May 9, 2011
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF E.A.B., A MINOR.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-52-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 4, 2011
Before Judges Reisner, Sabatino, and Ostrer.
After a Title 30 guardianship trial, the trial court terminated the parental rights of R.B. to her biological daughter, E.A.B. ("Emma").*fn1 At the same time, the trial court terminated the parental rights of Emma's biological father, E.A. Based upon the evidence presented, the trial judge concluded that the Division of Youth and Family Services ("DYFS" or "the Division") had established all four criteria necessary for termination under N.J.S.A. 30:4C-15.1(a), by clear and convincing evidence.
R.B. now appeals, principally arguing that the Division failed to make reasonable efforts to provide her with services, and that the termination of her parental rights was premature, given the fact that Emma is now only two years of age. E.A., the child's father, has not appealed.*fn2
For the reasons that follow, and applying our limited standard of appellate review, we affirm the June 30, 2010 final judgment of guardianship.
The record developed at trial reveals the following sequence of relevant events and circumstances.
Defendant is the biological mother of four children, three of whom were removed from her care prior to the birth of Emma, the fourth child. The Division initially became involved with defendant in January 2001, when it received a referral reporting that she had given birth to a pre-term infant girl, A.A.B., who tested positive for cocaine.
In November 2003, the Division received another referral about defendant, indicating that she had given birth to a second daughter, H.A.B., and that, at the time of delivery, defendant had tested positive for cocaine and opiates. Two years later, on November 30, 2005, a judgment for Kinship Legal Guardianship ("KLG") was entered, appointing defendant's mother as the Kinship Legal Guardian for her first two children.
The Division received a third referral involving defendant in December 2007. That referral indicated that defendant had given birth to a full-term baby girl, J.C.B. ("Jaime"), who tested positive for opiates. Jaime was placed with defendant's brother, E.B. and his wife, C.B.
On May 9, 2009, defendant's parental rights to Jaime were terminated at the request of the Division. Although defendant did not appear at the Family Part hearing and the termination was entered by default, defendant represented that she had made a designated surrender to E.B. and C.B. to allow them to adopt Jaime. Seven months later, on November 21, 2009, Jaime's adoption by E.B. and C.B. was finalized.
The Division once again became involved with defendant, upon receiving another referral after she gave birth to her fourth child, Emma. During the early morning hours of April 30, 2009, Emma was born at Newark Beth Israel Medical Center. Emma was premature and weighed five pounds, four ounces. Shortly after giving birth to Emma, defendant's urine tested positive for heroin, cocaine, and THC.
Defendant stated that she had last used heroin at 1:00 p.m. on April 29, 2009. She admitted to sniffing heroin every day, or every other day, throughout the prior year. Defendant was referred for a social work consultation, after which her case was transferred to the Division and a "social hold" was placed on Emma pending the Division's investigation. During the initial consultation with defendant on April 30, 2009, the social worker noted that defendant "requested to go to [a] long-term [drug] treatment facility."
Although Emma tested positive for cocaine and heroin at birth, she did not appear to exhibit symptoms of withdrawal. Consequently, Emma was medically cleared for discharge from the hospital on May 6, 2009. Anticipating Emma's discharge, a DYFS caseworker personally visited defendant's home the day before. The caseworker went there to inform defendant that a hearing on custody was to take place in the Family Part on May 6, 2009. Defendant apparently told the caseworker that both she and her family would attend the hearing.
The initial custody hearing was held, as anticipated, on May 6, 2009. However, defendant did not appear. At that hearing, the Division petitioned for, and was granted, custody of Emma. A subsequent DYFS contact sheet, dated May 11, 2009, indicates that "[t]he child's mother [defendant] has declined participation in the Case Plan. She has refused services and contact with the Division Worker." Six days after the Division was granted custody, Emma was discharged from the hospital and she was placed in foster care.
Three weeks later, on June 5, 2009, Emma was placed in the home of her paternal cousin, S.A. ("Sharon"). The family team meeting referral from that day noted that Emma had been placed with a paternal cousin, and that "[b]oth parents continue to use drugs."
Six days later, on June 11, 2009, a fact-finding hearing was held in the Family Part. Neither defendant nor Emma's father appeared. At that hearing, the court determined, by clear and convincing evidence, that the parents had "abused or neglected [Emma] in that they exposed the child in utero to illegal drugs and accordingly the child tested positive at birth to [both] heroin and cocaine." The court further noted that "[n]either parent put forth a plan for the child."
Shortly thereafter, the Division requested an early intervention evaluation of Emma. That evaluation was performed on July 22, 2009. Emma's foster mother, Sharon, participated in the evaluation. She indicated that she did not have any concerns regarding Emma's development. The early intervention team agreed, concluding that Emma was "developing nicely," and therefore she was not in need of early intervention services.
Beginning in November 2009, defendant was offered weekly visitations with Emma, for one hour per visit. However, apparently due to her fluctuating work schedule, defendant was unable to participate in visitation at the scheduled times. As a result, the Division referred defendant to the Tri-City Visitation Program ("Tri-City"). Commencing in December 2009, defendant was scheduled by Tri-City for supervised visitation sessions on Saturday afternoons. Although defendant never complained about the visitation schedule, Tri-City reported that her attendance was "sporadic." According to the visitation reports from December 17, 2009 through May 29, 2009, only eight recorded visits appear to have taken place during that five-month time span. Defendant cancelled at least seven of the missed appointments, and in several instances she did not confirm the appointment in advance as required.
Defendant also was offered liberal opportunities to visit with Emma by the foster mother, Sharon. Defendant did not take advantage of Sharon's offer, preferring to visit with Emma elsewhere.
Meanwhile, the Division proceeded to seek termination of defendant's parental rights. A three-day guardianship trial was held in the Family Part in June 2010. The Division presented three witnesses at trial: Ashley Mystila, the caseworker for Emma and the former caseworker for Jaime; Elayne Weitz, Psy.D., a licensed psychologist; and Sharon, the foster mother.
Mystila testified that she was assigned responsibility for Emma in July 2009, eleven months before the trial. Mystila stated that in September 2009 she and defendant discussed the various inpatient services that defendant was receiving at a program known as Eva's Village. Those services included substance abuse group meetings and parenting classes. Mystila acknowledged that as of her first encounter with defendant, defendant had stated that she wanted to be a resource for Emma. On at least two occasions towards the end of her inpatient program at Eva's Village, defendant told Mystila that she wanted to go into a so-called "mommy-and-me" program. Although Mystila herself was not directly familiar with mommy-and-me programs, she had discussed the program with her supervisor.
Mystila recalled that defendant first expressed her desire to participate in a mommy-and-me program in approximately December 2009. Mystila testified that, initially, defendant was not considered suitable by the Division for a mommy-and-me program because she was still in active drug treatment. Mystila indicated that the mommy-and-me request was also discussed twice in May 2010. After her treatment ended, defendant again expressed some interest in a mommy-and-me program, but only to the extent that she gave Mystila the contact information for her new counselor at Eva's Village so that Mystila "could speak with her new counselor in getting the information for her to go into a mommy-and-me program." However, the Division did not consider the request at that time either, because defendant's final progress report from Eva's Village had indicated that she was leaving the program and that she was expecting to live with her parents.
After defendant left Eva's Village, defendant did not move in with her parents. Instead she moved in with a paramour, D.G., a former addict whom defendant had met at Eva's Village. Mystila stated that defendant had not allowed her access to assess their residence. Defendant told Mystila that the arrangement was temporary, and that she and the paramour were looking for a larger apartment.
Mystila confirmed that, as the situation unfolded, the Division's "permanency goal" for Emma became foster home adoption with Sharon. In her testimony, she explained the Division's reasons for adopting that goal as follows:
The Division feels like this goal is appropriate due to [defendant]'s high risk of relapse, also her lack of commitment that was shown in the sporadic visitation, as well as being offered liberal visitation, even throughout the duration of the case. [Defendant] has kind of displayed a pattern where she seeks recovery, gets herself into recovery, somehow links with a former drug-abusing boyfriend which ultimately leads to her relapse.
Mystila stated that defendant has not yet broken her pattern of relapse-and-recovery, and that her risk of relapse represents "an additional reason why the Division believes a mommy-and-me program would not be appropriate." Mystila perceived that defendant "hasn't expressed a dire need for the mommy-and-me program at this point. She [is] content with going to school and living with her paramour."
Mystila acknowledged that the reports that she received from Eva's Village showed that defendant was successfully progressing through the program. She also confirmed that the Division was satisfied with the services that defendant was receiving at Eva's Village.
Mystila agreed that Emma's father was not capable of taking care of Emma himself. According to Mystila, at the time of Emma's birth, her father asserted "that he was unaware of [defendant]'s drug use and [that] he was not referring himself as a resource at the time." Mystila testified that the father indicated to her that he was supportive of the Division's plan to place Emma with Sharon, although counsel stipulated at trial that the father instead preferred to have defendant serve as Emma's caretaker. The father did not testify at trial.
Dr. Weitz, a licensed psychologist, testified as an expert for the Division with respect to the issues of parenting capacity, ability, and bonding. During the course of her testimony, Dr. Weitz opined that a mommy-and-me program would not have been appropriate for defendant and Emma. She provided the following reasons, which we quote at length because of their pertinence to the issues on appeal:
[Defendant] needs to show that she can live independently from a controlled environment, that she can maintain stable housing, that she can work, that she can continue to go to her meetings and that she can remain sober. A mommy-and-me program is going to prolong the amount of time before we can even make that assessment with her, and so one of the concerns I have is particular to this child, who is almost 14 months old. If she is removed from the stable home and the security of the home that she is currently living with, to then go into a new environment, which as I indicated, where there are multiple people that she has to become familiar with, and not spending 100 percent of her time with her birth mother, and perhaps -- it would be early -- but perhaps some form of a bond does begin. If then we look at the mother's ability to move outside of the controlled environment, live in an independent setting and perhaps not be able to perform all of the roles and responsibilities that she needs to do as a recovering addict, as well as the parent to this child, then there is a major risk of a failed reunification.
So we have a child who at [age] 1, who is very much in the midst of developing a strong attachment to her current caretaker, would be removed from that caretaker and suffer, as she is feeling some sense of loss from that caretaker, having to establish a new bond, which takes a long time, especially longer, since she would not be in the full uninterrupted care of the caretaker.
And then to then possibly have that bond broken again, the concern is that we have a child who could end up with a reactive attachment disorder by having had experiences where attachments were broken multiple times. [Emphasis added.]
Although defendant had been in recovery for a year and had tested negative for any substance use during that time, Dr. Weitz found significant that her history of drug use spanned more than eleven years. During that time, she gave birth to four drug-exposed children and, after a four-year period of sustained recovery, again relapsed. Dr. Weitz also expressed concern that defendant would "put her need for a relationship with a man before her need to provide and protect for her child." As Dr. Weitz put it, "[defendant's] words say one thing and her behavior shows something else."
Based upon her expert review, Dr. Weitz concluded that the termination of defendant's parental rights was "in the best interest of the child." She predicted that Emma's removal from Sharon's home also "would cause serious psychological harm" to Sharon's seven-year-old son. According to Dr. Weitz, there was "no indication that at this point [defendant] is able to maintain [her] sustained sobriety without living in a controlled environment." She also stated that her recommendation would not change even if defendant were given more time.
Lastly, the Division presented the testimony of Sharon, Emma's foster mother and her cousin on her father's side. Sharon confirmed in her testimony that she wishes to adopt Emma. However, Sharon also expressed her intention to keep Emma's biological parents, including defendant, involved in Emma's life. Sharon explained that she herself had been raised from birth by one of her cousins, and that her parents still remained a part of her own life. Sharon testified that she had offered, on several occasions, for defendant to visit with Emma at her home. Even so, defendant only came over once, for about thirty minutes during Emma's first birthday party. According to Sharon, defendant only called her once to ask about Emma.
The Law Guardian presented the testimony of one witness, Susan Cohen Esquilin, Ph.D., a licensed psychologist. Dr. Esquilin testified as an expert on issues of parenting capacity, parenting relationships, and bonding.
Dr. Esquilin indicated that she had considered the propriety of a mommy-and-me program for defendant, and that she had discussed the program with the director of the intensive outpatient program at Eva's Village. Dr. Esquilin explained:
[Defendant] would have to re-enter the residential component, that [mommy-and-me] is not an outpatient program, [it] is a residential program that requires three days a week of drug treatment during the day, as I understand it, which I would imagine would require [defendant] to kind of basically step back from what she's doing in terms of her education and vocational training.
The mommy-and-me program -- and this is only about the mommy-and-me program at Eva's Village. The mommy-and-me program at Eva's Village apparently provides other kinds of services regarding parenting, and stuff like that, and that takes place in the evening as part of the residential component, but they [the mothers] are required to attend this day program, that's a substance-abuse-treatment program, during the day.
The director also told [me] that anybody who was coming into that program would have to be referred by DYFS, would have to be assessed for appropriateness, and that it's a high-demand program, so she couldn't give me at that moment -- nor did I ask -- you know, how long a waiting list would be or whether [defendant] would be appropriate because, in fact, I was not discussing [defendant] with her specifically. I was discussing -- I was just asking her about the program. [Emphasis added.]
Dr. Esquilin acknowledged that defendant's hypothetical admission into the mommy-and-me program "would delay the period of time in which [defendant] needs to prove her sobriety while living independently[.]" Such a program thereby "would set [defendant] back in terms of being able to live independently[.]" Dr. Esquilin underscored Emma's need for permanency and stability with a committed caregiver. In her expert opinion, Sharon was a stable individual, with very solid family support, who would be able to provide such permanency for Emma.
Dr. Esquilin did credit defendant's motivation and success in maintaining her sobriety over the preceding twelve months. However, she expressed reservations about whether defendant would be able to maintain sobriety without the support and structure of inpatient services. Dr. Esquilin described defendant's substance abuse recovery as "iffy . . . because the substance abuse is so linked to [defendant's] history of sexual abuse and the problems with her mother[.]" Dr. Esquilin also expressed concern that defendant was "having difficulty imagining being on her own in recovery[,]" as evidenced by her "need to be with somebody."
Dr. Esquilin's testimony elaborated upon her discussions with defendant about developing a permanency plan for Emma. Dr. Esquilin indicated that when she asked defendant what she anticipated, "her initial response . . . was that she anticipated joint custody with the current caregiver." Dr. Esquilin explained to defendant that the court was looking for a permanent parent, to which defendant responded that "she would like to be that person." Reflecting upon defendant's comments, Dr. Esquilin felt as though defendant was saying that she was not fully prepared to assume the parental role, and that she therefore wished to share that role with Sharon.
Although Dr. Esquilin perceived that defendant "does have an interest in Emma," she did not think that there was "a full interest in the way you would want to see of a parent who was ready to assume full-time parenting of that child and who felt a real connection to that child." As Dr. Esquilin noted in her expert report, which was admitted into evidence without objection, "the risk of [defendant] relapsing coupled with what seems to be her ambivalence about assuming sole primary responsibility for [Emma,] indicates that the best plan for [Emma]'s permanency is termination of parental rights and adoption by [Sharon]."
Defendant testified on her own behalf. She asserted that, while she was in the hospital after Emma was born, she told the DYFS caseworker that she knew she needed treatment and that she "ultimately wanted to be the one to take care of [Emma]." Although the caseworker indicated that DYFS would assist her in seeking treatment, defendant allegedly never heard anything. She therefore sought treatment on her own.
Defendant recounted that she went into detox at Bergen Regional Medical Center on June 8, 2009, and entered treatment at Eva's Village three days later, on June 11, 2009. Defendant indicated that once she entered Eva's Village, she was in a "blackout period," which prohibited her from communicating with anyone. As a result, upon entering Eva's Village, defendant signed a "consent to release" form, indicating that she had a case pending in the Division's Maplewood office. Defendant contended that it was not until she contacted the Division herself, after her blackout period at Eva's Village ended on August 11, 2009, that she found out that her case had been transferred to the Division's Newark office.
Defendant visited her new caseworker, Mystila, at the DYFS office in Newark on September 9, 2009. According to defendant, she told Mystila that she was enrolled in an inpatient program, and that "the ultimate goal was for [her] to have [Emma] with [her] in a mommy-and-me program." Defendant contended that she also discussed the mommy-and-me program with her counselor at Eva's Village, and that enrollment in that program, known as the "Hope Residence," was part of her treatment plan. Defendant further testified that, in about December 2009 or January 2010, she filled out an application with the Hope Residence. Evidently, the application was never processed.
On cross-examination, defendant acknowledged that the Division had offered her psychological and substance abuse services after the birth of her third daughter, Jaime. She claimed that she did not follow through with those services because, at the time, she was not ready.
Defendant testified that she is currently participating in Narcotics Anonymous ("NA"), noting that her NA sponsor overcame some of the same issues that defendant is now facing, i.e., prior drug use during pregnancy and the loss of custody of her children.
Defendant also presented expert testimony from Albert R. Griffith, Ed.D., a licensed psychologist. Dr. Griffith testified about issues of parenting capacity and bonding. In summarizing his findings, Dr. Griffith stated that:
[Defendant] has shown some progress. She has completed the first phase of her program which was not easy to do. And she is following up with NA which she did not do significantly in the past. In addition to that, she's asking for admission to a Mommy and Me program[,] which I think would be a significant difference in terms of basically teaching her the appropriate ways of bonding to a child, even though she already[,] as you'll see[,] has demonstrated a number of those skills.
Dr. Griffith stated that a mommy-and-me program "would give [defendant] an opportunity to develop that confidence and to learn the basic skills of day to day parenting."
Dr. Griffith acknowledged, however, that defendant's recovery from drugs has been in a controlled setting. He recognized that "it was clear that [defendant] had multiple supports. She was dependent upon those supports." He further acknowledged that "at this stage[, defendant's] dependence on a group is a significant point of her treatment and in fact needs to continue until such time she's ready to stand on her own two feet." When pressed on the issue of defendant's readiness to parent, Dr. Griffith clarified that he was "not recommending reunification at this time[.]"
With respect to defendant's behavioral traits, Dr. Griffith further acknowledged that defendant "remains manipulative," and that "she has a careless disregard for unflattering information." He conceded that "this manipulation and careless disregard for unflattering information could have twisted some of the information that was reported to [him] by [defendant]."
In his written report, which was also admitted into evidence without objection, Dr. Griffith explained why he differed with Dr. Weitz's recommendation that defendant's parental rights be terminated. He felt that Dr. Weitz's recommendation was not "consistent with the progress that [defendant has] made." Dr. Griffith's view that defendant's "current progress has suggested that she has earned the chance to demonstrate that she has the ability to grow more. On that basis, she can be recommended for an extension of 6 months before termination procedures."
After considering this expert and lay testimony, as well as the documentary proofs, the trial judge concluded that the Division had satisfied the statutory criteria for termination of defendant's parental rights, and that it had met that burden by clear and convincing evidence. Defendant's parental rights to Emma were consequently terminated by an order of the Family Part dated June 30, 2010. In the meantime, pending this appeal, defendant's visitation with Emma has been scaled back to a biweekly basis.
On appeal, defendant principally argues that the Division failed to prove the third prong of the termination criteria, N.J.S.A. 30:4C-15.1a(3). She contends that the Division did not make reasonable efforts to provide her with services that would allow her to correct her prior shortcomings as a parent. In particular, defendant faults the Division for not endorsing her admission into a mommy-and-me program. Defendant further argues, with respect to the third prong, that the trial court erred in failing to sufficiently consider alternatives to termination and adoption. In particular, she argues that the court should have delayed a final judgment, so that defendant could continue to stabilize her life and maintain her sobriety.
Additionally, defendant contends that the trial court erred as to the second and fourth prongs of the statute. She argues that the court erred in finding on prong two that she has been unable or unwilling to provide her daughter with a safe and stable home and that delay of the placement would add to the harm. She maintains that the court further erred in concluding that termination of her parental rights would not do the child more harm than good. Lastly, defendant makes a procedural argument that the judge improperly relied upon a written expert report of a psychiatrist, Alexander Iofin, M.D., who evaluated defendant, for purposes beyond the limited uses that had been stipulated by counsel.
When seeking the termination of a parent's rights under N.J.S.A. 30:4C-15.1a, the Division has the burden of establishing, by clear and convincing proof, the following elements:
(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) [DYFS] 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-15.1a. See also N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986) (reciting the four controlling standards later codified in Title 30).]
In applying these four factors, our courts are cognizant that the termination of a parent's right to raise his or her child is a matter of constitutional magnitude. See In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999); In re Guardianship of J.C., 129 N.J. 1, 9-10 (1992). The trial court may only terminate the rights of a biological parent upon a showing of clear and convincing evidence that the child is at risk of serious and lasting future harm, applying the four prongs of the statutory test. J.C., supra, 129 N.J. at 10; see A.W., supra, 103 N.J. at 604-11.
Our scope of review in assessing the trial court's application of these four criteria for termination is "limited." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007); see also N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (noting that appellate courts are to give deference to the factual findings of the trial court because the trial judges had the opportunity to "make first-hand credibility judgments" and also had a "'feel of the case' that can never be realized by a review of the cold record") (quoting M.M., supra, 189 N.J. at 293). We should not disturb the Family Part's decision to terminate parental rights when there is substantial credible evidence in the record to support that court's findings. E.P., supra, 196 N.J. at 104 (citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). "Only when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark' should an appellate court intervene and make its own findings to ensure that there is not a denial of justice." E.P., supra, 196 N.J. at 104 (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007)). Indeed, as a general rule, we do not second-guess the factual findings of the Family Part, given that trial court's "special jurisdiction and expertise" in matters involving families and the welfare of children. See Cesare v. Cesare, 154 N.J. 394, 411-12, 413 (1998).
Having considered the record as a whole in light of the statutory criteria and our narrow scope of review, we affirm the trial court's decision to terminate defendant's parental rights. We do so substantially for the reasons expressed in Judge John J. Callahan's bench opinion of June 30, 2010. We offer the following comments by way of amplification.
Under the first prong of the termination statute, the trial court must assess whether there is clear and convincing evidence of harm arising out of the parent-child relationship. N.J.S.A. 30:4C-15.1a(1); see K.H.O., supra, 161 N.J. at 348. This first prong requires the court to assess whether the child's health and development has been, or will be, endangered by the relationship. K.H.O., supra, 161 N.J. at 352; A.W., supra, 103 N.J. at 607. A harm exists where a parent's absence "for an extended period of time is in itself a harm that endangers the health and development of the child." In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999) (citing K.H.O., supra, 161 N.J. at 352-54). The harm can arise from "[a parent's] failure to provide even minimal parenting to his [or her] children." D.M.H., supra, 161 N.J. at 378.
Given the record before us, the trial court properly found clear and convincing evidence that Emma had been harmed by defendant. The trial court found that Emma was born exposed to both heroin and cocaine. At the time of Emma's birth, defendant also tested positive for both heroin and cocaine, as well as THC. Defendant admitted that, during her pregnancy, she used heroin approximately every other day.
Defendant's long history of substance abuse resulted in Emma, and her three older siblings, being born drug-exposed. The trial court noted that, after defendant gave birth to Jaime, her third child, defendant failed to attend the treatment programs that were offered to her, which included a mommy-and-me program.
Although defendant does not appear to contest this aspect of the trial court's ruling, there is more than substantial evidence in the record supporting the court's finding of clear and convincing evidence that Emma was harmed by defendant.
Under the second prong of the statute, the court must assess whether there is clear and convincing evidence that the parent is unable or unwilling to eliminate the harm to the child, and whether a delay in the child's permanent placement will contribute to that harm. N.J.S.A. 30:4C-15.1a(2). This requires the court to assess whether it is "reasonably foreseeable that the parents can cease to inflict harm upon the child." A.W., supra, 103 N.J. at 607. Among other things, the court may consider whether there are "indications of parental dereliction and irresponsibility, such as the parent's continued or recurrent drug abuse, the inability to provide a stable and protective home, [and] the withholding of parental attention and care . . . ." K.H.O., supra, 161 N.J. at 353.
Here, the trial court found that, although defendant had entered an inpatient drug treatment program at Eva's Village, she failed in the interim to maintain contact with the Division. The court also noted that defendant frequently did not take advantage of her regularly-scheduled visitation with Emma. When defendant left Eva's Village, she moved in with a former drug addict and refused to allow the Division's caseworker access to their apartment.
The trial court carefully considered the testimony of the three expert witnesses, all of whom agreed that defendant was still in the early stages of her recovery. In fact, as we have already noted, defendant's own expert, Dr. Griffith, specifically acknowledged that he was "not recommending reunification at this time[.]"
In sum, there is substantial evidence in the record to support the trial court's finding on prong two of clear and convincing evidence that defendant is unable to eliminate the harm and to provide a safe and stable home. There is also substantial evidence in the record to support the trial court's finding of clear and convincing evidence that a delay in permanent placement would add to the harm to the child. The second prong was overwhelmingly met.
The third prong of the statute calls for an assessment of whether there is clear and convincing evidence that the Division made "reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and [that] the court has considered alternatives to termination of parental rights." N.J.S.A. 30:4C-15.1a(3). Such reasonable efforts by the Division may include:
(1) consultation and cooperation with the parent in developing a plan for appropriate services;
(2) providing services that have been agreed upon, to the family, in order to further the goal of family reunification;
(3) informing the parent at appropriate intervals of the child's progress, development and health; and
(4) facilitating appropriate visitation. [N.J.S.A. 30:4C-15.1c.]
A reasonable effort to provide services in compliance with the statute requires that the Division's effort be reasonable, not that it be successful. See D.M.H., supra, 161 N.J. at 393; K.H.O., supra, 161 N.J. at 354.
In evaluating the proofs under this third prong, the trial judge recognized that the services provided to defendant at Eva's Village had been evaluated and found sufficient by the Division. Defendant argues that the Division should have done more to provide her with additional services, such as further drug treatment, sexual abuse treatment, a mommy-and-me program, and employment and training. However, the record confirms that the services that defendant received at Eva's Village were comprehensive in nature. Defendant successfully completed the inpatient drug abuse program at Eva's Village, and she thereafter regularly attended NA meetings. She also has participated in therapeutic counseling, and she has enrolled in a sexual abuse survivors group. She has not been deprived of the core services encompassed within the third prong, and it would have been redundant for the Division to duplicate them.
Defendant contends that she should have been referred by the Division to a mommy-and-me program at the same time she was participating in the inpatient program at Eva's Village. Defendant, however, did not contest the Division's decision declining her request for a mommy-and-me referral. The Law Guardian contends that her passive acceptance of the Division's position coincides with her ambivalence about caring for Emma.
From defendant's own description, her inpatient program at Eva's Village program was intensive and comprehensive. Furthermore, as Dr. Esquilin noted, enrollment in the mommy-andme program after her discharge from Eva's Village would, in essence, have required defendant to take a step back in her recovery and re-enter a full-time residential program. At the time of the trial, she was enrolled in a full-time, ten-month medical assistant training program. Such a full-time training program would have been incompatible with an inpatient mommy-and-me program.
To be sure, reasonable minds can differ over whether, in retrospect, the Division should have recommended defendant for entry into the mommy-and-me program, despite her poor track record of long-time drug abuse and her failure to parent any of her three other children. Even so, the Division's witnesses at trial provided a reasonable explanation for why it did not recommend the mommy-and-me program, and why the resulting delay in permanency it would have signified for Emma was not a preferred option.
The trial court reasonably found that the Division appropriately considered several alternative relative placements for Emma, including placement with the maternal grandmother who is serving as the Kinship Legal Guardian of defendant's first two daughters, the maternal uncle who adopted defendant's third daughter, as well as another maternal cousin. The Division ultimately placed Emma with Sharon, a paternal cousin, with whom Emma has resided since she was five weeks old. Although defendant argues that she should be given more time to stabilize herself, Emma is now two years old, and the record supports the views of the Division's expert that Emma presently is in need of a permanent parent.
The statute only requires the Division to be "reasonable" in offering services, not unassailable. We are not persuaded that the Division's denial of defendant's request to take part in the mommy-and-me program was such a pivotal event that it should overcome all of the other evidence in the case that supports the reasonableness of the Division's approach. We agree with the trial judge that, when evaluated as a whole, the Division's effort to assure that defendant was provided with appropriate services in this case was reasonable.
Lastly, under the fourth prong of the statute, sometimes called the "best interest" test, the court must assess whether a termination of parental rights will do more harm than good. N.J.S.A. 30:4C-15.1a(4). This entails an evaluation of whether the child would suffer more harm from terminating the relationship with the biological parent than from terminating the relationship with the foster family. See K.H.O, supra, 161 N.J. at 357.
The best interest test embraces a "child's need for permanency and stability[.]" Ibid. The Supreme Court has recognized that "[t]he risk to children stemming from the deprivation of the custody of their natural parent is one that inheres in the termination of parental rights and is based on the paramount need children have for permanent and defined parent-child relationships." J.C., supra, 129 N.J. at 26. Accordingly, the termination of parental rights customarily is allowed "where a child has been in placement for more than one year, and the family has failed to remedy the problems that caused placement, despite [the Division]'s 'diligent efforts[.]'" K.H.O., supra, 161 N.J. at 358 (emphasis added) (citing N.J.S.A. 30:4C-15d).
Defendant argues that the Division was not obligated to seek the termination of her parental rights within twelve months of Emma's placement in foster care. She contends that the Division moved too swiftly and that she should have been allowed more time. As the trial judge properly recognized, such a delay might have been in defendant's personal interest, but it would not necessarily be in her child's best interest. Although defendant has taken significant steps in advancing her recovery and in improving her life, at the time of trial she admittedly was not able to fulfill the role of the stable parent that Emma needs.
In this case, Judge Callahan conscientiously evaluated the opinions of the three testifying experts, in analyzing whether the termination of defendant's parental rights would not do more harm to Emma than good. The experts recognized that Emma displayed some degree of bonding with defendant. However, defendant's own expert agreed that it was Sharon, the foster parent, who Emma perceived as her psychological mother, not defendant.
The trial court properly took into account defendant's history of drug abuse and her irresponsible behavior. As her own expert acknowledged, defendant has exhibited tendencies to be manipulative and to disregard unflattering information. Defendant's poor judgment was exemplified by her decision to cohabit immediately upon discharge with a volunteer staff member from Eva's Village, conduct which at least two of the experts found problematic. Defendant also at times exhibited ambivalence about being a full-time parent. The experts also raised caution about the risks of defendant relapsing outside of a structured and supportive environment.
Defendant relies on Division of Youth and Family Services v. S.A., 382 N.J. Super. 525 (App. Div. 2006), in which we reversed a guardianship judgment because the Division and the trial court had acted too quickly in terminating the defendant parent's rights. We found that critical evidence was lacking and consequently remanded the case to the trial court to permit psychological and bonding evaluations, along with expert testimony. Id. at 540. There are, however, important factors that make S.A. distinguishable from the present case.
In S.A., we noted that the termination proceedings, which occurred only six months after the child was born, were "unjustifiably rushed." Id. at 538. Additionally, "[n]o psychological evaluations were conducted of S.A. prior to the termination hearing, no bonding evaluations occurred, and no evidence was presented with respect to the suitability of DYFS's plan that [the child] be adopted by her foster mother[.]" Id. at 531. Also, the defendant in S.A., who was incarcerated for at least part of the time preceding the trial, had not been provided with any visitation time with her daughter. Id. at 529-30.
By contrast, the trial court in this case was presented with, and considered, extensive expert testimony, psychological evaluations, and bonding evaluations. The record does not have the shortcomings that impelled the remand for further development in S.A. Moreover, defendant here was provided with multiple visitation opportunities, a number of which she failed to attend. In addition, unlike the child in S.A., Emma was more than a year old by the time of trial. For these many reasons, S.A. is not on point and the opinion does not compel a reversal in this case.
In sum, there is substantial evidence in the record, when viewed as a whole, to support Judge Callahan's ultimate finding of clear and convincing evidence that terminating the parental rights of defendant would not do Emma more harm than good.
Finally, we briefly address defendant's procedural argument respecting the trial court's use of Dr. Iofin's report. During the trial, all counsel stipulated that Dr. Iofin's written psychiatric evaluation of defendant, without consideration of his specific diagnosis, would be admitted into evidence. The report was therefore admitted to help show that the Division had obtained a psychiatric evaluation of defendant, in furtherance of its obligation to take reasonable steps to provide defendant with services.
On appeal, defendant acknowledges in her brief that "the record is clear that the substance of [Dr. Iofin]'s report was specifically not admitted into evidence." However, she contends that "[i]t is equally clear from the record that the court considered and relied upon the substance of the Iofin report." Defendant's concerns about this issue are misplaced. The trial judge only referred to Dr. Iofin in his oral opinion briefly in a few isolated places, and those brief references do not appear to have been pivotal to the judge's analysis. The trial judge cited to Dr. Iofin's report, in essence, as a compilation of background information concerning defendant, background that was separately and substantially shown by the other trial proofs. We are satisfied that any error in the trial court's limited references to Dr. Iofin's report in his opinion was harmless.
For these reasons, the trial court's judgment, terminating defendant's parental rights, is affirmed.*fn3