DCPP VS. S.A.I. AND M.P.IN THE MATTER OF THE GUARDIANSHIP OF N.A.P.(FG-11-0044-16, MERCER 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NOT FOR PUBLICATION WITHOUT THE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-1590-16T3

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

S.A.I.,

Defendant-Appellant,

and

M.P.,

Defendant.

IN THE MATTER OF THE GUARDIANSHIP
OF N.A.P.,

Minor.

Submitted October 3, 2017 – Decided October 13, 2017

Before Judges Yannotti, Carroll and Mawla.

On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Mercer County,
Docket No. FG-11-0044-16.
 Joseph E. Krakora, Public Defender, attorney
for appellant (Louis W. Skinner, Designated
Counsel, on the briefs).

Christopher S. Porrino, Attorney General,
attorney for respondent (Melissa H. Raksa,
Assistant Attorney General, of counsel;
Melvina Fennell, Deputy Attorney General, on
the brief).

Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minor (Melissa R.
Vance, Assistant Deputy Public Defender, on
the brief).

PER CURIAM

Defendant S.A.I., the biological mother of N.A.P., born in

September 2014, appeals from the October 28, 2016 Family Part

judgment that terminated her parental rights to the child. The

judgment also terminated the parental rights of the child's

biological father, defendant M.P., who does not appeal. Defendant

contends that plaintiff New Jersey Division of Child Protection

and Permanency (Division) failed to prove all four prongs of

N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. The Law

Guardian supported termination before the trial court and, on

appeal, joins the Division in urging us to affirm. Having

considered the parties' arguments in light of the record and

applicable legal standards, we affirm.

I.

2 A-1590-16T3
 We will not recite in detail the history of the Division's

involvement with defendant and N.A.P. Instead, we incorporate by

reference the factual findings set forth in Judge Audrey P.

Blackburn's detailed October 28, 2016 oral opinion. We summarize

the most pertinent facts to lend context to the legal analysis

that follows.

Defendant suffers from a long-standing history of substance

abuse and mental health issues. She has used heroin since 2002,

interspersed with short periods of sobriety. Although the Division

provided defendant with a wide variety of services, she has yet

to maintain long-term sobriety or achieve any of her parenting

objectives, such as obtaining employment or housing. She has also

engaged in a pattern of willful lack of contact with N.A.P. for

sustained periods of time.

N.A.P. tested positive for opiates and methadone at birth.

Consequently, he was placed in the hospital's neonatal intensive

care unit and then released to the care of defendant's mother,

M.I., who was required to supervise contact between defendant and

the child. In November 2014, defendant admitted to a heroin

relapse and tested positive for opiates and methadone. Shortly

thereafter, defendant took N.A.P. to the home of parental

relatives. In February 2015, the Division received a call

3 A-1590-16T3
reporting that defendant and M.P. had been using drugs every day

since Christmas 2014, while N.A.P. was in their care.

The Division sought, and was awarded, custody, care, and

supervision of N.A.P. Defendant and M.P. were offered services

related to their substance abuse, including supervised visitation

predicated upon them maintaining sobriety. N.A.P. was removed

from the home on February 25, 2015, and placed with an aunt and

uncle, with whom he continues to reside.

In March 2015, defendant entered an inpatient treatment

program in Florida. She was discharged the next month for

noncompliance. In May 2015, defendant requested assistance from

the Division in finding a sober living home. In June, she began

treatment at Catholic Charities Family Growth Program in Trenton.

Around this time, the Division approved defendant's mother, M.I.,

to supervise her visitation with N.A.P. The Division subsequently

ceased this visitation after discovering that M.I. was allowing

defendant to have overnight visits and was not supervising

defendant's contact with N.A.P., contrary to court orders. The

Division then referred defendant to Legacy Reunification Services

for supervised visits. Legacy also offered individual therapy and

parenting classes. However, defendant missed several intake

appointments at Legacy and several counseling appointments at

4 A-1590-16T3
Catholic Charities. As a result, she was terminated from both

programs.

In November 2015, the Division held a family team meeting

with N.A.P.'s aunt and uncle. N.A.P. had no visits with either

of his parents at this time, and their whereabouts were unknown.

At the meeting, N.A.P.'s aunt and uncle committed to caring for

him on a long-term basis. The Division's focus then moved from

pursuing care and supervision of N.A.P. to termination of parental

rights and adoption.

In March 2016, the Division classified defendant's status as

"missing." She was located the following month in the Bluestone

Recovery program in California. She had used heroin on a daily

basis for six months prior to her enrollment in Bluestone. She

also used cocaine on a weekly basis during four of those prior six

months. Defendant completed the program in California, and was

released with the expectation that she would attend outpatient

substance abuse treatment at least once a week, attend NA meetings,

maintain contact with her NA sponsor, and reside in a sober living

home. After discharge, defendant moved to Pennsylvania to live

with her sister. As of August 2016, when the guardianship trial

commenced, she had not met the expectations of the Bluestone

program.

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 During her time at Bluestone, from approximately April to

August 2016, defendant had only one contact with N.A.P., when the

Division flew her to New Jersey for a psychological and bonding

evaluation. The psychological evaluation revealed defendant had

a borderline deficiency IQ score, no coping skills, unpredictable

anger, and an elevated presence of bipolar traits including

moodiness, erratic behavior, and instability. The Division's

expert psychologist testified that these traits have an impact

upon defendant's ability to parent because she cannot remain calm

under stress. During the bonding evaluation, N.A.P. cried

continuously while separated from his resource parents. When

defendant attempted to show affection toward N.A.P. to stop his

crying, he hit her in the face.

The Division's expert concluded that: N.A.P. had no

attachment to defendant; defendant would not be able to safely

parent N.A.P. in the near future; and defendant required intense

therapy and substance abuse treatment. In contrast, the resource

parents were meeting N.A.P.'s developmental needs; he shared a

strong attachment with them; and they were his psychological

parents. The expert opined that delay in permanency and removing

N.A.P. from their home would be detrimental to his psychological

functioning.

6 A-1590-16T3
 Judge Blackburn found the testimony of the Division's expert

and caseworkers at the guardianship trial credible, and she adopted

their testimony. In contrast, the judge gave "little weight" to

defendant's expert psychologist. The judge explained that the

defense expert relied on inaccurate information from defendant

about her period of sobriety, and did not conduct a bonding

evaluation before recommending that services continue for

defendant's future reunification with N.A.P.

Based on these findings, Judge Blackburn 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-15.1(a),

and defendant's parental rights to N.A.P. should therefore be

terminated. This appeal followed.

II.

The scope of our review on an appeal from an order terminating

parental rights is limited. N.J. Div. of Youth & Family Servs.

v. G.L., 191 N.J. 596, 605 (2007) (citing In re Guardianship of

J.N.H., 172 N.J. 440, 472 (2002)). We will uphold a trial judge's

factfindings if they are "supported by adequate, substantial, and

credible evidence." N.J. Div. of Youth & Family Servs. v. R.G.,

217 N.J. 527, 552 (2014) (citing N.J. Div. of Youth & Family Servs.

v. E.P., 196 N.J. 88, 104 (2008)). No deference is given to the

court's "interpretation of the law," which is reviewed de novo.

7 A-1590-16T3
D.W. v. R.W., 212 N.J. 232, 245-46 (2012) (citing N.J. Div. of

Youth & Family Servs. v. I.S., 202 N.J. 145, 183 (2010); Balsamides

v. Protameen Chems., 160 N.J. 352, 372 (1999)).

We "accord deference to factfindings of the family court

because it has the superior ability to gauge the credibility of

the witnesses who testify before it and because it possesses

special expertise in matters related to the family." N.J. Div.

of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2014) (citing

Cesare v. Cesare, 154 N.J. 394, 413 (1998)). "Only when the trial

court's conclusions are so 'clearly mistaken' or 'wide of the

mark' should an appellate court intervene and make its own findings

to ensure that there is not a denial of justice." E.P., supra,

196 N.J. at 104 (quoting G.L., supra, 191 N.J. at 605). We also

accord deference to the judge's credibility determinations "based

upon his or her opportunity to see and hear the witnesses." N.J.

Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88

(App. Div. 2006) (citing Cesare, supra, 154 N.J. 394 at 411-13),

certif. denied, 190 N.J. 257 (2007).

When terminating parental rights, the court focuses on the

"best interests of the child standard" and may grant a petition

when the four prongs set forth in N.J.S.A. 30:4C-15.1(a) are

established by clear and convincing evidence. In re Guardianship

of K.H.O., 161 N.J. 337, 347-48 (1999). "The four criteria

8 A-1590-16T3
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.

Defendant contends there was insufficient evidence supporting

the court's findings on each of the four prongs of the best

interests standard. After reviewing defendant's arguments in

light of the record and applicable legal principles, we are

convinced that there is substantial credible evidence supporting

the court's findings of fact and determination that the Division

established by clear and convincing evidence under N.J.S.A. 30:4C-

15.1(a) that it was in N.A.P.'s best interest to terminate

defendant's parental rights. We add the following comments.

A. Prong One

The first prong of the best interests of the child 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). "[T]he

Division must prove harm that 'threatens the child's health and

will likely have continuing deleterious effects on the child.'"

N.J. Div. of Youth & Family Servs. v. A.L., 213 N.J. 1, 25 (2013)

(quoting K.H.O., supra, 161 N.J. at 352).

9 A-1590-16T3
 Defendant argues that although N.A.P. tested positive for

opiates and methadone at birth, there is no evidence he suffered

any physical, cognitive, or developmental harm attributable to her

drug use. Defendant further contends she can parent the child

with assistance, and her inability to obtain stable housing was

due to poverty alone.

We are not persuaded by defendant's arguments. It is well

settled that the Division need not demonstrate actual harm in

order to satisfy prong one. 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). Rather, the focus under the first prong is

not on any "single or isolated harm," but rather on "the effect

of harms arising from the parent-child relationship over time on

the child's health and development." K.H.O., supra, 161 N.J. at

348 (citing N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J.

591, 604-10 (1986)). The harm may be established by "a delay in

establishing a stable and permanent home." In re Guardianship of

D.M.H., 161 N.J. 365, 383 (1999).

Furthermore, "[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." Id.

at 379 (citing K.H.O., supra, 161 N.J. at 352-54). Additionally,

a parent's "persistent failure to perform any parenting functions

10 A-1590-16T3
and to provide . . . support for [the child] . . . constitutes a

parental harm to that child arising out of the parental

relationship [that is] cognizable under N.J.S.A. 30:4C-15.1(a)(1)

and (2)." D.M.H., supra, 161 N.J. at 380-81 (citing K.H.O. supra,

161 N.J. at 352-54).

Here, the record establishes that defendant's relationship

with N.A.P. caused the child harm. N.A.P. was born with drugs in

his system. More importantly, defendant relapsed thereafter, and

used drugs daily while caring for her infant child. The Division

removed N.A.P. some five months later because defendant could not

provide him with a safe and stable home. As of the time of the

guardianship trial, defendant had yet to maintain consistent

sobriety or achieve any parenting goals, such as securing

employment or housing. Defendant also failed to consistently

visit the child, including a lengthy period from August 2015 to

July 2016, thereby causing N.A.P. additional harm. Accordingly,

the court correctly found that the Division established harm under

the first prong of the best interests standard.

B. Prong Two

Prong two requires the Division to prove that the parent is

unable or unwilling to eliminate the harm that led to the child's

removal, and that a delay in permanent placement will cause further

harm. N.J.S.A. 30:4C-15.1(a)(2). "The second prong, in many

11 A-1590-16T3
ways, addresses considerations touched on in prong one." F.M.,

supra, 211 N.J. at 451. The focus is on parental unfitness.

K.H.O., supra, 161 N.J. at 352; D.M.H., supra, 161 N.J. at 378-

79. In considering this prong, the court should determine whether

it is reasonably foreseeable that the parent can cease to inflict

harm upon the child. A.W., supra, 103 N.J. at 607. The second

prong may be satisfied

by indications of parental dereliction and
irresponsibility, such as the parent's
continued or recurrent drug abuse, the
inability to provide a stable and protective
home, the withholding of parental attention
and care, and the diversion of family
resources in order to support a drug habit,
with the resultant neglect and lack of nurture
for the child.

[K.H.O., supra, 161 N.J. at 353.]

"Prong two may also be satisfied if 'the child will suffer

substantially from a lack of . . . a permanent placement and from

the disruption of [the] bond with foster parents.'" F.M., supra,

211 N.J. at 451 (quoting K.H.O., supra, 161 N.J. at 363).

Defendant argues that the Division failed to show that she

is unwilling or unable to eliminate the harm to N.A.P. She

concedes she did not establish a bond with N.A.P., but asserts

that her focus on addressing her substance abuse issues provides

a reasonable explanation for not doing so.

12 A-1590-16T3
 The evidence, however, supports the court's finding that

defendant was unable and unwilling to eliminate the risk of harm

to N.A.P. As we have noted, defendant is unable to provide N.A.P.

with a safe and stable home, either now or in the foreseeable

future. Even after completing the Bluestone program in California,

she failed to enroll in after-care treatment or demonstrate a

continued commitment to maintaining long-term sobriety.

Additionally, based on the testimony of the Division's expert

psychologist, the court properly determined that a delay in

permanency would cause N.A.P. further harm.

C. Prong Three

The third prong of the best interests of the child standard

requires the Division to establish that it made reasonable efforts

to help the parent correct the circumstances that led to the

child's removal from the parent's care, and "considered

alternatives to termination of parental rights." N.J.S.A. 30:4C-

15.1(a)(3). "The diligence of [the Division's] efforts on behalf

of a parent is not measured by their success. . . . These efforts

must be assessed against the standard of adequacy in light of all

the circumstances of a given case." D.M.H., supra, 161 N.J. at

393.

We are not persuaded by defendant's argument that the Division

failed to make reasonable efforts to bring about family

13 A-1590-16T3
reunification. She asserts that reunification was recommended if

she received adequate housing, financial support, and engaged in

treatment. She argues, unconvincingly, that the Division did not

offer her these services.

"Reasonable efforts" means "attempts by an agency authorized

by the [D]ivision to assist the parents in remedying the

circumstances and conditions that led to the placement of the

child and in reinforcing the family structure, including, but not

limited to:" developing a plan for reunification; providing agreed

upon services; informing the parent of the child's progress; and

"facilitating appropriate visitation." N.J.S.A. 30:4C-15.1(c).

"Whether particular services are necessary in order to comply with

the [reasonable] efforts requirement must [] be decided with

reference to the circumstances of the individual case before the

court . . . ." D.M.H., supra, 161 N.J. at 390. The Division's

efforts need not be successful to be reasonable. F.M., supra, 211

N.J. at 452; D.M.H., supra, 161 N.J. at 393.

The record reflects that defendant received supervised

visitation, which she routinely either failed to attend or comply

with. The Division also offered her a host of services, including

evaluations, inpatient referrals, treatment, and therapy.

Defendant chose to pursue substance abuse services in Florida and

California, instead of utilizing the services the Division could

14 A-1590-16T3
have provided her in New Jersey while also exercising visitation

with N.A.P. We are therefore satisfied the court correctly

determined that the Division established by clear and convincing

evidence the third prong of the best interests standard. N.J.S.A.

30:4C-15.1(a)(3).

D. Prong Four

The fourth prong of the best interests of the child standard

requires the Division to show that termination of defendant's

"parental rights will not do more harm than good." N.J.S.A. 30:4C-

15.1(a)(4). Termination of parental rights poses a risk to

children due to the severing of the relationship with their natural

parents, but it is based "on the paramount need the children have

for permanent and defined parent-child relationships." K.H.O.,

supra, 161 N.J. at 355 (quoting In re Guardianship of J.C., 129

N.J. 1, 26 (1992)).

Thus, "the fourth prong of the best interests standard [does

not] require a showing that no harm will befall the child as a

result of the severing of biological ties." Ibid. The court must

consider and balance whether "the child will suffer a greater harm

from the termination of ties with [his or] her natural parents

than from the permanent disruption of [his or] her relationship

with [his or] her foster parents." Ibid.

15 A-1590-16T3
 Here, there is sufficient credible evidence in the record

supporting Judge Blackburn's finding that the Division established

prong four of the best interests standard. Defendant contends the

judge erroneously focused on N.A.P.'s relationship with the foster

parents, and mistakenly found that termination of defendant's

parental rights was necessary for N.A.P. to achieve permanency.

We reject these arguments because the court found the Division's

expert, who conducted the only bonding evaluation, to be a credible

witness. The expert testified that N.A.P. had no bond with

defendant but had a strong bond with his resource parents. The

expert concluded that N.A.P. would not be harmed if defendant's

parental rights were terminated, but would experience harm if

removed from his resource parents. This clear and convincing

evidence supported the court's finding that termination of

defendant's parental rights will not do more harm than good.

Affirmed.

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