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New Jersey Division of Youth and Family Services v. R.W.


January 15, 2009


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-91-07.

Per curiam.



Submitted December 16, 2008

Before Judges Parker, Yannotti and LeWinn.

R.W. appeals from an order entered by Judge John J. Callahan on January 29, 2008, which terminated her parental rights to E.W.*fn2 For the reasons that follow, we affirm.

We briefly summarize the relevant facts, which we have drawn from the record presented in the trial court. The Division of Youth and Family Services (Division) first became involved with R.W. and her family in January 1999, when the Division learned that she had given birth to E.W. and the child had tested positive for cocaine. The Division again became involved with the family in October 2002, when it was informed that R.W. had given birth to D.W., who also tested positive for cocaine.

In November 2002, the Division referred R.W. for a substance abuse assessment. R.W. reported that she began using marijuana when she was thirteen years old and started using cocaine when she was thirty. R.W. was found to be dependent upon cannabis and cocaine and it was recommended that she attend a substance abuse program at Horizon-University of Medicine and Dentistry of New Jersey (Horizon). In December 2002, R.W. began the program at Horizon but was discharged for non-compliance. In March 2003, R.W.'s drug tests were positive for cocaine.

R.W. began a twenty-eight-day drug treatment program at Sunrise House. She completed the program in April 2003. Thereafter, R.W. entered a program at Horizon, but she was discharged in May 2003 due to non-compliance. The Division then referred R.W. for substance abuse treatment at Renaissance House in Newark. R.W. began that program in May, 2003; however, she was terminated from the program in July 2003 because of her absences and lack of cooperation. In August 2003, R.W.'s drug tests were positive for cocaine.

R.W. returned to the treatment program at Renaissance House. Although it was reported that R.W. made some progress in addressing her drug dependency, she was discharged from the program in March 2004 because she had tested positive for cocaine. In April 2004, after other drug tests were positive for cocaine and benzodiazepine, E.W. was removed from R.W.'s care and placed with his paternal grandmother, G.B. Thereafter, G.B. informed the Division that she was having health problems and E.W. was placed with his paternal cousin, T.B.

R.W. attended additional substance abuse treatment programs in 2004 and 2005. Because R.W.'s drug tests indicated that she had not been abusing drugs, E.W. was returned to her care. In August 2006, after R.W. relapsed into drug use, E.W. was again removed and placed with T.B.

The Division filed its guardianship complaint on November 2, 2006, seeking the termination of R.W.'s and E.B.'s parental rights to both E.W. and D.W. Following a permanency hearing, the trial court entered an order dated September 14, 2007, which approved the Division's plan for termination of parental rights followed by a relative adoption for E.W. and select home adoption for D.W. In January 2007, R.W. enrolled in a Salvation Army rehabilitation program in Delaware.

In April 2007, Dr. Andrew P. Brown, III, a clinical psychologist, performed a psychological evaluation of R.W. as well as bonding evaluations of the children. In his psychological report concerning R.W., Dr. Brown diagnosed cocaine dependence, in early partial remission in a controlled environment; mood disorder, not otherwise specified (NOS); anxiety disorder, NOS; neglect of child; and rule out bipolar mood disorder.

In his psychological report, Dr. Brown wrote that R.W. "presents with sustained mental health and narcotic addiction issues that have compromised [her] personal [judgment] and her ability to execute parental obligations and responsibilities." He stated that R.W.'s substance abuse behaviors were "entrenched" and "historically undermined her rehabilitative efforts." Dr. Brown opined that "[R.W.] is currently not prepared to parent subsequent to her current attendance in substance abuse treatment and her partial remission status."

In the report of his bonding evaluations, Dr. Brown found that E.W. and D.W. were indifferent to R.W. The doctor wrote that E.W. had been polite and had taken directives from R.W. but "for the most part" he remained detached from R.W. and his younger brother. The doctor did not make a final bonding evaluation as to D.W.

Dr. Brown also found that T.B. was the psychological parent of E.W. He recommended that T.B. be permitted to adopt E.W. so that he could "enjoy permanency, stability, security and support in his [environment] throughout the remainder of his childhood/adolescent development."

R.W. completed the Salvation Army program in July 2007, and graduated in August 2007. She then moved to a recovery house in Delaware.

In July 2007, R.W. was evaluated at her request by Dr. Gerard A. Figurelli, a licensed psychologist. In his report, Dr. Figurelli found that, at that time, R.W. did not appear to be experiencing any clinically significant symptoms of a diagnosable psychological disorder or clinical syndrome. He noted that R.W. has a history of drug abuse which appeared to be in remission "at present."

Dr. Figurelli also noted that R.W. had a history of participation in substance abuse treatment "with subsequent relapses." He wrote that R.W. had displayed "some insight and understanding into the factors that contributed to her substance abuse and relapse behavior[.]" He stated that R.W.'s "enhanced insight" and relocation to Delaware were "potential contributors" to "long-term recovery."

Dr. Figurelli opined that if R.W. "remains all psychoactive substance use abstinent, establishes [an] adequate and stable living arrangement, and maintains a sufficient and consistent source of financial support for her and her family," she "has the capacity to parent adequately." In addition, based on his bonding evaluations, Dr. Figurelli found that E.W. was bonded to R.W. and termination of R.W.'s parental rights to the child would do more harm than good.

Judge Callahan conducted a trial on the Division's complaint in November 2007. At the trial, Dr. Brown testified that he agreed with the Division's plan to terminate R.W.'s parental rights to E.W. because of her "chronic history of relapse into drug use" and the "lack of stability" in her "parental engagement." The doctor stated that "psychiatric management" was required to address R.W.'s anxiety and to assess whether R.W. has bipolar mood disorder. He noted that there was no evidence that she was under "psychiatric management" at that time.

Dr. Brown additionally noted that R.W. had completed a drug treatment program in July 2007. He stated that, as of the time of trial, R.W. had refrained from illicit drug use for almost twelve months. He noted, however, that the fact that R.W. had relapsed into drug use in the past was significant because it indicated that "there is a considerable potential for her to relapse even after completing drug treatment."

Dr. Figurelli testified for R.W. He did not support the Division's plan for termination of R.W.'s parental rights; however, he acknowledged that R.W. was not yet ready to be reunified with her children. He stated that R.W. had the capacity to parent the children if she remained "abstinent from all psychoactive substances[.]" Dr. Figurelli said that R.W. should be in a fully independent living arrangement for a period of time before the children were returned to her care.

R.W. also testified. R.W. was forty-five years old at the time. She admitted that she had a twenty-five-year history of drug abuse. R.W. said that she was still living in a recovery house in Delaware. R.W. also said that she was employed. She noted that she had recently had surgery to address her coronary artery disease and had been unable to work for a period of time after the surgery.

On December 14, 2007, Judge Callahan placed his decision on the record. The judge found that the Division had established all of the criteria under N.J.S.A. 30:4C-15.1a for the termination of R.W.'s and E.B.'s parental rights to E.W. The judge accordingly entered an order on January 29, 2008, terminating R.W's and E.B.'s parental rights to E.W.

The judge determined, however, that the Division failed to establish that termination of R.W.'s parental rights to D.W. and select home adoption was in that child's best interests. The judge offered R.W. an opportunity to show that she is capable of parenting D.W. and that she should be reunited with him. The judge required R.W. to move back to New Jersey, obtain suitable housing, and participate in drug treatment and therapy. The record does not disclose whether R.W. met these conditions. As of September 2008, the child remained in the Division's care and custody.

R.W. appeals and raises the following arguments for our consideration:


The Decision To Terminate RW's Parental Rights Was Against The Weight Of Submitted Evidence And Testimony

[A.] Prongs 1 & 2: The Division Has Not Shown By Clear And Convincing Evidence That RW's Relationship With [E.W.] Will Cause Enduring Harm and Any Perceived Harm Has Been Eliminated

[B.] Prong 3: [The Division] Did Not Provide "Reasonable Efforts" To Reunify RW With [E.W.]

[C.] Prong 4: Termination of RW's Parental Rights Will Do More Harm Than Good to [E.W.] POINT TWO Visitation Should Continue Between the Children [Not raised below]

We have thoroughly reviewed the record in light of these contentions and the applicable law. We conclude that R.W.'s arguments are entirely without merit. We therefore affirm the order terminating R.W.'s parental rights to E.W. substantially for the reasons stated by Judge Callahan in the decision that he placed on the record on December 14, 2007. R. 2:11-3(e)(1)(A) and (E). 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 petition the court for an order terminating parental rights in the "best interests of the child." N.J.S.A. 30:4C-15.1a. The petition may be granted if the following criteria are established by clear and convincing evidence:

(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;

(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. [Ibid.]

"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.

The scope of our review in an appeal from an order terminating parental rights is strictly 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)). "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, "[p]articular deference is afforded to decisions on issues of credibility." Ibid. (citing Cesare v. Cesare, 154 N.J. 394, 411-13 (1998)).

We are convinced that there is sufficient evidence in the record to support the judge's finding that E.W.'s health and development has been harmed by his relationship with R.W. N.J.S.A. 30:4C-15.1a(1). It is undisputed that R.W. has had a twenty-five-year history of drug abuse. Moreover, E.W. tested positive for cocaine at his birth.

Although R.W. has endeavored to address her drug addiction by attending treatment programs, the record shows that she has repeatedly relapsed into drug abuse and her longest period of abstinence was only about four years. Indeed, R.W.'s drug use led to E.W.'s removal from the home in 2004 and again in 2006. In our judgment, the record clearly and convincingly shows that E.W. has been harmed by his relationship with R.W.

We are also convinced that the record supports the judge's finding that R.W. is unable to eliminate the harm to E.W. and a delay in permanent placement will further harm the child. N.J.S.A. 30:4C-15.1a(2). Here, the evidence shows that R.W. successfully completed the Salvation Army drug-treatment program in July 2007. At the time of the trial in November 2007, R.W. had apparently been abstinent from illicit drugs for less than one year, albeit in a controlled environment. Both Dr. Brown and Dr. Figurelli stated that, at a minimum, R.W. should remain abstinent for at least one year before she could safely assume child-care responsibilities.

Moreover, as Dr. Brown noted, based on R.W.'s history, there was a "considerable potential" that R.W. would again relapse into drug use. Thus, the evidence made clear that R.W. was not ready to capably parent E.W. The record therefore shows that E.W. would be harmed by a further delay in a permanent placement.

We are additionally convinced that the evidence clearly and convincingly established that the Division's efforts to address the conditions that led to E.W.'s placement outside of the home were reasonable. N.J.S.A. 30:4C-15.1a(3). The Division provided R.W. with an array of services, including psychological evaluations, drugs assessments, drug treatment programs, counseling, parenting skills courses, and visitation. The Division also considered alternatives to termination of parental rights and reasonably determined that E.W. was thriving under T.B.'s care. Therefore, termination of R.W.'s parental rights with adoption by T.B. was in the child's best interests.

R.W. nevertheless argues that the Division failed to provide reasonable visitation while she was in the Salvation Army program in Delaware. We disagree. In his decision on the record, Judge Callahan thoroughly reviewed all of the evidence on this issue. The judge noted that the Division's caseworker had difficulties contacting the Salvation Army program to arrange for visitation. The record supports the judge's finding that the Division's efforts to arrange for visitation while R.W. was in Delaware were reasonable.

We are further satisfied that the record supports the judge's finding that termination of R.W.'s parental rights would not do more harm than good. N.J.S.A. 30:4C-15.1a(4). Dr. Brown testified that E.W. had formed significant bonds with T.B. and he viewed her as his psychological parent. The doctor stated that termination of E.W.'s parental rights with his adoption by T.B. was appropriate because the child would be able to enjoy the permanency and stability and support that he required for the remainder of his childhood. In our judgment, Dr. Brown's testimony clearly and convincingly supports the judge's finding that termination of R.W.'s parental rights, and his adoption by T.B., is in E.W.'s best interests.

R.W. argues, however, that visits between E.W. and D.W. should continue post-adoption. Because this issue was not raised in the trial court, we decline to address it. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). R.W. may, if she chooses, pursue this issue in the trial court. We note, however, that the children appear to have had limited contact with each other and there is no evidence in the record of any bond between them.


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