse issues and minimizes any intervention." Further, R.S. appeared to be "decompensating," "has stopped taking care of herself [and her daughter.]" Renaissance House also tried to place R.S. and A.S. in alternative "Mommy and Me" programs, but she was denied admission to these facilities.

Ultimately, R.S. requested to move with A.S. to Project Sustain at Trinitas Hospital, another resource home, and although she initially complied with the treatment guidelines, she again relapsed and tested positive for opiates on March 26, 2010. On April 2, 2010, Project Sustain reported that, in addition to this positive drug test, R.S. has "demonstrated poor impulse control, poor judgment, and poor insight[,]" and "appears psychiatrically unstable at this time."

On June 9, 2011, the Division resumed its engagement with R.S. when it received a referral from the Jersey Battered Women's Service (JBWS) shelter that reported R.S. stayed outside the shelter for several days without authorization. She was eventually placed in the Homeless Solutions Shelter on June 27, 2011, but less than a week later, on July 2, 2011, R.S. again relapsed and tested positive for opiates and cocaine. On July 5, 2011, R.S. tested positive for alcohol after returning to the shelter with A.S. from a weekend pass, and again on July 6, 2011.

As a result of these positive tests, on July 6, 2011, the Division executed the emergency removal of A.S. from R.S's care and placed her in a resource home with P.K., where A.S. remained until July 2013. In the meantime, after several failed attempts at achieving sobriety in New Jersey, R.S. decided to admit herself into the Salvation Army Rehabilitation Center in Syracuse, New York. While in this facility, R.S. initially maintained phone contact and made some visits with A.S. During one such visit in New Jersey on November 4, 2011, R.S. arrived at a scheduled court hearing and tested positive for alcohol and cocaine. After the Division notified the Salvation Army Rehabilitation Center of the positive tests, the facility discharged her. From November 2011 to February 2012, the Division did not have contact with R.S. and did not know her whereabouts.

R.S. also failed to maintain contact with the Division from July 2012 to August 2012, and February 2013 to June 2013. Further, even when R.S. was in contact with the Division, she was sporadic in updating the Division of her whereabouts, even though she was directed to do so.

Also, R.S.'s visits with A.S. were inconsistent. From August 2011 through April 2012, R.S. had only four visits with A.S. In May 2012, R.S. attended only two out of nine scheduled visits, one of which she tested positive for alcohol earlier in the day. Although R.S. had visits in June 2012, she failed to make any scheduled visits from July 2012 through August 2012 despite the Division's attempts to contact her. On September 20, 2012, after a hearing, the court suspended R.S.'s visitation rights until she completed psychological and substance abuse evaluations. R.S. last visited A.S. in June 2012.

As noted, since July 2011, A.S. remained in foster care with P.K. for about two years, until P.K. advised the Division that she was not interested in adopting A.S. The Division then attempted to place her with S.M., her half-brother J.S.'s adoptive mother. After some successful visits, A.S. was placed in S.M.'s home on July 20, 2012. However, four days later, S.M. contacted the Division and wanted A.S. removed from her care. Although the Division offered S.M. assistance in caring for A.S., S.M. refused. Shortly thereafter, S.M. contacted the Division and asked for another opportunity to care for A.S. Even though the Division attempted to re-engage S.M. and A.S., these efforts proved unsuccessful as A.S. did not want to visit with S.M. and refused to leave the car for one such visit. Ultimately, the court ruled S.M. out as a placement option.

On July 8, 2013, sixteen days before commencement of the guardianship trial, the Division placed A.S. in a pre-adoptive resource home where she has resided ever since. A.S. had known the resource mother for at least a year from the community prior to being placed in her care. The family described A.S.'s transition to their home as "wonderful" and they have "had no issues with her whatsoever." A.S. was no longer acting out, wetting the bed or showing signs of regression, as she had in the past. As of the trial date, July 24, 2013, the Division caseworker reported that A.S. was doing "fantastic" in this placement and has "blended right into the family perfectly." She further explained that this family is licensed by the Division and has expressed interest in adopting A.S.

At the guardianship trial, Dr. Mark Singer, a licensed psychologist, who evaluated R.S. on February 8, 2013, testified as to his findings. He explained that R.S. is

a young lady who . . . certainly not an able person plotting harm to her child, but a young lady that has significant history creating [in]stability in her life, has significant history of noncompliance with services, and has a significant history of ongoing substance abuse issues despite having participated in treatment in the past.

Dr. Singer also determined that R.S.'s visitation with A.S. was "inconsistent" and her last visit with A.S. was in June 2012. As to R.S.'s substance abuse issues, Dr. Singer concluded that her "prognosis for recovery was poor based upon her history,

. . . multiple treatment attempts, . . . [and her] continued use of substances despite ongoing involvement with the [D]ivision." He also found that R.S. demonstrated poor decision-making by severing contact with the Division, which negatively impacted her relationship with A.S.

Based on his interview of R.S., Dr. Singer found that she minimizes events in her life and demonstrates "a history of engaging in unstable and violent relationships[,]" which would expose A.S. to a risk of physical and emotional harm. Moreover, her inability to comply with the Division's recommendations that would ideally lead to reunification with A.S. "supports the hypothesis that [R.S.] simply can't muster the emotional resources needed to put [A.S.'s] need for a healthy consistent parental figure in the forefront."

Although Dr. Singer also found R.S.'s inability to provide housing an issue, he determined that

[t]he most significant issue is [R.S.'s] historical tendency to remain unstable, housing being one example, but more significantly is the substance abuse history. Because even if she had stable housing the ongoing substance abuse issue psychologically trumps the housing issue in terms of being able to care for a young child.

Even though Dr. Singer explained that R.S. was sincere when she stated that there is nothing she wouldn't do for A.S., he opined that "[u]nfortunately what she's capable of doing is not enough to render her a viable parenting option for [A.S.] in the foreseeable future."

Dr. Singer also completed a psychological evaluation of then four-year-old A.S. During the April 2, 2013 interview, A.S. informed that her "real" mother was P.K., and indeed the results of Dr. Singer's assessment revealed that A.S. was "a happy child . . . and that she ha[d] a significant attachment to her then foster mom."

After completing his evaluations, Dr. Singer recommended that the visits between R.S. and A.S. should not recommence at that point in time. Dr. Singer opined that A.S. required consistency and that R.S. would introduce inconsistency back into her life, causing her to regress emotionally and behaviorally. As previously noted, on September 20, 2012, the Family Part judge suspended R.S.'s visits with A.S.

When Dr. Singer was asked about the consequences of terminating R.S.'s parental rights to A.S., considering R.S. has not seen A.S. in over a year, he explained:

And at this point I don't anticipate any additional significant and enduring harm to severing the relationship between a now five year old child and an individual who again she does acknowledge having known in terms of mommy on the train, but not having seen in over a year.

Now a year to us as we sit here at our current age may not seem like a lot, but a year to a five year old is 20 percent of the child's life. And not having a relationship with someone for 20 percent of a child's life at the age of this child at this point, severing that relationship would not likely cause additional significant or enduring harm.

When asked about the benefits of adoption, Dr. Singer found that it would afford "the permanency and consistency that children in general and [A.S.] specifically needs to thrive." He reasoned "that children in permanent consistent home environments, i.e., through adoption, tend to have better academic performance . . . [and] higher levels of self[-]esteem."

Dr. Singer concluded:

The psychological data is so compelling that even if there were a relationship that has evolved between [R.S.] and [A.S.] the data would support termination of parental rights in order to afford [A.S.] with the opportunity to achieve permanency and consistency through adoption. Because the psychological data suggests that [R.S.] unfortunately is not likely to be able to provide that type of environment for her daughter.

R.S. did not testify nor did she present any expert or

testimonial evidence on her behalf.

On August 9, 2013, in a written opinion, the trial court found the Division satisfied the four prongs of the "best interests" test and therefore terminated R.S.'s parental rights to A.S. As to prong one, the court determined:

[T]he risk of harm in this parental relationship can be found because R.S.'s lifelong substance abuse prevents her from creating an environment within which she can adequately care for A.S. R.S.'s voluntary removal of herself from A.S.'s life -- failing to visit her to make the transition to foster care less turbulent, failing to call her, even failing to maintain contact with the Division so that she could be updated as to A.S., demonstrates real harm to A.S.

The record is replete with examples of R.S.'s multiple attempts, and failures, to achieve sobriety. The harm she presents by making poor decisions that were in neither her best interest nor those of A.S. are evident throughout the record.

In finding the Division satisfied the second prong, the court reasoned:

R.S. has not demonstrated an ability to ameliorate the harm that resulted in A.S.'s placement in foster care. While she occasionally makes some progress within the extreme confines of an inpatient substance abuse program, her substance abuse issues have not been adequately managed to demonstrate that she is capable of living independently or of insuring the safety of A.S. Her history of poor choices demonstrates that she is unable to do what is in A.S.'s best interest.

With respect to the third prong, the court found that

the Division provided various services to R.S. and worked with her to retain custody of A.S. despite a history of transient housing and drug abuse. It is evident from the record and the testimony that the Division's efforts were reasonable. The Division provided forensic and psychological evaluations, psychiatric evaluations, referrals to counseling, individual and group therapy, parenting skills training, Enhanced Supervised Visitation and coordination with housing services. Despite these, R.S. has been unable to benefit from these services to any significant degree, mostly because she refused to avail herself of the services being offered for any meaningful period of time.

Moreover, alternatives to parental termination were also considered. The Division investigated several paternal and maternal relatives as placement options for A.S., but they were all ultimately ruled out based on their inability or unwillingness to care for A.S. In addition, the Division attempted to place A.S. with S.M., the adoptive mother of A.S.'s half-brother J.S., but this ultimately proved unsuccessful.

Lastly, the court determined the Division satisfied the fourth prong of the "best interests" test:

R.S. is not capable, at this point or in the foreseeable future, of mitigating the harms that led to the removal or mitigating the harm that would come to A.S. if she were returned to R.S. Dr. Singer found no bond between R.S. and A.S. However, he opined that any bond that previously existed had already been severed in the past when visitation ended over a year ago. Any harm A.S. would have suffered as a result of termination had already occurred and returning her to R.S.'s care, where the likelihood or recurrence of removal is so great, would only create a new harm to A.S.

R.S. did not present any expert evidence. There was no evidence presented that any parental bond had been formed between R.S. and A.S. such that any harm would occur to A.S. from the termination of R.S.'s parental rights.

Based upon the totality of the circumstances in the case, the [c]ourt finds that the Division has established, by clear and convincing evidence, that termination of R.S.'s parental rights will not do more harm than good for A.S.

On appeal, R.S. raises the following issues:

I. THE TRIAL COURT'S DECISION TO TERMINATE R.S.'S PARENTAL RIGHTS WAS NOT BASED UPON SUFFICIENT CREDIBLE EVIDENCE BECAUSE DCPP FAILED TO PROVE THE FOUR PRONGS OF THE BEST INTERESTS TEST BY CLEAR AND CONVINCING EVIDENCE.

A. THE TRIAL COURT ERRED IN FINDING THAT THE DIVISION PROVED PRONG ONE BY CLEAR AND CONVINCING EVIDENCE BECAUSE THE MOTHER MAINTAINED CONTACT WITH HER DAUGHTER DESPITE RELOCATING TO SYRACUSE, N.Y. FOR TREATMENT.

B. THE TRIAL COURT ERRED IN FINDING THAT THE DIVISION MET THE SECOND PRONG BY CLEAR AND CONVINCING EVIDENCE BECAUSE THE TRIAL COURT'S RELIANCE ON NEW JERSEY DIV. OF YOUTH & FAMILY SERVS. v. H.R. WAS MISPLACED AND THE MOTHER NEVER GAVE UP ON REGAINING CUSTODY AND MADE TREMENDOUS PROGRESS TOWARDS SOBRIETY.

C. THE DIVISION FAILED TO PROFFER REASONABLE EFFORTS TO THE FAMILY BECAUSE THE MOTHER WAS FORCED TO SEEK APPROPRIATE SERVICES IN SYRACUSE, N.Y. AND THE DIVISION IMPROPERLY RULED OUT S.M.

D. THE TRIAL COURT ERRED BY FINDING THAT THE DIVISION SATISFIED THE FOURTH PRONG BECAUSE THE DIVISION FAILED TO SET FORTH ANY EXPERT BONDING EVALUATIONS, THE MOTHER AND DAUGHTER WERE SUFFICIENTLY BONDED AND THE TRIAL COURT RELIED UPON DR. SINGER'S FLAWED OPINION, WHICH: A) FAILED TO ACCOUNT FOR THE POSITIVE MOTHER-DAUGHTER VISITATION REPORTS; B) WAS FUNDAMENTALLY FLAWED; AND C) WAS BASED ON LIMITED DATA.

Although parental rights are fundamentally important, they are not absolute. In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). Ultimately, "[t]he 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. This standard provides for termination of parental rights if the following four prongs are satisfied by clear and convincing evidence:

(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 criteria enumerated in the best interests standard 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.

Here, there is substantial credible evidence that (1) A.S.'s health and development has been and will continue to be at risk by continuing her parental relationship with R.S.; (2) R.S. is unable to ameliorate the harm suffered by A.S. from her extended placement in foster care; (3) the Division made reasonable efforts to provide R.S. with services to facilitate reunification with A.S. and considered alternatives to termination, none of which were viable; and finally (4) termination of parental rights will not do more harm than good. We find R.S.'s contentions to the contrary to be without merit, Rule 2:11-3(e)(1)(E), and therefore affirm substantially for the reasons stated by Judge Berdote Byrne in her comprehensive written opinion of August 9, 2013. We add only the following brief comment.

Although R.S. takes issue with the lack of any expert bonding evaluations comparing A.S.'s relationship to R.S. on the one hand and her adoptive mother on the other, under the unique circumstances of this case, none was necessary or required. A.S.'s placement with her current pre-adoptive family occurred less than three weeks prior to commencement of the guardianship trial and therefore did not afford sufficient enough time to perform a meaningful bonding evaluation. Nevertheless, there was substantial evidence in the record that A.S. was doing "fantastic" and making great progress both behaviorally and emotionally and that this placement had already provided A.S. with the needed stability to continue this progress. In contrast, even assuming the existence of a bond between R.S. and A.S., the expert reasonably found that given the prolonged lack of any contact between the two, R.S.'s inability to parent, and her poor prognosis for improvement, termination of R.S.'s parental rights would not do more harm than good and that any harm to A.S. from severing the bond had already occurred.

Affirmed.

1 R.S. has two other children. R.S.'s first daughter was placed with her cousin and ultimately an Order for Kinship Legal Guardianship was entered with respect to her. Thereafter, R.S.'s parental rights to her son J.S. were terminated after a guardianship trial. J.S. was later adopted by S.M.