March 25, 2010
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT/ CROSS-APPELLANT,
IN THE MATTER OF THE GUARDIANSHIP OF A.S., A MINOR.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket Nos. FG-07-206-06 and FG-07-56-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 21, 2010
Before Judges Fisher, Sapp-Peterson and Espinosa.
Defendant A.H. appeals from a March 11, 2009 Family Part order terminating parental rights to her then four-year-old son A.S.,*fn1 born to A.H. and O.S., Jr. on November 13, 2003,*fn2 and granting guardianship to the Division of Youth and Family Services (Division). We affirm.
On September 12, 2007, the Division filed a verified complaint for guardianship seeking termination of A.H.'s parental rights to A.S. Trial commenced on November 6, 2008, and proceeded over seven non-consecutive days before its conclusion on February 24, 2009. The Division's caseworker, Patrice Amatrudi (Amatrudi); Dr. Elayne Insler Weitz, an expert in psychology; Dr. George Jackson, an expert in toxicology; Anne Claridge, a social worker with an expertise in play therapy; A.S.'s maternal grandmother, S.H.; and A.S.'s paternal grandfather, O.S., Sr., testified on behalf of the Division.
The defense presented A.H. and three expert witnesses: Dr. Edward Aronow, a psychologist; Dr. Michael Fester, an expert in alcohol studies; and Dr. Bal Krishena, a toxicologist. S.H. also testified on behalf of the defense. Additionally, in excess of fifty-eight exhibits were marked into evidence.
The record disclosed that the Division's first involvement with A.H. occurred in September 2005 when it received a referral reporting that A.H. and A.S. were living with A.H.'s mother, S.H., and that A.H. was abusing drugs. A.S. was almost two years old at the time. The Division responded to the referral and first interviewed S.H., who told the caseworker that A.H. recently returned to New Jersey with A.S. and had nothing but the clothes on her back. She acknowledged that A.H. had a prior history of substance abuse but had not observed any abuse of drugs while A.H. had been living with her. A.H. arrived during the interview and accused her mother of contacting the Division. A.H. indicated that she had constant relationship problems with O.S., Jr., and therefore returned to New Jersey. She indicated that she was employed and looking for an apartment. The Division found that the allegations were unsubstantiated, but opened a case for supervision and services.
On October 6, 2005, the Division received a referral from the Fairfield Police Department. According to police, they were dispatched to a domestic violence dispute that occurred at a hotel bar between A.H. and her boyfriend, M.M., earlier that evening. When they arrived, they went to one of the hotel rooms where they found A.H., who appeared to be intoxicated, and at that time they also observed A.S. When police questioned A.H. as to what she had done with A.S. while she was at the hotel bar, she claimed that her mother had been watching A.S. She refused to give the police her mother's telephone number or address so they could confirm what she had told them. Ultimately, they were able to contact S.H., who denied she had been caring for A.S. that evening. A caseworker immediately responded to the referral and interviewed A.H., whose speech was slurred. A.H. repeatedly asked the caseworker the same questions. The caseworker removed A.S. from the hotel and placed him with S.H.
Following this emergency removal, the Division filed a verified complaint and order to show cause on October 11, petitioning the court to grant the Division temporary custody of A.S. and to appoint a law guardian on A.S.'s behalf. On October 25, the return date of the Division's order to show cause, the court returned A.S. to A.H.'s physical custody. The Division represented to the court that because A.H.'s boyfriend no longer lived with A.H., the Division was satisfied that there was no further risk to A.S.
Two months later, as part of the services being provided to A.H., she underwent a psychological evaluation conducted by Dr. Mark Singer. During the evaluation, A.H. acknowledged her history of substance abuse but indicated that she had not used any drugs for the last ten years. She reported that she was in contact with O.S., Jr., but had no relationship with him because he was not helping her. She did acknowledge her relationship with M.M., and denied that any domestic violence had occurred as previously reported to the police and the Division.
In addition to the clinical interview, Dr. Singer conducted a mental status examination and performed personality testing. He concluded that A.H. was anxious, in need of support to achieve her goals, minimized her personal faults, had unrealistic perceptions of her own level of psychological functions, was experiencing difficulty responding to the needs of others, and had the propensity to engage in "dramatic behavior displays in order to win the approval and affection of others and likely experienced a conduct disorder during childhood/adolescence."
Dr. Singer recommended that A.H. maintain appropriate housing and employment, participate in individual psychotherapy, and be subjected to continued drug screening. Dr. Singer also recommended that the Division should ensure that M.M. posed no risk to A.S. and that "[i]f needed," the Division should facilitate a psychiatric referral "in order to address anxiety medically as an adjunct treatment modality."
In response to Dr. Singer's recommendations, the Division arranged for weekly therapy sessions with Dr. Barry Katz, a clinical psychologist. A.H. commenced her therapy sessions with Dr. Katz in January 2006. Three months later, A.H. also separately participated in anger management. A.H. reported at that time that she was no longer living with M.M. The caseworker told A.H. that if this representation was confirmed and she was otherwise compliant with her treatment, it would seek dismissal of the matter. The Division, however, received another referral in May 2006 alleging that A.H. was using drugs and that neighbors regularly heard A.H. and her boyfriend screaming, cursing and yelling at each other. The caseworker met with A.H. A.H. indicated that M.M. had moved out of the apartment three weeks earlier. A.H. denied any substance abuse and stated that because she had already completed an assessment, she did not wish to undergo another assessment. She did offer to complete a urine screen. She also signed a case plan agreeing to provide A.S. with a drug-free and safe environment.
At a June 20, 2006 court appearance, A.H. tested positive for opiates. The court ordered A.H. to continue with her therapy sessions, cooperate with law enforcement authorities in their investigation of the criminal matter stemming from the October 2005 hotel bar incident, attend all court proceedings in connection with that matter, and to explain to the court her positive drug test results at the next compliance review scheduled for July 25.
On July 19, the caseworker had a telephonic interview with the superintendent of A.H.'s apartment building. The superintendent indicated that she lived in the basement of the same building as A.H. and that both A.H. and M.M. were listed as the tenants on the apartment lease. The superintendent also reported that the neighbors living next-door to A.H. and M.M. reported hearing fighting and smelling drugs emanating from the apartment. On that same day, the caseworker made an unannounced visit to the apartment. A.H. denied that M.M. was living with her, but M.M. arrived at the apartment during the caseworker's visit. M.M. also denied living with A.H. When A.S. entered the room where A.H., M.M., and the caseworker were gathered, M.M. asked A.S., "who am I?" A.S. responded, "daddy." The caseworker advised M.M. that if he intended to remain in A.S.'s life, he was required to participate in the domestic violence classes and other services offered by the Division. M.M. told the caseworker that he would not take domestic violence classes with A.H. because he did not believe the classes pertained to him. The caseworker also spoke with A.H.'s anger management counselor who conducted counseling sessions with A.H. at the apartment. The counselor reported that these sessions were conducted in the morning and that he observed M.M. in the apartment during some of those counseling sessions.
On July 25, 2006, the Division filed an amended order to show cause and verified complaint seeking the appointment of a law guardian on behalf of A.S. and the grant of temporary custody of A.S. to the Division. The court entered an order on that same date declaring that A.S. was a ward of the court, appointing a law guardian, and placing A.S. in the immediate care, custody and supervision of the Division. A.S. was placed back into the physical custody of his maternal grandmother, S.H., but removed from her care the following month and placed in foster care because S.H. was unable to present documentation from her superintendent that A.S. could reside in her apartment.
Meanwhile, A.H. had contacted the Division on August 2, reporting that M.M. had locked her out of their apartment and the superintendent refused to give her another set of keys. The caseworker encouraged A.H. to seek assistance from the police and to also contact welfare officials in an effort to secure temporary rental assistance. A.H. expressed a willingness to do whatever was necessary to regain custody of A.S. but blamed the Division for his placement in foster care. She continued with her counseling sessions and regularly visited with A.S. in accordance with the visitation plan. However, on December 11, Bloomfield police contacted the Division to report that A.H. had been arrested and was at the police station with A.S., with whom she was apparently having an unsupervised visit on that day. The caseworker interviewed A.H. at the police station. A.H. denied breaking into the apartment where police found her, A.S., and another male, M.C. A.H. explained that she had been invited into the apartment by her friend, M.C.
Over the next several months, A.H. continued her regular visits with A.S., underwent a drug assessment at the Division's request in April at the COPE Center (COPE)*fn3 in Montclair, and commenced her participation in the COPE substance abuse program. Although her first three drug screens were negative, COPE reported that A.H.'s creatinine levels were low, which suggested "possible specimen adulteration." A.H. attended Alcoholics Anonymous and participated in two-hour weekly in-home counseling sessions that had been arranged by the Division. Her drug screens continued to be negative.
On July 10, 2007, just before a court hearing commenced, A.H. underwent a drug screen at the Division's request. Because the drug screener described A.H.'s urine as "clear as water," the screener suspected that the specimen had been altered. When confronted with this accusation, A.H. admitted that she had relapsed and had used cocaine. The Division advised the court that it would seek termination of parental rights. On September 12, 2007, the Division filed a complaint for guardianship.
In January 2008, after receiving confirmation that A.S.'s paternal grandparents' home was licensed and approved for placement, the Division placed A.S. with them. A.H. had telephonic contact with A.S. and two visitations with A.S. when he was returned to New Jersey for the visits.
On August 27, A.H. was admitted to Turning Point, Inc. (Turning Point), an in-patient treatment facility. She admitted, during her intake interview, that she had a lengthy history of substance abuse. Contrary to her earlier representations to the Division and to the court that she had been drug-free for years, she admitted, during this interview, that her last period of abstinence was for sixteen months between 2003 and 2004. For the first time, A.H. was diagnosed with bipolar disorder and prescribed Depakote.*fn4 She was also treated for her substance abuse dependency. Additionally, A.H. received individual counseling and also training in parenting skills. Upon her discharge from Turning Point in October, A.H. resumed her out-patient treatment at COPE where she received both substance abuse counseling as well as treatment for her mental health issues.
On March 6, 2008, A.H. underwent a psychological evaluation with Dr. Elayne Weitz. Dr. Weitz conducted a clinical interview, performed psychological testing and consulted with A.H.'s caseworker, Patrice Amatrudi, an experienced Division caseworker who took over A.H.'s file in July 2007. In summarizing her findings, Dr. Weitz found that A.H. had strengths and weaknesses and expressed her concerns related to A.H.'s "personality" and "behavioral traits." In her report, she stated:
Seven months of recovery is a short time compared to the 10 plus years [A.H.] abused various substances. On the positive side, she has already shown that she can maintain a stable lifestyle while she is working on her recovery. The added stress of caring for her child could be overwhelming at this stage in her rehabilitation process. Though [A.H.] would probably say that [A.S.]'s presence will help her stay sober, I believe the Division should move slowly and cautiously with returning [A.S.] to her care. I often recommend that individuals demonstrate a year of sobriety while living independently before they are reunited with their child.
Dr. Weitz offered a number of other recommendations which she believed would ensure successful reunification, including continued substance abuse counseling, regular consultation with a psychiatrist to monitor the effectiveness of her medications, and "[i]ndividual psychotherapy [which] would provide additional support and help [A.H.] balance work and home schedules effectively." She also recommended that any reunification should "allow for the gradual placement of [A.S.] with [A.H.]"
Throughout the spring and early summer of 2008, A.H. continued to participate in COPE, and all of her drug screens were negative. She also remained in treatment with a psychiatrist at COPE, Dr. Esha Khoshnu, who had been treating her since October 2007. In an April 21 letter to Amatrudi, Dr. Khoshnu wrote, "I consider her prognosis to be guarded as any patient with the [Bipolar Disorder and Cocaine and Heroin Dependence] diagnosis may relapse."
After receiving a telephone call from A.S.'s law guardian on April 16, reporting she had information that A.H. was submitting someone else's urine for her drug screens, Amatrudi confronted A.H. with the allegation and requested that A.H. undergo a drug screen. A.H. indicated that she was unable to do so because of her work schedule. The Division then arranged for the drug screen to be conducted by COPE after A.H. finished work. Amatrudi called A.H. to explain the arrangements for her drug testing and advised A.H. that if she failed to appear for the drug screen, the Division would assume that her test results would have been positive for drugs. A.H. did not appear for the first appointment scheduled by COPE but did submit to a urine screening on July 14, which was positive for opiates. A.H. disputed the results and indicated that she had undergone foot surgery and the medication she was taking post surgery caused the positive result. Amatrudi told A.H. that the positive drug screen would impact the direction of the case and requested that A.H. provide proof that she had been prescribed medication for her foot.
A.H. did not supply the requested prescriptions to the Division at that time. She stopped attending COPE and failed to maintain contact with Amatrudi despite the caseworker's attempts to reach her by telephone and personal contact. A September 2, 2008 letter from COPE reported that A.H. had not been in attendance at the program since July 14. When A.H. finally contacted the Division two months later, she attributed her failure to contact the Division to her recent foot surgery. She never provided documentation to the Division of her foot surgery.
Bonding evaluations with A.H., the paternal grandparents and A.S. were conducted on behalf of the Division by Dr. Weitz, while bonding evaluations of A.H. and A.S. on behalf of the defense were conducted by Dr. Edward Aronow. Both doctors found that A.H. was incapable of providing appropriate care of A.S. at that time. Dr. Aronow opined that it was "unlikely that [A.H.] would be able to put her life together to an acceptable degree in the absence of full and serious treatment of her Bipolar Disorder." He believed that the period of time A.H. needed to address the issues impeding her ability to provide a safe and stable environment for A.S. would take approximately one year because she could not resume taking Depakote for six months due to pregnancy and would need another six months thereafter to be monitored with the increased dosage that A.H. stated her psychologist was recommending.
Both doctors also recognized a strong bond between A.S. and A.H. as well as a bond between A.S. and his paternal grandparents. Dr. Weitz testified that in her opinion, A.H. could not provide a safe and stable environment for A.S. because of her failed substance abuse rehabilitation, unresolved bipolarity, employment instability, impulsivity, manic behavior and problems with her mother. Dr. Aronow recommended that if A.S. remained in Florida with his paternal grandparents, that he should continue to have contact with A.H. A.S.'s paternal grandparents expressed their support for this arrangement.
At the conclusion of the hearing, the court reserved decision and issued a seventy-three page written opinion on March 3, 2009. In assessing the testimony of the various witnesses, the court found Amatrudi to be "an experienced, competent and honest caseworker [and] [n]othing in her testimony struck the court as biased or untrue." On the other hand, while the court indicated that Dr. Weitz came across as competent, the court concluded that the testimony was "at least arguably predisposed to favor termination." The court found the defense's principal witness, Dr. Aronow, more credible than Dr. Weitz, but noted that both doctors agreed that A.H. could not "effectively parent now, with their only major difference being if [A.H.] may be able to effectively parent in the future...." In assessing A.H.'s testimony, the court expressed that it was undisputed that A.H. and A.S. have a strong bond and love each other. Nonetheless, problematic for the court was A.H.'s "long[-]time drug use, her on and off attempts to cure it, her recently discovered bipolarity and her tendency to not always tell the truth[.]" The court did not weigh heavily the testimony of the remaining witnesses in its decision-making.
In reaching its decision that the Division had satisfied its burden of proof, the court addressed each of the four statutory prongs governing termination of parental rights. N.J.S.A. 30:4C-15.1(a).
With respect to the first prong, the court found:
There is no doubt that [A.H.] presented a serious danger to [A.S.] At the very minimum, [A.H.]:
1. Had a difficult, if not, violent relationship with [M.M.;]
2. Put [A.S.] in dangerous situations, such as leaving him alone when she and [M.M.] went to the bar and got into a fight[;]
3. Tested positive for illegal drugs in both 2006 and 2007 (and then in 2008, although the 2008 test result is disputed);
4. Was arrested for trespassing, at a time [A.S.] was with her[;]
5. Lived in filthy surroundings[;]
6. Did not complete drug therapy.
Any dispute in this case, therefore, must focus on the second, third and fourth prongs.
Next, as to the second prong, the court found:
The record makes clear that [A.H.] continues to present a danger to [A.S.] At the minimum, [A.H.] has not overcome the following problems, the bulk of which, according to Dr. Weitz, may become even more serious if [A.H.] had to deal with a child who is himself somewhat difficult:
1. Her drug abuse (despite occasional progress)[;]
2. Her bipolarity[;]
3. Her problems with honesty (which may be an outgrowth of her drug abuse issues, and may have been slightly exaggerated by Dr. Weitz[,] who called her "deceitful, manipulative and untrustworthy")[;]
4. Her poor judgment concerning interpersonal relations, including:
a. [A.S.]'s father, [O.S.], Jr.[,] who [is] both a child abuser and convict[;]
b. Her paramour [M.M.], who was violent towards her[;]
c. Her current paramour [A.M.], who has a criminal history (albeit one that may be explicable).
5. Her somewhat inconsistent relationship with her mother[;]
6. Her tendency to put her needs above those of [A.S.;]
7. Her possible inability to provide secure housing for [A.S.], since she is pregnant and relies on [A.M.] for the rent payments. (This is by far the least serious of the dangers she presents.)
While [A.H.] has made efforts to solve these problems - - and may well be able to parent her unborn child within the next year - - this court cannot confidently conclude that she can now, or in the relatively near future, safely parent [A.S.] Indeed, it must conclude, by clear and convincing evidence, that she cannot do so.
Further, as even Dr. Aronow concludes, [A.H.] would need six months of treatment to get to a point where she could successfully parent [A.S.], and the six months of medications can't begin until after the birth of [A.H.]'s next child, who is due on May 5, 2009. Six months from May 5, 2009 is November 5, 2009, when [A.S.] will be only a week short of his sixth birthday and will have been with his grandparents for two years.
In addressing the third prong, the court concluded:
No one could deny that [the Division] has given [A.H.] a great many services in an attempt to reunify her with [A.S.] Among other things, [the Division]:
a. Returned [A.S.] to [A.H.] after the first removal in 2005[;]
b. Gave [A.H.] a psychological examination[;]
c. Gave [A.H.] therapy[;]
d. Gave [A.H.] anger management training[;]
e. Gave [A.S.] an EIP and Medicaid card[;]
f. Offered [M.M.] services, which he generally did not comply with[;]
g. Gave [A.H.] rental assistance, therapy, and bus cards after the 2006 removal[;]
h. Gave [A.H.] extensive drug therapy at Turning Point and COPE[;]
i. Gave [A.H.] MICA*fn5 psychiatric treatment[;]
j. Gave [A.H.] extensive visitation[;]
[A.H.] argues that, despite the extensive efforts outlined above, [the Division] cannot be said to have proven its third prong case because it did not identify, and move to cure, [A.H.]'s bipolarity soon enough. The court acknowledges some surface validity to this argument. But the truth is that [A.H.]'s behavior - - particularly the drug use and relationship with [M.M.] - - was so troublesome that it was imperative for [the Division] to focus primarily on those behaviors.
In addition, the diagnosis of bipolarity was far from obvious or easy. [A.H.] is 35 years old. She attended very good public schools in this state from the age of 5 to 18. No one diagnosed her bipolarity during those 13 years, despite the fact that she exhibited enough impulsive and hyperactive behavior to be placed into special education, transferred to a county vocational technical institute, expelled from that institute, and be referred to a school psychologist (who, in turn, sent her to an outside expert). She suffers from ADHD and drug abuse, two conditions that sometimes cause behavior consistent with bipolar behavior. That [the Division's] consultants did not diagnose, and arguably did not properly treat, the bipolarity until recently cannot be considered a failure to provide services.
[The Division] had a duty to exert reasonable efforts to reunify [A.H.] and [A.S.] In hindsight, [the Division] may or may not have done a perfect job, but that is not the test. The test is whether [the Division] utilized reasonable efforts. It clearly did so.
Finally, as to the fourth prong, the court found:
For several reasons, [the Division] has made a very strong case that removing [A.S.] from [A.H.] would do no more harm than good. The first reason, of course, is that [A.H.] has not removed the danger or harm which she presents to [A.S.] In this regard, see the court's conclusions as to the second prong.
The second reason removing [A.S.] from [A.H.] will not do more harm than good is that [A.S.] has now been placed in a safe, warm and supportive home, with his paternal grandparents. While it might have been better for [A.S.] to have been placed there sooner, he has now been with his paternal grandparents for almost a year and adjusted well. Indeed, on almost every objective measure - - educationally, behaviorally, emotionally - - [A.S.] is thriving and doing better than he did with either [A.H.] or her mother.
The third reason removing [A.S.] from [A.H.] and keeping him with his paternal grandparents is that the grandparents have been cooperative in allowing [A.S.] to see his father (three times a week), allowing consistent phone calls with his mother, and in stating that they will allow visits with his mother.*fn6 Further, the grandparents have apparently tried, with Ms. Claridge's help, to get [A.S.] to speak with his mother.*fn7
In some respects, one of the best summaries of this case was that made by Dr. Aronow:
It is clear that the court is faced with a difficult decision to make. It is typically ideal for a child to remain with their parent.
If [A.H.] were to be given appropriate therapy for her Bipolar Disorder, she would be a much better risk as a mother. I would recommend that following the mother's current pregnancy, she again be involved in a drug treatment program, with much more effective treatment of her Bipolar Disorder. On the other hand, it is also clear that [A.S.] is doing well in Florida with his grandparents.
What Dr. Aronow does not discuss, however, is the final reason [the Division] must prevail: as set out above, the earliest time [A.H.] can complete therapy for her drug addiction and bipolarity is November 2009 when [A.S.] will be six and will have spent two full years with his paternal grandparents. At that time, either [A.H.] will not have recovered and the court will have kept [A.S.] in limbo for an unnecessary year, or [A.H.] will be at least partially recovered and the court will then have to decide - - assuming [A.M.] is out of the picture or deemed not too dangerous to place a child with - - whether to gamble on a reunification. If that gamble succeeded, [A.S.] would still have the trauma of being removed from his grandparents, who are doing a great job with him. If that gamble failed, and there are many reasons to fear it might, [A.S.] would be seriously harmed when he had to be returned yet again. No court should take such a terrible gamble with a young boy's life. For that reason, in addition to the reasons set out above, [the Division] prevails by clear and convincing evidence on the fourth prong. ________
"A parent's right to enjoy a relationship with his or her child is constitutionally protected." In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). Moreover, "[f]ew consequences of judicial action are so grave as the severance of natural family ties." N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 600 (1986) (quoting Santosky v. Kramer, 455 U.S. 745, 787, 102 S.Ct. 1388, 1412, 71 L.Ed. 2d 599, 628 (1982)). Accordingly, courts have consistently imposed strict standards regarding the termination of parental rights. K.H.O., supra, 161 N.J. at 347. However, "the right of parents to be free from governmental intrusion is not absolute." A.W., supra, 103 N.J. at 599. This is because the State, as parens patriae, has a responsibility to protect the welfare of children. K.H.O., supra, 161 N.J. at 347.
The standard for determining the termination of parental rights is known as the best interests of the child test, originally set forth in A.W., supra, 103 N.J. at 604-11, and now codified in N.J.S.A. 30:4C-15.1(a), which authorizes termination if the Division can show:
(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. [N.J.S.A. 30:4C-15.1(a).]
The Division has the burden of proving each factor by clear and convincing evidence. In re Guardianship of R.G. & F., 155 N.J. Super. 186, 193 (App. Div. 1977). Moreover, the four criteria "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.
New Jersey has a strong public policy favoring permanency. Id. at 357. In all guardianship and adoption cases, the child's need for permanency and stability must be accorded primary status. Id. at 357-58.
The findings of a trial judge sitting without a jury are "considered binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Further, because of the particularized expertise of family court judges in family matters, we accord enhanced deference to family court factfinding. Cesare v. Cesare, 154 N.J. 394, 413 (1998).
From our review of the record, we are satisfied that the evidence supports the judge's findings that the Division established by clear and convincing evidence all four prongs of the best interests of the child test. R.G. & F., supra, 155 N.J. Super. at 193. A.H. repeatedly exposed A.S. to serious danger or harm on at least three documented occasions after she returned to New Jersey in 2005. A.S., who was almost two years old, was left alone in a hotel room while his mother was in the hotel bar, and in December 2006, A.S. was with his mother when she was arrested for trespassing. Although the charge was later dropped, it was undisputed that at the time of A.H.'s arrest, A.S. was found asleep on the filthy apartment floor. In addition, despite negative drug screen results between October 2007 and April 2008, A.H. admitted to the court that she was still using drugs and continued to do so.
The record is also replete with examples of A.H.'s poor judgment demonstrating her unwillingness or inability to eliminate the harm facing A.S. under the second prong of the best interests of the child analysis. N.J.S.A. 30:4C-15.1(a)(2). A.H. repeatedly exposed A.S. to her abusive relationships with her boyfriends. She also continued to rely upon her abusive paramours for financial support in maintaining housing. Rather than admit her difficulty in remaining drug free, she altered her urine or submitted someone else's urine in order to ensure negative urine screens. This evidence alone clearly and convincingly demonstrated A.H.'s inability or unwillingness to eliminate the harm facing A.S. The weight of that evidence is not diminished in any way by the court's view that the question of harm to A.H. resulting from his separation from his paternal grandparents "at this time is very close[,]" because consideration of harm under the second prong "may [but is not required to] include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child." N.J.S.A. 30:4C-15.1(a)(2) (emphasis added).
There is also no question that the Division provided numerous services or assisted A.H. in obtaining services aimed toward reunifying A.H. with A.S. Those services included psychological and psychiatric treatment, rental assistance, and extensive visitation with A.S. We do not agree that the failure of the Division's treatment providers to diagnose A.H.'s bipolarity until well into the litigation demonstrates that the Division failed to prove the third prong of the best interests of the child test by clear and convincing evidence.
The Division's obligation under the third prong is to make "reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement[.]" N.J.S.A. 30:4C-15.1(a)(3). In our view, depending upon the particular circumstances, those efforts will not always be appropriate or successful. Nor does the Division's efforts in working with various treatment providers in providing services guarantee that the service providers will successfully discover all conditions affecting a parent's inability to eliminate the harm that occasioned the Division's removal of the child from the parent's custody.
We address the late diagnosis of her bipolar condition and Dr. Aronow's opinion as it relates to the third prong. The Division arranged for a psychological evaluation with Dr. Mark Singer as early as December 2005. In his December 7, 2005 report, Dr. Singer recommended a psychiatric referral only "[i]f needed." As a result of Dr. Singer's recommendations, the Division referred A.H. to Dr. Barry Katz for weekly therapy sessions. Dr. Katz treated A.H. from January 2006 through the spring of that year and did not recommend a psychiatric referral. During this time period, A.H. was also separately participating in anger management counseling. A.H. was not diagnosed as suffering from bipolar disorder until she was an in-patient at Turning Point between August and October 2007. She was prescribed Depakote and was reportedly "stable on this medication." The discharge plan called for A.H. to continue taking Depakote. After leaving Turning Point, she returned to COPE for out-patient treatment. In April 2008, the Division learned that between October 2007 and July 2008 when A.H. was being treated at COPE for her bipolar condition and being prescribed Depakote, A.H. may have been providing diluted urine screens. When confronted with this allegation, tested, and found to have opiates in her system, A.H. discontinued her treatment at COPE and failed to maintain contact with the Division for a period of two months.
Dr. Aronow testified that when A.H. was at Turning Point, "she was on fifteen hundred milligrams of Depakote which is a high dose[,]" and that the dosage was reduced to 150 milligrams, which in his opinion was "extremely low." There is, however, nothing in the record that supports this testimony.
In his October 2008 report, Dr. Aronow wrote:
She has for whatever reason been on a very low dose of Depakote while in her current treatment program. [A.H.] tells me that as of last week, her psychiatrist acknowledged that she was not on an effective dose of medication and therefore changed her treatment regimen. In effect, the treatment program that she is in did not do its job by not effectively dealing with the underlying Bipolar Disorder.
Dr. Aronow's report does not reference his review of any records from Turning Point. The Turning Point records report a different dosage of Depakote prescribed to A.H. On the first page of the Turning Point "Discharge Plan and Treatment Summary," it is reported that "[c]lient was diagnosed Bipolar and was prescribed Depakote 250mg." The "Medical/Nursing Discharge Notification & Instructions" list as A.H.'s current medications, "Depakote 250mg one tab[let] 9[a.m.]" and Depakote 500mg one tab[let] 9[p.m.]" Thus, the basis of Dr. Aronow's testimony that A.H.'s Depakote dosage was reduced from 1500 milligrams to 150 milligrams is not evident from the record. It therefore appears that his opinion was based solely upon A.H.'s statement to him that her treating psychiatrist had acknowledged that "she [was] not on an effective dose of medication." That treating psychiatrist, Dr. Esha Khoshnu, was not called by the defense as a witness. Moreover, later in his direct testimony, Dr. Aronow admitted that he was making an assumption that the dosage was too low and did not "know of [his] own knowledge that it was too low." The court ultimately concluded that Dr. Aronow would not be allowed to give an opinion as to whether A.H.'s Depakote dosage level was too low.
Consequently, there was insufficient evidence in the record from which the court could reasonably conclude that insufficient levels of Depakote caused A.H. to self-medicate, and even assuming Dr. Aronow's opinion was correct, it does not in any way negate the reasonableness of the Division's efforts to provide services to A.H. We therefore agree with the court's conclusion that "[the Division] had a duty to exert reasonable efforts to reunify [A.H.] and [A.S.] In hindsight, [the Division] may or may not have done a perfect job, but that is not the test. The test is whether [the Division] utilized reasonable efforts. It clearly did so."
In finding that the Division had satisfied the fourth prong, the court determined that A.S. had been placed in a safe, warm and supportive home with his paternal grandparents and, for nearly one year, was thriving on every objective level. In contrast, the court observed that A.H.'s expert opined that the earliest time that A.H. could complete therapy for her drug addiction and bipolarity would be in November 2009, when A.S. would be six years old. The court noted that by then, A.S. would have spent two full years in his paternal grandparents' custody. Because A.H.'s history of compliance with treatment recommendations and other Division recommendations had been inconsistent for nearly three years, the court properly concluded "[A.S.] would [be] seriously harmed" if there was a further delay establishing permanency and stability in A.S.'s life:
At that time, either [A.H.] will not have recovered and the court will have kept [A.S.] in limbo for an unnecessary year, or [A.H.] will be at least partially recovered and the court will then have to decide - -assuming [A.M.] is out of the picture or deemed not too dangerous to place a child with - - whether to gamble on a reunification. If that gamble succeeded, [A.S.] would still have the trauma of being removed from his grandparents, who are doing a great job with him. If that gamble failed, and there are many reasons to fear it might, [A.S.] would be seriously harmed when he had to be returned yet again.
In short, there is substantial credible evidence in the record to support the judge's factual findings, and those findings are entitled to our deference. Cesare, supra, 154 N.J. at 413. Further, he applied the correct principles of law to his factual findings, and we find no error in the result reached. Rova Farms, supra, 65 N.J. at 484.
Turning our attention to post termination visitation, both A.H. and the Division, in its cross-appeal, challenge the enforceability of the post termination visitation provision contained in the court's order, noting that the grant of guardianship to the Division "terminates all the parental rights of the natural parents and is a prerequisite to having the child adopted by the foster parents or by another family." In re Guardianship of J.C., 129 N.J. 1, 5 (1992). Moreover, the New Jersey Supreme Court has previously acknowledged that while agreements between a biological parent and adoptive parent that call for continued visitation between the biological parent and child may potentially be in the best interests of the child, "such arrangements cannot be judicially enforced, given the potential for disruption of the child's family life under such arrangements and the fact that under the adoption laws the adoptive parents' rights are paramount." K.H.O., supra, 161 N.J. at 362 (citing In re Guardianship of R.O.M.C., 243 N.J. Super. 631, 634 (App. Div. 1990)). The judgment under review is affirmed with the exception that the provisions that mandate visitation are vacated.
Finally, although the trial court stated that the paternal grandparents' promise was "a factor" that "helped induce this court to rule as it did," it is clear from the record that there were many other factors, as discussed herein, that influenced that decision and convinced the court, by clear and convincing evidence, that termination was in the best interests of A.S. N.J.S.A. 30:4C-15.1(a). Therefore, we discern no basis to reverse the order terminating A.H.'s parental rights in light of our reversal of the post termination visitation portion of the order.
The order appealed from is modified and remanded. We do not retain jurisdiction.