DCPP VS. S.A.I. AND M.P.IN THE MATTER OF THE GUARDIANSHIP OF N.A.P.(FG-11-0044-16, MERCER COUNTY AND STATEWIDE)(RECORD IMPOUNDED) ( 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NOT FOR PUBLICATION WITHOUT THE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-1590-16T3
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
S.A.I.,
Defendant-Appellant,
and
M.P.,
Defendant.
IN THE MATTER OF THE GUARDIANSHIP
OF N.A.P.,
Minor.
Submitted October 3, 2017 – Decided October 13, 2017
Before Judges Yannotti, Carroll and Mawla.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Mercer County,
Docket No. FG-11-0044-16.
Joseph E. Krakora, Public Defender, attorney
for appellant (Louis W. Skinner, Designated
Counsel, on the briefs).
Christopher S. Porrino, Attorney General,
attorney for respondent (Melissa H. Raksa,
Assistant Attorney General, of counsel;
Melvina Fennell, Deputy Attorney General, on
the brief).
Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minor (Melissa R.
Vance, Assistant Deputy Public Defender, on
the brief).
PER CURIAM
Defendant S.A.I., the biological mother of N.A.P., born in
September 2014, appeals from the October 28, 2016 Family Part
judgment that terminated her parental rights to the child. The
judgment also terminated the parental rights of the child's
biological father, defendant M.P., who does not appeal. Defendant
contends that plaintiff New Jersey Division of Child Protection
and Permanency (Division) failed to prove all four prongs of
N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. The Law
Guardian supported termination before the trial court and, on
appeal, joins the Division in urging us to affirm. Having
considered the parties' arguments in light of the record and
applicable legal standards, we affirm.
I.
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We will not recite in detail the history of the Division's
involvement with defendant and N.A.P. Instead, we incorporate by
reference the factual findings set forth in Judge Audrey P.
Blackburn's detailed October 28, 2016 oral opinion. We summarize
the most pertinent facts to lend context to the legal analysis
that follows.
Defendant suffers from a long-standing history of substance
abuse and mental health issues. She has used heroin since 2002,
interspersed with short periods of sobriety. Although the Division
provided defendant with a wide variety of services, she has yet
to maintain long-term sobriety or achieve any of her parenting
objectives, such as obtaining employment or housing. She has also
engaged in a pattern of willful lack of contact with N.A.P. for
sustained periods of time.
N.A.P. tested positive for opiates and methadone at birth.
Consequently, he was placed in the hospital's neonatal intensive
care unit and then released to the care of defendant's mother,
M.I., who was required to supervise contact between defendant and
the child. In November 2014, defendant admitted to a heroin
relapse and tested positive for opiates and methadone. Shortly
thereafter, defendant took N.A.P. to the home of parental
relatives. In February 2015, the Division received a call
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reporting that defendant and M.P. had been using drugs every day
since Christmas 2014, while N.A.P. was in their care.
The Division sought, and was awarded, custody, care, and
supervision of N.A.P. Defendant and M.P. were offered services
related to their substance abuse, including supervised visitation
predicated upon them maintaining sobriety. N.A.P. was removed
from the home on February 25, 2015, and placed with an aunt and
uncle, with whom he continues to reside.
In March 2015, defendant entered an inpatient treatment
program in Florida. She was discharged the next month for
noncompliance. In May 2015, defendant requested assistance from
the Division in finding a sober living home. In June, she began
treatment at Catholic Charities Family Growth Program in Trenton.
Around this time, the Division approved defendant's mother, M.I.,
to supervise her visitation with N.A.P. The Division subsequently
ceased this visitation after discovering that M.I. was allowing
defendant to have overnight visits and was not supervising
defendant's contact with N.A.P., contrary to court orders. The
Division then referred defendant to Legacy Reunification Services
for supervised visits. Legacy also offered individual therapy and
parenting classes. However, defendant missed several intake
appointments at Legacy and several counseling appointments at
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Catholic Charities. As a result, she was terminated from both
programs.
In November 2015, the Division held a family team meeting
with N.A.P.'s aunt and uncle. N.A.P. had no visits with either
of his parents at this time, and their whereabouts were unknown.
At the meeting, N.A.P.'s aunt and uncle committed to caring for
him on a long-term basis. The Division's focus then moved from
pursuing care and supervision of N.A.P. to termination of parental
rights and adoption.
In March 2016, the Division classified defendant's status as
"missing." She was located the following month in the Bluestone
Recovery program in California. She had used heroin on a daily
basis for six months prior to her enrollment in Bluestone. She
also used cocaine on a weekly basis during four of those prior six
months. Defendant completed the program in California, and was
released with the expectation that she would attend outpatient
substance abuse treatment at least once a week, attend NA meetings,
maintain contact with her NA sponsor, and reside in a sober living
home. After discharge, defendant moved to Pennsylvania to live
with her sister. As of August 2016, when the guardianship trial
commenced, she had not met the expectations of the Bluestone
program.
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During her time at Bluestone, from approximately April to
August 2016, defendant had only one contact with N.A.P., when the
Division flew her to New Jersey for a psychological and bonding
evaluation. The psychological evaluation revealed defendant had
a borderline deficiency IQ score, no coping skills, unpredictable
anger, and an elevated presence of bipolar traits including
moodiness, erratic behavior, and instability. The Division's
expert psychologist testified that these traits have an impact
upon defendant's ability to parent because she cannot remain calm
under stress. During the bonding evaluation, N.A.P. cried
continuously while separated from his resource parents. When
defendant attempted to show affection toward N.A.P. to stop his
crying, he hit her in the face.
The Division's expert concluded that: N.A.P. had no
attachment to defendant; defendant would not be able to safely
parent N.A.P. in the near future; and defendant required intense
therapy and substance abuse treatment. In contrast, the resource
parents were meeting N.A.P.'s developmental needs; he shared a
strong attachment with them; and they were his psychological
parents. The expert opined that delay in permanency and removing
N.A.P. from their home would be detrimental to his psychological
functioning.
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Judge Blackburn found the testimony of the Division's expert
and caseworkers at the guardianship trial credible, and she adopted
their testimony. In contrast, the judge gave "little weight" to
defendant's expert psychologist. The judge explained that the
defense expert relied on inaccurate information from defendant
about her period of sobriety, and did not conduct a bonding
evaluation before recommending that services continue for
defendant's future reunification with N.A.P.
Based on these findings, Judge Blackburn concluded the
Division proved by clear and convincing evidence the four prongs
of the best interests test, codified in N.J.S.A. 30:4C-15.1(a),
and defendant's parental rights to N.A.P. should therefore be
terminated. This appeal followed.
II.
The scope of our review on an appeal from an order terminating
parental rights is limited. N.J. Div. of Youth & Family Servs.
v. G.L., 191 N.J. 596, 605 (2007) (citing In re Guardianship of
J.N.H., 172 N.J. 440, 472 (2002)). We will uphold a trial judge's
factfindings if they are "supported by adequate, substantial, and
credible evidence." N.J. Div. of Youth & Family Servs. v. R.G.,
217 N.J. 527, 552 (2014) (citing N.J. Div. of Youth & Family Servs.
v. E.P., 196 N.J. 88, 104 (2008)). No deference is given to the
court's "interpretation of the law," which is reviewed de novo.
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D.W. v. R.W., 212 N.J. 232, 245-46 (2012) (citing N.J. Div. of
Youth & Family Servs. v. I.S., 202 N.J. 145, 183 (2010); Balsamides
v. Protameen Chems., 160 N.J. 352, 372 (1999)).
We "accord deference to factfindings of the family court
because it has the superior ability to gauge the credibility of
the witnesses who testify before it and because it possesses
special expertise in matters related to the family." N.J. Div.
of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2014) (citing
Cesare v. Cesare, 154 N.J. 394, 413 (1998)). "Only when the trial
court's conclusions are so 'clearly mistaken' or 'wide of the
mark' should an appellate court intervene and make its own findings
to ensure that there is not a denial of justice." E.P., supra,
196 N.J. at 104 (quoting G.L., supra, 191 N.J. at 605). We also
accord deference to the judge's credibility determinations "based
upon his or her opportunity to see and hear the witnesses." N.J.
Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88
(App. Div. 2006) (citing Cesare, supra, 154 N.J. 394 at 411-13),
certif. denied, 190 N.J. 257 (2007).
When terminating parental rights, the court focuses on the
"best interests of the child standard" and may grant a petition
when the four prongs set forth in N.J.S.A. 30:4C-15.1(a) are
established by clear and convincing evidence. In re Guardianship
of K.H.O., 161 N.J. 337, 347-48 (1999). "The four criteria
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enumerated in the best interests standard are not discrete and
separate; they relate to and overlap with one another to provide
a comprehensive standard that identifies a child's best
interests." Id. at 348.
Defendant contends there was insufficient evidence supporting
the court's findings on each of the four prongs of the best
interests standard. After reviewing defendant's arguments in
light of the record and applicable legal principles, we are
convinced that there is substantial credible evidence supporting
the court's findings of fact and determination that the Division
established by clear and convincing evidence under N.J.S.A. 30:4C-
15.1(a) that it was in N.A.P.'s best interest to terminate
defendant's parental rights. We add the following comments.
A. Prong One
The first prong of the best interests of the child standard
requires the Division to establish that "[t]he child's safety,
health, or development has been or will continue to be endangered
by the parental relationship." N.J.S.A. 30:4C-15.1(a)(1). "[T]he
Division must prove harm that 'threatens the child's health and
will likely have continuing deleterious effects on the child.'"
N.J. Div. of Youth & Family Servs. v. A.L., 213 N.J. 1, 25 (2013)
(quoting K.H.O., supra, 161 N.J. at 352).
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Defendant argues that although N.A.P. tested positive for
opiates and methadone at birth, there is no evidence he suffered
any physical, cognitive, or developmental harm attributable to her
drug use. Defendant further contends she can parent the child
with assistance, and her inability to obtain stable housing was
due to poverty alone.
We are not persuaded by defendant's arguments. It is well
settled that the Division need not demonstrate actual harm in
order to satisfy prong one. N.J. Div. of Youth & Family Servs.
v. A.G., 344 N.J. Super. 418, 440 (App. Div. 2001), certif. denied,
171 N.J. 44 (2002). Rather, the focus under the first prong is
not on any "single or isolated harm," but rather on "the effect
of harms arising from the parent-child relationship over time on
the child's health and development." K.H.O., supra, 161 N.J. at
348 (citing N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J.
591, 604-10 (1986)). The harm may be established by "a delay in
establishing a stable and permanent home." In re Guardianship of
D.M.H., 161 N.J. 365, 383 (1999).
Furthermore, "[a] parent's withdrawal of . . . solicitude,
nurture, and care for an extended period of time is in itself a
harm that endangers the health and development of the child." Id.
at 379 (citing K.H.O., supra, 161 N.J. at 352-54). Additionally,
a parent's "persistent failure to perform any parenting functions
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and to provide . . . support for [the child] . . . constitutes a
parental harm to that child arising out of the parental
relationship [that is] cognizable under N.J.S.A. 30:4C-15.1(a)(1)
and (2)." D.M.H., supra, 161 N.J. at 380-81 (citing K.H.O. supra,
161 N.J. at 352-54).
Here, the record establishes that defendant's relationship
with N.A.P. caused the child harm. N.A.P. was born with drugs in
his system. More importantly, defendant relapsed thereafter, and
used drugs daily while caring for her infant child. The Division
removed N.A.P. some five months later because defendant could not
provide him with a safe and stable home. As of the time of the
guardianship trial, defendant had yet to maintain consistent
sobriety or achieve any parenting goals, such as securing
employment or housing. Defendant also failed to consistently
visit the child, including a lengthy period from August 2015 to
July 2016, thereby causing N.A.P. additional harm. Accordingly,
the court correctly found that the Division established harm under
the first prong of the best interests standard.
B. Prong Two
Prong two requires the Division to prove that the parent is
unable or unwilling to eliminate the harm that led to the child's
removal, and that a delay in permanent placement will cause further
harm. N.J.S.A. 30:4C-15.1(a)(2). "The second prong, in many
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ways, addresses considerations touched on in prong one." F.M.,
supra, 211 N.J. at 451. The focus is on parental unfitness.
K.H.O., supra, 161 N.J. at 352; D.M.H., supra, 161 N.J. at 378-
79. In considering this prong, the court should determine whether
it is reasonably foreseeable that the parent can cease to inflict
harm upon the child. A.W., supra, 103 N.J. at 607. The second
prong may be satisfied
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,
with the resultant neglect and lack of nurture
for the child.
[K.H.O., supra, 161 N.J. at 353.]
"Prong two may also be satisfied if 'the child will suffer
substantially from a lack of . . . a permanent placement and from
the disruption of [the] bond with foster parents.'" F.M., supra,
211 N.J. at 451 (quoting K.H.O., supra, 161 N.J. at 363).
Defendant argues that the Division failed to show that she
is unwilling or unable to eliminate the harm to N.A.P. She
concedes she did not establish a bond with N.A.P., but asserts
that her focus on addressing her substance abuse issues provides
a reasonable explanation for not doing so.
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The evidence, however, supports the court's finding that
defendant was unable and unwilling to eliminate the risk of harm
to N.A.P. As we have noted, defendant is unable to provide N.A.P.
with a safe and stable home, either now or in the foreseeable
future. Even after completing the Bluestone program in California,
she failed to enroll in after-care treatment or demonstrate a
continued commitment to maintaining long-term sobriety.
Additionally, based on the testimony of the Division's expert
psychologist, the court properly determined that a delay in
permanency would cause N.A.P. further harm.
C. Prong Three
The third prong of the best interests of the child standard
requires the Division to establish that it made reasonable efforts
to help the parent correct the circumstances that led to the
child's removal from the parent's care, and "considered
alternatives to termination of parental rights." N.J.S.A. 30:4C-
15.1(a)(3). "The diligence of [the Division's] efforts on behalf
of a parent is not measured by their success. . . . These efforts
must be assessed against the standard of adequacy in light of all
the circumstances of a given case." D.M.H., supra, 161 N.J. at
393.
We are not persuaded by defendant's argument that the Division
failed to make reasonable efforts to bring about family
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reunification. She asserts that reunification was recommended if
she received adequate housing, financial support, and engaged in
treatment. She argues, unconvincingly, that the Division did not
offer her these services.
"Reasonable efforts" means "attempts by an agency authorized
by the [D]ivision to assist the parents in remedying the
circumstances and conditions that led to the placement of the
child and in reinforcing the family structure, including, but not
limited to:" developing a plan for reunification; providing agreed
upon services; informing the parent of the child's progress; and
"facilitating appropriate visitation." N.J.S.A. 30:4C-15.1(c).
"Whether particular services are necessary in order to comply with
the [reasonable] efforts requirement must [] be decided with
reference to the circumstances of the individual case before the
court . . . ." D.M.H., supra, 161 N.J. at 390. The Division's
efforts need not be successful to be reasonable. F.M., supra, 211
N.J. at 452; D.M.H., supra, 161 N.J. at 393.
The record reflects that defendant received supervised
visitation, which she routinely either failed to attend or comply
with. The Division also offered her a host of services, including
evaluations, inpatient referrals, treatment, and therapy.
Defendant chose to pursue substance abuse services in Florida and
California, instead of utilizing the services the Division could
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have provided her in New Jersey while also exercising visitation
with N.A.P. We are therefore satisfied the court correctly
determined that the Division established by clear and convincing
evidence the third prong of the best interests standard. N.J.S.A.
30:4C-15.1(a)(3).
D. Prong Four
The fourth prong of the best interests of the child standard
requires the Division to show that termination of defendant's
"parental rights will not do more harm than good." N.J.S.A. 30:4C-
15.1(a)(4). Termination of parental rights poses a risk to
children due to the severing of the relationship with their natural
parents, but it is based "on the paramount need the children have
for permanent and defined parent-child relationships." K.H.O.,
supra, 161 N.J. at 355 (quoting In re Guardianship of J.C., 129
N.J. 1, 26 (1992)).
Thus, "the fourth prong of the best interests standard [does
not] require a showing that no harm will befall the child as a
result of the severing of biological ties." Ibid. The court must
consider and balance whether "the child will suffer a greater harm
from the termination of ties with [his or] her natural parents
than from the permanent disruption of [his or] her relationship
with [his or] her foster parents." Ibid.
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Here, there is sufficient credible evidence in the record
supporting Judge Blackburn's finding that the Division established
prong four of the best interests standard. Defendant contends the
judge erroneously focused on N.A.P.'s relationship with the foster
parents, and mistakenly found that termination of defendant's
parental rights was necessary for N.A.P. to achieve permanency.
We reject these arguments because the court found the Division's
expert, who conducted the only bonding evaluation, to be a credible
witness. The expert testified that N.A.P. had no bond with
defendant but had a strong bond with his resource parents. The
expert concluded that N.A.P. would not be harmed if defendant's
parental rights were terminated, but would experience harm if
removed from his resource parents. This clear and convincing
evidence supported the court's finding that termination of
defendant's parental rights will not do more harm than good.
Affirmed.
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