October 8, 2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent,
S.L., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF J.S.-J., a minor.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 16, 2013
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FG-02-77-12.
Joseph E. Krakora, Public Defender, attorney for appellant (Beryl Foster-Andres, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel and on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor J.S.-J. (Noel C. Devlin, Assistant Deputy Public Defender, on the brief).
Before Judges Parrillo and Harris.
Defendant S.L. appeals from the judgment of the Family Part terminating her parental rights to her two-year old son, J.S.-J.We affirm.
The Division of Youth and Family Services first became involved with the family on December 15, 2010, when thirty-two year old S.L. gave birth prematurely to J.S.-J., weighing only three pounds and four ounces, both testing positive for amphetamines. J.S.-J. remained in the hospital for a little over two weeks experiencing gastrointestinal issues and having trouble feeding.
The Division conducted an emergency removal of J.S.-J. after he was medically cleared to leave the hospital and he has since lived with the same foster parents, who have expressed a commitment to providing long-term permanent care for J.S.-J. The child's medical and developmental problems have continued to date. At the time of the guardianship trial, he was receiving early intervention services twice a week with a developmental specialist. He also was seeing a cardiologist for a minor heart murmur and a gastroenterologist because of the GI bleed he suffered when he was born. In addition, J.S.-J. was seeing an allergist because of a potential allergy to milk, and a nutritionist because of his struggles with eating and weight management. J.S.-J. also has a speech delay for which he was seeing a developmental specialist twice a week.
Not only did S.L. admit to taking drugs during her pregnancy, but despite the Division's efforts, she continued testing positive for amphetamines and, in fact, admitted taking drugs almost until the day of the guardianship trial, from which she absented herself.
Based on a January 5, 2011 substance abuse evaluation, the Division recommended intensive outpatient treatment and made S.L.'s participation a condition to her placement in the "Mommy and Me" substance abuse program. S.L., however, never complied. Three months later, the Family Part ordered S.L. to complete a thirty-day inpatient drug treatment program. On that same day, S.L. stipulated that her "drug use created a substantial risk that [she was] unable to provide necessary care of newborn child." Although she enrolled in the inpatient drug treatment program in May 2011, she left after four days. In December 2011, S.L. entered another inpatient program independently in New York, but the treatment again was unsuccessful. S.L. has not attended any other treatment programs during the course of the litigation.
S.L. has also failed to attend appointments for psychiatric and psychological evaluations arranged by the Division throughout 2011 and 2012. She explained her non-appearance on one such occasion by stating that she was "crashing" the day before while visiting J.S.-J. at the office. Supervised visitation with J.S.-J. was random on her part at first, then more regularly scheduled. When she requested more visitation time, S.L. was informed that she first needed to be compliant with the services arranged by the Division. After a visit on November 9, 2011, a Division worker met with S.L. and noticed that she did not look well and was about to fall asleep on the floor. S.L. stated that she was "coming off her high" from a couple of days before, and that when she falls asleep, she sleeps for days.
Since J.S.-J.'s birth, S.L. has also lacked stable, suitable housing. In fact, days after J.S.-J.'s birth, on December 16, 2010, S.L. informed the Division that after the infant's hospital discharge, she and J.S.-J. would be living with her mother, M.S., who adamantly denied that was an option. Additionally, as of November 17, 2011, when the trial court held a compliance review and permanency hearing, S.J.'s whereabouts were unknown. By February 1, 2012, the return date on the Division's order to show cause, S.L. still did not have a permanent address. At a March 7, 2012 case management conference, S.L. was again missing. And, as noted, S.L. absented herself from the guardianship trial despite being orally notified of the commencement date.
At the guardianship trial, no witnesses appeared on behalf of S.L. The Division's caseworker, Maria DeVargas, testified to, among other things, the agency's diligent, but unsuccessful, efforts to find a suitable placement for J.S.-J. among his relatives. DeVargas also stated that S.L. never told her that she was ready, willing and able to care for J.S.-J., and when the caseworker inquired in September 2012 about her willingness to take custody of J.S.-J., S.L. stated that she didn't know what her plan was – whether she was going to surrender her parental rights, or resist the Division's move to terminate them. S.L. also admitted to DeVargas that she was still using drugs on September 20, 2012, only twelve days before trial.
In contrast, DeVargas testified that J.S.-J. is "very comfortable" in his foster home and, in fact, on two occasions started screaming when she took him away from the foster mother for a visit with S.L. According to DeVargas, J.S.-J.'s needs are being met and the foster parents have followed through with all of J.S.-J.'s doctor appointments and other recommendations for services.
Based upon the documentary record and the testimony produced during trial, the Family Part judge concluded that all four factors of the best interests test, see N.J.S.A. 30:4C-15.1(a), were satisfied by clear and convincing evidence. As to the first prong, the court found that S.L.
chose Crystal Meth and Amphetamines over her son. All of the Division efforts aimed at rehabilitation and to help the mother parent the child were rebuffed by her. She has never taken any steps to nurture the child and provide for his well-being. She has not come to court to state what her plan would be for the child, or even to express what her desires are for the future of the child. She has deliberately avoided evaluations by the doctors and various therapy treatments for her addiction. It is plainly seen that she has no interest in becoming a parent and providing a loving relationship with her son. Under the circumstances that presently exist in her life, the child would be in grave danger if she were able to receive custody.
With respect to the second prong, the court found that the "evidence could not be more clear and convincing that the mother and father had been unwilling to eliminate any harm to the child." The court noted that S.L.
has never shown any ability or desire to parent the child. She has no permanent residence, indicating that she lives occasionally with friends, sometimes with her mother or perhaps out of state. She has no employment and has never indicated having stable employment. Neither of the parents appeared at trial and neither has voiced a plan for parenting or even a desire to assume such a role. On the other hand, shortly after birth the child has been placed in [the] custody of a safe and stable home with a loving family environment. The caretakers want to adopt the child. It is unimaginable to think of removing this child from foster care where he is thriving, and placing him in the custody of two parents who are drug users, unemployed, and without any stable home.
Concerning the third prong, the court found:
The Division has taken more than ample steps toward unification of the parents with their child. They have assisted [S.L.] with the following services: psychological services, referral to programs, bus passes, and visitation. Also, the following programs were offered[:] domestic violence referral, substance abuse evaluations, substance abuse treatment and random drug screens. . . .
The record is clear that the Division has taken reasonable efforts to provide the parents with services necessary to meet the requirements of the third prong. The fact that there has been a failure of unification is not dispositive of whether the statutory burden has been met. The Division has taken substantial and successful measures to place the child in a safe, secure and loving home . . . .
There are no alternatives to terminations of parental rights. Kinship Legal Guardianship is only appropriate when adoption is not feasible and/or likely . . . . Nothing in this case negates or suggests that unification is appropriate, especially in light of the fact that the defendants are not now or will be in the future fit to parent the child.
Lastly, regarding the fourth prong, the court concluded:
It should first be noted that neither the father nor the mother ever parented their son throughout his life. . . . There has been no rebuttal to the fact that the father has spent most of the child's life using illegal drugs. The same can be said for the mother. Neither has taken any steps to rehabilitate themselves even though the Division has made numerous offers. It is undoubtedly a fact that both parents would benefit from therapy programs, which have been offered, but have never been utilized. The record is devoid of any showing of a bond or attachment between the child and the parents. No evidence of a positive relationship exists between either parent and child. The child has never been in the care or custody of either of the parents. They have never portrayed a caring and loving relationship or a desire to parent the child. On the other hand, there is no question that a child needs permanency and this child needs it now. The child has never experienced a definitive parent-child relationship with his biological parents. Nor is there any indication that such a relationship will ever exist. The child is thriving in the care of the foster parents . . . .
It certainly is apparent that the parents are not ready to provide a safe and nurturing home for their son. Nor have they shown any ability or motivation to do so. There is no reason to delay permanency for the child when the parents have not come forward to rehabilitate themselves or express a willingness and ability to act as a parent. How long does one have to wait for the child to obtain permanency[?] Certainly in this case the period has expired.
Accordingly, the court entered an order terminating S.L.'s and S.J.'s parental rights to J.S.-J.
This appeal follows, in which S.L. does not challenge the court's findings on prongs one and two, and instead argues:
I. [THE DIVISION] FAILED TO PROVE THE THIRD AND FOURTH PRONGS OF THE BEST INTERESTS TEST
A. [S.L.] DID NOT RECEIVE REASONABLE SERVICES BECAUSE [THE DIVISION] FAILED TO HELP HER SECURE HOUSING, OFFER HER PROPER VISITATION, OR REFER HER TO A MOMMY AND ME PROGRAM
B. [THE DIVISION] FAILED TO PROVE THE FOURTH PRONG BECAUSE THE COURT ERRED IN NOT PERFORMING THE COMPARATIVE BONDING ANALYSIS REQUIRED BY THE BEST INTERESTS TEST
We are satisfied that the record fully supports the decision to termination S.L.'s parental rights. The Family Part applied the correct legal standards to its factual conclusions. After a review of the record, we discern no basis for disturbing the court's determinations. Accordingly, we affirm substantially for the reasons set forth in Judge John A. Conte's thorough and thoughtful written opinion of October 24, 2012. We add only the following comments.
As to the third prong, the Division's efforts must "focus on reunification of the parent with the child and assistance to the parent to correct and overcome those circumstances that necessitated the placement of the child into foster care." In re Guardianship of K.H.O., 161 N.J. 337, 354 (1999). Here, the Division's efforts to help S.L. reunite with J.S.-J. were reasonable. The Division offered her a plethora of services, including psychological, psychiatric, and substance abuse evaluations, referrals to substance abuse treatment programs, domestic violence counseling, bus passes, and visitation. The Division, however, made clear to S.L. that, first and foremost, she needed to make substantial progress in substance abuse treatment before referral to additional services such as the "Mommy and Me" program or before increased visitation was granted. Thus, any perceived shortfall in agency services was the result of S.L.'s own inability or unwillingness to cooperate and demonstrate a commitment to drug rehabilitation. Similarly, with respect to housing, S.L. apparently misinformed the Division early on as to the viability of one option, and thereafter provided no means of locating her for periods of time. The record does not reflect that S.L. even requested housing assistance from the agency and, in fact, she repeatedly expressed her uncertainty over whether she ever desired to maintain her parental rights.
Under the fourth prong, the Division must prove that "[t]ermination of parental rights will not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4). This prong "serves as a fail-safe against termination even where the remaining standards have been met." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 609 (2007). It is not necessary to show that "no harm will befall the child as a result of the severing of biological ties." K.H.O., supra, 161 N.J. at 355. The question is whether "the child will suffer a greater harm from the termination of ties with her natural parents than from the permanent disruption of her relationship with her foster parents." Ibid. The child's need for permanency is an important consideration. Id. at 357-59. "Children must not languish indefinitely in foster care while a birth parent attempts to correct the conditions that resulted in an out-of-home placement." N.J. Div. of Youth & Family Servs. v. S.F., 392 N.J.Super. 201, 209 (App. Div.), certif. denied, 192 N.J. 293 (2007).
S.L. faults the Division for failing to perform a comparative bonding analysis, evaluating J.S.-J.'s relationship with both his biological and foster parents. While such a comparison is highly important in "assessing the existence, nature and extent of the harm facing the child[, ]" In re Guardianship of J.C., 129 N.J. 1, 17-19 (1992); see also K.H.O., supra, 161 N.J. at 363, the omission of such an evaluation in this case in no way affects the soundness of the result reached, as there is ample credible evidence that termination of S.L.'s parental rights would not do more harm than good. S.L.'s unfitness as a parent due to her habitual drug use and lack of stability caused the removal of J.S.-J. from S.L.'s custody at birth, and J.S.-J. has never lived with S.L. since. It is doubtful, therefore, that a bonding evaluation between them is necessary. In any event, S.L. repeatedly failed to attend scheduled psychological and psychiatric evaluations, so there is no reason to believe a better compliance result with other court-ordered assessments.
In contrast, the record reflects that J.S.-J. is safe and has been doing well in his foster home, where he has resided virtually since birth and, in fact, would become upset when removed from this environment for visits with S.L. Considering the harm the child has already endured from S.L.'s unfitness, which shows no signs of abating in the foreseeable future, and his need for permanency, which is paramount, the decision to terminate S.L.'s parental rights to J.S.-J. was soundly and properly rendered.