July 15, 2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES,  Plaintiff-Respondent,
C.B., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF T.H., A Minor.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 22, 2013.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-174-11.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven J. Kossup, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Glenn T. Graham, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Jeffrey R. Jablonski, Designated Counsel, on the brief).
Before Judges Simonelli and Accurso.
Defendant C.B. appeals from a June 14, 2012 final judgment terminating her parental rights to her child, Tracy. Tracy's father's parental rights were also terminated in the same guardianship proceeding. He has not appealed the judgment, however, and we confine our discussion to C.B. C.B. contends that the Division of Youth and Family Services (DYFS) failed to prove that Tracy's safety, health, or development has been endangered by her parental relationship or that the Division made reasonable efforts to provide services to help C.B. correct the circumstances which led to Tracy's placement. She claims that the court should have ordered kinship legal guardianship (KLG) instead of terminating her parental rights. The Law Guardian supported termination. We reject C.B.'s arguments and affirm essentially for the reasons expressed by Judge Mark J. Nelson in his thorough and thoughtful written opinion of June 14, 2012.
C.B. came to the attention of the Division in June 2008, when Tracy was two years old. Hudson County Social Services reported that C.B. had tested positive for PCP in connection with her application for welfare assistance. C.B. admitted to using PCP, but claimed she had not done so for several months. The Division also learned that Tracy suffered from sickle cell anemia and was receiving treatment at Newark Beth Israel Hospital. The Division developed an in-home case plan and was continuously involved with the family after that date.
Tracy was removed from C.B.'s care in March 2010 when C.B. tested positive for PCP. The court ordered supervised visitation for C.B. and ordered her to submit to random urine screening and undergo a substance abuse evaluation. C.B. tested positive for PCP in her first random screen and continued to test positive for PCP throughout the course of the litigation. Tracy remained in the Division's custody through trial.
On September 1, 2010, C.B. was accepted into the Medical and Social Services for the Homeless (MASSH) substance abusers outpatient program. Although it was a six-month program, C.B. was terminated from the program after thirty days for excessive absences. C.B. had also tested positive for PCP all five times she was tested during her enrollment. The judge ordered C.B. to submit to a psychiatric evaluation, a substance abuse assessment, and comply with individual counseling and parenting skills training. C.B. failed to appear for her substance abuse assessment but submitted to a psychiatric evaluation with Dr. Samiris Sostre on May 20, 2011.
Dr. Sostre reported that C.B. "had difficulty throughout the interview maintaining a coherent line of events." The doctor also noted that C.B. denied PCP use despite many positive drug screens. Dr. Sostre characterized C.B.'s mental state as paranoid based on C.B. having advised the doctor that C.B.'s ex-boyfriend's family wanted to kill her, that she was unsafe, and needed to "call the mayor and the President of the United States." The doctor diagnosed C.B. as suffering from a psychotic disorder. She recommended that C.B. attend a MICA (mentally ill/chemical abuse) program where her mental health needs and substance abuse problem could be addressed simultaneously. The doctor also advised that C.B. start anti-psychotic medication and be followed regularly by a psychiatrist.
In the months following, the Division referred C.B. to a MICA program which she refused to attend. C.B. also failed to appear for several substance abuse assessments and tested positive for PCP on the two occasions she submitted to a drug test.
C.B. underwent a second psychological assessment and bonding evaluation with Dr. Karen D. Wells on December 13, 2011. C.B. denied any drug use to Dr. Wells, although reporting that she had been arrested for selling drugs. C.B. also advised Dr. Wells that she knows "things are going to happen before they happen." Dr. Wells diagnosed C.B. as suffering from a delusional disorder, mixed type, grandiose and persecutory in nature. In her opinion, C.B.'s impairment in reality testing, inaccurate perceptions of others, faulty judgment, and her tendency to withdraw would greatly hinder her ability to parent Tracy. Dr. Wells concluded that C.B. "does not possess the psychological and emotional wherewithal to provide even minimally consistent parenting." Although the doctor found that a bond exists between C.B. and Tracy, she was of the opinion that Tracy does not look to C.B. for her day-to-day care or anticipate receiving such care from C.B.
Following Tracy's removal from C.B., she was placed first with C.B.'s mother, and then with C.B.'s sister in December 2010. Dr. Wells also conducted a bonding evaluation between Tracy and her aunt. The doctor reported that Tracy related to her aunt as a primary caregiver, consistent with a relationship of a day-to-day parental figure. Tracy looked to her aunt as a psychological parent, from whom she receives attention, direction, instruction, and care. Tracy's aunt expressed her commitment to adopt Tracy, and Dr. Wells concluded that separating Tracy from her aunt would cause irreparable and enduring harm.
Judge Nelson presided over two days of trial in this matter. Dr. Sostre testified consistent with her report. In discussing the nature of C.B.'s psychosis, Dr. Sostre opined that C.B.'s symptoms may be the result of an underlying mental illness or a product of her substance abuse. The doctor explained that PCP use can "look  like schizophrenia" and last for several months. Dr. Sostre recommended against reunification because C.B. was still experiencing psychotic symptoms at the time of her evaluation. If C.B.'s psychosis was due to PCP use, the doctor concluded that C.B. would not be able to act as a parent to Tracy until she maintained a degree of long-term sobriety on the order of twelve months.
Dr. Wells also testified consistent with her report. She testified that C.B. exhibited signs of delusions and that the risks in C.B.'s caring for a child would be "unimaginable." Although of the opinion that C.B. and Tracy share a psychological attachment to one another, Dr. Wells opined that Tracy viewed her aunt as her psychological parent because of the "consistent, steady, stable, [and] reliable care" her aunt has provided her both before her placement and continuing through the trial. Dr. Wells concluded that Tracy would suffer "irreparable psychological and emotional harm" were Tracy removed from her care.
Amy Cottrell, C.B.'s caseworker also testified. Ms. Cottrell testified to the many services the Division provided to C.B., including substance abuse referrals and recommendations for specialized drug and mental health treatment, psychological evaluations, transportation, and financial assistance. She described C.B.'s efforts at taking advantage of such services as sporadic at best. C.B. also testified in her own behalf.
In a comprehensive and thoughtful opinion, Judge Nelson noted the appropriate standards governing a guardianship proceeding, the constitutionally protected rights of parents, and the parens patriae responsibilities of the State. He then proceeded to review the four prongs of the best interests standard of N.J.S.A. 30:4C-15.1:
(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.
Judge Nelson found that the Division had carried its burden of clear and convincing proof on all four prongs. The judge found that C.B. had long-standing issues of substance abuse as well as untreated mental health issues "bordering on paranoia and psychotic in nature." He noted that C.B. had tested positive for PCP on at least five separate occasions during the guardianship proceeding. The judge found that the Division had satisfied its burden of proving that these long-standing conditions endangered Tracy's health, safety, and development.
As to the second prong, Judge Nelson noted that the Supreme Court has held that the inquiry "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." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). The judge found that despite numerous referrals for substance abuse evaluations and treatment, C.B. never successfully completed a single program and continued to test positive for PCP throughout the guardianship proceeding.
The judge also noted the testimony that C.B. suffered from a "psychotic type of mental illness with paranoid features." He found Dr. Sostre's opinion that C.B.'s psychotic symptoms represented breaks from reality borne out in C.B.'s trial testimony. He described her testimony as rambling, at points difficult to understand, and "quite alarming." She continued to speak of people whom she believed were out to get her, and expressed her belief that the testifying experts "were related to people who wanted to 'kill and/or beat on her.'"
The judge accepted the opinion of the experts that C.B. would only be able to parent Tracy safely and adequately if her psychiatric symptoms resolved, and that she would need to demonstrate long term sobriety. The judge found that C.B. had certainly not demonstrated long-term sobriety, and found it significant that she testified she had never used PCP, notwithstanding numerous drug screens to the contrary. Based on the testimony, Judge Nelson found that the Division proved clearly and convincingly that C.B. had not cured or overcome the long-standing issues that led to Tracy's placement.
As to the third prong and the Division's efforts to provide services, the judge found that the Division had been working with C.B. since 2008, and had continued to work with her "virtually up until the trial date to make referrals to address her issues." Judge Nelson reviewed C.B.'s unsuccessful enrollment in the MASSH program and her failure to attend the MICA program despite the Division's efforts to encourage her to do so. The judge noted C.B.'s many failures to attend Division arranged substance evaluations and found those failures consistent with C.B.'s insistence that she never used PCP "and in her mind  does not have a substance abuse problem." Judge Nelson also noted that the Division had provided visitation, homemaker services and bus passes for C.B. to attend visitation or obtain services.
The judge also found that the Division had considered alternatives to termination. The Division had early in the proceedings considered returning Tracy to her father, traveling to Georgia to assess his home. The judge considered and ruled out other relatives before placing Tracy with her maternal aunt. The Division rejected KLG because Tracy's aunt wished to adopt her and was unwilling to consider KLG. Judge Nelson found KLG inappropriate because of the demonstrably bad feelings between C.B. and her sister. C.B. testified that "her sister is 'out to get her' and might be involved in criminal activity including plotting against her or killing members of her family or plotting to do so." The judge accepted Dr. Wells's testimony that KLG would be quite difficult in this matter as the siblings were not able to work together towards the same goal.
Judge Nelson found that despite the Division's considerable efforts "[t]here simply are no alternatives to termination of parental rights in this matter." The judge accepted the only expert opinion submitted that C.B. is unable to provide a safe and stable home for Tracy and will be unable to do so for the foreseeable future. He found that "[t]here is absolutely no evidence to the contrary."
Finally, Judge Nelson concluded that the Division had clearly and convincingly demonstrated that termination here would not do more harm than good. The judge found that Dr. Wells testified credibly that Tracy had already formed a secure bond with her aunt and no longer looked to her mother for her day-to-day care. Tracy is thriving in her aunt's care and presumably will continue to do so. While acknowledging the bond Tracy shares with her mother, the judge credited Dr. Wells's testimony that Tracy easily separated from her, and that her aunt will be able to mitigate any psychological or emotional harm Tracy might suffer from the termination of C.B.'s parental rights. The judge accepted Dr. Wells's testimony that Tracy looked to her aunt as her psychological parent, and that Tracy would be harmed were she removed from her. The judge noted Dr. Wells's view that there would be no one to mitigate this harm for Tracy. The judge found Dr. Wells's opinions "uncontroverted, uncontested and also credible."
Our review of a trial court's decision to terminate parental rights is limited. N.J. Div. of Youth and Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012). 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. E.P., 196 N.J. 88, 104 (2008) (quoting N.J. Div. of Youth and Family Servs. v. M.M., 189 N.J. 261, 293 (2007)).
Here, our review of the record convinces us that Judge Nelson's findings are amply supported by the trial testimony. C.B.'s contention that the court should have ordered KLG is unmerited. C.B.'s paranoia is rooted in, or at the very least exacerbated by, her abuse of PCP, a condition she has been unwilling to address or abate Tracy's aunt has proved a loving and caring resource parent who is willing to adopt her niece As adoption here was feasible and likely Judge Nelson was correct to find KLG inappropriate NJ Div of Youth & Family Servs v. PP 180 N.J. 494 509 (2004)
We affirm the termination of parental rights substantially for the reasons expressed by Judge Nelson in his thorough and thoughtful written opinion