January 2, 2009
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP J.M., MINOR.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, FG-02-77-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 1, 2008
Before Judges Reisner, Sapp-Peterson and Alvarez.
Defendant B.C. appeals from a December 17, 2007 order of the Family part terminating her parental rights to her son J.M. We affirm.
The following evidence was presented at the guardianship trial on November 26, 2007. According to DYFS case worker Priscilla Valentine, the child J.M. was born in 2000. DYFS removed J.M and his sister from their mother B.C. in 2005, after she tested positive for cocaine, THC, alcohol and benzodiaphine. She admitted to using cocaine, marijuana and alcohol. She also told DYFS she had a history of psychiatric problems and hospitalizations. DYFS referred B.C. to drug treatment, which she completed in July 2006, although she tested positive for cocaine in January 2006. DYFS also arranged for psychiatric evaluations, parenting classes and treatment for anxiety and depression.
However, in November 2006, B.C. again tested positive for cocaine. DYFS referred her for more substance abuse evaluation in February 2007. When B.C. again tested positive for cocaine later in February 2007, DYFS referred her to more intensive treatment in a Mentally Ill Clinical Abuser (MICA) program, which she completed.*fn1 DYFS also provided B.C. with regular visitation with her son.
According to Valentine, J.M had been in foster care since September 2005, going first to a regular foster family, then to one paternal aunt and finally to his current placement with another paternal aunt, M.M., since May 2007. DYFS also considered maternal relatives, but none were available. Valentine testified that J.M. was doing "wonderfully" living with M.M., who wanted to adopt the child.
The State also presented testimony from an expert psychologist, Dr. Rachel Nelson, who testified to her evaluations of B.C. over a period of three years. She also testified to her evaluations of the child's bonding with M.M and with B.C.
Dr. Nelson testified that at each evaluation, she interviewed B.C. and administered standardized psychological tests. According to Dr. Nelson, she concluded that B.C. had made no substantial progress despite two years of therapy:
I concluded that there was basically no change, that despite additional counseling, additional attendance in MICA [therapy] and substance abuse programs and individual counseling, there was some slight change. I don't want to say there wasn't any, but there was not significant and substantial change to suggest that [B.C.] had improved her capacity to handle her own life and to parent her child.
Specifically, I relied on the fact that she relapsed a number of times. In fact, the most recent evaluation she said to me, "You said I needed to stay sober for six months before I could get my child back and I tried, but I couldn't." And that was a very compelling statement.
Secondly, the objective measures that I used, if you look at the actual numbers, there just wasn't very much change in terms of her coping skills, in terms of her parenting skills, in terms of her personality functioning, she still had all of the same weaknesses and deficits that she had two years prior to that last evaluation. Describing her relapses to Dr. Nelson, B.C. told her that she "found a bag of cocaine in a parking lot" in January 2006 and used it. Then, "several months later," B.C. tried to borrow money from a friend who "was a drug dealer." While she was at his house she "helped herself" to some of the drugs he had in his house. Dr. Nelson concluded that B.C. had "limited impulse control" with respect to resisting drug use and "places herself in situations . . . where substances are more likely to be available to her."
Addressing the impact of drug use on B.C.'s ability to parent her child, Dr. Nelson opined that it would affect her ability to function as a responsible parent:
[I]t [affects] her inability to place the needs of her child ahead of her own . . . .
She therefore doesn't recognize, first of all, her responsibility to maintain sobriety and to remain drug free for the sake of her child; and secondly, she is not attune[d] to the needs of the child because she's so focused on her own internal needs. And so she could miss potential problems with the child if he's sick, if he's not feeling well, if he's had problems in school or with his peers, she is too preoccupied with her own needs to recognize the needs of a child.
Dr. Nelson also addressed the results of standardized testing, which showed that B.C. had poor coping skills. Dr. Nelson testified that when B.C. took the Adult Adolescent Parenting Inventory, it appeared that she "was trying to answer the questions in the way she thought she ought to . . . as opposed to in a way that reflected her own style of . . . parenting." The test also indicated that B.C. "tends to view children as vehicles to meet her own self needs, of objects . . . for her satisfaction, for her comfort as sources to provide her with love and affection. And that's really a role reversal in terms of how parents ought to behave towards their children."
Based on the Milan standardized test, Dr. Nelson also diagnosed B.C. as having a dependent personality disorder, a histrionic personality disorder and anti-social personality disorder.
She tends to function well when she has external limits placed on her. That is completely consistent with her functioning extremely well in her substance abuse and MICA programs.
When she has an authority figure overlooking her behavior that she has to respond and reports to, she does what she's supposed to. When she graduates from those programs and steps down to lower levels of care in the after-care portions, that's when she begins to falter.
Because she doesn't have the impulse control to maintain what she needs to maintain.
B.C. also scored "very high" on the substance abuse portion of the Milan test, indicating a "high probability of regression and relapse." B.C. showed almost no insight into her drug addiction. According to Dr. Nelson, B.C. did not understand "the triggers of her relapse" or "how to avoid them." She also did not "take responsibility for maintaining her medication regimen" for bipolar disorder and anxiety, which Dr. Nelson explained was a serious problem which "can lead to a crisis situation." Even as late as May 2007, B.C. admitted that she had failed to re-fill her prescriptions for three months.
Failure to keep up with her psychiatric medication could be a factor in her drug abuse relapses. It was also a problem because B.C. had been "psychiatrically unstable for at least 10 or 15 years before this evaluation began."
Dr. Nelson concluded that B.C.'s psychiatric and drug abuse problems created the risk that she would neglect the child.
[S]he is at great risk for neglect, not maintaining routines for the child, failing to get the child to school on time . . . getting a child to doctor appointments on time . . . . getting him to bed on time so that he [can] get up the next morning, all of those self-regulatory functions that a parent has to exercise for herself as well as for her child, she has problems maintaining.
Dr. Nelson testified that in July 2006, she did not recommend reunification of B.C. with her children, because B.C "needed to demonstrate six to nine months minimum of being totally independent [of her programs] and still successful before we could consider reunification." However this "never happened because she relapsed half-way through that period."
Dr. Nelson also performed a bonding evaluation between B.C. and her son. She testified that B.C. was "overly and inappropriately demonstrative physically towards him." It was her impression that the child put up with his mother's behavior because it was easier to go along with her than to resist. She testified that B.C. interacted with the child so as to make herself feel good without regard to what he wanted.
In her evaluation of the child separately, Dr. Nelson concluded that he understands that his mother is "very needy . . . and . . . needs to be taken care of." She described the relationship as an "unhealthy, disturbed attachment." By contrast, she concluded that he saw his aunt and her family as his real family, the place where he felt stable and secure. Based on her evaluation of M.M. and the child, she testified that the child has a "strongly bonded relationship" with his aunt. Severing B.C.'s parental rights would not cause significant harm to the child. On the other hand, leaving the child in limbo, instead of making his life with M.M. permanent, would cause "permanent emotional and psychological harm."
Dr. Nelson also explained that in August 2006, she changed her recommendation from reunification to termination of parental rights, because DYFS told her that it would have to file for termination unless she could "recommend reunification within three months time." Given that choice, Dr. Nelson did not believe three months time was sufficient to implement reunification and, in fact, B.C. relapsed within the following three months, thus confirming her opinion.
B.C. testified at the trial. She reviewed the history of her drug treatment and her treatment for anxiety. The latter was sufficiently severe as to qualify her for SSI. She also agreed that she had been diagnosed as bipolar. She admitted that for a period of three months she did not take her psychiatric mediations because she "didn't take the time to go get" the medication, focusing instead on her court hearings. She testified that she had complied with her drug treatment and support programs. She believed she would be able to stay away from drugs for the rest of her life.
In a written opinion dated December 17, 2007, Judge Sween concluded that termination of B.C.'s parental rights was in the child's best interests and would not do more harm than good for the child. The judge credited the expert opinion of Dr. Nelson that B.C. was not able to act as a parent for J.M., due to her recurrent drug problems, and was not likely to be able "to successfully remedy her deficits in the foreseeable future." He concluded that B.C neglected J.M. and that the child would be at risk if returned to her custody. He also found that DYFS offered services to B.C. but she was still unable to overcome the causes of her inability to act as a parent to J.M. The judge credited Dr. Nelson's opinion that the child had not really bonded with his mother, whereas he had a good relationship with his foster mother and the rest of his paternal family.
On this appeal, B.C. raises the following points for our consideration:
POINT I: B.C.'S PARENTAL RIGHTS TO HER SON, J.M., SHOULD NOT HAVE BEEN TERMINATED BECAUSE DYFS FAILED TO ESTABLISH, BY CLEAR AND CONVINCING EVIDENCE, ALL FOUR PRONGS OF THE TERMINATION OF PARENTAL RIGHTS STATUTORY TEST.
A. Because Harm To The Child's Health Was Not Shown, DYFS Failed To Establish That Prong One Of The Test Was Met (Not Raised Below).
B. Since B.C. Cooperated With Services And Remained Drug-Free For The Nine Months Immediately Preceding The Guardianship Trial, Prong Two Of The Statute Was Not Satisfied.
C. The State Failed To Provide B.C. With Appropriate Services To Correct Her Drug Addiction And Therefore, The State Failed To Satisfy Prong Three Of The Statute (Not Raised Below).
D. The Fourth Prong Of The Statute, Requiring That Termination Would Not Do More Harm Than Good, Was Not Satisfied Since The Relationship Between J.M. And His Sister Was Not Adequately Considered (Not Raised Below).
POINT II: BECAUSE B.C.'S COUNSEL MADE REVERSIBLE ERRORS, B.C. WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL AND IS ENTITLED TO REVERSAL OF THE TRIAL COURT'S DECISION FOLLOWED BY A NEW GUARDIANSHIP TRIAL.
A. B.C.'s Fundamental Rights Are At Stake And She Had A Right To Effective Assistance Of Counsel.
B. The Defense Expert Witness Testified Beyond The Scope Of Her Qualifications And Defense Attorney's Failure To Object To The Testimony Was Ineffective Assistance of Counsel (Not Raised Below).
C. Since Defense Attorney's Mistakes At Trial Denied B.C.
Effective Assistance Of Counsel, The Judgment Must Be Vacated And B.C. Must Be Afforded A New Trial (Not Raised Below).
POINT III: THE CASEWORKER INAPPROPRIATELY TESTIFIED TO MATTERS OUTSIDE HER PERCEPTION.
Having thoroughly reviewed the record, we conclude that all of these contentions, including alleged ineffective assistance of counsel, are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following comments.
Our review of the trial judge's findings are limited. Ordinarily, "findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, . . . [we] accord deference to family court factfinding." Id. at 413.
Here, the record discloses ample credible evidence in the record to support the trial judge's conclusions that despite the provision of appropriate services from DYFS, B.C. was incapable of parenting J.M. by reason of her long-term drug use; that there was no reasonable prospect that she would become a capable parent in the foreseeable future; that the child had not bonded with B.C. and termination would not do more harm than good; that the child has an excellent relationship with his foster mother; and that termination is in the child's best interests. See In re Guardianship of K.H.O., 161 N.J. 337, 347-48 (1999); N.J.S.A. 30:4C-15.1.
On this appeal, B.C. claims she had been sober and clean for several months at the time of trial, and thus her parental rights should not have been terminated. We cannot agree. Despite her attempts at drug treatment, B.C. repeatedly relapsed into drug abuse at critical moments, when her ability to possibly keep her child was hanging by a thread. Dr. Nelson's unrebutted and cogent testimony explained why B.C.'s progress while in treatment was not predictive of her ability to maintain sobriety once treatment ended. Additionally, B.C. failed to take her psychiatric medication for months at a time with no sensible explanation.
Even if B.C. never directly injured her child, because he was removed from her care in 2005 when DYFS discovered her drug abuse, her continued inability to take the steps needed to make her a fit parent constituted neglect or "endangerment of the child." K.H.O., supra, 161 N.J. at 363. J.M. has been in foster care since 2005. The child needs, and has a right to, a permanent placement. He has bonded with his foster mother and would suffer permanent emotional damage if removed from her care. See ibid. The record supports the trial court's decision to terminate parental rights.