                                      RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-4234-18T3

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

          Plaintiff-Respondent,

v.

L.H.,

          Defendant-Appellant,

and

J.L.M.,

     Defendant.
_____________________________

IN THE MATTER OF THE
GUARDIANSHIP OF J.L.M., JR.,

     a Minor.
_____________________________

                   Submitted January 16, 2020 – Decided February 7, 2020

                   Before Judges Alvarez and Suter.
            On appeal from the Superior Court of New Jersey,
            Chancery Division, Family Part, Gloucester County,
            Docket No. FG-08-0017-19.

            Joseph E. Krakora, Public Defender, attorney for
            appellant (Robyn A. Veasey, Deputy Public Defender,
            of counsel; Beth Anne Hahn, Designated Counsel, on
            the briefs).

            Gurbir S. Grewal, Attorney General, attorney for
            respondent (Melissa H. Raksa, Assistant Attorney
            General, of counsel; Erica L. Sharp, Deputy Attorney
            General, on the brief).

            Joseph E. Krakora, Public Defender, Law Guardian,
            attorney for minor (Linda Vele Alexander, Designated
            Counsel, on the brief).

PER CURIAM

      L.H. (Laura)1 appeals the Judgment of Guardianship that terminated her

parental rights under N.J.S.A. 30:4C-15.1(a). She contends the trial court erred

because there was not clear and convincing evidence to support the court's

findings. We reject her arguments and affirm the judgment substantially for the

reasons expressed by Judge Mary K. White in her oral opinion.2



1
  We use initials and pseudonyms to maintain the confidentiality of the parties
and their child. R. 1:38-3(d)(12).
2
  The judgment also terminated the parental rights of defendant J.L.M., who is
the child's father. He has not appealed.


                                                                        A-4234-18T3
                                       2
                                      I.

      Laura is the mother of J.M. (Jack) who was born eight weeks prematurely

in February 2017, testing positive for methadone. 3 The hospital contacted the

Division of Child Protection and Permanency (the Division).                 Laura

acknowledged she had relapsed on heroin and wanted help for her drug

addiction. She had been prescribed pain medication after a 2012 car accident

then turned to heroin. She was staying at a motel or with her mother, with whom

she had a difficult relationship. She had lost her housing through Housing and

Urban Development (HUD) and needed to appeal.

      Laura was not prepared to care for Jack. Her mother would not allow the

Division to assess her home to see if Jack could live there. Jack's father, J.L.M.,

had a history of domestic violence against Laura and drug use. The Division

was awarded custody. Jack has been living with the same non-relative resource

family since then, who have expressed a desire to adopt.

      Dr. Roger T. Barr conducted a psychological evaluation of Laura. He

diagnosed she was suffering from "[m]ajor [d]epression, [g]eneralized [a]nxiety

[d]isorder, and [s]ubstance [a]buse."          He recommended individual and



3
  Laura has two older children who are in the care of their paternal grandmother
in Georgia.
                                                                           A-4234-18T3
                                           3
relationship therapy, as well as a psychiatric evaluation to assess her need for

medication. She was to continue participation in her substance abuse program.

        Laura failed to attend over half of the Division-arranged individual

counselling sessions and was discharged due to non-compliance.4                She

participated in an in-home parenting program, "It Takes a Family," where she

was advised to maintain visitation with Jack to not harm "their attachment and

bonding." Her substance abuse evaluation found she had a severe opiate use

disorder in remission. Laura attended outpatient treatment sporadically and did

not complete the program. She also denied any mental health issues.

        Laura admitted to unsupervised visitation with Jack during times when

J.L.M. exercised his parenting time. She claimed J.L.M. was abusing drugs.

She wanted to be there to protect the child. In July 2018, Laura obtained a

restraining order against J.L.M. because he "assaulted her and pulled a gun on

her" while he was under the influence of heroin. After this, she relapsed and

again began to use heroin.

        Laura was hospitalized multiple times after that. She tested positive for

cocaine and opiates. She reported suicidal thoughts, auditory hallucinations and

depression, and was admitted for inpatient psychiatric treatment. On her release,


4
    She has had three referrals for individual counseling she has not attended.
                                                                           A-4234-18T3
                                         4
she went to a different hospital and was discharged after a day. Laura was then

involuntarily committed briefly, diagnosed with bipolar disorder and

depression. She was prescribed medication, which was a "more significant and

comprehensive medication regimen." In November 2018, Laura was found to

be "acutely psychotic with hallucinations, delusions[,]" and diagnosed as

suffering from schizoaffective disorder, bipolar type. The Division filed a

complaint to terminate parental rights in October 2018.

       In January 2019, Laura began an outpatient MICA5 program, Fresh Start,

to address her mental health and drug addiction issues. The program provided

group therapy, medication counseling and monitoring, and symptoms

management. She did not attend five days a week as recommended, but her drug

tests were negative.

       Laura maintained visitation with Jack in the early months following his

placement with the resource family. She also had therapeutic visitation. In

September 2017, Laura's visits were increased in length and were permitted in

her home, however, she yelled at the workers, who had safety concerns about

her care. Visitation was therefore returned to the Division's offices. Laura's

participation became more intermittent. She occasionally failed to appear, was


5
    MICA is an acronym for the mentally ill, chemically addicted program.
                                                                       A-4234-18T3
                                       5
late, left early, or failed to confirm visitation. By January 2019, when she was

in the Fresh Start program, Laura visited with Jack once a week.

      Dr. Melanie A. Freedman, a clinical and forensic psychologist, testified

for the Division at the guardianship trial about Laura's history of drug use and

mental health problems. She diagnosed Laura with "[o]pioid [u]se [d]isorder,

severe, in early remission," although she was not certain Laura actually had

abstained from using drugs. She also had a "[m]ajor [d]epressive [d]isorder,

recurrent . . . in partial remission" with the risk of future episodes, a generalized

anxiety disorder and a schizoaffective disorder. Dr. Freedman could not confirm

whether Laura was bipolar.

      Dr. Freedman testified Laura was not fully compliant with substance

abuse treatment; she started to use cocaine after treatment for heroin. Laura was

"not in full compliance" with her current programs.

      Laura's mental health was another area of parenting-related risks. Dr.

Freedman testified Laura would require a longer term stay at a dual diagnosis

program for a better assessment to "pinpoint" what was "going on with her

emotionally." Dr. Freedman noted Laura was not taking seriously the effect of

domestic violence "and engaging in treatment for that specific purpose." Laura's

housing situation was not stable; she had no employment. Laura acknowledged


                                                                             A-4234-18T3
                                         6
she needed more time to get things in order; she was not suggesting the child be

returned to her immediately.

      Dr. Freedman testified that Laura could not provide a minimum level of

safe parenting for the child and could not provide this in the foreseeable future.

Her prognosis for change was "poor to extremely guarded."

      Dr. Freedman's bonding evaluation concluded Jack was strongly attached

to the resource family and identified them as his mother and father. He likely

would regress and be at risk of long-term emotional harm and a host of other

effects were he removed. Laura was a "friendly stranger." She did not think

Laura could address the harms to Jack caused by separation from his resource

parents. Dr. Freedman supported the plan for Jack to be adopted by the resource

family.

      Susan Flanagan, an addictions counselor at Fresh Start, testified the

program had a mental health and an addictions component. All of Laura's drug

screens were negative at the facility.      Flanagan testified Laura was "very

compliant" with their program. Laura attended the program three days per week,

although the Division wanted her to attend five days. Laura was not receiving

trauma focused therapy at this program. However, Laura understood "the link

between addiction and mental health." Flanagan testified that the caseworker


                                                                          A-4234-18T3
                                        7
told her to prepare Laura for adoption of the child because the case "was not

going backwards."

      Laura testified she was drug free as of October 5, 2018. Her plan was to

move to Georgia with Jack, live with her other daughters and start a new life.

The trial court ordered a hair follicle test. It was positive for cocaine, showing

Laura had used cocaine within ninety days of the trial.

      The trial court entered a Judgment of Guardianship on May 14, 2019,

terminating Laura and J.L.M's parental rights to Jack. In Judge White's oral

opinion, she found the Division had proven each part of the four-prong test under

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

      With respect to the first prong—harm to the child—Laura was

"functionally homeless even though she was with her mom" at the time Jack was

placed with the Division. Jack's maternal grandmother would not allow her

home to be assessed by the Division and her husband, Laura's stepfather,

allegedly had been the perpetrator of domestic violence against her mother and

had substance abuse issues.

      Laura was living with her mother during the trial. She did not have a job.

She told the caseworker she needed more time. Family members were assessed

but ruled out to care for Jack. The court found Laura did not have a "safe or


                                                                          A-4234-18T3
                                        8
stable home." Her only plan was to move to Georgia with Jack and reunite with

her older children, who were in the care of their paternal grandmother. The

court-ordered hair follicle test was positive for cocaine, indicating Laura had

used cocaine within the last ninety days. The court noted Laura "really just

started meaningful treatment for a . . . recently diagnosed bi-polar disorder."

Under the second prong, the court found that there was nothing that made it

impossible for Laura to participate in the services offered by the Division in the

first year of the child's placement. Laura denied having mental health or drug

abuse issues. The court found any further delay in permanency for Jack "will

simply add to the child's harm" particularly when it is not clear when Laura

"would be ready to parent and where she would have [a] safe home and with

who[m]."

      The trial court found the Division made "many, many efforts . . . with

mom who was angry at the Division . . . ." The court could not find that she

would not "have another slip before she really understands . . . [s]he's dealing

with bi-polar disorder complicated by serious drug addictions because she's

recently used cocaine" and expressed she did not have the mental health issues

with which she was diagnosed. This was even though Laura had begun to "turn

around" the first month the trial began. The court found the Division made


                                                                          A-4234-18T3
                                        9
reasonable efforts even though it had not referred Laura to supplemental random

screening. The court found Laura was not able to eliminate the harms facing the

child.

         The trial court rejected the argument the Division should not have

scheduled a bonding evaluation until there were additional visits between Laura

and Jack. The child had been in placement for nearly two years; Laura had

missed many opportunities for visitation. The court found the Division "worked

vigorously" to increase visitation opportunities for Laura. The "Division's post

hospitalization ability to only re[-]establish visits at one hour a week before the

bonding evaluation" was not in violation of its obligation to make reasonable

efforts.

         The court could not find that "termination of parental rights will not do

more harm than good" because Jack had been out of Laura's care his entire life.

The court found Dr. Freedman's testimony to be "persuasive," that Jack would

suffer harm if separated from his resource parents. He would not be able to

"trust adult connections" in the long term, and in the short term, would "suffer

developmental setbacks."         The court found "credible and logical" Dr.

Freedman's testimony that Laura would not be able to mitigate these harms for

the child. The court also found the caseworker to be credible. As for the


                                                                           A-4234-18T3
                                        10
addictions counselor at Fresh Start, she was "[v]ery much a patient advocate"

and although she did not "willfully misle[a]d the [c]ourt[,]" she was "not

accurate" in simply assuming the court already had determined to terminate

Laura's rights. The court found Laura was not "credible" or "accurate" in her

claim the Division did not make reasonable efforts toward reunification.

      On appeal, defendant contends the court erred by concluding the child's

health and development has been or will continue to be endangered by his

relationship with her. She disputes she is unable or unwilling to eliminate harms

to the child. She contends she demonstrated her willingness to eliminate the

harms, that her substance abuse disorder was in remission, and she was

committed to addressing her mental health issues. Laura asserts the Division

did not prove she was unable to provide safe and stable housing or that delay

would cause harm to the child.        She contends the Division did not make

reasonable efforts to provide services for her. She argues termination of her

rights would do more harm than good for Jack.

                                      II.

      N.J.S.A. 30:4C-15.1(a) authorizes the Division to petition for the

termination of parental rights in the "best interests of the child" if the following

standards are met:


                                                                            A-4234-18T3
                                        11
            (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-15.1(a)(1) to (4).]

      A trial court's decision to terminate parental rights is subject to limited

appellate review. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605

(2007); see Cesare v. Cesare, 154 N.J. 394, 413 (1998) ("Because of the family

courts' special . . . expertise in family matters, appellate courts should accord

deference to family court factfinding."). The Family Part's decision to terminate

parental rights will not be disturbed "when there is substantial credible evidence

in the record to support the court's findings." N.J. Div. of Youth & Family Servs.


                                                                          A-4234-18T3
                                       12
v. E.P., 196 N.J. 88, 104 (2008) (citing In re Guardianship of J.N.H., 172 N.J.

440, 472 (2002)).

      Laura argues the trial court anchored prong one on her finding that

defendant "was functionally homeless." She argues poverty does not equate to

harm to the child and contends Dr. Barr opined she was not a danger to Jack.

      In considering the first prong of the statutory test, the concern is "whether

the parent has harmed the child or may harm the child in the foreseeable future."

N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 113 (App. Div.

2004) (citing N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 607

(1986)).   In assessing whether the child has been harmed by the parental

relationship, "a parent or guardian's past conduct can be relevant and admissible

in determining risk of harm to the child." N.J. Div. of Youth & Family Servs.

v. I.H.C., 415 N.J. Super. 551, 573 (App. Div. 2010). The Division must

demonstrate "that the harm is likely to continue because the parent is unable or

unwilling to overcome or remove the harm." In re Guardianship of K.H.O., 161

N.J. 337, 348 (1999).

      Laura has long-standing substance abuse and mental health issues. She

used cocaine within ninety days of the trial although somehow managed to have

negative drug screening tests.     This was despite years of substance abuse


                                                                           A-4234-18T3
                                       13
treatment and counselling. She began to use cocaine even though she had

undergone drug treatment for heroin addiction. Laura's visitation with the child

was intermittent, because of her own failure to participate. In the two years

since Jack's birth, Laura had not secured housing nor was she employed. Her

lack of stability and contact harmed the child. "A parent's withdrawal of . . .

solicitude, nurture, and care for an extended period of time is in itself a harm

that endangers the health and development of the child." In re Guardianship of

D.M.H., 161 N.J. 365, 379 (1999) (citing K.H.O., 161 N.J. at 352-54). A finding

of abuse and neglect under Title Nine was not needed for the Division to satisfy

prong one. See N.J. Div. of Youth & Family Servs. v. A.P., 408 N.J. Super.

252, 259-60 (App. Div. 2009). The record supports the judge's finding of harm,

based on reasons other than poverty and more than lack of housing.

      Laura argues the court erred by finding her unwilling or unable to address

her past drug use or mental health challenges. She has been attending outpatient

treatment and is in "early remission" according to Dr. Freedman, and has

participated in therapy. Thus, Laura contends the court erred by finding that

Jack would suffer harm if there were delay.

      The second prong under the statute can be met "if the parent has failed to

provide a 'safe and stable home for the child' and a 'delay in permanent


                                                                        A-4234-18T3
                                      14
placement' will further harm the child."     K.H.O., 161 N.J. at 352 (quoting

N.J.S.A. 30:4C-15.1(a)(2)). The court considers "whether the parent is fit, but

also whether he or she can become fit within time to assume the parental role

necessary to meet the child's needs." N.J. Div. of Youth & Family Servs. v.

R.L., 388 N.J. Super. 81, 87 (App. Div. 2006) (citing In re Guardianship of J.C.,

129 N.J. 1, 10 (1992)).

      Laura did not rebut Dr. Freedman's testimony that her ability to parent

was limited and her prognosis for gaining parenting skills was guarded. Despite

substance abuse treatment, Laura did not understand the negative consequences

of her drug use. Her hair follicle test at the trial was positive for cocaine,

indicating at least that she was not truly committed to treatment much less

sobriety.   Laura has serious mental health issues and was not stable

psychologically. Just three months before the trial, she reported having auditory

hallucinations.

      Laura had many opportunities to cooperate with the services she had been

provided. She had no actual plan for moving to Georgia. The caretaker of her

other children and herself were having serious disagreements. And, if she were

to relocate with Jack, he would be harmed by disrupting his bond with his




                                                                         A-4234-18T3
                                      15
resource parents. Laura did not rebut the opinion of Dr. Freedman that she

would be unable to ameliorate the harm to Jack caused by that disruption.

      This case is not like New Jersey Division of Youth and Family Services

v. S.A., 382 N.J. Super. 525, 533 (App. Div. 2006) cited by Laura. This case

was not rushed, and the judge fully considered the bond between the child and

resource parents, and the lack of a bond with Laura. It is distinguishable from

New Jersey Division of Youth and Family Services v. F.M., 375 N.J. Super. 235,

259 (App. Div. 2005), as well because this trial judge extensively addressed the

facts regarding Laura's conduct or omissions in concluding the best interest test

was satisfied. And, unlike New Jersey Division of Youth and Family Services

v. R.G., 217 N.J. 527, 557 (2014), this case did not involve an incarcerated

parent and the "unique challenges that incarceration presents."

      Laura contends the Division's efforts to assist her with reunification were

not reasonable. She is critical of the Division's efforts to assist her with housing,

with services and with assessing other relatives.

      The record shows, however, that Laura was offered many services by the

Division to address her substance abuse, mental health and parenting issues but

had not overcome the issues that required Jack's placement with a resource

family. It also considered her relatives for placement but none was a viable


                                                                             A-4234-18T3
                                        16
alternative for Jack, nor does Laura suggest there is another relative where he

could be placed. She testified at trial about a desire to move to Georgia, but had

no actual plan about where she would live. She did not ask for assistance with

her housing issues; her mother would not allow the Division into her house for

an assessment. She would not discuss issues with her caseworker because she

distrusted her.

      Laura argues the parent-child bond was evident. She blamed J.L.M., the

Division and her hospitalizations for disrupting visitation.

      The fourth prong requires the trial court to balance the harms suffered

from terminating parental rights against the good that will result from

terminating these rights. K.H.O., 161 N.J. at 363; A.W., 103 N.J. at 610-11. It

does not require a showing that "no harm" will result from the termination of

parental rights, but involves a comparison of the child's relationship with the

biological parent and the resource parents. K.H.O., 161 N.J. at 355. Thus, "[t]he

question to be addressed under [the fourth] prong is whether, after considering

and balancing the two relationships, 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.




                                                                          A-4234-18T3
                                       17
      Dr. Freedman's expert testimony that the child was bonded with the

resource parents—who are the only parents the child has known—was not

rebutted. He would suffer harm if that bond were disrupted. There was no

evidence that Laura was able to ameliorate this harm, although the resource

parents would be able to ameliorate harm caused by terminating Laura's parental

rights. Dr. Freedman opined that by terminating Laura's parental rights, the

child would be provided with "a strong sense of stability and the greatest

opportunity for him to develop long-term emotional health."         The record

supports the Division's efforts to encourage visitation, but that Laura was

inconsistent during her opportunities. The record established that the Division

proved the fourth prong by clear and convincing evidence.

      Because we find that the trial court's findings are supported by adequate,

substantial and credible evidence in the record, we affirm for the reasons set

forth in Judge White's oral decision.

      Affirmed.




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                                        18
