July 9, 2010
STATE OF NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
STATE OF NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF: E.D. AND J.L.D., MINORS.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FG-16-06-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 2, 2010
Before Judges Carchman, Lihotz & Ashrafi.
In these consolidated matters, defendants J.C. and C.D. separately appeal from a June 26, 2009 Family Part order terminating their parental rights and awarding guardianship of their two minor children to the Division of Youth and Family Services (DYFS or the Division) for the purposes of adoption. J.C. is the father and C.D. is the mother of E.D., who was born in 2003, and J.L.D., who was born in 2004.
On appeal, J.C. raises these issues for consideration:
THE TRIAL COURT COMMITTED PLAIN ERROR IN FAILING TO MAKE A DETERMINATION ON THE RECORD THAT DEFENDANT-APPELLANT J.C. WAS EFFECTIVELY FORCED BY THE DIVISION OF YOUTH AND FAMILY SERVICES AND THE COURT INTO ABANDONING E.D. AND J.L.D. IN AN ATTEMPT TO PREVENT THE TERMINATION OF CO-DEFENDANT'S PARENTAL RIGHTS (NOT RAISED BELOW).
THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN CONCLUDING THAT THE DIVISION OF YOUTH AND FAMILY SERVICES PROVED EACH OF THE FOUR PRONGS OF N.J.S.A. [30:4C]-15.1(A) AGAINST J.C. AND HIS PARENTAL RIGHTS MUST THEREFORE BE REINSTATED.
DEFENDANT APPELLANT J.C. DID NOT RECEIVE THE EFFECTIVE ASSISTANCE OF COUNSEL DURING THE PROCEEDINGS TO TERMINATE HIS PARENTAL RIGHTS TO E.D. AND J.L.D. OR THROUGHOUT THE COURSE OF THIS EXTENSIVE AND ONGOING LITIGATION.
In her appeal, C.D. raises these issues:
DYFS FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THE STATUTORY REQUIREMENTS OF N.J.S.A. 30:4C-15.1.
D[Y]FS FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE HARM COMPELLING ENOUGH TO TERMINATE C.D.'S PARENTAL RIGHTS.
DYFS FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT C.D. WAS UNWILLING OR UNABLE TO ELIMINATE THE HARM FACING HER CHILDREN, OR WAS UNABLE TO PROVIDE A SAFE AND STABLE HOME FOR HER CHILDREN.
DYFS FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT IT CONSIDERED ALTERNATIVES TO TERMINATION OF C.D.'S PARENTAL RIGHTS.
DYFS FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT TERMINATION OF C.D.'S PARENTAL RIGHTS WILL NOT DO MORE HARM THAN GOOD.
C.D. RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.
The judgment was entered following a second guardianship trial. In affirming the judgment of guardianship, our review considers events starting in 2003 when the Division first became involved with the family.
When E.D. exhibited mild limb tremors at birth, a drug test confirmed she had been cocaine exposed in utero, and the Division was contacted. A drug test performed on C.D. also proved positive for cocaine. Confronted with the test results, C.D. admitted snorting cocaine two or three days before E.D. was born. Although E.D. exhibited no additional health issues, she was retained in the hospital pending DYFS's assessment of possible concerns for the infant's safety. Based upon C.D.'s drug use during pregnancy and the resultant exposure to E.D., the Division substantiated a finding of neglect.
C.D. agreed to enroll in an out-patient drug program at Passaic Beth Israel Hospital (PBIH). She also executed a case plan to provide a "safe, drug-free environment" for her child and accepted placement of an Emergency Child Abuse Protection (ECAP) worker in her Paterson home, where she resided with her mother, A.D., and the baby's father, J.C.
DYFS interviewed J.C. as well. He admitted knowing of C.D.'s cocaine use but refused to undergo a drug test or evaluation. Accordingly, DYFS amended the proposed case plan, which was accepted by C.D. and A.D., to require that J.C. be "removed from the home" and to prevent him from entering the residence "until he cooperates with DYFS." A.D. also consented to avoid leaving E.D. alone with C.D.
At this time, the parents' utilization of the resources extended by DYFS was poor. PBIH reported C.D. missed two intake appointments, submitted another drug test that was positive for cocaine and opiates and, in a Triage Assessment for Addictive Disorders, revealed she used drugs four to six days per week throughout her pregnancy. One final intake appointment was scheduled with PBIH; C.D. appeared and was accepted into the out-patient treatment program. Unfortunately, by September 9, 2003, she had not yet attended a single session. When she began attending thereafter, her progress reports were riddled with absenteeism, and her drug tests showed cocaine and opiate use.
As to J.C., although he had changed his mind and agreed to cooperate with the Division by submitting to a drug evaluation and accepting any recommended treatment, he did not follow through and missed his scheduled appointments. By year's end, A.D. had become E.D.'s "primary caregiver."
In light of C.D.'s failure to progress in her treatment, the Division filed an action for temporary guardianship of E.D. on January 7, 2004. N.J.S.A. 9:6-8.33(a). The court ordered the child placed with A.D. and, further, that C.D. "enter and complete" an in-patient substance abuse program. J.C. was ordered to submit to a substance abuse assessment and "remain accessible to the Division and  be otherwise cooperative[;]" unfortunately, his whereabouts were unknown. Also, the court again "ejected" J.C. from the home. When told J.C. must not live with her and the child, C.D. responded "please do not make me choose between [J.C.] and [E.D.], I can't do it."
DYFS continued its efforts to assist C.D. in obtaining in-patient substance abuse treatment. However, her noncompliance raised "a concern [for] the Division with regard to her capability to care for her 6 month old child, [E.D.]" Faced with the Division's ultimatum that she had "2 weeks to enter a substance abuse in-patient program or be ejected from the home of physical custodian [A.D.]," C.D. enrolled and completed an in-patient treatment program at St. Clare's Hospital. Thereafter, she entered aftercare treatment at PBIH's intensive out-patient day program.
C.D. commenced PBIH's program as scheduled, attended all sessions, and actively participated in group meetings. Her drug screens were negative and, over the next five months, she continued steady improvement. In the meantime, J.C. had been located and was ordered to attend substance abuse treatment after his urine sample tested positive for cocaine. Both parents attended supervised visitation.
A court review hearing held on June 7, 2004, discussed C.D.'s rapid progression through the levels of her program and how she had "improved her self-esteem and her motivation [wa]s positive." Consequently, legal and physical custody of nearly one-year-old E.D. was transferred to C.D., subject to the Division's care and supervision. Both parents were ordered to continue substance abuse treatment and, for the safety of the child, J.C. remained restrained from residing in the home.
On July 30, 2004, C.D. successfully completed her out-patient recovery program, no problems had been identified while the child was in her care, and she was dismissed from the litigation, conditioned on her continued attendance at Narcotics Anonymous (NA). J.C. had not completed a substance abuse treatment program and remained restrained from living in the home with E.D. but was afforded visitation with the child supervised by C.D. or A.D.
Unfortunately, C.D. relapsed. DYFS was contacted by the hospital where J.L.D. was born after C.D. and the newborn tested "highly positive" for cocaine. J.L.D. showed signs of withdrawal, including tachycardia, and was classified as medically fragile. A "hospital hold" was put in place pending DYFS's intervention.
The Division also ordered a medical examination of E.D., which revealed she had an ear infection, needed emergency dental extractions of four teeth because of an untreated infection and had not received her required immunizations. For a second time, the Division substantiated a finding of neglect. When A.D. stated she could not care for both children, the Division executed an emergency removal, placing E.D. and J.L.D. in foster care. N.J.S.A. 9:6-8.29 and -8.30.
On January 6, 2005, the court ordered custody, care and supervision of the children to the Division. C.D. was ordered to attend a thirty-day in-patient program at Sunrise House, followed by out-patient treatment at Eva's Village. J.C. was ordered to attend out-patient treatment at Options and submit to a home study.
C.D. pursued in-patient treatment as ordered and showed "progress in being able to verbalize and self-disclose the self-defeating relationship that was occurring with alcohol/drug use and the resulting consequences." She successfully completed the program, was discharged and began out-patient treatment. The children were again placed in her home subject to DYFS's care and supervision. The next month, C.D. missed one drug test and later was tested positive for cocaine. The children were removed and, on May 4, 2005, E.D. and J.L.D. were placed with their current foster parents. This foster family has remained the resource placement for the children.
During the next court review, C.D. was ordered to return to Sunrise House for twenty-eight days of in-patient treatment. Upon release, she was to complete six months in the "Mommy and Me" program, followed by six months in a halfway house. J.C. had not begun any substance abuse treatment and, for the most part, had not appeared during the litigation hearings. The court ordered his appearance on "June 15, 2005 or [a] bench warrant [would] issue." The Division communicated the dates for a substance abuse assessment and a psychological evaluation. When J.C. failed to appear, his visitation was suspended until the assessment was completed.
C.D. repeatedly violated the rules of the "Mommy and Me" program by breaching the no smoking policy and "risking the possible spread of infection in the program community" by not cleaning her personal living space. She was discharged. On July 8, 2005, both J.C. and C.D. tested positive for cocaine. C.D. asserted she had not used drugs and was only positive after having intercourse with J.C. Rejecting this contention, the Division secured C.D.'s admission to "Straight & Narrow," a long-term, intensive in-patient substance abuse rehabilitation program. Two-year-old E.D. and six-month-old J.L.D. remained with their foster family. C.D. attended the Straight and Narrow program for one year.
DYFS investigated possible family caretakers for the children. A.D. was considered; however, the Division learned she suffered from chronic lung disease and needed oxygen and medications daily. She had not seen her doctor in months. C.D.'s sisters were also evaluated and ruled out due to insufficient housing or an unwillingness to make a long-term commitment to provide for the children's care.
On October 26, 2005, DYFS changed its proposed plan for E.D. and J.L.D. and advised it intended to seek termination of parental rights followed by an adoptive placement. The Division filed a guardianship complaint on December 22, 2005 and dismissed the protective services litigation.
Based upon his failure to appear or comply with the Division's requests for treatment, default was entered against J.C. on April 21, 2006. C.D.'s request to leave her treatment program early was denied. By the time trial commenced, she had completed in-patient treatment and arranged for out-patient after-care.
The guardianship trial concluded on July 13, 2006.*fn1 In a written opinion, the court found DYFS had met all four prongs of the "best interests" test, N.J.S.A. 30:4C-15.1(a), as to J.C. but had met only prongs one and three, as to C.D. Notwithstanding these findings, the July 15, 2006 order did not terminate J.C.'s parental rights. Instead, it stated there had been "a finding of insufficient facts to substantiate the allegations of abuse and neglect in the complaint" and dismissed the guardianship litigation without prejudice. Further, the court ordered "the parents shall have the opportunity . . . to show that they are ready, in a reasonable amount of time, to assume custody of and responsibility for their children." The Division reinstated the protective services litigation and continued rehabilitation and reunification efforts.
C.D. remained compliant with treatment, graduated from PBIH's out-patient recovery program, and then enrolled in counseling and parenting skills classes. Her weekly visitation with the children increased and progressed to daytime supervised visits in her home and, ultimately, to unsupervised overnight visits. The Division proposed returning the children to C.D.'s care.
On the other hand, J.C. neither cooperated with DYFS's efforts nor attended court hearings. The Division continued its attempts to re-engage him in the process. He was again ordered to attend a drug evaluation, cooperate with treatment and allowed supervised visitation in the Division's office; however, he was not to see the children when they were with C.D.
J.C.'s re-emergence corresponded with C.D.'s faltering compliance with her case plan. A March 16, 2007 progress report from Eva's Village stated all drug screens were negative but C.D. was only "doing the minimum that is required" and "need[ed] to apply herself more." During this same period, E.D. began experiencing conflict when visiting C.D. She had "difficulty sleeping at night," as she was "waking up in the middle of the night screaming that she does not want to live with her biological mother C.D."
The Division engaged Alice Nadelman, Ph.D., to assess the possible impact of reunification on the children, given the length of time they had spent with their foster family. On April 23, 2007, Dr. Nadelman met the girls and their foster parents. Then on May 15, 2007, she met with the children and their mother. Dr. Nadelman's evaluation concluded that the children had developed a "meaningful attachment" to C.D., as well as the foster parents.
On May 10, 2007, C.D. tested positive for alcohol. C.D. attributed the low positive reading to "self medicating" her insomnia with Nyquil. C.D.'s substance abuse counselor contacted a laboratory to verify the plausibility of this explanation. The laboratory reported the result would be achieved only if C.D. "drank [a] half bottle of 10 ounce Nyquil 6 to 7 hours prior to being drug test[ed]." Dr. Nadelman found C.D.'s "self-medicating" explanation "neither valid nor convincing" and viewed the event "as a relapse," indicative of "serious concerns about the status of [C.D.'s] addiction recovery."
After a follow-up interview, Dr. Nadelman recommended that if C.D.'s abstinence continued, while working and maintaining a home for her daughters, it would be "appropriate to set a date for the girls to move back to their mother." However, she also cautioned, "if [C.D.] has another positive drug test, the re-unification process should be ended and the plan should become foster parent adoption following termination of [C.D.'s] parental rights." The court approved the proposed plan for reunification and legal and physical custody of the children was returned to C.D. on December 5, 2007.
A series of events occurred in the Spring of 2008 that again triggered removal of the children. During unannounced visits to the home in March, DYFS discovered C.D. had lost interest in attending counseling and seeing her psychiatrist. She then stopped sending the children to pre-school, a requirement of her case plan. DYFS workers, arriving at her home in the afternoon, encountered C.D. and the children still wearing pajamas, and sitting around watching television. Then, after missing a scheduled urine test the Friday before, C.D. tested positive for cocaine on June 9, 2008. When told of her positive test, C.D. blamed the result on her prescription medication, which proved impossible. At C.D.'s request, the sample was retested and, again, the results were positive for cocaine. On June 16, 2008, the Division learned the children had been in contact with J.C., a violation of the court's orders and the case plan. Initially, C.D. suggested she inadvertently bumped into J.C. but did not call the police to avoid traumatizing the children. Later, she acknowledged J.C. had come to the house on two prior occasions, and she had spent the night with him at a hotel the night she missed her scheduled urine test.
On June 18, 2008, the court returned custody of the children to DYFS, which placed them with their former foster parents, who expressed interest in their adoption. The Division again investigated A.D. as a possible placement resource. Her doctor advised A.D.'s health was poor, and she could "take care of the grandchildren with assistance." The Division dismissed the protective services litigation when it filed a second complaint seeking the termination of the parental rights of J.C. and C.D.
A different Family Part judge was assigned to try the matter after his predecessor had retired. Prior to the commencement of testimony, C.D. suggested the admission of Division case records should be limited, arguing DYFS must be precluded from going beyond evidence of events occurring since the 2006 order denying termination of parental rights. The trial judge rejected C.D.'s argument, noting DYFS's burden was to prove all four prongs of the statutory test for termination as of the time of trial. C.D. then consented to allow the entirety of the evidence from the first trial to be made part of this record.
During the six-day trial, in addition to its records on the family, the Division presented factual testimony from three caseworkers and the foster mother, as well as expert testimony from Dr. Nadelman, who had performed updated psychological and bonding evaluations. C.D. testified on her own behalf and presented the expert testimony of Gerald Figurelli, Ph.D. J.C. chose not to "participate" in the trial, although he attended to "support" C.D.
In performing psychological and bonding evaluations of E.D., J.L.D., C.D., and the foster family, Dr. Nadelman personally observed and interviewed all parties, examined the Division's contact sheets and reviewed prior court orders and prior evaluations.
During her interview, Dr. Nadelman found C.D. "minimized her responsibility for any of the poor decisions which resulted in the removal of her daughters[.]" Dr. Nadelman opined C.D. was not able to provide safe care for her daughters. Specifically, C.D. understated the importance of obeying court orders that required she protect the children from J.C., asserted she went to the hotel room with him because she believed he was no longer using drugs, and later blamed him for her positive drug test.
During observation of the parent-child relationship, Dr. Nadelman found C.D. "affectionate" with the children and "equally responsive to both girls." The children interacted with her and E.D. said she loved her. The children demonstrated an enduring emotional connection and meaningful attachment to C.D. and were "shaken and distressed" after being removed from her care. E.D. clung to C.D. and J.L.D. grabbed A.D. when the session was ending. Dr. Nadelman also observed "[a]t times, [C.D.] seemed to forget that her daughters are only 3 1/2 and 5 years old and totally dependent on the adults in their lives, who often have different views and wishes."
Dr. Nadelman expressed concerns that the failed reunification was experienced by the children as "a betrayal of trust." They had wanted to stay with the foster family but were persuaded by the adults to return to C.D. and now were taken from her. Dr. Nadelman labeled J.L.D.'s attachment to her mother "ambivalent" and stated E.D.'s "attachment pattern" was "fluctuating," "demonstrat[ing] a somewhat insecure attachment to both her mother and her foster parents, which is understandable since she has been moved back and forth between them and has no idea of where she will ultimately settle."
Dr. Nadelman also evaluated J.C., who had yet to complete substance abuse treatment. Based on the Division's records, J.C. failed to attend eight of nine scheduled substance abuse evaluations at Options; tested positive for alcohol on August 20 and for cocaine on August 29, 2008 and, otherwise, did not attend other scheduled evaluations. Dr. Nadelman found J.C. evasive about his current living situation and expressed inability to provide a urine sample for testing. J.C. insisted he did not participate in prior court-ordered programs "because he did not need them and was confident that [C.D.] would regain custody" of the children.
Dr. Nadelman concluded J.C. lacked the "willingness or capacity" to care for the children, particularly based on his refusal to take a drug test, and that he had not "maintained an apartment or lived independently in about 10 years." Moreover, prior to his consideration as a serious parental option, he must demonstrate "at least 12-18 months" of sobriety. J.C. had not taken necessary steps to develop a relationship with his children while they were in foster care and Dr. Nadelman stated: "It would be seriously damaging for [E.D. and J.L.D.] to have to wait any longer for the possibility that the father they barely know, and who has never taken care of them, might successfully rehabilitate himself."
The children were also observed with their foster parents. Dr. Nadelman noted a "meaningful attachment" and that their adjustment after returning to their foster home was positive. J.L.D.'s primary attachment and "most secure and enduring relationship" was with her foster mother, likely because "she ha[d] lived with them for more than 2/3 of her life." E.D. displayed hostility and anxiety when talking about C.D. or her foster mother. Dr. Nadelman opined E.D. could not sustain another failed reunification with C.D., as it "would be significantly psychologically damag[ing]" and her capacity to trust any caregiver "would be seriously damaged, perhaps irreparably damaged[.]" She concluded termination of parental rights followed by foster parent adoption was in the best interests of these children, stating:
It would be too great a risk to the emotional and physical well-being of [E.D. and J.L.D.] to attempt yet another reunification effort with their mother. At this point, both girls would suffer serious and enduring harm to their sense of trust, security and attachment, to be separated from their foster parents. They would again be facing the risk of their mother reconnecting with their father and exposing them to his chronic substance abuse and instability . . . . [E.D. and J.L.D.] have lived in limbo for far too long and require a safe and secure permanent life plan that only adoption by their foster parents can provide.
[T]here are virtually no risks to [E.D. and J.L.D.] remaining with and being adopted by their foster parents, with whom they have lived for the majority of their lives and with whom each girl has a strong attachment. [E.D.] is likely to experience a grief reaction to a permanent separation from her mother, with whom she also has a significant attachment. However, the foster parents have demonstrated their sensitivity to both girls' needs and their ability to be understanding, accepting and supportive.
They have validated and accepted [E.D.'s] love for her mother and have reassured her of their continuing love and caring for her. [The foster parents] have the willingness and capacity to help [E.D.] cope with the loss of her mother without suffering serious and enduring harm. [J.L.D.] has consistently expressed her desire to remain with her foster parents, with whom she has lived for almost 3/4 of her life. She is likely to be relieved and experience significant anxiety-reduction if she is assured that she can remain with her foster parents permanently.
C.D. testified. She explained she had not used cocaine since 2006 and believed the June 2008 positive drug screen resulted solely from her inhalation of the crack cocaine smoked by J.C. after she fell asleep. C.D. asserted she no longer "hung out" with J.C. because she was "not interested." C.D. also acknowledged she took Nyquil every two hours from 10 p.m. to 4 a.m. on May 9 to alleviate her insomnia, although she had a prescription for Ambien. Finally, C.D. discussed her successful completion of rehabilitation programs and parenting classes.
C.D. presented the expert testimony of Dr. Figurelli who performed psychological and parental fitness evaluations. Although he was not evaluated, J.C. accompanied C.D. to the sessions. Generally, Dr. Figurelli agreed C.D. needed to properly understand the poor judgment demonstrated by her continued association with J.C. and by self-medicating, and to learn the importance of avoiding people, places and things that trigger her addiction. He took a more temperate view of the positive drug test and Nyquil incident, viewing them as lapses, not a full relapse. Dr. Figurelli opined C.D. was in remission and not abusing drugs, stating she possesses the capacity to parent adequately.
However, before actually doing so she needs to address in counseling her decision-making skills - especially as they impact her children in her role as parent - and her continued involvement with [J.C.] At issue at this time is the fact that [C.D.] made a poor decision interacting with [J.C.] that has impacted her children.
Dr. Figurelli also discussed articles C.D. presented in support of her theory that the recent testing was a false positive. The articles documented "the phenomenon of passive inhalation of crack/cocaine vapors among children." Additionally, Dr. Figurelli found a 1995 article from the Journal of Analytical Toxicology that was "consistent with [C.D.'s] contention that she tested positive because she passively inhaled cocaine vapor." On cross-examination, Dr. Figurelli acknowledged that these studies "cannot be considered to rule out the possibility that [C.D.] smoked crack/cocaine before testing positive[.]"
Dr. Figurelli's bonding evaluation between C.D., E.D. and J.L.D. revealed both children "appear to share a significant attachment to [C.D.] that is reciprocal in nature." He noted the children viewed C.D. as "a significant maternal authority figure in their world and in their lives." Dr. Figurelli concluded that, "as long as [C.D.] presents as a viable permanent placement option for [the children,] it is in their best interests for their relationship to her to be preserved." Dr. Figurelli was not requested to perform a bonding evaluation of the children with their foster parents and testified that even if he had done so, he did not believe "it would have made a significant or material difference" to his conclusions.
On June 26, the court rendered a decision terminating J.C. and C.D.'s parental rights. Addressing J.C., the court determined [he] has never had a relationship with the children, has not played a role in their lives and has not evidenced to this court's satisfaction any interest in parenting or securing safety and permanency for the children. His addiction lifestyle and his dedication to it by refusing to participate in the programs made available by the Division has contributed to the multiple removals of the children and contributed to the harm to which they have been exposed and suffered. When the children had to be removed . . . he was absent and unavailable for them.
[J.C.] did not appeal the  decision . . . nor did he take any action during the following care and supervision proceedings or these termination proceedings to remediate any of the reasons which formed the basis for [that] decision.
Thus the four prong test of the statute has been satisfied in every respect. The harm (first prong) of drug addiction and failure to address the needs of the children and to protect them against multiple removals continues to date. This defendant continues to refuse services (the second prong) available via the Division to remediate the harm and steadfastly adheres to his chosen drug abuse lifestyle. The Division's efforts included drug testing[,] psychological evaluations[,] opportunities to attend drug programs and parenting programs[, which] went unheeded and when asked to address the alternatives to termination [J.C.] mentioned an adult daughter but failed to follow up and provide the necessary contact information (prong three).
Termination of [J.C.'s] parental rights will not do more harm than good (prong four). [He] is an unfit parent as reflected by his lack of interest in obtaining custody, his continued conduct regarding drug addition and by the psychological evaluations.
As to C.D., the court detailed those facts that clearly and convincingly supported each prong of the statute. The court found prong one, that is, "the children's safety, health or development ha[d] been or will continue to be endangered by the parental relationship" was easily satisfied. Evidential support included: C.D.'s longstanding drug use prior and during pregnancy, the associated difficulties experienced by each child at birth, C.D.'s relapses, and the June 2008 positive drug test, which all resulted in foster care placement.
The judge also found C.D. unwilling or unable to eliminate or prevent harm to the children. Despite nine different treatment programs, C.D. had yet to fully overcome her addiction. Since 2003, the children spent a total of thirty-eight months with a resource family. The June 2008 positive test result suggested C.D. was unlikely to reach total sobriety or to provide the children with any semblance of permanency.
The court accepted the validity of all substance abuse test results, finding C.D. used "beverage alcohol" rather than Nyquil in May 2007 and ingested cocaine, not second hand smoke, in June 2008. The court rejected as incredible C.D.'s explanations for the positive test results on those dates, as well as Dr. Figurelli's opinion applying "informal news articles gleaned from the internet" to invalidate those results. The trial judge stated, "even if [C.D.] were to begin another monitored program the facts indicate that one could not predict with any reasonable degree of certainty as to how long it would take before she could be considered safe enough to parent."
Since 2006, the Division was found to have aided C.D. to overcome the harm posed by her drug use through "visitation and transportation, counseling, drug testing and drug treatment, homemaker services  and professional oversight by Dr. Nadelman[.]" The Division had considered family placement as an alternative to termination; however, A.D. and C.D.'s sisters were found not to be viable placement resources.
Finally, as to prong four, given the children's attachment to C.D., the court recognized the harm that would inure from termination, particularly to E.D. However, in balancing that harm against the trauma of another unsuccessful reunification effort, the court sided with the need to free the children for adoption to allow a permanent placement. Crediting Dr. Nadelman's opinion that adoption was in the children's best interest and the best option for finally providing them needed safety and permanency, the court determined the foster parents could successfully mitigate any resulting damage because they would "honor that relationship and help the girls cope with any loss or grieving they may experience."
A Judgment of Guardianship was entered on June 26, 2009. The parents' appeals were filed challenging the sufficiency of the evidence and the effective representation of counsel. We consolidated the two cases in an August 19, 2009 order.
Our review is guided by the following principles. The right of parents to enjoy a relationship with their children is constitutionally protected. In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). Parents have a fundamental liberty interest in raising their children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394, 71 L.Ed. 2d 599, 606 (1982); Division of Youth & Family Servs. v. C.M., __ N.J. __, __ (2010) (slip op. at 26). Both the federal and state constitutions protect the inviolability of the family unit. See Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212-13, 31 L.Ed. 2d 551, 558-59 (1972); Division of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986).
"The law's concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life's difficult decisions." Parham v. J.R., 442 U.S. 584, 602, 99 S.Ct. 2493, 2504, 61 L.Ed. 2d 101, 118 (1979). This presumption, however, is not always true. "[E]xperience and reality may rebut what the law accepts as a starting point[.]" Id. at 602, 99 S.Ct. at 2504, 61 L.Ed. 2d at 119. As evidenced by child abuse and neglect cases, some parents "may at times be acting against the interests of their children." Ibid. (internal quotations omitted). Thus, "the right of parents to be free from governmental intrusion is not absolute." A.W., supra, 103 N.J. at 599.
When a child's biological parents resist the termination of their parental rights, the court's function is to decide whether the parents can raise the child without causing the child further harm. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). "[T]he cornerstone of the inquiry is not whether the biological parents are fit but whether they can cease causing their child harm." Ibid. "The analysis of harm entails strict standards to protect the statutory and constitutional rights of the natural parents[,]" and the "burden falls on the State to demonstrate by clear and convincing evidence that the natural parent[s] ha[ve] not cured the initial cause of harm," and they "will continue to cause serious and lasting harm to the child." Ibid.
While recognizing the fundamental nature of parental rights and the need to preserve and strengthen family life, the Legislature has also recognized "the health and safety of the child shall be the State's paramount concern when making a decision on whether or not it is in the child's best interest to preserve the family unit." N.J.S.A. 30:4C-1(a). "The balance between parental rights and the State's interest in the welfare of children is achieved through the best interests of the child standard." K.H.O., supra, 161 N.J. at 347. This standard, initially formulated by the Court in A.W., supra, 103 N.J. at 604-11, and codified in N.J.S.A. 30:4C-15.1(a), requires the State to establish each of the following standards by clear and convincing evidence before parental rights may be severed:
(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 considerations involved are extremely fact-sensitive and require particularized evidence that addresses the specific circumstances present in each case. "'Importantly[,] those four prongs are not "discrete and separate," but "relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests."'" C.M., supra, __ N.J. __, slip op. at 28-29 (quoting Division of Youth & Family Servs. v. G.L., 191 N.J. 596, 606-07 (2007)); see K.H.O., supra, 161 N.J. at 348.
Also, as a threshold matter, the scope of appellate review in a termination of parental rights case is limited. "The factual findings which undergird a judgment in such a case should not be disturbed unless 'they are so wholly insupportable as to result in a denial of justice,' and should be upheld whenever they are 'supported by adequate, substantial and credible evidence.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974); Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 475 (1988)); see also In re Adoption of a Child by P.F.R., 308 N.J. Super. 250, 255 (App. Div. 1998). "[I]n reviewing the factual findings and conclusions of the trial judge, we are obliged to accord deference to the  court's credibility determination and the judge's 'feel of the case' based upon . . . [his] opportunity to see and hear the witnesses." Division of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006) (quoting Cesare v. Cesare, 154 N.J. 394, 411-13 (1998)), certif. denied, 190 N.J. 257 (2007). We also recognize the special expertise of those judges assigned to the Family Part. Cesare, supra, 154 N.J. at 412-13.
However, where the focus of the dispute is . . . alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom, the traditional scope of review is expanded. Still, even in those circumstances we will accord deference unless the trial court's findings went so wide of the mark that a mistake must have been made. [Division of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (internal quotations and citations omitted).]
We review the arguments advanced by J.C. and C.D.
On appeal, J.C. suggests DYFS made no effort toward his reunification with the children, arguing: "DYFS made no appreciable effort to provide services . . . or give him any meaningful opportunity to foster and promote a relationship with his children[,]" as "[a]t all times since April 24, 2004 [he] was restrained from contact with his children[.]" We disagree.
In both guardianship proceedings, J.C. has chosen to be only a passive support for C.D. He never initiated independent efforts to assume primary parental responsibility for E.D. and J.L.D. Moreover, he consistently avoided substance abuse rehabilitation, the key to his continued contact with the children.
It has long been held that harm to children is not limited to physical harm, but also encompasses psychological and developmental injury. In re Guardianship of R. G. and F., 155 N.J. Super. 186, 194 (App. Div. 1977). Specific examples include the extended withdrawal by the parent of solicitude, nurture and care, as well as a pattern of inattention to a child's needs, which frequently leads to bonded relationships with foster parents, the severance of which would cause the child harm. In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999); Division of Youth & Family Servs. v. B.G.S., 291 N.J. Super. 582, 592 (App. Div. 1996).
J.C. challenges the restraint imposed as unjust, suggesting it caused him to constructively abandon his children. He does not deny his cocaine addiction, yet there is no evidence he completed one rehabilitation program. Based on those facts, we view the restraint as absolutely appropriate and necessary to protect these extremely young children from the perils of a drug-addicted parent. Further, the restraint's abatement or removal was within J.C.'s control.
In the evaluation with Dr. Nadelman, J.C. refused to submit to a drug test and evaded questions regarding his residence or work efforts. J.C. has demonstrated an unwillingness to change. The half-hearted efforts to attend most of his drug rehabilitation program sessions immediately before trial were too little, too late.
In fact, J.C.'s suggestion that the restraint imperiled his relationship with the children illustrates his routine rejection of responsibility. J.C.'s decisions, including his drug use and affirmation at trial that he had no interest in securing custody of the children, interfered with his ability to develop a relationship with E.D. and J.L.D. Assumption of a parental role in the lives of these children required he forsake cocaine. J.C. is not a victim, and he was not affected by circumstances beyond his control. He was repeatedly told his relationship with his children was conditioned on abstinence from illicit substances, yet he rebuffed the Division's efforts.
Finally, it is noteworthy that during each of C.D.'s documented relapses, she had been in the company of J.C. Thus, it was J.C.'s drug dependence, not the Division, that placed C.D. in the untenable position of distancing herself from the children's father.
We conclude the judgment terminating J.C.'s parental rights was amply supported by the facts. We discern no error and no denial of justice. Accordingly, we affirm substantially for the reasons stated by the trial judge in his June 26, 2009 written opinion. R. 2:11-3(e)(1)(A).
Additionally, we also reject J.C.'s ineffective assistance of counsel argument as meritless. R. 2:11-3(e)(1)(E). We add these brief comments.
As the termination of parental rights implicates a fundamental liberty interest, defendants are guaranteed the right to effective counsel. Division of Youth & Family Servs. v. B.R., 192 N.J. 301, 305-06 (2007). The analysis requires a determination of whether counsel was effective. Id. at 306. We examine whether but for the cited unprofessional errors and deficient performance, "the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed. 2d 674, 693 (1984).
Courts are to exercise a strong presumption that counsel has rendered appropriate and sufficient professional assistance. Id. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694; State v. Fritz, 105 N.J. 42, 52 (1987). A defendant must point to "specific errors," which rise above the level of general trial strategy. United States v. Cronic, 466 U.S. 648, 659 n. 26, 104 S.Ct. 2039, 2047 n. 26, 80 L.Ed. 2d 657, 668 n. 26 (1984); Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694.
The sole error cited by J.C. is counsel's alleged failure to more formally "object to restraining orders [entered] against him and to offer his visitation be supervised by A.D. in the children's home." As discussed above, the restraint was conditioned on J.C.'s cocaine abuse: if he had completed rehabilitation and ceased illicit drug use, he could have secured greater opportunities to see his children.
Also, in exercising its responsibility to protect these children, see J.C., supra, 129 N.J. at 10 (outlining the State's parens patriae responsibility to protect the welfare of children when the custodian is rendered unfit), the Division rightly rejected utilizing A.D. alone, or in combination with C.D., to supervise J.C.'s visits. The record reflects DYFS obtained information verifying A.D.'s health problems had deteriorated since they were first discovered in 2005, making her unable to perform the role of primary caretaker and to provide E.D. and J.L.D. with a safe and secure home. No basis is shown to support a finding of ineffective assistance warranting the reversal of the judgment.
We now undertake review of whether clear and convincing evidence sufficient to compel the severing of C.D.'s parental rights was presented. M.M., supra, 189 N.J. at 280. Although she challenges the evidential support for all four prongs of the statutory test, C.D.'s arguments concentrate on the Division's failure to satisfy prongs two and four.
C.D.'s addiction was initially identified in 2003. She made significant progress to abate her drug use but repeatedly relapsed, demonstrating she was unable to remain a stable source of care and security for her children. Both children were cocaine exposed, resulting in physical signs of withdrawal at birth. DYFS's two substantiated determinations of neglect went unchallenged.
Were these the only facts, C.D.'s arguments would be more persuasive, as we agree drug-addicted parents should be able to turn to the foster care system without fear of losing their children. J.C., supra, 129 N.J. at 21. However, the offer of an initial safe haven for drug-dependent parents will not license inordinate failure to eliminate the addiction, which will allow the children's return to their home. Here, C.D.'s continued drug abuse and the resultant effects upon her children were extensive.
Prior to J.L.D.'s birth, it was clear that E.D.'s health was ignored, and she required emergency dental care for a life-threatening infection. Because of conditions resulting from drug exposure, J.L.D.'s first foster placement was in a specialized home for medically fragile children. In March 2008, after the most recent reunification, C.D. stopped taking the children to school. The Division's unannounced visits did not encounter a mother engaging her young children in physical or intellectual activity; rather, the family was in pajamas watching television at 2 p.m.
As outlined by Dr. Nadelman, both children experienced psychological harm from successive removals and reunifications over a period of six years. Following the June 8, 2008 removal, Dr. Nadelman noted psychological trauma caused E.D. to exhibit a fluctuating attachment pattern between her mother and foster parents. E.D. also demonstrated symptoms of anger and anxiety, displaying the child's confusion about her future. Also, J.L.D. had become primarily attached to her foster mother.
C.D.'s initial drug abuse and her prolonged inability to become completely drug-free have significantly compromised the safety, health, and development of the children, who will continue to be endangered by the parental relationship. The demonstration of harm, required by prong one, has been satisfied by clear and convincing evidence.
C.D. has not mitigated this harm. Despite years of in-patient and aftercare treatment, she remains unable to avoid the people and substances triggering her addiction. C.D. disregarded counseling efforts to enlighten her of the negative consequences of her relationship with J.C., including the relationship's adverse impact upon the children. C.D.'s sustained involvement with an addict led to her continued use of alcohol and cocaine.
On appeal, C.D. protests the accuracy of the May 2007 and June 2008 positive drug tests. However, her explanations were found not credible and unsupported. The choice of ingesting Nyquil, which contains sedating antihistamines and alcohol,*fn2 rather than the prescribed sleep aid Ambien, reflects her disregard for the avoidance of addictive substances. Similarly, her suggestion the positive drug test vicariously resulted from J.C.'s drug use was an unconfirmed, speculative explanation, particularly in light of the twenty-four hour period that elapsed from the alleged time of exposure to the time of testing. The court found credible and relied upon Dr. Nadelman's opinion that these instances were evidence of relapse.
C.D. argues suggesting single "errors in judgment" are insufficient to terminate parental rights in light of the overall strides made in rehabilitation. She argues DYFS has not provided clear and convincing proof she is unable to mitigate the harm to the children. We disagree.
As argued by the Law Guardian, C.D.'s experiences over time display an undeniable pattern. C.D., who first used cocaine at age fourteen, has been in nine drug rehabilitation programs over the six years of DYFS involvement, including one lasting an entire year. She succeeded in mastering these programs, conducted in a closely regimented environment. However, after removal of the regulations and monitoring, she slides toward drug use over and over again when tested by the perils of temptation. Even knowing that the consequence would impact the return of E.D. and J.L.D., C.D. rejuvenated her relationship with J.C. and relapsed. C.D.'s behaviors signify an unwillingness to place the children's needs above her own self-indulgence, crushing any hope that she could provide needed nurturing every single day.
Moreover, no evidence supported the prospect that C.D. was ready and able to adequately resume parenting. Dr. Nadelman suggested C.D. lacked the psychological capacity to do so. Dr. Figurelli recommended, without stating a time frame, that C.D. needed additional counseling to address decision-making skills and the impact of her choices on the children. The children are now five and nearly seven years old. They can no longer wait for C.D. to understand the need to completely overcome her addiction.
Dabbling with addictive substances, despite concentrated efforts to quell this behavior, is a continuing harm that cannot be ignored. C.D. has not overcome "those circumstances that necessitated the placement of the child[ren] into foster care." K.H.O., supra, 161 N.J. at 354. The evidence clearly shows C.D.'s continued inability to eliminate all substance abuse unequivocally deprived the children of necessary stability and permanency, causing them to be reared by others. Division of Youth & Family Servs. v. P.P., 180 N.J. 494, 510 (2004); Division of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div.), certif. denied, 180 N.J. 456 (2004); see also L. 1999, c. 53 § 1 (codifying amendments to Title 9 and N.J.S.A. 30:4C to conform to the requirements of the federal Adoption and Safe Families Act of 1997 (ASFA), Pub. L. No. 105-89, 111 Stat. 2115 (codified as amendments in sections of 42 U.S.C.A.)).
The trial court's opinion detailed the services provided to C.D. in an effort to overcome her drug abuse and provide safety and security to the children. See N.J.S.A. 30:4C-15.1(c) (listing four categories of efforts to be extended by DYFS to parents whose children are put in placement).*fn3 The Division afforded C.D. substance abuse treatment, counseling services, visitation, ECAP workers, psychological, medical and psychiatric treatment, parenting skills, and extended health care, pre-school education and supplies to the children. In light of the facts and circumstances of this case, we conclude the Division's efforts satisfy the statute. D.M.H., supra, 161 N.J. at 390.
C.D. challenges the Division's efforts to pursue "alternatives to termination of parental rights," arguing it failed to "initiate a search for relatives who may be willing and able to prove care and support required for the child." Specifically, she notes A.D.'s requests to be considered as a placement were ignored.
Our review determines the Division's reliance on the July 3, 2008 report from A.D.'s doctor, advising she was in "poor" health, suffering from chronic lung disease and heart ailments, and could only care for the children with an unspecified level of assistance, was appropriate in ruling A.D. out as a permanent placement resource. A.D. was "often hooked up to [a] breathing apparatus" and continued to smoke heavily, exacerbating her pulmonary condition.
Other relatives offered as possible caregivers posed by C.D., such as her sisters, were reviewed and validly ruled-out. J.C. once suggested his adult daughter might assist, but never provided the Division any contact information. Overall, we find the Division's efforts in this regard satisfactorily compliant with its mandate.
Our final statutory consideration is whether the children will "suffer a greater harm from the termination of ties with her natural parents than from the permanent disruption of her relationship with her foster parents." K.H.O., supra, 161 N.J. at 355. C.D. points to her close bond with the children and notes both experts highlighted harm would result from the termination of her relationship with E.D. and J.L.D. We have no doubt that C.D. loves her daughters. However, the trial court's conclusion, after crediting Dr. Nadelman's expert opinion, that the harm caused by termination was not outweighed by the harm posed another failed reunification is supported by this record.
"A child is not chattel in which a parent has an untempered property right" and should not "be held prisoner of the rights of others, even those of his or her parents." C.S., supra, 367 N.J. Super. at 110-11. "'[C]oncern has arisen for the best interests of children whose parents have forsaken their parental duties.'" P.P., supra, 180 N.J. at 505 (quoting In re Adoption of Children by G.P.B., Jr., 161 N.J. 396, 404 (1994)). The emphasis of ASFA in such proceedings "has shifted from protracted efforts for reunification with a birth parent to an expeditious, permanent placement to promote the child's well-being." C.S., supra, 367 N.J. Super. at 111; see N.J.S.A. 30:4C-15.
In our view, as directed by ASFA, the amendments to Title 9 and recent case law, the focus of our inquiry is not whether C.D. loves or cares for the children but whether she can satisfy the children's need for permanency and stability by ceasing the harm. P.P., supra, 180 N.J. at 505-07; G.P.B., supra, 161 N.J. at 404. Sadly, based on this record, we cannot answer that question affirmatively.
E.D. and J.L.D. have waited six years for C.D. to ready herself to provide a permanent, safe, and stable home, which she has not done. J.L.D., who has spent over three-quarters of her life in the care of her foster parents, has developed such a strong attachment that she now identifies them as her primary caregivers. Her removal from their care would create longstanding psychological difficulties. Similarly, E.D.'s continued removal has imparted attachment difficulties; so she is no longer solidly bound to any adult. Being older, E.D. will likely experience a greater loss as ties with her mother are severed, but the short-term harm will be mitigated by her foster parents' ability to address this concern. Over the long-term, she will find safety and one stable home. The record convincingly supports the trial court's finding that the children's need for a permanent placement rises above C.D.'s parental rights. C.S., supra, 367 N.J. Super. at 110. The judgment of guardianship must be affirmed.
C.D. also argues that her counsel was ineffective because he failed to request Dr. Figurelli perform a bonding evaluation between the children and their foster parents. As a result, when analyzing the evidence supporting the fourth prong, the court found Dr. Figurelli's single bonding evaluation "[a] flaw that undermines his opinion" and Dr. Nadelman's bonding evaluations "uncontested and . . . supported by the undisputed facts."
Expert testimony is crucial to an analysis of the fourth prong of the best interests test. See M.M., supra, 189 N.J. at 281 (stressing the need for "comprehensive, objective and informed evaluation[s] of the child's relationship with both the natural parent and the foster parents") (internal quotation omitted); J.C., supra, 129 N.J. at 25 (stating it is "a decision that necessarily requires expert inquiry specifically directed to the strength of each relationship"). Here, Dr. Figurelli stated he saw no need to perform a bonding evaluation of the foster parents suggesting their bonding of the child as found by Dr. Nadelman was sufficiently demonstrated. Regardless of the reason, if Dr. Figurelli had conducted a foster parent bonding evaluation, we discern its effect would not alter the outcome of this matter because C.D. was not able to resume parenting and protect the safety of the child.
We note Dr. Figurelli did not assert the children should or could be released to C.D.'s care; instead, he maintained the relationship should be preserved and C.D. given more time to complete counseling and therapy to understand the impact of her behavior upon the children. That proposition was rejected by the trial court as both children had spent several years - over several different time periods - with their foster family. C.D.'s prolonged inattention to her children's needs due to her drug abuse encouraged the development of a strong bonding relationship to the foster parents, such that the severing of those bonds would cause profound harm and would endanger the health and development of the children. B.G.S., supra, 291 N.J. Super. at 592. Moreover, an expert's failure to evaluate both sets of potential caregivers does not violate any "statutory requirements" or "established case law," as suggested by the trial court's comments on this issue; rather, it affects the weight to be placed on the expert's opinion. See M.M., supra, 189 N.J. at 287 (finding trial court "justified in giving greater weight" to experts who had evaluated all parties). The court considered Dr. Figurelli's testimony but "accorded greater weight" to Dr. Nadelman's opinion. Accordingly, we cannot conclude that counsel's failure to secure Dr. Figurelli's bonding evaluation between the children and the foster parents would likely have changed the ultimate determination.
After considering the record and briefs in light of the applicable law, we conclude the trial judge's findings and conclusions are adequately supported by clear and convincing evidence in the record as a whole. We will not disturb the June 26, 2009 judgment awarding guardianship of E.D. and J.L.D. to DYFS and terminating the parental rights of J.C. and C.D.