BERKELY RISK SOLUTIONS, LLC VS. INDUSTRIAL Â RE-INTERNATIONAL, INC.(L-0163-15, UNION COUNTY AND STATEWIDE) ( 2017 )

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NOT FOR PUBLICATION WITHOUT THE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-3266-15T1
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
T.N.,
Defendant-Appellant,
and
C.L. (deceased),
Defendant.
___________________________________
IN THE MATTER OF THE
GUARDIANSHIP OF L.L., a minor.
___________________________________
Submitted March 14, 2017 – Decided April 18, 2017
Before Judges Fisher and Leone.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Ocean County,
Docket No. FG-15-36-15.
Joseph E. Krakora, Public Defender, attorney
for appellant (Gilbert G. Miller, Designated
Counsel, on the briefs).
Christopher S. Porrino, Attorney General,
attorney for respondent (Melissa H. Raksa,
Assistant Attorney General, of counsel; Angela
Melchionna, Deputy Attorney General, on the
brief).
Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minor (Nancy P. Fratz,
Assistant Deputy Public Defender, on the
brief).
PER CURIAM
Defendant T.N. (Mother) appeals the March 24, 2016 order
terminating her parental rights.
I.
We summarize the factual findings made by Judge Madelin F.
Einbinder in her March 24, 2016 oral opinion.
Mother has three children from two different fathers. L.L.,
her youngest child and the sole subject of this termination
proceeding, was born in May 2009. In May 2014, L.L.'s father,
C.L., passed away of a heroin overdose. Mother's oldest child,
B.N., died due to a heroin overdose in June 2014. Her other child,
J.N., currently resides with the parents of his father in South
Carolina under kinship legal guardianship.
The Division of Child Protection and Permanency (Division)
first became involved with Mother's family in November 2004.1 It
1 At that time, the Division was known as the Division of Youth
and Family Services. It was renamed effective June 29, 2102. L.
2012, c. 16.
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is undisputed that during the following years Mother drank heavily,
became dependent on oxycodone, was declared disabled due to her
bipolar disorder, took prescription opiates without a
prescription, and repeatedly refused to engage in services offered
by the Division. Ultimately, in December 2013, the trial court
granted the Division custody of L.L. due to Mother's continuing
substance abuse.
During 2014, Mother continued to test positive for cocaine,
amphetamines, marijuana, and alcohol, and repeatedly refused to
engage in or comply with substance abuse and mental health
services. In December 2014, the Division filed a Complaint for
Guardianship.
At the termination trial in early 2016, the Division presented
the testimony of two caseworkers and its psychological expert, Dr.
David Brandwein. Based on that testimony, Judge Einbinder found
that Mother's parental rights should be terminated, and that L.L.'s
adoption by his paternal grandparents was in his best interest.
Mother appeals.
II.
We must hew to our deferential standard of review. "Appellate
review of a trial court's decision to terminate parental rights
is limited[.]" In re Guardianship of J.N.H., 172 N.J. 440, 472
(2002). Our task is to determine whether the decision "is
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supported by '"substantial and credible evidence" [i]n the
record.'" N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J.
420, 448 (2012) (citation omitted). "We ordinarily defer to the
factual findings of the trial court because it has the opportunity
to make first-hand credibility judgments about the witnesses who
appear on the stand; it has a 'feel of the case' that can never
be realized by a review of the cold record." N.J. Div. of Youth
& Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (citation
omitted). "Particular deference is afforded to family court fact-
finding because of the family courts' special jurisdiction and
expertise in family matters." N.J. Div. of Child Prot. &
Permanency v. N.C.M., 438 N.J. Super. 356, 367 (App. Div. 2014)
(citing Cesare v. Cesare, 154 N.J. 394, 413 (1998)), certif.
denied, 222 N.J. 18 (2015). Thus, "[w]e will not overturn a family
court's factfindings unless they are so '"wide of the mark"' that
our intervention is necessary to correct an injustice." F.M.,
supra, 211 N.J. at 448 (citation omitted).
III.
"A parent's right to enjoy a relationship with his or her
child is constitutionally protected." In re Guardianship of
K.H.O., 161 N.J. 337, 346 (1999). However, this protection "is
tempered by the State's parens patriae responsibility to protect
the welfare of children." Id. at 347; see N.J.S.A. 30:4C-1(a).
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The Division must prove by clear and convincing evidence
termination of parental rights is in the best interests of the
child. N.J.S.A. 30:4C-15(c); F.M., supra, 211 N.J. at 447. Under
N.J.S.A. 30:4C-15.1(a), the Division must show:
(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.
The trial court properly found the Division proved each prong
by clear and convincing evidence. We affirm substantially for the
reasons stated by Judge Einbinder in her thorough oral opinion.
We add the following.
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IV.
The first two prongs, N.J.S.A. 30:4C-15.1(a)(1) and (2), are
related "components of the harm requirement." In re Guardianship
of DMH, 161 N.J. 365, 379 (1999). Because "evidence that supports
one informs and may support the other as part of the comprehensive
basis for determining the best interests of the child," ibid., we
address both prongs together. E.P., supra, 196 N.J. at 104.
Mother's history of frequent substance abuse and unaddressed
mental health issues predated L.L.'s birth, and continued through
his early years until shortly before trial. There was substantial
credible evidence showing Mother's substance abuse and mental
illness caused L.L. significant harm. For example, when L.L. was
removed from Mother's custody, he was "much younger
developmentally and psychologically than he really was," was non-
verbal, and was still wearing diapers even though he was four-and-
a-half years old.
Our Supreme Court has ruled that harm is shown "by indications
of parental dereliction and irresponsibility, such as the parent's
continued or recurrent drug abuse, the inability to provide a
stable and protective home, the withholding of parental attention
and care, and the diversion of family resources in order to support
a drug habit." K.H.O., supra, 161 N.J. at 353. Mother's chronic
substance abuse threatened obvious harm to the young L.L. N.J.
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Div. of Child Prot. & Permanency v. B.O., 438 N.J. Super. 373, 385
(App. Div. 2014). Unabated substance abuse "causes continuing
harm by depriving . . . children of necessary stability and
permanency." N.J. Div. of Youth & Family Servs. v. T.S., 417 N.J.
Super. 228, 245 (App. Div. 2010), certif. denied, 205 N.J. 519(2011). "[P]arents dabbling with addictive substances must accept
the mandate to eliminate all substance abuse." Ibid.In addition, Mother suffered from "unspecified bipolar and
related disorder, other specified personality disorder with
narcissistic, histrionic and personality features and unspecified
anxiety disorder." Her personality disorders caused her to "feel
like [she's] superior and . . . the center of attention" while
simultaneous causing her to have a complete lack of independence
and a desire to "depend on stronger people to help [her] and . . .
[primarily] worry about meeting [her] own needs." The trial court
properly found these conditions "place[d] a child at risk of harm
if untreated."
Indeed, despite substantial disability benefits, Mother was
unable to maintain stable housing, or to pay for utilities or food
for her children. "[L]ack of appropriate housing . . . pose[s] a
risk to . . . children." N.J. Div. of Youth & Family Servs. v.
L.M., 430 N.J. Super. 428, 444 (App. Div. 2013). "[H]arm and risk
of harm [can be] proven [where] the parents' drug use resulted in
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their failure to provide a stable home, with appropriate nurture
and care of the young child[.]" N.J. Div. of Youth & Family Servs.
v. H.R., 431 N.J. Super. 212, 222 (App. Div. 2013). Here, there
was ample evidence Mother's substance abuse and mental health
problems impaired her ability to parent, retarded L.L's
development, and required his removal from her care.
The same evidence showed Mother was "unwilling or unable to
eliminate the harm facing the child [and was] unable or unwilling
to provide a safe and stable home for the child." N.J.S.A. 30:4C-
15.1(a)(2); see N.J. Div. of Youth & Family Servs. v. L.J.D., 428
N.J. Super. 451, 479 (App. Div. 2012). Dr. Brandwein cited the
two-year period of Mother's "pervasive," "enduring," indeed
"monumental non-compliance" with the substance abuse and mental
health services offered by the Division. Mother was negatively
discharged from multiple outpatient substance abuse treatment
centers, and Dr. Brandwein testified she largely failed to benefit
from the services she did attend. His testimony was unrefuted.
We agree "[t]here is ample evidentiary basis for crediting the
expert's conclusion[s]." K.H.O., supra, 161 N.J. at 356.
Mother presented no testimony or evidence at trial, but makes
several arguments on appeal. Mother notes the trial court
mentioned the Division received twenty-one referrals between 2011
and 2013. She points out the Division did not substantiate her.
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We agree unfounded allegations may not be used to support the
requisite findings. See N.J. Div. of Youth & Family Servs. v.
P.W.R., 205 N.J. 17, 36 & n.15 (2011). However, the court placed
little or no weight on the referrals. Further, there was ample
well-founded evidence of Mother's substance abuse and mental
disorders during this period and thereafter.
Mother argues that her positive drug tests were for
prescription drugs. However, she repeatedly failed to provide
prescriptions, and admitted she took opiates without valid
prescriptions on numerous occasions. Moreover, Mother admitted
marijuana and alcohol use, and tested positive for cocaine and
marijuana in August and September 2014. She argues those positive
results were caused by the deaths of her former husband and her
eldest son, but those occurred months earlier.
Mother cites her participation in substance abuse programs
and the lack of positive test results, between September 2014 and
April 2015. However, during this period her attendance at this
outpatient program was poor, she relapsed when she tested positive
twice for alcohol in April 2015, and she was discharged for non-
compliance.
Mother stresses she attended an intensive five-days-a-week
combined substance abuse counseling and mental health treatment
program beginning in August 2015, and successfully completed the
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program on January 29, 2016, approximately one week before the
termination trial began. She also obtained housing and a car.
Nonetheless, Dr. Brandwein evaluated Mother after this treatment
and found she still was not capable of independently parenting
L.L., and still posed "a rather high risk of child neglect." He
found the prognosis that Mother would become an appropriate parent
even after receiving services was "extremely poor." Nonetheless,
Mother was "in the infancy of her stability" and "to put [L.L.]
back into instability would be risking [L.L.'s] psychological and
physical well-being." He testified that before reunification
could be considered, Mother would need to demonstrate sobriety,
stable housing, consistent compliance with medication, and more
positive visitation with the child, for at least a year.
Mother argues that she could meet Dr. Brandwein's
requirements if given another year, and that "a delay of permanency
of one year could hardly be harmful to [L.L.]." However, New
Jersey's courts and statutes recognize "the delay of permanent
placement will add to the harm." N.J.S.A. 30:4C-15.1(a)(2). "[T]o
the extent that adults . . . delay the permanent decision, they
lose sight of the child's concept of time." N.J. Div. of Youth &
Family Servs. v. A.W., 103 N.J. 591, 608 (1986). Courts have
"'long emphasized New Jersey's strong public policy in favor of
permanency.'" N.J. Div. of Youth & Family Servs. v. I.S., 202
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N.J. 145, 197 (2010) (citation omitted). New Jersey has shifted
its "emphasis 'from protracted efforts for reunification with a
birth parent to an expeditious, permanent placement to promote the
child's well-being.'" Id. at 198 (citation omitted). "The child
should not 'languish indefinitely in foster care while a birth
parent attempts to correct the conditions that resulted in an out-
of-home placement.'" H.R., supra, 431 N.J. Super. at 227.
"Keeping the child in limbo, hoping for some long term unification
plan, would be a misapplication of the law." N.J. Div. of Youth
& Family Servs. v. A.G., 344 N.J. Super. 418, 438 (App. Div. 2001),
certif. denied, 171 N.J. 44 (2002).
L.L. has waited over two years while Mother refused to engage
in substance abuse and mental health services. The trial court
credited Dr. Brandwein's testimony and properly held that while
Mother made recent efforts, she would not attain stability soon
enough to justify denying L.L. permanency. While Mother
commendably took positive steps at the eleventh hour, we cannot
fault the trial court's findings that her efforts were too little
and too late and that she cannot provide sufficient assurance of
the stability L.L. needs in the reasonably foreseeable future.
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V.
Mother does not challenge the trial court's finding that the
Division made reasonable efforts to provide Mother with services
and met the third prong of N.J.S.A. 30:4C-15.1(a).
VI.
Prong four acts "as a fail-safe against termination even
where the remaining standards have been met." N.J. Div. of Youth
& Family Servs. v. G.L., 191 N.J. 596, 609 (App. Div. 2007). The
trial court must discern "'whether, after considering and
balancing the two relationships, the child will suffer a greater
harm from the termination of ties with h[is] natural parent[] than
from permanent disruption of h[is] relationship with h[is] foster
parents.'" N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J.
145, 181 (2010) (citation omitted). "[W]here it is shown that the
bond with foster parents is strong and, in comparison, the bond
with the natural parent is not as strong, that evidence will
satisfy the requirement of N.J.S.A. 30:4C-15.1(a)(4)[.]" K.H.O.,
supra, 161 N.J. at 363.
Dr. Brandwein conducted bonding evaluations. He found that
L.L. has a secure and stable bond with his paternal grandparents
and that they have the capacity to sustain the relationship
throughout L.L.'s adolescence and adulthood. The trial court
found L.L. was "thriving in the care of his paternal grandparents."
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Conversely, Dr. Brandwein found Mother lacked that capability.
L.L. recognized Mother as his biological mother, but their bond
was not secure, and he demonstrated "negative reactions" to their
visits.
Dr. Brandwein testified if the bond between L.L. and his
paternal grandparents was severed, the results would be
"devastating," causing "a negative grief reaction [which] would
have a long-term effect on [L.L.]'s life," which Mother could not
ameliorate. By contrast, Dr. Brandwein opined that separation
from Mother would only result in a "short-term grief reaction"
which the grandparents could mitigate.
Crediting Dr. Brandwein's testimony, the trial court held
"termination of [Mother's] parental rights to enable [L.L.] to be
adopted by his paternal grandparents does far more good than harm."
The court's finding was supported by substantial credible
evidence.
Mother's remaining arguments lack sufficient merit to warrant
discussion. R. 2:11-3(e)(1)(E).
Affirmed.
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