DCPP VS. A.D.IN THE MATTER OF THE GUARDIANSHIP OF C.G.(FG-02-0033-16, 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NOT FOR PUBLICATION WITHOUT THE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-1011-16T3

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

A.D.,

Defendant-Appellant,

and

THE BIOLOGICAL FATHER,
WHOMSOEVER HE MAY BE,

Defendant.

____________________________________

IN THE MATTER OF THE GUARDIANSHIP
OF C.G.,

Minor.
____________________________________

Submitted May 2, 2017 – Decided June 9, 2017

Before Judges Leone and Vernoia.

On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FG-02-0033-16.
 Joseph E. Krakora, Public Defender, attorney
for appellant (Kourtney J.A. Knop, Designated
Counsel, on the briefs).

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

Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minor (Nancy P. Fratz,
Assistant Deputy Public Defender, on the
brief).

PER CURIAM

A.D. ("Mother") appeals the October 21, 2016 judgment

terminating her parental rights over her son C.G. In her oral

opinion, Jude Magali M. Francois found the New Jersey Division of

Child Protection and Permanency ("Division") satisfied the best-

interests test under N.J.S.A. 30:4C-15.1(a). We affirm.1

I.

The following facts come from the trial court's oral opinion,

except as indicated. C.G. has two older half siblings who were

removed from Mother's care in 2003 due to Mother's substance abuse.

The children were placed with their fathers. They have not been

in Mother's care since 2005.

1
The court also terminated the parental rights of the unknown
biological father of C.G., who remains unidentified despite the
administration of numerous paternity tests.

2 A-1011-16T3
 C.G. was born in 2010. The Division's evidence showed it

received a referral at C.G.'s birth referencing Mother's history

of substance abuse. However, during 2010, Mother's urine tests

were negative and she completed a substance abuse program at

Comprehensive Behavioral Healthcare.

On November 13, 2014, the Division received a referral from

the police stating Mother was intoxicated at a party and could not

care for C.G. Mother had glassy eyes, slurred speech, and an

unsteady gait. Mother admitted drinking several beers and tequila

shots while taking her prescribed medications, Xanax and

Oxycodone.2

The Division executed an emergency removal the following day,

placing C.G. with his maternal aunt.3 The trial court granted the

Division custody of C.G. At Mother's suggestion, the Division

placed C.G. with his maternal uncle ("Uncle") and his wife ("Aunt")

in Pennsylvania in April 2015. They continue to care for him and

want to adopt him.

The Division referred Mother for substance abuse treatment

at Comprehensive Behavioral Healthcare, but she was ineligible

2
The Division's evidence indicated Mother again tested positive
for alcohol in late December 2014.
3
According to the Division's case manager, the aunt later decided
she could not provide C.G. long-term care.

3 A-1011-16T3
because of her prescribed narcotic medications. Mother refused

to attend another intensive outpatient substance abuse program.

Mother submitted to a psychiatric evaluation and completed

parenting classes, but she did not follow through with the

recommendation to attend therapy, undergo ongoing urine screens,

and enter a Mentally Ill, Chemically Addicted (MICA) program.

Mother's psychiatric evaluation found she was addicted to Xanax

and benzodiazepine and in need of a MICA program to address her

substance abuse, depression, and anxiety.

In April 2015, Mother was admitted to a MICA program at

CarePlus Addictive Services Program to address her substance abuse

and mental health issues. However, she was discharged in August

2015 for inappropriate behavior, and failed to complete the

program. In October 2015, Mother was taken to the hospital after

planning to commit suicide by overdose, and was involuntarily

committed. She then began inconsistently attending psychiatric

and counseling services but was terminated for noncompliance.

Mother was terminated from services at a mental health clinic in

March 2016 and recommended for other programs, which she did not

attend.

Mother was again admitted to the hospital in January 2016 for

alcohol intoxication and a head injury. Over the next two months,

Mother tested positive for alcohol, cocaine, benzodiazepines, and

4 A-1011-16T3
Oxycodone. In April 2016, Mother attended another psychiatric

evaluation, in which it was recommended she attend a MICA program

and detox from Xanax, neither of which Mother did.

After removal, Mother initially had regular visits with C.G.,

but visitation and phone contact were suspended by May 2015 when

Mother repeatedly made inappropriate comments to C.G. The Division

tried to arrange therapeutic supervised visitation (TSV) but

Mother was not accepted into the TSV programs because of her prior

noncompliance. All contact between Mother and C.G. ceased in May

2015.

After repeatedly refusing to attend evaluations, Mother

failed to attend the August 2016 guardianship trial, and presented

no evidence. The trial court found the Division presented clear

and convincing evidence that it was in the best interest of C.G.

for Mother's parental rights to be terminated. Mother appeals.

II.

"Appellate review of a trial court's decision to terminate

parental rights is limited[.]" In re Guardianship of J.N.H., 172

N.J. 440, 472 (2002). Our task is to determine whether the

decision "is supported by '"substantial and credible evidence"

[i]n the record.'" N.J. Div. of Youth & Family Servs. v. F.M.,

211 N.J. 420, 448 (2012) (citation omitted). "We ordinarily defer

to the factual findings of the trial court because it has the

5 A-1011-16T3
opportunity to make first-hand credibility judgments about the

witnesses who appear on the stand; it has a 'feel of the case'

that can never be realized by a review of the cold record." N.J.

Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)

(citation omitted).

"Particular deference is afforded to family court fact-

finding because of the family courts' special jurisdiction and

expertise in family matters." N.J. Div. of Child Prot. &

Permanency v. N.C.M., 438 N.J. Super. 356, 367 (App. Div. 2014)

(citing Cesare v. Cesare, 154 N.J. 394, 413 (1998)), certif.

denied, 222 N.J. 18 (2015). Thus, "[w]e will not overturn a family

court's factfindings unless they are so '"wide of the mark"' that

our intervention is necessary to correct an injustice." F.M.,

supra, 211 N.J. at 448 (citation omitted). We must hew to our

deferential standard of review.

III.

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

child is constitutionally protected." In re Guardianship of

K.H.O., 161 N.J. 337, 346 (1999). However, this protection "is

tempered by the State's parens patriae responsibility to protect

the welfare of children." Id. at 347; see N.J.S.A. 30:4C-1(a).

Under Title Thirty, the Division must prove by clear and

convincing evidence that termination of parental rights is in the

6 A-1011-16T3
best interest of the child. N.J.S.A. 30:4C-15(c); F.M., supra,

211 N.J. at 447. The Division must show:

(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).]

A.

We first address whether the Division presented clear and

convincing evidence to satisfy prongs one and two of the best-

interests test. The first two prongs "relate to the finding of

harm arising out of the parental relationship." In re Guardianship

of DMH, 161 N.J. 365, 378 (1999). They "are related to one

another, and evidence that supports one informs and may support

7 A-1011-16T3
the other as part of the comprehensive basis for determining the

best interests of the child." Id. at 379.

Prong one "requires that the State demonstrate harm to the

child by the parent" in the form of "endangerment of the child's

health and development resulting from the parental relationship."

K.H.O., supra, 161 N.J. at 348. The second prong requires the

Division show "the harm is likely to continue because the parent

is unable or unwilling to overcome or remove the harm." Ibid.

Harm can be proven "by indications of parental dereliction

and irresponsibility, such as the parent's continued or recurrent

drug abuse . . . and the diversion of family resources in order

to support a drug habit." Id. at 353. "[H]arm and risk of harm

[can be] proven [where] the parents' drug use resulted in their

failure to provide a stable home, with appropriate nurture and

care of the young child[.]" N.J. Div. of Youth & Family Servs.

v. H.R., 431 N.J. Super. 212, 222 (App. Div. 2013).

The trial court found that Mother's "untreated substance

abuse and mental health issues have caused harm to C.G. and

continue to pose a risk to his health, safety, and development"

and that she was "unwilling or unable to eliminate the harm" or

"safely care for her son within the foreseeable future." There

was ample evidence to support those findings.

8 A-1011-16T3
 Dr. Frank J. Dyer, a psychologist with expertise in child

abuse and neglect, testified about Mother's history of alcoholism

and history of drug abuse, specifically cocaine.4 He found

reunification with Mother "would place [C.G.] at risk for neglect

because of [her] very erratic lifestyle punctuated by bouts of

alcohol intoxication." Indeed, Mother tested positive for cocaine

as recently as March 2016.

In addition, Mother was "suffering from mental disorders

which adversely affect [her] ability to parent" and showed she

lacked "the mental status sufficient to eliminate the risk of

future harm to the child." N.J. Div. of Youth & Family Servs. v.

A.G., 344 N.J. Super. 418, 440 (App. Div. 2001), certif. denied,

171 N.J. 44 (2002). Dr. Dyer noted Mother had a "history of

psychiatric problems, primarily depression [and] episodes of

extremely erratic disorganized behavior." He found Mother

suffered from anxiety disorder, depressive disorder, and

personality disorder with borderline antisocial and paranoid

features. Her mental illness manifested in her interview, where

she did not "deliver[] a . . . cohesive, rationale account of

4
Dr. Dyer was unable to discuss Mother's history of alcoholism
and cocaine abuse with her, as she walked out of her psychological
evaluation.

9 A-1011-16T3
somebody who[se] life adjustment is within norm, but rather . . .

a fragmentary, often contradictory, disorganized account."

Dr. Dyer concluded:

The combination of [Mother]'s untreated
alcohol and substance abuse problem, her
tendency to have episodes of scattered and
confused thinking processes, her emotional
volatility, her paranoid stance toward others,
and her continued antisocial acting out
resulting in multiple arrests is a seemingly
insurmountable obstacle to the subject's
achieving adequate parenting capacity within
the foreseeable future.

Dr. Dyer also testified to the "psychological[] abus[e]"

Mother inflicted on C.G. Mother would "threaten[] to withdraw her

love," "threaten[] suicide . . . in front of the child," and

"tell[] [him] that if he did not behave that he should go and get

another mommy." Dr. Dyer found this was "terribly destructive to

the child's formation of a sense of self, specifically the child's

self-esteem" and could impact "the child's capacity for developing

intimate relationships in adolescence and adulthood." Dr. Dyer

testified that if C.G. were placed in Mother's care, there would

be "a risk of emotional abuse."

The Law Guardian called Dr. Elizabeth Smith, a psychologist

with expertise in abuse and neglect cases, who testified there was

"emotional abandonment" by Mother. Mother, during visits and

phone contact, "would just say things that were incredibly

10 A-1011-16T3
inappropriate and emotionally rejecting to him," including telling

C.G. "I don't love you anymore when you do this." Mother also

"would put him in a high chair and then turn the light out and

walk out of the room." C.G. said Mother "choked him with a

necklace." Dr. Smith noted C.G. "didn't even refer to [Mother]

as his mother," instead calling her "the bad lady" or "the zombie

mommy."5

Both experts found Mother's abusive and neglectful treatment

caused C.G. to have behavioral problems and post-traumatic

symptoms, including bed-wetting. Dr. Dyer found little if any

likelihood Mother could eliminate her substance abuse, mental

illness, and abusive behavior, or be able to parent C.G. without

inflicting further harm. Moreover, Mother was noncompliant with

all substance abuse and mental health programs. Dr. Dyer testified

"her prognosis for being able to address these things successfully

is extremely poor."

Further, as the trial court found, Mother lacked stable

housing or employment. She claimed she had her own housing, but

the evidence showed she had been kicked out of an apartment, was

staying with the father of an elder son with whom she could not

have contact, and her employer was unknown.

5
Dr. Smith noted Mother repeatedly exposed C.G. to "frightening
horror movies that were much too intense for a young child."

11 A-1011-16T3
 Accordingly, there was sufficient evidence to support the

trial court's findings on prongs one and two.

B.

To satisfy prong three, the Division must have "made

reasonable efforts to provide services to help the parent correct

the circumstance 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).

The trial court correctly found the Division clearly and

convincingly demonstrated it made reasonable efforts to assist

Mother. The Division repeatedly referred Mother for substance

abuse assessment and treatment. The Division set up psychiatric

evaluations and psychological evaluations and referred Mother for

counseling. Mother also had frequent visitation with C.G. until

it was terminated, at which point the Division made reasonable

efforts to institute therapeutic supervised visitation.

Mother argues the Division failed to tailor its services to

her. Mother claims she should have been allowed to return to

Comprehensive Behavioral Healthcare. The Division attempted to

place Mother there, but she was rejected because she was taking

prescribed narcotic medications. The Division is not to blame if

Mother's drug use precluded her preferred program. Further, the

Division provided other services that would aid Mother to overcome

12 A-1011-16T3
her dependency on those medications, and be eligible for admittance

at Comprehensive Behavioral Healthcare, but she failed to comply.

"'The diligence of [the Division]'s efforts on behalf of a

parent is not measured by' whether those efforts were successful."

F.M., supra, 211 N.J. at 452 (citation omitted). Rather, the

Division's efforts are measured "against the standard of adequacy

in light of all the circumstances of a given case." DMH, supra,

161 N.J. at 393.

Mother, having lost her visitation rights with C.G. because

of her inappropriate comments, argues the Division failed to

provide TSV. However, the Division made reasonable efforts. A

referral was made to Children's Aid and Family Services, which

would not accept her due to her history of noncompliance and denial

of substance abuse. Further, the Division made a referral to

CarePlus, which also would not accept Mother due to her previous

termination from its program for bad behavior. Mother further

argues the Division erred in not looking to a doctor frequently

used by the Division. However, there was no evidence the doctor

would have provided TSV services to Mother. In any event, the

court credited both experts' testimony that restoring visitation

would harm C.G.'s well-being.

In the same vein, Mother argues the Division did not

adequately review relative placements for C.G. Mother argues the

13 A-1011-16T3
Division improperly evaluated C.G.'s maternal grandmother and

godfather. "The Division must perform a reasonable investigation

of such relatives that is fair, but also sensitive to the passage

of time and the child's critical need for finality and permanency."

N.J. Div. of Youth & Family Servs. v. J.S., 433 N.J. Super. 69,

87 (App. Div. 2013), certif. denied, 217 N.J. 587 (2014).

The Division considered placement with C.G.'s maternal

grandmother and godfather but determined it was not in C.G.'s best

interest because C.G. had been placed for six months with Aunt and

Uncle, who were "providing sufficient care and [were] fully

committed to caring for him long term." "[N.J.S.A. 30:4C-12.1]

and a related regulation, N.J.A.C. 10:120A-3.1, allow the Division

to rule out a relative on such 'best-interests' grounds, regardless

of the relative's willingness or ability to care for a child."

Id. at 75. "This is especially true in light of this State's

'strong public policy in favor of permanency.'" Id. at 88, 89

(quoting K.H.O., supra, 161 N.J. at 357) (noting the "child has

been in a positive foster home environment for a prolonged period"

of ten months). The Division's decision was further justified by

the maternal grandmother and godfather, who agreed C.G. should

remain with Aunt and Uncle.

14 A-1011-16T3
 C.

To satisfy the fourth prong, the Division must prove by clear

and convincing evidence that "[t]ermination of parental rights

will not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4).

Prong four "serves as a fail-safe against termination even where

the remaining standards have been met." N.J. Div. of Youth &

Family Servs. v. G.L., 191 N.J. 596, 609 (2007).

Dr. Dyer completed a bonding evaluation with C.G. and his

foster parents. Dr. Dyer concluded C.G. was profoundly attached

to his foster parents, referring to them as "dad" and "mom." By

contrast, C.G. was terrified of seeing Mother. Dr. Smith also

performed an evaluation of C.G. She similarly testified C.G. "was

very happy" with Aunt and Uncle, but when C.G. was "questioned

about his mother," "he seem[ed] to regress and go back to bed

wetting . . . and being worried."

No bonding evaluation was performed with C.G. and Mother.

Dr. Smith opined "it would not be in [C.G.'s] best interest . . .

to see his mother on a . . . one-time occasion even for a bonding

evaluation." Dr. Smith testified if C.G. were to see Mother he

would "become so overwhelmed by anxiety that he might have . . .

some psychotic incident" that "might be very distressing for him

and take time for him to recover." Dr. Dyer concurred that a

bonding evaluation with Mother would be detrimental to C.G.

15 A-1011-16T3
 Generally, to satisfy the fourth prong, the Division should

present comparative bonding "'testimony of a well qualified expert

who has had full opportunity to make a comprehensive, objective,

and informed evaluation of the child's relationship' with the

natural parents and the foster parents." N.J. Div. of Youth &

Family Servs. v. R.G., 217 N.J. 527, 559, 564 (2014) (quoting In

re Guardianship of J.C., 129 N.J. 1, 19 (1992)). Here, the trial

court credited Dr. Smith's testimony that C.G. would be traumatized

by a bonding evaluation with Mother. That was one of the "few

scenarios in which comparative evaluations would not be required."

N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418,

440 (App. Div. 2009).

Moreover, Dr. Dyer testified he had enough data to form an

opinion about the relationship between C.G. and Mother without

seeing them together. Dr. Dyer testified he had rarely seen a

child who was more negative toward his birth mother. Mother

expressed her own view of her relationship with C.G., telling

Division workers "take him. Let them adopt him. I don't want

him." Mother cannot fault Dr. Dyer's information as incomplete

when she prevented further inquiry by storming out of his

evaluation.

The trial court credited Dr. Dyer's testimony that placing

C.G. in Mother's custody would cause him catastrophic

16 A-1011-16T3
psychological harm, remove the center of his emotional world, and

cause him to suffer enormous regression. The court found C.G. was

flourishing with Aunt and Uncle, who were providing him with a

stable and happy home, were facilitating contact between C.G. and

his half siblings, and who were committed to adopting C.G. The

court found that permanency should not be further delayed and that

C.G. must not be held hostage by Mother's inaction. See N.J. Div.

of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 111 (App.

Div.), certif. denied, 180 N.J. 456 (2004). The evidence amply

supported those findings and the court's conclusion that it would

not do more harm than good to terminate Mother's parental rights.

Affirmed.

17 A-1011-16T3