DCPP VS. S.L.S., IN THE MATTER OF THE GUARDIANSHIP OF I.X.W. (FG-11-0041-16, MERCER COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2018 )

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NOT FOR PUBLICATION WITHOUT THE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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