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NOT FOR PUBLICATION WITHOUT THE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
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)
Combined Opinion