NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. W.J.

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NOT FOR PUBLICATION WITHOUT THE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.

W.J.,

Defendant-Appellant.

_________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF M.X.J., a minor.

_________________________________

October 22, 2014

Submitted September 15, 2014 Decided

Before Judges Lihotz and Espinosa.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FG-15-36-12.

Joseph E. Krakora, Public Defender, attorney for appellant (Marc D. Pereira, Designated Counsel, on the briefs).

John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Stephanie Anatale, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor M.X.J. (Tracye Wilson Elliot, Designated Counsel, on the brief).

PER CURIAM

Defendant W.J. (Wendy)1 appeals from the termination of her parental rights to her son, M.X.J. (Max), who was born in 2010. We affirm, substantially for the reasons provided by Judge Madelin F. Einbinder in her oral opinion, and need only recount salient facts in the case.

As a result of Wendy's troubling substance abuse history, her failure to comply with court-ordered substance abuse screens and her inability to stay abstinent, a reunification effort failed and Max has spent most of his life with his resource parents who want to adopt him. Kinship Legal Guardianship (KLG) of Wendy's two older children was granted to their maternal grandmother but was not an available alternative to adoption here because no relative was willing or able to care for Max. Wendy failed to maintain sobriety despite placement in four inpatient drug treatment programs and referrals to a number of other programs by the Division. She failed to attend four separate appointments for a psychiatric evaluation, continually failed to appear for tests and evaluations, and did not appear for any of the trial dates. Max's biological father, V.F., surrendered his parental rights to Max's resource parents.

The Division of Child Protection and Permanency (the Division)2 is authorized to petition for the termination of parental rights in the "best interests of the child" if the following standards are met 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).

See also N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 168 (2010).

In her appeal, Wendy argues that the Division failed to satisfy each of these prongs. Specifically, she argues: the Division's proofs did not show she harmed Max as required by the first prong; the judge ignored she had made "great strides in ameliorating her health" to preclude proof of the second prong; that the Division failed to establish that it made reasonable efforts to provide meaningful services to her; and that the Division's evidence of the fourth prong was insufficient because it relied entirely upon speculative testimony by its expert.

After carefully reviewing the record in light of the applicable legal principles, we conclude that none of defendant's arguments have merit. The trial judge carefully considered each of the statutory prongs and cited adequate, substantial evidence in the record to support her conclusion that each of the prongs had been proven by clear and convincing evidence. "[W]hen there is substantial credible evidence in the record to support the court's findings[,]" we will not disturb the family court's decision to terminate parental rights. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008).

I

Harm, as addressed by the first prong of the statutory test, "involves the endangerment of the child's health and development resulting from the parental relationship." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). "To satisfy this prong, [the Division] does not have to wait 'until a child is actually irreparably impaired by parental inattention or neglect.'" N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 449 (2012) (quoting In re Guardianship D.M.H., 161 N.J. 365, 383 (1999)). "The harm shown . . . must be one that threatens the child's health and will likely have continuing deleterious effects on the child." K.H.O., supra, 161 N.J. at 352.

As to this prong, Judge Einbinder noted that Wendy's substance abuse history dates back to 2006 and continued thereafter, including an arrest in April 2013, just two months before the guardianship trial.

Wendy tested positive for PCP and cocaine while she was pregnant with Max. She was an in-patient at the Straight and Narrow treatment program when Max was born.3 She was later discharged despite making only minimal progress and admitted to Project Home, a twelve-month transitional housing and treatment program. Wendy was discharged from that program just less than months later due to her lack of commitment to her recovery and, indeed, left the program on one occasion against instructions, only to return drunk.

The Division obtained protective custody of Max in March 2011 and, shortly thereafter, Wendy was accepted at Renaissance House. Approximately five months later, Max was reunited with Wendy.

The reunification proved to be unsuccessful because Wendy continued to be in denial about her substance abuse and tested positive for alcohol in November and December 2011. In a visit to Wendy's apartment in January 2012, the Division caseworker, Yolene Plaisir, found empty twenty-eight ounce beer cans in Wendy's garbage can. Plaisir was instructed to implement a safety protection plan in which Wendy would be supervised at all times when she was with Max. But Wendy could not identify a supervisor and stated, "You want to fucking remove my son, just fucking take him." Wendy refused to pack any clothing or diapers for Max, stating, if the Division "wants to take him you fucking provide for him."

After Max was removed from her custody in January 2012, Wendy claimed to continue attending intensive outpatient substance abuse treatment and meeting with her therapist. Thereafter, however, she declined the Division's offer of a Family Team meeting to discuss the case in February 2012, and refused to provide a random urine sample in July 2012.

Karen Wells, Psy.D., performed a psychological evaluation of Wendy in August 2012. Wendy admitted she drank alone in her home and sometimes blacked out. Dr. Wells was concerned that Wendy had not demonstrated a sustained period of abstinence after engaging in treatment programs and services, and concluded that Wendy's potential for relapse was high with a potential risk of harm or exposure to risk of harm for Max. In light of her history of relapses in several treatment programs, Dr. Wells testified "the fact that [Wendy] had blackouts during periods of time posed a risk of harm in terms of safety elements to any child that would be placed in her care."

According to Division records received in evidence, on April 29, 2013, a caseworker observed Wendy at the Lakewood Police Department, yelling, screaming at a police officer and refusing to follow his directions. Wendy "appeared to be very intoxicated," and the police officer stated, "she was beyond drunk." She was arrested for assaulting a police officer, and subsequently sent to the hospital. Jennifer McGuckin, a Division Family Service Specialist assigned to this family, was alerted to this occurrence and contacted Wendy the next day. Although Wendy initially denied the arrest, she subsequently told McGuckin that she had done so because she was upset with herself for relapsing, and admitted that she got really drunk to the point that she blacked out.

Judge Einbinder found there was clear and convincing evidence that if Max was reunified with Wendy, "his safety, health or development would continue to be endangered by [Wendy's] inability to remain abstinent from substances even in structured settings." Her finding that the first prong was proven by clear and convincing evidence is adequately supported by the record.

II

Under the second statutory prong "[n]o more and no less is required of [the parents] than that they will not place their children in substantial jeopardy to physical or mental health." N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 607 (1986). In other words, "[t]he Division must demonstrate that the parent is 'unable to eliminate the harm facing the child or is unable . . . to provide a safe and stable home for the child,' . . . before any delay in permanent placement becomes a harm in and of itself." N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 434 (App. Div. 2001) (quoting N.J.S.A. 30:4C-15.1(a)(2)), certif. denied, 171 N.J. 44 (2002).

With respect to the second prong regarding the parent's unwillingness or inability to eliminate the harm or to provide a safe and stable home, Judge Einbinder stated

It is clear from the testimony that [Wendy] has not been able to provide a safe and/or stable home for [Max]. As of today, he has spent approximately two-thirds of his young life in placement. He has also been briefly reunited with his mother only to be removed again when [Wendy] refused to work with the Division, handed [Max] to the worker and refused to provide his clothing or diapers for her.

Addressing the second component of this prong that the harm may include evidence that separating the child from his resource parents would cause serious and enduring emotional or psychological harm, the court concluded

Any further delay of permanent placement will certainly add to the harm. [Wendy] has also not shown any ability to follow through with services needed despite showing periods of compliance.

The record amply supports these conclusions.

As of September 2012, Wendy stopped visiting Max even though she had been provided bus passes. In 2013, Wendy failed to appear for her substance abuse evaluation and advised the Division that she had not attended any Narcotics Anonymous or Alcoholics Anonymous meetings or individual counseling sessions since at least as early as October 2012. And then, just two months before the guardianship trial, she was arrested after being highly intoxicated and fighting with a police officer.

An expert in clinical and forensic psychology, Dr. Wells testified about her psychological evaluation of Max's birth father, the psychological and bonding evaluation of Wendy, and the bonding evaluation of the resource parents conducted on August 1, 2012. Dr. Wells noted that there was "an intact and secure child-parent bond" between Max and his resource parents, whom Max considered "his psychological parents, specifically those persons who provide for his day-to-day care, meet his emotional and psychological needs, and provide him with security, safety, and stability." Similarly, Dr. William Coffee, an expert in clinical psychology who performed a bonding evaluation between the resource parents and Max, testified that the bond between them was "akin to a bond as if they were the natural parents."

Dr. Wells further testified about her "grave" concerns about removing Max from the resource parents "in terms of his emotional functioning, his psychological functioning, behavioral aspects, specifically as it related to either extroverted behaviors, acting out, or internal behaviors[.]"

The evidence amply supports the conclusion that the Division demonstrated Wendy is unable to eliminate the harm to Max caused by her substance abuse before further delay in a permanent placement harms Max. We therefore agree with the trial judge that the second statutory prong was satisfied.

III

The third prong of the "best interests" standard contemplates the Division's efforts to reunify the parent and the child by assisting the parent in addressing the problems that led to placement. K.H.O., supra, 161 N.J. at 354. Such efforts include

(1) consultation and cooperation with the parent in developing a plan for appropriate services;

(2) providing services that have been agreed upon, to the family, in order to further the goal of family reunification;

(3) informing the parent at appropriate intervals of the child's progress, development and health; and

(4) facilitating appropriate visitation.

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

As we have noted, the Division attempted a reunification between Wendy and Max, which failed. However, the Division's efforts should be measured not by their success but against the standards of adequacy in light of the family's needs in a particular case. D.M.H., supra, 161 N.J. at 390-91 "[F]actors that suggest that efforts to reunite the family 'are no longer reasonable' include 'parents [who] refuse to engage in therapy or other services.'" A.W., supra, 103 N.J. at 610. That was the case here.

In analyzing prong three, Judge Einbinder found it was clear from the testimony of the Division caseworkers that "the Division has made more than reasonable efforts to provide services to help [Wendy] correct her circumstances." The judge also stated that the court had considered alternatives to terminating Wendy's parental rights, but found none. Instead, the court embraced the Division's plan to allow the resource parents, who "indicated they will continue to facilitate Max's visits with his siblings[,]" to adopt Max. These conclusions were amply supported by the evidence.

IV

The fourth prong, which addresses whether "[t]ermination of parental rights will not do more harm than good," N.J.S.A. 30:4C-15.1(a)(4), focuses on whether the child will suffer a greater harm from the termination of ties with the natural parent than from the permanent disruption of the relationship with the resource parents. K.H.O., supra, 161 N.J. at 354-55. An important consideration under this prong is "[the] child's need for permanency." F.M., supra, 211 N.J. at 453 (citations and quotation marks omitted). In determining "whether the comparative harm is proscribed by the fourth prong in a case involving a child in foster care," the court must consider "the child's relationship both with [the] biological parents and [the] foster parents." I.S., supra, 202 N.J. at 181 (internal citations and quotation marks omitted). "'[T]o satisfy the fourth prong, the State should offer testimony of a well qualified expert who has had full opportunity to make a comprehensive, objective, and informed evaluation of the child's relationship with both the natural parents and the foster parents.'" F.M., supra, 211 N.J. at 453 (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 281 (2007)).

Dr. Wells, who conducted bonding evaluations between Max and Wendy, and Max and his resource parents, presented testimony on this issue. Dr. Wells testified that Wendy responded to Max "in a loving, patient and caring manner and assumed a parental role with him" and concluded "there was an established bond." However, "observations of [Max] with his resource parents indicated that he does not experience any difficulty when separating from" Wendy. Dr. Wells opined, if Wendy's parental rights were terminated, "with all contacts severed, [Max] would not experience enduring and irreparable psychological and emotional harm" in light of his young age.

In contrast, Dr. Wells formed the opinion, based upon her observations and analysis, that to sever Max's bonds with his resource parents would cause him enduring harm, specifically

he would begin to sense confusion, bewilderment, a sense of being lost, concerns about the routine and structure begin, again, shifted or modified for him, unfamiliarity with the environment with persons who would then become in the environment, a lack of verbal capacity to articulate his experience of being separated, grief, not understanding why the persons who you see as parental figures are no longer available for you.

Dr. Coffee also found that the bond between the foster parents and Max is similar to a bond with the natural parents and severing Max's bond with his foster parents poses a risk of "a malformation in the child's development." This testimony was unrebutted by any expert testimony presented on behalf of Wendy.

Judge Einbinder stated the following as to the fourth prong

According to both Dr. Wells and Dr. Coffee's uncontroverted, unopposed testimony, based on the evaluations that they conducted, there's a difference in the quality of the bond between [Max] and his resource parents, and [Max] and his biological mother. Although Dr. Wells found an established bond between [Wendy] and [Max], she noted that [Max] had no difficulty separating from [Wendy] and opined that he would not experience enduring and irreparable psychological and emotional harm if [Wendy's] rights were terminated based upon his age, as well as the fact that [Wendy] was not providing primary care for him.

[C]onversely, Dr. Wells opined that [Max] would suffer harm if he was to be separated from the foster parents.

Observations of the interactions between [Max] and the foster parents indicated there is an intact and secure child/parent bond, one in which [Max] looks to the foster parents as his psychological parents, specifically, those persons who provide for his day-to-day care, meet his emotional and psychological needs and provide him with security, safety and stability.

The court also addressed the need for permanency in Max's life. Max, now four years old, was removed from his mother's custody on March 7, 2011, and returned to her on August 5, 2011. He was again removed on January 31, 2012. The court noted that Dr. Coffee testified that Max had a secure bond with his resource parents that was "complete" and that Dr. Wells "found to uproot [Max] again would cause emotional and psychological distress to him." These findings, too, were supported by the record.

In sum, the trial court's findings on each of the four statutory prongs are supported by "adequate, substantial, and credible evidence in the record," are entitled to our deference, and will not be disturbed. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007); see also Cesare v. Cesare, 154 N.J. 394, 413 (1998).

Affirmed.

1 Fictitious names are used to protect the child's privacy.

2 On June 29, 2012, the Department of Children and Families was reorganized and the Division of Youth and Family Services was renamed as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012 (amending N.J.S.A. 9:3A-10b).

3 Although we need not recount the details of the Division's history with Wendy prior to Max's birth, we note that the Division received a number of referrals, dating back to 2006, which included an allegation of medical neglect of one of her older children; several referrals regarding unstable housing, inadequate food, substance abuse and domestic violence; and an allegation of neglect that was substantiated against her for drinking alcohol while in a caretaking role. A psychological evaluation conducted in 2009 resulted in a possible diagnosis of obsessive compulsive personality disorder with narcissistic personality features and histrionic personality features, alcohol abuse, and depressive disorder NOS.