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New Jersey Division of Youth and Family Services v. M.M.B


May 3, 2012


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-188-10.

Per curiam.



Submitted March 27, 2012

Before Judges Yannotti, Espinosa and Guadagno.

M.M.B. appeals from an order entered by the Family Part on May 10, 2011, terminating her parental rights to N.K.T.W. For the reasons that follow, we affirm.

We briefly summarize the relevant facts. In January 2009, a social worker at a hospital reported to the Division of Youth and Family Services (Division) that M.M.B., who was then twenty-four years old and in the second trimester of her pregnancy, had not received prenatal care, admitted she regularly used cocaine, and acknowledged that she suffered from bipolar disorder. M.M.B. said that T.W. was the child's father. After M.M.B. was released from the hospital, she met with one of the Division's caseworkers and entered into a case plan, wherein she agreed to receive prenatal care.

M.M.B. gave birth to N.K.T.W. on February 10, 2009. Both M.M.B. and N.K.T.W. tested positive for cocaine. The hospital's records indicate that N.K.T.W. suffered withdrawal as a result of his exposure to drugs. The Division determined that child abuse or neglect had been substantiated, and filed a complaint in the Family Part seeking custody, care and supervision of N.K.T.W. pursuant to N.J.S.A. 9:6-8.21 and N.J.S.A. 30:4C-12.

On February 18, 2009, the court granted the Division's application and placed the child in the Division's custody, care and supervision. That day, the Division referred M.M.B. for a Certified Alcohol and Drug Counseling (CADC) substance abuse assessment at Catholic Charities. The Division learned on February 24, 2009, that M.M.B. was in jail. N.K.T.W. was discharged from the hospital on February 26, 2009, and was placed in a foster home.

M.M.B. was released from jail on April 3, 2009, but she did not inform the Division of her release. Later that month, M.M.B. was again referred for a CADC assessment, which took place on April 20, 2009. M.M.B. was referred for outpatient drug treatment. The Division provided M.M.B. with bus transportation to the treatment program. M.M.B. did not attend the program on a regular basis, and she stopped attending after a month. The Division thereafter referred M.M.B. to another drug treatment program.

In May 2009, Barry M. Katz, Ph.D. (Dr. Katz) performed a psychological evaluation of defendant. Dr. Katz recommended that M.M.B. (1) complete a psychiatric evaluation; (2) complete a parenting course; (3) establish a stable home and source of income; (4) continue substance abuse treatment; (5) continue to have frequent urine screens; and (6) attend individual psychotherapy for a minimum of three to six months.

In June 2009, the Division attempted to contact M.M.B. at her mother's home, where she had been living. M.M.B.'s mother reported that M.M.B. was no longer living there. She also said that she thought E.J. was the child's father not T.W. The Division also attempted to establish weekly visitations between M.M.B. and N.K.T.W., but M.M.B. only attended those visits on a sporadic basis. Furthermore, M.M.B. did not establish stable housing during the time the Division was involved with the family, and she failed to maintain regular contact with the Division.

The Division assessed M.M.B.'s mother as a potential caretaker for N.K.T.W. but determined that she was not capable of assuming that responsibility due to her health problems and financial difficulties. The Division also contacted M.M.B.'s sister, J.B.B., who was living in Virginia, and asked if she had an interest in acting as caretaker for N.K.T.W. She did not respond to the Division's inquiry.

In July 2009, Catholic Charities informed the Division that M.M.B. had not complied with the requirements of her drug treatment program. M.M.B. was referred to Drug Court, but her participation was terminated for non-compliance with program requirements. In August 2009, M.M.B. entered a hospital in New York for detoxification, and she was discharged two days later. M.M.B. was referred to another drug treatment program for outpatient services. M.M.B. never attended the program.

It appears that in the fall of 2009, M.M.B. was again incarcerated. In November 2009, the Division received results of paternity tests confirming that E.J. was N.K.T.W.'s father. On January 15, 2010, the trial court ordered M.M.B. to submit to a psychiatric evaluation and complete another CADC assessment. On that date, the court conducted a permanency hearing and approved the Division's plan for reunification of N.K.T.W. with his parents. The court's order noted that M.M.B. had been released from jail and the extension of time would give her more time "to benefit from services and obtain housing."

Later that month, the Division considered and ruled out M.M.B.'s sister G.B. as a potential caretaker for the child. The Division also considered M.M.B.'s maternal cousin E.C. as a potential caretaker, but after a Division caseworker found E.C.'s six-year-old child home alone, E.C. ruled herself out.

M.M.B. was scheduled for a psychiatric evaluation on February 9, 2010. She did not attend the evaluation because, as the Division later learned, she was incarcerated on January 29, 2010. M.M.B. was released from jail several weeks later.

On April 6, 2010, M.M.B. was admitted to an addiction treatment center in New York. She was discharged six days later and referred to an assessment shelter in New York.

On April 16, 2010, the court conducted another permanency hearing and entered an order approving the Division's plan to terminate M.M.B.'s parental rights and the parental rights of E.J., who had been identified as the child's birth father. The court found that it would not be safe to return N.K.T.W. to his parents in the foreseeable future because neither parent had completed drug treatment, psychiatric evaluations, parenting skills training, counseling or obtained stable housing. M.M.B. was again incarcerated on April 29, 2010, and placed at Logan Hall in Newark.

On May 25, 2010, the Division filed its guardianship complaint, seeking termination of M.M.B.'s and E.J.'s parental rights to N.K.T.W. On June 9, 2010, the protective services litigation was dismissed.

M.M.B. remained at Logan Hall until August 2010. While there, M.M.B. attended Narcotics Anonymous meetings and parenting skills classes. She also received drug treatment. In addition, the Division arranged for N.K.T.W. to visit M.M.B. at Logan Hall.

The Division again lost contact with M.M.B. in September and October 2010. It later learned that M.M.B. had been incarcerated for one night in September 2010, for possession of drugs and drug paraphernalia. The Division contacted M.M.B.'s mother, who reported that M.M.B. had been arrested and was again incarcerated at Logan Hall. Because N.K.T.W.'s foster parent was unwilling to adopt him, he was placed in a new foster home in March 2011, where he has remained since. It seems that N.K.T.W. adjusted well to that placement, and the foster parents indicated they wanted to adopt him.

In December 2010, M.M.B. was evaluated by Frank J. Dyer, Ph.D. (Dr. Dyer). He stated that M.M.B. had mild cognitive limitations and confused thinking processes. He said that M.M.B. did not suffer from mood or formal thought disorder, but she employed denial to ignore unpleasant aspects of reality and her "criminal history suggests a prominent antisocial dimension to her personality."

Dr. Dyer diagnosed M.M.B. with cocaine dependence, borderline intellectual functioning, personality disorder, not otherwise specified, with antisocial and dependent features. He reported that the "implication[s] of [M.M.B.'s] psychological profile are negative with respect to parenting capacity." He recommended that M.M.B. undergo inpatient treatment for substance abuse.

Dr. Dyer noted that M.M.B. had admitted she would not be ready to assume custody of N.K.T.W. "for at least a year." He stated that M.M.B.'s borderline intellectual function and "reliance on denial to filter out unpleasant or inconvenient aspects of reality would hamper her" ability to deal with problems that a child in her custody would present.

Dr. Dyer also stated that there was an "extremely slight" likelihood that M.M.B. would be able to improve her situation with regard to housing, finances, freedom from substance abuse and personal maturity in the foreseeable future. Dr. Dyer recommended that M.M.B. not be considered as a candidate for custody of N.K.T.W.

In addition, Dr. Dyer commented on his bonding evaluations. He observed that M.M.B.'s contact with N.K.T.W. had been "sporadic" and the child did not display "any indications of a true attachment" to M.M.B. He noted that N.K.T.W. seemed to be "particularly resistant" to interactions with M.M.B., who had "overwhelmed him with inappropriate and excessive displays of affection" during the evaluation. He concluded that the child would not suffer any degree of psychological harm if placed for select home adoption.

In February 2011, at the request of the Law Guardian, M.M.B. was evaluated by Eric Kirschner, Ph.D. (Dr. Kirschner). According to Dr. Kirschner, M.M.B. reported that she began using heroin in June 2009 and continued to use that drug until she was incarcerated. M.M.B. acknowledged that she had not completed an outpatient drug treatment program.

Dr. Kirschner stated that M.M.B.'s personality was "characterized by a pervasive pattern of instability in regard to her mood, interpersonal relationships and self-image." He described M.M.B.'s "coping style as passive." He indicated that M.M.B. suffered from feelings of restlessness and impulsivity. He concluded that M.M.B.'s "personality patterns [will] likely interfere with the development of healthy interpersonal relationships and the capacity for empathy for her child."

Dr. Kirschner also found that M.M.B. did not understand normal child growth and development. He noted that she lacked nurturing skills, and stated that persons with psychological profiles similar to M.M.B. often have a weak concept of themselves as parents, which is easily threatened. He stated that, based on his observations, N.K.T.W. had not formed a bond with M.M.B., and the child would not suffer serious psychological harm if the parental relationship were terminated.

The trial of the matter took place in April 2011. On May 6, 2011, the court issued its written opinion, in which it concluded that the Division had established, by clear and convincing evidence, all of the criteria under N.J.S.A. 30:4C-15.1(a) for termination of M.M.B.'s parental rights. The court found, however, that the Division had not carried its burden of proof on the termination of E.J.'s parental rights and dismissed the complaint as to him.

The trial court entered an order dated May 10, 2011, memorializing its decision. This appeal followed. M.M.B. argues that the court erred by terminating her parental rights. We disagree.

Parents have a fundamental constitutional right to raise their children. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986). The constitutional protection of parental rights is tempered, however, "by the State's parens patriae responsibility to protect the welfare of children." In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). Accordingly, the Division is authorized to initiate a petition to terminate parental rights in the "best interest of the child" and the petition may be granted if the following criteria are established by clear and convincing evidence:

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

(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;

(3) The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and

(4) Termination of parental rights will not do more harm than good. [N.J.S.A. 30:4C-15.1a.]

"The four criteria enumerated in the best interests standard are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." K.H.O., supra, 161 N.J. at 348.

The scope of our review in an appeal from an order terminating parental rights is limited. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). "Appellate courts must defer to a trial judge's findings of fact if supported by adequate, substantial, and credible evidence in the record." Ibid. (citing In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). In addition, "[p]articular deference is afforded to decisions on issues of credibility." Ibid. (citing Cesare v. Cesare, 154 N.J. 394, 411-13 (1998)).

In her appeal, M.M.B. essentially concedes that the Division established by clear and convincing evidence prongs one, two and four of the best interests standard. M.M.B. nevertheless contends that the Division failed to establish prong three of the standard. She contends the Division did not make reasonable efforts to help her correct the circumstances that led to the child's removal from the home because it failed to provide her with a "long-term residential substance abuse program."

The third prong of the best interest standard requires the Division "to undertake diligent efforts to reunite the family." K.H.O., supra, 161 N.J. at 354 (citing N.J.S.A. 30:4C-15.1(a)(3)). Whether the Division's efforts were reasonable "depends on the facts in each case." N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 435 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002). Moreover, the "diligence of [the Division's] efforts on behalf of a parent is not measured by their success." In re Guardianship of D.M.H., 161 N.J. 365, 391 (1999).

Here, the record supports the trial court's finding that the Division made reasonable efforts to address M.M.B.'s substance abuse problems. The record indicates that the Division referred M.M.B. to various drug-treatment programs but she failed to avail herself of such programs. Furthermore, M.M.B. was incarcerated at various times during the Division's involvement with the family. The trial court correctly noted that the Division's efforts to address M.M.B.'s substance abuse problems were "significantly impeded" by her various incarcerations. N.J. Div. of Youth & Family Servs. v. S.A., 382 N.J. Super. 525, 535-36 (App. Div. 2006) (noting the difficulty and futility of providing services to a person in custody).

We recognize that Dr. Dyer and Dr. Kirschner suggested that M.M.B. would benefit from placement in an inpatient drug treatment program. However, Dr. Dyer and Dr. Kirschner made those recommendations after M.M.B. had repeatedly failed to avail herself of opportunities provided by the Division for detoxification and/or outpatient treatment.

In addition, M.M.B. was referred to Drug Court, which would have offered her appropriate treatment, and possibly inpatient treatment if deemed necessary. M.M.B. participated in Drug Court and was terminated for lack of attendance.

Simply put, the Division's efforts to address M.M.B.'s substance abuse problems were reasonable. There is also no indication in this record that M.M.B. would have availed herself of inpatient treatment or that such treatment would have made M.M.B. capable of parenting N.K.T.W. in a reasonably foreseeable time.



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