DCPP VS. L.H. AND J.L.M., IN THE MATTER OF THE GUARDIANSHIP OF J.L.M., JR. (FG-08-0017-19, GLOUCESTER COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2020 )


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  •                                       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    NOT FOR PUBLICATION WITHOUT THE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-4234-18T3
    NEW JERSEY DIVISION
    OF CHILD PROTECTION
    AND PERMANENCY,
    Plaintiff-Respondent,
    v.
    L.H.,
    Defendant-Appellant,
    and
    J.L.M.,
    Defendant.
    _____________________________
    IN THE MATTER OF THE
    GUARDIANSHIP OF J.L.M., JR.,
    a Minor.
    _____________________________
    Submitted January 16, 2020 – Decided February 7, 2020
    Before Judges Alvarez and Suter.
    On appeal from the Superior Court of New Jersey,
    Chancery Division, Family Part, Gloucester County,
    Docket No. FG-08-0017-19.
    Joseph E. Krakora, Public Defender, attorney for
    appellant (Robyn A. Veasey, Deputy Public Defender,
    of counsel; Beth Anne Hahn, Designated Counsel, on
    the briefs).
    Gurbir S. Grewal, Attorney General, attorney for
    respondent (Melissa H. Raksa, Assistant Attorney
    General, of counsel; Erica L. Sharp, Deputy Attorney
    General, on the brief).
    Joseph E. Krakora, Public Defender, Law Guardian,
    attorney for minor (Linda Vele Alexander, Designated
    Counsel, on the brief).
    PER CURIAM
    L.H. (Laura)1 appeals the Judgment of Guardianship that terminated her
    parental rights under N.J.S.A. 30:4C-15.1(a). She contends the trial court erred
    because there was not clear and convincing evidence to support the court's
    findings. We reject her arguments and affirm the judgment substantially for the
    reasons expressed by Judge Mary K. White in her oral opinion.2
    1
    We use initials and pseudonyms to maintain the confidentiality of the parties
    and their child. R. 1:38-3(d)(12).
    2
    The judgment also terminated the parental rights of defendant J.L.M., who is
    the child's father. He has not appealed.
    A-4234-18T3
    2
    I.
    Laura is the mother of J.M. (Jack) who was born eight weeks prematurely
    in February 2017, testing positive for methadone. 3 The hospital contacted the
    Division of Child Protection and Permanency (the Division).                 Laura
    acknowledged she had relapsed on heroin and wanted help for her drug
    addiction. She had been prescribed pain medication after a 2012 car accident
    then turned to heroin. She was staying at a motel or with her mother, with whom
    she had a difficult relationship. She had lost her housing through Housing and
    Urban Development (HUD) and needed to appeal.
    Laura was not prepared to care for Jack. Her mother would not allow the
    Division to assess her home to see if Jack could live there. Jack's father, J.L.M.,
    had a history of domestic violence against Laura and drug use. The Division
    was awarded custody. Jack has been living with the same non-relative resource
    family since then, who have expressed a desire to adopt.
    Dr. Roger T. Barr conducted a psychological evaluation of Laura. He
    diagnosed she was suffering from "[m]ajor [d]epression, [g]eneralized [a]nxiety
    [d]isorder, and [s]ubstance [a]buse."          He recommended individual and
    3
    Laura has two older children who are in the care of their paternal grandmother
    in Georgia.
    A-4234-18T3
    3
    relationship therapy, as well as a psychiatric evaluation to assess her need for
    medication. She was to continue participation in her substance abuse program.
    Laura failed to attend over half of the Division-arranged individual
    counselling sessions and was discharged due to non-compliance.4                She
    participated in an in-home parenting program, "It Takes a Family," where she
    was advised to maintain visitation with Jack to not harm "their attachment and
    bonding." Her substance abuse evaluation found she had a severe opiate use
    disorder in remission. Laura attended outpatient treatment sporadically and did
    not complete the program. She also denied any mental health issues.
    Laura admitted to unsupervised visitation with Jack during times when
    J.L.M. exercised his parenting time. She claimed J.L.M. was abusing drugs.
    She wanted to be there to protect the child. In July 2018, Laura obtained a
    restraining order against J.L.M. because he "assaulted her and pulled a gun on
    her" while he was under the influence of heroin. After this, she relapsed and
    again began to use heroin.
    Laura was hospitalized multiple times after that. She tested positive for
    cocaine and opiates. She reported suicidal thoughts, auditory hallucinations and
    depression, and was admitted for inpatient psychiatric treatment. On her release,
    4
    She has had three referrals for individual counseling she has not attended.
    A-4234-18T3
    4
    she went to a different hospital and was discharged after a day. Laura was then
    involuntarily committed briefly, diagnosed with bipolar disorder and
    depression. She was prescribed medication, which was a "more significant and
    comprehensive medication regimen." In November 2018, Laura was found to
    be "acutely psychotic with hallucinations, delusions[,]" and diagnosed as
    suffering from schizoaffective disorder, bipolar type. The Division filed a
    complaint to terminate parental rights in October 2018.
    In January 2019, Laura began an outpatient MICA5 program, Fresh Start,
    to address her mental health and drug addiction issues. The program provided
    group therapy, medication counseling and monitoring, and symptoms
    management. She did not attend five days a week as recommended, but her drug
    tests were negative.
    Laura maintained visitation with Jack in the early months following his
    placement with the resource family. She also had therapeutic visitation. In
    September 2017, Laura's visits were increased in length and were permitted in
    her home, however, she yelled at the workers, who had safety concerns about
    her care. Visitation was therefore returned to the Division's offices. Laura's
    participation became more intermittent. She occasionally failed to appear, was
    5
    MICA is an acronym for the mentally ill, chemically addicted program.
    A-4234-18T3
    5
    late, left early, or failed to confirm visitation. By January 2019, when she was
    in the Fresh Start program, Laura visited with Jack once a week.
    Dr. Melanie A. Freedman, a clinical and forensic psychologist, testified
    for the Division at the guardianship trial about Laura's history of drug use and
    mental health problems. She diagnosed Laura with "[o]pioid [u]se [d]isorder,
    severe, in early remission," although she was not certain Laura actually had
    abstained from using drugs. She also had a "[m]ajor [d]epressive [d]isorder,
    recurrent . . . in partial remission" with the risk of future episodes, a generalized
    anxiety disorder and a schizoaffective disorder. Dr. Freedman could not confirm
    whether Laura was bipolar.
    Dr. Freedman testified Laura was not fully compliant with substance
    abuse treatment; she started to use cocaine after treatment for heroin. Laura was
    "not in full compliance" with her current programs.
    Laura's mental health was another area of parenting-related risks. Dr.
    Freedman testified Laura would require a longer term stay at a dual diagnosis
    program for a better assessment to "pinpoint" what was "going on with her
    emotionally." Dr. Freedman noted Laura was not taking seriously the effect of
    domestic violence "and engaging in treatment for that specific purpose." Laura's
    housing situation was not stable; she had no employment. Laura acknowledged
    A-4234-18T3
    6
    she needed more time to get things in order; she was not suggesting the child be
    returned to her immediately.
    Dr. Freedman testified that Laura could not provide a minimum level of
    safe parenting for the child and could not provide this in the foreseeable future.
    Her prognosis for change was "poor to extremely guarded."
    Dr. Freedman's bonding evaluation concluded Jack was strongly attached
    to the resource family and identified them as his mother and father. He likely
    would regress and be at risk of long-term emotional harm and a host of other
    effects were he removed. Laura was a "friendly stranger." She did not think
    Laura could address the harms to Jack caused by separation from his resource
    parents. Dr. Freedman supported the plan for Jack to be adopted by the resource
    family.
    Susan Flanagan, an addictions counselor at Fresh Start, testified the
    program had a mental health and an addictions component. All of Laura's drug
    screens were negative at the facility.      Flanagan testified Laura was "very
    compliant" with their program. Laura attended the program three days per week,
    although the Division wanted her to attend five days. Laura was not receiving
    trauma focused therapy at this program. However, Laura understood "the link
    between addiction and mental health." Flanagan testified that the caseworker
    A-4234-18T3
    7
    told her to prepare Laura for adoption of the child because the case "was not
    going backwards."
    Laura testified she was drug free as of October 5, 2018. Her plan was to
    move to Georgia with Jack, live with her other daughters and start a new life.
    The trial court ordered a hair follicle test. It was positive for cocaine, showing
    Laura had used cocaine within ninety days of the trial.
    The trial court entered a Judgment of Guardianship on May 14, 2019,
    terminating Laura and J.L.M's parental rights to Jack. In Judge White's oral
    opinion, she found the Division had proven each part of the four-prong test under
    N.J.S.A. 30:4C-15.1(a).
    With respect to the first prong—harm to the child—Laura was
    "functionally homeless even though she was with her mom" at the time Jack was
    placed with the Division. Jack's maternal grandmother would not allow her
    home to be assessed by the Division and her husband, Laura's stepfather,
    allegedly had been the perpetrator of domestic violence against her mother and
    had substance abuse issues.
    Laura was living with her mother during the trial. She did not have a job.
    She told the caseworker she needed more time. Family members were assessed
    but ruled out to care for Jack. The court found Laura did not have a "safe or
    A-4234-18T3
    8
    stable home." Her only plan was to move to Georgia with Jack and reunite with
    her older children, who were in the care of their paternal grandmother. The
    court-ordered hair follicle test was positive for cocaine, indicating Laura had
    used cocaine within the last ninety days. The court noted Laura "really just
    started meaningful treatment for a . . . recently diagnosed bi-polar disorder."
    Under the second prong, the court found that there was nothing that made it
    impossible for Laura to participate in the services offered by the Division in the
    first year of the child's placement. Laura denied having mental health or drug
    abuse issues. The court found any further delay in permanency for Jack "will
    simply add to the child's harm" particularly when it is not clear when Laura
    "would be ready to parent and where she would have [a] safe home and with
    who[m]."
    The trial court found the Division made "many, many efforts . . . with
    mom who was angry at the Division . . . ." The court could not find that she
    would not "have another slip before she really understands . . . [s]he's dealing
    with bi-polar disorder complicated by serious drug addictions because she's
    recently used cocaine" and expressed she did not have the mental health issues
    with which she was diagnosed. This was even though Laura had begun to "turn
    around" the first month the trial began. The court found the Division made
    A-4234-18T3
    9
    reasonable efforts even though it had not referred Laura to supplemental random
    screening. The court found Laura was not able to eliminate the harms facing the
    child.
    The trial court rejected the argument the Division should not have
    scheduled a bonding evaluation until there were additional visits between Laura
    and Jack. The child had been in placement for nearly two years; Laura had
    missed many opportunities for visitation. The court found the Division "worked
    vigorously" to increase visitation opportunities for Laura. The "Division's post
    hospitalization ability to only re[-]establish visits at one hour a week before the
    bonding evaluation" was not in violation of its obligation to make reasonable
    efforts.
    The court could not find that "termination of parental rights will not do
    more harm than good" because Jack had been out of Laura's care his entire life.
    The court found Dr. Freedman's testimony to be "persuasive," that Jack would
    suffer harm if separated from his resource parents. He would not be able to
    "trust adult connections" in the long term, and in the short term, would "suffer
    developmental setbacks."         The court found "credible and logical" Dr.
    Freedman's testimony that Laura would not be able to mitigate these harms for
    the child. The court also found the caseworker to be credible. As for the
    A-4234-18T3
    10
    addictions counselor at Fresh Start, she was "[v]ery much a patient advocate"
    and although she did not "willfully misle[a]d the [c]ourt[,]" she was "not
    accurate" in simply assuming the court already had determined to terminate
    Laura's rights. The court found Laura was not "credible" or "accurate" in her
    claim the Division did not make reasonable efforts toward reunification.
    On appeal, defendant contends the court erred by concluding the child's
    health and development has been or will continue to be endangered by his
    relationship with her. She disputes she is unable or unwilling to eliminate harms
    to the child. She contends she demonstrated her willingness to eliminate the
    harms, that her substance abuse disorder was in remission, and she was
    committed to addressing her mental health issues. Laura asserts the Division
    did not prove she was unable to provide safe and stable housing or that delay
    would cause harm to the child.        She contends the Division did not make
    reasonable efforts to provide services for her. She argues termination of her
    rights would do more harm than good for Jack.
    II.
    N.J.S.A. 30:4C-15.1(a) authorizes the Division to petition for the
    termination of parental rights in the "best interests of the child" if the following
    standards are met:
    A-4234-18T3
    11
    (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 [D]ivision 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.
    [N.J.S.A. 30:4C-15.1(a)(1) to (4).]
    A trial court's decision to terminate parental rights is subject to limited
    appellate review. N.J. Div. of Youth & Family Servs. v. G.L., 
    191 N.J. 596
    , 605
    (2007); see Cesare v. Cesare, 
    154 N.J. 394
    , 413 (1998) ("Because of the family
    courts' special . . . expertise in family matters, appellate courts should accord
    deference to family court factfinding."). The Family Part's decision to terminate
    parental rights will not be disturbed "when there is substantial credible evidence
    in the record to support the court's findings." N.J. Div. of Youth & Family Servs.
    A-4234-18T3
    12
    v. E.P., 
    196 N.J. 88
    , 104 (2008) (citing In re Guardianship of J.N.H., 
    172 N.J. 440
    , 472 (2002)).
    Laura argues the trial court anchored prong one on her finding that
    defendant "was functionally homeless." She argues poverty does not equate to
    harm to the child and contends Dr. Barr opined she was not a danger to Jack.
    In considering the first prong of the statutory test, the concern is "whether
    the parent has harmed the child or may harm the child in the foreseeable future."
    N.J. Div. of Youth & Family Servs. v. C.S., 
    367 N.J. Super. 76
    , 113 (App. Div.
    2004) (citing N.J. Div. of Youth & Family Servs. v. A.W., 
    103 N.J. 591
    , 607
    (1986)).   In assessing whether the child has been harmed by the parental
    relationship, "a parent or guardian's past conduct can be relevant and admissible
    in determining risk of harm to the child." N.J. Div. of Youth & Family Servs.
    v. I.H.C., 
    415 N.J. Super. 551
    , 573 (App. Div. 2010). The Division must
    demonstrate "that the harm is likely to continue because the parent is unable or
    unwilling to overcome or remove the harm." In re Guardianship of K.H.O., 
    161 N.J. 337
    , 348 (1999).
    Laura has long-standing substance abuse and mental health issues. She
    used cocaine within ninety days of the trial although somehow managed to have
    negative drug screening tests.     This was despite years of substance abuse
    A-4234-18T3
    13
    treatment and counselling. She began to use cocaine even though she had
    undergone drug treatment for heroin addiction. Laura's visitation with the child
    was intermittent, because of her own failure to participate. In the two years
    since Jack's birth, Laura had not secured housing nor was she employed. Her
    lack of stability and contact harmed the child. "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." In re Guardianship of
    D.M.H., 
    161 N.J. 365
    , 379 (1999) (citing 
    K.H.O., 161 N.J. at 352-54
    ). A finding
    of abuse and neglect under Title Nine was not needed for the Division to satisfy
    prong one. See N.J. Div. of Youth & Family Servs. v. A.P., 
    408 N.J. Super. 252
    , 259-60 (App. Div. 2009). The record supports the judge's finding of harm,
    based on reasons other than poverty and more than lack of housing.
    Laura argues the court erred by finding her unwilling or unable to address
    her past drug use or mental health challenges. She has been attending outpatient
    treatment and is in "early remission" according to Dr. Freedman, and has
    participated in therapy. Thus, Laura contends the court erred by finding that
    Jack would suffer harm if there were delay.
    The second prong under the statute can be met "if the parent has failed to
    provide a 'safe and stable home for the child' and a 'delay in permanent
    A-4234-18T3
    14
    placement' will further harm the child."     
    K.H.O., 161 N.J. at 352
    (quoting
    N.J.S.A. 30:4C-15.1(a)(2)). The court considers "whether the parent is fit, but
    also whether he or she can become fit within time to assume the parental role
    necessary to meet the child's needs." N.J. Div. of Youth & Family Servs. v.
    R.L., 
    388 N.J. Super. 81
    , 87 (App. Div. 2006) (citing In re Guardianship of J.C.,
    
    129 N.J. 1
    , 10 (1992)).
    Laura did not rebut Dr. Freedman's testimony that her ability to parent
    was limited and her prognosis for gaining parenting skills was guarded. Despite
    substance abuse treatment, Laura did not understand the negative consequences
    of her drug use. Her hair follicle test at the trial was positive for cocaine,
    indicating at least that she was not truly committed to treatment much less
    sobriety.   Laura has serious mental health issues and was not stable
    psychologically. Just three months before the trial, she reported having auditory
    hallucinations.
    Laura had many opportunities to cooperate with the services she had been
    provided. She had no actual plan for moving to Georgia. The caretaker of her
    other children and herself were having serious disagreements. And, if she were
    to relocate with Jack, he would be harmed by disrupting his bond with his
    A-4234-18T3
    15
    resource parents. Laura did not rebut the opinion of Dr. Freedman that she
    would be unable to ameliorate the harm to Jack caused by that disruption.
    This case is not like New Jersey Division of Youth and Family Services
    v. S.A., 
    382 N.J. Super. 525
    , 533 (App. Div. 2006) cited by Laura. This case
    was not rushed, and the judge fully considered the bond between the child and
    resource parents, and the lack of a bond with Laura. It is distinguishable from
    New Jersey Division of Youth and Family Services v. F.M., 
    375 N.J. Super. 235
    ,
    259 (App. Div. 2005), as well because this trial judge extensively addressed the
    facts regarding Laura's conduct or omissions in concluding the best interest test
    was satisfied. And, unlike New Jersey Division of Youth and Family Services
    v. R.G., 
    217 N.J. 527
    , 557 (2014), this case did not involve an incarcerated
    parent and the "unique challenges that incarceration presents."
    Laura contends the Division's efforts to assist her with reunification were
    not reasonable. She is critical of the Division's efforts to assist her with housing,
    with services and with assessing other relatives.
    The record shows, however, that Laura was offered many services by the
    Division to address her substance abuse, mental health and parenting issues but
    had not overcome the issues that required Jack's placement with a resource
    family. It also considered her relatives for placement but none was a viable
    A-4234-18T3
    16
    alternative for Jack, nor does Laura suggest there is another relative where he
    could be placed. She testified at trial about a desire to move to Georgia, but had
    no actual plan about where she would live. She did not ask for assistance with
    her housing issues; her mother would not allow the Division into her house for
    an assessment. She would not discuss issues with her caseworker because she
    distrusted her.
    Laura argues the parent-child bond was evident. She blamed J.L.M., the
    Division and her hospitalizations for disrupting visitation.
    The fourth prong requires the trial court to balance the harms suffered
    from terminating parental rights against the good that will result from
    terminating these rights. 
    K.H.O., 161 N.J. at 363
    ; 
    A.W., 103 N.J. at 610-11
    . It
    does not require a showing that "no harm" will result from the termination of
    parental rights, but involves a comparison of the child's relationship with the
    biological parent and the resource parents. 
    K.H.O., 161 N.J. at 355
    . Thus, "[t]he
    question to be addressed under [the fourth] prong is whether, after considering
    and balancing the two relationships, the child will suffer a greater harm from the
    termination of ties with her natural parents than from the permanent disruption
    of her relationship with her foster parents." 
    Ibid. A-4234-18T3 17 Dr.
    Freedman's expert testimony that the child was bonded with the
    resource parents—who are the only parents the child has known—was not
    rebutted. He would suffer harm if that bond were disrupted. There was no
    evidence that Laura was able to ameliorate this harm, although the resource
    parents would be able to ameliorate harm caused by terminating Laura's parental
    rights. Dr. Freedman opined that by terminating Laura's parental rights, the
    child would be provided with "a strong sense of stability and the greatest
    opportunity for him to develop long-term emotional health."         The record
    supports the Division's efforts to encourage visitation, but that Laura was
    inconsistent during her opportunities. The record established that the Division
    proved the fourth prong by clear and convincing evidence.
    Because we find that the trial court's findings are supported by adequate,
    substantial and credible evidence in the record, we affirm for the reasons set
    forth in Judge White's oral decision.
    Affirmed.
    A-4234-18T3
    18