                                      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                                NOT FOR PUBLICATION WITHOUT THE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-4032-18T1

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

          Plaintiff-Respondent,

v.

N.W.S.,

     Defendant-Appellant.
__________________________

IN THE MATTER OF THE
GUARDIANSHIP OF M.I.S.,

     A Minor.
____________________________

                   Argued telephonically March 31, 2020 –
                   Decided April 28, 2020

                   Before Judges Yannotti, Hoffman and Firko.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Family Part, Essex County, Docket
                   No. FG-07-0011-19.
            Ryan Thomas Clark, Designated Counsel, argued the
            cause for appellant (Joseph E. Krakora, Public
            Defender, attorney; Robyn A. Veasey, Deputy Public
            Defender, of counsel; Ryan Thomas Clark, on the
            briefs).

            Amy L. Bernstein, Deputy Attorney General, argued
            the cause for respondent (Gurbir S. Grewal, Attorney
            General, attorney; Sookie Bae, Assistant Attorney
            General, of counsel; Diane L. Scott, Deputy Attorney
            General, on the brief).

            Rachel E. Seidman, Deputy Public Defender, argued
            the cause for minor (Joseph E. Krakora, Public
            Defender, Law Guardian, attorney; Rachel E. Seidman,
            Deputy Public Defender, of counsel and on the brief).

PER CURIAM

      N.W.S. appeals from a judgment of the Family Part dated April 24, 2019,

which terminated her parental rights to the minor child M.I.S. We affirm.

                                      I.

      We begin with a summary of the pertinent facts, drawn from the trial

court's record. N.W.S. is the mother of four children: T.J.C. (born in August

2005); S.E. (born in August 2008); L.N.S. (born in January 2011); and M.I.S.

(born in June 2017). In October 2008, the Division received a referral that

N.W.S.'s mother was using heroin and had been absent from her drug treatment

program. N.W.S. allegedly was living with her mother at the time, along with



                                                                       A-4032-18T1
                                      2
her two oldest children. The Division investigated and determined that the

allegation of neglect for inadequate supervision was unfounded.

      In December 2011, the Division received a report that the Newark police

had responded to a call that N.W.S.'s children were unsupervised. The Division

investigated and determined that the allegation of inadequate supervision was

unfounded.    However, the Division decided that N.W.S. should be evaluated

for drug use and receive parenting skills classes.

      In February and April 2012, the Division referred N.W.S. for substance

abuse assessments. On May 21, 2012, she tested positive for Phencyclidine

(PCP) and was recommended for outpatient substance abuse treatment. N.W.S.

did not comply with that recommendation. In August 2012, the Division again

referred N.W.S. for substance abuse assessments.

      N.W.S. entered drug treatment; however, in October 2012, the Division

received a report that she had tested positive for alcohol and PCP and that she

was unreceptive to the treatment program she was attending. The Division

investigated the report and found the allegations were substantiated. N.W.S.

admitted that she used PCP intermittently for seven years, and that she also used

marijuana.




                                                                         A-4032-18T1
                                        3
      The Division effected an emergency removal of the children and placed

them in resource homes.        A few days later, the Division filed a verified

complaint for care, custody, and supervision of the children. The Division again

referred N.W.S. for a substance abuse evaluation, which recommended intensive

outpatient treatment. She did not attend.

      A January 2013 psychological evaluation resulted in recommendations

that N.W.S. attend individual therapy, a substance abuse program, and parenting

classes. The Division made appropriate referrals for these services but N.W.S.

was largely uncooperative. She continued to test positive for PCP.

      Meanwhile, in May 2014, psychological and bonding evaluations were

completed, which resulted in a recommendation that N.W.S.'s parental rights to

T.J.C., S.E., and L.N.S. be terminated. In February 2015, N.W.S. surrendered

her parental rights to S.E., in favor of a relative.

      She also surrendered her parental rights to T.J.C. and L.N.S., in favor of

T.J.C.'s paternal grandmother. However, in 2016, N.W.S.'s parental rights to

T.J.C. and L.N.S. were restored when T.J.C.'s paternal grandmother moved to

Pennsylvania and was unable to obtain a license for her home in that state due

to a pending criminal charge.




                                                                        A-4032-18T1
                                          4
        Thereafter, in May 2017, Elizabeth Stilwell, Psy.D., performed

psychological and bonding evaluations and recommended that N.W.S.'s parental

rights to T.J.C. and L.N.S. be terminated. Dr. Stilwell concluded that the

children required permanency, and that N.W.S. was unlikely to become a viable

parenting option in the foreseeable future.

        In June 2017, N.W.S. gave birth to M.I.S. N.W.S. did not list a father on

the child's birth certificate. However, N.W.S. told the Division's investigator

that D.S. was the child's biological father. She said he did not want to be

involved.1 At the hospital, N.W.S. and M.I.S. tested positive for PCP. The child

did not, however, exhibit any withdrawal symptoms.

        The Division substantiated N.W.S. for neglect. Upon M.I.S.'s discharge

from the hospital, the Division removed M.I.S. on an emergency basis and filed

a verified complaint for the child's care, custody, and supervision. The court

granted the application and the Division placed M.I.S. in a non-relative resource

home, where he remained since.

        On June 27, 2017, shortly after M.I.S. was born, the trial court entered a

judgment terminating N.W.S.'s parental rights to T.J.C. and L.N.S. We later




1
    The Division investigated but was never able to locate the child's father.
                                                                           A-4032-18T1
                                          5
affirmed the trial court's judgment. N.J. Div. of Child Prot. & Perm. v. N.W.S.,

No. A-4833-16 (App. Div. Oct. 25, 2018), certif. denied, 237 N.J. 580 (2019).

      In October 2017, the trial court found that N.W.S. had abused or neglected

M.I.S. based upon her: continued use of PCP during her pregnancy, non-

compliance with court-ordered substance abuse treatment during her pregnancy,

and failure to attend the recommended number of prenatal doctor's visits. The

court also found that N.W.S.'s failure to adequately address her substance abuse

issues and maintain sobriety put M.I.S. at substantial risk of harm.

      The Division thereafter provided N.W.S. with numerous referrals for

substance abuse assessments, testing, and treatment; psychological evaluations

and individual counseling; and supervised visitation.        The Division also

provided N.W.S. with transportation assistance.

      N.W.S. was relatively consistent with visitation and participated in family

team meetings in June 2017 and April 2018. She requested placement in a

Mommy and Me program, but the Division informed her that she should focus

on achieving sobriety before entering such a program.

      N.W.S. had a brief period of sobriety, while she was in drug treatment

between late-2017 and early 2018. However, after completing that treatment

program in February 2018, she did not continue with the recommended weekly


                                                                         A-4032-18T1
                                        6
counseling and drug screening, and she returned to drug use. She tested positive

for PCP in April 2018, and thereafter refused to cooperate with the Division's

drug treatment referrals or drug tests.

      N.W.S. never completed a psychological evaluation and she did not

participate in individual counseling. The Division also had concerns about her

behavior. In October 2017, N.W.S. was arrested and charged with aggravated

assault. At times, she threatened the Division's caseworkers and supervisors. In

addition, N.W.S. never provided the Division proof of employment or stable

income.

      In May 2018, the court approved the Division's plan of termination of

N.W.S.'s parental rights followed by adoption, and in July 2018, the Division

filed its guardianship complaint. Thereafter, the Division continued to refer

N.W.S. for services. She did not complete any of the services. She was referred

several times to Mark Singer, Psy.D. and once to Dr. Stilwell for psychological

and bonding evaluations. She did not attend. She did not present a plan for

M.I.S.

      In April 2009, Judge Linda L. Cavanaugh conducted a trial on the

Division's guardianship complaint.        Dr. Stilwell and caseworker Arianna

Concepcion testified for the Division. N.W.S. did not present any witnesses or


                                                                        A-4032-18T1
                                          7
evidence. The Law Guardian for M.I.S. also did not present any testimony or

evidence but supported the termination of N.W.S.'s parental rights.

      Judge Cavanaugh filed a written opinion dated April 24, 2019, in which

she found that the Division had established, with clear and convincing evidence,

all four prongs of the "best interests of the child" test for termination of parental

rights in N.J.S.A. 30:4C-15.1(a). The judge memorialized her decision in a

judgment of guardianship dated April 24, 2019. This appeal followed.

                                       II.

      On appeal, N.W.S. contends the trial court's findings are inadequate to

support a judgment terminating her parental rights. She argues that the judge

erred by finding that the Division established the criteria for termination of her

parental rights with clear and convincing evidence.

      A parent has the constitutional right to raise his or her children. N.J. Div.

of Youth & Family Servs. v. F.M., 211 N.J. 420, 447 (2012). However, that

right is "tempered by the State's parens patriae responsibility to protect children

whose vulnerable lives or psychological well-being may have been harmed or

may be seriously endangered by a neglectful or abusive parent."                 Ibid.

      Accordingly, the Division may petition the court for an order terminating

parental rights in the "best interests of the child" and must establish the four


                                                                             A-4032-18T1
                                             8
criteria in N.J.S.A. 30:4C-15.1(a). The criteria "are not discrete and separate;

they relate to and overlap with one another to provide a comprehensive standard

that identifies a child's best interests." In re Guardianship of K.H.O., 161 N.J.

337, 348 (1999). It is a fact-sensitive inquiry. N.J. Div. of Youth & Family

Servs. v. M.M., 189 N.J. 261, 280 (2007).

      When a parent contests the termination of his or her parental rights, the

court's function is to decide whether the parent can raise the child without

causing further harm. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). "The

burden falls on the State to demonstrate by clear and convincing evidence that

the natural parent has not cured the initial cause of harm and will continue to

cause serious and lasting harm to the child." Ibid.

      The scope of our review of a trial court's judgment terminating parental

rights is limited. M.M., 189 N.J. at 278. We must uphold the trial court's factual

findings if they are supported by substantial, credible evidence in the record.

F.M., 211 N.J. at 448-49. Furthermore, findings by the Family Part as to witness

credibility are entitled to deference because of its expertise in family matters

and because it is better able to evaluate the veracity of witnesses who testified

before it. N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014).




                                                                          A-4032-18T1
                                        9
      A. Prong One.

      The first prong of the best interests test requires the Division to prove that

"[t]he child's safety, health, or development has been or will continue to be

endangered by the parental relationship[.]" N.J.S.A. 30:4C-15.1(a)(1). This

prong focuses on the negative effect the parent-child relationship has upon the

child's safety, health, and development. K.H.O., 161 N.J. at 348. To establish

prong one, the Division is not required to show that the child was physically

harmed, and evidence that the child suffered emotional or psychological harm

is sufficient. In re Guardianship of K.L.F., 129 N.J. 32, 43-44 (1992).

      Here, Judge Cavanaugh found that N.W.S. endangered M.I.S. by failing

to address her substance abuse problem and by using drugs while she was

pregnant with M.I.S., such that he tested positive for PCP at birth. The judge

stated that N.W.S. could not keep the child safe from harm, and that placing

M.I.S. in her care "would clearly endanger the child's safety, health or

development."

      The judge noted that the evidence showed N.W.S. had not participated in

recommended services before M.I.S. was born.          The judge also noted that

N.W.S. remained uncooperative after she gave birth to M.I.S. She did not

participate in ongoing drug treatment, individual counseling, anger management


                                                                            A-4032-18T1
                                       10
classes, or a psychological or bonding evaluation. The judge recognized that

N.W.S. had brief periods of sobriety but she relapsed into drug use and remained

incapable of providing a safe and stable home for the child.

      The judge observed that N.W.S. appeared to love M.I.S.; however, she

had not provided him with a safe and stable home since he was an infant. The

judge stated that N.W.S. did not acknowledge responsibility for her situation,

"did not seem to be able to grasp what she needed to do to have the child returned

to her care," and "was unable or unwilling to accept the concept of a safe and

stable home."

      The judge further found that N.W.S.'s attitude and behavior had worsened

over time. The judge stated that N.W.S. was "unwilling or unable to work with

the Division and [its] providers to identify and follow the steps that might have

provided the path by which she could have become a stable parent to her son."

The judge found that N.W.S. never put M.I.S.'s needs before her own.

      On appeal, N.W.S. argues that the record does not support the judge's

determination that the "child's safety, health, or development" have been

endangered by the child's relationship with her. She asserts that while M.I.S.

tested positive for PCP at birth, the child did not exhibit any symptoms of

exposure to illicit substances. She contends there is no evidence that the child


                                                                          A-4032-18T1
                                       11
has sustained any "concrete" emotional or physical injury due to her drug use

during pregnancy or after the child was born.

      In support of her arguments, N.W.S. relies upon N.J. Dept. of Children

and Families v. A.L., 213 N.J. 1 (2013). She contends the judge based her

findings almost entirely upon her persistent use of drugs. We disagree. While

N.W.S.'s longstanding and un-remediated use of PCP was a factor in the judge's

decision, that was only one factor in the judge's findings on prong one.

      The judge's findings also were based on N.W.S.'s failure to participate in

many of the services the Division offered to her, her lack of employment, and

her aggressive and disruptive behaviors, which showed that she was not capable

of providing the child with a safe and stable home.

      Furthermore, because M.I.S. remained in foster care, he was harmed

because he was deprived "of necessary stability and permanency." N.J. Div. of

Youth and Family Servs. v. T.S., 417 N.J. Super. 228, 245 (App. Div. 2010).

The record supports the court's determination that the child's "safety, health an d

development" were endangered by his relationship with N.W.S.

      B. Prong Two.

      The second prong requires the Division to establish that "[t]he parent is

unwilling or unable to eliminate the harm facing the child or is unable or


                                                                           A-4032-18T1
                                       12
unwilling to provide a safe and stable home for the child and the delay of

permanent placement will add to the harm." N.J.S.A. 30:4C-15.1(a)(2). In

addressing this prong, the court must focus on whether the parent has overcome

the harms that endanger the child and whether the parent is able to prevent

further harm from the parental relationship. K.H.O., 161 N.J. at 348-49.

      Judge Cavanaugh found that the Division had established that N.W.S. was

unable or unwilling to eliminate the harm to the child from the parental

relationship or provide the child with a safe and stable home.       The judge

accepted Dr. Stilwell's opinion that N.W.S. was incapable of safely parenting

M.I.S. and would not be able to do so in the foreseeable future.

      The judge reviewed the Division's long involvement with N.W.S., her

non-cooperation with many of the services the Division had offered to her,

including drug treatment, individual counseling, anger management, and

parenting classes. In addition, the judge considered N.W.S.'s relapses into drug

use and the deterioration of her behavior. The judge observed that N.W.S. failed

to make appreciable progress in addressing the reasons for the child's removal

from her care.

      The judge also noted that N.W.S. did not establish that she had stable

housing or employment. In addition, the judge pointed out that because of


                                                                        A-4032-18T1
                                      13
N.W.S.'s persistent use of drugs, parenting deficiencies and behaviors, M.I.S.

remained in the care of his resource parents and they provided him with a secure

and nurturing home. The judge found that a delay in permanency would only

add to the harm the child had sustained.

      N.W.S. argues that the evidence does not support the judge's findings on

prong two. She claims she never refused to work with the Division or attend

services to which she was referred. She asserts she attended visitation and

substance abuse treatment and sought admission to a Mommy and Me program.

She notes that she had numerous visits with M.I.S., which she claims were

successful. She also asserts that she never refused to permit the Division to

assess her home.

      We are convinced, however, that there is sufficient credible evidence in

the record to support the judge's findings on prong two. While N.W.S. notes the

positive aspects of her visitation with M.I.S., Dr. Stilwell testified that visitation

alone is not sufficient to create a healthy, parent-child relationship. Dr. Stilwell

also stated that N.W.S. was unlikely to become a viable parent within the

foreseeable future. The record supports the judge's determination that N.W.S.

is unable or unwilling to eliminate the harm to M.I.S. from the parental

relationship, and a delay in permanency will cause further harm.


                                                                              A-4032-18T1
                                         14
      C. Prong Three.

      Prong three requires the Division to establish that it "made reasonable

efforts . . . to help the parent correct the circumstances which led to the child's

placement outside the home" and consider alternatives to termination of parental

rights. N.J.S.A. 30:4C-15.1(a)(3). The reasonableness of the Division's efforts

is not measured by whether they were successful in bringing about reunification

of the parent and child. In re Guardianship of DMH, 161 N.J. 365, 393 (1999).

      Here, Judge Cavanaugh found the Division made reasonable efforts to

assist N.W.S. in correcting the circumstances that led to M.I.S.'s placement

outside the home. The judge pointed out that the Division provided N.W.S. an

array of services.

      However, N.W.S. was largely non-compliant with these services.

Moreover, N.W.S. did not benefit from the services she participated in, as

evidenced by her continued drug abuse and her threatening and disruptive

behaviors. The judge further found that the Division had considered alternatives

to termination of parental rights.

      On appeal, N.W.S. argues that the Division did not make reasonable

efforts to address the circumstances that led to M.I.S.'s removal from her care.

She asserts the Division failed to refer her to a Mommy and Me program and


                                                                           A-4032-18T1
                                       15
did not explore a service offered by Reunity House to assist her with

reunification. She also contends that the Division failed to consider alternatives

to termination of parental rights.

      The record shows, however, that the Division provided N.W.S. an

extensive array of services during its lengthy involvement with her and her

children. She refused to cooperate. She attended five substance abuse programs

since 2013 but completed only one. She continued to use PCP. The Division

reasonably determined that N.W.S. should not be referred to a Mommy and Me

program until she became drug free and maintained sobriety.

      The record also does not support N.W.S.'s contention that the Division

failed to refer her for a bonding evaluation.      She failed to report to two

appointments with Dr. Mark Singer for psychological and bonding evaluations.

The trial court entered an order dated February 27, 2019, which required N.W.S.

to attend a psychological and bonding evaluation with Dr. Stilwell, which was

scheduled for March 1, 2009. She did not comply with the court's order.

      In addition, the record supports Judge Cavanaugh's finding that the

Division considered alternatives to termination of parental rights.       N.W.S.

claims the Division ruled out K.L. as a potential placement based on what

N.W.S. alleges was a temporary loss of electricity to K.L.'s home. However,


                                                                          A-4032-18T1
                                       16
the Division ruled out K.L. because she was taking electricity from a neighbor,

without the neighbor's permission, while caring for children the Division had

placed with her.

      The Division also considered and ruled out J.S. as a potential caretaker

due to a positive drug screen and her unwillingness to agree to treatment.

Neither K.L. nor R.S. challenged the Division's decisions. N.W.S.'s contention

that the Division failed to consider alternatives to termination of her parental

rights is entirely without merit.

      D. Prong Four.

      To establish prong four, the Division must establish that "[t]ermination of

parental rights will not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4).

"[T]he fourth prong of the best interests standard cannot require a showing that

no harm will befall the child as a result of the severing of biological ties."

K.H.O., 161 N.J. at 355.

      Here, Judge Cavanaugh found that the Division had established prong four

with clear and convincing evidence. The judge accepted Dr. Stilwell's testimony

and found that termination of N.W.S.'s parental rights would not do more harm

than good. The judge noted that since he was born, M.I.S. had never been in

N.W.S.'s care.


                                                                         A-4032-18T1
                                      17
       The judge pointed out that the child's resource parents have provided him

with love and nurturing, and their home was the only home he has ever known.

The judge noted that Dr. Stilwell testified that, based on her bonding evaluation,

M.I.S. viewed his resource parents as his psychological parents. Dr. Stilwell

stated that severing the child's relationship with his resource parents would

cause him enduring harm, which N.W.S. would not be able to mitigate.

      Judge Cavanaugh also noted that N.W.S. did not participate in a bonding

evaluation with Dr. Stilwell. Therefore, Dr. Stilwell was unable to determine

whether a bond existed between N.W.S. and M.I.S.           Dr. Stilwell testified,

however, that it was unlikely M.I.S. had any meaningful relationship with his

mother. Dr. Stilwell further testified that the resource parents were capable of

mitigating any harm to M.I.S. that might result from a termination of N.W.S.'s

parental rights.

      In addition, Judge Cavanaugh observed that the Division's visitation

records showed that N.W.S. had "unquestionably warm and affectionate"

interactions with M.I.S., and the judge stated that she believed N.W.S. loved the

child. The judge found, however, that there was no evidence that N.W.S. had

developed a healthy, meaningful relationship with M.I.S. The judge stated that

M.I.S. needed more than visitation with his mother. He needed for N.W.S. to


                                                                          A-4032-18T1
                                       18
provide for his safety, health, and development, and there was no evidence she

could do so.

      The judge concluded that through her own actions, N.W.S. had made

herself unavailable to M.I.S.   She failed to address the circumstances that

resulted in M.I.S.'s removal from her care. The judge also found that a delay in

permanency would only add to the harm M.I.S. had already suffered.

      On appeal, N.W.S. argues that critical prong four evidence was lacking

because the Division refused to refer her for a bonding evaluation. She contends

there was no basis for Dr. Stilwell's opinion that she did not have a meaningful

relationship with M.I.S. She notes that Dr. Stilwell did not observe his visits

with M.I.S. She contends the observations of the Division personnel and its

third-party service providers show that she and M.I.S. are bonded. Again, we

disagree.

      As we stated previously, the Division scheduled N.W.S. for a

psychological and bonding evaluation with Dr. Stilwell and the court ordered

her to attend. She did not comply with the court's order. Moreover, Dr. Stilwell

testified that visitation does not necessarily create a healthy bond between a

parent and a child.   N.W.S. presented no testimony to rebut Dr. Stilwell's




                                                                        A-4032-18T1
                                      19
opinions. We conclude there is sufficient credible evidence to support the

judge's findings on prong four.

      Affirmed.




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                                   20
