Opinion
DOCKET NO. A-2459-11T3
02-25-2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. B.L.C., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF S.B.T., Minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Jennifer L. Gottschalk, Designated Counsel, on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Farng-Yi D. Foo, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor S.B.T. (Nancy P. Fratz, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall, Koblitz and Accurso.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-79-11.
Joseph E. Krakora, Public Defender, attorney for appellant (Jennifer L. Gottschalk, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Farng-Yi D. Foo, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor S.B.T. (Nancy P. Fratz, Assistant Deputy Public Defender, on the brief). PER CURIAM
Defendant B.L.C. appeals from a judgment terminating her parental rights to her daughter, S.B.T. She contends that the Division of Youth and Family Services (the Division) failed to establish that she was unwilling or unable to eliminate the harm to the child or that delay in her placement would add to the harm as required by N.J.S.A. 30:4C-15.1(a)(2). B.L.C. does not challenge the adequacy of the Division's evidence establishing the three additional elements of the best interests test. N.J.S.A. 30:4C-15.1(a)(1)-(4). We affirm substantially for the reasons stated by Judge Katz in the comprehensive and thoughtful oral opinion he delivered on December 5, 2011.
S.B.T. was born at thirty-one weeks gestation in November 2009. The baby weighed two pounds and fourteen ounces and was H.I.V. positive. B.L.C. tested positive for cocaine when S.B.T. was born. S.B.T. was classified as medically fragile and placed in intensive care. Although S.B.T. was not released from the hospital until January 7, 2010, B.L.C. had visited her only once while she was in the hospital.
The Division filed for and obtained custody and care of S.B.T. on January 4, 2010. The Division placed S.B.T. with a foster family when she was released from the hospital.
S.B.T. is the sixth of B.L.C.'s children, and when S.B.T. was born none of her siblings were in her mother's custody. B.L.C.'s parental rights to two of her children had been terminated. One child died before her first birthday; two had been adopted; one was in the custody of her father and paternal grandmother; and one was living with an aunt in North Carolina.
When asked about her other children after S.B.T.'s birth, B.L.C. was either unable or unwilling to give the Division an accurate account of their whereabouts. She claimed to have some clothing and supplies for the baby but no food or crib, and she said friends and family had been supporting her since she lost her supplemental security income.
Although B.L.C. acknowledged that three of her children tested positive for cocaine at birth, she said she had never sought drug treatment and declined the Division's offer to provide it. The Division assigned an experienced caseworker to the case, who arranged for B.L.C. to have a substance abuse assessment on December 8, 2009, but B.L.C. did not attend. The appointment was rescheduled several times before B.L.C. was evaluated on January 28, 2010. During that assessment B.L.C. acknowledged her regular consumption of alcohol, including a beer she needed every morning, and use of drugs over a prolonged period of time. She reported having inpatient and outpatient treatment for psychological and emotional problems on multiple occasions. Following the assessment, B.L.C. was diagnosed with depression and alcohol and drug dependence, and detoxification followed by inpatient treatment was recommended.
The Division's efforts to follow those recommendations were initially complicated by the fact that B.L.C. had no documentation of her identity. By March 19, 2010, however, the Division arranged for admittance for detox and transported her to the facility. While B.L.C. was filling out the paperwork, she decided not to attend and asked to be taken home. Subsequently, B.L.C. was admitted to and completed detox, but because she expected that her inpatient treatment would be at the same facility and no beds were available, she refused alternatives offered by the Division.
In April 2010, B.L.C. advised that she was willing to participate in any program the Division recommended. But she subsequently passed up two options. As time passed, the Division needed a new assessment of B.L.C.'s treatment needs, but she missed appointments scheduled for August 18 and 19, November 17 and December 16, 2010, and another for January 5, 2011. She did not appear for an assessment until March 28, 2011, which was one year and four months after S.B.T. was born, and then dropped out claiming that she was unable to attend because she had been bitten by a dog. She did not participate in drug treatment again.
B.L.C. also refrained from participating in or completing other services the Division offered to reunite her with S.B.T. She did not attend psychological evaluations the Division arranged between March and December 2010 and did not submit to an evaluation until April 2011. She also missed numerous parenting skills classes and did not complete that program. Nor did B.L.C. have much success in attending weekly visitation. From March 15 to November 4, 2010, B.L.C. missed visitation seventeen times and once arrived so late that she had only fifteen minutes to see S.B.T. She did not visit S.B.T. at all between November 4, 2010 and February 2, 2011. Nevertheless, B.L.C.'s interactions with S.B.T. during a visit on February 3, 2011, were described as loving and positive. B.L.C. did not visit with S.B.T. between February 11, 2011 and the termination trial on December 5, 2011. The only time she spent with S.B.T. was during a bonding evaluation in April 2011.
B.L.C. first appeared for a psychological evaluation by Dr. Singer on February 25, 2011. She also attended a bonding evaluation done by that psychologist on April 6, 2011. In Dr. Singer's opinion, B.L.C. suffered from "paranoid ideation [possibly rising] to the level of delusional content," was "unable to muster the emotional resources needed to parent her children" and had significant "difficulty adhering to limits placed upon her behavior," evidenced by her substance abuse. Noting her inability to recognize and address her own H.I.V. condition or S.B.T.'s, he concluded that S.B.T. would be at risk in her care. He further concluded that no secure parent-child attachment had developed between B.L.C. and S.B.T. In Dr. Singer's opinion, based on B.L.C.'s history of non-compliance with services and self-defeating behavior, B.L.C. was unlikely to participate in services that would permit her to overcome these problems. In recommending termination of B.L.C.'s parental rights and adoption for S.B.T., Dr. Singer stressed that S.B.T. was at a stage of her life where bonding and her need for consistency, stability and permanency that B.L.C. could not provide were critical.
After Dr. Singer's evaluation and prior to trial, S.B.T. was removed from her foster home because of the foster parents' lack of support from members of their extended family who hesitated to help due to concerns about S.B.T.'s H.I.V. status. The Division had, however, placed S.B.T. with another family that was willing to adopt and had observed and participated in S.B.T.'s treatment prior to her placement in their home. The caseworker had no reason to suspect that this placement would fail and indicated that the foster parents were committed to adoption.
Dr. Singer testified about the significance of S.B.T.'s new placement to his opinion that termination of parental rights is in S.B.T.'s best interests. He said that his opinion would be the same or similar.
The trial judge concluded that the Division had established the harm required by N.J.S.A. 30:4C-15.1(a)(1) based on B.L.C.'s withholding of care and nurture following S.B.T.'s birth. N.J.S.A. 30:4C-15.1(a)(1); In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999). This finding of harm did not rest entirely on B.L.C.'s use of cocaine prior to the baby's birth. See N.J. Dep't of Children & Families v. A.L., _ N.J. _, _(2013) (slip op. at 23) (holding that drug use during pregnancy, without more, does not establish abuse or neglect as defined in Title IX).
With respect to the second prong of the best interests standard, which is the only challenge to this termination raised on appeal, Judge Katz recognized the Division's obligation to establish that B.L.C. remained unwilling or unable to eliminate the harm endangering the child's health and development and that further delay of permanency pending B.L.C.'s development of an ability to provide care and stability would further harm the child. N.J.S.A. 30:4C-15.1(a)(2); In re Guardianship of K.H.O., 161 N.J. 337, 352 (1999).
In K.H.O., the Court explained that the second prong of the best interests standard "focus[es] on the measures taken by the parent after the child's birth to maintain the parent-child relationship and to foster an environment leading to normal child development." 161 N.J. at 352. The Court determined that the mother's failure to provide a safe and stable home and take custody and care for her daughter between birth and the termination trial demonstrated her parental unfitness and continuing harm under prong two. Id. at 353-54.
In this case, the judge concluded that B.L.C. would be unable to care for S.B.T. or provide her with a stable and protective home in the reasonably foreseeable future and was unable or unwilling to correct her deficiencies. He based that conclusion on B.L.C.'s delayed and failed participation in evaluations and the treatment and parental education programs that were recommended and provided to address her needs. The judge set forth the opportunities B.L.C. missed at length. In addition, he relied on B.L.C.'s poor attendance at visitation. Appropriately, the judge focused on S.B.T.'s needs, especially Dr. Singer's opinion on her immediate need for permanency given B.L.C.'s inability to provide it.
Having considered B.L.C.'s objections to those findings, we conclude that they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). The judgment is based on findings of fact that are adequately supported by evidence, R. 2:11-3(e)(1)(A); N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008), is not wide of the mark, N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012), and it is not otherwise a product of abuse of discretion.
To the extent that B.L.C. argues that the judge overlooked evidence of her progress and should have given her more time to improve, the claim is not supported by the record and overlooks this child's immediate need for care and nurture in a stable environment.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION