DCPP VS. N.N.M., IN THE MATTER OF THE GUARDIANSHIP OF T.M. (FG-09-0115-17, HUDSON COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-4793-16T3
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
N.N.M.,
Defendant-Appellant.
_____________________________
IN THE MATTER OF THE
GUARDIANSHIP OF T.M.,
a Minor.
_____________________________
Submitted September 17, 2018 – Decided October 2, 2018
Before Judges Haas and Sumners.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Hudson County,
Docket No. FG-09-0115-17.
Joseph E. Krakora, Public Defender, attorney for
appellant (Jennifer M. Kurtz, Designated Counsel, on
the briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Jason W. Rockwell, Assistant Attorney
General, of counsel; Chanel J. Van Dyke, Deputy
Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minor (Toya Davis, Designated Counsel,
on the brief).
PER CURIAM
Defendant N.N.M. (Nina)1 appeals from a June 1, 2017 order by Judge
Anthony V. D'Elia terminating her parental rights to her then two-year-old
daughter T.M. (Tracy). 2 We reject Nina's contentions that the Division of Child
Protection and Permanency (Division) failed to meet its statutory burden under
each prong of the best interests test, N.J.S.A. 30:4C-15.1(a), by clear and
convincing evidence.
Our review of trial judges' decisions are limited. We defer to the expertise
of Family Part judges, Cesare v. Cesare, 154 N.J. 394, 413 (1998), and we are
1
We use acronyms and pseudonyms to protect the identities of the parties
involved.
2
The order also terminated the parental rights of defendant T.R., Tracy's
putative father, who repeatedly failed to attend paternity testing scheduled by
the Division and did not file an appeal.
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bound to their factual findings when supported by sufficient credible evidence.
N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (citing
In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). "[T]he
conclusions that logically flow from those findings of fact are, likewise, entitled
to deferential consideration upon appellate review." N.J. Div. of Youth &
Family Servs. v. R.L., 388 N.J. Super. 81, 89 (App. Div. 2006).
Judge D'Elia carefully reviewed the evidence presented and explained in
an oral decision rendered the same day as his order that the Division had met,
by clear and convincing evidence, all of the legal requirements for a judgment
of guardianship. The decision tracks the statutory requirements of N.J.S.A.
30:4C-15.1(a), accords with In re Guardianship of K.H.O., 161 N.J. 337 (1999),
In re Guardianship of DMH, 161 N.J. 365 (1999), and New Jersey Division of
Youth & Family Services v. F.M., 211 N.J. 420 (2012), and is supported by
substantial and credible evidence in the record. We, therefore, affirm
substantially for the reasons the judge expressed in his well-reasoned decision.
We add the following remarks as to each prong.
As to prong one, the Division must prove 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 relevant inquiry focuses on
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the cumulative effect, over time, of harms arising from the home life provided
by the parent." M.M., 189 N.J. at 289.
"Serious and lasting emotional or psychological harm to children as the
result of the action or inaction of their biological parents can constitute injury
sufficient to authorize the termination of parental rights." In re Guardianship of
K.L.F., 129 N.J. 32, 44 (1992) (citing In re Guardianship of J.C., 129 N.J. 1, 18
(1992)). As a result, "courts must consider the potential psychological damage
that may result from reunification[,] as the 'potential return of a child to a parent
may be so injurious that it would bar such an alternative.'" N.J. Div. of Youth
& Family Servs. v. L.J.D., 428 N.J. Super. 451, 480-81 (App. Div. 2012)
(quoting N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 605 (1986)).
"The absence of physical abuse or neglect is not conclusive." A.W., 103
N.J. at 605 (quoting In re Guardianship of R., 155 N.J. Super. 186, 194 (App.
Div. 1977)). "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." DMH, 161 N.J. at 379. "Courts need not wait to act
until a child is actually irreparably impaired by parental inattention or neglec t."
Id. at 383.
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Nina argues the judge's finding that Tracy's safety, health, or development
has been or will continue to be endangered by her relationship with her mother
is not supported by substantial credible evidence. She claims the judge did not
apply the statutory requirements of N.J.S.A. 30:4C-15.1(a), but instead applied
the standard for termination of parental rights applicable in private adoption
cases. She also argues there was no evidence that her drug use ever harmed
Tracy or might cause her future harm. We disagree.
The Division introduced sufficient documentary evidence and the
testimony of Nina's caseworker and its psychological/bonding expert, Dr.
Robert Kanen, to support its contention that Nina's long-standing substance
abuse history harmed Tracy. This credible evidence supports the judge's finding
that Nina harmed Tracy by prioritizing her substance abuse at the expense of
parenting.
Although Tracy did not display withdrawal at birth, her positive test for
PCP resulted in her being removed from Nina two days thereafter. In fact, Nina
admitted to using PCP during her pregnancy. This was of no surprise because
prior to Tracy's birth, Nina had an extended history with the Division pertaining
to her inability and unwillingness to address her substance abuse that had
previously led to the Division being awarded custody of her three older
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daughters,3 and eventually the termination of parental rights to the youngest of
the three.
Between Tracy's birth on August 4, 2015, and the two-day guardianship
trial in late May 2016, Nina completed a twenty-eight-day substance abuse
inpatient program at Turning Point. However, she continued to abuse substances
and not comply with the plan that could have led to her reunification with Nina.
The Division made repeated efforts to contact her, but she failed to respond and
repeatedly missed re-referrals for treatment by her certified alcohol and drug
counselor. Indeed, Nina tested positive for PCP immediately following a
compliance hearing five months before the guardianship trial, despite claiming
to have last used substances three months prior.
Thus, we agree with Judge D'Elia's finding that Nina's "inattentiveness
and inability or unwillingness to properly parent [Tracy] as a result of her
substance abuse will likely have continuing deleterious effects on [Tracy.]" In
applying the best interests standard under N.J.S.A. 30:4C-15.1(a) to evaluate the
harm caused to Tracy by Nina's substance abuse, he properly found that Nina
failed to maintain a parental relationship with Tracy and that Nina's positive
drug screens throughout her five-year involvement with the Division evinced
3
They were born January 14, 2001, January 29, 2013, and October 18, 2013.
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her unwillingness or inability to place the needs of Tracy over her own want for
substances.
As to prong two, the Division must prove that the parent is "unwilling or
unable to eliminate the harm facing the child[ren] or is unable or unwilling to
provide a safe and stable home . . . and the delay of permanent placement will
add to the harm." N.J.S.A. 30:4C-15.1(a)(2). That harm may include evidence
that separating the children from their resource parents "would cause serious and
enduring emotional or psychological harm . . . ." Ibid.
The Division can establish the second prong by proving that a "child will
suffer substantially from a lack of stability and a permanent placement[,] and
from the disruption of" a bond with the resource parents. K.H.O., 161 N.J. at
363. Because they are related, evidence supporting the first prong may also
support the second prong "as part of the comprehensive basis for determining
the best interests of the child." DMH, 161 N.J. at 379.
Nina contends the record is devoid of substantial credible evidence that
she is unable or unwilling to eliminate harm to Tracy. She maintains she is abl e
to provide a safe and stable home but needs time to complete proper inpatient
treatment. We disagree.
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Judge D'Elia found that Nina was "unable or unwilling to deal with her
issues," as evidenced by her long history of allowing her continued drug use to
take propriety over any parenting skills or responsibilities, her "fail[ure] to
maintain any kind of regular relationship with [Tracy] despite being offered
numerous opportunities to do so," and her "fail[ure] to stay in contact with the
Division." The judge found that despite losing custody of her three older
daughters due to her drug habit, Nina's "still couldn't beat the . . . habit." The
judge's findings were, therefore, well-supported by credible evidence in the
record.
We acknowledge that trying to arrest a long-standing substance abuse is
an arduous task and not in and of itself a basis to terminate parental rights. N.J.
Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 331 (App. Div.
2011) ("[a]ddiction is not easy to successfully remediate; a failure to
successfully defeat drug addiction does not automatically equate to child abuse
or neglect.") However, as the judge tellingly recognized, the record shows that
Nina did not take her drug addiction very seriously. Her drug addiction
consumed her ability to care for Tracy as well as her other daughters. There is
no reasonable indication that she has taken steps to change her behavior. Hence,
we have no concern with the judge's determination that the Division proved Nina
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is unwilling or unable to eliminate the harm facing Tracy, and that a permanent
placement was needed for her daughter's healthy development.
As to prong three, the Division is required to make "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 [will] consider[] alternatives
to termination of parental rights[.]" N.J.S.A. 30:4C-15.1(a)(3). This third
"prong of the [best interests of the child] standard contemplates efforts that focus
on reunification of the parent with the child and assistance to the parent to
correct and overcome those circumstances that necessitated the placement of the
child into foster care." K.H.O., 161 N.J. at 354.
Nina again contends the judge's decision is not supported by substantial,
credible evidence as the Division failed to refer her to the treatment programs
she needed, and did not consider Kinship Legal Guardian (KLG) alternatives
such as Tracy's grandmothers and maternal aunt before terminating her parental
rights. We disagree.
Judge D'Elia found that the Division made reasonable efforts to help Nina
achieve reunification with Tracy by correcting the unfortunate circumstances
that led the agency to take custody of Tracy. Based upon our review of the
record, the judge's finding is supported by credible, substantial evidence that the
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Division offered Nina necessary services – substance abuse counseling and
inpatient/outpatient treatment programs, psychological counseling, and
visitation with Tracy – which she failed to take advantage of.
As to avoiding the termination of parental rights by placing Tracy with
family members as a KLG, the judge correctly found the Division established
that there were no family members in a position to properly care for Tracy and
raise her in a safe and stable environment. The Division ruled out Nina's mother
and sister because they lacked the capability to care for Tracy; not because they
were not presented with an option for daycare as Nina contended. Tracy's
paternal grandmother was ruled out because two adults with parole and
probation records for drug-related convictions were listed as residing in her
household.
Finally, as to prong four, the Division must prove by sufficient credible
evidence that "[t]ermination of parental rights will not do more harm than good."
N.J.S.A. 30:4C-15.1(a)(4). The prong "serves 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 (2007).
Nina argues the Division failed to prove that the termination of her
parental rights will do more harm than good to Tracy. Citing N.J. Div. of Youth
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& Fam. Servs. v. I.S., 202 N.J. 145 (2010), she maintains the Division created
Tracy's connection with her foster parent by disregarding the family members
who were willing to care for Tracy from the outset of her removal. Again, we
disagree.
We agree with the Division's position that Nina's reliance on I.S. is
misplaced. There, unlike here, the Court found that the DYFS'4 parenting
visitation plan was inadequate and, as a result, the bonding assessment was a
foregone conclusion. I.S., 202 N.J. at 181-82. Moreover, contrary to the
defendant in I.S., Nina made no effort to maintain a relationship with Tracy
because she repeatedly failed to attend visitation sessions that were arranged by
the Division. See ibid.Relying on the Kanen's unrefuted expert testimony, Judge D'Elia found
that the severe harm by removing Tracy from her resource parent, who had
raised her since she was two days old, could neither be mitigated nor eliminated
by Nina. Hence, we see no reason to disturb the judge's prong four finding
given: Kanen's opinion; the absence of any bond between Nina and Tracy; the
lack of any factual basis for Nina's argument; and the strong bond that Tracy has
with her resource parent.
4
The predecessor agency for the Division.
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Affirmed.
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