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Division of Youth and Family Services v. D.M.N

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 28, 2012

DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
D.M.N., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF K.F.N., A MINOR.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FG-07-97-10.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: January 19, 2012

: Before Judges Axelrad, Sapp-Peterson and Ostrer.

D.M.N. appeals from a March 15, 2011 judgment of the Family Court terminating her parental rights to her son Kyle,*fn1 then twoand-one-half years old, and awarding guardianship to the Division of Youth and Family Services (DYFS) for the purpose of effectuating his adoption.*fn2 On appeal, D.M.N. argues DYFS did not prove by clear and convincing evidence the four statutory prongs required to establish that her son's best interests require severance of her parental ties. In particular, D.M.N. argues the trial court committed reversible error in taking judicial notice of findings of harm in her prior Title 9 proceeding, and asserts general challenges to the other three prongs. We note the Law Guardian supports termination of D.M.N.'s parental ties to Kyle.

After considering the record and briefs in light of the applicable law, we are satisfied the court's findings and conclusions are firmly supported by substantial, credible evidence in the record as a whole. See, e.g., N.J. Div. of Youth & Family Servs. v. A.R.G., 361 N.J. Super. 46, 78 (App. Div. 2003), aff'd in part, modified in part and remanded, 179 N.J. 264 (2004), certif. denied, 186 N.J. 603 (2006). We affirm.

I.

We need not describe in detail the many facts the court considered in its determination. We instead provide a brief summary of the relevant procedural history and cogent facts we considered in concluding such findings were well-supported by the record.

The following testimony and evidence were presented during the nine-day trial that commenced before Judge Verna G. Leath in November 2010 and continued, on non-consecutive days, until its conclusion in February 2011. DYFS presented the factual testimony of its caseworker Cassandra McGhee and documentary evidence, such as contact sheets and investigation summaries created by other DYFS caseworkers, including Shaundra Gifford, Heather Nutter and Bridgett Williams. Kyle's foster mother, J.H., also testified. DYFS presented the expert testimony of Eric Kirschner, Ph.D., who performed a psychological evaluation of D.M.N. and conducted bonding evaluations of Kyle with both D.M.N. and J.H.

D.M.N. testified on her own behalf and also presented the testimony of her god sister, T.Y.W. She presented the expert testimony of Joseph P. Lorelli, M.D., who treated her at the Lennard Methadone Maintenance Clinic (Lennard).

DYFS has been involved with D.M.N. since 1994. D.M.N. has a longstanding history of substance abuse. She has an older son who resides with her maternal grandmother. She previously had her rights terminated to her two younger children due to their being born premature and testing positive for drugs upon birth, and D.M.N.'s testing positive for drugs and being homeless.

Kyle was born on August 5, 2008, at University Hospital in Newark. D.M.N. identified A.B. as the boy's father. He was also the father of D.M.N.'s other two children to whom their parental rights were terminated.

DYFS received a referral from the hospital the following day with concerns because Kyle had been born premature, weighing slightly less than two pounds, and though he did not test positive for drugs at birth, D.M.N. did test positive for methadone and HIV.

D.M.N. informed DYFS workers she had been residing for the past month at Renaissance House, an intensive inpatient drug rehabilitation program. Previously D.M.N. was homeless. D.M.N. further explained she had been enrolled in the methadone treatment program through Lennard. D.M.N. told caseworkers she had been struggling with her cocaine and heroin addiction for over fifteen years but had not used drugs since April 2008. Later investigations proved this assertion false. D.M.N. admitted to only one month of prenatal care before Kyle's premature birth. D.M.N. planned on residing at the Renaissance House with her son, as the house allowed babies in the program. She named three relatives -- her grandmother, L.P., her aunt, A.N., and her stepmother, M.M., who were willing to help with Kyle.

Gifford met with D.M.N. at the Renaissance House on August 11, 2008. D.M.N. told the caseworker that A.B. had been incarcerated since February. D.M.N. also reported she had been incarcerated. While she was in jail, she discovered she was pregnant with Kyle.

On August 22, 2008, D.M.N. signed a case plan with DYFS to continue her stay at Renaissance House and comply with her treatment program. Due to Kyle's multitude of complex medical problems, including anemia due to prematurity, opiod withdrawal and an umbilical hernia, he was destined to stay in the hospital for eleven months following his birth. DYFS did not seek immediate custody of Kyle, but, instead, gave D.M.N. an opportunity to comply with her drug treatment program.

However, on October 1, 2008, Nutter received a call from Renaissance House staff advising that D.M.N. had left the treatment program on September 30 because she no longer wished to participate. On October 21, 2008, D.M.N. visited the DYFS office to inform workers that she was enrolled in Lennard and was attending the clinic seven days a week for methadone maintenance. D.M.N.'s enrollment in Lennard was confirmed in a letter from a clinic counselor who stated she was attending weekly individual counseling and parenting groups.

On December 2, 2008, under Docket No. FN-07-262-09, DYFS filed a complaint for custody pursuant to N.J.S.A. 9:6-8.21 (Title 9), seeking custody of then five-month-old Kyle. The complaint alleged D.M.N. abused or neglected her son as a result of her substance abuse, her noncompliance with drug treatment programs, and the child's exposure to drugs at birth. A.B. was joined as a defendant. On that date, DYFS was granted custody, care and supervision of Kyle.

In January 2009, Kyle was diagnosed with Broncho Pulmonary Dysplasia, or chronic lung disease, but was in stable condition. However, he still required oxygen to assist with his breathing and around-the-clock treatment and monitoring. On February 9, 2009, Kyle was transferred to the Children's Specialized Hospital in New Brunswick. DYFS restricted D.M.N. to supervised visitation based on a call received from a University Hospital specialist on January 28, which advised that D.M.N. had fallen asleep while holding Kyle during her visit and which expressed concern that she was possibly under the influence at that time. The caseworker provided D.M.N. with a train schedule and applied for train tickets so D.M.N. and A.B. could attend the scheduled visitations.

Following a fact finding hearing on January 23, 2009, Judge Leath found DYFS had proven by clear and convincing evidence that D.M.N. had abused or neglected Kyle by using drugs during her pregnancy, and memorialized this finding in an order on the same date. After a compliance hearing on March 18, 2009, D.M.N. and A.B. were directed to comply with drug treatment programs, undergo psychological evaluations, and participate in parenting skills classes. D.M.N. was referred to Babyland Family Services (Babyland) for parenting classes. Kyle was to remain in the custody of DYFS.

On May 14, a court-ordered drug screen revealed that D.M.N. tested positive for cocaine. On May 23, D.M.N. gave birth to a stillborn at four months gestation.

On July 2, 2009, Kyle was discharged from hospitalization for the first time since his birth eleven months prior, into the custody of his foster mother, J.H. As a result of Kyle's medically fragile condition, the hospital recommended he attend special day care for therapy and treatment five days a week.

An intake was scheduled for D.M.N. and A.B. at Babyland on July 8, 2009. However, A.B. died of a drug overdose on July 5, 2009. By letter dated July 28, D.M.N. was again referred to Babyland for parenting intake. On August 4, 2009, however, DYFS was informed that although D.M.N. arrived for the intake process that day, she was incapacitated and unable to complete the forms and interview. On October 16, 2009, D.M.N. enrolled in the parent education program at Babyland but on May 17, 2010, the DYFS caseworker received a letter from Babyland stating that D.M.N. had been discharged from the program due to having five unexcused absences.

DYFS contacted several of D.M.N.'s relatives for potential placement of Kyle. A.B.'s mother declined because of her age, she questioned the paternity of the child, and she was concerned the child's needs could become overwhelming. D.M.N.'s aunt, A.N., was ultimately ruled out because she suffered from medical issues, had pending criminal charges, and lived in a senior citizen facility that did not allow children. D.M.N.'s paternal grandmother, who had custody of D.M.N.'s oldest child, informed DYFS she was not interested in caring for Kyle. D.M.N.'s stepmother, M.M., was ruled out because of her criminal convictions. D.M.N.'s sister-in-law was also interested in caring for Kyle but was ruled out as DYFS felt she would not be able to sufficiently care for his medical conditions.

A permanency hearing was held before Judge Leath on November 5, 2009, after which the court found DYFS' request to terminate D.M.N.'s parental rights and place Kyle for adoption to be an appropriate and acceptable plan as a result of D.M.N.'s drug problems, mental health issues, and lack of stability that prevented her from adequately parenting him. The court found DYFS had provided reasonable efforts to finalize a permanency plan, including offering D.M.N. psychological evaluations, drug assessments, urine screens, parenting classes, visitation rights, bus cards, foster care for the child, and Medicaid and other funding, as well as pursuing placement with relatives.

DYFS filed an order to show cause and complaint for guardianship of Kyle on January 8, 2010, under Docket No. FG-07-97-10, pursuant to N.J.S.A. 30:4C-15 (Title 30), seeking to terminate D.M.N.'s parental rights to him. Judge Leath entered an order terminating the Title 9 litigation on the same date.

McGhee testified at trial regarding her involvement as a caseworker for Kyle since November 2009. She explained that Kyle's medical issues required him to have around-the-clock treatment and DYFS was concerned with D.M.N.'s ability to care for her son as she often was observed falling asleep while visiting him. She also explained that DYFS considered a plan of adoption because of D.M.N.'s history of drug abuse, and explained why each of D.M.N.'s relatives had been ruled out as potential placements for Kyle. Although she knew D.M.N. was enrolled in Lennard for her drug addiction, McGhee testified that she was aware D.M.N. had relapsed on two occasions. Moreover, she was of the opinion that Kyle had been progressing well while in foster care.

J.H. testified that she had been caring for Kyle for over one year by the time of trial. She stated she had come to love him while working as a child life specialist in the Children's Specialized Hospital where she provided Kyle comfort and support therapies. She described the medical procedures and therapies he had undergone while in her care, which included at least nine different specialist doctors, a feeding tube, ear tubes to prevent seizures, and braces for his legs. She also explained that Kyle wore a helmet due to his imbalance and frequent falling. J.H. testified that Kyle's eating was a task requiring monitoring and noted he attended a "Special Homes Service Provider" licensed daycare. J.H. believed Kyle had made significant progress while in her care.

D.M.N. testified on her own behalf. She explained her involvement with Lennard and that she left the Renaissance House after five months because it did not provide sufficient help for her. D.M.N. stated that she visited Kyle in the hospital every day before he was transferred to the Children's Specialized Hospital where her visitation was limited. She explained about Kyle's special needs and represented that she was able to care for him. D.M.N. related that she was not pleased with J.H.'s care of Kyle, and provided examples of times when he was not wearing appropriate clothing and smelled. D.M.N. advised that she currently lived in a one-bedroom apartment and collected Social Security disability benefits.

D.M.N. reported that the longest period she abstained from the use of heroin and cocaine was from 1995 until 1998. She testified she last used drugs while pregnant in June 2008, which is different from the April 2008 date she reported to the caseworker. Although D.M.N. had completed a psychological evaluation and attended visitation, she acknowledged she did not complete parenting skills or a drug treatment program. D.M.N. admitted she relapsed twice after Kyle was born, in May 2009 shortly before her miscarriage, and in July 2009, coinciding with the death of A.B. When questioned how she was going to refrain from falling asleep while caring for Kyle, D.M.N. said she would stop taking Xanax. She admitted the Xanax prescribed for her anxiety had made her drowsy, but stated she was no longer taking it at the time of her testimony.

Dr. Kirschner testified regarding his psychological evaluations of D.M.N. conducted in February 2010. He reported D.M.N. had informed him that she was arrested over fifty times. He further noted D.M.N. was observed to be sleeping in the waiting area on multiple occasions, as well as during the bonding evaluation. According to Dr. Kirschner, D.M.N.'s tests indicated she was psychologically incapable of meeting Kyle's needs, had a deficient level of intellectual functioning, which negatively impacted her parenting abilities, was very impulsive, and was emotionally insensitive to the needs of others. Moreover, D.M.N. had a low empathy score, which would make it difficult for her to recognize Kyle's emotional state, she demonstrated a lack of understanding of a child's normal growth and development, and she demonstrated a role reversal tendency resulting in the likelihood that she would utilize Kyle as a way of helping her meet her own needs.

Dr. Kirschner's observations of D.M.N.'s interactions with Kyle during the bonding evaluations raised a host of concerns about her ability to properly recognize and care for the child's needs. At one point during the observation, D.M.N. dozed off while Kyle, a fragile child who requires constant supervision, was left to roam around the room. Dr. Kirschner also observed that D.M.N. failed to display any sort of nurturing or soothing response when Kyle fell and hit his head. Moreover, on two separate occasions during the evaluation, D.M.N. told Kyle that she was "going to pow-pow," which Dr. Kirschner interpreted to mean that she was threatening physical discipline. Perhaps the most concerning behavior was when, at the beginning of the visit, D.M.N. removed Kyle's protective headgear and never made any attempt to put the headgear back on, even when she turned her back on Kyle to go to the other side of the room.

Dr. Kirschner also testified that he did not observe Kyle present anything behaviorally or facially to suggest that he was overjoyed to see his mother, or even recognized her, at the start of the visit. Overall, Dr. Kirschner observed that Kyle had no attachment to D.M.N. and regarded her as nothing more than a familiar playmate.

In contrast, Dr. Kirschner observed Kyle smile when he arrived with J.H., and observed an overall positive interaction between the child and his foster mother. According to Dr. Kirschner, J.H.'s interactions with Kyle were appropriate and she set the proper limits for him as far as discouraging him from putting toys in his mouth. J.H. also appeared attentive and attuned to Kyle during their time together and he appeared to be relatively at ease with her. In fact, Kyle attempted to follow J.H. out the door upon her departure. Dr. Kirschner reported that the bonding evaluation revealed a solid foundation for an attachment relationship between J.H. and Kyle, something that was not present in his interactions with D.M.N. Dr. Kirschner noted that although because of Kyle's young age he was not expected to have internalized an attachment, he had come to view J.H. as a psychological parent. Moreover, in contrast with D.M.N., his foster mother had an appreciation for Kyle's special needs.

In Dr. Kirschner's expert opinion, removal of Kyle from J.H.'s care would result in him experiencing a psychologically-traumatic loss and place him at risk for compromised self-esteem, heightened anxiety and distress, and regressive behaviors that might exacerbate his pre-existing developmental delays. Conversely, Dr. Kirschner opined that "if [Kyle] was to have his relationship severed with his mom there would really not be any meaningful psychological harm or - or damage that would be expected." The psychologist further emphasized the importance of permanence in Kyle's development and opined that extending the timeline for termination of parental rights would create a risk of serious and enduring harm to the child.

Dr. Lorelli, one of D.M.N.'s treating physicians at Lennard beginning in April 2008, was admitted as an expert in the area of opioid and addictive substance abuse treatment. He testified that while D.M.N. tested positive for cocaine in April, May and June, 2008, after Kyle's birth in August she returned to Lennard and was able to maintain sobriety until February 2009. Dr. Lorelli admitted that the clinic records for D.M.N. did not reflect her acknowledged relapses in May and July 2009. He acknowledged that D.M.N. refused a swab test on March 12, 2010. He further acknowledged that on March 15, a laboratory report from Ammon Laboratories was positive for cocaine, methadone and benzodiazepines. Dr. Lorelli also testified that the combination of methadone and benzodiazepines can compromise D.M.N.'s awareness and alertness.

Based on this record and after observing the lay and expert witnesses, examining the exhibits entered into evidence, and hearing arguments of counsel, Judge Leath concluded the best interests of Kyle required severance of D.M.N.'s parental ties. In an oral decision following trial on March 15, 20ll, supplemented with a detailed written opinion of June 28, 2011, the judge recited the factual and procedural history of the case, made findings of fact and credibility assessments, noted the applicable law, and found DYFS had established by clear and convincing evidence the four-prong test of termination of parental rights as set forth in New Jersey Division of Youth and Family Services v. A.W., 103 N.J. 591, 604-10 (l986), and as codified in N.J.S.A. 30:4C-15.1(a). The determination was memorialized in a judgment of guardianship. This appeal ensued.

II.

We begin by noting some basic principles. The scope of our review of a trial court's decision to terminate parental rights is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). We also have a limited scope of review of the Family Part's factual findings. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278-79 (2007). In reviewing the factual findings and conclusions of a trial court, we are obliged to accord deference to the trial judge's credibility determinations and the judge's "feel of the case" based upon the opportunity of the judge to see and hear the witnesses. A.R.G., supra, 361 N.J. Super. at 78 (citing Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) and Pascale v. Pascale, 113 N.J. 20, 33 (1988)). "When the credibility of witnesses is an important factor, the trial court's conclusions must be given great weight and must be accepted by the appellate court unless clearly lacking in reasonable support." N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 259 (App. Div. 2005) (citing In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999)). We rely upon the trial court's acceptance of the credibility of the expert testimony and the court's fact-findings based thereon, as it is in a better position to evaluate the witness' credibility, qualifications, and the weight to be accorded to the expert's testimony. Ibid.; see also In re Guardianship of J.C., 129 N.J. 1, 22 (1992).

We are not to disturb the factual findings and legal conclusions of the trial judge unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (internal quotation marks and citation omitted). Additionally, because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court fact-finding and the conclusions that flow logically from those findings of fact. Cesare, supra, 154 N.J. at 412-13. Reversal is required only in those circumstances in which the trial court's findings were "so wide of the mark that a mistake must have been made." M.M., supra, 189 N.J. at 279 (internal quotation marks and citation omitted). Applying this standard, we discern ample evidence in the record supporting the judge's conclusion that Kyle's best interests required termination of D.M.N.'s parental rights.

The applicable principles are well settled. "Parents have a constitutionally protected, fundamental liberty interest in raising their biological children." In re Adoption of a Child by W.P. & M.P., 308 N.J. Super. 376, 382 (App. Div. l998) (citing Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394-95, 71 L. Ed. 2d 599, 606 (1982)), vacated on other grounds, 163 N.J. 158 (2000). "The Federal and State Constitutions protect the inviolability of the family unit." W.P. & M.P., supra, 308 N.J. Super. at 382 (citing Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212-13, 31 L. Ed. 2d 551, 558-59 (1972)). However, the government "is not without constitutional control over parental discretion in dealing with children when their physical or mental health is jeopardized." Parham v. J.R., 442 U.S. 584, 603, 99 S. Ct. 2493, 2504, 61 L. Ed. 2d 101, 119 (1979) (citing Wisconsin v. Yoder, 406 U.S. 205, 230, 92 S. Ct. 1526, 1540, 32 L. Ed. 2d 15, 33 (1972)). The State, as parens patriae, may sever the parent-child relationship to protect the child from serious physical and emotional injury. W.P. & M.P., supra, 308 N.J. Super. at 382.

When the child's biological parent resists termination of parental rights, it is the court's function to decide whether the parent can raise the child without causing harm. J.C., supra, 129 N.J. at 10. The cornerstone of our inquiry is not whether the parent is fit, but whether the parent can become fit to assume the parental role in time to meet the child's needs. Ibid. (citing A.W., supra, 103 N.J. at 607). "The analysis . . . entails strict standards to protect the statutory and constitutional rights of the natural parents." J.C., supra, 129 N.J. at 10. "The burden rests on the party seeking to terminate parental rights 'to demonstrate by clear and convincing evidence' that risk of 'serious and lasting [future] harm to the child' is sufficiently great as to require severance of parental ties." W.P. & M.P., supra, 308 N.J. Super. at 383 (alteration in original) (quoting J.C., supra, 129 N.J. at 10).

The question for the court "focuses upon what course serves the 'best interests' of the child." W.P. & M.P., supra, 308 N.J. Super. at 383. The State Constitution and N.J.S.A. 30:4C-15(c) and -15.1(a) require satisfaction of the "best interests of the child" test by clear and convincing evidence before termination of parental rights can occur. See A.W., supra, 103 N.J. at 612; In re Guardianship of Jordan, 336 N.J. Super. 270, 274 (App. Div. 2001). Specifically, the four-prong test set forth in N.J.S.A. 30:4C-15.1(a) requires DYFS to prove:

(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 [formerly referred to as "foster"] parents would cause serious and enduring emotional or psychological harm to the child;

(3) The [D]ivision 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.

These criteria are neither discrete nor separate. In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). They overlap to provide a composite picture of what may be necessary to advance the best interests of the child. Ibid. "The considerations involved in determinations of parental fitness are 'extremely fact sensitive' and require particularized evidence that address the specific circumstances in the given case." Ibid. (quoting In re Adoption of Children by L.A.S., 134 N.J. 127, 139 (1993)).

III.

Our examination of the record discloses all four prongs of the statutory test have been met by clear and convincing evidence. The first prong involves an inquiry into whether there has been an "endanger[ing] of the child's health and development resulting from the parental relationship[,]" and whether there will be future harm to the child's safety, health, or development if the parental relationship is not terminated. K.H.O., supra, 161 N.J. at 348. The focus of the inquiry is not necessarily on a "single or isolated harm or past harm," but rather on "the effect of harms arising from the parent-child relationship over time on the child's health and development." Ibid.

"The absence of physical abuse or neglect is not conclusive[;]" the court also must consider the potential for serious psychological damage. A.W., supra, 103 N.J. at 605 (quotation marks and citation omitted); N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 440 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002); In re Guardianship of R.G. & F., 155 N.J. Super. 186, 194 (App. Div. 1977). The "relevant inquiry focuses on the cumulative effect, over time, of harms arising from the home life provided by the parent." M.M., supra, 189 N.J. at 289.

Judge Leath found D.M.N.'s "actively abusing cocaine and heroin in conjunction with methadone less than one month prior to [Kyle's] birth" evidenced a significant harm to him. She emphasized that Kyle was born premature with attendant "multiple medical impairments" and ultimately suffered withdrawal symptoms because of D.M.N.'s methadone use. She also noted that DYFS did not immediately file for custody of Kyle upon his birth but gave D.M.N. an opportunity to address her substance abuse issues, which she failed to do. Judge Leath concluded that D.M.N.'s longstanding drug addiction, drug abuse while pregnant with Kyle, failure to comply with her drug treatment program at Renaissance House and relapses after Kyle's birth, evidenced a "continued . . . pattern of behavior" clearly constituting endangerment of Kyle's health and development under the first prong. The judge also considered D.M.N.'s inability to provide for her other children as evidence of harm to Kyle pursuant to N.J.S.A. 9:6-8.46(a)(1).

Finally, Judge Leath cited New Jersey Division of Youth and Family Services v. R.D., 412 N.J. Super. 389, 402 (2010), which held that when evidence in an abuse and neglect proceeding is proved by clear and convincing evidence, rather than simply by a preponderance of the evidence, such evidence may support the termination of parental rights. She noted that such prior finding that D.M.N. had abused or neglected her son by using drugs during her pregnancy "substantiate[d] that [DYFS] has already established its burden of proof as to prong one."

D.M.N. argues the court improperly took judicial notice and relied upon the Title 9 abuse or neglect finding to support DYFS' satisfaction of the first prong rather than making independent findings in this proceeding, constituting reversible error. We disagree.

The Supreme Court reversed our decision in R.D. and remanded the case subsequent to Judge Leath's written opinion. N.J. Div. of Youth & Family Servs. v. R.D., 207 N.J. 88 (2011).

The Court noted three differences between Title 9 proceedings and Title 30 proceedings: (1) Title 9 proceedings are intended to be quick, while Title 30 proceedings are more comprehensive; (2) Title 9 proceedings are geared towards interim relief with permanency to be considered later, while the goal of Title 30 proceedings is permanent termination of parental rights to allow a child to become eligible for adoption; and (3) "most importantly, the differing standards of proof[,]" Title 9 requiring a preponderance of the evidence, while Title 30 requiring clear and convincing evidence, "highlights a fundamental difference between the two [proceedings]." Id. at 118. The Court held, unless the parties are on notice that the Title Nine proceedings are to be conducted under the higher, clear and convincing evidence standard constitutionally required for Title Thirty proceedings and appropriate accommodations are made for the fundamentally different natures of these disparate proceedings, Title Nine determinations cannot be given collateral or preclusive effect in any subsequent and related Title Thirty proceedings. [Id. at 93.]

We do not have the transcript of D.M.N.'s Title 9 fact-finding hearing and thus do not know whether notice was provided in advance that the court was going to utilize the "clear and convincing standard." Nevertheless, Judge Leath's reference to our decision in R.D. in her findings respecting the first prong is not fatal to the guardianship judgment. It is clear from the evidence presented and Judge Leath's oral and written decisions that she considered, and analyzed in depth, a variety of factors, and made separate factual findings that would support DYFS' satisfaction of the first prong by clear and convincing evidence, irrespective of the abuse and neglect proceeding. Judge Leath identified D.M.N.'s more than fifteen-year struggle with heroin and cocaine, the termination of her parental rights to two of her older children, her continued drug use during pregnancy, her one month of prenatal care, Kyle's premature birth with symptoms of withdrawal and attendant multiple medical problems from D.M.N.'s drug abuse and methadone use, her noncompliance with drug treatment, and her relapses as endangering Kyle's health, safety and development. D.M.N. also had continuing issues regarding her inability to stay awake, which Judge Leath personally observed and commented on during the trial.

D.M.N. next argues there is ample evidence in the record showing her attempt to create an atmosphere to allow reunification. She emphasizes that she has complied with visitation, has lowered her methadone dosage, no longer takes Xanax, and has qualified for disability income as support for her becoming fit to meet her son's needs. Though D.M.N. has made efforts to eliminate the harm facing Kyle, we are not persuaded her conduct is sufficient to defeat the proofs presented by DYFS and the judge's findings on the second prong.

Related to prong one, the second statutory prong considers a parent's failure to provide even minimal parenting to his or her children. D.M.H., supra, 161 N.J. at 379. This prong "is aimed at determining whether the parent has cured and overcome the initial harm that endangered the health, safety, or welfare of the child, and is able to continue a parental relationship without recurrent harm to the child[,]" or alternatively, "that the parent is unable to provide a safe and stable home for the child and that the delay in securing permanency continues or adds to the child's harm." K.H.O., supra, 161 N.J. at 348-49.

This "prong may be met by indications of parental dereliction and irresponsibility, such as . . . the inability to provide a stable and protective home[.]" Id. at 353. The withdrawal of nurture and care for an extended period of time is itself a harm that endangers the health and development of the child. D.M.H., supra, 161 N.J. at 379.

In finding DYFS had met its burden of proof with regard to this second prong, Judge Leath "[did] not find that [D.M.N.'s] abuse of cocaine [was] dispositive of her noncompliance with methadone maintenance." She additionally noted that D.M.N. has demonstrated an ability to recognize [Kyle's] limitations. It is [D.M.N.] who has often brought to the attention of [DYFS] that [Kyle] would often have bruises when she visited with him, prompting [DYFS] and the foster mother to finally purchase a helmet. [D.M.N.] is familiar with the [feeding tube] and has shown that she knows how to monitor [Kyle], how to change the tube and when she testifie[d] she describe[d] how she closely monitors [Kyle] during play.

Nevertheless, the judge found DYFS had met its burden of proof based on D.M.N.'s unresolved drug addiction, including acknowledged relapses in May and July 2009, and continued failure to comply with services offered by DYFS, including drug treatment programs and her court-mandated parenting classes at Babyland. DYFS delayed filing the custody action until it was apparent D.M.N. was not going to comply with the case plan and change her pattern of behavior.

Judge Leath also emphasized D.M.N.'s inability to stay awake and alert, finding this would make her unable to meet Kyle's constant special medical needs. The judge listed over a dozen dates documenting instances of D.M.N. falling asleep "while holding [Kyle], while supervising [Kyle], while engaged in conversation with the caseworker, and during court hearings." Further, the uncontroverted testimony of Dr. Kirschner established that D.M.N. was psychologically incapable of meeting Kyle's needs.

The third element of the statutory test "contemplates efforts that focus on reunification of the parent with the child and assistance to the parent to correct and overcome those circumstances that necessitated the placement of the child into foster care." K.H.O., supra, 161 N.J. at 354. "Reasonable efforts" are defined in N.J.S.A. 30:4C-15.1(c) as including:

(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.

An evaluation of efforts undertaken by DYFS to reunite a particular family must be done on an individualized basis "with reference to the circumstances of the individual case before the court, including the parent's active participation in the reunification effort." D.M.H., supra, 161 N.J. at 390. DYFS' efforts are not measured by their success. Id. at 393.

D.M.N. challenges the judge's finding that DYFS made reasonable efforts to assist her, claiming the agency did not provide "the structure and support necessary to manage the upbringing of this special needs child in the context of a mother with multiple problems relating to treatment for drug addiction, unemployment, and housing." We disagree.

Judge Leath acknowledged that D.M.N. "has been consistent with visitation, has purchased clothing for [Kyle], and [D.M.N.] was vigilant when [Kyle] was in the hospital." The judge also found DYFS made reasonable efforts at reunification in accordance with prong three as it offered a variety of services such as substance abuse assessments and parenting classes, and it assessed the potential placement of Kyle with numerous family members, all unsuccessfully.

DYFS and D.M.N. agreed to a case plan for D.M.N.'s progress. Caseworkers set up a visitation schedule for D.M.N. so she could visit her son in the hospital, and in foster care; however, she fell asleep during several of these visits. DYFS offered D.M.N. public transportation schedules and tickets to enable her to attend these visits and complete parenting classes. DYFS also set up D.M.N.'s program at Babyland, which she failed to complete.

Additionally, DYFS caseworkers consistently encouraged D.M.N. to continue her treatment at Lennard and the Renaissance House, but D.M.N. left the Renaissance House shortly after Kyle's birth. DYFS also recommended she undergo substance abuse and psychological evaluations and referred her to doctors. Moreover, DYFS delayed filing custody proceedings to give D.M.N. an opportunity to avail herself of the substance abuse services.

The record also clearly supports the court's finding that DYFS considered alternatives to terminating D.M.N.'s parental rights under the third prong. Caseworkers investigated many of D.M.N.'s relatives, but were unable to find a suitable placement for Kyle for a variety of reasons, including his special medical needs.

Lastly, D.M.N. argues the record does not contain sufficient proof to satisfy the statutory fourth prong. She asserts that, because of Kyle's young age, the court erred in relying on Dr. Kirschner's bonding evaluations as compelling proof that termination of her parental rights will not do more harm than good. We disagree.

The statute's fourth prong mandates a determination as to "whether a child's interest will best be served by completely terminating the child's relationship with that parent." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 108 (2008). DYFS must show that the termination of parental rights will not do more harm than good. The question under this prong is "whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with [his or] her natural parents than from the permanent disruption of [his or] her relationship with [his or] her foster parents." K.H.O., supra, 161 N.J. at 355. "[W]here it is shown that the bond with foster parents is strong and, in comparison, the bond with the natural parent is not as strong, that evidence will satisfy the requirement of N.J.S.A. 30:4C-15.1(a)(4)." Id. at 363.

D.M.N. worked hard to try to rehabilitate herself in order to be able to care for her son. The undisputed expert testimony, however, was that D.M.N.'s longstanding drug addiction, diminished mental capacity, psychological profile, and noncompliance with programs rendered it highly improbable that she would be able to meet Kyle's special medical needs. Dr. Kirschner acknowledged that Kyle's young age affected his ability to form bonds with either woman. Based on his observations during the bonding evaluations, however, Dr. Kirschner noticed a contrast between Kyle's interaction with J.H. and with D.M.N., and had ample basis to conclude that Kyle viewed J.H. in the nature of a "psychological parent" and D.M.N. merely as a "familiar playmate." That is not unusual considering that Kyle had been living with J.H. for a year and was effectively the only parent he knew, while D.M.N. was a mere visitor. As Judge Leath commented, D.M.N.'s inaction and delay in providing a permanent home for her son resulted, to a large extent, in Kyle's forming a bond with his current caregiver.

Caseworker McGhee and J.H. also testified that Kyle had a strong, loving bond with J.H., who is able to care for his specialized needs, and with whom he appears to be thriving. Moreover, J.H. wishes to adopt him.

There is substantial basis in the record for the judge's finding that the evidence strongly pointed towards termination rather than reunification. The judge considered the totality of the record and evidence presented over the nine-day trial. She balanced the harm Kyle would face if he were placed in the care of D.M.N. against the harm he would face if D.M.N.'s parental rights were terminated and he were adopted by his caregiver. The record amply supports Judge Leath's finding that D.M.N. is not at the point where it would be in Kyle's best interest for her to retain her parental rights. It is unclear when, if ever, D.M.N. would be able to care for her son. See K.H.O., supra, 161 N.J. at 358 (noting there are "limits on the amount of time a parent may have to correct conditions at home in anticipation of reunification").

Kyle has clearly bonded with his caregiver who has become his psychological mother. As Judge Leath concluded, based on the undisputed expert testimony, separating Kyle from J.H. would place this medically fragile child at risk for anxiety, distress and regressive behavior, and cause him enduring harm. In contrast, adoption would provide Kyle with permanency in a stable, loving and nurturing home.

We have no doubt D.M.N. loves her son and honestly believes she is ready to care for him. However, we are convinced the record supports Judge Leath's finding that D.M.N. is unable to provide the safe, stable and permanent home that her young son so desperately needs at this point in his life. As we concluded in In re Guardianship of A.R.G., 318 N.J. Super. 323, 330 (App. Div.), certif. denied, 162 N.J. 127 (1999), where there is substantial credible evidence in the record to support termination of parental rights, there is no reason to delay permanent resolution. A child cannot afford to wait until such time as his parent might possibly be able to provide a safe, secure and nurturing environment for him. The judge properly concluded that termination of parental rights will not do more harm than good to Kyle as it will free him for adoption by his current caregiver, who has served as his psychological parent for more than half of his life and who can provide permanency and stability to him.

Affirmed.


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