NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. IN THE MATTER OF THE GUARDIANSHIP OF

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Superior Court of New Jersey, Appellate Division.

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff–Respondent, v. S.M.T., Defendant–Appellant. IN RE: THE GUARDIANSHIP OF S.G., a minor.

DOCKET NO. A–3470–12T1

-- December 11, 2013

Before Judges Yannotti, St. John and Leone. Joseph E. Krakora, Public Defender, attorney for appellant (Howard Danzig, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel;  Mary Hurley, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Karen A. Lodeserto, Designated Counsel, on the brief).

In this appeal, defendant S.M.T. (Sally) appeals from the Family Part's order terminating her parental rights to her daughter, S.G. (Sue), who was born in December 2009.1  Defendant argues that the Division of Child Protection and Permanency (the Division) failed to prove by clear and convincing evidence all four prongs of N.J.S.A. 30:4C–15.1. We have considered these arguments in light of the record and applicable legal standards.   We affirm.

I.

Sue's biological father A.G. (Art), did not participate at trial and does not appeal the court's order terminating his parental rights.   Sally and Art are not married and Sue is Sally's only child.   The Division's initial contact occurred on December 22, 2009, when a hospital reporter notified the Division that both Sally and Sue tested positive for marijuana at the time of Sue's birth.   Sally was eighteen-years-old at that time.   As a child, Sally had been placed by the Division in foster care as a result of her parents' substance abuse.

When the Division's caseworker met with Sally at the hospital, the caseworker learned that she had an apartment to live in after discharge from the hospital, was receiving Temporary Rental Assistance (TRA), food stamps, a monthly cash grant, and services from the Women, Infants, and Children Program (WIC).   Sally admitted that she had smoked marijuana three or four times after learning she was pregnant.   She also tested positive for marijuana on December 1, 2009, prior to Sue's birth.

Before Sally's discharge, the caseworker visited her apartment and found appropriate provisions had been made for Sue. On December 24, Sue was discharged and went home with her mother.   The Division arranged for Bayada Nurses Home Visiting Services to go to the home on a regular basis.   Bayada attempted to see Sally and Sue but was unable to find them at home on December 27 and December 28.   The home was visited on December 29.   The Division caseworker spoke with Sally on January 4, 2010 to confirm that a psychological evaluation had been scheduled for Sally on January 11.   Sally missed that appointment and it was later rescheduled in April.

During February and March 2010, the caseworker went to Sally's home on four dates and also called her on two other dates but could not contact her.   At a home visit on April 1, the caseworker informed Sally that a psychological evaluation had been rescheduled for April 13, but Sally did not appear for the appointment.   The appointment was rescheduled for May, but Sally, once again did not appear.   At a home visit on June 17, the caseworker spoke to Sally about her failure to attend her scheduled appointments.   Sally reported that she had made plans to reschedule the appointment for a substance abuse assessment the next day with her Social Services Case Manager, because otherwise all her benefits would be stopped.   She reported that her food stamps benefits had already been reduced.

On six dates in July, the caseworker attempted to visit Sally's home and also attempted to reach her by telephone without success.   Finally, on August 25, the caseworker was able to make a home visit after gaining entry from another resident of the building, as Sally did not grant her access.   Sally informed the worker that she had been sanctioned by the Board of Social Services for failing to attend the Work First Program.   Sally was receiving WIC benefits and rental assistance, but was no longer obtaining cash benefits or food stamps.   The caseworker offered to contact the Social Services Case Manager to assist Sally in having her sanctions lifted.   She also encouraged Sally to work on her goal of obtaining a general education development certification and job training, explaining that the Work First Program could help her with those goals, and that the Division would assist her in applying for child care.   Since Sue was not at home during the visit, the caseworker made an appointment to return on August 27.   On that date, Sally did not answer the door, instead sending a text message asking the caseworker to reschedule the visit.

Finally, on August 30, the caseworker saw Sue, after making an unannounced visit.   Sally informed the worker that her food stamps had been reinstated, but that she would have to return to Social Services in order to get cash assistance.   On September 8, Sally was evicted from her apartment.

Sally was notified of an appointment for a substance abuse evaluation on September 9, but she failed to appear.   The appointment was rescheduled for September 21, but again Sally did not appear.   On September 28, the caseworker found Sally living at her grandfather's home with Sue. After the caseworker reminded Sally that she needed to keep the Division apprised of her address, Sally informed the worker that all of her financial assistance had been cut off except for WIC due to her non-compliance with Social Services requirements.   The caseworker advised Sally that she had to address the sanctions with Social Services.

Yet another substance abuse evaluation was scheduled for October 6, and transportation was provided, but Sally was not home when the transport arrived.   On October 13, the caseworker went to Sally's grandfather's home, but learned that Sally and Sue were no longer staying there as the electricity to the home had been shut off.   The worker learned that Sally and Sue were moving among relatives' homes.   Sally's mother said that she would arrange for Sally to meet the caseworker at her home the next day.   When the caseworker returned, she found the home without electricity.   The caseworker offered to seek other agencies to assist the family.   When told that she and Sue could not stay in a home without electricity, Sally was asked where she planned to stay.   Sally was reluctant to give information to the caseworker, but said that they were staying in her aunt's apartment and sleeping on a sofa sleeper.

The caseworker examined the grandfather's home in case electricity was restored, and found that it was in a deplorable state, with trash, clothes, and clutter scattered about.   When asked about the status of her applications for Social Services benefits, Sally informed the worker that since she received funds from Camden County, she would not be able to receive funds from Gloucester County until the next month.   The worker asked Sally if she had received the letters detailing her appointments for evaluations, and Sally acknowledged that she had.   Sally was then told that transportation had been arranged for the substance abuse evaluation for the following Monday.

Sally finally underwent a substance abuse assessment through the Center for Family Services (CFS) on October 18, 2010, and was administered a drug screen.   The drug screen showed positive results for benzodiazepines and marijuana.   The report indicated that Sally's THC 2 levels had concentrations greater than 2000 ng/mL, which is higher than the cut-off level for the test.   The testing laboratory, Redwood Toxicology, reported that this indicated that Sally likely used marijuana every day, several times per day, which was of concern to the CFS evaluator as Sally was also using Xanax (benzodiazepine).   Sally was referred to CFS and an appointment was scheduled for November 8.

On October 25, Sally was reminded that she had a psychological evaluation scheduled for the next day and that transportation had been arranged.   Sally responded, via a text message, that she did not plan to attend, and that someone asking her questions was not a priority for her.

On October 26, after being advised of Sally's positive drug test, the Division initiated an emergency removal, took custody of Sue and placed her in a resource home.   When the Division and the Human Services police went to pick up Sue, they were told Sue had been cared for by relatives the prior two nights, and Sally had not stayed at the relatives' home.   Sue was sleeping on a sofa sleeper, as there was no crib.

The Division filed a verified complaint and order to show cause on October 28, 2010, which the judge heard that day.   At a conference with the Division prior to the court proceeding, when Sally was asked if she knew how using drugs impacted Sue's safety and well-being, she replied, “I can get high and still take care of my daughter because it doesn't affect me.”   The judge granted custody of Sue to the Division, ordering the Division to assess as possible caretakers any relatives or other persons submitted by defendants.   The judge found removal was appropriate because of Sally's “housing problems” and positive drug use which limited “her parenting capacity.”   Sally was granted weekly visitation with Sue to be supervised by the Division.   Sally offered one relative for possible placement, who was ruled out by the Division.   No other relatives were offered or came forward.

In November 2010, the judge ordered that Sally attend her scheduled substance abuse treatments and psychological evaluations.   However, Sally failed to attend substance abuse treatment and only attended the initial intake evaluation at Family First, the substance abuse program.   Thereafter, she missed the next four scheduled dates.   As a result, Family First discharged Sally from the program for non-compliance.   Throughout the course of the litigation, Sally never completed any drug program.

In January 2011, the court ordered Sally to comply with psychological evaluations and substance abuse evaluations and treatment.   Sally missed the first appointment, but attended the next and underwent testing.   She again tested positive for marijuana.   In February, Sally started an out-patient drug and treatment program at CFS. A psychological evaluation was conducted on February 7, she tested positive for marijuana on February 7, February 15, and March 3. Treatment was terminated on March 28, as Sally requested in-patient services.

On February 28, 2011, Sally stipulated, in lieu of a fact finding hearing, that she placed Sue at risk by using marijuana at high levels while in a caretaker role.   She also admitted to losing housing eligibility as a result of not cooperating with Social Services.   The court ordered her to attend Family First and to comply with the recommendations of her psychological evaluation.

At Sally's request, an in-patient program at Sunrise House was arranged and the Division transported her to the program.   However, against medical advice, she left the in-patient program.   On April 6, she did not attend a scheduled visit with Sue. On the same day, the Division scheduled another substance abuse evaluation;  however, she missed the appointment and it was rescheduled for April 11, which she also missed.   She finally attended the third appointment on April 18, where she acknowledged that she signed herself out of the in-patient program after one day and stated that she no longer wished to participate in an in-patient program.   Taking into account Sally's wishes, the Division recommended she participate in an intensive out-patient program.

In May 2011, Sally was recommended to a different drug treatment program, however, in June, the program reported to the Division that Sally had not been attending.   At the end of June, Sally was discharged from the program due to non-compliance.   In August, Sally started another substance abuse program at Services to Overcome Drug Abuse Among Teenagers (SODAT).   However, the Division learned in early September that Sally was not attending the program.   Sally again tested positive for marijuana on September 8, September 14, September 21, September 22, and September 27.   On September 28, she was discharged from SODAT's program.   A guardianship complaint was filed on February 23, 2012.   An order was entered that same day, giving Sally notice that the purpose of the action was to terminate her parental rights.   Another hearing was held on April 26, 2012, where the court again ordered Sally to attend psychological and substance abuse evaluations.   Dr. James Loving conducted a psychological evaluation in August 2012.

Hearings were scheduled for September 24, and November 9, 2012, but Sally failed to appear.   At the November 9 hearing, the judge was informed that Sally was not in any treatment and that she was homeless, moving from friend to friend or wherever she could find some place to sleep.   She had reapplied for welfare and attempted to receive assistance from the WorkFirst New Jersey Substance Abuse Initiative (SAI).   The judge also learned that Sue's foster mother had expressed interest in adopting her.

At the two-day trial in January and February 2013, the Division presented two witnesses, psychologist, Dr. James Loving, and caseworker, Michele Johnson.   On the first day of trial, Sally tested positive for marijuana and benzodiazepines.   Sally did not testify or offer any witnesses.

Loving discussed the August 2012 psychological evaluation of Sally, and bonding evaluation.   One of Loving's main concerns in August was with Sally's housing stability.   Loving noted increased concerns for her housing stability after learning subsequent to the evaluation that she became homeless.

Loving emphasized, “as of [his] evaluation in August, what's most pertinent is that throughout the life of this case [Sally] has continued to use marijuana, she had been almost entirely noncompliant with services despite quite a few referrals to evaluations and treatments.”   He noted that Sally openly acknowledged she had a problem with marijuana, and she was aware that this problem created a barrier to reunification.   He further stated, “on the other hand, [Sally] was very firm in saying that her marijuana use did not have any negative affect on her in terms of her thinking or her behavior or her parenting,” despite the fact that she was smoking several times a day, every day, while Sue was under her care.   When she indicated her desire to be drug free, she explained her motivation was strictly in terms of the consequences.

Loving detailed Sally's background noting that she was placed in the Division as a child and removed from her parents' care as both parents were addicted to crack cocaine.   Sally never perceived issues with her living situation until the Division became involved.   Sally's mental status exam did not indicate any serious mental health issues, and she was cooperative with the overall evaluation.   Loving expressed primary concerns for Sally's severe history of marijuana dependence, and her stability, in particular her housing stability.   He stressed:

She acknowledges that she has a problem, but only vaguely, and when pressed for details she makes comments that make very clear that she doesn't see it as a problem․  She's at extremely high risk for continuing marijuana use and she has a very poor prognosis, unfortunately for benefitting from treatment․

Loving analyzed “[Sally] as being at risk for escalating to other drugs as well.”   He also expressed his concerns for Sally's inability to maintain stable independent housing.   Although he recognized Sally's young age, he stated, “she has not shown any ability to begin to support herself and to live an independent lifestyle.”   Loving testified that although he does not have major concerns regarding Sally's ability to care for her daughter and show that she loves her, the surrounding risks “just overshadow that in terms of her ability to provide a safe and stable home for her daughter, she's just not able to do so.”   He also indicated serious concerns for her consistent noncompliance and treatment avoidance.

With respect to the bonding evaluation, Loving characterized the relationship as one where Sue had a positive and moderately strong attachment to both Sally and her foster mother.   He stated that in terms of attachment, Sue could transition well from her caretaker to her mother.   Loving, however, described the risks that Sue would encounter if she was returned to Sally.   He stated:

Unfortunately [Sally] has some real risks in terms of housing stability, substance abuse, risks for child neglect and poor supervision, and for those reasons I would be very concerned about her ability to help [Sue] transition safely and feel secure and feel safe if she's moving from one home to another ․ or if she's left unsupervised.

Michelle Johnson, the caseworker, attested to the various efforts made by the Division to provide services to Sally.

Johnson said that throughout the process, the Division experienced difficulty keeping track of Sally's location, as she was constantly moving between residences.   Johnson acknowledged that after the Division took custody of Sue, the Division's workers continued to work with Sally to get her to become involved in substance abuse treatment, however, she consistently failed to attend treatment and appointments.   Johnson also said that there were issues with visitation.   Specifically, a letter dated December 8, 2011 from the RENU 3 program demonstrated Sally's noncompliance.

Currently [Sally] has been inconsistent with RENU as she has been noncompliant with substance abuse treatment, supportive counseling, use of cell phone during visits and no calls/no shows.   As the parenting coach works to support [Sally] to reach her goal, [Sally] has had outbursts and she yells and curses at the parenting coach.  [Sally] has demonstrated that she has little control over her feelings as she struggles to balance her goals and feelings.   RENU is not recommending reunification for [Sally] and her daughter, [Sue]. It appears to RENU through observation that [Sally] does not take her visits seriously.

However, despite the inconsistent nature of Sally's visits, she had been able to manage several visits.   Johnson also noted that Sally had visited Sue on at least twelve occasions and observed no developmental delays or significant medical needs.   However, Sue was beginning to show signs of asthma.   Johnson concluded that the Division recommended Sue's adoption by the caregiver with whom she had been residing.

The judge placed her oral decision on the record on February 14, 2013, and entered an order on March 5, 2013, terminating Sally's and Art's parental rights to Sue. The judge found that the Division had proven all four prongs of N.J.S.A. 30:4C–15.1(a) by clear and convincing evidence with respect to both defendants.   Over the Division's objection, the judge granted Sally's request that visits with Sue were to continue pending appeal.   This appeal ensued.

II.

Our review of an order terminating parental rights is limited.  “We will not disturb the family court's decision ․ when there is substantial credible evidence in the record to support the court's findings.”  N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)(citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)).  “We ordinarily defer to the factual findings of the trial court because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand;  it has a ‘feel of the case’ that can never be realized by a review of the cold record.”  Ibid. (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007)).

We accord particular deference to the judge's fact finding because of “the family courts' special jurisdiction and expertise in family matters․”  N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010)(internal quotation marks and citation omitted).  “Only when the trial court's conclusions are so ‘clearly mistaken’ or ‘wide of the mark’ should an appellate court intervene and make its own findings to ensure that there is not a denial of justice.”  E.P., supra, 196 N.J. at 104 (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007)).

“[W]here the focus of the dispute is ․ alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom, the traditional scope of review is expanded.”  M.M., supra, 189 N.J. at 279 (internal quotation marks and citations omitted).   Yet, “even in those circumstances[,] we will accord deference unless the trial court's findings went so wide of the mark that a mistake must have been made.”  Ibid. (internal quotation marks and citations omitted).

“The focus of a termination-of-parental-rights hearing is the best interests of the child[,]” and the Division must “satisfy by clear and convincing evidence four factors, known as the best-interests-of-the-child test, set forth in N.J.S.A. 30:4C–15.1(a).”  N.J. Div. of Youth and Family Servs. v. F.M., 211 N.J. 420, 447 (2012) (citations omitted).   Those statutory factors are:

(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).]

The four prongs require a fact-sensitive analysis, and “are neither discrete nor separate.   They overlap to provide a composite picture of what may be necessary to advance the best interests of the children.”  M.M., supra, 189 N.J. at 280 (quoting N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J.Super. 235, 258 (App.Div.2005)) (internal quotation marks omitted).

A.

As to prong one, the judge found that Sally's marijuana abuse “does foreseeably impact on an ability to raise a child.”   She found that Sally was not able to take care of Sue even with the help of Social Services and was not able to avoid homelessness.   Before us, Sally claims that “there was no injury at all to this child.”

“Under prong one of the best-interests test, [the Division] must show that the alleged harm ‘threatens the child's health and will likely have continuing deleterious effects on the child.’ ”  F.M., supra, 211 N.J. at 449 (quoting In re Guardianship of K.H.O., 161 N.J. 337, 352 (1999)) (citation omitted).   The Division need not “wait until a child is actually irreparably impaired by parental inattention or neglect.”  Ibid. (internal quotation marks and citation omitted).  “[H]arm caused by circumstances attendant to the parent-child relationship is as pertinent as any harm caused directly by a parent.”   M.M., supra, 189 N.J. at 289.

Here, Sue was exposed from birth to Sally's chronic substance abuse and unwillingness to accept the help offered.   The record adequately demonstrates that, in addition to her drug use, Sally's homelessness endangered Sue's health and safety.   Sally demonstrated a lifestyle that was transient, by missing or cancelling visitations and generally being difficult to contact when the Division and referred services tried to reach her.

Sally failed to comply with any recommended drug treatment and consistently tested positive for marijuana.   We note that “[t]he absence of physical abuse or neglect is not conclusive” as to prong one.  Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 605 (1986) (citation omitted).   The test is “whether the child's safety, health or development will be endangered in the future and whether the parents are or will be able to eliminate the harm.”   Div. of Youth & Family Servs. v. A.G., 344 N.J.Super. 418, 440 (App.Div.2001) (emphasis added).   The proof as to the risk of harm to Sue caused by Sally was clear and convincing.

B.

As to prong two, after reciting Sally's failed referrals for substance abuse treatment, the judge found that even with “the help of the Division, she wasn't able to avoid homelessness for her and her child or deal with the marijuana issue, which the court does find [consistent] with chronic use [that] does foreseeably impact on an ability to raise a child.”   The judge also noted Sally's failure to address her problems—“[s]o, it's two and a half years later and I can't say how this day is any different than day one, two or three, except for all the failed efforts here.”   Sally “has not shown a readiness to address these problems in time to stop causing [Sue] harm.”

The second prong “relates to parental unfitness,” which may be established by demonstrating that:  (1) “the parent is ‘unwilling or unable to eliminate the harm’ ”;  or (2) “the parent has failed to provide a ‘safe and stable home’ ” and “a ‘delay in permanent placement’ will further harm the child.”  K.H.O., supra, 161 N.J. at 352 (quoting N.J.S.A. 30:4C–15.1(a)(2)).   The inquiry is “whether that parent can raise the child without inflicting any further harm.”  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)), certif. denied, 190 N.J. 257 (2007).  “Concern and efforts by a natural parent after his or her child has been removed from the home, and making genuine and successful efforts to overcome the cause of the removal is of enormous significance” when determining fitness.  N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J.Super. 418, 437 (App.Div.2009).

The Division's proofs were clear and convincing.   Sally thwarted all attempts at substance abuse treatment.   She habitually tested positive for marijuana, including on the first day of trial.   Additionally, despite the Division's efforts, she remained homeless.

C.

The judge found as to prong three that “the Division's efforts to be very reasonable and diligent.”

Sally contends that her “terrible experience with the Division as a child” must be considered in evaluating the efforts made by the Division.   Sally asserts that the “Division should have realized that it was itself a negative factor in this mother's life and should have come up with some creative method to get this young mother help rather than simply follow a knee jerk bureaucratic approach.”

N.J.S.A. 30:4C–15.1(c) defines “reasonable efforts,” as actions by the Division “to assist the parents in remedying the circumstances and conditions that led to the placement of the child and in reinforcing the family structure․”  Provision of services under the third prong “contemplates efforts that focus on reunification,” K.H.O., supra, 161 N.J. at 354, and “may include consultation with the parent, developing a plan for reunification, providing services essential to the realization of the reunification plan, informing the family of the child's progress, and facilitating visitation.”   M.M., supra, 189 N.J. at 281.

A court must consider whether the Division actively participated in the reunification effort.   See In re Guardianship of D.M.H., 161 N.J. 365, 390 (1999).   The reasonableness of the Division's efforts “is not measured by their success.”  Id. at 393.   Ultimately, “[t]he failure or lack of success of [the Division's] efforts does not foreclose a finding that the Division met its statutory burden to try to reunify the children with the family.”  N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J.Super. 576, 620 (App.Div.) (citing D.M.H., supra, 161 N.J. at 393), certif. denied, 192 N.J. 68 (2007).   Moreover, “[e]ven if the Division ha[s] been deficient in the services offered to” a parent, reversal of the termination order is not necessarily “warranted, because the best interests of the child controls.”  Id. at 621.

In this case, the Division made repeated efforts to help Sally address her drug abuse.   She failed to comply in every instance.   When, after much effort, the Division was able to secure her admittance to a residential program and to an outpatient program, Sally would not take advantage of either program.   The Division also made efforts to assist Sally with her homelessness and again, she failed to sufficiently cooperate.   Any claim the Division failed to make reasonable efforts is without merit.   The proofs under prong three were clear and convincing.

D.

In considering the fourth prong, the judge credited Loving's testimony and opinion.

The statute's fourth prong mandates a determination as to “whether a child's interest will best be served by completely terminating the child's relationship with that parent.”  E.P., supra, 196 N.J. at 108.   The court must examine the child's bond with both biological and foster parents.  K.H.O., supra, 161 N.J. at 355.  “[W]here it is shown that the bond with foster parents is strong and, in comparison, the bond with the natural parent is not as strong,” termination may be appropriate.  Id. at 363.  “[A]fter considering and balancing the two relationships,” the question becomes 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.”  Id. at 355.

Loving testified that Sue had developed a positive and moderate bond with both Sally and her foster mother.   Nevertheless, Loving opined that Sue would be at risk in “terms of housing stability and in terms of poor supervision or risk for neglect.”   Loving recommended termination of parental rights to ensure Sue's future safety.   Based upon this expert testimony, the Division proved the fourth prong of the statutory test by clear and convincing evidence.

In a separate point, Sally argues that there was no nexus between her drug use and harm to Sue.4 The New Jersey Supreme Court recently held that “not every instance of drug use by a parent ․ standing alone, will substantiate a finding of abuse and neglect․”  N.J. Dept. of Children and Families, Div. of Youth and Family Servs. v. A.L., 213 N.J. 1 (2013).   Instead, the focus should be “on the risk of substantial, imminent harm to the child․”  Ibid. The Court in A.L. addressed a question “of statutory interpretation”:  “whether a court can find ‘abuse’ or ‘neglect’ of a child under Title 9 if an expectant mother uses drugs during pregnancy but there is no evidence of actual harm when the baby is born.”  Id. at 1. However, this case is not factually analogous to A.L. Furthermore, while reversing the Appellate Division's judgment affirming the trial court's finding of abuse or neglect, the Court reaffirmed that “[a] court ‘need not wait to act until a child is actually irreparably impaired by parental inattention or neglect.’ ”   Id. at 24–25 (quoting D.M.H., supra, 161 N.J. at 383).

Affirmed.

FOOTNOTES

1.  FN1. We have fictionalized the names of some of those involved to protect the identity of the child.

2.  FN2. THC refers to tetrahydrocannabinol, the main active chemical compound in marijuana.

3.  FN3. RENU or Revitalizing Environments through Nurturing Unity is a program affiliated with the DCPP that provides supervised visitation to reunify parents with their children in foster care.

4.  FN4. We note that for purposes of Title 9, Sally stipulated, in lieu of a fact finding hearing, that she placed Sue at risk by using marijuana at high levels while in a caretaker role.

PER CURIAM

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