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New Jersey Division of Youth v. N.C.C

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 11, 2012

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
N.C.C., DEFENDANT-APPELLANT, AND T.J.L.,*FN1 DEFENDANT.
IN THE MATTER OF THE GUARDIANSHIP OF D.M.L. AND A.C., MINORS.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FG-14-81-10.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 18, 2012

Before Judges Axelrad, Sapp-Peterson and Ostrer.

N.C.C. is the biological parent of D.M.L., born August 15, 2008, and A.C., born August 4, 2010.*fn2 She appeals from the Family Part order terminating her parental rights, following a four-day trial, to both children and awarding guardianship to plaintiff, the Division of Youth and Family Services (Division). She specifically challenges the court's findings as to the first three prongs of the "best interests of the child" standard, N.J.S.A. 30:4C-15.1a, which controls such proceedings. In addition, she contends the court erroneously shifted the burden of proof to her to demonstrate her sobriety.

We reject N.C.C.'s arguments. We affirm substantially for the reasons expressed by Judge Mary Gibbons Whipple in her cogent and well-reasoned statement of reasons appended to the March 22, 2011 order of judgment.

At trial, the court heard testimony from Division caseworkers, experts and N.C.C. Additionally, the court admitted into evidence, without objection, the Division's case file. The record reveals the Division's involvement with N.C.C. commenced on August 19, 2008, four days after she gave birth to D.M.L. Medical staff contacted the Division and reported that both mother and child tested positive for opiates and that the child was being treated for severe withdrawal symptoms. N.C.C. told hospital staff that prior to giving birth, she took two OxyContin pills, prescribed to D.M.L.'s father, T.J.L., because she was in pain due to a pregnancy rash. When pressed, she indicated she took the OxyContin for one week. D.M.L. was diagnosed with Neonatal Abstinence Syndrome*fn3 and required medication to wean her off opiates and manage her withdrawal symptoms. D.M.L. remained hospitalized for two months.

On August 25, 2008, the Division referred N.C.C. and T.J.L. for a substance abuse evaluation with the Division's Certified Drug and Alcohol Counselor (CADC). N.C.C. completed her substance abuse evaluation on September 5, 2008. The CADC determined that N.C.C. qualified for Level III inpatient substance abuse treatment and recommended that she continue with the methadone maintenance program, in which she had enrolled, until a bed became available at an inpatient facility.

On September 24, 2008, the trial court granted the Division care and supervision of D.M.L. and granted N.C.C. legal and physical custody, "as long as [N.C.C.] resides with [N.C.C.'s father, M.C.,] and remains under [M.C.]'s [twenty-four-hour] supervision while caring for the child (or) enters a Mommy and Me Program." D.M.L. was discharged from the hospital on October 10.

On October 16, 2008, N.C.C. and T.J.L. appeared with counsel for the order to show cause hearing. N.C.C. waived her right to a fact-finding hearing and stipulated that her drug use posed a risk of harm to D.M.L. The Division retained care and supervision, and N.C.C. was permitted to retain legal and physical custody, provided she continued to reside with her father, M.C., remained under his "constant supervision," and tested negative "for all illicit substances[.]" The court ordered N.C.C. to undergo psychological and substance abuse evaluations and treatment.

N.C.C. enrolled in and appeared at Family Drug Court*fn4 on October 22, 2008. She was ordered to attend an inpatient treatment program, as recommended by her substance abuse evaluation, and to contact Seabrook House*fn5 to schedule an intake appointment.

On October 24, 2008, N.C.C. and T.J.L. appeared at the Center for Evaluation and Counseling (CEC) for a psychological evaluation. N.C.C. reported that she began using heroin when she was twenty-one years old and was using methadone for more than nine months before she became pregnant with D.M.L. She, however, reported she detoxified completely by December 13, 2007, as she did not want to be on methadone while pregnant. N.C.C. also indicated she had enrolled in the Morris County Aftercare Center's methadone maintenance program two months earlier because the Division told her she needed to be in a rehabilitation program. In a report dated December 3, 2008, the CEC concluded that N.C.C. and T.J.L. were "high risk parents for child neglect due to severe drug addiction." Additionally, the report noted:

[N.C.C.] took no responsibility for her daughter's withdrawal from opiates upon birth. She was a defensive, inconsistent, unreliable historian regarding the extent of her drug use during pregnancy. [N.C.C.] minimized the impact of her drug addiction on her life and on her child. She has a history of maternal abandonment, exhibits poor judgment as well as narcissistic personality traits, and tends to pursue drug use at the expense of the potential[ly] harmful consequences. [N.C.C.] is an immature parent who presents a risk for irresponsible parenting.

The CEC recommended that N.C.C.'s and T.J.L.'s parenting continue to be supervised at all times and recommended substance abuse treatment, random urine monitoring and psychotherapy.

On October 28, 2008, N.C.C. tested positive for marijuana and methamphetamines.*fn6 On October 30, she was reevaluated by the CADC to determine if the inpatient treatment recommendation was still valid. The CADC again recommended an inpatient treatment program and also recommended that N.C.C. continue with her methadone maintenance program until a bed became available at an inpatient facility. The CADC noted that N.C.C. had contacted Seabrook House but provided them with inaccurate information. At a Division meeting shortly thereafter, N.C.C. expressed her disagreement with the CADC inpatient treatment program recommendation. She refused to comply and indicated that she would obtain her own substance abuse evaluation and "treatment modality."

On December 8, 2008, Seabrook House informed the Division and N.C.C. that she would be accepted into its treatment program on February 9, 2009, if she immediately agreed to do so. She declined and was discharged from the Family Drug Court program. Additionally, on December 18, 2008, the court restrained N.C.C. from her father's home and transferred legal and physical custody of D.M.L. to him. N.C.C. was permitted supervised visits.

On January 29, 2009, the court conducted a compliance review hearing. The court permitted N.C.C. to return to her father's home, but ordered that he supervise all visits between N.C.C. and D.M.L. The court also ordered N.C.C. to comply with a hair follicle test and random urine screens. By then, N.C.C. had enrolled in an intensive outpatient treatment program at People Helping People, which she completed on May 18, 2009. She continued attending the Morris County Aftercare Center for methadone maintenance.

At a May 21, 2009 compliance review hearing, the court returned joint legal and physical custody of D.M.L. to N.C.C. and her father, with care and supervision remaining with the Division. The court permitted unsupervised contact with D.M.L. but did not permit N.C.C. to take D.M.L. outside of M.C.'s home.

That summer, the relationship between N.C.C. and her father began to deteriorate, culminating in N.C.C. removing him as an emergency contact person at the day care center D.M.L. attended. M.C. complained to the Division about N.C.C.'s behavior, and N.C.C. contacted the Division to report that her aunt and uncle, who were assisting her father in caring for D.M.L., abused prescription medication.

Because of the escalating friction between N.C.C. and M.C., the court conducted an emergency hearing on August 6, 2009. At its conclusion, the court ordered that sole physical custody of D.M.L. be returned to M.C., and it restrained N.C.C. from living in M.C.'s home. The court granted N.C.C. unsupervised visits, but no overnight visits were permitted. The court also ordered N.C.C. to undergo an updated psychological evaluation.

N.C.C. complied with the court's order and submitted to a psychological evaluation on August 11, 2009. In a preliminary report, the CEC found that "[N.C.C.] continue[d] to be a high-risk parent for child neglect." During the evaluation, N.C.C. reported that she had begun seeing a psychotherapist one week earlier and had been sober since August 2008. N.C.C. was confronted about an earlier incident involving her failure to fill a prescription for D.M.L. and allegations that she provided the daycare with spoiled formula. She denied responsibility, and the report noted that N.C.C.'s account of the events involved a "failure to take responsibility for her actions and was contradicted by collateral information from her pediatrician and daycare provider." The CEC opined:

[N.C.C.] continues to present as narcissistic, immature, and irresponsible. She has difficulty placing the needs of others before her own . . . . [N.C.C.] has little regard for the truth, engages in deception, acts on impulse without deliberation for the consequences of her actions, and does not experience sufficient remorse. [N.C.C.] has reportedly made progress with regard to her heroin addiction and has been compliant with methadone maintenance. However, [N.C.C.'s] potential for child neglect is associated with her irresponsibility, and characterological difficulties, in addition to her history of drug addiction.

The CEC concluded that N.C.C. was not prepared to serve as the sole caretaker for D.M.L. and recommended that she seek substance abuse recovery services, psychotherapy, parenting skills classes, and undergo a psychiatric evaluation.

On September 22, 2009, N.C.C. completed her methadone maintenance program at the Morris County Aftercare Center and was reportedly completely detoxified from methadone. At a compliance review hearing scheduled for October 8, 2009, N.C.C. was screened for drugs and tested positive for opiates. Consequently, the court granted the Division's application for legal and physical custody of D.M.L. N.C.C. was again ordered to undergo a psychiatric evaluation and an updated substance abuse assessment, and to submit to random urine screenings. All visitation was to be supervised by the Division.

N.C.C. missed the first two weeks of scheduled visitation and failed to show up for the psychiatric evaluation that the Division arranged for her with the Family Enrichment Program (FEP) in late October. The FEP tried for almost one month to contact N.C.C. to set up an appointment, but she did not return their telephone calls.

Between December 2009 and April 2010, the Division made numerous appointments for N.C.C. to attend substance abuse evaluation without success. She either refused to attend or simply did not appear. She also refused random urine screens.

A permanency hearing took place on April 22, 2010. The court accepted the Division's plan for termination of parental rights (TPR) followed by adoption. During a substance abuse evaluation later that day, N.C.C.'s CADC evaluator learned that she was enrolled in another methadone maintenance program called Habitat CoOp. The CADC evaluator spoke with a representative from Habitat, who reported that N.C.C. began their program on April 13, and admitted using heroin prior to her admittance. Habitat also informed the Division that N.C.C. was pregnant but could provide no further information because N.C.C. did not sign a release of information. At a family team meeting one month later, N.C.C. agreed to sign any releases the Division needed to obtain information about her treatment.

On May 14, 2010, the police arrested T.J.L. for two outstanding warrants at N.C.C.'s home after learning from T.J.L.'s father that the two were living together. Police spotted T.J.L. through N.C.C.'s window, and, upon entry, found him hiding in N.C.C.'s bedroom closet, although N.C.C. denied he was in her home. N.C.C. was charged with obstruction of justice and later pled guilty to the charge.

On August 4, 2010, N.C.C. gave birth to A.C. She refused to name his father. A.C. was born addicted to methadone and began to exhibit withdrawal symptoms a few days after delivery.

Like D.M.L., A.C. was diagnosed with Neonatal Abstinence Syndrome and remained hospitalized for more than one month. The Division effectuated an emergency removal, and two days later, the court granted the Division custody of A.C. The Division amended its existing guardianship complaint to include A.C.

On September 17, 2010, Dr. Larry E. Dumont conducted a psychiatric evaluation of N.C.C. She reported to him that she began using heroin at age nineteen. She revealed she and T.J.L. used heroin during the first two years of their relationship, initially only on the weekends but later their use increased in frequency to every other day. She acknowledged that T.J.L. was A.C.'s father. In his report, Dr. Dumont opined that N.C.C. is a very intelligent woman, however, "there does not seem to have been a concerted effort on her part to address her issues." He expressed concern that she "really is in a state of denial over the severity of her substance abuse issues." He noted that "[w]hat [N.C.C.] really reveals is a very strong narcissistic bent. The world is all about her and things have to go her way or the highway." He also expressed "grave concern" about her ability to parent, noting that he did not believe she would be "malicious" to the children, but explained that her priority "is her own needs and not the needs of her children." Dr. Dumont recommended termination of her parental rights, opining that given N.C.C.'s ongoing substance abuse issues and failure to be completely open and honest with the Division and her physicians, "there is strong concern about her ability to be a good, consistent and predictable parent for her children[.]" He further recommended ongoing individual therapy to address some of her characterological issues such as her dependent personality and self-esteem issues and recommended that N.C.C. fully commit herself to remaining drug free.

One month later, Dr. Frank J. Dyer conducted a psychological evaluation of N.C.C. and bonding evaluations between the children and N.C.C. and M.C.*fn7 In a report dated December 21, 2010, Dr. Dyer recommended the Division not consider N.C.C. as a viable caretaker for D.M.L. or A.C. and that it pursue a goal of permanency with the children's grandfather.

During her psychological evaluation with Dr. Dyer, N.C.C. reported her last use of heroin was more than three years ago, and she had not had any contact with T.J.L. since just before D.M.L. was taken away. She related that A.C.'s father was an individual named Shawn, whom she had known from high school and visited in North Carolina. N.C.C. denied any history of arrests or that she had ever done or failed to do anything that would raise questions about her ability to parent. She also asserted she had no idea why the Division referred her to therapy and claimed no one told her she needed to be in a different level of substance abuse treatment than the one she pursued.

Dr. Dyer diagnosed N.C.C. with a personality disorder and noted her "compliance with drug treatment has been inconsistent, and the present status of her remission is unclear." He also noted her failure to appear for scheduled drug testing and substance abuse evaluation "raises questions as to her commitment to sobriety." Dr. Dyer opined:

[N.C.C.] is very firmly entrenched in a position of denial with respect to any type of deficiency as a parent. She displays a remarkable degree of denial with respect to her drug use, flatly questioning the documentation of her admissions at the time that she gave birth to [D.M.L.] and questioning whether the infant had really been experiencing drug withdrawal[.]

He also noted:

Given the subject's extremely resistant, combative, and suspicious attitude, as well as her extremely inconsistent compliance with the case plan and her offering excuses to respond to each and every allegation of noncompliance, it is felt that she remains at risk for behaviors that would put her children in danger. She clearly does not display the acceptance of an addiction problem that . . . is universally recognized as a precondition for a successful outcome through rehabilitation.

With respect to the bonding evaluations between N.C.C. and her children, Dr. Dyer noted N.C.C. behaved in an appropriate and affectionate manner. Addressing the bonding evaluation between D.M.L. and M.C., Dr. Dyer noted their interaction "was reflective of a secure attachment on the child's part to a grandfather who obviously loves her and is committed to her welfare." Dr. Dyer opined that if D.M.L. remained with her grandfather, there was every reason to expect that she would continue to receive attentive care and appropriate structure and, further, if M.C. was the permanent caretaker, then it was likely that N.C.C. would remain a significant presence in D.M.L.'s life.

N.C.C.'s psychotherapist, Michelle Rennert, M.S.W., issued a report on November 6, 2010. In her report, Ms. Rennert noted that N.C.C. had been in treatment with her since July 2010, had made good use of therapy sessions and had been "open and forthright." Ms. Rennert reported that N.C.C. had successfully detoxified from methadone and has used no illicit drugs for over two years. She also reported that N.C.C. denied that T.J.L. is A.C.'s father.

In January 2011, at the request of the Law Guardian, Alicia A. Caputo Smith, Ph.D., conducted a best interest evaluation of D.M.L. and A.C. N.C.C. reported to Dr. Caputo Smith that she was detoxified from methadone by September 2010, having resumed the treatment after D.M.L. was born. She also stated she continued her methadone regimen during her pregnancy with A.C. because the Division stated she would be susceptible to a relapse without it. She reported she and T.J.L. "ended their relationship two years ago when it became evident that he was not going to change[.]" She further asserted the last time she saw him was over one and one-half years ago. When confronted with the police report indicating his presence in her bedroom closet in May 2010, she responded he was visiting her neighbors and stepped out onto their porch, where he was caught by the sheriffs. She reported that a man in North Carolina was A.C.'s father, but refused to provide a name.

Dr. Caputo Smith noted N.C.C. was "loving and warm with the children" and "exhibited appropriate hands-on parenting skills[,]" and commented that N.C.C. seemed to have benefited from parenting classes. However, Dr. Caputo Smith opined that N.C.C.'s denials and externalization of blame continue to be of significant concern . . . . She assumed no responsibility for the suffering she caused her children at the time of their births or for their removal from her care. Rather, she blamed every person associated with the case for anything that might cast her in a negative light . . . . [N.C.C.] denied making statements that were documented by several different clinical professionals, such as prior statements about her mother's psychiatric history; she also denied ever claiming that [T.J.L.] fathered [A.C.] Most concerning was [N.C.C.]'s denial that she has had contact with [T.J.L.] in the last [eighteen] months, despite evidence of his presence in her home as late as [May 2010]. . . . In addition to these issues, the length of time she has remained abstinent from heroin is questionable; records suggest an admission of heroin use as late as [April 2010], though [N.C.C.] denied this admission during the current interview.

Dr. Caputo Smith noted "[D.M.L.] exhibited secure attachment to [N.C.C.] and likely would experience emotional upset should [N.C.C.] be completely removed from her life." However, she explained it was unlikely such a separation would occur in the first place, as there was no indication that the maternal relatives would cut N.C.C. out of the children's lives. Dr. Caputo Smith concluded termination of N.C.C.'s parental rights would not do more harm than good, and the best interests of the children required that her rights be terminated and the children be freed for adoption.

At trial, Drs. Dyer and Caputo Smith testified on behalf of the Division and Law Guardian respectively. Their testimony was consistent with the opinions expressed in their previous reports. Both experts diagnosed N.C.C. with a personality disorder and testified the disorder posed a danger to her children. Dr. Caputo Smith noted a personality disorder such as N.C.C.'s would take years of therapy to treat and would require the patient to be forthcoming and fully engaged with therapy. Dr. Richard S. Klein testified on behalf of N.C.C. and recommended gradual reunification of the family. He expressed the opinion that N.C.C. suffered from a defiant oppositional disorder, but it did not rise to a level that affected her ability to parent her children. N.C.C.'s therapist, Michelle Rennert, testified on her behalf and also advocated reunification.

On March 22, 2011, Judge Gibbons Whipple issued a judgment of guardianship terminating N.C.C.'s parental rights to D.M.L. and A.C. She found "the State has proven by clear and convincing evidence that termination of parental rights is proper so that the children may be adopted." Regarding prong one, she found both children were born addicted to drugs and "[i]t is manifest that N.[C.]C. harmed her children's health as a result of her drug use." Moreover, the judge concluded N.C.C. posed a risk of future harm to her children, although the judge was unable to ascertain when N.C.C. stopped using heroin and for how long.

With respect to prong two, the judge found N.C.C. has not shown a long term commitment to live a drug[-]free life. Her insistence upon methadone maintenance as the best and only solution to her drug problem is a definite decision made by her to avoid detoxifications. No physician or mental health expert indicated that this was her best choice or even a reasonable choice[.]

Turning to the third prong, Judge Gibbons Whipple found "[d]efendant was given opportunities for substance abuse evaluations, rehabilitation, drug screening, therapy, visitation[,] both supervised and unsupervised[.]" She noted "[t]he Division offered substantial and consistent treatment options to N.[C.]C.," including a Mommy and Me program and Family Drug Court, "continuing to do so for a long time, despite N.[C.]C. being oppositional, defiant and untruthful."

As to prong four, the judge concluded that termination of parental rights would not do more harm than good, noting: The experts have opined that this is a case where the children will not suffer any harm from termination because they will, in all likelihood, continue to have N.[C.]C. in their life. All of the experts indicate that the children are bonded to the caretakers and N.[C.]C.

. . . N.[C.]C. has not demonstrated a true commitment to recovery. Neither of these children can wait for that to occur.

The present appeal ensued. N.C.C. raises the following points for our consideration:

POINT I

THE TRIAL COURT ERRED BECAUSE THE DECISION TO TERMINATE N.[C.]C.'s PARENTAL RIGHTS WAS NOT SUPPORTED BY ADEQUATE, SUBSTANTIAL, AND CREDIBLE EVIDENCE.

[A]. PRONGS 1 & 2. [THE DIVISION] DID NOT PROVE BY CLEAR AND CONVINCING EVIDENCE THAT N.[C.]C.'s RELATIONSHIP WITH [THE CHILDREN] CAUSED OR WILL CAUSE ENDURING HARM.

[B]. PRONG 3. [THE DIVISION'S] REASONABLE EFFORTS TO REUNIFY N.[C.]C. WITH [THE CHILDREN] DID NOT EXIST BECAUSE [THE DIVISION] SET UP A SYSTEM FOR N.[C.]C. TO FAIL AND KNEW SHE WOULD BE UNABLE TO COMPLY WITH ITS RECOMMENDATIONS.

POINT II

THE TRIAL COURT INCORRECTLY PLACED THE BURDEN OF PROOF AS TO N.[C.]C.'s SOBRIETY ON N.[C.]C. AND NOT ON [THE DIVISION] IN RENDERING ITS DECISION.

As a reviewing court, we "generally defer to the factual findings of the trial court because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a feel of the case that can never be realized by a review of the cold record." N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 396 (2009) (internal citations and quotation marks omitted). The trial court's fact-findings are considered binding on appeal when supported by "adequate, substantial and credible evidence." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). We are particularly deferential to the fact-findings of family courts because of the family courts' "special jurisdiction and expertise in family matters." Cesare v. Cesare, 154 N.J. 394, 413 (1998).

We recognize that parents have a fundamental right to raise their children under the Constitution. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986). However, the constitutional protection surrounding family rights is mitigated 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). To that end, termination of parental rights is authorized when found to be in the best interests of the child. N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 434 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002). Such actions require proof by clear and convincing evidence. Div. of Youth & Family Servs. v. L.C., 346 N.J. Super. 435, 439 (App. Div. 2002). Termination actions are decided under a four-part "best interests of the child" standard first enunciated by the Court in A.W., supra, now codified in N.J.S.A. 30:4C-15.1a. Pursuant to this statute, termination of parental rights is in the best interests of the child when:

(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.]

These four factors are not "discrete," but rather "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. However, each must be proven by clear and convincing evidence. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 606 (2007). That is, by evidence "which produces in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established, evidence so clear, direct and weighty and convincing as to enable the factfinder to come to a clear conviction, without hesitancy, of the precise facts in issue." N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 168 (2010) (quoting In re Seaman, 133 N.J. 67, 74 (1993)).

A.

N.C.C. argues the Division failed to prove there would be enduring harm to D.M.L. and A.C. Instead, N.C.C. argues the record reveals she completely stopped using illicit drugs and had not tested positive for drugs since May 2010. Thus, N.C.C. contends the Division's argument that there is a likelihood of future harm to the children is not based upon her continued substance abuse, but instead on her personality disorder, which they "disapproved of." Moreover, N.C.C. maintains both the Division and the trial court incorrectly assumed that because she had a tendency to lie and an oppositional defiant personality disorder, she would endanger her children. Further, she argues the Division's witnesses could find nothing materially wrong with her parenting skills, and after ten months of supervision, the only complaint was a wet diaper and a baby bottle that could have possibly had spoiled milk.

The first prong of the best interests test "requires a clear and convincing showing that the child's safety, health and development have been or will continue to be endangered by the parental relationship." N.J. Div. of Youth & Family Servs v. C.S., 367 N.J. Super. 76, 113 (App. Div.), certif. denied, 180 N.J. 456 (2004). The primary focus is whether the parent has harmed the child or may harm the child in the foreseeable future. A.W., supra, 103 N.J. at 607. "[A] child born addicted to drugs and suffering from the symptoms of drug withdrawal as a result of [the] mother's substance abuse during pregnancy has been harmed by [the] mother and that harm endangers the child's health and development." K.H.O., supra, 161 N.J. at 349.

As the trial court found, both of N.C.C.'s children were born addicted to drugs. D.M.L.'s and A.C.'s medical records indicate they were both diagnosed with Neonatal Abstinence Syndrome and suffered from withdrawal as a result of N.C.C.'s substance abuse during her pregnancy. Additionally, N.C.C. stipulated that her drug use caused harm to D.M.L. during her October 16, 2008, order to show cause hearing. Despite being aware that her substance abuse resulted in D.M.L.'s two-month hospitalization following her birth, N.C.C. rebuffed the Division's efforts to provide services to her by not following through with recommended treatment or failing to complete recommended treatment. Instead, she continued to abuse drugs, resulting in A.C. suffering from withdrawal symptoms following his birth. Further, the fact that she claimed she had not used drugs in the nine months leading up to the trial was not, if true, evidence that D.M.L. and A.C.'s health and development would not be seriously impacted by their parental relationship with N.C.C.

The record is replete, during the three years preceding the trial, with evidence of N.C.C.'s lack of candor in providing information to the Division and others necessary to assist her in addressing her substance abuse and mental health issues. As such, the trial court properly found her testimony unreliable insofar as establishing the likelihood that her children were no longer at risk.

B.

"The second prong of the statutory standard relates to parental unfitness." Id. at 352. This may be established by demonstrating that (1) "the parent is unwilling or unable to eliminate the harm that has endangered the child's health and development," or (2) "that the parent has failed to provide a safe and stable home for the child and a delay in permanent placement will further harm the child." Ibid. (internal citations and quotations omitted). This prong focuses on the steps taken by the parent after a child's birth "to maintain the parent-child relationship and to foster an environment leading to normal child development." Ibid. Thus, parental dereliction and irresponsibility may be evidenced by a "parent's continued or recurrent drug abuse, the inability to provide a stable and protective home, the withholding of parental attention and care, and the diversion of family resources in order to support a drug habit, with the resultant neglect and lack of nurture for the child." Id. at 353.

N.C.C.'s recurrent drug use and refusal to comply with the recommended level of treatment is well-documented in the record and demonstrates that defendant is unwilling or unable to eliminate the harm to which she exposed her children. The Division made numerous appointments for N.C.C. to attend substance abuse evaluations, without success. In addition, N.C.C. tested positive for heroin in April 2010, despite claiming to be completely detoxified for at least two years, and the trial court found her testimony in many regards "suspect if not outright false." As such, there was ample evidence before the court to conclude N.C.C. lacked a "long term commitment to live a drug[-]free life" and, therefore, was unwilling to eliminate the harm to her children.

C.

N.C.C. argues the Division did not afford her reasonable opportunities because its substance abuse recommendations were inappropriate and failed to treat the real issue, which was her personality disorder. N.C.C. contends the Division knew she had oppositional defiant disorder and therefore would be unable to comply with its recommendations. She argues that the Division could have recommended treatment for this disorder, such as long term psychotherapy and medication, but instead sought to "build taller and taller walls around N.[C.]C. and have her jump through hoops after she complained" about the Division's handling of her case.

The Division argues it made reasonable efforts to assist N.C.C. to regain custody of D.M.L. and A.C., and any claims to the contrary are "patently false." The Division maintains N.C.C. was afforded numerous chances to enroll in an inpatient treatment program, but "[i]nstead of complying, she engaged in a campaign of deceit and shopped around to different outpatient . . . and methadone maintenance programs where she provided inaccurate information about her drug addiction." The Division argues, notwithstanding the exhaustive efforts it made to enroll her in an inpatient substance abuse treatment program, N.C.C. was also offered several referrals for therapy to address her personality disorder, including referrals to FEP and CEC. In addition to substance abuse treatment and therapy, the Division argues it placed the children with relatives, and N.C.C. was afforded regular supervised and unsupervised visitation throughout the case.

The Division's obligation to provide reasonable efforts 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.]

"The diligence of [the Division's] efforts on behalf of a parent is not measured by their success." In re Guardianship of DMH, 161 N.J. 365, 393 (1999). N.C.C. does not claim the Division failed to provide adequate visitation or keep her apprised of her children's progress. Rather, she focuses on the Division's failure to provide remedial services. The record, however, indicates the Division discharged its statutory duty of making reasonable efforts to provide services to N.C.C. Division caseworkers assigned to N.C.C.'s case testified to the services the Division made available, which, if accepted by N.C.C., would have included substance abuse treatment as well as referrals to programs that would have addressed her personality disorder. The trial court credited this testimony, and we defer to this finding. G.M., supra, 198 N.J. at 396.

Notwithstanding the testimonial evidence, the record is replete with other evidence supporting the court's finding that N.C.C. was provided with opportunities for substance abuse evaluation, rehabilitation, drug screening, therapy, visitation, and psychological and psychiatric screenings. As early as December 2008, the Division recommended psychotherapy. N.C.C. was scheduled for a psychological evaluation in October 2009, but she failed to keep her appointment and did not reschedule despite numerous attempts by the Division to contact her. N.C.C. did not avail herself of these services until she began seeing Ms. Rennert in July 2010, seven months before trial and nearly one year after she had been court-ordered to undergo a psychiatric evaluation. Thus, there was clear and convincing evidence to support the court's conclusion that the "Division offered substantial and consistent treatment options to N.[C.]C., continuing to do so for a long time, despite N.[C.]C. being oppositional, defiant and untruthful."

D.

In her final point, N.C.C. argues the trial court, by commenting on its inability to ascertain when she stopped using heroin and for how long, incorrectly placed the burden on her to prove her sobriety and worthiness. She argues that despite testimony she had not tested positive for illicit substances since May 2010, the trial court ignored her ten months of sobriety and found that her parental rights should be terminated because she was unable to prove her sobriety.

The Division responds the trial court did not shift the burden to N.C.C. to prove she was no longer using drugs. The Division urges that N.C.C.'s claim the trial court terminated her parental rights because she could not prove her sobriety "ignores the mountain of evidence" upon which the trial court relied in finding that the Division met its burden of proof by clear and convincing evidence as to all four prongs of the "best interests" test. We agree.

The portion of the court's opinion at issue states:

Moreover, N.[C.]C. still poses a risk of future harm to her children. N.[C.]C. argues that she has been substance free for some time but the [c]court cannot ascertain when she stopped using heroin and for how long. All of the witnesses, expert and lay, who received information from N.[C.]C., received incomplete or inaccurate information from her.

This comment did not shift the burden of proof but instead reflected the court's assessment of the unreliability of N.C.C.'s contention that by the time of trial, she had been drug-free for ten months. There were repeated instances throughout the record where N.C.C. would report she had been drug-free, but subsequent testing revealed otherwise. The judge found N.C.C.'s testimony lacking in credibility, and the comment merely highlighted this finding in connection with the first prong of the best interests test.

In short, we are satisfied that Judge Gibbons Whipple's finding that the Division proved all four statutory prongs with clear and convincing evidence is supported by substantial credible evidence in the record and is entitled to our deference. Cesare, supra, 154 N.J. at 413. We discern no basis to disturb these findings.

Affirmed.


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