DIVISION OF CHILD PROTECTION AND PERMANENCY v. A.M.M.

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NOT FOR PUBLICATION WITHOUT THE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.

A.M.M.,

Defendant-Appellant,

and

J.J.J. and D.V.D.,

Defendants.

__________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF H.N.M. and S.S.M.,

Minors.

__________________________________

August 4, 2016

Submitted May 16, 2016 Decided

Before Judges Lihotz and Higbee.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FG-08-29-14.

Joseph E. Krakora, Public Defender, attorney for appellant (Mark E. Kleiman, Designated Counsel, on the brief).

Robert Lougy, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Mary A. Hurley, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Rachel E. Seidman, Assistant Deputy Public Defender, on the brief).

PER CURIAM

A.M.M. (Amy),1 appeals from the termination of her parental rights to her daughters, H.N.M. (Hope) and S.S.M (Sara), collectively "the daughters."2 She argues that (1) the court erred by failing to make factual findings and conclusions of law with respect to alternatives to termination of parental rights under prong three, and (2) that the Division of Child Protection and Permanency (Division) failed to clearly and convincingly establish that termination of parental rights would not do more harm than good under prong four of the statutory test. For the reasons that follow, we affirm.

We discern the following factual and procedural history found in the record. Hope was born to Amy and J.J.J. (Jon),3 on October 28, 2006. Sara was born to Amy and D.V.D. (Dan),4 on July 30, 2010.

In June 2008, Amy and Hope were involved in an automobile accident, resulting in Hope's right femur being broken. Amy admitted that she was on methadone and that it may have contributed towards the accident. Shortly thereafter, the Division received a referral indicating that Amy brought Hope to the hospital, and that Hope's cast was soaked in urine and had become loose. The Division subsequently substantiated Amy for neglect of Hope.

The court thereafter granted the Division's verified complaint seeking custody, care and supervision of Hope. Amy was ordered to complete and comply with recommendations from a substance abuse evaluation and psychological evaluation, and to complete parenting classes. Legal and physical custody of Hope was returned to Amy, with the condition they live with and be supervised by the maternal great-grandmother, Deb. The Division provided Amy with referrals for a methadone treatment program, regular urine screens, individual therapy, a parental fitness evaluation, and a psychiatric evaluation.

Following a fact-finding hearing on December 22, 2008, the court found Amy abused or neglected Hope by driving with her while impaired by methadone, and by failing to properly care for Hope after the accident. Nonetheless, legal and physical custody of Hope remained with Amy and the supervision requirement was lifted. The court ordered Amy to attend services including parenting classes, urine screens, psychological and substance abuse evaluations, and individual counseling.

As of April 2009, Amy failed to submit to multiple urine screens requested by the Division. Amy was living with the maternal grandmother, (Dara), and Hope was living with Deb. The court prohibited Dara from having unsupervised contact with Hope due to Dara's history of substance abuse.

In March 2010, Amy left Hope in Dara's care contrary to court order. Dara refused to return Hope to Amy, and Amy did not report the incident to the Division for multiple days. Upon learning of the situation, the Division conducted an emergency Dodd5 removal and placed Hope in a resource home. Amy stated she did not report the incident to the Division or the police because she had an outstanding bench warrant. Based on those circumstances, Amy was found to have abused or neglected Hope for the second time.

In May 2010, Amy completed a psychiatric evaluation with Dr. Leslie Madrak. At the time, she was pregnant in her third trimester with Sara, while regularly taking methadone for her opioid dependence and Valium for her anxiety. Upon being prompted by Dr. Madrak to switch from Valium to Prozac for the health and safety of Sara, Amy did not agree to make the change. In July 2010, Amy gave birth to Sara, who tested positive for methadone and required treatment for methadone withdrawal. Following the filing of an amended verified complaint for custody, care and supervision of both children, the court awarded custody of Sara to the Division.

From the outset of the case, Amy completed multiple substance abuse evaluations that recommended she enter a detoxification facility and subsequently attend intensive outpatient drug treatment for her opioid dependence. However, it was not until after Sara's birth that Amy completed an inpatient substance abuse program at Sunrise House. Amy was reunified with Hope and Sara while at Sunrise house, and upon her completion of the program, she moved into transitional housing at Woodbury Mother-Child Residential Program with her daughters. She was later discharged from the residential program because of her non-compliance with treatment, drug testing, and other program requirements. As a result, Amy and her children lived in a homeless shelter for a short period until they moved in with Amy's aunt, who had previously been found to have abused or neglected a child.

On February 3, 2012, Amy tested positive for marijuana, opiates, and methadone, which were not prescribed medications. Based on her positive drug screen and unstable housing, the Division conducted a second Dodd removal and placed the daughters in a resource home. The Division's amended verified complaint for custody, care, and supervision of the daughters was granted and Amy was ordered to attend services. The daughters could not be placed with Amy's maternal aunt because the Division substantiated a child in her care had been neglected or abused.

On May 24, 2012, Hope and Sara were placed in Deb's home. All visitation between Amy and her daughters was ordered to be supervised. Between May 2012 and August 2013, Amy tested positive for illegal substances such as opiates, benzodiazepines, PCP, and marijuana, was unable to find stable housing, and often failed to attend compliance review court hearings. Additionally, she regularly failed to avail herself of visitation privileges with her children.

In the ensuing months, Deb's licensure as a resource parent was suspended due to concerns over the suitability of her home. Those concerns arose from the home's persistent odor of cigarettes, insufficient fire alarms, improper storage of gas and chemicals, a non-functioning emergency switch on the heater, and general clutter throughout the house. Additionally, the electrical wiring in Deb's home was in disrepair, causing her to rely on an array of extension cords throughout the home to power appliances. However, without remediating those concerns, Deb was permitted to continue caring for the children because she "provid[ed] safe and appropriate care" according to the Division.

On August 29, 2013, Amy began a twenty-eight day inpatient drug treatment program at Turning Point. After Amy was successfully discharged from Turning Point in October 2013, she relapsed and the Division lost contact with her for one week. The Division thereafter filed a complaint for guardianship of Hope and Sara, seeking to terminate the parental rights of Amy, Jon, and Dan.

In March 2014, Amy, who was pregnant with K.M., was admitted in Great Expectations for inpatient substance abuse treatment. Upon her admission, Amy not only tested positive for her prescribed medication methadone, but also for benzodiazepines. While at Great Expectations, Amy had overnight visitation with her daughters every other week.

On September 4, 2014, following a hearing, the daughters were removed from Deb's care and placed in a resource home because of ongoing concerns with the suitability of Deb's home as a placement, as well as concerns about Hope's absenteeism from school. The daughters resided in a resource home for the duration of this case. Following the daughters' removal from Deb's care, Amy's progress at Great Expectations slowed, and she was ultimately discharged for non-compliance with the program.6

On October 27, 2014, Jon's mother contacted the Division, expressing her interest in adopting the daughters despite not having housing. On December 11, 2014, the Division explored Amy's brother, Cal, as another potential relative placement, but his housing status was unstable and he was unemployed.

On January 8, 2015, approximately ten weeks before trial, Judge Ragonese denied without prejudice Jon's application, supported by the law Guardian, seeking visitation between the daughters and Jon's mother. The judge reasoned that granting the delayed request for visitation with Jon's mother "would tend to promote the continued confusion of the daughters." The judge further ruled the issue of Jon's mother as an alternative placement could be reargued at trial.

As of March 3, 2015, Amy completed an updated substance abuse evaluation and tested positive for benzodiazepines, marijuana, buprenorphine, and oxycodone. Amy reported that she had suicidal ideations over the prior thirty days and admitted to recent drug use. She was recommended to attend a long-term residential drug treatment program.

The guardianship trial commenced on March 16, 2015. Amy submitted to a urine screen that day and tested positive for opiates, benzodiazepines, and methadone. Dr. James L. Loving, Psy.D., testified regarding a psychological evaluation of Amy and a bonding evaluation between Amy and the daughters which he conducted on October 30, 2014. He also testified regarding a psychological evaluation of Deb. His expert report was admitted into evidence. Additionally, the Division presented testimony from Michele Johnson, a Division caseworker. The court heard testimony from Deb and Cal. Amy testified on her own behalf.

During her evaluation with Dr. Loving, Amy admitted she used heroin or other opiates since she was eighteen years old. Amy acknowledged her struggle with opioid addiction and that she had relapsed at least five times since 2006. During the evaluation she denied using other drugs, despite previously testing positive for cocaine, PCP, benzodiazepines, and marijuana. She admitted at trial she previously used these and other illicit substances. She described "depressive and manic symptoms" that occurred even while she was not using drugs. Additionally, Amy disclosed being arrested "at least [twenty] times" resulting in her incarceration for an aggregate period of approximately two years.

Dr. Loving concluded that Amy suffered from Opioid Use Disorder, Bipolar Disorder, Panic Disorder, and Personality Disorder with Dependent and Borderline Traits. He determined that Amy "poses very high risks in terms of drug abuse, unstable living arrangements, criminal involvement, and neglectful parenting" and therefore "will not be in a position to serve as a safe, effective parenting [sic] in the foreseeable future." Therefore, Dr. Loving recommended the Division's plan for adoption to provide the daughters "the best chance to enjoy

. . . safety and permanency."

During the bonding evaluation between Amy and the daughters, Dr. Loving observed the daughters to be "obviously familiar and comfortable" with her. They referred to her as "mommy" and "initiated contacts spontaneously." On January 28, 2015, Dr. Loving conducted a bonding evaluation between the daughters and their resource parents, with whom they had been residing for the previous four months. The girls appeared happy as they were "talkative, smiling, and positioning themselves close to their caregivers." The daughters referred to their caregivers as "Miss A and Miss B" and "show[ed] every indication of building strong healthy attachments."

Based on the evaluations, Dr. Loving found the daughters have not been able to "view [Amy] as a reliable parent figure or a source of dependable safety." Nonetheless, the daughters viewed Amy "as a mother figure." Although they did not yet view their caregivers as "the most central and important parent figure," the daughters already began "showing obvious signs of healthy attachment-seeking behavior" with them. In the event the daughters were adopted by their caregivers, Dr. Loving found the cessation of their relationship with Amy "would only place the girls at low risk of suffering long-term harm." Given the poor prognosis for Amy, and the progress made by the daughters with their caregivers, Dr. Loving concluded returning Hope and Sara to Amy "would be a very high-risk situation for them."

Additionally, Dr. Loving conducted a psychological evaluation of Deb. In his report, Dr. Loving diagnosed Deb as "someone who has significant depression over her life. Sometimes very severe, sometimes less severe but still [a]ffecting her functioning." He concluded that Deb's depression was a factor in her inability to "manag[e]" Hope and Sara. Dr. Loving also diagnosed Deb with Generalized Anxiety Disorder which "color[ed] her ability to function well everyday." However, at trial, Dr. Loving stated "[t]here was nothing in [Deb's] presentation at that appointment that would suggest her mental status would interfere with her functioning with the one specific exception of memory impairment."

Dr. Loving further expressed concerns that Deb may have an Opiate Use Disorder based on her regular use of prescription pain-killers for the previous twelve to fifteen years. However, he stated further testing would be necessary as he did not have enough information to make a conclusion. Moreover, without having conducted a bonding evaluation between Deb and the daughters, Dr. Loving did not recommend they be in Deb's care.

Amy testified that she still suffered from drug addiction, and that as recently as a week prior to trial, she used methadone and Valium which she purchased "off the street." Amy further testified that she "wasn't always there for her daughters" during "times that [she] relapsed and . . . disappeared for months at a time." Deb testified that she remediated the issues with her home, but did not notify the Division. Cal testified that he lived with his fiancée and her father, and that they were willing to be caregivers for Hope and Sara. He claimed he was present when his fiancée called the Division two months prior to trial to offer being a placement, but the Division never followed up with them. The home in which Cal resides is not his permanent residence. It is owned by Cal's fiancée's grandmother, and he is repairing and living in the home pending its sale.

On March 17, 2015, following trial, the trial judge delivered an oral opinion concluding the Division established all four prongs set forth in N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence to terminate the parental rights of Amy and Jon to Hope, and Amy and Dan to Sara. The court found that the Division clearly and convincingly established prong one, stating "both children's health and development has been and will continue to be endangered by the parental relationship as to [Amy]." The judge focused on Amy's inability to find stable housing and her drug addiction spanning over a decade.

The court found the Division clearly and convincingly established prong two, stating Amy was "utterly unable to control herself and seek the assistance that's necessary to become rehabilitated [from her drug addiction]." Additionally, he found Amy is "not able to provide a safe and stable home for the [daughters]" given her inability to do so over the prior three years. The judge further found removing the daughters from their caregivers would create an additional psychological harm to them, as it would further destabilize the daughters' lives.

The court found the Division clearly and convincingly established prong three, stating the Division made "extensive services . . . available . . . to [Amy]." Those services included parental education programs, psychiatric and psychological counseling, and drug treatment. With respect to alternatives to termination of parental rights, the court found "there has been a methodical addressing [sic] including the options of KLG which were further explored in the original permanency hearing and the appropriateness at that time of KLG." The judge concluded "there is no home to which they could be removed."

The court found the Division clearly and convincingly established prong four, stating the daughters would suffer harm if removed from their current resource home, and that "[i]t might be more than they will even now suffer from being taken from their maternal great-grandmother and their maternal mother who has not had custody of them for over three years." The judge also concluded termination was warranted noting the resource parent's commitment to school attendance and to the children's safety. He further noted the risks to the children if Amy was the caregiver, because of her unmitigated drug addiction.

Judge Ragonese entered an order terminating parental rights on March 19, 2015, and Amy appeals from that order, claiming the judge failed to assess alternatives to termination of parental rights and erred in finding the Division proved prong four by clear and convincing evidence.

The trial judge's fact findings will be upheld if "supported by adequate, substantial, and credible evidence." N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014). We defer to the family court's findings of fact, including credibility determinations, unless they are "so wide of the mark that the judge was clearly mistaken." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007).

Parents have a fundamental right to raise their biological children. In re Guardianship of K.H.O., 161 N.J. 337, 346-47 (1999). However, parental rights are not absolute and the State has a "parens patriae responsibility to protect the welfare of children." In re Guardianship of J.C., 129 N.J. 1, 10 (1992) (emphasis in original). "The focus of a termination-of-parental-rights hearing is the best interests of the child." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 447 (2012).

Termination of parental rights is appropriate if the Division proves 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

. . .;

(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)]

The "four prongs are not 'discrete and separate,' but 'relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests.'" F.M., supra, 211 N.J. at 448 (quoting G.L., supra, 191 N.J. at 606-07).

As Amy does not contest the judge's findings with respect to prongs one and two, we decline to address them. Additionally, Amy does not assert a lack of reasonable efforts under prong three with respect to services. Therefore, we begin with Amy's claim that the trial judge failed to adequately consider alternatives to termination of parental rights under prong three.

We note that although the Division attempts "to place children with relatives whenever possible . . . [t]here is no presumption . . . in favor of placement with a relative as opposed to a third party." N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 619 (App. Div.) (quoting N.J. Div. of Youth & Family Servs. v. M.F., 357 N.J. Super. 515, 527-29 (App. Div. 2003)), certif. denied, 192 N.J. 68 (2007).

Here, Amy and Jon offered multiple family placements that were ultimately deemed not viable by the court. In January 2013, Deb's licensure as a resource home was suspended due to concerns with the suitability of her home as a placement. Almost two years later, Deb had yet to remediate the issues raised by the Division. At trial, Deb did not provide any evidence beyond her own testimony that the Division's concerns over her housing had been resolved. In addition to concerns over her housing, Hope developed a pattern of absenteeism from school while under Deb's care. Both issues resulted in the court previously determining that Deb would not be a proper resource placement for the daughters.

None of the other potential placements were suitable either. Dara had a more lengthy history of drug abuse than Amy, and she was already court ordered not to have unsupervised time with the daughters. Furthermore, Cal did not have stable housing, as he was temporarily residing in the home of his fiancée's grandmother. Lastly, no evidence was ever produced to suggest Jon's mother had obtained housing since she first advised the Division in October 2014 that she was interested in being a resource parent. We also note that Jon has not appealed the termination of his parental rights seeking placement with his mother. Therefore, no reasonable alternative placement was ever presented for the court's consideration.

We agree with the trial judge that "there is no home to which they could be removed." Accordingly, we affirm the trial court's decision with respect to prong three.

Next, we address Amy's claim that the Division failed to prove prong four by clear and convincing evidence.

As part of our analysis under the fourth prong, "we must determine 'whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with [his or] her natural parents than from the permanent disruption of [his or] her relationship with [his or] her foster parents.'" F.H., supra, 389 N.J. Super. at 622 (alteration in original) (quoting K.H.O., supra, 161 N.J. at 355). A "central factor" in this determination is "[t]he child's need for permanency and stability." Ibid. (quoting K.H.O., supra, 161 N.J. at 357). "A child cannot be held prisoner of the rights of others, even those of his or her parents. Children have their own rights, including the right to a permanent, safe and stable placement." N.J. Div. of Youth & Family Servs. v. S.F., 392 N.J. Super. 201, 210 (App. Div.) (quoting N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div.), certif. denied, 180 N.J. 456 (2004)), certif. denied, 192 N.J. 293 (2007).

Here, the evidence presented does not show a well-established bond or attachment between the daughters and their current foster placement at the time of trial. However, the trial judge's finding they have a greater chance of safety and permanency in their current placement is well supported by the evidence. The current resource parents provide a stable home whereas Amy has not been able to provide an adequate or stable environment for her children. Instead, Amy resided with family members, in drug treatment facilities, in homeless shelters, and jail for varying periods of time throughout the pendency of the case.

Nor has Amy been able to successfully recover from her Opioid Abuse Disorder which has plagued her most of her adult life. Initially, Amy was found to have abused or neglected Hope under circumstances stemming from a car accident while Amy was under the influence of methadone. She was found to have abused or neglected Hope a second time when she left her in the care of Dara, who was ordered not to have unsupervised time with Hope due to her own drug addiction. After Dara refused to return the daughters to Amy's care, Amy's excuse for failing to notify the Division or police was that she was concerned the situation would affect her bench warrant status.

Dr. Loving presented uncontroverted testimony that returning the children to Amy "would be a very high-risk situation for them" while a cessation of their relationship with her "would only place the girls at low risk of suffering long-term harm." We determine the trial judge's findings that the Division has proven that Hope and Sara cannot view Amy as a reliable parent or source of dependable safety are sufficiently supported. For these reasons, we affirm the trial court's decision with respect to prong four.

Affirmed.

1 Fictitious names are used for clarity and confidentiality.

2 Amy gave birth to another child, K.M., during the pendency of this case. Her parental rights to K.M. are not subject to this appeal.

3 Jon entered an identified surrender of his parental rights to Hope on March 16, 2015. Jon is not a party to this appeal.

4 Dan's parental rights to Sara were terminated on March 19, 2015, following trial. Despite his wife being served a summons for him to appear in court, Dan never participated in these proceedings and his whereabouts are unknown. Dan is not a party to this appeal.

5 See N.J.S.A. 9:6-8.21 to -8.82 (permitting the emergency removal of children without a court order under certain circumstances).

6 Amy continued to have bi-monthly overnight visits on weekends with Hope and Sara while at a Mommy and Me program until February 2015.