DCPP VS. N.W. AND S.M., IN THE MATTER OF THE GUARDIANSHIP OF L.W.-M. AND M.W. (FG-02-0036-18, BERGEN 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NOT FOR PUBLICATION WITHOUT THE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-0853-18T2
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
N.W.,
Defendant-Appellant,
and
S.M.,
Defendant.
_____________________________
IN THE MATTER OF THE
GUARDIANSHIP OF L.W.-M.
and M.W.,
Minors.
_____________________________
Submitted May 29, 2019 – Decided June 25, 2019
Before Judges Suter and Geiger.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FG-02-0036-18.
Joseph E. Krakora, Public Defender, attorney for
appellant (Robyn A. Veasey, Deputy Public Defender,
of counsel; Christine Olexa Saginor, Designated
Counsel, on the briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Jason Wade Rockwell, Assistant Attorney
General, of counsel; Natasha C. Fitzsimmons, Deputy
Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minors (Toya Davis, Designated Counsel,
on the brief).
PER CURIAM
Defendant N.W. appeals from the judgment of guardianship terminating
her parental rights to her children, L.W.-M. (Liam) and M.W. (Maddie). 1 The
children's Law Guardian and the Division of Child Protection and Permanency
(the Division) urge us to affirm. Our review of the record shows the factual
findings of the trial judge are supported by substantial credible evidence,
including his evaluation of witness credibility, and based on those findings, his
legal conclusions are correct. We therefore affirm the judgment of guardianship.
1
We use initials and pseudonyms to protect the privacy of the parents and the
children.
A-0853-18T2
2
I.
N.W. is the mother of two children. Liam was born in May 2016 and
Maddie was born in December 2017. Defendant S.M. is the biological father
of both children. N.W. and S.M. have never been married.
The Division first became involved with N.W. and S.M. upon receiving
a referral raising concerns for Liam, then two months old. Police responded to
N.W.'s residence due to an alleged domestic dispute between N.W. and S.M.
The responding officers observed a hypodermic syringe sticking out of N.W.'s
pocket. N.W. admitted to using heroin and cocaine. N.W. was arrested and
charged with illegal possession of the syringe for use with a controlled
dangerous substance (CDS).
The following month, police responded to another domestic dispute
between N.W. and S.M. Officers observed an old contusion under N.W.'s eye.
Both N.W. and S.M. told the officers the contusion was caused by a kitchen
cabinet door and not by physical violence. Two days later, the Division
implemented a safety protection plan (SPP) that prohibited S.M. from entering
Liam's residence. Several days later, N.W. tested positive for oxycodone and
oxymorphone.
A-0853-18T2
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The following week, N.W. applied for a domestic violence temporary
restraining order (TRO) against S.M. based on alleged harassment. S.M.
informed police that N.W. attempted to run him over with her car. When
police investigated, S.M. showed officers drug paraphernalia he claimed
belonged to N.W. S.M. agreed to leave the residence. Two days later, police
responded to another domestic dispute between N.W. and S.M., during which
N.W. sustained a contusion on her forehead. S.M. showed the police a video
of N.W. under the influence of narcotics. S.M. was arrested for assault and
N.W. obtained a TRO against S.M. Based on this conduct, the Division
substantiated allegations of abuse and neglect.
The following day, N.W. was referred by the Division to New Hope
Foundation (New Hope) to attend a medically monitored inpatient substance
abuse treatment program based on her Severe Opioid Use Disorder and
Moderate Anxiolytic Use Disorder. Upon admission to New Hope, N.W.
tested positive for oxycodone, buprenorphine, alprazolam, norbuprenorphine,
and oxymorphone.
The Division implemented a revised SPP that required N.W. to be
supervised during parenting time with Liam. The Division was awarded care
and supervision of Liam. The trial court ordered N.W. to submit to random
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urine screens and participate in all treatment programs recommended by the
Division.
N.W. was granted a final restraining order (FRO) against S.M. as a result
of the August 16, 2016 domestic violence incident. Two days later, N.W. was
evaluated by a psychiatrist and admitted to using "roxies" two weeks earlier. 2
The psychiatrist recommended N.W. undergo detoxification. The following
week, N.W. tested positive for benzodiazepines, oxycodone, oxazepam, and
oxymorphone.
On September 15, 2016, the trial court ordered the care, custody, and
supervision of Liam was to remain with the Division, and placed Liam with his
maternal grandmother due to the ongoing risk to his life, safety, or health. The
court found Liam's continued residence with N.W. would be contrary to his
welfare because N.W. required inpatient substance abuse treatment. The court
allowed N.W. parenting time supervised by the maternal grandmother or the
Division. The court also ordered N.W. to undergo a psychological evaluation
and substance abuse treatment, and to submit to random hair, drug, and alcohol
screenings.
2
"Roxy" is slang for Roxicodone, an instant release form of oxycodone.
drugs.com/answers/what-is-a-roxy-306907.html (last visited June 14, 2019).
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On October 12, 2016, N.W. was arrested and charged with prowling to
obtain CDS and failure to turn over CDS to police. She was placed on a
conditional discharge for one year and fined. She failed to appear at a case
management review conference the next day, despite receiving notice. The
Division stated its intention to proceed with a Title 30 proceeding.
On October 31, 2016, N.W. was admitted into an inpatient treatment
program at New Hope. N.W. did not attend a compliance review hearing four
days later. The trial court determined the care, custody, and supervision of
Liam would remain with the Division due to N.W.'s severe substance abuse
issues and inpatient treatment. N.W. was successfully discharged from New
Hope on November 14, 2016, and began residing with her grandmother in
Brick. Three days later, Division workers met with N.W. and explained the
services she needed to attend to reunite with Liam.
From November 18, 2016 to January 27, 2017, the Division could not
locate N.W. At a February 2, 2017 compliance review hearing, N.W. was
ordered to meet with a domestic violence liaison and undergo an update
evaluation. The same day, N.W. was referred to the New Focus Program to
attend an intensive outpatient substance abuse program based on her severe
opioid and sedative use disorders, which were in early remission.
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The Division substantiated that, only six days later, N.W. continued to
abuse opiates and watched Liam unsupervised. Investigation also revealed the
maternal grandmother's paramour resided in the home contrary to court orders.
This led to the Division removing Liam from the maternal grandmother's home
and placing him in an unrelated resource home. Several days later, Liam was
placed in the care of his paternal grandmother. The next day, N.W. was
arrested for unpaid parking fines and spent two days in jail.
On February 24, 2017, N.W. was terminated from her domestic violence
counseling services for non-compliance and failure to attend. N.W. was also
terminated from the New Focus substance abuse treatment program for non -
compliance and failure to attend. N.W. subsequently requested dismissal of
the FRO entered against S.M. The Division learned N.W. was residing with
S.M. at her uncle's residence.
Despite court orders requiring her to submit urine samples, N.W. refused
to do so on May 3 and May 10, 2017. At a subsequent compliance review
hearing, the court reminded N.W. that refusal to submit to random drug
screens would result in the court drawing a negative inference. Despite that
warning, N.W. refused to submit urine samples eight more times from May t o
July 2017. She also failed to attend a scheduled substance abuse evaluation.
A-0853-18T2
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In addition, N.W. did not visit Liam between May 26 and June 22, 2017,
despite weekly scheduled visits.
On June 13, 2017, N.W. was terminated from the Center for Evaluation
and Counseling program for failing to attend appointments and non-
compliance. She also failed to attend a compliance review hearing on August
10, 2017. The trial court drew negative inferences against N.W. for her
repeated failure to provide drug screen samples. The court also issued a
permanency order accepting the Division's plan for termination of parental
rights.
On September 7, 2017, N.W. overdosed on heroin but was revived by
S.M. Thirteen days later, the Division filed a complaint for guardianship of
Liam, citing N.W.'s ongoing substance abuse, history of unstable housing, lack
of employment, and failure to remediate the issues leading to Liam's removal.
Despite receiving notice, N.W. failed to attend the October 11, 2017 court
hearing. The trial court kept all previously ordered requirements in place. On
November 8, 2017, N.W. again failed to appear for court despite receiving
notice.
On December 5, 2017, the Division learned N.W. was thirty-eight weeks
pregnant and tested positive for opiates and benzodiazepines at a hospital. She
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admitted to hospital staff that she used fifteen to twenty bags of heroin two
days prior and illegally obtained Suboxone the day before. N.W. also
disclosed she snorted six Xanax and Percocet pills per day, and used heroin
continuously during at least the last six months of her pregnancy. At the time,
N.W. was homeless.
After attempting to leave the hospital to smoke a cigarette and becoming
combative with staff the following day, N.W. was placed on one-to-one watch.
Later that evening, she gave birth to Maddie, who was immediately admitted to
the Neonatal Intensive Care Unit for respiratory distress and narcotic
withdrawal. N.W. was scheduled to undergo detoxification prior to her release
from the hospital.
Two days after her birth, the Division learned Maddie developed
uncontrolled withdrawal symptoms and also tested positive for
benzodiazepines. Maddie displayed irritability, tremors, difficulty feeding,
and weight loss. Three days later, N.W. threatened to overdose. Maddie was
ultimately discharged from the hospital eight days after her birth. The
Division then filed an amended guardianship complaint to include Maddie.
On December 24, 2017, N.W. began an inpatient program at Sunrise
Substance Abuse Treatment Center (Sunrise House). N.W. completed the
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Sunrise House thirty-day inpatient program on January 23, 2018. The program
included attending individual, group, and family sessions. She was referred to
Spring House, a halfway house facility for women, for follow-up care. She
entered Spring House the same day.
After N.W. did not appear at the January 10 or February 7, 2018
hearings, the court reiterated its prior orders that N.W. attend scheduled
psychological and bonding evaluations. An April 2018 Spring House progress
report noted N.W. continued to participate in individual counseling sessions
and therapeutic groups. She also began attending a twelve-week parenting
class. The report also noted behavioral infractions, lack of emotional
regulation, and anger management issues.
On April 27, 2018, N.W. underwent a psychological evaluation by Frank
Dyer, Ph.D. In his written report, Dr. Dyer noted N.W. was prescribed
Remeron, Trileptal, and BuSpar. N.W. also reported taking Neurontin for
anxiety and restless leg syndrome. Dr. Dyer stated the most significant factor
affecting N.W.'s parenting capacity was her "severe dependence on drugs,
primarily opiate medications and heroin." He also noted her use "at various
times" of "codeine, Xanax, cocaine, and mushrooms, as well as LSD and
MDMA."
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N.W. related her extremely dysfunctional relationship with S.M. to their
joint drug use and her dependence on him to procure drugs for her. She
expressed a preference to being homeless with S.M. over living with her aunt
and uncle, who provided her with a place to live. Dr. Dyer reported N.W.
"was unable to state when she would be sufficiently prepared to undertake the
task of parenting her children independently." She admitted her "extremely
severe problem with substances." She also acknowledged a moderate problem
with alcohol.
Dr. Dyer opined N.W. "has a significant antisocial aspect to her
personality, and her interpersonal relationships are highly conflicted and
abrasive. She displays a moderate tendency towards self-harm." Testing
indicated "she suffers from posttraumatic symptoms and depression." She also
"suffers from anxiety and presents with a degree of emotional instability." Dr.
Dyer's overall diagnostic impression was N.W. suffered from: Opiate
Dependence, in early remission; Depressive Disorder, not otherwise specified
(NOS); Anxiety Disorder, NOS; rule out PTSD; and Personality Disorder,
NOS with Antisocial and Dependent Features. Dr. Dyer stated N.W. had "just
begun to address her drug abuse in a serious manner" and "it does not appear
that she has yet done any real work on achieving a resolution of clinical
A-0853-18T2
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problems." He noted N.W. "appears to depend heavily on the children's
paternal grandmother as a substitute caretaker for them."
Dr. Dyer opined:
Based on the case history and on the severity of
[N.W.'s] drug addiction, emotional problems, and
extremely dysfunctional relationship problems . . . she
is quite far from having achieved the level of stability
that would inspire confidence in her capacity to care
for her two children without significant risk of harm.
Additionally placing the children in [N.W.'s] care
could conceivably increase the likelihood of her
becoming involved [with S.M.] once again, which
appears to be a significant trigger for her drug abuse,
given their codependent history together.
Dr. Dyer further opined:
I do assess [N.W.'s] prognosis for eventually
overcoming her addiction as fair; however, this would
necessarily entail continuation of her individual
psychotherapy, appropriate medication management,
involvement in Narcotics Anonymous, and developing
the capacity to avoid legal problems and to avoid
inappropriate romantic partners. In regard to
permanency for [Maddie and Liam], I recommend that
DCPP not consider [N.W.] as a viable candidate for
custody of them.
On June 6, 2018, Spring House reported N.W. was making noticeable
progress in her treatment and had not committed any recent behavioral
infractions. She continued to participate in group sessions and was actively
addressing her therapeutic issues.
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The two-day guardianship trial took place in June 2018. Division
worker Kimberly Norman and Dr. Dyer testified on behalf of the Division.
N.W. testified on her own behalf. The trial court accepted S.M.'s voluntary
surrender of his parental rights to Liam and Maddie.
Norman testified N.W. was still residing at Spring House, where she had
been for the past five months, and had not been given a discharge date.
Norman stated N.W. had no concrete plan for reunification including where
she intended to live, employment prospects, or where the children would
attend school.
Norman stated the children were doing very well under the care of their
paternal grandmother, who was prepared to adopt them. All of their needs
were met and Liam appeared very happy. The paternal grandmother frequently
took the children to visit N.W.; she believed that would continue if N.W.
remained sober. Norman opined it was in the children's best interest to
terminate N.W.'s parental rights to achieve permanency for the children
through adoption by their paternal grandmother, who provides a safe and
stable environment for them.
The trial court found Norman's testimony credible, reasonable, and
consistent with the exhibits. It noted Norman testified in a calm, direct, and
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candid manner. She answered questions without hesitation and maintained eye
contact with the examiners. Her testimony was based on her personal
knowledge and her thorough review of the Division's files.
The parties stipulated to Dr. Dyer's qualifications as an expert in the
field of psychology. Consistent with his report, Dr. Dyer voiced concerns
about N.W.'s risk of relapse after discharge from Spring House. He opined
there was a strong risk N.W. would start using drugs again given her extensive
substance abuse problems and prior failed attempts at remaining sober when
not in a controlled environment. He noted the stresses of securing housing,
maintaining employment, and raising a toddler and an infant. He opined N.W.
would have a high risk of relapse without the structure, supervision, and group
support of the halfway house.
Dr. Dyer's remaining testimony was also consistent with his report. He
noted N.W.'s personality disorder affected her ability to abide by certain
restrictions imposed on her. He opined N.W. was "quite far away from making
an actual start" of addressing her psychological issues.
Dr. Dyer also testified regarding the "tremendous risk" for future
"adverse psychological consequences" in "[c]hildren who are exposed to
domestic violence." He described the differing serious impacts suffered by
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boys and girls exposed to domestic violence. Although Dr. Dyer noted Liam's
positive connection to N.W., he distinguished "attachment" from mere positive
connection, describing attachment as occurring where the child can confidently
rely on their caregiver for protection, nurturance, and structure. He concluded
neither child is securely attached to N.W.
In stark contrast, Dr. Dyer testified both children were securely attached
to their paternal grandmother. He described Liam as focused, happy, and
enthusiastic when under the care of his paternal grandmother. He opined that
under the circumstances, including placement with the paternal grandmother
for approximately one year, and N.W.'s limited contact with the children
during that period, "it is very highly likely that the paternal grandmother . . . is
[Liam's] central parental love object and attachment figure." He testified the re
is some possibility that if Liam were removed from his paternal grandmother
he would suffer negative consequences in the form of low self-esteem, lack of
basic trust, and the incapacity to attach to a new caregiver. If Liam were
transferred to N.W.'s custody and she became overwhelmed, involved in a
dysfunctional romantic relationship, or unavailable due to depression or
substance abuse, disruption of the attachment to his parental grandmother
would have serious long-term effects. He further opined Maddie would
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likewise suffer if removed after gaining the ability to attach to the parental
grandmother. Dr. Dyer believed it was in the best interests of the children to
remain under the care of their parental grandmother.
On cross-examination, Dr. Dyer acknowledged N.W. was receiving
services at Spring House and reportedly doing well in that environment. He
noted, however, Spring House is a very structured program that closely
monitors residents. Dr. Dyer expressed reservations about N.W.'s ability to
remain sober after leaving the halfway house and living in an environment
where she would be free to meet with people of her choosing and burdened by
employment and child care responsibilities. His concerns took into account
N.W.'s long and consistent drug use and relapse after inpatient treatment.
Dr. Dyer also considered the fact N.W. had only been sober since
January 2018 and had not previously remained sober for any sustained period
except while in a controlled environment at an inpatient facility or halfway
house. He noted N.W. had used drugs consistently since she was fifteen years
old. Dr. Dyer concluded there was significant potential for relapse. Dr. Dyer
opined N.W. would have to be sober for two to three years before she could be
entrusted to care for her children. He explained recovery is longer for long -
term addicts.
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The trial court found Dr. Dyer's testimony credible, believable, and
reasonable in light of the other evidence, including the exhibits, court r ecords,
and the testimony of the other witnesses. The court noted Dr. Dyer testified in
a calm and direct manner, was not evasive, and answered questions without
hesitation. He maintained direct eye contact with examiners. The court found
his testimony was consistent with the other evidence and testimony.
N.W. testified she loved her children and was determined to care for
them in a safe and secure manner. Although she did not fully engage in the
services previously offered by the Division, she said she was now fully
engaged in all recommended services. She expressed an intention to complete
her substance abuse treatment program and participate in an aftercare program,
including a Mommy and Me program. She also planned to secure employment
and safe housing. She stated Spring House would allow her to reside there
until those goals were met and would continue to provide support even after
she completed its program.
N.W. testified her abuse of prescription drugs evolved into using heroin
following Liam's removal in September 2016. She admitted she did not
receive prenatal care and continued to use heroin and overdosed while
pregnant with Maddie. She knew caring for a toddler and an infant could be
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stressful but was willing to accept the challenge. She understood her children
were removed because of her drug use and she could not care for her children
if she continued using drugs. N.W. recognized she was accountable for her
past behavior and that remaining drug free is a day-to-day process. She
claimed she was now a different person. On cross-examination, however,
N.W. acknowledged she relapsed in the past after inpatient treatment and
follow-up care, including using heroin after relapsing in March 2017.
N.W. also acknowledged she did not keep in contact with the Division
and wanted to avoid it. She conceded she had not lived independently or
soberly for a sustained period except while residing at an inpatient treatment
facility or a halfway house. N.W. agreed Spring House was very structured.
She was closely monitored, drug tested, and escorted when she left the
premises.
N.W. further acknowledged Liam was in the Division's care and custody
since August 2016. She understood her children need permanence and
structure. She recognized she led an unstable life until January 2018,
including periods when she was unemployed and homeless.
The trial court found N.W. credible, but considered her biased due to her
desire to be reunited with her children. The court found N.W. was candid as to
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her drug use, homelessness, and the fact she harmed Maddie by using drugs
while she was pregnant. The court found N.W. sincere in her testimony of her
commitment to remain drug free.
The trial court afforded the parties the opportunity to submit proposed
findings of fact and conclusions of law. N.W. argued termination of her
parental rights was not in the best interest of her children given the positive
progress she made in her substance abuse treatment and her commitment to
caring for her children. She contended the children's best interests would be
served by referring her to a Mommy and Me program, thereby affording time
to resolve any remaining substance abuse issues. The Law Guardian joined in
the Division's position that termination was appropriate and any further delay
in the permanent placement of Liam and Maddie would only exacerbate the
harm.
On October 5, 2018, the trial court issued its decision terminating N.W.'s
parental rights to Liam and Maddie. The trial court concluded the Division
proved all four prongs of N.J.S.A. 30:4C-15.1(a) by clear and convincing
evidence. This appeal followed. N.W. raises the following arguments:
THE TRIAL COURT INCORRECTLY APPLIED
THE LEGAL PRINCIPLES GOVERNING
TERMINATION OF PARENTAL RIGHTS
MATTERS TO THE FACTS. THE RECORD DOES
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NOT SUPPORT THOSE VERY PRECISE
STANDARDS AND THEREFORE TERMINATION
OF N.W.'S RIGHTS SHOULD BE REVERSED.
I. THE TRIAL COURT ERRED IN
CONCLUDING THAT N.W. HARMED HER
CHILDREN BY FAILING TO REMEDIATE
HER PERCEIVED PARENTING DEFICITS IN
A TIMELY MANNER.
II. THE TRIAL COURT ERRED IN
CONCLUDING THAT N.W. WAS
UNWILLING OR UNABLE TO ELIMINATE
ANY PERCEIVED HARM TO HER
CHILDREN WITHIN THE REQUIRE[D]
TIME CONSTRAINTS.
III. THE TRIAL COURT ERRED IN
CONCLUDING [THE DIVISION] MET ITS
LEGAL OBLIGATION TO MAKE
REASONABLE EFFORTS TO PROVIDE N.W.
WITH SERVICES AND TO STRIVE TO
OVERCOME BARRIERS TO HER
PARTICIPATION IN THOSE SERVICES.
IV. THE TRIAL COURT ERRED IN
CONCLUDING THAT TERMINATION OF
N.W.'S PARENTAL RIGHTS IS IN THE
CHILDREN'S BEST INTERESTS.
II.
We exercise limited review of a decision terminating parental rights. N.J.
Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014). In such cases,
we will generally uphold the trial court's findings, so long as they are supported
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by "adequate, substantial, and credible evidence." Ibid. (citing N.J. Div. of
Youth & Family Servs. v. E.P., 196 N.J. 88, 108 (2008)). We give substantial
deference to the family court judge's special expertise and opportunity to
observe the witnesses firsthand and evaluate their credibility. Id. at 552-53.
Thus, a termination decision should only be reversed or altered on appeal if the
trial court's findings were "so wholly unsupportable as to result in a denial of
justice." N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004)
(quoting In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). Even where
a parent alleges "error in the trial judge's evaluation of the underlying facts and
the implications to be drawn therefrom," N.J. Div. of Youth & Family Servs. v.
M.M., 189 N.J. 261, 279 (2007) (quoting In re Guardianship of J.T., 269 N.J.
Super. 172, 189 (App. Div. 1993)), deference must be afforded unless the judge
"went so wide of the mark that a mistake must have been made." Ibid. (quoting
C.B. Snyder Realty, Inc. v. BMW of N. Am. Inc., 233 N.J. Super. 65, 69 (App.
Div. 1989)). However, we accord no special deference to the Family judge's
interpretation of the law and the legal consequences that flow from established
facts. N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 183 (2010).
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N.W. argues the Division failed to establish the required elements to
succeed in a termination proceeding. To obtain termination of parental rights,
the Division must satisfy all four prongs of the following test:
(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.
[N.J.S.A. 30:4C-15.1(a).]
The four prongs of 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." N.J. Div. of Child Prot. &
Permanency v. R.L.M., 236 N.J. 123, 145 (2018) (quoting In re Guardianship of
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K.H.O., 161 N.J. 337, 348 (1999)). Each prong is "extremely fact sensitive and
require[s] particularized evidence" addressing "the specific circumstances in the
given case." R.G., 217 N.J. at 554 (quoting M.M., 189 N.J. at 281). The
Division must prove all four prongs by clear and convincing evidence. Ibid.The first prong of the best interest test requires the judge to determine
whether "the 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). "Harm,
in this context, involves the endangerment of the child's health and development
resulting from the parental relationship." P.P., 180 N.J. at 506 (quoting K.H.O.,
161 N.J. at 348). The analysis does not "concentrate on a single or isolated harm
or past harm," but rather focuses on "the effect of harms" arising over time.
K.H.O., 161 N.J. at 348. Of concern is both actual harm to the children and the
risk of future harm. See In re Guardianship of DMH, 161 N.J. 365, 383 (1999)
("Courts need not wait to act until a child is actually irreparably impaired by
parental inattention or neglect."). Further, the harm need not be physical;
emotional or psychological harm may suffice. In re Guardianship of K.L.F., 129
N.J. 32, 43-44 (1992) (citing In re Guardianship of J.C., 129 N.J. 1, 18 (1992)).
Maddie was clearly harmed by N.W.'s heroin addiction. As recognized
by the Court in K.H.O.:
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[A] child born addicted to drugs and suffering from
the symptoms of drug withdrawal as a result of her
mother's substance abuse during pregnancy has been
harmed by her mother and that harm endangers the
child's health and development. That determination
satisfies the first prong of the best interest standard.
[161 N.J. at 349 (citing N.J.S.A. 30:4C-15.1(a)(1)).]
The trial court found N.W. endangered the health, safety, and
development of her children and was not presently able to safely care for them.
Since the Division became involved, N.W. has been arrested and jailed,
overdosed on drugs while pregnant, remained in a toxic relationship with S.M.,
been homeless for extended periods, remained unemployed, missed numerous
treatment appointments, avoided contact with the Division, violated the SPP,
and relapsed after completing an inpatient treatment program. Maddie was
born addicted to heroin.
The evidence also demonstrates the potential for future harm. Althou gh
N.W. made progress by achieving sobriety at Spring House, discharge from
that program will not occur until she secures employment and suitable
housing. N.W. never lived independently and soberly for a significant period
prior to enrolling in Spring House. Placing the children in N.W's care would
create the risk of the children being removed a second time due to the stress of
living independently, working, and caring for two young children, which
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creates the potential for relapse, inability to maintain a safe and stable
residence, resumption of her relationship with S.M., and other behaviors
associated with her antisocial tendencies. The record contains substantial
support for the trial court's conclusion the Division satisfied prong one.
"The second prong of the statutory standard relates to parental unfitness."
K.H.O., 161 N.J. at 352. It "is aimed at 'determining whether the parent has
cured and overcome the initial harm that endangered the health, safety, or
welfare of the child, and is able to continue a parental relationship without
recurrent harm to the child.'" N.J. Div. of Youth & Family Servs. v. F.H., 389
N.J. Super. 576, 617 (App. Div. 2007) (quoting K.H.O., 161 N.J. at 348). As
noted in K.H.O.:
Because a child born drug addicted and suffering from
withdrawal symptoms has been endangered, and
because in many cases the parent herself cannot help
in her child's care or cure, the second element of the
best interests standard must focus on the measures
taken by the parent after the child's birth to maintain
the parent-child relationship and to foster an
environment leading to normal child development. . . .
Thus, the second prong may be met 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.
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[161 N.J. at 352-53.]
Ultimately, "parental fitness is the key to determining the best interests of the
child." Id. at 348 (citing In re Adoption of Children by L.A.S., 134 N.J. 127,
139 (1993)). The Division may satisfy this prong by demonstrating the paren t's
inability or unwillingness to resolve issues that are detrimental to the child. N.J.
Div. of Youth & Family Servs. v. B.G.S., 291 N.J. Super. 582, 592 (App. Div.
1996).
Although N.W.'s argument directs our attention to the qualifications of
Dr. Dyer, we construe it as an attack on the trial court's finding that the Division
satisfied the second prong of the analysis as it relates to N.W.'s ability to
overcome the initial harm that endangered the children and prevent its
reoccurrence. N.W. stipulated to Dr. Dyer's qualifications as an expert in
psychology. She nevertheless attacks the reliability of Dr. Dyer's opinion
regarding her potential for relapse. She asserts he lacks professional expertise
with respect to the intersection of addiction and mental illness and is unfamiliar
with the American Society of Addiction Medicine. We are unpersuaded by this
argument.
"[O]pioid dependence is a chronic relapsing disorder" with no known
cure. Jacinta O'Shea and Jan Melichar, Opioid Dependence, Nat'l Insts. of
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26
Health, www.ncbi.nlm.nih.gov/pmc/articles/PMC2907824/ (last visited June
14, 2019). "[R]elapse is a predictable part of recovery" that "must be
addressed." Manual for Operation of Adult Drug Courts in New Jersey, at 43
(July 2002), available at https://njcourts.gov/courts/assets/criminal/dctman.pdf.
(Drug Court Manual). Those suffering from substance abuse often "experience
relapse, and 'repeated treatments become necessary to increase the intervals
between and diminish' the severity of relapses until abstinence is achieved."
Ellen M. Weber, Bridging the Barriers: Pub. Health Strategies for Expanding
Drug Treatment in Cmtys., 57 Rutgers L. Rev. 631, 639 (2005) (quoting Alan I.
Leshner, Addiction is a Brain Disease, Issues in Sci. and Tech. 75, 76-77 (Spring
2001)). Indeed, Drug Court participants, who are subject to "intensive
supervision, frequent drug testing, and regular court appearances, combined
with treatment and recovery services," State v. Meyer, 192 N.J. 412, 429 (2007)
(citing Drug Court Manual, at 3-4), commonly relapse despite the threat of
immediate jail sanctions for a positive drug screen, Drug Court Manual, at 43.
As a result, Phase III of the Drug Court program focuses upon relapse
prevention. Id. at 40.
Opioid use disorder in remission in a controlled environment is a well-
recognized concept and diagnosis. Diagnostic and Statistical Manual of Mental
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27
Disorders (5th ed. 2013) (ICD-9-CM code 304.00 (severe opioid use disorder in
early remission in a controlled environment)). See also Int'l Classification of
Diseases and Health Related Problems (ICD-10) (10th rev. 1994), Code F11.21.
Relapse is common upon release from a controlled environment where access to
opioids is restricted. For severe relapsing opioid dependence, long-term
maintenance using an oral opioid agonist such as methadone or buprenorphine
combined with ongoing counseling and support is preferred. The Merck Manual
of Diagnosis and Therapy, 3246-47 (2nd ed. 2018).
As a licensed clinical psychologist, Dr. Dyer is qualified to diagnose N.W.
with opioid dependence, in early remission. His conclusion that N.W. faces the
risk of relapse after exiting a controlled environment is supported by substantial
credible evidence in the record. The potential for relapse despite treatment and
aftercare poses a palpable risk N.W. will be unable to overcome or remove the
harm her addiction and relationship choices present. Her long term, severe
abuse of drugs, beginning at age fifteen, which escalated to heroin addiction
while pregnant, from which she is only in the early stages of recovery, makes it
likely she will encounter difficulties remaining sober when not in a controlled
environment. The record bespeaks that risk. N.W. previously relapsed after
completing a twenty-eight-day inpatient program. The record reveals the harm
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to the children is likely to continue if N.W. becomes their caretaker. That risk
will continue into the foreseeable future. Thus, the trial court correctly
determined the Division satisfied prong two.
To satisfy the third prong, the Division must prove it made "diligent
efforts to reunite the family." K.H.O., 161 N.J. at 354. The analysis
"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." Ibid. "[T]he statutory
definition of 'diligent efforts' is 'reasonable 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.'" I.S., 202 N.J. at 176 (quoting DMH, 161 N.J. at 386).
N.W. contends the Division failed to refer her for treatment when
funding for a program she was attending ran out in November 2017. The
record shows otherwise. A Division worker promptly provided N.W. with the
names of three other treatment facilities. Multiple attempts to follow-up from
November 22, 2017 to January 23, 2018, were unsuccessful. N.W. refused to
engage with the Division until January 27, 2018. In addition, N.W.'s persistent
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failure to complete the services provided by the Division resulted in her
termination from various programs.
The Division routinely offered services to N.W. to address her needs.
By any measure, the Division made reasonable efforts to provide services to
N.W. to correct the behaviors that led to removal. The record likewise
demonstrates the Division considered alternatives to termination of pa rental
rights, such as kinship legal guardianship, prior to determining termination
was appropriate. Thus, the trial court correctly determined the Division
satisfied prong three.
Lastly, the Division must demonstrate "that termination of parental rights
will not do more harm than good to the child." K.H.O., 161 N.J. at 354-55
(citing N.J.S.A. 30:4C-15.1(a)(4)). However, the Division need not "show[] that
no harm will befall the child as a result of the severing of biological ties." Id.
at 355. Instead, the issue "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. To satisfy this prong of the analysis, the Division
must "offer testimony of a 'well-qualified expert who has had full opportunity
to make a comprehensive, objective, and informed evaluation' of the child's
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relationship with both the natural parents and the foster parents." N.J. Div. of
Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 442 (App. Div. 2009)
(quoting M.M., 189 N.J. at 281).
Dr. Dyer determined Liam has a stronger attachment to his paternal
grandmother than to N.W. and that the paternal grandmother is Liam's "central
parental love object and attachment figure." Dr. Dyer found Maddie was too
young to develop a specific attachment to either parent or the paternal
grandmother. Those findings are unsurprising. Liam was removed from
N.W.'s care when he was five months old. Maddie was less than a year old at
trial. She was removed from N.W. a few days after birth and has never lived
with her. Moreover, N.W.'s participation in supervised visits with her children
was sporadic with many scheduled visits cancelled due to N.W.'s absence.
Dr. Dyer concluded Liam "would display a severe short-term reaction of
the stress and disorientation" if "removed from his paternal grandmother and
placed with a well-functioning caretaker." He would also "be placed at some
risk of developing longer-term problems including impaired self-esteem,
impaired basic trust, and an impaired capacity to attach." If he were "placed
with a dysfunctional caretaker who suffered from conditions such as
depression, personality problems, or drug abuse, then there would be a much
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greater likelihood of longer-term negative effects due to severing him from his
present attachment figure."
Dr. Dyer concluded the children are happy, secure, and enthusiastic with
their paternal grandmother, who is "totally committed to the welfare of her
grandchildren." They appear to be thriving in her care. Dr. Dyer
recommended adoption of both children by the paternal grandmother. The
record amply supports the determination that termination of N.W.'s parental
rights will not do more harm than good. The trial court correctly determined
the Division satisfied prong four.
Any issues raised but not otherwise addressed lack sufficient merit to
warrant discussion in our opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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