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NOT FOR PUBLICATION WITHOUT THE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-0722-16T4
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
J.W.,
Defendant-Appellant,
and
K.S.,
Defendant.
___________________________________
IN THE MATTER OF THE GUARDIANSHIP
OF T.W., a minor.
___________________________________
Submitted September 25, 2017 - Decided October 13, 2017
Before Judges Accurso, O'Connor and Vernoia.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Hudson
County, Docket No. FG-09-0255-15.
Joseph E. Krakora, Public Defender, attorney
for appellant (Albert M. Afonso, 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 (Karen A.
Lodeserto, Designated Counsel, on the
brief).
PER CURIAM
Defendant J.W. appeals from a final judgment terminating
her parental rights to her third child, Tamika,1 now almost four
years old. She contends the Division of Child Protection and
Permanency failed to prove prongs two through four of the best
interests standard of N.J.S.A. 30:4C-15.1a(2)-(4) by clear and
convincing evidence. The Law Guardian joins with the Division
in urging we affirm the judgment. Having considered defendant's
arguments in light of the record and controlling law, we affirm
the termination of her parental rights.
The facts are fully set forth in Judge DeCastro's
comprehensive seventeen-page opinion, and need not be repeated
here. We note only that J.W. came to the Division's attention
in 2008, when she tested positive for PCP at the birth of her
first child. She also tested positive at the birth of her
1
This name is fictitious to protect the child's identity.
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second child in 2010. Both children now live with relatives in
kinship legal guardianships.
J.W. again tested positive for PCP in 2014 at Tamika's
birth. The baby suffered severe withdrawal symptoms, including
inability to sleep, extreme tremors, vomiting, sneezing and
arching her back. She required morphine and spent over two
months in the hospital being weaned from the drugs. The
Division removed her from her mother at discharge and placed her
shortly thereafter in the resource home where she has since
remained.
Over the next two years, the Division attempted to assist
defendant in overcoming her drug problem and provided supervised
visitation to allow her to bond with the child her drug
addiction prevented her from raising. Its efforts were largely
unsuccessful. Defendant resisted in-patient treatment,
insisting she could better address her addiction through an
outpatient program on her own. She continued to often test
positive for PCP or alcohol, doing so as recently as three
months before trial in 2016.
Defendant visited Tamika twice a week for the first
eighteen months of her life, although she sometimes arrived late
or failed to show up. She stopped visiting entirely, however,
for almost a year from September 2015 until June 2016 without
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explanation, resuming her visits only three months before trial.
The Division worker supervising those recent visits testified
they were hard on the toddler. Although defendant was well
disposed toward her daughter, the child cried and tried to leave
the room.
The Division had defendant evaluated twice, first in June
2015 and again in May 2016. The results of those evaluations
were almost identical. Defendant told the psychologist she
started using PCP when she was eighteen and was still using it
weekly when Tamika was born seven years later. She had not held
a job in a long time, lived with her mother or one of her
sisters and got by on assistance and food stamps.
The psychologist found no diagnosable psychiatric illness,
but testified defendant was in no position to parent based on
her untreated drug addiction. He opined she had no insight into
her problem and no plan to address it. He testified the
difficulty in overcoming a PCP addiction, and defendant's
failure to avail herself of treatment opportunities, made it
highly unlikely she would be able to sustain any remission she
managed on her own. He testified that returning Tamika to
defendant in the absence of sustained remission would expose the
child to serious harm.
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The same psychologist conducted two bonding evaluations
between defendant and Tamika. During the first evaluation in
2015, the child was just under two years old. Although the
psychologist observed that defendant was affectionate toward her
daughter, the baby responded indifferently, and there were
almost no reciprocal interactions between them. He found
little, if any, attachment. When the psychologist saw the two
together again the following year, Tamika avoided eye contact
and even resisted her mother's attempt to hug or cuddle her.
The expert found no evidence of any bond between the two.
The psychologist testified that his observations of Tamika
and her resource mother stood in stark contrast to the
interactions between Tamika and defendant. Tamika sought her
resource mother's attention, who responded accordingly. Their
interaction was spontaneous, warm and lively. The expert
testified that the foster mother provided Tamika security and
comfort, and the bond between the two was reciprocal and strong.
He concluded that severing the bond between them would cause the
child severe and enduring harm.
Defendant did not present an expert but testified in her own
behalf that she wanted to be a parent to her daughter. She
acknowledged past mistakes, but claimed she was on a different
path now. She told the court she had gotten a job three weeks
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before, had resumed visits with her daughter, was attending
parenting classes and had not used PCP in the last two months.
Although expressing her willingness to take a drug test, she
conceded it would likely be positive because the PCP she took two
months before would still be in her system.
Applying the statutory factors, N.J.S.A. 30:4C-15.1a, to
the facts adduced at trial, Judge DeCastro entered a judgment
terminating defendant's parental rights. The judge concluded
there was no question but that defendant had caused Tamika
actual harm by "failing to get treatment for her longstanding
PCP addiction," resulting in the child suffering severe
withdrawal symptoms at birth. She found defendant has never
been able to support her daughter or provide her a safe and
stable home. Defendant refused services, was unwilling to get
the drug treatment she needs and does not acknowledge the risks
her continuing addiction pose to Tamika.
Relying on the credible testimony of the Division's expert,
the judge found defendant could not safely parent Tamika now or
in the foreseeable future. Judge DeCastro concluded that there
were "simply no alternatives to termination." The Division
explored and ruled out all relatives offered. There were no
viable placements and the child was "happy and well cared for"
by a resource family willing to adopt her. In light of those
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facts, the court concluded the Division had "met its burden of
proving by clear and convincing evidence that termination of the
defendant's parental rights will not do more harm than good."
Defendant appeals, presenting arguments contained in a single
point with multiple subparts:
THE TRIAL COURT FAILED TO PROPERLY APPLY THE
PREVAILING LEGAL STANDARD AND THE DIVISION
FAILED TO PROVE THE FOUR PRONGS OF THE "BEST
INTEREST" STANDARD CODIFIED IN N.J.S.A. 30:4C-
15.1 BY CLEAR AND CONVINCING EVIDENCE.
A. THERE IS NO CLEAR AND
CONVINCING EVIDENCE THAT J.W. IS
UNWILLING OR UNABLE IN THE
FORSEEABLE FUTURE TO ELIMINATE THE
HARM FACING [TAMIKA].
B. THE DIVISION FAILED TO
CONSISTENTLY PROVIDE REASONABLE
EFFORTS TO J.W. BY FAILING TO
FOSTER HER RELATIONSHIP WITH
[TAMIKA].
C. THERE IS NO CLEAR AND
CONVINCING EVIDENCE THAT
TERMINATION OF PARENTAL RIGHTS
WILL NOT DO MORE HARM THAN GOOD
UNDER THE FOURTH PRONG.
We find no merit in these arguments and affirm
substantially for the reasons set forth in Judge DeCastro's
comprehensive and well-reasoned written opinion of September 29,
2016.
Affirmed.
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