DIVISION OF CHILD PROTECTION AND PERMANENCY v. C.M.S.-G.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

A-1226-14T2

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

C.M.S.-G. and J.M.M.,

Defendants-Appellants.

_______________________________

IN THE MATTER OF THE

GUARDIANSHIP OF J.A.M, a Minor.

_______________________________

October 29, 2015

Argued September 29, 2015 Decided

Before Judges Reisner and Whipple.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FG-12-64-14.

Jill Horowitz, Designated Counsel, argued the cause for appellant C.M.S.-G. (Joseph E. Krakora, Public Defender, attorney; Ms. Horowitz, on the briefs).

Elizabeth Burke, Designated Counsel, argued the cause for appellant J.M.M. (Joseph E. Krakora, Public Defender, attorney; Ms. Burke, on the briefs).

Joel Clymer, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Mr. Clymer, on the brief).

Linda Vele Alexander, Designated Counsel, argued the cause for minor (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Alexander, on the brief).

PER CURIAM

In these consolidated appeals, defendants, C.M.S.-G. (C.S.) and J.M.M. (J.M.) appeal the judgement of guardianship entered by the Family Part on October 20, 2014, terminating their parental rights to their child, J.A.M. (Jason). 1 We affirm.

I.

We discern the following facts from the record. On February 14, 2012, C.S. was pulled over for speeding while Jason was in the car. The police arrested her because she had an outstanding warrant, and in the search incident to arrest police found multiple decks of heroin, as well as a syringe, on her person. She was charged with possession of heroin, N.J.S.A. 2C:35-10(a), possession of a syringe for an unauthorized purpose, N.J.S.A. 2C:36-6, and was issued summonses for speeding, N.J.S.A. 39:4-98, and drug possession by a motor vehicle operator, N.J.S.A. 39:4-49.1. Because C.S. did not appear to be under the influence during the time of the arrest, the officer allowed C.S. to drop Jason off at daycare before placing C.S. under arrest.

The arresting officer called the Division of Youth and Family Services ("the Division").2 Jason was removed from the home after C.S. disclosed to the Division that she had been using heroin intravenously for six months, and that she used twelve to thirteen bags a night. She reported that she had last used the night before the arrest. C.S. denied using heroin in front of her son. She also disclosed that Jason's father, J.M., used to take heroin, and although he no longer did, he was addicted to oxycodone. C.S. claimed that the heroin was provided to her by J.M., who obtained it from a friend. When the Division interviewed J.M., he said that C.S. was previously addicted to painkillers after doctors prescribed them to her for pain resulting from a car accident that occurred in the winter of 2011. J.M. also stated that C.S. was later able to detoxify and stop taking painkillers. J.M. then stated that C.S. began to use heroin before Christmas of the previous year, and used it intravenously throughout the day, but insisted that C.S. did not use heroin near Jason.

J.M. acknowledged that he struggled with heroin addiction from ages seventeen to twenty-four, during which he was incarcerated for a year and was on probation from ages eighteen to twenty-six. According to the caseworker's notes, J.M. told her that he attended drug treatment programs when he was released from custody and that he had been sober since he was twenty-four years old (about eight years). However, he relapsed into heroin use about a month prior and used about eight bags of heroin a day. He denied using in front of his children3 and denied that he supplied C.S. with heroin, but admitted that his friends get heroin for him and for C.S. During the initial interview, J.M. also acknowledged one argument between himself and C.S. which had become "physical" but denied domestic violence.

The Division was granted temporary custody of Jason on February 16, 2012, at which time he was placed with his maternal grandmother. Jason then resided with his maternal grandmother for about five months until July 2012, but was taken out of his maternal grandmother's care at her request. Jason was placed in foster care, where he remains.

The Division filed a complaint for guardianship on October 8, 2013. The trial was held on October 2 and 3, 2014. Caseworker Nicole Galliano testified that the Division referred C.S. and J.M. to couples counseling, substance abuse treatment, housing services, and other services. According to Galliano, after missing her first few appointments, C.S. went to her substance abuse appointment, where she tested positive for opiates and was referred to an inpatient treatment program. C.S. did not attend the treatment program. After testing positive for opiates again in June 2012, C.S. went to an inpatient treatment program in July 2012, but did not complete the program. She was subsequently readmitted in December 2012, and completed the program in January 2013. However, she did not continue with the recommended outpatient treatment program, missed scheduled appointments, and when she did attend, tested positive for opiates. By March 2013, she was court ordered to again attend an inpatient treatment program, which she did not do.

Galliano also testified that J.M. missed eight appointments for substance abuse treatment before he eventually attended in December 2012. The Division then referred him to an outpatient treatment program, which he attended for approximately two months before being discharged for non-compliance. Thereafter, he was twice ordered, in April 2013 and June 2013, to complete substance abuse treatment, but never completed the mandated treatment. According to Galliano, both parents would either show up late or completely miss visits with Jason. She stated that they were also unresponsive to her efforts to plan family team meetings, other than one initial meeting.

Caseworker Denise Sterrs, who had taken over the case in August 2013, testified that in June 2014, C.S. completed a detoxification program. However, C.S. signed herself out of treatment before she could be placed into an inpatient program. Sterrs testified that C.S. has not reengaged in a treatment program and has not completed substance abuse treatment since June 2014. According to Sterrs, J.M. had reported attending his outpatient treatment program, but in fact only went for an intake appointment. Sterrs testified that J.M. completed an inpatient treatment program in June 2014, but did not complete his recommended intensive outpatient treatment thereafter, and therefore did not complete his substance abuse treatment.

Both Galliano and Sterrs testified about their concerns for familial stability because C.S. was unemployed and J.M. worked inconsistently, and they were both homeless, living with family and friends.4

Caseworker Galliano testified that the paternal grandfather, J.M. Sr., was evaluated for placement, but could not be a caretaker for Jason because his house was destroyed in Superstorm Sandy. Sterrs testified that J.M. Sr. indicated to her that he was willing to be a resource for the first time a few days before trial, but prior to that had stated that he could not care for Jason because of the state of his home after the storm. She testified that the paternal grandmother's (A.M.'s) home was assessed, and although initially the home was fine, A.M.'s other son's girlfriend overdosed in the house, and therefore A.M. was ruled out as a caretaker for Jason.5 A.M.'s house was also ruled out because it appeared that J.M. and C.S. were still residing there.

Sterrs stated that she also contacted a paternal aunt, K.L., who represented that she did not want the Division involved in her home and as a result was not willing to be a caretaker for Jason; therefore, she was never formally assessed. Another family member, C.M., was ruled out because her house was overcrowded. Sterrs testified that no other family members were listed as potential caretakers, and that C.S. and J.M. had only asked her to assess A.M.

Dr. Barry Katz performed psychological evaluations on both C.S. and J.M., and conducted bonding evaluations between Jason and his biological parents, as well as between Jason and his foster parents. In his psychological evaluation of C.S., she told Dr. Katz that she had been using heroin since 2010, that her habit cost $400 to $500 per day, and that she had obtained the money by borrowing from family and friends. C.S. also stated that she has been arrested six times for failure to pay child support. Dr. Katz opined that, in his experience, this amount of heroin use suggests substantial addiction dependency and he expressed concern that the money she obtained went towards her drug habit and not towards her child's needs. He also opined that because a parent with substance abuse problems spends money on drugs rather than rent, it creates stability problems as the parent often becomes homeless and transient, as C.S. has. C.S. reported to him that she was still using heroin at the time of the evaluation, and that she never accomplished sustained remission. Dr. Katz opined that a child is put at risk for harm by parents' substance abuse because it interferes with a parent's ability to care for that child, as "the parent is incapable of showing proper judgment, providing for the child appropriately financially or creating other stability for the child."

Dr. Katz also stated that C.S. reported an incident of domestic abuse between herself and J.M. Dr. Katz noted that although domestic violence puts children at risk for many types of emotional impairments, with reference to J.M. and C.S., he observed that the relationship degradation underlying the domestic violence also manifested itself in C.S. and J.M.'s sabotage of each other's parenting. C.S. also told Dr. Katz that she and J.M. used heroin together, and he opined that people who abuse substances together form co-dependent relationships. Dr. Katz explained that couples in such relationships make excuses for each other so they continue to avoid the consequences of drug use, go through instability together, and make recovery more unlikely.

In C.S.'s personality and parenting testing, Dr. Katz found that C.S. had a rigid parenting style, which would likely cause her frustration and stress when the child has ADHD, as Jason does, and that this stress would put her at greater risk for substance abuse when the parent already has a history of substance abuse. He also found that C.S. has the most noted elevation for narcissistic personality disorder, which when coupled with substance abuse, means that a parent is likely to put their addiction before the child's needs, as Dr. Katz opined is demonstrated by C.S. supporting her expensive drug habit rather than paying her child support. Dr. Katz concluded that C.S. could not parent a child at this time or in the foreseeable future.

In the psychological evaluation of J.M., he admitted to using both oxycodone and heroin. J.M. stated that he had periods of remission, but Dr. Katz pointed out that the remission was due to "lack of exposure to societal contact." Dr. Katz explained that J.M. was in remission when he did not have access to drugs while he was incarcerated, but would relapse once he was out in the community. According to Dr. Katz, J.M. misrepresented that he attended substance abuse treatment when he did not and externalized the blame for his problems on others, including the Division, rather than take responsibility himself. J.M. denied that any domestic violence incident occurred and stated that the domestic violence reported by his other son was fabricated by the caseworker. Dr. Katz was again concerned that J.M. was externalizing blame, and reiterated the same concerns regarding the negative effects of domestic violence on a child.

In his personality tests, J.M. displayed a pattern of narcissistic personality disorder, in addition to anti-social features and a history of drug dependence. Dr. Katz opined that these characteristics would impair J.M.'s ability to parent because of his instability related to substance abuse, instability in housing, inconsistency in work, as well as anti-social activities and lack of compliance with supervision. Dr. Katz concluded that J.M. was not able to parent Jason at this time or in the foreseeable future.

Dr. Katz performed a bonding evaluation of C.S. and J.M. with Jason. He observed that Jason had an insecure attachment with C.S. and J.M. because while he recognized them as parental figures he did not respond to their direction, was not comforted by them, and was inconsistently attached to them. Dr. Katz opined that Jason sometimes would initiate contact and interaction with C.S. and J.M. but at other times he was forced into contact or avoided it, showing an inconsistency in his attachment. Dr. Katz also testified that C.S. and J.M. showed maladaptive parenting behaviors, that J.M. acted passive-aggressively towards C.S., sometimes through Jason, and would expose Jason to parental conflict during his limited contact with them. Dr. Katz stated that Jason would respond to this behavior at times with distancing, frustration, and anger.

Dr. Katz also performed a bonding evaluation of Jason with his resource parents, who Jason had been living with for two-and-a-half years. Dr. Katz opined that Jason has a strong, secure attachment to his foster parents and that he views them as primary nurturing figures. He observed Jason express feelings of security and stability with his foster parents, compared to the conflict and inconsistency he felt with his biological parents. According to Dr. Katz, Jason frequently initiated emotional contact, eye contact, and interactive play with his foster parents and was more cooperative and responsive to their direction, rather than reacting with frustration and annoyance (as he did during the bonding evaluation with his biological parents).

Dr. Katz also opined that if separated from his foster parents, Jason would experience severe trauma, loss, separation, depression, and anger, and it would heighten his neurological issues with ADHD. The biological parents do not have the necessary emotional skills, or stability and sobriety, to alleviate the harm that Jason would experience from a separation from his foster parents. Dr. Katz stated that Jason would experience little to no harm from being separated from his biological parents, and if he did experience harm, his foster parents would be capable of helping him deal with any issues. In addition to the trauma of separating him from his foster parents, if Jason returned to C.S. and J.M. he would experience the harm of "being placed in a setting with high instability, high conflict, ongoing substance abuse, ongoing risk of neglect, and other harm." Ultimately, Dr. Katz recommended termination of parental rights followed by adoption by the foster parents.

J.M. presented testimony from Dr. Donald J. Franklin, a psychologist who performed a psychological assessment of J.M. Dr. Franklin opined that J.M. had normal scores on the substance abuse scales, meaning that although he did have substance abuse issues, he did not demonstrate the personality characteristics that are associated with chronic long-term substance abuse. Dr. Franklin also testified that, although J.M. tested for mild depression and moderate anxiety, he did not have any severe personality issues associated with long term abuse. Therefore, Dr. Franklin opined that J.M. was a good candidate for completing drug treatment successfully. According to Dr. Franklin, J.M. was able to parent, but was not ready for reunification until he works on his substance abuse problems in an outpatient program and attends couples counseling with C.S., so that they do not relapse together.

Dr. Franklin performed a bonding evaluation between J.M. and Jason. He opined that there was a very strong, positive, emotional bond between Jason and J.M. He observed eye contact and physical contact throughout the session, and that Jason looked to his father for direction. Dr. Franklin also did a bonding evaluation between Jason and the foster parents. Dr. Franklin observed very positive interaction between Jason and the foster parents, but thought that Jason was not as emotionally expressive towards his foster parents. Although bonded to his foster parents, Dr. Franklin thought Jason has a stronger emotional bond to J.M. and opined that it would cause significant emotional trauma for Jason if J.M. were removed completely from his life. He stated that if Jason were removed from his foster parents, he would miss them but would be able to transition with counseling and other support.

Dr. Franklin cautioned that J.M. was not ready for reunification with Jason and recommended that it was in Jason's best interests to give J.M. more time to complete substance abuse treatment and for Dr. Franklin to do a follow-up evaluation in six months. Dr. Franklin testified that J.M. would need to demonstrate six months of sobriety before reunification would be a possibility.

On October 20, 2014, the trial judge entered an order based on a finding of clear and convincing evidence that C.S.'s and J.M.'s parental rights to Jason should be terminated.

II.

On appeal, C.S. and J.M. both argue that the judgment of guardianship should be reversed because the Division failed to prove all four prongs of the N.J.S.A. 30:4C-15.1(a) "best interests of the child" test by a preponderance of evidence and that the trial judge's findings were not sufficiently thorough to meet the required standard under Rule 1:7-4. We disagree.

A parent's right to enjoy a relationship with his or her child is fundamental and constitutionally protected. In re Adoption of Children by L.A.S., 134 N.J. 127, 132 (1993). "Parental rights . . . are not absolute [and] . . . [t]he constitutional protection surrounding family rights is tempered by the State's parens patriae responsibility to protect the welfare of children." In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999) (citation omitted).

Under N.J.S.A. 30:4C-15.1(a), the Division can initiate a petition to terminate parental rights on the basis that such termination is in the "best interests of the child" if the following standards are met

(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.

"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.

When biological parents resist the termination of their parental rights, the court's function is to decide whether the parents can raise their children without causing them further harm. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). "The burden falls on the State to demonstrate by clear and convincing evidence that the natural parent has not cured the initial cause of harm and will continue to cause serious and lasting harm to the child." Ibid.

"Appellate review of a trial court's decision to terminate parental rights is limited, and the trial court's factual findings should not be disturbed unless they are so wholly unsupportable as to result in a denial of justice." In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002) (internal quotation marks and citations omitted). We are obliged to accord deference to the trial court's credibility determinations based upon the judge's opportunity to observe and hear the witnesses. Cesare v. Cesare, 154 N.J. 394, 412 (1998).

A. The First Prong of the Best Interests Test.

To satisfy the first prong of the best interests standard, the harm to the child caused by the parental relationship "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. Generally, the proofs "'focus on past abuse and neglect and on the likelihood of it continuing.'" N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 609 (App. Div.) (quoting J.C., supra, 129 N.J. at 10), certif. denied, 192 N.J. 68 (2007). Moreover, in guardianship and adoption cases, the child's needs for permanency and stability is central. K.H.O., supra, at 357. Additionally, injury to the child's growth and development should not be the result of economic deprivation or lack of resources but to a fundamental lack of the most precious of all resources, the attention and concern of a caring family. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 613 (1986). The Court must, therefore, consider whether reunification between Jason and J.M. and C.S. may harm Jason in the foreseeable future.

Here the trial court found that the defendants' unresolved drug problems established such on-going harm. Although there is no support for the trial court's finding that C.S. was charged with driving under the influence of drugs, it is harmless error because it remains undisputed that she was arrested that day in connection with her drug use. She also acknowledged that she had used heroin the prior evening, and was in possession of heroin and a syringe when she was stopped. Moreover, as the trial acknowledged, both parents had significant unaddressed substance abuse problems while Jason was in their custody.

We are satisfied that the record here contains ample evidence to support the court's determination that both defendants' behavior exposed Jason to harm which continues pursuant to the first prong.

B. The Second Prong of the Best Interests Test.

The second prong of the test relates to parental unfitness. K.H.O., supra, 161 N.J. at 352. There are two ways to establish this prong: (1) the State must show that "the child's health and development have been and continue to be endangered" and "that the harm is likely to continue because the parent is unable or unwilling to overcome or remove the harm[;]" or (2) "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.

We are satisfied that the record contains clear and convincing evidence establishing prong two. The trial court found there was "a period of two and a half years that the parents have not been able to deal with their drug problem successfully. During that period of time their child has resided outside the home." A child s need for stability, consistency, and permanence cannot be ignored in reaching the most challenging decision any court can face. See Adoption of Child by P.S., 315 N.J. Super. 91, 120 (App. Div. 1998).

C. The Third Prong of the Best Interests Test.

The third prong requires the Division to make reasonable efforts to provide services in order to help the parent correct the circumstances which led to the child's placement outside the home. N.J.S.A. 30:4C-15.1(a)(3). Reasonable efforts will vary with the circumstances. F.H., supra, 389 N.J. Super. at 620. This factor requires the Division to make diligent efforts to reunite the family. K.H.O., supra, 161 N.J. at 354. Whether a parent successfully completed the services offered is not relevant to whether the third prong has been met because the Division's efforts are not measured by their success. In re Guardianship of D.M.H., 161 N.J. 365, 393 (1999).

The trial court found

[t]he Division has by all the clear and convincing testimony that I've heard made efforts to deal with the parents and their problem. To get them treatment. To help them ameliorate the problem. To eliminate the problem. To get to the point where they'd be able to as I am sure that they had wished that time to parent this child. It just never seemed to happen.

We are satisfied that the record demonstrates that the Division made reasonable efforts to reunite the family. The Division referred defendants for evaluations, drug treatment, supervised visitation, and other meaningful services including bonding evaluations. C.S and J.M. were offered numerous opportunities to complete substance abuse treatment which defendants either resisted or failed to complete by the time of trial. The Division also explored relative placement for Jason, but all of those potential relative caregivers were either ruled out or withdrew themselves from consideration.6

D. The Fourth Prong of the Best Interests Test.

The fourth prong, that termination of parental rights will not do more harm than good, "serves as a fail-safe against termination even where the remaining standards have been met." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 609 (2007). "The question ultimately is not whether a biological mother or father is a worthy parent, but whether a child's interest will be best served by completely terminating the child's relationship with that parent." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 108 (2008). If a child can be returned to the parent without endangering the child, the parent's right to reunification takes precedence over the permanency plan. A.W., supra, 103 N.J. at 608. That the child has bonded with the foster parent does not alone justify the termination of parental rights. N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 263-64 (2005). When parents expose a child "to continuing harm . . . and [are] unable to remediate the danger to the child, [who] has bonded with the foster parents . . . provid[ing] a nurturing and safe home, . . . termination of parental rights likely will not do more harm than good." E.P., supra, 196 N.J. at 108.

In establishing this 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 biological and foster parents. J.C., supra, 129 N.J. at 19. "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." K.H.O., supra, 161 N.J. at 355.

In addition, the Division must prove that the parent's actions or inaction contributed to the forming of that bond between the child and the foster parents, and that "the harm caused to the child from severing that bond rests at the feet of the parent." N.J. Div. of Youth & Family Servs. v. D.M., 414 N.J. Super. 56, 80 (App. Div. 2010). A child's need for permanency and stability is an important consideration. N.J. Div. Youth & Family Servs. v. M.M., 189 N.J. 261, 281 (2007).

The trial court properly determined that there was sufficient evidence to satisfy prong four. We emphasize that the court relied on the credible expert testimony of Dr. Katz, who explained that C.S. and J.M. had unaddressed substance abuse problems, prioritized their needs above their child's needs, lacked adequate parenting skills and temperaments, and had weaker bonds with Jason than the foster parents did. The testimony established that any harm resulting from removal from the foster parents could not be ameliorated by defendants, but that the foster parents could ameliorate any harm resulting from termination of defendants' parental rights. The court rejected Dr. Franklin's recommendation because he offered no calculable time within which to determine the foreseeable future for Jason, because J.M. had not yet completed drug treatment.

Affirmed.

1 We use initials and pseudonyms to protect the privacy of the parties.

2 The Division of Youth and Family Services has since been renamed. It is now the New Jersey Division of Child Protection and Permanency.

3 In addition to Jason, J.M. has another son, who is in J.M.'s mother's custody.

4 C.S. and J.M. had been living with J.M.'s mother, A.M., but had to leave the home when the Division reopened the case regarding J.M.'s other son, who was in A.M.'s custody.

5 J.M.'s other son remained under A.M.'s custody, with the provisions that the girlfriend was not allowed in the home and the uncle was to be supervised at all times around the child.

6 Initially Jason was placed with his maternal grandmother for a period of a few months; however, she eventually requested his removal. The paternal grandmother's home was initially disapproved because J.M.'s brother's girlfriend overdosed on heroin in the house. The same home was eventually ruled out by the Division due to concerns that the parents were living there. The paternal grandmother did not appeal the rule-out. The paternal grandfather initially indicated that he was not capable of caring for Jason because his home had been damaged by Superstorm Sandy. He came forward offering himself as a resource a few days before trial, two years after the child had been living with his foster family.