                                      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                                NOT FOR PUBLICATION WITHOUT THE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-4613-17T3

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

          Plaintiff-Respondent,

v.

A.M.,

          Defendant-Appellant,

and

B.T., SR.,1

     Defendant.
_____________________________

IN THE MATTER OF THE
GUARDIANSHIP OF B.T., JR.,

     a Minor.
_____________________________

                    Submitted May 1, 2019 – Decided May 16, 2019

1
 Defendant B.T., Sr. was dismissed from the litigation on May 10, 2017 because
he died.
            Before Judges Koblitz, Currier and Mayer.

            On appeal from Superior Court of New Jersey,
            Chancery Division, Family Part, Burlington County,
            Docket No. FG-03-0069-17.

            Joseph E. Krakora, Public Defender, attorney for
            appellant (Christine O. Saginor, Designated Counsel,
            on the briefs).

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

            Joseph E. Krakora, Public Defender, Law Guardian,
            attorney for minor (Noel C. Devlin, Assistant Deputy
            Public Defender, of counsel and on the brief).

PER CURIAM

       Defendant A.M. appeals from a May 14, 2018 order terminating her

parental rights to her son, B.T., Jr. (Brandon), born in 2017.2 Defendant argues

the family part judge erred in terminating her parental rights because the

Division of Child Protection and Permanency (Division) failed to satisfy the

four prongs under N.J.S.A. 30:4C-15.1(a). We affirm.

      We summarize the evidence relevant to the judge's order terminating

defendant's parental rights. Immediately after his birth, hospital staff contacted


2
  We use initials and pseudonyms to protect the parties' privacy interests. R.
1:38-3(e).
                                                                          A-4613-17T3
                                        2
the Division because Brandon was addicted to methadone and suffering

withdrawal symptoms. The hospital staff observed defendant fall asleep several

times while she was caring for Brandon.        The Division removed Brandon

following his discharge from the hospital and placed him with resource parents. 3

Defendant's parental rights to her two older children, K.J. and N.H, were

previously terminated. Defendant's three children live together with the same

resource parents.

       Defendant has a long-standing history of substance abuse, which was a

significant factor in terminating her rights to the older children, K.J. and N.H.

See N.J. Div. of Child Prot. & Permanency v. A.M., No. A-2449-16 (App. Div.

Jan. 2, 2018). Similar to the facts in this matter, N.H. was removed by the

Division because she had methadone in her system at birth and was treated for

withdrawal.

       Not only did defendant suffer from drug addition, she also had severe

psychological and emotional issues. The Division has attempted to provide

essential services to defendant since 2014 in connection with her older children,

and more recently regarding her ability to parent Brandon. However, defendant

failed to complete the recommended substance abuse treatment programs and


3
    Brandon remains with the same resource parents.
                                                                         A-4613-17T3
                                       3
other therapeutic programs made available to her by the Division, including

anger management and parenting classes.

        Defendant relapsed several times, abusing both drugs and alcohol. She

also failed to provide urine drug screens and hair follicle samples. Similar to

her behavior regarding her two older children, defendant demonstrated a pattern

of missing parenting time visits with Brandon and failing to attend court-ordered

bonding and psychological evaluations. Defendant offered multiple excuses for

her failure to attend treatment and other programs, undergo drug testing,

maintain parenting time visits with Brandon, and appear for evaluations.

        A guardianship trial was conducted on March 6 and May 14, 2018. The

Division's expert, Dr. Alan Lee, and the Division's case worker, Rasheeda

Brown, testified on March 6. Defendant testified on May 14. During the trial,

the judge noted defendant appeared "either asleep or sluggish . . . ."

        In the bonding evaluation between Brandon and his resource parents, Dr.

Lee found Brandon was forming and solidifying a "significant and positive

psychological bond" with both resource parents and would be at risk of suffering

"severe and enduring psychological or emotional harm" if he was separated from

them.




                                                                         A-4613-17T3
                                        4
      Regarding defendant's psychological evaluation, Dr. Lee explained

defendant failed to show up for the first appointment. When the evaluation was

rescheduled, Dr. Lee observed defendant "repeatedly fall asleep, nod off," and

fail to respond to questions for as long as twenty to thirty seconds. Dr. Lee gave

defendant several breaks during the evaluation, hoping she would be able to

complete the session. After returning from one such recess, defendant said she

was unable to continue the evaluation.

      The Division case worker, Brown, testified extensively to defendant's

drug use and her failure to complete hair follicle testing and undergo multiple

urine screens. Brown also testified regarding the services the Division provided

to defendant, stating she was offered psychological and psychiatric evaluations,

substance abuse treatments and evaluations, visitation, and family team

meetings, and received bus passes and tickets from the Division to attend these

services. According to Brown, defendant missed most of her appointments for

services as well as her scheduled visits with Brandon.

      At the conclusion of the testimony, the judge rendered an oral decision,

finding by clear and convincing evidence the Division established all four

prongs of the statutory best interests test.




                                                                          A-4613-17T3
                                         5
            (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 . . . ;

            (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).]

Based on the evidence and testimony, the judge terminated defendant's parental

rights to Brandon and entered a judgment of guardianship.

      Regarding the first prong, the judge concluded significant harm could

come to Brandon if he were to be separated from his resource parents, including

the failure to achieve certain milestones and develop emotional and behavioral

problems. Based on the credible testimony of the Division's expert, the judge

found Brandon was comfortable with his resource parents and they were

attentive to his needs. He also noted Brown's testimony that defendant failed to

take advantage of services the Division provided and was a "no show on many

occasions . . . ." The judge held the Division established Brandon's "safety,


                                                                        A-4613-17T3
                                        6
health and development [have] been and will continue to [be] endangered by the

parental relationship with [defendant]. She's just, unfortunately, incapable of

looking out for [Brandon's] best interests . . . ."

      On the second prong, the judge found defendant was unable or unwilling

to eliminate the harm to Brandon. He noted the same concerns with defendant's

inability to parent her two older children remained ongoing issues with respect

to her ability to parent Brandon. He also found defendant was unable to provide

a safe and stable home for Brandon and was unable or unwilling to complete the

many services offered to her by the Division.

      In reviewing the third prong, the judge found the Division considered the

available alternatives to termination and found none were viable. He stated the

Division considered other relatives or caregivers but they were ruled out for

various reasons. The court had previously relieved the Division of the obligation

to make reasonable efforts toward reunification due to the involuntary

termination of the defendant's parental rights to her two older children. N.J.S.A.

30:4C-11.3(c); N.J.S.A. 30:4C-15.1(d).

      On the fourth prong, the judge found the Division established termination

of defendant's parental rights would not do more harm than good to Brandon.

The judge explained it was not in Brandon's best interests to allow defendant to


                                                                          A-4613-17T3
                                          7
maintain her parental rights because Brandon would suffer "some serious

repercussions and difficulties" in defendant's custody. Moreover, the judge

determined defendant was unable to meet Brandon's needs.

      On appeal, defendant argues the judge erred in terminating her parental

rights because the Division failed to meet its burden under N.J.S.A. 30:4C-

15.1(a).

      Our review of a judge's decision to terminate parental rights is limited.

N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007). We

defer to the family court's findings, "recognizing the court's 'special jurisdiction

and expertise in family matters.'" Thieme v. Aucoin–Thieme, 227 N.J. 269,

282–83 (2016) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)). Findings

by a family court are "binding on appeal when supported by adequate,

substantial, credible evidence." Id. at 283 (quoting Cesare, 154 N.J. at 413).

"Indeed, we defer to family part judges 'unless they are so wide of the mark that

our intervention is required to avert an injustice.'" N.J. Div. of Child Prot. &

Permanency v. A.B., 231 N.J. 354, 365 (2017) (quoting N.J. Div. of Youth &

Family Servs. v. F.M., 211 N.J. 420, 427 (2012)). "Additionally, as a general

rule, we must grant deference to the trial court's credibility determinations."

M.M., 189 N.J. at 279.


                                                                            A-4613-17T3
                                         8
      After reviewing the record, we conclude that the judge's factual findings

are supported by the record and, in light of those facts, his legal conclusions are

sound. We add only the following comments.

      A court may not solely rely on a parent's drug use during pregnancy to

constitute harm. N.J. Dep't of Children & Families, v. A.L., 213 N.J. 1, 23

(2013). Although a finding of harm cannot be based solely on "a newborn's

enduring methadone withdrawal following a mother's timely participation in a

bona fide treatment program[,]" N.J. Div. of Child Prot. & Permanency v. Y.N.,

220 N.J. 165, 168 (2014), a court may consider that "[p]arents who use illegal

drugs when caring for an infant expose that baby to many dangers due to their

impaired judgment." N.J. Div. of Child Prot. & Permanency v. B.O., 438 N.J.

Super. 373, 385 (App. Div. 2014).

      Here, defendant admitted during trial that her use of methadone would

prohibit her from adequately caring for Brandon.          In addition, defendant

acknowledged she failed to complete any of the treatment programs in which

she was enrolled.     Under these circumstances, termination of defendant's

parental rights to Brandon was warranted.

      Affirmed.




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