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New Jersey Division of Youth and Family Services,*Fn1 v. J.S


September 24, 2012


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FG-19-13-11.

Per curiam.



Submitted September 12, 2012

Before Judges Simonelli, Koblitz and Accurso.

Defendant J.S., the biological mother of A.J.S, born in October 2008, appeals from the August 1, 2011 Family Part order, which terminated her parental rights to the child.*fn2 On appeal defendant only challenges the trial judge's conclusion that the evidence clearly and convincingly satisfied prong one of N.J.S.A. 30:4C-15.1a -- that A.J.S.'s "safety, health or development has been or will continue to be endangered by the parental relationship." Thus, we focus solely on the evidence relating to prong one.

In October 2008, respondent New Jersey Division of Youth and Family Services (Division) received a report that defendant was pregnant and had used heroin, morphine, cocaine, marijuana and benzodiazepines during her pregnancy. Defendant was seventeen years old at the time and in the custody of the SusseX County Juvenile Detention Center because she had been adjudicated guilty of an offense which, if committed by an adult, would constitute simple assault. Prior thereto, she had assaulted and injured a female acquaintance.

A.J.S. was born prematurely and weighed 2.4 pounds, but did not test positive for drugs at birth or exhibit signs of withdrawal; however, she was deemed medically fragile and remained in the neonatal intensive care unit for two months, receiving respiratory support until she was healthy enough for discharge. The Division obtained custody of A.J.S. and, upon her discharge in late December 2008, placed her with a foster parent certified to care for medically fragile children with specific medical needs. A.J.S.'s present foster parent wants to adopt her, and there is undisputed expert evidence that the child will suffer severe and enduring harm if the two are separated.

A.J.S. remained in foster care from December 2008, until her reunification with defendant in September 2009. The reunification failed shortly thereafter in January 2010, when J.S. was ordered out of the "Mommy and Me" program at Straight and Narrow because she had assaulted a resident, fought with staff members, and failed to comply with the program's rules and regulations. In addition, defendant continued using drugs and alcohol, failed to attend substance abuse treatment programs, and engaged in domestic violence with J.M.S.

A December 2008 forensic assessment revealed that defendant had an extensive history of drug and alcohol abuse, relationship and emotional instability, anger management difficulties, and criminal and violent behavior. She was not remorseful for her violent behavior, and was at extremely high risk for relapse.*fn3

Testing revealed that defendant had avoidant, anti-social, and narcissistic personality traits, symptoms of depression, difficulty maintaining an adequate level of functioning, a pervasive apprehensiveness, a broad disillusionment with family and friends, recurrent anxieties, a general mood disharmony, unpredictability, an edgy petulance, negativism, a grandiose sense of self-importance, a sense of entitlement, and she was an angry, tense, sad, anxious, self-conscious and dejected teenager who lacked empathy, tended to be envious of others, and displayed enormous arrogance in her behaviors and attitudes.

Parenting skills testing revealed that defendant had an array of personal and interpersonal characteristics similar to characteristics of known child physical abusers. She was a high risk to be "overreactive, irritable, have a low frustration tolerance and poor impulse control;" she also had a high degree of personal distress and personal adjustment problems, and poor reaction to stress.

Defendant faults the trial judge for relying on the forensic assessment in finding that prong one had been satisfied. Defendant argues on appeal, in part, that the assessment predated the reunification, it only attempted to predict the future, it did not include evidence after December 2008 that she did not harm or pose a harm to A.J.S., and it was not relevant at the time of trial. The assessment, however, was not the only evidence in the record establishing prong one.

The Division's psychological expert, Mark Singer, Ed.D., evaluated defendant in April 2010, approximately three months after the failed reunification. His testing revealed that defendant disliked her life and had difficulty modulating affect, enjoyed using drugs, is a secretive individual who was experiencing depression mixed with social anxiety and feelings of hopelessness and worthlessness, overly relies on the advice of others, seeks attention and approval, likely has a conduct disorder and difficulty adhering to limits placed on her behavior, is likely to have volatile relationships with others, and has some form of thought disorder. Dr. Singer concluded then that defendant's prognosis was poor based on her inability to maintain sobriety, she lacked the resources to parent A.J.S., and another reunification would likely result in an unacceptable risk of harm to the child.

Dr. Singer evaluated defendant again in March 2011, and found that she had not changed psychologically, except additional testing revealed that her ability to concentrate had been compromised and she monitored her environment in an unrealistically-vigilant fashion in order to avoid contact with a feared object; distrusted others' motives; felt she was being treated inequitably; had little sense of purpose in life; was uncertain about major life issues; was an impulsive individual who was at risk for engaging in high risk behaviors that have negative outcomes; was socially isolated; and tended to focus excessively on painful experiences. Dr. Singer opined at trial that defendant's instability, long-term substance abuse, inability to maintain sobriety, increased paranoia, and psychological deficits rendered her unable to care for herself or A.J.S.

The Law Guardian's expert, Leslie Trott, Ed.D., evaluated defendant in February 2011. Dr. Trott's testing revealed that defendant is at risk to commit child abuse or neglect, depressed, alienated socially, emotionally immature, struggling to survive, and cannot care for A.J.S. Dr. Trott concluded that although defendant had adequate cognitive skills, her psychological deficit "erases all of her cognitive capabilities," and renders her at risk for further emotional decompensation and incapable of caring for herself or A.J.S. The doctor emphasized that defendant "may [be] near emotional psychosis and with increased stress would consider harming herself[,]" and defendant's "personal social and emotional needs appear so great, she cannot be considered ready to parent." Dr. Trott testified at trial consistent with her evaluation results. Defendant presented no expert evidence.

Our Supreme Court has established the standard of review in parental termination cases:

Our task as an appellate court is to determine whether the decision of the family court in terminating parental rights is supported by substantial and credible evidence on the record. We accord deference to factfindings of the family court because it has the superior ability to gauge the credibility of the witnesses who testify before it and because it possesses special expertise in matters related to the family. . . . We will not overturn a family court's factfindings unless they are so wide of the mark that our intervention is necessary to correct an injustice. It is not our place to second-guess or substitute our judgment for that of the family court, provided that the record contains substantial and credible evidence to support the decision to terminate parental rights. [N.J. Div. of Youth & Family Servs. v. F.M., ___ N.J. ___, ___ (2012) (slip op. at 34-35)

(internal quotation marks and citations omitted).]

A court should terminate parental rights when the Division shows by clear and convincing evidence that:

(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 [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. [N.J.S.A. 30:4C-15.1a.]

These "four prongs are not discrete and separate, but relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." F.M., supra, ___ N.J. at ___ (slip op. at 34) (internal quotation marks and citations omitted).

Actual harm need not be demonstrated in order to satisfy prong one. 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). "Courts need not wait to act until a child is actually irreparably impaired by parental inattention or neglect." In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999). The test is whether the child's safety, health or development will be endangered in the future and whether the parent is or will be able to eliminate the harm. A.G., supra, 344 N.J. Super. at 440. Prong one can be satisfied by establishing the serious psychological damage to the child caused by the parental relationship, as well as the potential for emotional or psychological harm resulting from the parent's actions or inactions. In re Guardianship of K.L.F., 129 N.J. 32, 44 (1992); N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986). Also, a parent's failure to provide a "permanent, safe and stable home" engenders significant harm to the child. D.M.H., supra, 161 N.J. at 383.

Although the trial judge in this case focused on defendant's lifestyle and unfitness to parent A.J.S. instead of considering the harm to the child resulting from defendant's behavior, we are satisfied that there is substantial and credible evidence that A.J.S. was harmed and will continue to be harmed by defendant. N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 113 (App. Div.) (affirming the termination of parental rights even though the judge "erroneously focused on the [defendant-mother's] lifestyle . . . rather than giving proper weight to the extent of harm [that the defendant] caused to her daughter"), certif. denied, 180 N.J. 456 (2004). Defendant has failed to address her drug addiction, instability, anger issues, and psychological deficits, and her conduct has deprived and will continue to deprive A.J.S. of a permanent, safe and stable home. The undisputed expert evidence in this case establishes clearly and convincingly that defendant is unable to care for herself, let alone a young child, either now or in the foreseeable future.


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