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

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                                NOT FOR PUBLICATION WITHOUT THE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-3159-17T4

NEW JERSEY DIVISION OF
CHILD PROTECTION AND
PERMANENCY,

         Plaintiff-Respondent,

v.

S.L.S.,

     Defendant-Appellant.
_______________________________

IN THE MATTER OF THE
GUARDIANSHIP OF I.X.W.,

     a Minor.
________________________________

                   Submitted October 30, 2018 – Decided November 27, 2018

                   Before Judges Hoffman, Suter and Firko.

                   On appeal from Superior Court of New Jersey,
                   Chancery Division, Family Part, Mercer County,
                   Docket No. FG-11-0041-16.
            Joseph E. Krakora, Public Defender, attorney for
            appellant (Steven E. Miklosey, Designated Counsel,
            on the brief.)

            Gurbir S. Grewal, Attorney General, attorney for
            respondent (Melissa Dutton Schaffer, Assistant
            Attorney General, of counsel; Melvina D. Fennell,
            Deputy Attorney General, on the brief.)

            Joseph E. Krakora, Public Defender, Law Guardian,
            attorney for minor (Meredith A. Pollock, Deputy
            Public Defender, of counsel; Todd S. Wilson,
            Designated Counsel, on the brief).

PER CURIAM

      Defendant S.L.S. 1 appeals from the order terminating parental rights to

her child, I.X.W., arguing that plaintiff, New Jersey Division of Child Protection

and Permanency (Division), failed to establish prongs two, three, and four of the

best interests test established by  N.J.S.A. 30:4C-15.1(a). The Law Guardian

supported termination before the trial court and, on appeal, joins the Division in

urging us to affirm. We affirm.

      S.L.S. is the biological mother of I.X.W., who was born in February 2015.

The child's father is P.W. 2 The Division became involved with this family, prior


 1 Pursuant to Rule 1:38-3(d), we use initials to protect the confidentiality of
the participants in these proceedings.
2
  P.W. voluntarily surrendered his parental rights on February 13, 2018, at the
guardianship trial.
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to I.X.W.'s birth, on September 24, 2014, when it received a referral that S.L.S.

was "actively using cocaine, marijuana, abusing alcohol, and was not taking any

medications," and that P.W. knocked out one of her teeth.            A Division

caseworker met with S.L.S. at her home and warned her that she risked losing

the baby if the illicit prenatal drug use continued. At that time, S.L.S. tested

positive for cannabis and cocaine. She advised the caseworker that she "might

have an abortion," denied the need for services, and closed the door on the

caseworker.

      Between October and December of 2014, the Division continued to

receive reports that S.L.S. was using drugs and alcohol while pregnant. On

October 12, 2014, she was hospitalized for mood disorder, polysubstance abuse,

suicidal ideations and attempts. Her landlord notified the Division on December

8, 2014, that S.L.S. nearly set the house on fire while using heroin and crack

cocaine.   The following week, she was hospitalized in a psychiatric ward

because she expressed fear that people wanted to kill her and her unborn baby.

Her drug tests were positive again, and domestic violence continued with P.W.

The Division referred S.L.S. for services, but she refused to participate.

      On December 26, 2014, S.L.S. was arrested for drug possession and a

disorderly person's offense. While being transported in a police car, she tried to


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kick out the window. The next day, she was brought to the emergency room,

high on cocaine, and reported that she drank a thirty-pack of Coors Light and

eight cans of Natural Ice beer. Two days later on December 29, 2014, she

experienced suicidal and homicidal ideations again towards the unborn child.

Since she was non-compliant in taking her medications for schizophrenia,

bipolar, and mood disorders, she was involuntarily committed to Trenton

Psychiatric Hospital, where she remained until the baby was born. At the

hospital, she was diagnosed with episodic mood disorder, personality disorder,

and drug dependency. As part of her medication regimen, she was prescribed

Haldol for psychosis.

      After the baby was born, S.L.S. had supervised visitation with him at

Trenton Psychiatric, where she "appeared to be manic," and was confrontational

with staff. A Division caseworker observed S.L.S. being rough with I.X.W.,

wrapping blankets around his face, swinging him too hard, and not supporting

his head. Following his hospital discharge in February 2015, I.X.W. was placed

in a resource home. The Division was granted custody of the baby and attempted

to facilitate supervised visitation with the mother, who was homeless, and failed

to maintain contact. During a Family Team Meeting on March 16, 2015, S.L.S.




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had a "labile affect," and "shifted rapidly between sitting quietly and agitation."

She stated that she was too overwhelmed to hold the baby.

      Another visit was held on March 26, 2015, and S.L.S. "smelled of

alcohol," and was argumentative when the caseworker questioned her about it.

S.L.S. requested that her son be placed with his Aunt Jane. A random drug

screen on S.L.S. yielded positive results for alcohol, marijuana, and cocaine on

March 30, 2015. On April 10, 2015, the trial court ordered her to be clean and

sober as a condition for continued visitation.

      After learning S.L.S. was hospitalized, the Division arranged to have her

admitted to the Salvation Army Rehabilitation Program in Delaware on April

20, 2015. Two weeks later, she was discharged after assaulting another resident.

S.L.S. lost contact with the Division, until she was incarcerated at the Mercer

County Correctional Center on May 22, 2015, and medicated for schizophrenia

and depression.

      Following her release on June 30, 2015, she visited I.X.W. with P.W. at

the Division's office. She was advised to obtain mental health substance abuse

treatment from the Greater Trenton Behavioral Health Crisis Center and to

comply with medications. She expressed interest in attending a "Mommy and

Me" program.


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      The next day, S.L.S. was hospitalized and the Division had to reschedule

her evaluation. After her release, at a follow up visit with the baby and P.W. on

July 29, 2015, caseworkers noticed she had a black eye and scrapes on her legs.

S.L.S. claimed "[P.W.] and her neighbors attacked her." She declined domestic

violence counseling. She appeared, "unstable, agitated, and under the influence

of something during the visit, and the Division staff had to take [I.X.W.] away

from her and end the visit." An appointment was made for S.L.S. at Trenton

Treatment Center on August 18, 2015, but she failed to appear.

      As a consequence of frequent incarcerations and her failure to maintain

contact with the Division, the trial court judge determined that S.L.S. had not

improved, and he suspended visitation until her mental health was stabilized.

The child was placed with his Aunt Jane, however, her cardiac condition left her

unable to care for him. In October 2015, I.X.W. was placed with his first

resource parents, A.W. and D.W.

      On October 14, 2015, P.W. informed the Division that S.L.S. was

incarcerated for violating a domestic violence restraining order he obtained

against her, and he reported she "went crazy." While incarcerated, S.L.S. told a

caseworker that she wanted to participate in parenting, substance abuse, and




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anger management programs at the prison. She was released on January 28,

2016, and a permanency hearing was held on February 1, 2016.

      The trial court approved the Division's plan of termination of parental

rights. S.L.S. was arrested during the hearing for creating a disturbance in the

courthouse and released later that day, only to be arrested immediately thereafter

for assault. After her release, S.L.S. was accepted into a long-term residential

program at Integrity House commencing on May 11, 2016. She refused to sign

release forms for the Division, thereby thwarting their efforts to obtain her

progress reports.

      On April 4, 2016, the Division filed a complaint for guardianship. The

next day, S.L.S. was released from prison. She failed to contact the Division or

return to Integrity House. She was incarcerated again on May 2, 2016, for one

month after violating the restraining order with P.W. again and vandalizing his

home. She was released on June 20, 2016, and her bonding evaluation had to

be rescheduled.

      The next contact S.L.S. had with the Division was on June 23, 2016, when

she was hospitalized. After being picked up from the hospital by a caseworker,

S.L.S. was encouraged to maintain contact and participate in services. She did

contact the Division on July 7, 2016, and was provided with intake information


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for Trenton Treatment Center (TTC) relative to substance abuse services

commencing on July 22, 2016. When a caseworker picked S.L.S. up on July 18,

2016 for her bonding evaluation, she was at the crisis center, "rolling around on

the ground with her arms raised, as security guards were trying to restrain her."

In the Division's van, S.L.S. was behaving recklessly by removing I.X.W. from

his car seat while the vehicle was in motion, and throwing the car seat towards

the front of the van, narrowly missing the caseworker. After exiting the vehicle,

S.L.S., who appeared intoxicated, "grabbed and twisted the child's arms."

      The bonding evaluation with Dr. David Brandwein had to be terminated

early because S.L.S. was "handling [I.X.W.] roughly, banged his head on the

furniture, nearly fell on him, yelled, and spanked [I.X.W.] because he was crying

while she tried to dress him." As the baby became distressed, S.L.S. "nodded

out." Dr. Brandwein had to call security, while S.L.S. tried to break a window

after the baby was removed from her. She refused to leave and was arrested.

      Dr. Brandwein opined that there was "no parental relationship" between

S.L.S. and I.X.W., and it was highly unlikely that the baby would suffer any

grief if the relationship was severed. The expert further testified that S.L.S. had

"no propensity or ability to soothe [I.X.W.] and her behavior exacerbated [his]

distress." Specifically, he stated that, "[i]n this examiner's experience, which


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includes thousands of evaluations in child welfare and/or child custody matters,

[S.L.S.] is among the most unfit parents this examiner has ever encountered.

Placing [I.X.W.] and/or any child in her care would be socially irresponsible and

bordering on criminal."

       After conducting a bonding evaluation with A.W. and D.W., Dr.

Brandwein concluded that a positive bond developed with I.X.W., and they were

committed to adopting him at that time.

       After missing another substance abuse evaluation, S.L.S. was arrested for

armed robbery on August 4, 2016, and cutting a woman in the temple with a

knife during the process. 3 The guardianship trial commenced on August 22,

2016, and both parents agreed to surrender their parental rights to A. W. and

D.W. On October 28, 2016, due to I.X.W.'s excessive crying, A.W. and D.W.

asked that he be removed from their home, and the request was granted. The

baby was placed with new resource parents, S.H. and L.H. Because the adoption

fell through, the trial court reopened the case on February 10, 2017, reinstated

P.W.'s visitation, and ordered that S.L.S.'s visits remain suspended until she

signed releases and produced positive collateral references.   That day, S.L.S.

was admitted to Integrity House for medication monitoring, substance abuse,


3
    The charge was later downgraded to attempted robbery of a cell phone.
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and mental health treatment. Her program attendance was sporadic, and she

continued to struggle with anger outbursts, irritability, and "up and down"

emotions.

       Dr. Brandwein conducted a bonding evaluation with S.H. and L.H. on

June 6, 2017, and reported that I.X.W. "laughed and played with [the new

resource parents] referring to them as 'mommy' and 'mapa.'" The expert coined

their parenting skills as "flawless," and they expressed a desire to adopt I.X.W.

Another evaluation of S.L.S. was conducted by Dr. Brandwein on July 10, 2017,

and she admitted that "[t]his substance abuse[,] combined with lasting

depression[,] is the reason [S.L.S.] stated she was homeless from the time

[I.X.W.] was born until she entered Integrity House . . . ." She also claimed that

her father physically abused her, and she could not stay sober outside of a

facility.   Her criminal history consisted of over forty arrests.      During her

interview with Dr. Brandwein, she acknowledged her "substance-related

behavior," "anxiety," "avoidant and melancholic personality patterns."          Dr.

Brandwein stated that he "does not see [S.L.S.] as a parental figure" and it is

strongly recommended that I.X.W. not have any further visits or contact with

S.L.S. as a result of her "extreme levels of personal and psychological instability

that have characterized her adult life." He added that "her past abuse and


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substance-related behavior, serious and significant mental illness, and her poor

compliance with treatment suggest[s] a rather high probability for relapse and

psychological impairment when [S.L.S] returns to outpatient care."             In

conclusion, Dr. Brandwein opined that "[S.L.S.'s] capacity for independent

parenting of her son is severely lacking" and exposes I.X.W. to "grave risk of

physical and/or psychological harm."

      On August 12, 2017, the trial court denied S.L.S. visitation because no

expert supported same. After completing treatment at Integrity House, S.L.S.

was transferred to Hendrick House until December 1, 2017. A counselor there

determined that her mental health issues vaulted her addiction problems, that

she was "defensive and antisocial, unstable, and that the program had exhausted

all its options." On January 23, 2018, she was arrested for a parole violation

and she remained incarcerated until the guardianship trial.

      A caseworker, Dr. Brandwein, and S.L.S. testified during the two-day

trial. Judge Wayne J. Forrest issued a thirty-eight page decision terminating

S.L.S.'s parental rights and awarding guardianship of I.X.W. to the Division.

The judge found Dr. Brandwein to be a credible witness, and S.L.S. to be

incredulous in asserting she could change and parent I.X.W.




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      Expert testimony established that removal from his current resource

parents would cause I.X.W. serious and enduring harm, while termination of

S.L.S.'s parental rights would cause I.X.W. no harm.

      In his written opinion, Judge Forrest reviewed the evidence presented and

stated that:

               Based on [S.L.S's] failure to obtain stable housing,
               remediate her substance abuse and mental health
               issues, correct her wayward and criminal behavior and
               have a permanent plan in place for her son's well[-]
               being, [I.X.W.'s] safety, health or development have
               been and would continue to be endangered by a
               parental relationship with [S.L.S.].

      Judge Forrest concluded that: (1) the Division had proven prongs two,

three, and four of the best interests test by clear and convincing evidence,

 N.J.S.A. 30:4C-15.1(a); and (2) termination of S.L.S.'s parental rights was in

I.X.W.'s best interest. Judge Forrest focused on S.L.S.'s extensive drug history,

frequent incarcerations, failure to complete recommended programs, lack of

stable employment, and I.X.W. being in foster care since birth as compelling

reasons to terminate her parental rights. He emphasized "[i]t would not be fair

to place a child in an environment where there most certainly will be instability

and lack of permanency, which is the environment that [I.X.W.] would be placed

in if he was returned to [S.L.S.'s] care." He further noted that she "has been


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afforded numerous opportunities to remediate the obstacles preventing her from

reunifying with her son," and she did not take advantage of programs. Instead,

she continued to abuse drugs, act violently and erratically with Division staff,

and commit crimes. The judge's analysis was correct.

      Defendant argues that she made periodic improvements, as documented

by her therapists and evaluators, to support her claim that "within a year or two

I will be able to provide all the things the resource parent[s] [are] providing for

my son, as well."     The judge addressed her periodic improvements in his

opinion, but noted:

            The only significant length of time that [S.L.S.] has
            remained sober throughout the pendency of the FN
            and FG litigation has been for eight months at
            Integrity House. Integrity House, however, is a
            controlled, residential environment and according to
            the Division's evidence and Dr. Brandwein's
            testimony, [S.L.S.] has not exhibited an extensive
            length of sobriety outside of a controlled setting.

      In N.J. Div. of Youth and Fam. Servs. v. A.R.,  405 N.J Super. 418, 437

(App. Div. 2009), this court held that: "Concern and efforts by a natural parent

after his or her child has been removed from the home, and making genuine and

successful efforts to overcome the cause of the removal is of enormous

significance." Here, the harm has not been eliminated by S.L.S. and we reject

her argument.

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      Our review of Judge Forrest's decision is limited.        We defer to his

expertise as a Family Part judge, Cesare v. Cesare,  154 N.J. 394, 413 (1998),

and we are bound by his factual findings so long as they are supported by

sufficient credible evidence. N.J. Div. of Youth and Family Servs. v. M.M.,  189 N.J. 261, 279 (2007) (citation omitted).

      S.L.S. did not proffer any evidence she poses no harm to I.X.W. Expert

testimony clearly established that she would be unable to care for I.X.W., and

that he had paramount need for a permanent home with capable parents. For the

reasons stated by Judge Forrest, we agree that termination of S.L.S.'s parental

rights is in I.X.W.'s best interest.

      "Inability to provide a stable and protective home" for children is highly

relevant to whether a parent "can cease to inflict harm" on them. N.J. Div. of

Youth and Family Servs. v. C.S.,  367 N.J. Super. 76, 117, 118 (App. Div. 2004).

Further, a key issue is whether the parent "can become fit to assume the parental

role within time to meet the child's needs." N.J. Div. of Youth and Family Servs.

v. L.J.D.,  428 N.J. Super. 451, 483 (App. Div. 2012) (internal citations omitted).

      S.L.S.'s continuing failure to provide I.X.W. with housing and her

psychological inability to parent him, harmed I.X.W. by causing him to remain

in foster care for several years. See N.J. Div. of Youth and Family Servs. v.


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R.G.,  217 N.J. 527, 556-57 (2014) (citation omitted). S.L.S.'s other arguments

do not warrant further discussion. R. 2:11-3(e)(1)(E).

      After reviewing the record, we conclude that Judge Forrest's factual

findings are fully supported by the record and, in light of those facts, his legal

conclusions are unassailable for the reasons that the judge expressed in his

thoughtful opinion.

      Affirmed.




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