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)

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NOT FOR PUBLICATION WITHOUT THE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.
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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.
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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.
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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.
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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
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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
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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
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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
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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
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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:
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(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.
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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
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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
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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
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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
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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.
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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.
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