Opinion
DOCKET NO. A-5841-10T2
04-10-2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. L.D.-S.,Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF L.A.D.S., a Minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Cheryl L. Gammone, Designated Counsel, on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Rita Ann Gesualdo, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor L.A.D.S. (Cory H. Cassar, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino, Maven, and Carroll.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-181-10.
Joseph E. Krakora, Public Defender, attorney for appellant (Cheryl L. Gammone, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Rita Ann Gesualdo, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor L.A.D.S. (Cory H. Cassar, Assistant Deputy Public Defender, on the brief). PER CURIAM
Defendant L.D.S. appeals from a June 24, 2011 judgment of guardianship of the Family Part terminating her parental rights to her then eight-year-old son, L.A.D.S. Defendant argues the Division of Youth and Family Services (Division) did not prove by clear and convincing evidence the four prongs of the termination statute. N.J.S.A. 30:4C-15.1(a). She also argues, for the first time on appeal, that absent a finding of abuse or neglect in the Title 9 proceeding, N.J.S.A. 9:6-8.21 to - 8.70, DYFS did not have the authority to retain custody of the child, the abuse and neglect complaint should have been dismissed, and L.A.D.S. should have been returned to her. Additionally, defendant claims she received ineffective assistance of counsel. The Law Guardian supports the termination on appeal, as it did before the trial court.
L.A.D.S's biological father, L.S., is deceased. He was not part of the guardianship trial nor is he part of this appeal.
On June 29, 2012, the Governor signed into law A-3101, which reorganized the Department of Children and Families, including the renaming of the Division as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.
Based on our review of the record and applicable law, we are satisfied the evidence in favor of the guardianship petition overwhelmingly supports the termination of defendant's parental rights. See, e.g., N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (holding that a reviewing court should uphold the factual findings respecting the termination of parental rights if they are supported by substantial and credible evidence in the record as a whole). Accordingly, we affirm.
I.
The Division's involvement with defendant began in June 2003 when she delivered L.A.D.S., who tested positive for benzodiazepines, methadone, and syphilis at birth. L.A.D.S. was immediately removed from his mother's care, and placed with his maternal grandfather.
At the time of the child's birth, defendant was in treatment at the University of Medicine and Dentistry of New Jersey (UMDNJ) for bipolar disorder, panic disorder, and major depression. She was prescribed Xanax, Paxil, and Elavil. She was also participating in a methadone maintenance program at Suburban Treatment Associates for substance abuse. Suburban Treatment Associates reported that defendant "has given clean urines since July 2003," and UMDNJ reported that defendant's "condition [wa]s stable" as of December 2003.
In April 2004, defendant regained custody of L.A.D.S. and resided with her father. Defendant continued to attend services at UMDNJ and Suburban Treatment Associates, and the Division provided her with a homemaker and parent aide services. The Division also referred defendant to an agency known as Substance Abuse Initiative, for substance abuse treatment. In June 2005, her case was closed due to non-compliance.
Between 2004 and 2008, the Division received six neglect referrals, all of which concerned defendant's alleged substance abuse. None of them were substantiated.
In January 2008, defendant was indicted for purposely attempting to obtain a controlled dangerous substance (Xanax) by fraud, contrary to N.J.S.A. 2C:5-1 and 2C:35-13. She pled guilty, and was placed on probation. In May 2008, defendant was admitted to American Habitare and Counseling, Inc. (Habitare) for outpatient substance abuse treatment services.
On August 25, 2008, the Division received a referral from defendant's probation officer that she seemed to be "under the influence of something." The officer informed DYFS that defendant tested positive for cocaine, opiates, benzodiazepines, and methadone in July and August 2008. Additionally, she violated her probation by missing three appointments. Defendant was sentenced to ninety days in prison on her probation violation.
The August 2008 referral was substantiated due to the positive drug screens and defendant's admission to illegal drug use during the probation violation hearing. Since defendant stated at the hearing that she did not have anyone to care for her son, the Division effectuated a Dodd removal pursuant to N.J.S.A. 9:6-8.29 and -8.30, and L.A.D.S. was placed in a foster home. On September 9, 2008, the Division filed a verified complaint for custody of L.A.D.S. pursuant to N.J.S.A. 9:6-8.21 and N.J.S.A. 30:4C-12.
Sometime during the summer of 2008, defendant's father passed away.
A "Dodd removal" refers to the emergency removal of a child from the home without a court order, pursuant to the Dodd Act, which, as amended, is found at N.J.S.A. 9:6-8.21 to -8.82.
During defendant's incarceration, the Division facilitated visitations. She was released in November 2008. However, Natasha Talmadge-Evans, the Division caseworker assigned to the family from December 2008 to February 2010, testified at the termination hearing that custody of L.A.D.S. remained with the Division because defendant "had previous issues with substance abuse and had admitted that she had used substances" sometime in November 2008.
The Division facilitated supervised biweekly visitation between defendant and L.A.D.S., which began in December 2008. While these visits were generally positive, defendant arrived late on numerous occasions, missed some altogether, and inappropriately discussed her pending case at times. On December 17, 2008, defendant refused to submit to a court-ordered drug screen.
On January 5, 2009, the Division conducted a Comprehensive Health Evaluation for Children ("CHEC") of L.A.D.S. It noted that L.A.D.S. had dental issues, a speech impairment, and developmental delays. The Division provided him with dental services, mentoring and therapy services, and psychological, psychiatric, and neurodevelopmental evaluations. Also, L.A.D.S. was underweight, so the Division referred him to a nutritionist. All of the child's issues developed while in defendant's care.
On January 23, 2009, the court conducted a fact-finding hearing. Defendant submitted to a court-ordered drug screen, and tested positive for heroin and benzodiazepines. She attributed the positive results to her prescribed medications of Elanil, Xanax, and promethazine. The court found that the Division did not prove that defendant had abused or neglected her child, and gave it until February 19 to reinstate the case. L.A.D.S. remained in the Division's custody.
That transcript is not part of the appellate record.
In late January 2009, L.A.D.S. was placed in a new foster home because his previous foster mother believed "he ha[d] too many issues that need[ed] to be addressed."
At a compliance review hearing on February 17, 2009, the court ordered a drug screen. Defendant tested positive for opiates and benzodiazepines, and negative for methadone.
At another compliance review hearing in March 2009, the court ordered a Certified Alcohol and Drug Counselor ("CADC") to evaluate whether defendant's prescription medications caused the positive drug screens, as she maintained.
On April 20, 2009, the court denied defendant's motion for the "immediate return" of L.A.D.S., and again ordered that defendant allow an expert to determine whether her positive drug screens resulted from her prescribed medications. Defendant failed to attend scheduled appointments with the CADC, and failed to submit to a court-ordered hair follicle test. Consequently, the court ordered the Division to file an amended complaint. The court also approved L.A.D.S.'s continued foster placement pursuant to N.J.S.A. 30:4C-11.2, because defendant tested positive for illegal drugs.
On June 17, 2009, the Division conducted a child study team evaluation of L.A.D.S., which concluded that he needed special education services. Defendant arrived at the evaluation "nearly [two] hours late." Defendant disruptively discussed her case at the meeting, and became "very defensive" at the suggestion of special education services. The meeting ultimately ended due to defendant's inappropriate behavior.
Based upon the child study team evaluation results, the Division provided L.A.D.S. with a myriad of services through his specialized school, including occupational therapy, speech and language therapy, individual counseling, group counseling, [and] transportation. Those services aimed to assist L.A.D.S. function with his diagnoses of Attention Deficit Hyperactivity Disorder (ADHD) and severe/moderate dysphonetic dyslexia. Also, L.A.D.S.'s ADHD medication helped improve his behavior.
At a compliance review hearing on September 25, 2009, defendant failed to submit to a drug screen, so the court inferred that she "would be positive for illegal substances."
On November 16, 2009, the Family Connections Reunity House Program (Reunity House) notified the Division that its serviceswere terminated due to defendant's non-attendance at the initial intake appointment, which was rescheduled several times.
The services included substance abuse treatment, parenting skills, and supervised visitation.
On November 18, 2009, at a fact-finding hearing, defendant stipulated that she was "in need of Division services in order to care for her son."
Following compliance review hearings in November and December 2009, the court ordered defendant to receive treatment at Reunity House, submit to a psychological evaluation, and permit the release of her psychiatric records from her treating physician.
On February 5, 2010, Reunity House notified DYFS that defendant again failed to attend her initial intake appointment, and therefore services were terminated for non-compliance. Defendant was also non-compliant with the court-ordered services discussed during the compliance review hearings in November and December 2009. Thus, by February 25, 2010, the court-approved permanency plan provided for termination of defendant's parental rights, followed by adoption.
In May 2010, defendant began receiving treatment at Habitare. As part of the initial intake process, defendant admitted to daily use of heroin and benzodiazepines in late April and May 2010, as well as alcohol and cocaine in May 2010. On May 7, 2010, the Division filed a complaint for guardianship of L.A.D.S.
On June 7, 2010, defendant tested positive for morphine and benzodiazepines. On July 8, she tested positive for methadone and opiates. On July 22 and 28 she tested positive for methadone, opiates, and cocaine. On July 26, defendant failed to submit to a drug screen. As a result, the court drew "a negative inference" due to her non-compliance.
Meanwhile, on July 9, 2010, L.A.D.S. was placed in another Division-approved foster home, where he has remained since that time. S.G., the foster mother, expressed her wish to adopt him.
On August 2, 2010, defendant tested positive for methadone and opiates. On September 9, 2010, defendant was evaluated by a CADC from Catholic Charities. Defendant reported that she had not used heroin in two years, despite reporting to Habitare that she had used it in May 2010. Additionally, she told the CADC that she had never used cocaine or benzodiazepines, despite reporting to Habitare that she used both. Defendant also told the CADC that she had received drug treatment only once in her life and had never received psychiatric treatment, despite receiving multiple treatments since L.A.D.S.'s birth. Catholic Charities recommended that she continue on her opioid maintenance therapy. On September 10 and 22, 2010, defendant tested positive for benzodiazepines.
In November 2010, the Division proposed a case plan, which suggested "parenting skills classes," "anger management class," a psychological evaluation, and participation in a Mentally Ill Chemically Addicted ("MICA") program. Defendant refused to agree to the plan.
In February 2011, the Division instituted a case plan, whereby defendant agreed to comply with psychological and psychiatric recommendations, participate in a MICA program, complete parenting skills and anger management classes, find employment, and release records from UMDNJ and Habitare to the Division. In April 2011, defendant was enrolled in parenting skills classes. As of trial, she had attended seven of those twelve parenting sessions.
Defendant failed to enroll in the MICA program. She also only attended one anger management session, during which the counselor suspected she was intoxicated. Consequently, she was terminated for non-compliance.
In April 2011, defendant signed a release for her records from Habitare. Those records revealed that she tested positive for cocaine on April 11, April 20, and May 9, 2011, and spent $1,000 on drugs despite being unemployed.
In May 2011, S.G. expressed concern regarding services that the Division was providing for L.A.D.S. Specifically, S.G. wanted to ensure that the services would continue after L.A.D.S.'s adoption. Division caseworker Shantia Hedrington assured S.G. that this would occur. Since then, S.G. has not wavered in her desire to adopt L.A.D.S. As of trial, L.A.D.S. was doing well in this foster placement.
Trial was held on June 13, 14 and 15, 2011. The Division called four witnesses: psychologist Eric Steven Kirshner, Ph.D.; and Division case workers Talmadge-Evans, Jacqueline Ptashchinski, and Hedrington. The Law Guardian did not call any witnesses. Defendant testified, but called no other witnesses.
At trial, both Talmadge-Evans and Hedrington emphasized that defendant was repeatedly "very non-compliant" with all Division-provided services. Hedrington further stated that defendant's non-compliant behavior indicated she "continues to not really accept her part in the reason that [L.A.D.S.] was placed."
Defendant testified that she knew she needed someone to "split custody" with her. The Division assessed many proposed co-parents, three of whom were purportedly related to defendant. Defendant rescinded her request to assess one of those potential co-parents. The other two were proposed a month before trial, and the Division had not completed its assessment of them as of trial.
Defendant further testified she has been told she has "two other personalities . . . it's a frightened one, . . . [and] a dominant one. [She couldn't] tell . . . when they're coming." When questioned about her positive drug screens, she denied using illegal substances, explaining that the results were due to her prescribed medications. She also noted that she has "made mistakes . . . [and is] not perfect."
On cross-examination, the Law Guardian's trial counsel asked defendant why she failed to comply with services if she wanted her son returned. Defendant did not offer an explanation, stating that she "apologized for fighting against [the Division] . . . [and] just want[ed] to end this."
One psychological expert, Dr. Kirschner, testified at trial. Dr. Kirschner conducted a psychological evaluation of defendant, and a bonding evaluation between defendant and L.A.D.S., in August and September 2010, respectively. He also conducted a bonding evaluation with the child and foster family in February 2011.
During defendant's evaluation, she indicated that she used cocaine since her late twenties or early thirties, and was frequently called "Ms. Mixer" because she mixed cocaine with heroin. Toward the end of the evaluation, defendant became "very frustrated," and took back her signed consent form. Upon leaving the evaluation, defendant stated to Dr. Kirschner: "As far as I'm concerned, I didn't see you today. I had an emergency. Be more careful with your security . . . bing-bong." Defendant subsequently failed to complete the evaluation.
Dr. Kirschner diagnosed defendant with opioid and cocaine dependence as well as bipolar, anxiety, and impulse control disorders. At trial he opined that defendant's behavior at the psychological evaluation posed a risk of harm to L.A.D.S. because her "mood instability" made it difficult to provide the child with "nurturance," and her "paranoid undertones" impeded her ability to provide the child with "adequate safety." Moreover, defendant's behavior was likely to promote anxiety and instability in L.A.D.S. Dr. Kirschner further opined that defendant would need years of treatment to overcome her psychological issues. It was particularly alarming to Dr. Kirschner that defendant failed to recognize that she was in need of treatment, as evidenced by her lack of engagement in Division-provided services.
Additionally, Dr. Kirschner expressed concern regarding defendant's prescriptions for Xanax and cough syrup with codeine. Both prescriptions have an "addictive component," and there existed "the issue of ongoing and continuous abuse of . . . both legal and illegal substances."
With respect to whether defendant could co-parent, as she proposed, Dr. Kirschner believed that her narcissistic personality would "serve as an impediment to her being able to work in conjunction with somebody."
Regarding the bonding evaluation between defendant and L.A.D.S., Dr. Kirschner observed that defendant repeatedly questioned the child on various topics, and the child "tried to leave." When defendant left the room, L.A.D.S. was "relatively non-distressed." According to Dr. Kirschner, another failed attempt at reunification "wouldn't be positive" because, as the child aged, he "may come to draw conclusions that somehow he's played a role or had a hand in this process, and that somehow he's at fault or to blame."
With respect to the bonding evaluation between L.A.D.S. and his foster mother, Dr. Kirschner opined that there was a "secure attachment" between them, and the child would suffer harm if removed from her care. Dr. Kirschner concluded that there existed no attachment between mother and child, and the child would not suffer a "serious and enduring quality of harm" if defendant's parental rights were terminated. Additionally, any harm that may occur by termination of parental rights would be mitigated by the child's placement with his foster mother. If L.A.D.S.'s foster placement should fail, Dr. Kirschner would not support reunification with defendant because he was "concerned about [her] psychological functioning and ability to . . . adequately parent and meet [L.A.D.S.'s] needs, and placing him in her care . . . would place him at . . . high risk of . . . harm."
At the conclusion of trial, Judge Margaret M. Haydenperformed the statutory analysis and rendered a comprehensive oral decision accompanied by an order terminating defendant's parental rights to L.A.D.S. The judge found the Division had proved its case by clear and convincing evidence. This appeal ensued.
Judge Hayden was not the judge during the prior proceedings.
On appeal, defendant raises the following arguments:
I. THE TRIAL COURT ERRED IN FAILING TO DISMISS THE TITLE [9] CASE AFTER MOTHER PREVAILED AT THE FACT-FINDING HEARING.
A. N.J.S.A. 30:4-12 requires a hearing and a finding that continued placement was in [L.A.D.S.'s] best interests.
B. The court impermissibly shifted the burden to mother to prove that she was not abusing illegal substances and that it was safe for [L.A.D.S.] to return home.
II. THE TRIAL COURT ERRED IN FINDING THAT THE DIVISION ESTABLISHED, BY CLEAR AND CONVINCING EVIDENCE, ALL FOUR PRONGS OF THE TERMINATION OF PARENTAL RIGHTS STATUTE.
A. Since mother was willing and able to provide a safe home, the Division failed to establish the second prong of the termination of parental rights statute.
B. Since a co-parenting arrangement was a viable alternative to termination of mother's parental rights, the third prong of the statute was not satisfied.
C. Termination of mother's parental rights will do more harm than good.
1. The trial court erred in relying on [the Division's] expert witness regarding mother and [L.A.D.S.'s] relationship.
2. Select home adoption is contrary to [L.A.D.S.'s] best interests.
III. THE TRIAL COURT VIOLATED MOTHER'S SIXTH AMENDMENT RIGHT TO COUNSEL WHEN IT FAILED TO RESPOND TO MOTHER'S REQUESTS FOR A NEWLY ASSIGNED PUBLIC DEFENDER.
II.
A.
For the first time on appeal, defendant contends that, absent a finding of abuse or neglect in the Title 9 proceeding in January 2009, the Division did not have authority to retain custody of L.A.D.S., and the child should have been immediately returned to defendant's care. Thus, according to defendant, because the child's continued foster care placement was "illegal," the court's termination of parental rights in the subsequent Title 30 proceeding was "improper." Defendant additionally argues that since the child "was held without a summary hearing and because the trial court lacked jurisdiction, the court's subsequent orders for [defendant] to engage in reunification services may not be used as a basis for a judgment terminating [defendant's] parental rights." Because these claims were not raised at the trial level, we review them for plain error. R. 2:10-2.
As a result of defendant's admission that she used heroin in violation of her probation, she was sentenced to 90 days in jail on September 5, 2008. Consequently the Division executed a Dodd removal of L.A.D.S. since there was no one presented to care for him. The Division then filed a complaint alleging abuse and neglect, and seeking custody, care and supervision of L.A.D.S., under Title 9 and Title 30. The Division was granted custody of L.A.D.S. by order entered on September 9, 2008.
At a January 23, 2009, fact-finding hearing, the judge made a finding of no abuse or neglect. Although the order provided that the "Division will have until February 19, 2009 to reinstate the case," it was not immediately dismissed. Rather, the January 23, 2009 order at least impliedly retained jurisdiction under Title 30, and continued custody of L.A.D.S. with the Division pending further compliance review.
As noted, defendant tested positive in January 2009 for morphine/heroin and benzoiadepine. Defendant argued that these positive drug screens were caused by prescription medications and not illicit substances. At a February 17, 2009 compliance hearing, defendant was ordered to submit to drug-screening. If she refused to do so, a negative inference would be drawn that she would have tested positive for illegal substances. The order further provided that "[i]f the drug screen results indicate that the [defendant] is not consuming illegal substances based on her prescriptions and drug history information the child shall be returned to the [defendant] within 2 days."
At a compliance review hearing on March 4, 2009, the judge ordered that defendant see the "CADC expert to ascertain whether prescription drugs are causing positive drug results." At a further March 25, 2009 compliance hearing, the judge ordered that Phyllis Prokopa, an expert in drug test analysis, review defendant's prescriptions and drug screens, confer with an expert toxicologist, chemist, pharmacist, or medical specialist, and that they both report to the court within two weeks as to whether defendant was using illegal drugs. On April 8, 2009, the judge ordered the Division to report, no later than the next day, the results of defendant's drug test. The order further noted that "[i]f the Division expert cannot conclude that it is more likely than not that the positive drug screen was caused by illegal substances, the case must be dismissed even prior to [ ] April 15, 2009."
Prokopa suggested that a hair follicle test specifically testing for heroin could help resolve whether defendant's positive test result for opiates was attributable to her prescription medications, or illicit substances. When defendant failed to appear for this court-ordered hair follicle test, the court drew a negative inference. At the next hearing on April 15, 2009, the court entered an order directing the Division to file an amended complaint.
On April 20, 2009, the Division filed an amended complaint for custody under Titles 9 and 30. The court conducted a removal hearing and continued the child's out-of-home placement. The court determined that removal of L.A.D.S. was "necessary to avoid ongoing risk to [his] life, safety or health," because defendant "continues to test positive for illegal drugs and has mental health issues." On that date the judge also heard, and denied, a motion by defendant seeking the immediate return of L.A.D.S. Defendant did not appeal that order.
Title 9 governs acts of abuse and neglect against a child, New Jersey Division of Youth & Family Services v. P.W.R., 205 N.J. 17, 31 (2011), while Title 30 controls guardianship proceedings in which the Division seeks to terminate parental rights. See N.J. Div. of Youth & Family Servs. v. R.D., 207 N.J. 88, 110-11 (2011). Title 30 also empowers the Division to seek temporary care and custody of a child who is part of a family in need of services. See N.J.S.A. 30:4C-12.
At a fact-finding hearing on the amended complaint on November 18, 2009, defendant entered into a stipulation that she was "in need of Division services in order to care for" L.A.D.S. On May 20, 2010 an order was entered terminating that guardianship litigation, because the Division had filed a complaint to terminate defendant's parental rights on May 7, 2010.
Where "the Division has commenced an action under Title 9[] and Title 30, N.J.S.A. 30:4C-1 to -40, the Title 9 action must be dismissed if the court finds that the adult charged has not abused or neglected the child or if the court concludes that its assistance is not required." N.J. Div. of Youth & Family Servs. v. T.S., 426 N.J. Super. 54, 63 (App. Div. 2012) (citing N.J.S.A. 9:6-8.50(c)). Thus, "[t]he court has no authority to enter further orders in a Title 9 proceeding if it finds that the child has not been abused or neglected." Id. at 64.
But see N.J. Div. Of Youth & Family Servs. v. I.S., 422 N.J. Super. 52, 68 (App. Div.) ("[U]nder Title 9, a court is not limited to a finding of abuse or neglect before exercising continuing jurisdiction over a proceeding instituted under Title 9[.] ... However, ...[it] must be satisfied its assistance is still required before continuing to exercise jurisdiction over the matter."), reconsideration denied by, reaffirmed, clarified on other grounds by, 423 N.J. Super. 124 (App. Div. 2011), certif. granted, 209 N.J. 232 (2012). We are mindful that the Supreme Court heard oral argument in I.S. in January 2013, and has not yet issued an opinion.
Nevertheless, when the proofs presented in a fact-finding hearing do not rise to abuse or neglect, but do prove by a preponderance of the evidence that it is unsafe to return the child to the care of a parent, and the Division affirmatively grounded the removal of the child on N.J.S.A. 30:4C-12, the Division may retain "care, supervision or custody" of a child "to ensure the health and safety of the child" in the child's best interests. N.J.S.A. 30:4C-12. See also N.J. Div. of Youth & Family Servs. v. M.M., supra, 189 N.J. at 292 (court had authority under N.J.S.A. 30:4C-12 to retain custody, irrespective of outcome of Title 9 hearing); N.J. Div. of Youth & Family Servs. v. M.D., 417 N.J. Super. 583, 612 n.13 (App. Div. 2011) (in a Title 30 proceeding, "a finding of abuse and/or neglect is not necessary for [the Division] to exercise its jurisdiction"). In such a case, "[t]he court must conduct a summary hearing to authorize the Division's involvement, and may place a child under the care and supervision of the Division if 'satisfied that the best interests of the child so require . . . .'" T.S., supra, 426 N.J. Super. at 65 (quoting N.J.S.A. 30:4C-12). The custody order is only effective for "six months from the date of entry unless the court, upon application by the [D]ivision, at a summary hearing . . . extends the time[.]" N.J.S.A. 30:4C-12.
Here, the Division filed a verified complaint in September 2008, seeking custody of L.A.D.S. pursuant to N.J.S.A. 9:6-8.21 and N.J.S.A. 30:4C-12. Thus, since the Division affirmatively grounded the removal of the child on N.J.S.A. 30:4C-12, it was permitted to retain custody of L.A.D.S. after the January 2009 fact-finding hearing, despite the lack of an abuse or neglect finding, because defendant tested positive for illegal substances, and subsequently refused to allow the Division to determine whether her prescribed medications caused the positive screens. "Therefore, irrespective of the outcome of the Title [9] hearing, the court had the authority under N.J.S.A. 30:4C-12 to retain custody of the child because the child's health and welfare would be at risk if returned to the home." M.M., supra, 189 N.J. at 292. And, in any event, the Division had the authority to institute the subsequent Title 30 proceeding. N.J. Div. of Youth & Family Servs. v. K.M., 136 N.J. 546, 556 (1994) ("[T]ermination proceedings, which are brought pursuant to N.J.S.A. 30:4C-15, do not require a prior determination of abuse or neglect.")
Defendant contends her due process rights were violated because the court did not conduct an independent hearing with respect to placement pursuant to N.J.S.A. 30:4C-12 after finding that defendant's actions did not constitute abuse or neglect. While the record before us is unclear as to whether such a hearing took place, we are nonetheless satisfied that, even if the court did not conduct a summary hearing, defendant's due process rights were not violated. As noted, the court throughout February, March and April, 2009 conducted numerous compliance hearings to determine whether defendant's prescription medications were the cause of the positive drug screens. The judge made clear to defendant that L.A.D.S. would be immediately returned to her if the test results were in fact attributable to her prescription medications, as she claimed. Defendant, despite being afforded every opportunity to secure L.A.D.S.'s return, failed to comply with court orders, thus leading the judge to infer that she would test positive for illicit substances.
Finally, defendant claims the court improperly ordered her to "comply with various drug tests" after she prevailed at the January 2009 factfinding hearing, and thus impermissibly "shifted the burden to [her] to prove that [L.A.D.S.] would be safe in her care, rather than requiring the Division to establish that [he] would be endangered if returned to [her] care." That argument is unavailing because the court-ordered drug screens effectively placed the burden on the Division to establish that L.A.D.S. would be endangered if returned to her care.
We thus conclude that the court's decision not to dismiss the Title 9 case after the January 9, 2009 fact-finding hearing was not plain error. Nor do we conclude that the proceedings were so defective as to constitute plain error.
B.
Defendant next contends the trial court erred in terminating her parental rights because the Division did not prove each of the four prongs of the termination statute, N.J.S.A. 30:4C-15.1(a), by clear and convincing evidence. We disagree, and affirm substantially for the reasons expressed by Judge Hayden in her oral decision of June 24, 2011. We add only the following comments.
The law governing our analysis is well established. "The burden rests on the party seeking to terminate parental rights 'to demonstrate by clear and convincing evidence' that risk of 'serious and lasting [future] harm to the child' is sufficiently great as to require severance of parental ties." In re Adoption of a Child by W.P. & M.P., 308 N.J. Super. 376, 383 (App. Div. l998) (alteration in original) (quoting In re Guardianship of J.C., 129 N.J. 1, 10 (1992)). The question for the court "focuses upon what course serves the 'best interests' of the child." W.P. & M.P., supra, 308 N.J. Super. at 383.
In evaluating the best interests of the child, courts follow a four-prong standard, articulated in N.J. Division of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986) and codified in N.J.S.A. 30:4C-15.1(a). This standard allows for termination when the Division proves, by clear and convincing evidence, that:
(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;These criteria are neither separate nor discrete. In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). They overlap to provide a composite picture of what may be necessary to advance the best interests of the child. Ibid. "The considerations involved in determinations of parental fitness are 'extremely fact sensitive' and require particularized evidence that address the specific circumstances in the given case." Ibid. (quoting In re Adoption of Children by L.A.S., 134 N.J. 127, 139 (1993)).
(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).]
The scope of our 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). Because of the Family Courts' special jurisdiction and expertise in family matters, we accord deference to the trial court's fact-finding and the conclusions that flow logically from those findings of fact. Cesare v. Cesare, 154 N.J. 394, 413 (l998). We are further obliged to defer to the trial judge's credibility determinations and the judge's "'feel of the case' based upon the opportunity of the judge to see and hear the witnesses." N.J. Div. of Youth & Family Servs. v. A.R.G., 361 N.J. Super. 46, 78 (App. Div. 2003) (citing Cesare, supra, 154 N.J. at 411-12; Pascale v. Pascale, 113 N.J. 20, 33 (l988)), aff'd in part and modified in part, 179 N.J. 264 (2004). "When the credibility of witnesses is an important factor, the trial court's conclusions must be given great weight and must be accepted by the appellate court unless clearly lacking in reasonable support." N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 259 (App. Div. 2005) (citing In re Guardianship of DMH, 161 N.J. 365, 382 (1999)).
When the trial court's findings of fact are supported by adequate, substantial, and credible evidence, they are binding on appeal. See Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (l974) (holding an appellate court is not to disturb the factual findings and legal conclusions of the trial judge unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice"). Reversal is required only in those circumstances in which the trial court's findings are "so wide of the mark that a mistake must have been made." M.M., supra, 189 N.J. at 279 (internal quotation marks omitted).
Applying this standard, we discern ample evidence in the record to support the judge's conclusions that the best interests of L.A.D.S. required termination of defendant's parental rights. Judge Hayden found defendant's testimony "rambling [and] unfocused." The judge noted that at times defendant appeared to be "falling asleep," and "she gave the appearance to me of someone who was intoxicated or under the influence [ ] of a controlled substance." Judge Hayden specifically found defendant's testimony "not to be credible," and found "the testimony and evidence presented by the Division to be [ ] credible."
To meet the first prong of the termination statute, the Division must show there is a harm that threatened the child's health and that such harm will likely have continuing deleterious effects on the child. K.H.O., supra, 161 N.J. at 352. Even though "a particularly egregious single harm can trigger the standard, the focus is on the effect of harms arising from the parent-child relationship over time on the child's health and development." Id. at 348.
With regard to this first prong, the court cited evidence of defendant's continuing drug use, concluding "that by taking these drugs and by not getting treatment for [her] unfortunate mental health issues, . . . [she] has harmed the child and continues to . . . harm the child." The record supports the court's conclusion that defendant put L.A.D.S.'s safety, health or development at risk by testing positive for illegal drugs at multiple drug screenings, being non-compliant with services provided by the Division, and failing to maintain regular employment. L.A.D.S. had various health and developmental issues, all of which arose while in defendant's care. In addition, Dr. Kirschner found defendant had serious psychological issues that interfered with her ability to parent.
Prongs one and two are related, as the second prong considers the parent's failure to provide even minimal parenting to his or her children. DMH, supra, 161 N.J. at 379. The second prong of the statute is "aimed at determining whether the parent has cured and overcome the initial harm that endangered the health, safety, or welfare of the child, and is able to continue a parental relationship without recurrent harm to the child," or alternatively, "that the parent is unable to provide a safe and stable home for the child and that the delay in securing permanency continues or adds to the child's harm." K.H.O., supra, 161 N.J. at 348-49. This prong "may be met by indications of parental dereliction and irresponsibility, such as . . . continued or recurrent drug abuse[.]" Id. at 353.
With respect to this second factor, the court found that defendant was "unable to parent now, and there [was] nothing . . . in her actions to date that really indicate she's likely to change in the foreseeable future." The court further found defendant's assertions that "she has seen the light," and "is no longer going to fight [the Division]," not credible.
Here, the record supports the court's finding that prong two was satisfied because defendant remains unable to care for her child due to her mental illnesses and unresolved substance abuse issues. Her denial of the validity of her positive drug screens demonstrates she is not aware of her problem, and thus remains resistant to treatment. Moreover, defendant has not complied with the Division's attempts to provide her with services.
Defendant asserts that neither her "mental health issues or her struggles with substance abuse rendered her unable to provide a safe and stable home." That assertion is not supported by the record, as evidenced by the child's exposure to benzodiazepines and methadone during pregnancy, and defendant's arrest in 2008. Both events, involving defendant's recurrent substance abuse and mental health issues, resulted in the child's removal. In addition, nothing in the record indicates that defendant adequately parented her child on her own; rather, while alive, her father assisted her. Even with that help, L.A.D.S. did not receive adequate care in defendant's custody, as he was underweight, hyperactive, struggled in school, and had dental problems. Moreover, Dr. Kirschner's unrebutted expert testimony was that defendant was unable to care for L.A.D.S.
The third prong of the statutory test "contemplates efforts that focus on reunification of the parent 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 made reasonable efforts to provide services to defendant, including parenting classes, supervised visitation, anger management classes, CADC evaluations, psychological evaluations, and transportation. The Division also explored the alternative placements proposed by defendant, but had not completed its evaluation of two placement options due to defendant's delay in submitting them. However, the court rejected defendant's proposal to co-parent, "given [her] substance abuse and mental health issues."
We again note that Dr. Kirschner did not believe defendant could co-parent. Additionally, the record is replete with the Division's efforts to provide defendant with a myriad of services. "[The Division's] efforts to provide services is not measured by their success." N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 441 (App. Div. 2009) (internal quotation marks and citation omitted).
Pursuant to the fourth prong, the Division must show that the "termination of parental rights will not do more harm than good to the child." K.H.O., supra, 161 N.J. at 354-55. This prong "'serves as a fail-safe against termination even where the remaining standards have been met.'" N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 108 (2008) (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 609 (2007)). The Supreme Court has stated that "[t]he question ultimately is not whether a biological mother or father is a worthy parent, but whether a child's interest will best be served by completely terminating the child's relationship with the parent." E.P., supra, 196 N.J. at 108.
Regarding this fourth factor, the court found that the Division established that termination of parental rights would not do more harm than good. The court found Dr. Kirschner's testimony credible that L.A.D.S. "is securely attached to the foster parent[,] . . . he is not attached to the mother," and "that [L.A.D.S.] will suffer harm if he's removed from the foster parent." Given his diagnoses of ADHD and dyslexia, L.A.D.S. was in need of permanency, which the foster parent provided.
Defendant contends the court erred by relying on Dr. Kirschner's assessment that L.A.D.S. was bonded with his foster mother, was not bonded with his biological mother, and would not suffer serious and enduring harm if defendant's parental rights were terminated. However, the court appropriately gave substantial weight to Dr. Kirschner's testimony, and that credibility determination is entitled to deference. M.M., supra, 189 N.J. at 278.
Additionally, defendant claims the court erred by finding the fourth prong satisfied in light of the "real risk" that L.A.D.S.'s foster mother "would be unwilling or unable to adopt" him. However, after the foster mother sought and received confirmation that the Division would continue to provide services to L.A.D.S., she did not waver in her willingness to adopt him. Even had she balked at adopting L.A.D.S., there is no evidence that supports reunification with defendant. In fact, Dr. Kirschner remained resolute in his opinion that defendant cannot care for her son. Thus, Dr. Kirschner's testimony, along with defendant's failure to remedy the issues that required removal initially, firmly support the court's finding that prong four is satisfied.
C.
Defendant's remaining argument, that she was denied the effective assistance of counsel, is equally devoid of merit.
In termination cases, the Supreme Court adopted the two-part test of Strickland, for determining whether counsel is ineffective: "(1) counsel's performance must be objectively deficient -- i.e., it must fall outside the broad range of professionally acceptable performance; and (2) counsel's deficient performance must prejudice the defense -- i.e., there must be 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 307 (2007) (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 697).
Thus, the party claiming ineffective assistance "must provide a detailed exposition of how the trial lawyer fell short and a statement regarding why the result would have been different had the lawyer's performance not been deficient." Ibid. See also State v. Fritz, 105 N.J. 42, 58 (1987).
Defendant claims her counsel was ineffective because counsel missed half of the pre-trial appearances; "sometimes appeared to not understand" court proceedings; was late to the February 8, 2011, permanency hearing; and did not appear at the March 23, 2011, case management conference. The record reflects, however, that on all but one occasion counsel sent substitute counsel to appear in his stead. Many of these appearances involved routine status conferences. Moreover, nothing in the record supports a conclusion that counsel was not well-prepared at the termination trial or failed to mount a vigorous defense. Additionally, defendant has failed to show how the result would have been different had her counsel's performance not been deficient. Thus, defendant fails to establish both prongs of the Strickland test.
Defendant additionally contends that counsel prejudiced her case by conceding that she was unfit to independently parent. Defendant refers to a hearing on the return of the Order to Show Cause before a judge who did not later preside over the termination of parental rights trial. Specifically, her trial counsel stated:
I spoke to [defendant], because I believe the way we resolved it the last time was that -- I think it was joint legal custody with her father, and I told her more than likely, that's the only way this case is going to be resolved in her favor and that she would have to find someone that the Division is willing to approve that could co-parent with her, because based on my review of the record, it's going to be . . . hard pressed convincing the Court to give her sole custody, without someone to assist her, Your Honor. So right now, we're just trying to find relatives or friends who are willing to co-parent with her.
Counsel's statement did not concede prong two of the best-interests test. It did not imply that defendant was unable or unwilling to provide a safe and stable home for the child. Rather, it merely reiterated defendant's subsequent trial testimony that she needed someone to "split custody" with her. Thus, the statement did not prejudice defendant.
Defendant's remaining claims of ineffective assistance of counsel do not warrant discussion in this opinion. 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