NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. D.M.H

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                                NOT FOR PUBLICATION WITHOUT THE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-4062-18T2

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

          Plaintiff-Respondent,

v.

D.M.H.,

     Defendant-Appellant.
__________________________

IN THE MATTER OF THE
GUARDIANSHIP OF D.M.G.,
a minor.
__________________________

                   Argued December 9, 2020 – Decided February 1, 2021

                   Before Judges Ostrer, Accurso and Enright.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Family Part, Mercer County,
                   Docket No. FG-11-0057-15.

                   T. Gary Mitchell, Deputy Public Defender, argued the
                   cause for appellant (Joseph E. Krakora, Public
            Defender, attorney; T. Gary Mitchell, of counsel and on
            the briefs).

            Salima E. Burke, Deputy Attorney General, argued the
            cause for respondent (Gurbir S. Grewal, Attorney
            General, attorney; Melissa H. Raksa, Assistant
            Attorney General, of counsel; Salima E. Burke, on the
            brief).

            David Valentin, Assistant Deputy Public Defender,
            argued the cause for minor D.M.G. (Joseph E. Krakora,
            Public Defender, Law Guardian, attorney; Meredith
            Alexis Pollock, Deputy Public Defender, of counsel;
            David Valentin, on the brief).

PER CURIAM

      Defendant D.M.H. (Dana 1) appeals from the Family Part's May 2, 2019

judgment terminating her parental rights to her daughter D.M.G. (Daisy), born

November 27, 2010. Dana challenges the court's findings on all four prongs of

the best interests standard.  N.J.S.A. 30:4C-15.1(a). The Law Guardian for the

child joins the Division of Child Protection and Permanency (Division) in

opposing the appeal. Having reviewed the record in light of Dana's arguments,

we conclude that the trial court correctly applied the governing legal principles,

and sufficient credible evidence supports its finding that the Division satisfied

the best interests standard. Therefore, we affirm.


1
  In accord with Rule 1:38-3 and the for the reader's convenience, we use initials
and pseudonyms for the parties.
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                                        I.

      This case followed an atypical path: Dana entered an identified surrender

of her parental rights; when the identified resource parent's adoption fell through

years later, Dana decided to assert her parental rights while the Division sought

termination.

      Daisy's initial placement occurred in March 2013 after Dana reported she

was homeless and jobless; Dana suffered from behavioral health disorders; and

Daisy was exposed to domestic violence between Dana and Dana's then

boyfriend. In the two-and-a-half years that followed, Dana still lacked stable

housing and employment; she was incarcerated for several months; and, resisted

offered services to address her untreated mental illness. She also rarely visited

her daughter; she saw her just five times in the year before the surrender.

      In early 2014, while in the care of her third non-relative placement, Daisy

was diagnosed with post-traumatic stress disorder and attention-deficit disorder

and exhibited other problematic behaviors.

      In August 2015, faced with an approaching guardianship trial, Dana

surrendered her parental rights provided that Daisy's then-resource parent, M.M.

(Marcy), adopt her. Daisy had been living with Marcy since April. It was

Daisy's fifth placement. When Dana surrendered her rights, she acknowledged


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to the court that she suffered from mental illness that she needed to address;

Marcy was a loving foster parent; and Marcy's adoption of Daisy would serve

Daisy's best interests. The following year, the court terminated Daisy's father's

parental rights after a trial, and we affirmed the trial court's judgment, N.J. Div.

of Child Prot. & Permanency v. J.E.G., No. A-2968-15 (App. Div. Dec. 9, 2016),

freeing Daisy for adoption. 2

      But, Daisy's adoption by Marcy was not to be. In the summer of 2016, a

boy sexually assaulted Daisy while the two were in daycare. The boy, who had

also been placed in Marcy's home, was removed and Daisy remained and

received counseling.     Notwithstanding that incident, Daisy evidently was

strongly bonded to Marcy, and identified her as her mom. She had progressed

behaviorally and was mainstreamed at school. However, in November 2017,

Daisy was removed from Marcy's home because Marcy allegedly endangered

the welfare of another child in her care.       Following Daisy's removal from

Marcy's home, and then an unsuccessful placement in another home, Daisy

experienced a months-long behavioral health crisis that included placement in



2
  In contrast to her position in Daisy's case, Dana contested termination of her
parental rights to a son, born April 10, 2015, which was granted after a trial in
June 2017. N.J. Div. of Child Prot. & Permanency v. D.M.H., No. FG-11-0009-
17 (Ch. Div. June 30, 2017). Dana evidently did not appeal that judgment.
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multiple therapeutic treatment homes. Marcy was eliminated as a potential

adoptive parent.

      In March 2018, the Division notified Dana, then living in Colorado, that

her parental rights were reinstated, because of the failed placement with Marcy.3

At that point, Dana said she wanted to visit Daisy, with the goal of regaining

custody of the daughter she had not seen in over two-and-a-half years. The

Division opposed reunification and proposed a plan to terminate her parental

rights. The Division contended that Dana had not, in the intervening period,

successfully addressed her mental illness or instability, and she remained unable

to successfully parent Daisy, especially given Daisy's special needs.

      Back in 2016, an evaluation in Colorado concluded that Dana needed

long-term psychiatric treatment, but her compliance with treatment was

episodic. In the months leading up to the guardianship trial in early 2019, Dana

was unable to visit her daughter.     Daisy's therapist believed that it would

interfere with her recovery. Although the court permitted defendant to conduct

an expert evaluation on that point, none was performed. Also, in January 2019,

a Colorado assessment under the Interstate Compact for Placement of Children


3
   If the identified person cannot adopt the child, the "identified surrender"
becomes "void" and the surrendering parent's rights are "reinstated." N.J. Div.
of Youth & Fam. Servs. v. D.M.B.,  375 N.J. Super. 141, 145 (App. Div. 2005).
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(ICPC) found that Dana was not a suitable placement for Daisy because of a

pending criminal prosecution. She was charged with felony menacing with a

real or simulated weapon, assault, and harassment. By the time of trial, Dana

was living in a one-bedroom subsidized apartment, obtained through a program

for the disabled, which did not permit children.

      The Division presented its case through the testimony of two

psychological experts, Meryl Udell, Psy.D., who evaluated Dana and Daisy in

mid- and late-2018, and David Brandwein, Psy.D., who evaluated Daisy in April

2017; Steve Cohen, a licensed social worker, and Daisy's therapist at the

children's psychiatric community home where Daisy had been residing since

July 2018; the Division adoption worker assigned to the case; and her

supervisor, who addressed prospects for adoption. The Law Guardian presented

no witnesses. Dana testified on her own behalf but presented no other witnesses.

      We shall not review the trial testimony in depth. Suffice it to say that the

two psychologists and the therapist agreed that Daisy was psychologically

fragile and suffered from multiple broken attachments. She had special needs

and required parenting attentive to those needs. Cohen testified that if Daisy

continued to progress, her next steps would be to transfer in a few months to a

non-adoptive treatment home that offered therapeutic services, and then, after


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four to six months, to an adoptive home. He recommended against contact

between Dana and Daisy, agreeing that introducing Daisy to a relationship that

"may not be secure" would be harmful.

      Dr. Udell opined that Dana did not appreciate Daisy's needs and was

unable to meet them due to her own housing and employment instability, and

her persistent psychological issues that she had not addressed adequately. Dr.

Udell's diagnosis included bipolar disorder, attention deficit disorder, and an

unspecified personality disorder. However, she noted that when Dana sought

treatment in Colorado, she described more extensive symptoms, including those

related to post-traumatic stress disorder.

      Dr. Udell stated that Daisy would suffer harm if removed from her

program and reunited with her mother, especially in Colorado. Dr. Brandwein

also expressed concern about relocating Daisy to Colorado, based on what he

knew of her before the traumatic removal from Marcy's home. He also stated

that Daisy's success in therapy would be negatively affected if a caregiver

minimized her needs.

      Dr. Udell did not perform a bonding evaluation, because Daisy's therapist

believed contact with Dana would be harmful, and Daisy did not indicate "that

she knew who her mother was or that she missed her." Dr. Udell supported the


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plan of select-home adoption, opining that termination would not cause Daisy

more harm than good.

      Dana expressed confidence that she could address Daisy's needs if

gradually reunited with her. Based on the similarity of their diagnoses, Dana

said she would understand what Daisy was experiencing. She said she would

secure the mental health treatment and therapy Daisy needed. Notably, she

articulated a greater understanding of Daisy's needs than she expressed in her

evaluation with Dr. Udell. She testified that she had achieved housing stability

and would be able to secure a larger apartment if she regained custody of Daisy.

Her income consisted of Social Security payments of $771 a month, but she said

she recently landed a job. However, she had not yet started, and she provided

no documentary proof of the employment.         She said she was engaged in

treatment for her own mental illness. She added that the criminal charges that

had been pending against her were dismissed, although she did not present an

order of dismissal.

      The court credited the Division's witnesses, but found Dana was not

credible, because she answered questions erratically and some of her answers

were uncorroborated by other evidence.




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      After reviewing in detail the documentary evidence and testimony, the

court found that the Division established, by clear and convincing evidence,

each of the four prongs of the best interests of the child test, set forth in N.J.S.A.

30:4C-15.1(a):

             (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 [or her] 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.

      The court found prong one was met by proof that Dana had denied Daisy

nurturing and caring for an extended period of time, with the court noting the

infrequency of Dana's visitation.       The court also found that the parental

relationship endangered and would continue to endanger Daisy's safety, health


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or development because of Dana's "failure to maintain appropriate and stable

housing, and resolve her mental health and substance abuse issues."          The

reference to substance abuse was based on Dana's frequent marijuana use.

      With respect to count two, the court found that Dana was unable or

unwilling to eliminate the harm Daisy faced, or to provide her a safe and stable

home. The court noted that in the six years since Daisy's initial placement, Dana

remained non-compliant with treatment, was unable to maintain stable housing,

and barely attended visitation when given the opportunity.             Delaying

permanency would cause Daisy additional harm.

      The court was also firmly convinced that the Division made reasonable

efforts required by prong three to provide Dana services to remediate the

circumstances that led to Daisy's placement outside the home. The court noted

the Division's efforts to provide supervised visitation, numerous substance abuse

and psychological evaluations, parenting classes, and transportation assistance.

Dana declined a Division worker's offer to help secure removal of a welfare

program sanction.    The court also noted the Division's efforts to explore

placements with relatives, who were ruled out because they were unqualified, or

unwilling to participate. After the adoption fell through, the Division twice

sought ICPC studies in Colorado. Both times, approval of placement was not


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                                      10
secured, first because Dana was homeless; and then because she faced criminal

charges.

      Finally, the court found that termination would not do more harm than

good. Based on Dana's unaddressed mental health and substance abuse issues,

and her "instability and inconsistency," the court concluded there was "no

realistic likelihood" that Dana could "safely and appropriately care for her child

now or in the foreseeable future." Daisy did not view Dana as her mother. Daisy

had not seen Dana in four years. The court endorsed Dr. Udell's view that Daisy

would suffer harm if she left her current residential program and reengaged with

Dana. But, Daisy would suffer no significant harm if her relationship with Dana

were terminated. The court also credited a Division witness's testimony that an

adoptive home would become available when Daisy completed treatment.

      A year after the court's judgment, the Division notified the court, under R.

2:6-11(f), that Daisy had been in the same treatment home since May 2019.

Contrary to Cohen's testimony that a treatment home would be non-adoptive,

the Division stated that "more recently, her treatment home parent has indicated

a desire to adopt her." At oral argument, the Law Guardian asserted that Daisy

eagerly wished adoption.




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      In her appeal, Dana challenges the court's finding on each of the four

prongs of the best interests test.

                                        II.

      We exercise limited review of the trial court's decision.              In re

Guardianship of J.N.H.,  172 N.J. 440, 472 (2002). We defer to the trial court's

fact-finding because of its "special expertise" in family matters and its "superior

ability to gauge the credibility of the witnesses who testify before it." N.J. Div.

of Youth & Family Servs. v. F.M.,  211 N.J. 420, 448 (2012). Absent legal error,

which we review de novo, Manalapan Realty, L.P. v. Twp. Comm. of

Manalapan,  140 N.J. 366 (1995), our role is to examine the record and determine

if it contains "substantial and credible evidence to support the family court's

decision," F.M.,  211 N.J. at 448. Put another way, we may disturb the trial

court's findings only if "they are so wide of the mark that our intervention is

necessary to correct an injustice." Id. at 448 (internal quotation marks and

citations omitted). If there is adequate support for the court's judgment, we may

not "second-guess" it, even if we would have reached a different conclusion. Id.

at 448-49.

      At the outset, defendant argues that the trial court's findings are not

entitled to the usual deference because the court relied on a voluminous


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documentary record, and on witnesses who also relied on records of incident s

about which they had no personal knowledge. We are unpersuaded. This is not

the "rare occasion[]" when we may withhold deference to the trial court because

"no hearing t[ook] place, [and] no evidence [was] admitted." N.J. Div. of Youth

& Family Servs. v. G.M.,  198 N.J. 382, 396 (2009).

      Contrary to defendant's argument, this case did "turn upon contested

issues of witness credibility." N.J. Div. of Child Prot. & Permanency v. N.B.,

 452 N.J. Super. 513, 521 (App. Div. 2017). For one, Dana testified at length

about what she would do in the future, if given the opportunity to reunite with

her daughter, including adhering to her own mental health treatment, assuring

that Daisy received treatment, and maintaining housing stability. Statements

about future behavior raise a quintessential credibility question. We are obliged

to defer to the trial judge's determination that Dana was not credible.

      We also reject defendant's argument that the court did not apply the "clear

and convincing" standard of proof, N.J. Div. of Youth & Family Servs. v. A.W.,

 103 N.J. 591, 612 (1986), and did not resolve "all doubts . . . against termination

of parental rights," N.J. Div. of Youth & Family Servs. v. E.P.,  196 N.J. 88, 102-

03 (2008); A.W.,  103 N.J. at 608. The court correctly articulated the standard,




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and applied it to the facts in this case, notwithstanding Dana's disagreement with

the result.

      We turn next to defendant's challenge to the trial court's best interests

analysis. We find no legal support for defendant's argument that "the evidence

relevant under prong one should have been limited to the time after parental

rights were reinstated for [Dana] in May 2018," and that "what occurs before a

surrender cannot be deemed harm." To the contrary, the Court in E.P.,  196 N.J.

at 104-05, considered events before and after a parent's failed identified

surrender in finding the Division satisfied the first two prongs. A parent's "past

conduct can be relevant . . . in determining risk of harm to the child," N.J. Div.

of Youth & Fam. Servs. v. I.H.C.,  415 N.J. Super. 551, 573 (App. Div. 2010),

and the trial court did not err in considering it here. Furthermore, the court did

not rely on Dana's unselfish surrender of her rights in 2015 as proof of harm; the

court relied on the facts that preceded it.

      The record amply supports the court's finding that Dana endangered

Daisy's health or development by "withdraw[ing] . . . that solicitude, nurture,

and care for an extended period of time [which] is in itself a harm" under prong

one, see In re Guardianship of D.M.H.,  161 N.J. 365, 379 (1999), and by failing

to adequately address her own mental illness, see F.M.,  211 N.J. at 450-51


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(stating that untreated mental illness that threatens harm to a child may

disqualify a parent from raising the child). After Daisy's placement in 2013,

Dana's visits with her daughter were few and far between. We recognize that

the two-and-a-half-year-long pre-surrender period included several months

when Dana was incarcerated. We also recognize that for a brief period, the trial

court had suspended visitation to coerce Dana to submit to a required

psychological evaluation that she repeatedly avoided. Nonetheless, the parental

relationship was harmed by Dana's absence from her daughter's life.

       The court also credited Dr. Udell's testimony that Dana had not obtained

the level of treatment needed to address her mental health issues. The record

demonstrated that, when her mental illness was untreated or inadequately

treated, she lacked the capability to consistently and appropriately fulfill

parenting responsibilities. "Courts need not wait to act until a child is actually

irreparably impaired by parental inattention or neglect." D.M.H.,  161 N.J. at
 383.

       The court also properly considered the potential harm to Daisy if she were

returned to Dana. See A.W.,  103 N.J. at 605 (stating "[t]he potential return of a

child to a parent may be so injurious that it would bar such an alternative"). The

court concluded, with sufficient support in the record, that Dana lacked the


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necessary understanding of Daisy's needs. And, based on her own instability

and persistent mental health issues, Dana lacked the capability to meet them into

the future.

      We do not minimize the significant harm that Daisy experienced while in

placement, including the sexual assault and the cascade of psychological

conditions that followed her removal from Marcy's home. But that harm does

not mitigate or excuse Dana's harm to Daisy, which the Division established

under prong one. It is inappropriate "to consider as a factor mitigating or

excusing the showing of injury to the children that . . . their placement had not

been successful . . . [or] there had been difficulties with the new foster parent."

See A.W.,  103 N.J. at 614.

      Turning to prong two, there was sufficient evidence in the record to

support the court's conclusion that Dana was unable or unwilling to eliminate

the harm facing Daisy, or to provide a safe and stable home for her; and delay

in a permanent placement would add to the harm. The court's decision did not

turn on Dana's "needing government assistance," as she argued. It turned on the

trial court's determination, based in part on its assessment of Dana's credibility,

that Dana had not yet achieved the stability in her own life — by obtaining and

keeping appropriate housing, and managing her mental illness — that was a


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prerequisite to her providing what her daughter needed. Dr. Udell's opinion

buttressed the court's conclusion that Dana was unable or unwilling to meet her

daughter's needs.   Prong two requires a judge to peer into the future and

"'determine whether it is reasonably foreseeable that the parents can cease to

inflict harm upon the child[] entrusted to their care.'" A.W.,  103 N.J. at 607. In

Dana's case, the court concluded it was not. There was sufficient credible

evidence in the record to support the court's conclusion.

      Dana also contends the court placed undue weight on her legal use of

marijuana in Colorado. The issue is not the legality of marijuana use. It is

whether Dana's conceded daily use of marijuana would affect her ability to

attend to her responsibilities as a parent. We recognize that the Division bears

the burden to demonstrate that drug use poses a risk of harm. N.J. Div. of Youth

& Fam. Servs. v. V.T.,  423 N.J. Super. 320, 331-32 (App. Div. 2011). However,

Dana never complied with the court's order to submit to a substance abuse

evaluation and comply with its recommendations. In any event, there was

sufficient support of the court's prong two finding, without reference to Dana's

marijuana use.

      Regarding prong three, the court appropriately relied on the services

offered before Dana's identified surrender, for the same reasons it was


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appropriate to rely on the harm that preceded the surrender.         The court's

conclusion that those services met prong three was supported by sufficient

credible evidence.

      We reject Dana's argument that the trial court's prong three finding should

be set aside because the Division failed to allow visitation after the failed

placement. In making reasonable efforts, the Division is required to facilitate

"appropriate visitation."  N.J.S.A. 30:4C-15.1(c)(4) (emphasis added).        The

Division may restrict visitation when it would be "psychologically harmful,"

N.J.A.C. 3A:15-1.15(a)(1), a decision that may be based on a "mental health

therapist's recommendations," N.J.A.C. 3A:15-1.15(a)(1)(iii). The trial court

reasonably relied on the advice of Daisy's therapist that visitation would be

harmful, in other words, inappropriate.4 The court granted Dana's counsel the

opportunity to obtain an independent evaluation regarding visitation, to

challenge reliance on the therapist's opinion, but no independent evaluation was

provided to the court.

      On the other hand, as the Division concedes, it failed to promptly inform

Dana of the failed adoption. But, that is not "fatal," since Dana participated in


4
   Dana argues that the therapist was deprived of essential information about
Daisy's mistreatment in prior placements, but Dana does not demonstrate how
that would have changed the therapist's opinion.
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the case for many months after she received formal notice her rights were

reinstated. See N.J. Div. of Child Prot. & Permanency v. P.O.,  456 N.J. Super.
 399, 409 (App. Div. 2018) (noting that lack of notice of a failed identified

surrender was "not fatal to the determination" to terminate parental rights,

because the "[d]efendants' rights were restored and they were parties to a full

trial on the merits"). We also recognize that, despite the efforts of the Division

caseworker, Dana's lack of a full understanding of Daisy's mental health needs

could be attributed to the Division's failure to convey that information. See

 N.J.S.A. 30:4C-15.1(c)(3) (defining "reasonable efforts" to include "informing

the parent at appropriate intervals of the child's progress, development, and

health"). However, the reasonableness of the Division's efforts must be viewed

in their totality. See N.J. Div. of Youth & Fam. Servs. v. M.M.,  189 N.J. 261,

286 (2007) (noting that "[a]lthough parents always can argue that [the Division]

should have done more, the third prong" can be satisfied when considering "the

services provided and the various efforts that were expended"). Notably, Dana

testified that she received all the services she needed.

      Finally, we discern no error in the court's finding that termination of

Dana's rights would not do more harm than good. Dana's argument focuses on

Daisy's uncertain prospects, at the time of trial, for select home adoption. Dana


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contended that severing Daisy's ties with her mother would certainly do more

harm than good if Daisy never achieved the permanency of an adoptive home

and became instead a "legal orphan." Dana also highlights the harm that Daisy

previously experienced in Division custody, particularly the sexual assault that

another child committed against her while in day care. Contending that Dr.

Udell was uninformed about Daisy's mistreatment, Dana also challenges the

court's reliance on Dr. Udell's opinion that termination would not do more harm

than good.

      We are unpersuaded. It is for the fact-finder, in assessing an expert's

testimony, to determine the impact of the expert's failure to consider relevant

information. We are obliged to defer to the trial court's decision to credit Dr.

Udell's opinion. She testified that Dana needed significantly more treatment

than she was receiving; she lacked the capacity to meet Daisy's needs; or to

mitigate the harm she would suffer by disrupting her therapy in New Jersey.

      Also, the relationship between Dana and Daisy was essentially non-

existent. Dana described it as "inchoate." But, evidently, it was not even that.

Daisy's therapist stated that Daisy avoided any discussion of her natural mother

and used "mom" to describe subsequent caretakers. Although "[a] court should

hesitate to terminate parental rights" absent "a permanent plan that will satisfy


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the child's needs," N.J. Div. of Youth & Family Servs. v. B.G.S.,  291 N.J. Super.
 582, 593 (App. Div. 1996), sometimes, termination "must precede the

permanency plan," A.W.,  103 N.J. at 611.

      Particularly given the harm Daisy suffered as a result of prior failed pre-

adoptive placement, Dana questioned the likelihood that the Division woul d

ultimately succeed in finding Daisy a pre-adoptive home. However, in this case,

we have been informed that the Division's goal of locating an adoptive home has

been realized. That fact provides additional support for the court's conclusion

that termination of Dana's rights would not cause more harm than good.

      Affirmed.




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