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New Jersey Division of Youth & Family Services v. J.W.I.

Superior Court of New Jersey, Appellate Division

June 12, 2013

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent,
v.
J.W.I., Defendant-Appellant, and R.P., Defendant. IN THE MATTER OF THE GUARDIANSHIP OF T.R.I., T.K.I., AND S.A.I., Minors.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 15, 2013

On appeal from the Superior Court of New Jersey, Chancery Division, Essex County, Docket No. FG-07-113-11.

Joseph E. Krakora, Public Defender, attorney for appellant J.W.I. (Beryl Foster-Andres, Designated Counsel, on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent New Jersey Division of Youth and Family Services (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Merav Lichtenstein, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors T.R.I., T.K.I. and S.A.I. (Todd Wilson, Designated Counsel, on the brief).

Before Judges Parrillo, Sabatino and Maven.

PER CURIAM

Defendant J.W.I. appeals from the final judgment of guardianship terminating her parental rights to three of her seven children: T.R.I. (Trey), T.K.I. (Todd) and S.A.I. (Sarah).[1] She argues that the court erred in finding that the Division of Youth and Family Services (Division)[2] established by clear and convincing evidence each element of the best-interests-of-the-child test under N.J.S.A. 30:4C-15.1(a). We affirm.[3]

Defendant is the thirty-eight year old mother of seven children, the four oldest of whom are in the custody of other relatives and are not the subject of this appeal. Trey, born August 22, 2001, and Todd, born May 24, 2007, are also in the custody of a relative, Evelyn, who wishes to adopt them. Sarah, born May 13, 2010, is in the custody of a friend of the family, Suely, who also wishes to adopt her.

While seventeen weeks pregnant with Todd, defendant, who was living at a Newark shelter with then five-year-old Trey, had twice tested positive for phencyclidine (PCP). On May 24, 2007, she gave birth to Todd. The hospital reported to the Division that defendant had tested positive for PCP and ecstasy, and Todd had tested positive for exposure to PCP, but had no withdrawal symptoms. The Division concluded that the allegations of neglect had been substantiated based on defendant's use of illicit drugs during her pregnancy.

Consequently, on May 25, 2007, the Division removed Trey from defendant's care and eventually placed him with Evelyn, his maternal cousin. Todd, who was designated as medically fragile, remained in the hospital on "hospital hold" because he had been born drug exposed, had a cleft palate, had difficulty in feeding, and failed a hearing test. Subsequently, on June 12, 2007, pursuant to a court order of removal, Todd was also placed with Evelyn, who had custody of Trey.

During psychological and substance abuse evaluations, defendant admitted she had been using marijuana for four years, had used PCP for seven years, and in the past thirty days had used PCP every day. She also reported having a criminal history, which included convictions for drug offenses, assault, and a weapons offense, for which she said she had spent a total of six to ten years in prison. Defendant was diagnosed with hallucinogen dependence.

Thereafter, defendant successfully completed the Straight and Narrow inpatient drug program and was discharged on July 25, 2008. She enrolled in the Newark Renaissance House outpatient program in August 2008, and successfully completed that program in January 2009. She obtained housing and employment, and in March 2009, began overnight unsupervised visits with Trey and Todd with the goal of reunification at the end of the school year.

On November 13, 2009, Trey and Todd were reunited with defendant while the Division's case remained open for supervisory services. While in defendant's care, Trey received special education services and Todd received speech therapy. The family initially adjusted well, and the Division had no concerns with defendant's care of the children.

However, on March 10, 2010, just three months after the family was reunited, the Division received a referral from a health care worker at Robert Wood Johnson Hospital that defendant, who was twenty-seven weeks pregnant with Sarah and had been admitted due to severe respiratory distress, had tested positive for PCP and had had no prenatal care. Defendant admitted she had relapsed and used PCP.[4] Once again, the Division concluded that the allegations of neglect had been substantiated based on defendant's testing positive for PCP while pregnant and failing to obtain prenatal care.

On May 13, 2010, defendant gave birth to Sarah. Drug screenings of mother and child were negative for illicit drug use or exposure. The next day, the Division informed a hospital social worker that Sarah could be discharged to defendant's care. However, less than one week later, on May 20, 2010, the Division received a referral from a county welfare worker reporting that defendant, while in her office with Sarah, appeared to be under the influence of drugs because her eyes were dilated and her responses were slow. When questioned, defendant allegedly admitted to the worker that she would test positive for drugs, although during the ensuing Division investigation, defendant "vehemently denied being under the influence of any illegal substance." Defendant agreed to submit to an emergency urine drug screen, the results of which, reported on May 26, 2010, showed elevated levels of creatinine, an indication that defendant had consumed a large quantity of fluid in an effort to dilute the specimen.

That same day, the Division filed an order to show cause and a verified complaint for care and supervision of Trey, Todd, and Sarah. Although the application was granted, the children were not removed from defendant, who had signed a case plan agreeing to participate in the Substance Abuse Initiative (SAI) program in Middlesex, and to abstain from further drug use.

Despite her assurances, defendant tested positive for PCP use on June 11, and June 18, 2010. Moreover, the Division received a referral on July 10, 2010, reporting that defendant, who could not be reached by cell phone, had dropped Sarah off with a friend at 8:00 a.m. that morning and had not returned by 8:30 p.m. that evening. The Division concluded that the allegations of neglect were substantiated.

On July 14, 2010, the Division filed an amended verified complaint for custody of Trey, Todd, and Sarah. On July 15, 2010, the return date of the order to show cause, defendant tested positive for PCP use. The court signed an order on that date reflecting its finding that removal of the children from defendant's custody was necessary to avoid an ongoing risk because she had tested positive for PCP in June and July 2010.[5]

After the children were removed, and beginning on July 19, 2010, defendant entered a number of intensive drug treatment programs in which she was non-compliant. In fact, she used PCP three to four times a week until February 2011, when she was admitted into the Straight and Narrow program. In the interim, supervised visitation between defendant and the three children continued.

On December 6, 2010, Albert Griffith, a licensed psychologist, conducted an evaluation of defendant. He found that

it is doubtful that any [services] will be successful at this time. This client wishes to have a Mommy & Me Program. That could perhaps be helpful for the client, but may also not benefit the child. This client has already had the benefit of literally years of treatment. She has shown a persistence in her addiction and through her own statement recognizes that she has found the thrill [of PCP use] too tempting to resist. Therefore, a Mommy & Me Program is not likely to benefit the child and may only compromise the child's need for security if the client relapses in the future.

On January 13, 2011, the court signed a permanency order approving the Division's plan of termination of defendant's parental rights to Trey, Todd, and Sarah, followed by adoption by Evelyn (Trey and Todd) and Suely (Sarah). On March 3, 2011, the Division filed an order to show cause and complaint for guardianship in accordance with N.J.S.A. 30:4C-15, seeking termination of defendant's parental rights to Trey, Todd, and Sarah.

On August 4, 2011, Eric Kirschner, a licensed psychologist who had earlier evaluated defendant (May 20, 2008), performed an updated psychological evaluation and bonding evaluation. He found that defendant, who was still in residential treatment,

had chronically used PCP as a coping mechanism to self-medicate negative affect. She has not demonstrated the ability to remain drug-free for a sustained period of time while living independently with her children. Confidence in her ability to remain drug-free without sustained support is tenuous at best. [Defendant] has been drug-free for the past 6 months, all of which has occurred while in the restricted environment of residential treatment. Given her history of relapse despite residential treatment, [defendant's] prognosis to maintain her current abstinence from PCP is guarded at this time.

As to her parenting ability, Dr. Kirschner found defendant "lacked a general understanding of normal growth and development . . . lacked nurturing skills with a deficit in her ability to recognize a child's emotional state, " and tended to "be rigid in her approach to parenting with an emphasis on obedience." He concluded that "the available data" did not support placement of the children in her "independent care" at that time.

With regard to the bonding evaluation, Dr. Kirschner found that Trey, who was then approximately ten years old, had an "insecure-avoidant attachment relationship" with defendant. He found that although Todd, who was then approximately four years old, "appeared to be comfortable" in defendant's presence, "the behavioral observation did not suggest that he related to her in a manner consistent with a parent-child bond or attachment relationship." And, Sarah, who was approximately one year old, "had not developed the cognitive and emotional maturity necessary to internalize a mental representation of an attachment figure." He concluded that Trey, Todd, and Sarah would not be expected to suffer serious and enduring psychological harm if they were separated from defendant.

In June, July, and August 2011, Denise M. Williams Johnson, a licensed psychologist who testified at trial on behalf of the guardian ad litem, performed psychological and comparative bonding evaluations. In her report of September 3, 2011, Dr. Johnson found that defendant "presented as a very withdrawn individual, with flat, constricted affect, " suggesting "either depression, anxiety, or an attempt to control her anger and frustration." Defendant minimized the impact her repeated drug relapses had had on her children. Personality screening tests suggested that defendant was "a generally impulsive, angry, self-indulgent" person who engaged in "self-serving behavior." Johnson opined that defendant "remains in the middle, rather than the end stages of treatment."

With regard to the comparative bonding evaluations, Dr. Johnson found that defendant's relationship with her children was "generally poor to fair." Dr. Johnson found that Trey's bond with Evelyn was "conflicted, " but still "superior to the bond he demonstrated toward [defendant]." Additionally, Trey stated that he "did not know" his preference regarding adoption, which was "significant as most children report a desire to return to [their] birth mother, no matter the circumstances." Todd and Sarah demonstrated a "positive bond" with their respective caregivers that was "superior" to their bond with defendant.

Dr. Johnson concluded that "[t]he collective data does not suggest it would be in the children's best interest to be returned to [defendant] at present, " in light of the uncertainty surrounding whether defendant could remain sober, and the children's need for stability, which they had achieved with their caregivers. She recommended that each child be adopted by their current caregivers and concluded that termination of parental rights would not do more harm than good. She found that Todd and Sarah would suffer "minimal to no upset" from separation from defendant, which could be mitigated by their caregivers. Separation from defendant might have some short-term negative effects on Trey, but those effects could be mitigated by Evelyn, who had been "the most stabilizing influence in his life."

In October 2011, Dr. Kirschner conducted a bonding evaluation of Sarah and Suely. He found that Sarah "related to her foster mother in a manner consistent with a parent-child bond and that the foundation for a secure attachment relationship has developed." Sarah's bond with Suely was stronger than her bond with defendant, and Sarah "would be expected to experience psychological harm" if removed from Suely's care. However, given Sarah's age, harm was "not likely to be severe and enduring." Nonetheless in light of the results of defendant's psychological evaluation, Dr. Kirschner found it was in Sarah's best interest to become legally free for adoption by Suely "so as to attain permanency."

In November 2011, Dr. Kirschner conducted a bonding evaluation of Trey and Todd with Evelyn. He found that Trey "appeared to be rather conflicted over his feelings toward" both defendant and Evelyn. Trey had, however, benefitted from his placement with Evelyn and had a bond with her, although his ability to attach had "likely been negatively impacted by his relationship with his mother." Conversely, Todd referred to Evelyn as "mommy, which suggested that he came to perceive her as his psychological parent." Further, he found that the presence of a bond between Evelyn and both boys "would likely serve to mitigate any psychological harm they might experience if [defendant's] parental rights were to be terminated."

Dr. Kirschner opined that the boys would suffer short and long-term psychological harm if their relationship with Evelyn was severed, and set forth that he could "not emphasize enough" his "concern about the impact on each child's psychological functioning if they were to have another failed placement with their mother." He concluded that it was in the boys' best interests to allow them to be free for adoption by Evelyn, who was able to offer them "consistency and stability, as well as the opportunity to attain permanence."

In March 2012, Dr. Johnson conducted updated psychological and bonding evaluations, following defendant's successful completion of the Straight and Narrow program on February 15, 2012.[6]

Defendant reported a commitment to remain drug-free and recognized that she was an addict. Dr. Johnson concluded that defendant had made significant progress since her last evaluation in August 2011, "most notably her: ability to accept responsibility for her current circumstances; improved insight; improved general emotional state/relatedness; improved level of interaction with the children; [and] current effort to improve her relationship with [Evelyn]." The children also demonstrated many improvements, particularly in light of their history. Further, she found that "the children's stability and superior bond with their respective caretakers will be sufficient to mitigate any distress" arising from their separation from defendant. Trey's behavior both at home and at school had improved. Dr. Johnson concluded that Todd and Sarah appeared to have an improved "positive bond" with defendant, and that although Trey continued to have a "conflicted or ambivalent bond" with defendant, his bond had also improved since the last evaluation.

However, Dr. Johnson found that although defendant had made commendable progress, she still had no housing, income, or specific plan to care for the children. Moreover, defendant remained in a sheltered environment and thus her ability to independently remain sober for any length of time had not been tested. Dr. Johnson determined that defendant would need to remain sober outside the confines of a structured residential program for a minimum of two-and-a-half years (the time she remained sober before her last relapse) before the children could be placed in her care.

Dr. Johnson recommended that the children be adopted by their respective caregivers, noting that the caregivers had indicated they would allow defendant "to have some type of ongoing relationship with the children provided [defendant] conducts herself in an appropriate manner." She explained that the children had developed a stronger bond with their caregivers, and that permanency was in their best interests, particularly in light of their history. Further, she found that "the children's stability and superior bond with their respective caretakers will be sufficient to mitigate any distress" arising from their separation from defendant.

Dr. Johnson, who testified on the Law Guardian's behalf, essentially reiterated this opinion at the guardianship trial in April 2012. She recommended that defendant's parental rights be terminated, and that the children be adopted by their respective caregivers "where they can be stable and have a permanent home." She explained that it was "very damaging for children to keep moving back and forth, " and that she did not have a great deal of confidence, given defendant's history, in defendant's ability to remain sober.

Dr. Kirschner also testified in accordance with his earlier findings. While commending defendant for successfully completing the drug treatment program, Dr. Kirschner opined that she would not be able to demonstrate a sustained full remission from substance abuse until she had been in a non-structured setting for at least twelve months. He explained that defendant's sobriety, or "clean time" had only occurred in a structured setting, and the true test would be whether she could maintain that sobriety while living independently. Defendant was not scheduled to be released from the halfway house until August 2012, and thus, at the earliest, she would not be available for reunification with the children until August 2013. He opined that placement prior to that time would risk both a relapse by defendant and the children's safety. Further, leaving the children with their caregivers to whom they had bonded, until August 2013, would make reunification with defendant even more challenging and less likely to succeed. And, in addition to her history of addiction, defendant also lacked empathy and had a narcissistic and antisocial personality disorder, which would affect her ability to adequately parent and to mitigate the negative effects of removal.

Dr. Kirschner also testified to the results of his bonding evaluation. He found that given Sarah's young age, "there was at least the elements of what would be a foundation for a bond to develop over the course of time." He concluded that Trey had an insecure bond with defendant, Todd had no bond with her, and Sarah had a potential for a bond with her.

Conversely, Dr. Kirschner found that Todd had developed a secure bond to Evelyn, whom he viewed as his "psychological parent" and "primary caretaker, " and he would definitely suffer severe and enduring harm if separated from her. And, although Trey's bond with Evelyn was not as strong, Kirschner found that Trey too would "experience harm" if separated from Evelyn, and would not experience severe and enduring harm if separated from defendant. Finally, he observed that Sarah and Suely had developed a close and affectionate attachment, and found that if separated, Sarah would "certainly experience harm." He also found that defendant would be unable to mitigate the various degrees of harm that the children would suffer if separated from their caregivers.

Dr. Kirschner stressed that the children, who had "to endure a lot, " needed permanency. He recommended termination of defendant's parental rights followed by adoption, and saw no reason to delay the process to see whether defendant could maintain sobriety. He explained that the second removal of the children in July 2010 had a "tremendous impact" upon their ability "to open up emotionally, " and to attach and trust someone. If the children were returned to defendant, and then removed for a third time, it would have a negative effect on their well-being.

Defendant did not testify at trial, nor did she offer any witnesses or expert psychological testimony.

At the close of evidence, the judge issued a comprehensive oral and written decision finding that the Division had proven by clear and convincing evidence each of the four elements of N.J.S.A. 30:4C-15.1(a) and terminated defendant's parental rights to Trey, Todd, and Sarah.

On appeal, defendant raises the following issues:

I. THE DIVISION HAS FAILED TO PROVE THE FOUR PRONGS OF THE BEST INTERESTS TEST BECAUSE [DEFENDANT] HAS OVERCOME HER SUBSTANCE USE AND THE DIVISION PROVIDED HER WITH SEVERELY LACKING VISITATION WHICH HARMED HER CHANCES OF REUNIFICATION.
A. [DEFENDANT] IS NOT CHALLENGING THE FIRST PRONG OF THE BEST INTERESTS TEST.
B. THE DIVISION HAS FAILED TO PROVE THE SECOND PRONG OF THE BEST INTERESTS TEST BECAUSE [DEFENDANT] HAS MAINTAINED HER ABSTINENCE AND OVERCOME HER FORMER SUBSTANCE USE.
C. THE DIVISION FAILED TO PROVIDE [DEFENDANT] WITH REASONABLE SERVICES BECAUSE SHE RECEIVED INADEQUATE VISITATION WHICH SIGNIFICANTLY IMPACTED HER CHANCES OF REUNIFICATION.
D. [THE DIVISION] FAILED TO SATISFY THE FOURTH PRONG OF THE BEST INTERESTS TEST BECAUSE [DEFENDANT] WAS READY TO SAFELY PARENT AND SHE MAINTAINED THE STRONGEST BOND POSSIBLE WITH HER CHILDREN DESPITE A SEVERE LACK OF VISITATION.

We have reviewed the record in light of these contentions and the applicable law. When the evidence is tested against the relevant statutory criteria, N.J.S.A. 30:4C-15.1, we are satisfied that the credible proofs were more than sufficient to support a judgment of termination. Judge Wigler's detailed findings, orally stated on the record on May 4, 2012 and set forth in a comprehensive, well-reasoned 37-page written decision, were well-grounded in the evidence, and we see no basis for disturbing them. Moreover, Judge Wigler properly applied those facts to the law and addressed each of the four prongs of the termination criteria developed by New Jersey Division of Youth and Family Services v. A.W., 103 N.J .591 (1986) and thereafter mandated by NJSA 30:4C-151 See also In re Guardianship of KHO 161 N.J. 337 (1999); In re Guardianship of DMH 161 N.J. 365 (1999) We therefore affirm the judgment of termination and guardianship substantially for the reasons stated by Judge Wigler in his oral opinion of May 4 2012 and in his written decision of that same date See also R 2:11-3(e)(1)(A) and (E) Affirmed


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