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NOT FOR PUBLICATION WITHOUT THE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-1560-16T2
NEW JERSEY DIVISION OF
CHILD PROTECTION AND
PERMANENCY,
Plaintiff-Respondent,
v.
B.R.,
Defendant-Appellant,
and
M.H.,
Defendant.
____________________________
IN THE MATTER OF THE
GUARDIANSHIP OF G.H. and
W.H., minors.
_____________________________
Submitted September 26, 2017 – Decided October 4, 2017
Before Judges Fasciale and Sumners.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Atlantic
County, Docket No. FG-01-0047-16.
Joseph E. Krakora, Public Defender, attorney
for appellant (Marc D. Pereira, Designated
Counsel, on the brief).
Christopher S. Porrino, Attorney General,
attorney for respondent (Jason W. Rockwell,
Assistant Attorney General, of counsel;
Alexa L. Makris, Deputy Attorney General, on
the brief).
Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minors (Toya Davis,
Designated Counsel, on the brief).
PER CURIAM
B.R. (the mother) appeals from a November 30, 2016 order
terminating her parental rights to her children G.H., born in
February 2014, and W.H., born in September 2015. Judge Jeffrey
J. Waldman entered the order and rendered a lengthy written
opinion. We reject the mother's contentions that the Division of
Child Protection and Permanency (Division) failed to meet its
statutory burden under each prong of the best interests test,
codified at N.J.S.A. 30:4C-15.1(a), by clear and convincing
evidence.
In reviewing a decision by a trial court to terminate parental
rights, we give "deference to family court[s'] fact[-]finding"
because of "the family courts' special jurisdiction and expertise
in family matters[.]" Cesare v. Cesare, 154 N.J. 394, 413 (1998).
The judge's findings of fact are not disturbed unless they are "so
manifestly unsupported by or inconsistent with the competent,
relevant and reasonably credible evidence as to offend the
interests of justice." Id. at 412 (quoting Rova Farms Resort,
2 A-1560-16T2
Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 484 (1974)). "[T]he
conclusions that logically flow from those findings of fact are,
likewise, entitled to deferential consideration upon appellate
review." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J.
Super. 81, 89 (App. Div. 2006), certif. denied, 190 N.J. 257
(2007).
Here, the judge carefully reviewed the evidence presented,
and thereafter concluded that the Division had met, by clear and
convincing evidence, all of the legal requirements for a judgment
of guardianship. His opinion tracks the statutory requirements
of N.J.S.A. 30:4C-15.1(a), accords with In re Guardianship of
K.H.O., 161 N.J. 337 (1999), In re Guardianship of DMH, 161 N.J.
365 (1999), and New Jersey Division of Youth & Family Services v.
F.M., 211 N.J. 420 (2012), and is supported by substantial and
credible evidence in the record. We therefore affirm substantially
for the reasons that the judge expressed in his comprehensive and
well-reasoned opinion. We add the following remarks as to each
prong.
As to prong one, the Division must prove 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). "[T]he relevant inquiry focuses on the cumulative
effect, over time, of harms arising from the home life provided
3 A-1560-16T2
by the parent." N.J. Div. of Youth & Family Servs. v. M.M., 189
N.J. 261, 289 (2007).
"Serious and lasting emotional or psychological harm to
children as the result of the action or inaction of their
biological parents can constitute injury sufficient to authorize
the termination of parental rights." In re Guardianship of K.L.F.,
129 N.J. 32, 44 (1992) (citing In re Guardianship of J.C., 129
N.J. 1, 18 (1992)). As a result, "courts must consider the
potential psychological damage that may result from
reunification[,] as the 'potential return of a child to a parent
may be so injurious that it would bar such an alternative.'" N.J.
Div. of Youth & Family Servs. v. L.J.D., 428 N.J. Super. 451, 480-
81 (App. Div. 2012) (quoting N.J. Div. of Youth & Family Servs.
v. A.W., 103 N.J. 591, 605 (1986)).
"The absence of physical abuse or neglect is not conclusive."
A.W., supra, 103 N.J. at 605 (quoting In re Guardianship of R.,
155 N.J. Super. 186, 194 (App. Div. 1977)). "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." DMH, supra, 161 N.J. at 379. "Courts need not
wait to act until a child is actually irreparably impaired by
parental inattention or neglect." Id. at 383.
4 A-1560-16T2
The Division introduced evidence to support its contention
that the mother's elongated substance abuse harmed G.H. and W.H.
The court found
[the mother] admitted to using drugs as early
as [eleven]-years-old. The first drug that
she start[ed] using was marijuana. [The
mother] testified that in July 2012[,] she was
smoking marijuana and doing [ten] bags of
heroin a day, while pregnant with a child she
did not end up having. [The mother] testified
that in November 2013, while pregnant with
G.H., she was using [fifty] bags of heroin a
day and doing any other drug she "could get
her hands on." When G.H. was born, he tested
positive for methadone and had to spend almost
a month in the hospital.
. . . .
At the time of her psychological evaluation
with [the Division's psychological expert,]
Dr. Cahill, [the mother] stated that she was
clean for [thirteen] months. However, [the
mother] was not regularly calling in for
random urine screens in the months prior to
the evaluation. [The mother] also had two
positive drug screens in August 2016[,] which
she claimed were from dental surgery. [The
mother] testified that she has been attending
both narcotics anonymous and alcohol[ics]
anonymous meetings. Although she started
attending these programs in November 2015,
[the mother] has only progressed to step [two]
in the [twelve] step program. After
struggling for almost [sixteen] years with her
addiction, [the mother] is still enrolled in
a Level II: intensive outpatient program.
The mother argues that substance abuse is not prima facie
evidence of neglect or abuse under N.J.S.A. 30:4C-15.1(a), and
5 A-1560-16T2
relies on New Jersey Division of Youth & Family Services v. V.T.,
423 N.J. Super. 320, 331 (App. Div. 2011) for that proposition.
However, that case is factually distinguishable. The mother has
exhibited a far more substantial and prolonged battle with
substance abuse than the defendant in that case.
The police found the mother almost unconscious and under the
influence of heroin in the driver's seat of her car, while G.H.
was in the back seat. Although G.H. was unharmed when the police
arrived, the mother placed G.H. in a tenuous position by being
unable to help G.H., if needed.
Thus, there exists substantial credible evidence to support
the judge's findings that the mother's extensive substance abuse
issues harmed and endangered the children and "threatens the
child[ren]'s health and will likely have continuing deleterious
effects . . . ." K.H.O., supra, 161 N.J. at 352.
As to prong two, the Division must prove that the mother is
"unwilling or unable to eliminate the harm facing the child[ren]
or is unable or unwilling to provide a safe and stable home . . .
and the delay of permanent placement will add to the harm."
N.J.S.A. 30:4C-15.1(a)(2). That harm may include evidence that
separating the children from their resource parents "would cause
serious and enduring emotional or psychological harm . . . ."
Ibid.
6 A-1560-16T2
The Division can establish the second prong by proving that
a "child will suffer substantially from a lack of stability and a
permanent placement[,] and from the disruption of" a bond with the
resource parents. K.H.O., supra, 161 N.J. at 363. Because they
are related, evidence supporting the first prong may also support
the second prong "as part of the comprehensive basis for
determining the best interests of the child." DMH, supra, 161
N.J. at 379.
Here, the judge found that the mother failed to maintain
stable housing for the length of the Division's involvement. The
judge found further that
[the mother] has been in jail numerous times,
various inpatient programs, her mother's house
(which stays have been tenuous) and Oxford
House, where children are not allowed. [The
mother] has been kicked out of her mother['s]
house numerous times, even as recently as
September 2016. . . .
. . . .
On September 23, 2016, the Division filed an
unusual incident report in regard to the state
in which [the mother] returned G.H. and W.H.
after a visit. Concerns were expressed that
W.H. was wet with sweat on his head and shirt,
that he did not get enough sleep, and that he
had not eaten any formula during the visit.
Concerns were also expressed about G.H. in
that his diaper had not been changed for so
long he had dried stool on his bottom and his
face was very dirty.
7 A-1560-16T2
The mother contends that at the time of trial on November 9
and 10, 2016, she was working and living with her parents. She
states that her progression since graduating from the Straight and
Narrow Program, and successfully transitioning off methadone
treatment, evidences adequate stability to care for G.H. and W.H.
As recent as September 2016, however, the mother visited the
children inconsistently, and became difficult for the Division to
contact. The evidence shows that the mother has not been the
primary caregiver to either G.H. or W.H. on any consistent basis.
The judge also stated "[the mother]'s parenting skills have not
been tested in the community, with the stressors of day-to-day
life."
Therefore, there is substantial credible evidence supporting
the judge's findings that the mother is unwilling or unable to
eliminate the harm facing the children, or is unable or unwilling
to provide a safe home for the children.
As to prong three, the Division is required to make
"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 [will] consider[] alternatives to
termination of parental rights[.]" N.J.S.A. 30:4C-15.1(a)(3).
This third "prong of the [best interests of the child] standard
contemplates efforts that focus on reunification of the parent
8 A-1560-16T2
with the child and assistance to the parent to correct and overcome
those circumstances that necessitated the placement of the child
into foster care." K.H.O., supra, 161 N.J. at 354.
The judge found that the Division provided reasonable efforts
to correct the circumstances that led to the children's placement.
The judge found further that
[the mother] has been referred for numerous
substance abuse evaluations. The Division has
provided referrals to Brenna Cash at Sandy
Shore for individual counseling and anger
management classes, Jewish Family Services for
assistance with housing and finding additional
services, and Robins' Nest creative
visitation. The Division has also provided a
number of family team meetings, random urine
screens, hair follicle testing, and visitation
services throughout the length of Division
involvement.
On September 13, 2016, the court ordered [the
mother] have unsupervised visitation with G.H.
and W.H. for one hour per week. At the time,
[the mother] was attending the Family Life
Center (FLC) for visitation and parenting
education. When her services through FLC
[were] completed[,] [the mother] was required
to call the [D]ivision and confirm visits.
After this change in the visitation schedule,
weeks went by in which [the mother] did not
visit with the children and did not contact
the Division.
As to considering alternatives to termination of parental rights,
the judge found
[t]he Division attempted to assess a placement
for G.H. and W.H. with their maternal
grandparents, L.R. and R.R., but was
9 A-1560-16T2
unsuccessful due to the unwillingness of the
maternal grandparents to take care of
additional children. The Division also
discussed kinship legal guardianship (KLG)
with [N].H. and J.L., the children's current
placement and paternal grandparents. [But]
[N].H. and J.L. indicated that they are not
interested in KLG and wish to pursue adoption
and provide permanency for G.H. and W.H.
There exists substantial credible evidence to support the
judge's findings that the Division made reasonable efforts to
provide services to help the mother correct the circumstances
which led to the children's placement outside the home; and the
court considered alternatives to termination of parental rights,
such as KLG.
As to prong four, there exists sufficient credible evidence
to show that "[t]ermination of parental rights will not do more
harm than good." N.J.S.A. 30:4C-15.1(a)(4). Relying on the expert
testimony, the court found that
there is not a strong attachment between [the
mother] and her children and that the minor
children see N.H. as their primary caretaker.
Dr. Cahill testified that G.H. and W.H. see
N.H. and [J.L.], as their psychological
parents.
The [c]ourt finds that the termination of
parental rights of [the mother] as to the
minors, G.H. and W.H., would not do more harm
than good. N.H. and [J.L.] are willing to
adopt G.H. and W.H., and they have been
thriving in their care. Dr. Cahill opined
that there is a strong attachment between N.H.
and [J.L.] and the children, G.H. and W.H.
10 A-1560-16T2
It would not do more harm than good to
terminate the rights of [the mother] to the
children, as the plan of adoption by N.H. and
[J.L.] will enable G.H. and W.H. to enjoy a
permanent and nurturing lifestyle. The
speculation of a potential life for G.H. and
W.H. with [the mother] holds with it an
unreasonable hope that she will be able to
completely change her current lifestyle. [The
mother] has no significant employment, no
articulable plan for how she is going to
obtain assistance in paying for the cost of
two children, and no stable housing. The
children have formed bonds with their
caretakers, and delaying permanency for any
longer will cause harm to them.
Affirmed.
11 A-1560-16T2