Opinion
DOCKET NO. A-5815-13T3
05-15-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. C.A.M., Defendant-Appellant, and J.M., Defendant. IN THE MATTER OF THE GUARDIANSHIP OF A.R.M., a Minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Catherine Reid, Designated Counsel, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa Dutton Schaffer, Assistant Attorney General, of counsel; Michelle D. Perry-Thompson, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor A.R.M. (Nancy P. Fratz, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti, Hoffman and Whipple. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-131-14. Joseph E. Krakora, Public Defender, attorney for appellant (Catherine Reid, Designated Counsel, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa Dutton Schaffer, Assistant Attorney General, of counsel; Michelle D. Perry-Thompson, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor A.R.M. (Nancy P. Fratz, Assistant Deputy Public Defender, on the brief). PER CURIAM
C.A.M. appeals from a final judgment entered by the Family Part on July 24, 2014, which terminated her parental rights to the minor child, A.R.M. We affirm.
The order also terminated the parental rights of the child's father, J.M. He has not taken an appeal from the court's order.
We briefly summarize the salient facts. The Division of Child Protection and Permanency (the "Division") first became involved with C.A.M. in June 2012, after it received a report indicating that C.A.M. had been abusing drugs while pregnant and engaging in prostitution to support her drug habit. The Division investigated the report. C.A.M. admitted that she had been using Percocet, but denied using heroin or smoking marijuana with phencyclidine or PCP. She indicated that J.M. had been physically abusing her and was in the county jail on a domestic violence charge.
In July 2012, C.A.M. was admitted to a hospital for emergency treatment as a result of a suspected drug overdose. C.A.M. was six months pregnant at the time. She was found to be intoxicated and under the influence of Xanax and other drugs. C.A.M. was offered services, including admission to a facility for detoxification and rehabilitation, but she declined the services, despite having been advised of the risks her drug use posed to the unborn child.
In September 2012, the Division was informed that C.A.M. had given birth to A.R.M. At the time, C.A.M. tested positive for benzodiazepine, cannabinoids and opiates. C.A.M. had not had any prenatal care, and she admitted that she had used drugs throughout the pregnancy. She also admitted that she used Xanax and Percocet two days before A.R.M. was born, and marijuana one month before the birth. Shortly thereafter, A.R.M. tested positive for marijuana and opiates. A.R.M. later began to display significant signs of drug withdrawal.
In October 2012, the Division filed a verified complaint in the Family Part seeking custody, care and supervision of A.R.M. The trial court granted the application on the day it was filed. Thereafter, at the court's direction, C.A.M. participated in a substance abuse evaluation and began treatment at My Father's House. On October 25, 2012, the court ordered that the child would remain in the Division's custody, care and supervision. The court also ordered C.A.M. to continue to cooperate with services arranged by the Division.
C.A.M. continued to use drugs, and in November 2012, she was admitted to an inpatient program at Sunrise House ("SH"). There, C.A.M. reported that she had begun using alcohol at the age of fifteen, and heroin at age sixteen. She said that in 2012, she had been using 200 bags of heroin each week. C.A.M. admitted that she had overdosed three times on drugs. The most recent overdose occurred shortly before her admission to SH.
C.A.M. said that her most recent overdose occurred after she "shot" seven bags of heroin and ingested seven Xanax. Thereafter, she woke up in the hospital. At the time of her admission to SH, C.A.M. had been arrested seven times for prostitution, possession of a controlled dangerous substance ("CDS"), and driving without a license. She had been incarcerated four times.
In January 2013, the trial court conducted a fact-finding hearing and C.A.M. stipulated that she had ingested illegal substances while pregnant with A.R.M., which caused the child to suffer symptoms of withdrawal at birth, and placed the child at significant risk of harm. The child remained in the Division's care, custody and supervision, and the Division continued to provide C.A.M. with services.
In August 2013, C.A.M. reported to the Division that she was three months pregnant. She told a caseworker she was using suboxone "off the street" and smoking marijuana. Later that month, C.A.M. tested positive for several opiates, including codeine, hydromorphone and morphine. About a week later, she tested positive for suboxone, opiates, and marijuana. Several days later, she tested positive for opiates and marijuana. In September 2013, C.A.M. advised the caseworker that she had not had any pre-natal care.
The Division advised C.A.M. that it had changed its plan from reunification to termination of parental rights, followed by adoption. The court conducted a permanency hearing on September 12, 2013, and approved the Division's plan. Thereafter, the Division filed its guardianship complaint.
In October 2013, C.A.M. entered the Center for Great Expectations ("CGE"). C.A.M. had then been using four bags of heroin a day. It appears that C.A.M. ceased using drugs at that time; however, she was on methadone. While at CGE, C.A.M. attended substance abuse meetings, parenting and life skills classes, and had individual counseling.
In February 2014, C.A.M. gave birth to another child. She did not anticipate being discharged from CGE until October 2014, after which she would start another supervised program at a different facility. She was expected to remain at the second facility until October 2015.
The child is not part of this litigation.
Judge Linda G. Baxter conducted a trial on the Division's guardianship complaint beginning on April 16, 2014. The Division called C.A.M. as a witness, and also presented testimony from the two caseworkers and Dr. Linda R. Jeffrey ("Dr. Jeffrey"), a psychologist with expertise in substance abuse treatment and prevention. C.A.M. presented testimony from Dr. Maria W. Deibler ("Dr. Deibler"), who is also a psychologist. She also presented testimony from one of the Division's caseworkers, a Division transportation worker, C.A.M.'s counselor at CGE, and K.D., the child's foster parent.
On July 24, 2014, Judge Baxter issued a lengthy oral decision, in which she concluded that the Division had established by clear and convincing evidence all four prongs of the test for termination of parental rights in N.J.S.A. 30:4C-15.1a. The court entered an order dated July 24, 2014, terminating C.A.M.'s parental rights to A.R.M. and awarding guardianship of the child to the Division. This appeal followed.
On appeal, C.A.M. argues that the Division failed to establish all four prongs of the test for termination of her parental rights. She essentially concedes that the Division established the first prong of the test, but says the evidence does not support the trial judge's determination that the Division established the other three prongs of the test. We reject these arguments and affirm substantially for the reasons stated by Judge Baxter in her thorough oral opinion of July 24, 2014. We add the following.
Parents have a fundamental constitutional right to raise their children. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986). The constitutional protection of parental rights is tempered, however, "by the State's parens patriae responsibility to protect the welfare of children." In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). Accordingly, the Division is authorized to initiate a petition to terminate parental rights in the "best interests of the child" if the Division establishes by clear and convincing evidence that:
(1) [t]he child's safety, health or development has been or will continue to be endangered by the parental relationship;
(2) [t]he 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;"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." K.H.O., supra, 161 N.J. at 348.
(3) [t]he 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) [t]ermination of parental rights will not do more harm than good.
[N. J.S.A. 30:4C-15.1a.]
The scope of our review in 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). "Appellate courts must defer to a trial judge's findings of fact if supported by adequate, substantial, and credible evidence in the record." Ibid. (citing In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). In addition, we accord substantial deference to the findings of the Family Part due to its "special jurisdiction and expertise in family matters[.]" Cesare v. Cesare, 154 N.J. 394, 413 (1998).
C.A.M. argues that that the trial court erred in concluding that the Division had established the second prong of N.J.S.A. 30:4C:-15.1a, which requires the Division to show that she was unwilling or unable to eliminate the harm to the child and that the delay in permanent placement would add to that harm. She argues that she had progressed in her rehabilitation to the point where she had ceased causing harm to A.R.M. She says she had safely parented her younger child while at CGE, and had steadily reduced her doses of methadone. She asserts that she had successfully secured transitional housing for the time following her discharge from CGE.
We are convinced, however, that there is sufficient credible evidence in the record to support Judge Baxter's findings on prong two of the statutory test. In her decision, the judge noted that the evidence showed that C.A.M.'s addiction to heroin is severe, as shown by the length of time she was expected to remain at CGE.
The judge pointed out that C.A.M. had been on seventy milligrams of methadone per day, down from her previous dosage of one hundred grams. C.A.M. planned to be released from CGE after being entirely weaned off methadone, if there was assurance she would not relapse at that time. The judge noted that C.A.M. continued to experience strong cravings for heroin.
The judge found Dr. Jeffrey's testimony to be "extremely credible." Dr. Jeffrey had stated that C.A.M. was still in the early stages of recovery, and that she did not have an established record of sustained sobriety or abstinence outside of a controlled environment. The judge noted that after discharge from CGE, C.A.M. would continue to reside in another controlled environment for a year.
Thereafter, there were factors suggesting the potential for relapse. The judge noted that C.A.M. had relapsed shortly after completing the inpatient program at SH. She has a lengthy, seven-year history of severe use of multiple drugs. She used heroin as recently as October 2013. In addition, according to Dr. Jeffrey, C.A.M. had little insight into how her drug use had harmed A.R.M. Moreover, C.A.M. had unresolved adjustment and personality disorders that would "complicate the process of her recovery."
The judge accepted Dr. Jeffrey's opinion that reunification should not be considered until C.A.M. achieved one year of sustained sobriety outside a controlled environment. The judge rejected as unpersuasive Dr. Deibler's view that C.A.M. would achieve one year of sustained remission in October 2014. The judge pointed out that C.A.M. would have remained in a controlled environment until that time.
Moreover, the judge cited other reasons why Dr. Jeffrey's testimony was more persuasive than Dr. Diebler's testimony. She noted Dr. Jeffrey's experience and training. She also noted that Dr. Deibler had not been aware of C.A.M.'s cravings while at CGE, or of C.A.M.'s numerous incarcerations and history of prostitution.
The judge found that it might be possible for C.A.M. to achieve a year of sobriety outside of a controlled environment by October 2016, but her chances of doing so were not promising. Moreover, as indicated by Dr. Jeffrey, C.A.M. had "an unrealistic and ill-informed understanding of the depth of change that would be required in order to achieve sustained abstinence." The judge concluded that C.A.M. was not able to fully eliminate the harm to A.R.M. posed by her persistent, severe drug addiction. The record supports that determination.
Next, C.A.M. argues that the trial judge erred by finding that the Division established prong three of the statutory test, which requires the Division to prove that it made reasonable efforts to correct the circumstances that led to the child's removal from C.A.M.'s care, and that it has considered alternatives to termination of parental rights. N.J.S.A. 30:4C-15.1a(3).
C.A.M. argues that the Division failed to make efforts toward reunification, despite testimony from a clinical supervisor at CGE that she could be reunified with the child. She asserts that the Division initially referred her to programs that were not adequate to address her condition, and maintains that the Division's efforts to encourage a parent-child bond were minimal, at least after October 2013. She further argues that the Division failed to consider reunification as an alternative to termination of parental rights. Again, we disagree.
Here, the record shows that the Division provided C.A.M. with an array of services, including one year of inpatient treatment at CGE. C.A.M.'s claim that the Division failed to provide regular and meaningful visitation is without merit. Visits were arranged while C.A.M. was receiving outpatient treatment and later while she was at CGE. C.A.M. also missed several scheduled visits with A.R.M., but the Division took steps to have the missed visits rescheduled.
In addition, the trial judge properly found that there were no alternatives to termination of parental rights. The judge pointed out that kinship legal guardianship ("KLG") was not a viable option because A.R.M.'s caretaker indicated that she was interested in adopting the child. See N.J. Div. of Youth & Fam. Servs. v. P.P. 180 N.J. 494, 512-13 (2004) (holding that KLP not a defense to termination of parental rights when adoption is feasible). Moreover, C.A.M.'s claim that the Division should have pursued reunification is meritless, because the record shows that she was not capable of providing the child with a safe and stable home, and as the judge found, it was unlikely she would be able to do so in a reasonable time.
Last, C.A.M. argues that the judge erred by finding that the Division established the fourth prong of the test, which requires that the Division show that termination of her parental rights would not do more harm than good. N.J.S.A. 30:4C-15.1a(4). Again, we disagree.
At the trial, Dr. Jeffrey testified that A.R.M. had developed a secure attachment to her foster parent, and that severance of that relationship would place the child at risk of serious and enduring harm. Dr. Jeffrey noted that, during her bonding evaluation, A.R.M. showed little affection for C.A.M. and saw C.A.M., in Dr. Jeffrey's view, essentially as a pleasant stranger. Dr. Jeffrey also indicated that, because C.A.M. was not capable of safely parenting A.R.M., placing the child in her care would cause A.R.M. harm, especially in view of A.R.M.'s special needs.
We are therefore convinced that the record supports Judge Baxter's determination that there was clear and convincing evidence showing that termination of C.A.M.'s parental rights would not do more harm than good.
We have considered C.A.M.'s other arguments and find that they are without sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION