DCPP VS. L.H. AND G.H.IN THE MATTER OF THE GUARDIANSHIP OF LAS.H. (FG-09-105-16, HUDSON COUNTY AND STATEWIDE)(RECORD IMPOUNDED)(CONSOLIDATED)

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NOT FOR PUBLICATION WITHOUT THE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-4749-15T1
A-4750-15T1

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

L.H. and G.H.,

Defendants-Appellants.

IN THE MATTER OF THE
GUARDIANSHIP OF Las.H., a
minor.

Submitted April 26, 2017 – Decided May 15, 2017

Before Judges Carroll, Gooden Brown and
Farrington.

On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part, Hudson
County, Docket No. FG-09-105-16.

Joseph E. Krakora, Public Defender, attorney
for appellant L.H. (Stephania Saienni-Albert,
Designated Counsel, on the briefs).
 Joseph E. Krakora, Public Defender, attorney
for appellant G.H. (Beryl Foster-Andres,
Designated Counsel, on the brief).

Christopher S. Porrino, Attorney General,
attorney for respondent (Andrea M. Silkowitz,
Assistant Attorney General, of counsel; Lauren
J. Oliverio, Deputy Attorney General, on the
brief).

Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minor (Julie E.
Goldstein, Assistant Deputy Public Defender,
on the brief).

PER CURIAM

Defendants L.H. (Linda) and G.H. (Gary) appeal from a judgment

terminating their parental rights to their daughter Las.H. (Lucy).1

The trial court concluded that termination was appropriate in

light of Linda's long struggle with substance abuse disorder,

which inhibited her from safely caring for Lucy just as it had for

her four other children, none of whom remained in her care, and

in light of Gary's relative absence and failure to offer any plan

for reunification. Both defendants challenge the court's

conclusions and contend that the New Jersey Division of Child

Protection and Permanency (Division) failed to establish, by clear

and convincing evidence, the four criteria of the best-interests-

of-the-child standard embodied in N.J.S.A. 30:4C-15.1(a). The

1We use pseudonyms for ease of reference and to protect the privacy
of the children. R. 1:38-3(d)(12).

2 A-4749-15T1
Division and the Law Guardian disagree and argue that the trial

court's judgment should be affirmed. On July 18, 2016, we

consolidated the appeals. Having considered the parties'

arguments in light of the record and applicable legal standards,

we affirm.

We will not recite at length the history of the Division's

involvement with the family, which began in February 2011, when

police raided Linda's residence and found 150 vials of cocaine and

299 packets of heroin. This incident resulted in the filing of

criminal charges against Linda, and the removal of Linda's then

three-year-old daughter, K.U., and nine-month-old son, R.H., from

her home. Much of the factual and procedural history that followed

is set forth in the comprehensive and thoughtful thirty-one-page

written opinion of Judge Bernadette N. DeCastro, who conducted the

guardianship trial from which the present appeal is taken. It

suffices to say that in July 2012, Linda gave birth to another

daughter, C.H., who was removed by the Division on an emergent

basis shortly thereafter. Lucy was born in April 2014. The

Division soon received a referral and responded to the hospital

to learn that both Linda and Lucy tested positive for marijuana.

Linda admitted to Division caseworkers that she used the substance

three weeks earlier, and she identified Gary as the child's father,

though she had not seen him in two months. Gary was eventually

3 A-4749-15T1
confirmed as the father through a paternity test in May 2016. The

Division removed Lucy on an emergent basis upon her discharge from

the hospital a few days later, and placed her with Gary's niece,

T.B., with whom she has since remained.

In July 2015, the Division filed a verified complaint to

terminate Linda and Gary's parental rights and award the Division

guardianship of Lucy. Judge DeCastro conducted a seven-day

guardianship trial in May 2016. The Division presented the

testimony of expert psychologist Gerard A. Figurelli, Ph.D.;

Division caseworkers Jayme Scott and Kimberly Shipmon; and Lucy's

foster mother, T.B. Linda presented testimony from psychologist

Barry Katz, Ph.D.; Gary; Scott; Shipmon; Best in Care employee

Vanessa Recalde; and Visiting Homemaker Services employee Shakira

Tulloch.

Judge DeCastro carefully reviewed the evidence presented, and

concluded the Division proved by clear and convincing evidence the

four prongs of the best interests test, codified in N.J.S.A. 30:4C-

15.1a(1) to -15.1a(4), that:

(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

4 A-4749-15T1
 permanent placement will add to the harm
. . . ;

(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.

See also N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591,

604-11 (1986).

On appeal, both defendants challenge the trial court's

findings with respect to the statutory best interests test, which

balances a parent's right to enjoy a relationship with his or her

child, and the State's interest in protecting the welfare of

children. In re Guardianship of K.H.O., 161 N.J. 337, 346-47

(1999). "The four criteria enumerated in 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." Id. at 348.

The scope of our review of the trial court's findings of fact

is well established. The trial court's factual findings will be

sustained on appeal as long as "they are supported by 'adequate,

substantial and credible evidence' on the record." N.J. Div. of

Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (quoting

5 A-4749-15T1
In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div.

1993)).

Furthermore, our deference to the trial court's findings of

fact is "especially appropriate 'when the evidence is largely

testimonial and involves questions of credibility.'" Cesare v.

Cesare, 154 N.J. 394, 412 (1998) (quoting In re Return of Weapons

to J.W.D., 149 N.J. 108, 117 (1997)). We also give considerable

deference to the factual findings of the Family Part, due to that

court's "special jurisdiction and expertise in family matters."

Id. at 413.

A. First Prong

As noted, prong one of the best interests standard requires

the Division to establish 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). To satisfy

this prong, the Division must show that the parental relationship

harmed the child's health, safety, or development, and the parental

relationship will likely have a continuing deleterious effect on

the child. K.H.O., supra, 161 N.J. at 347. The harm may, but

need not, be physical. In re Guardianship of K.L.F., 129 N.J. 32,

43-44 (1992). Termination may be warranted on a showing of

"[s]erious and lasting emotional or psychological harm" resulting

from a parent's action or even inaction. Id. at 44. Indeed, a

6 A-4749-15T1
"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 [a] child." In re Guardianship of

D.M.H., 161 N.J. 365, 379 (1999).

Although a single instance may suffice, the standard may be

satisfied by evidence of an accumulation of harm over time. N.J.

Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 506 (2004).

That is the case irrespective of whether the parent is morally

culpable for that harm, so long as the parent is "unable or

unwilling to prevent [it] irrespective of [its] source[.]" M.M.,

supra, 189 N.J. at 289. Moreover, the court need not wait "until

a child is actually irreparably impaired by parental inattention

or neglect." D.M.H., supra, 161 N.J. at 383. A risk of harm may

be shown "'not only from [a parent's] past treatment of the child

in question but also from the quality of care given to other

children in [his or her] custody.'" N.J. Div. of Youth & Family

Servs. v. I.H.C., 415 N.J. Super. 551, 573-74 (App. Div. 2010)

(quoting J. v. M., 157 N.J. Super. 478, 493 (App. Div.), certif.

denied, 77 N.J. 490 (1978)).

In her thorough written opinion, Judge DeCastro observed that

the issue here was "more than whether [Linda] had achieved

sustained remission for her marijuana substance abuse disorder."

Rather, the concern was whether it would be safe to return Lucy

7 A-4749-15T1
to her mother's care in light of the totality of the circumstances

attendant to Linda's protracted history with the Division over

several years. Linda's initial success in battling substance

abuse was short-lived, and, although she had completed treatment

again and regularly attended AA/NA meetings, she admittedly used

alcohol recently to cope with stress after the death of her father

and uncle. During that period, she withdrew from services and

visitation and refrained from contact with the Division, leaving

no way of knowing whether she had also relapsed into marijuana

abuse. It was "against this backdrop" that the judge conducted

her analysis.

The judge noted that Linda had been unable to provide Lucy

with a safe and stable home since her birth, just as she had been

unable to do for her other four children, all now outside her

custody. According to both experts, Linda suffered from a

substance abuse disorder, the impact of which necessitated her

children's removal on multiple occasions, including then-newborn

Lucy's, when both mother and child tested positive for marijuana.

Although she had participated in numerous treatment programs over

the years, her history showed a troubling pattern of alternating

periods of remission and relapse. In that light, the judge found

persuasive Dr. Figurelli's opinion that Linda presented an

elevated risk for relapse, which presented a risk of harm to Lucy

8 A-4749-15T1
if returned to Linda's care.

Linda had a history, moreover, of "removing herself from her

children's lives when her life bec[ame] too stressful." That was

the case not only recently when she refrained from visitation with

Lucy following her father's and uncle's deaths, but also two years

prior, when she lost contact with the Division for several months

while it had custody of R.H. and C.H. We conclude that Judge

DeCastro properly recognized these absences as presenting further

danger to Lucy's health and development.

For his part, Gary failed to comply even with the preliminary

psychological evaluation required to evaluate what services he

would need to ensure that Lucy could safely be placed in his

custody. Gary told the Division caseworkers not to contact him,

never offered himself as a resource for the child prior to trial,

and instead supported her reunification with Linda. In all, the

judge aptly concluded the Division had shown a risk of harm to the

child arising from her relationship with both parents.

As noted, Lucy tested positive for marijuana at birth. Both

defendants assert that circumstance was insufficient to constitute

harm to the child, noting that Lucy was otherwise healthy, never

exhibited any withdrawal symptoms, and had no developmental

difficulties or any other special needs. Defendants are correct

that an instance of maternal marijuana use during pregnancy does

9 A-4749-15T1
not in itself constitute harm, K.H.O., supra, 161 N.J. at 349-50,

but that was not the focus of the court's finding here. Instead,

the judge concluded that Linda's longstanding history with

substance abuse and its impediment to the safe parenting of

children in her care, including periods of relapse and withdrawal

from their lives in times of stress, presented a risk of harm to

Lucy. Gary may not have been culpable for Linda's marijuana use,

but it suffices that he was unable to protect Lucy from the harm

that stemmed from it, particularly given his broad refusal to

cooperate with the Division or otherwise take the steps necessary

to safely assume custody of his child.

Linda emphasizes her completion of treatment and maintenance

of sobriety. However, Dr. Figurelli's testimony, Linda's own

admission of alcohol use, and her failure to submit to urine

screens, sufficiently support a finding that Linda had not yet

achieved sustained remission, lacked an understanding that her

continued alcohol use jeopardized that goal, and consequently

remained at risk of relapse. With respect to Linda's missed visits

with Lucy, the judge acknowledged that some were the Division's

fault, but nonetheless found based on the documentary evidence and

the caseworkers' testimony that most of them had been either missed

or cancelled by Linda. Consequently, we conclude that sufficient

credible evidence in the record supports the court's finding that

10 A-4749-15T1
the Division satisfied the first prong of the best interests test.

B. Prong Two

Under the second prong, the court must consider not only

whether the parent can remove the danger to the child, but whether

he or she can do so "before any delay in permanent placement

becomes a harm in and of itself." N.J. Div. of Youth & Family

Servs. v. A.G., 344 N.J. Super. 418, 434 (App. Div. 2001), certif.

denied, 171 N.J. 44 (2002). Indeed, courts must be "cognizant of

New Jersey's strong public policy in favor of permanency." K.H.O.,

supra, 161 N.J. at 357. Termination may be appropriate, for

example, where a parent's ongoing history of substance abuse has

caused or contributed to the parent's inability to provide a safe

and stable home for the child. Id. at 352-54. Furthermore, this

prong can be satisfied "if there is clear and convincing evidence

that the child will suffer substantially from a lack of stability

and a permanent placement and from the disruption of [his or] her

bond with foster parents[.]" Id. at 363.

Here, Judge DeCastro was unpersuaded by Linda's assertion

that her negative urine screens and successful completion of

treatment demonstrated her consistent abstinence from marijuana

use since November 2014. The judge noted that Linda failed to

submit to several random screens in the intervening time and

admitted to Dr. Figurelli that she had used alcohol despite her

11 A-4749-15T1
participation in AA/NA. The judge accepted Dr. Figurelli's opinion

that Linda's failure to abstain from all mind-altering substances,

including alcohol, was contrary to the goals of her treatment and

precluded her from achieving sustained remission. The judge

concluded Linda "show[ed] a consistent pattern of poor judgment,

lack of insight[,] and risky behavior," as well as an "inability

to place her child's needs above her own[,]" which presented a

continued risk of harm to Lucy's health and development. Further,

Linda's absence from visitation while addressing her own emotional

difficulties also showed a "lack of commitment" to the child.

Judge DeCastro found that Gary had yet to proffer a viable

parenting plan, failed to explain how he would care for Lucy on a

daily basis, and generally "made no attempt to establish a safe

and stable home" for her. Nor did he participate in a bonding

evaluation, thus making it impossible for the court to determine

whether any bond existed between him and Lucy. In light of the

child's need for permanency, the judge found that neither defendant

could sufficiently mitigate the risk of harm that occasioned Lucy's

removal to ensure a safe reunification with her in the reasonably

foreseeable future.

There is sufficient credible evidence in the record to support

the judge's factual findings. The record supports the judge's

conclusion that the Division established the second prong of

12 A-4749-15T1
N.J.S.A. 30:4C-15.1(a) with clear and convincing evidence. Linda

and Gary's contentions to the contrary are without sufficient

merit to warrant further comment. R. 2:11-3(e)(1)(E).

C. Prong Three

The third prong of the test for termination of parental rights

requires the Division to establish that it "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[.]" N.J.S.A. 30:4C-15.1(a)(3). "[A]n evaluation

of the efforts undertaken by [the Division] to reunite a particular

family must be done on an individualized basis." D.M.H, supra,

161 N.J. at 390. The reasonableness of the Division's efforts are

"not measured by their success." Id. at 393.

In her written opinion, Judge DeCastro concluded the Division

had "taken more than ample steps toward reunification." The judge

thoroughly recounted referrals the Division made for Linda –

including psychological and substance abuse evaluations, urine

screens, treatment programs and counseling, and anger management

and parenting classes - with which she complied to varying degrees

and achieved varying levels of success. The judge noted the

Division had also facilitated supervised visitation, referred

Linda for a parenting mentor, and afforded her access to

13 A-4749-15T1
therapeutic visits through Catholic Charities until she was

discharged from the program for noncompliance.

The judge explicitly considered and rejected Linda's

contentions that the Division failed to refer her for recommended

counseling or was at fault for her inconsistent visitation with

Lucy. Neither Linda nor Gary took advantage of the opportunity

to visit Lucy in her foster home, despite the foster mother's

willingness to permit such visits.

The judge further rejected Linda's contention that the

Division's efforts were deficient for failure to provide a

parenting mentor in her home. The judge credited testimony from

a caseworker that such mentors were used in cases of reunification.

Here, the permanency plan was changed to termination soon after

Linda was recommended for a mentor, thus rendering the recommended

service no longer appropriate. In any event, the judge reasoned,

Linda had been offered a parent mentor service from Best in Care,

available either in-home or out-of-home, but Linda refused the

service.

Gary refused to even submit to an evaluation and told the

Division that, if interested, he would contact the caseworker.

The judge concluded that the Division's efforts as to both

defendants, while unsuccessful in ensuring reunification, were

nonetheless reasonable. Moreover, the judge found, and neither

14 A-4749-15T1
defendant disputes, that because Lucy's foster mother understood

the difference between kinship legal guardianship (KLG) and

adoption, but preferred adoption, a KLG arrangement was not a

viable alternative to termination. See P.P., supra, 180 N.J. at

509.

The judge's conclusion that the Division satisfied the third

prong of the best-interest standard finds the support of sufficient

credible evidence in the record. Defendants' arguments to the

contrary warrant no additional discussion. R. 2:11-3(e)(1)(E).

D. Prong Four

To satisfy the final prong, the Division need not demonstrate

that no harm will result from termination, but that any such harm

will be outweighed by the harm resulting from non-termination.

K.H.O., supra, 161 N.J. at 355. This analysis is meant to act as

a fail-safe and prevent "an inappropriate or premature termination

of parental rights" even if the Division satisfies its burden as

to the rest of the standard. N.J. Div. of Youth & Family Servs.

v. F.M., 211 N.J. 420, 453 (2012).

"Inherent in the fourth [prong] is that a child has a

'paramount need for a permanent and defined parent-child

relationship' . . . as well as a deep need for a nurturing adult,

commonly termed the 'psychological parent.'" N.J. Div. of Youth

& Family Servs. v. C.S., 367 N.J. Super. 76, 119 (App. Div.)

15 A-4749-15T1
(quoting In re Guardianship of J.C., 129 N.J. 1, 26 (1992)),

certif. denied, 180 N.J. 456 (2004). When a parent has harmed a

child through abuse or neglect and is unable to remediate the

danger to the child, and when the child has bonded with foster

parents who have provided a safe and nurturing home, termination

of parental rights likely will not do more harm than good. N.J.

Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 108 (2008).

"The 'good' done to a child in such cases in which reunification

is improbable is permanent placement with a loving family[.]"

Ibid.

Here, Judge DeCastro carefully recounted the results of both

experts' bonding evaluations, noting that Lucy exhibited some

familiarity with Linda, but a deep emotional attachment only to

her foster mother, T.B. While that bond was insufficient in itself

to justify termination, defendants failed to remedy the

circumstances that had occasioned the child's removal and

continued to be unable to offer her a safe, stable home. Moreover,

separation of the child from her foster mother would cause her

serious harm. The judge therefore concluded that termination

would not do more harm than good.

Linda contends the trial judge erred in disregarding Dr.

Figurelli's testimony that Lucy would suffer harm if her

relationship with Linda were severed and that, if the child were

16 A-4749-15T1
gradually transitioned to an adequate caretaker, it would be

possible for her to make a safe transition. Linda cites Dr. Katz's

opinion that she would be able to safely act as Lucy's primary

caretaker.

The judge accepted Dr. Figurelli's testimony as more

persuasive. It is true Dr. Figurelli stated that Lucy would likely

suffer the same harm from separation in the long term that would

attend any termination of parental rights. However, as the judge

recognized, Dr. Figurelli further opined that Lucy would suffer

little short-term loss as a consequence, contrasted with the

enduring harm she would suffer from separation from her foster

mother in favor of a failed reunification with Linda. Moreover,

although Dr. Figurelli acknowledged the possibility that a safe

transition to another adequate caretaker remained plausible, he

doubted that a safe, successful transition of the child to Linda's

care could likely be accomplished within the foreseeable future.

The judge could, and did, rely on those opinions to conclude that,

while some harm would result from termination of Linda's parental

rights, it would be outweighed by the harm resulting from non-

termination.

Gary in turn asserts that Lucy's bond with her foster mother

developed only because she had been improperly removed at birth

despite the absence of any harm, and that any loss she might suffer

17 A-4749-15T1
from disruption of that bond should therefore not be held against

him. He further contends the court neglected to consider that he

had resided with Lucy for the first year of her life and thereafter

participated in visitation, during which he invariably engaged in

appropriate interaction with her. Like Linda, Gary points to Dr.

Figurelli's testimony as to the possibility that Lucy could be

safely transferred to another adequate caretaker, and asserts that

he would be more capable of safely undertaking such a transfer

than Linda, because he previously spent more time with the child.

We find little merit to Gary's arguments. The trial court

was not bound to credit Gary as to his purported involvement in

the child's early life, especially given his avoidance of the

Division during that time. Nor was the court compelled to accept

his assertions, without foundation in any expert evidence due to

his failure to submit to an evaluation, that the child could safely

be placed in his care or that he could successfully mitigate any

harm occasioned by the disruption of Lucy's bond with T.B. To the

extent Gary contends that such a bond would not have developed in

the first place had the child not been improperly removed, the

court's sound conclusion as to the first prong dispels that notion.

In summary, we are bound by the trial judge's factual findings

so long as they are supported by sufficient credible evidence in

the record. M.M., supra, 189 N.J. at 279. Here, Judge DeCastro

18 A-4749-15T1
accepted the Division's evidence as credible, and properly found

the Division satisfied all four prongs of N.J.S.A. 30:4C-15.1(a)

by clear and convincing evidence. To the extent we have not

specifically addressed any of defendants' remaining arguments, we

deem them without sufficient merit to warrant discussion. R.

2:11-3(e)(1)(E).

Affirmed.

19 A-4749-15T1