OFCHILD PROTECTION AND PERMANENCY v. T.F IN THE MATTER OF THE GUARDIANSHIP OF C.F Minor–

RECORD IMPOUNDED

                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-0659-16T4

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

        Plaintiff-Appellant,1

v.

T.F.,

     Defendant-Respondent.
______________________________

IN THE MATTER OF THE
GUARDIANSHIP OF C.F.,

     Minor–Appellant.
______________________________

              Submitted February 6, 2018 – Decided February 20, 2018

              Before Judges Reisner, Hoffman, and Gilson.

              On appeal from the Superior Court of New
              Jersey, Chancery Division, Family Part, Hudson
              County, Docket No. FG-09-0135-16.

              Joseph E. Krakora, Public Defender, Law
              Guardian, attorney for minor-appellant C.F.
              (Rachel E. Seidman, Assistant Deputy Public
              Defender, on the brief).



1
   The Division of Child Protection and Permanency joined in the
appeal filed by the Law Guardian.
          Gurbir S. Grewal, Attorney General, attorney
          for   Division  of   Child  Protection   and
          Permanency (Andrea M. Silkowitz, Assistant
          Attorney General, of counsel; Lauren J.
          Oliverio, Deputy Attorney General, on the
          brief).

          Joseph E. Krakora, Public Defender, attorney
          for   respondent  T.F.   (Amy  M.   Williams,
          Designated Counsel, on the briefs).

PER CURIAM

     The Law Guardian, representing the child C.F. (Carl), appeals

from a September 30, 2016 order dismissing a guardianship complaint

filed by the Division of Child Protection and Permanency (Division)

against the child's mother, T.F. (Tara).2   The Division joins in

the Law Guardian's appeal.    Because we conclude that the trial

court committed legal errors in evaluating the first two prongs

of the best interests test, 
N.J.S.A. 30:4C-15.1(a), and made

inadequate findings as to the fourth prong, we vacate the order

on appeal and remand this matter to the trial court.

                                 I

     We summarize those aspects of the record that are          most

pertinent to our decision.   Carl was born in December 2013.     His

mother Tara has a persistent, serious substance abuse problem,

primarily involving her use of phencyclidine (PCP) and alcohol.



2
  We use initials and pseudonyms to protect the family's privacy.
R. 1:38-3(d)(12).

                                 2                          A-0659-16T
4 From April 2014, when the Division received reports of Tara's PCP

use, which was confirmed by a drug test, the agency made extensive

efforts to keep Carl safe while leaving him in Tara's custody.

Those       efforts   included    placing     round-the-clock    homemaker

assistance in her home.      However, Tara was not always cooperative

with the homemakers, and more significantly, she persisted in

using PCP.      The Division obtained custody of Carl on October 3,

2014, after a psychiatrist advised that Tara needed inpatient drug

treatment.

      Carl has lived with a resource parent, a maternal cousin,

since October 2014.      By the time the July 2016 guardianship trial

began, Carl had been in foster care for almost two years.               He had

developed a secure bond with the resource parent, and she was

willing to adopt him.

        During the years when Carl was out of her custody, Tara

repeatedly tested positive for PCP, barbiturates and alcohol.               She

was discharged from multiple drug treatment programs, due to her

unwillingness or inability to follow the rules of the programs.

She   was    incarcerated   for   violating   probation,   and   was     later

arrested for robbery.3       Tara admitted to a Division caseworker



3
    Tara did eventually successfully complete a reintegration
program at Integrity House.   However, as noted here, she later
relapsed into using PCP and was arrested for robbery.

                                      3                                A-0659-16T4
that she had relapsed on PCP and was high at the time of the

robbery arrest.

     Prior to Tara's most recent incarceration, the trial court

stated that it would consider letting her participate in a "mommy

and me" program, in which she could live with the child in a

residential drug treatment program.      However, for the child's

safety, the court required Tara to take a hair follicle test to

confirm that she was not still using PCP.     Tara never cooperated

with the Division's multiple attempts to have her take the follicle

test, and her son remained in foster care.          Additionally, Tara

refused or failed to sign forms necessary for Carl to obtain early

intervention   services.   Finally,   the   court    signed   an     order

authorizing the resource parent to consent to the services.

     There was no dispute that Tara interacted appropriately with

the child during her visits with him, including when the Division

brought him to visit her in jail.       Tara also completed anger

management and parenting classes.     However, more significantly,

she did not overcome her drug issues, and she was in no position

to care for Carl by the time of the guardianship trial. Throughout

the trial, Tara was still in jail awaiting trial on the robbery

charges.

     The Division presented expert testimony from Dr. Karen Wells,

explaining the ways in which a parent's use of PCP would put her

                                4                                  A-0659-16T4
child at risk.       Dr. Wells specifically testified that returning

Carl to Tara's custody, while she was still using PCP and alcohol,

would pose a "severe and grave" risk and would pose a threat of

"unimaginable harm" to the child.         She opined that, although Tara

interacted well with Carl during the bonding evaluation, clearly

loved him, and had an intellectual understanding of his needs,

Tara minimized her drug problem and failed to appreciate the danger

that her drug use posed to the child.

      Dr. Wells also expressed concern that Tara might be using PCP

to   self-medicate    for   mental   health   issues,   and   that   without

successful mental health and drug treatment "her prognosis is

poor."   Dr. Wells opined that Tara was not able to provide a safe

and stable home for Carl and was unlikely to be able to do so in

the foreseeable future.      Dr. Wells testified that Tara would need

at least a year of complete sobriety before it would possibly be

safe to return Carl to her care.

      Dr. Wells testified that Carl did have a secure bond with

Tara, in that "he has familiarity and is comfortable with her."

However, she did not conclude that Carl looked to Tara as his

psychological parent.       He showed no distress on being separated

from her at the bonding visit.       Dr. Wells opined that he could be

permanently separated from Tara without suffering severe harm.



                                      5                              A-0659-16T4
     On the other hand, Dr. Wells testified that Carl had a secure,

intact bond with the resource parent, and that she had become his

psychological parent.   Dr. Wells testified that Carl would suffer

immediate severe trauma if separated from the resource parent.

Dr. Wells also explained Carl's strong need for a permanent, safe

and stable home. Dr. Wells noted that although the resource parent

wanted to adopt Carl, she told Dr. Wells that she would let Tara

have continued contact with Carl, through family gatherings and

other events.   Tara did not present any witnesses at the trial.

     In an oral opinion issued on September 30, 2016, the trial

court concluded that the Division had not proven "each prong of

the best interests standard" and found "that as of now it is not

in the child's best interest to terminate [defendant's] parental

rights."   The court focused on the issue of parents who use drugs,

expressing a concern that if expert testimony about the dangers

of drug use were sufficient, then "in any case any party's drug

use would be enough to terminate parental rights.   That's not the

law."   The judge considered that Carl had lived with Tara for the

first ten months of his life, although he had lived with the

resource parent for about two years.   He considered that Tara had

"some good times in trying to beat the drugs." However, he found

that, in part due to her attitude problems, Tara had resisted the

Division's efforts to help her.

                                  6                         A-0659-16T4
     On the other hand, the judge was concerned that the Division

had not presented expert testimony as to the amounts of PCP or

alcohol in Tara's system when she had positive drug screens.

Without that information, he concluded that he could not determine

"the intensity of the drug use" and "whether her drug use might

have a significant chance of causing future imminent harm."           He

also considered that Tara flunked out of most of her treatment

programs   due   to   "noncompliance,   refusing   to   go,   attitude

problems," rather than noncompliance with medical treatment.          He

also considered that Tara did not actually harm the child while

he was in her care for the first ten months of his life, and

appeared able to care for him while the homemaker was in the house.

     Based on that evidence, the judge concluded that the Division

did not satisfy the first prong of the best interests test, because

the agency did not prove that Tara "has already impaired" the

child's health and development.

     Considering the second prong, the judge found that there was

no evidence that Tara had neglected the child or withheld attention

and care from him.    The judge then considered whether the agency

had proven that Tara would be unable to provide a safe and stable

home for Carl in the foreseeable future. The judge found "clearly"

that Tara could not care for him now.      However, he did not find

that Dr. Wells's "general concerns" about Tara's use of PCP

                                  7                            A-0659-16T4
justified a finding that Tara would be unable to care for the

child in the foreseeable future.

       The judge also was not persuaded that some additional delay

in permanency for Carl would "add to the harm that the child will

experience."       He reasoned that: "In fact, the delay may inure to

the child's benefit if, in fact, . . . whenever [defendant] get[s]

this straightened out with the incarceration, actually get[s] rid

of the anger, get[s] rid of the resistance . . . and get[s] over

the hump of the drug addiction and the attitude problem."                       Based

on that reasoning, the judge concluded that the Division had not

satisfied the second prong.

       The   judge    found   that   the       Division   had    clearly     provided

extensive and appropriate services, and had satisfied the third

prong "beyond a reasonable doubt." In addressing the fourth prong,

the judge stated that he incorporated by reference defendant's

arguments set forth in her attorney's written summation, without

providing    any     additional   factual        findings   or    legal    analysis.

However, the judge cited a case in which a child was in foster

care   for    several    years    with     no    improvement      by   the    parent,

apparently viewing that case as setting a possible outer limit for

delay in permanency.          See In re Guardianship of K.H.O., 
161 N.J.
 337 (1999).     Addressing defendant, he stated, "If you come back



                                           8                                  A-0659-16T4
in a year or two years and we're spinning the wheel again I may

have a different opinion about the clear and convincing standard."

                               II

     To terminate parental rights, the Division must establish the

following statutory prongs:

          (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).]

     These four prongs are neither discrete nor separate, but

overlap "to provide a comprehensive standard that identifies a

child's best interests."   N.J. Div. of Youth & Family Servs. v.

F.M., 
211 N.J. 420, 448 (2012) (citation omitted); K.H.O., 
161 N.J. at 348.   "The considerations involved are extremely fact

                                9                          A-0659-16T4
sensitive and require particularized evidence that address[es] the

specific circumstances in the given case."        N.J. Div. of Youth &

Family Servs. v. R.G., 
217 N.J. 527, 554 (2014) (citation omitted).

The Division must prove by clear and convincing evidence all four

statutory prongs.    Ibid.    To meet this standard, such evidence

must be "so clear, direct and weighty and convincing as to enable

the factfinder to come to a clear conviction, without hesitancy,

of the precise facts in issue."      N.J. Div. of Youth & Family Servs.

v. I.S., 
202 N.J. 145, 168 (2010) (quoting In re Seaman, 
133 N.J.
 67, 74 (1993)).

     Our review of a trial court's decision in a guardianship case

is limited.    R.G., 
217 N.J. at 552.     "[T]he trial court's factual

findings should be upheld when supported by adequate, substantial,

and credible evidence."      Ibid.     We accord deference to factual

findings of the family court given its "superior ability to gauge

the credibility of the witnesses before it and because it possesses

special expertise in matters related to the family."         F.M., 
211 N.J. at 448.

     "[G]reater deference is owed to a denial of an application

to terminate parental rights than to a grant of an application

because a termination of parental rights is final and cannot be

re-visited by the court."     R.G., 
217 N.J. at 553.       We will not

overturn a family court's findings unless they were "so wide of

                                  10                            A-0659-16T4
the mark that the judge was clearly mistaken."      N.J. Div. of Youth

& Family Servs. v. G.L., 
191 N.J. 596, 605 (2007).      However, "[a]

trial court's interpretation of the law and the legal consequences

that flow from established facts are not entitled to any special

deference."    R.G., 
217 N.J. at 552 (quoting Manalapan Realty v.

Manalapan Twp. Comm., 
140 N.J. 366, 378 (1995)).

     After reviewing the record of this case, we find ourselves

unable to accord our usual deference to the trial judge's decision.

In our view, the trial judge's opinion evinced an insufficient

appreciation    for   current   legal   standards    emphasizing    the

importance of permanency in a child's life and the need for parents

to timely resolve drug issues that prevent them from caring for

their children.

          "[C]oncern has arisen for the best interests
          of children whose parents have forsaken their
          parental duties." The emphasis of the federal
          Adoption and Safe Families Act of 1997 (ASFA),
          Pub. L. No. 105-89, 
111 Stat. 2115 (codified
          as amendments in sections of 42 U.S.C.A.) "has
          shifted    from   protracted    efforts    for
          reunification with a birth parent to an
          expeditious, permanent placement to promote
          the child's well-being."

          In our view, parents dabbling with addictive
          substances   must  accept   the  mandate  to
          eliminate all substance abuse. Such unabated
          behavior initiates the foster care placement
          of their children and causes continuing harm
          by depriving their children of necessary
          stability and permanency.     As directed by
          ASFA, the amendments to Title 9, L. 1999, c.

                                 11                            A-0659-16T4
             53 § 1, and 
N.J.S.A. 30:4C-, the delayed
             reunification, accompanied by the concomitant
             consequence of allowing the child's attachment
             to   a  resource   caregiver   continues   the
             significant harm to the child in satisfaction
             of 
N.J.S.A. 30:4C-15.1(a)(2).

             [N.J. Div. of Youth &        Family Servs. v. T.S.,
             
417 N.J. Super. 228,          240 (App. Div. 2011)
             (quoting N.J. Div. of         Youth & Family Servs.
             v. P.P., 
180 N.J. 494,       505 (2004)).]

"We   have    made    it   clear   that    '[c]hildren    must     not   languish

indefinitely in foster care while a birth parent attempts to

correct      the     conditions    that    resulted      in   an    out-of-home

placement.'"        N.J. Div. of Youth & Family Servs. v. L.J.D., 
428 N.J. Super. 451, 483 (App. Div. 2012) (citation omitted).

      A parent's continuing failure to provide a safe and stable

home for a child constitutes harm that can satisfy the first and

second prongs of the best interests test.             F.M., 
211 N.J. at 449-

52; In re Guardianship of DMH, 
161 N.J. 365, 378-83 (1999); T.S.,


417 N.J. Super. at 244-45.           In those circumstances, it is not

necessary for the Division to prove that the child was born

addicted to drugs or was otherwise physically harmed.                     Bluntly

stated, a drug-addicted parent causes harm when she leaves her

child with a surrogate caretaker and lets the child live in limbo

for years.         Even a loving, well-meaning parent causes harm by

inflicting that psychological insecurity on her child. See K.H.O.,


161 N.J. at 363 ("We recognize that the continuing inability of

                                      12                                  A-0659-16T4
the mother to overcome her own addiction in order to care for her

child constitutes endangerment of the child.").             We conclude that

the   trial   court   erred   in    failing   to   focus   on   that   harm    in

evaluating the first and second prongs.

      On the other hand, we acknowledge that making the difficult

judgment as to how long to give a parent to achieve sobriety -

calculating the odds that giving her one more chance to achieve

success will yield a better or worse result for the child -                 must

be made on a case by case basis and is best left to the expertise

of Family Part judges.        See F.M., 
211 N.J. at 448-49.            However,

in making that judgment, it is important that trial courts apply

the correct legal principles.         We emphasize that in this case, we

are not remanding because we believe the trial court necessarily

reached the wrong result, but because the court did not apply the

correct legal standards.4          For example, the court's comment that

if Tara did not achieve sobriety "in a year or two," there would

be negative consequences, did not adequately take into account the

years that Carl had already spent in foster care.

      Moreover, the court appeared to unduly discount the evidence

of Tara's serious, years-long addiction to PCP.                 This case does


4
   We appreciate that in rendering his opinion, the trial judge
appeared to have been under considerable time pressure, which may
have lessened his ability to articulate his decision as fully as
he would have liked to do.

                                      13                                A-0659-16T4
not involve a parent who engages in the occasional use of marijuana

or an occasional overuse of alcohol.           This case involves a parent

who uses PCP, a highly dangerous drug, as described by Dr. Wells,

and whose use of PCP has required in-patient drug treatment.

     We also cannot conclude that the trial court gave sufficient

consideration to the fourth prong.        We have reviewed defendant's

written summation, which the trial court incorporated in its

opinion.    We find that, in significant respects, defendant's

discussion of the fourth prong is not consistent with the record.

The summation distorts Dr. Wells's opinion about Tara's inability

to safely parent her child because of her persistent use of PCP

and alcohol.   The summation also inaccurately states that "[t]here

was no testimon[y] that separating this child from the foster

parent will cause the child serious and enduring emotional or

psychological harm."      Dr. Wells opined that Carl would suffer such

harm.

     Dr.   Wells   also   opined   that   if    Tara   could   overcome   her

addiction and if she were ready to safely care for Carl, then she

could mitigate the harm that would befall Carl from separation

from the resource parent.      However, considering Tara's many past

failures to overcome her drug problems, Dr. Wells believed that

Tara was very unlikely to be able to care for the child in the

foreseeable future.       Dr. Wells also opined that if Carl were

                                   14                                A-0659-16T4
reunited with Tara and she relapsed again, the resulting separation

from Tara would cause Carl serious further harm.

     For the reasons stated above, we cannot accord our usual

deference to the trial court's factual findings and the legal

conclusions based on those findings.        On the other hand, we

appreciate that the trial court has a feel for the case that we

cannot obtain from a cold record.    See N.J. Div. of Youth & Family

Servs. v. M.M., 
189 N.J. 261, 293 (2007).   Accordingly, we decline

the Law Guardian's invitation to decide the merits exercising

original jurisdiction.   Instead, we remand this case to the trial

court for reconsideration.

     We are also aware that, while this appeal was pending, the

Division filed a second guardianship complaint.      In response to

our request for a status update, the Division advised us that the

matter was ready for trial but was stayed by the trial court

pending the outcome of this appeal.    We were also provided with a

February 2017 transcript, from which we understand that, at least

at that time, Tara had been released from jail to Integrity House

and was doing well in that program.

     The guardianship issue should be decided based on current

facts, and therefore, the second trial should proceed on remand.

However, given the child's need for permanency, the trial must be

expedited.   We order that the trial be held, and a decision

                                15                           A-0659-16T4
rendered, within sixty days of the date of this opinion.                In

deciding   whether   the   Division    previously   and   currently   has

satisfied the best interests standard, the trial court should

follow the guidance provided in this opinion.5        We do not retain

jurisdiction.

    Vacated and remanded.




5
  The trial court already decided that the Division satisfied the
third prong as of the date of the first guardianship trial - a
finding amply supported by the record - and there is no need to
relitigate or reconsider that issue.

                                  16                             A-0659-16T4