NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. M.N.P.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

M.N.P.,

Defendant-Appellant.

__________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF Y.J., a minor.

______________________________________________________________

October 24, 2013

Submitted September 25, 2013 Decided

Before Judges Sapp-Peterson and Maven.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-0137-12.

Joseph E. Krakora, Public Defender, attorney for appellant (Robert W. Ratish, Designated Counsel, on the brief).

Joseph J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Michelle D. Perry-Thompson, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for Y.J., a minor (Lisa M. Black, Designated Counsel, on the brief).

PER CURIAM

Defendant M.P. (Monica),1 the biological mother of Y.J. (Yolanda), appeals from the trial court order terminating her parental rights and granting guardianship to the Division of Child Protection and Permanency (the Division)2 to secure the child s adoption.3 On appeal, defendant argues the evidence was insufficient to satisfy the statutory requirements of N.J.S.A. 30:4C-15.1a. The Law Guardian supported termination before the trial court and, on appeal, joins the Division in urging us to affirm.

Based on our review of the record and applicable law, we are satisfied that the Division proved by clear and convincing evidence the requisite statutory factors required to terminate defendant's parental rights. Accordingly, we affirm substantially for the reasons expressed by Judge Linda G. Baxter, (retired and temporarily assigned on recall), in her thorough and well-reasoned October 15, 2012 oral opinion.

I.

We briefly summarize the relevant facts, drawn from the record established in the trial court. At the time of the precipitating incident, Monica had two children living with her,4 two-year-old Yolanda and four-month-old Anne. On November 27, 2010, the Division received a referral from the Trenton Police Department that Monica and her husband Anthony, Anne's biological father, brought Anne to a local hospital, in critical condition due to a brain hemorrhage. A Division investigator spoke with an emergency room nurse who attended to Anne upon her arrival at the hospital. According to the nurse, Anne was unresponsive when she arrived. The child had a fever and had suffered a seizure. She stopped breathing during a CAT-scan and was placed on a ventilator to help her breathe. The CAT-scan revealed severe swelling, and bleeding in the back of Anne's brain. In addition, the nurse told the Division investigator that Anne had several burn marks, in varying healing stages, on her right torso, her inner legs and thighs, as well as on both ankles.

Due to the critical nature of Anne's condition, she was airlifted to Robert Wood Johnson Hospital in New Brunswick. The nurse there reported to the Division investigator that the cause of Anne's brain injury was still unknown, but that the burns on the child's body raised suspicions of abuse. She also stated that Anne might not live.

The Division's preliminary investigation raised concerns with respect to Monica's mental health and unstable housing, as well as serious questions regarding the circumstances surrounding the cause of Anne's burns and brain injury. On November 30, 2010, the Division initiated an emergency removal of Yolanda and Anne from Monica and Anthony. That same day, the trial court granted the Division care and custody of the children. Yolanda was placed in a foster home and Anne remained hospitalized.5

Following a fact-finding hearing on March 21, 2011, during which no testimony was adduced, but exhibits were considered, the trial court found by clear and convincing evidence that:

Defendant(s) [Monica] and [Anthony] abused or neglected the child(ren) in that they failed to obtain immediate medical attention for [Anne] on two separate occasions for injuries that occurred at two different times and the child was only four months old at the time of the November 2010 injuries[.]

At an October 27, 2011 permanency hearing, the court accepted the Division's plan of long-term specialized care for Anne, finding that she would remain hospitalized for the rest of her life and require "around the clock medical care." On November 17, 2011, the court accepted the Division's permanency plan for Yolanda, which provided for termination of Monica's parental rights followed by adoption.

On May 16, 2012, Linda Jeffrey, Ph.D., conducted a psychological evaluation of Monica as well as a bonding evaluation of Monica and Yolanda. Based upon the results of several psychological diagnostic tests, Dr. Jeffrey diagnosed Monica with Bipolar Disorder (mixed with psychotic features); Generalized Anxiety Disorder; Adjustment Disorder; Paranoid Personality Disorder with schizoid and narcissistic personality traits and avoidant personality features. She concluded that "[these] problems are highly likely to decrease her parenting capacity." Dr. Jeffrey opined that Monica "is not prepared to provide a minimal level of safe parenting. It is highly likely that [Yolanda] would be at risk of harm in her care."

With respect to the bonding evaluation conducted between Monica and Yolanda, Dr. Jeffrey opined that Yolanda had an insecure attachment to Monica and that such loose attachment is "in and of itself, harmful to children," as it is an indication of a lack of trust by the child towards the parental figure. Dr. Jeffrey also noted that Monica displayed little understanding of child development and that Monica's interaction with Yolanda revealed Monica had an unstructured, "laissez-faire parenting style," which impaired Yolanda's ability to relate to her as a "parenting figure or a secure base." As such, Dr. Jeffrey concluded Yolanda is unlikely to suffer serious and enduring harm if her relationship with Monica were severed. By contrast, Dr. Jeffrey found that Yolanda had a secure, affectionate bond with her foster mother and viewed her as a parenting authority.

The trial court conducted a four-day guardianship trial. The Division offered testimonial evidence from Dr. Jeffrey and Division caseworker Dawn Hoyle. Monica testified on her own behalf.

After observing the witnesses' testimony, examining exhibits entered into evidence, and hearing counsel's arguments, Judge Baxter found the Division had satisfied, by clear and convincing evidence, the four-prong test for termination of parental rights as codified in N.J.S.A. 30:4C-15.1. Judge Baxter concluded that Yolanda's best interests required severance of Monica's parental ties. This appeal ensued.

II.

Parents have a fundamental constitutional right to raise their children. N.J. Div. of Youth and Family Servs. v. A.W., 103 N.J. 591, 599 (1986). The constitutional protection of parental rights is tempered, however, "by the State's parens patriae responsibility to protect the welfare of children." In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). Accordingly, the Division is authorized to initiate a petition to terminate parental rights in the "best interests of the child." In A.W., supra, 103 N.J. at 604-11, the Supreme Court identified four factors to analyze when deciding whether the termination of parental rights is in a child's best interest. The Legislature codified A.W. as follows:

(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 division 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-15.1a.]

These criteria are neither separate nor discrete. K.H.O.,supra, 161 N.J. at 348. Rather, they "overlap with one another to provide a comprehensive standard that identifies a child's best interests." Ibid.

The Division bears the burden of establishing each enumerated prong by clear and convincing evidence. N.J. Div. of Youth and Family Servs. v. P.P., 180 N.J. 494, 506 (2004). "The considerations involved in determinations of parental fitness are 'extremely fact sensitive' and require particularized evidence that address the specific circumstances in the given case." K.H.O., supra, 161 N.J. at 348.

The standards governing the termination of parental rights are strict, and the scope of our review is especially limited. Id. at 347. A trial judge's factual findings should not "be disturbed unless 'they are so wholly insupportable as to result in a denial of justice,' and should be upheld whenever they are 'supported by adequate, substantial and credible evidence.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1983), (quoting Rova Farms Resort v. Investors Insurance Co., 65 N.J. 474, 483-84 (1974).

III.

Combining the first and second statutory prongs, Monica's first claim of error is that the Division failed to prove, by clear and convincing evidence, that she abused or neglected Yolanda, and that she was unable or unwilling to eliminate the harm facing Yolanda or provide a safe and stable home for her. See N.J.S.A. 30:4C-15.1(a).

To establish the first subpart of the statute, the Division "must prove harm that 'threatens the child's health and will likely have continuing deleterious effects on the child.'" New Jersey Dep't of Children & Families v. A.L., 213 N.J. 1, 25 (2013) (quoting K.H.O., supra, 161 N.J. at 352). "[T]he best interests standard does not concentrate on a single or isolated harm or past harm as such. . . . [T]he focus is on the effect of harms arising from the parent-child relationship over time on the child's health and development." K.H.O., supra, 161 N.J. at 348 (citing A.W., supra, 103 N.J. 591, 604-10 (1986)).

In making her decision, Judge Baxter found that Monica's mental health problems, and, critically, her noncompliance with treatment, undeniably placed Yolanda's safety, health and development at risk of harm. N.J.S.A. 30:4C-15.1(a)(1). She relied on the Supreme Court's holding in New Jersey Division of Youth and Family Services v. F.M., 211 N.J. 420, 450-51 (2012), that "[m]ental illness, alone, does not disqualify a parent from raising a child. But it is a different matter if a parent refuses to treat [her] mental illness[.]"

In this case, Monica's bipolar disorder has been identified as one of the paramount problems she needs to overcome; however, there is sufficient evidence of record that Monica denied having the disorder, and that she repeatedly failed to meaningfully engage in services aimed at treating her disorder. The judge specifically noted that over the course of the litigation, the Delaware Valley Psychological Services, a program designed to treat Monica's bipolar disorder, terminated her twice for her failure to attend. Further, the judge credited Dr. Jeffrey's testimony that the services Monica received from Services Empowering Rights of Victims (SERV)6 did not address her bipolar disorder and therefore could not substitute for the treatment she would have received at Delaware Valley.

In reaching her conclusion as to the first prong, Judge Baxter stated:

I find from the evidence in the record that the first prong is satisfied. [Monica's] severe mental illness, . . . which she refuses to treat, endangers [Yolanda's] safety, health or development. The absence of any harm to [Yolanda] herself is not dispositive. This is because [Monica's] serious neglect of [Anne], in not obtaining treatment for her burns and in taking her to Trenton by train when she was suffering a life threatening brain injury, this cannot - - such facts cannot be ignored. [Monica's] past performance as to [Anne] serves as evidence of the extent to which [Monica's] mental illness endangers the safety and life of her children.

In addition, we observe that the trial judge's finding that Yolanda was an "abused or neglected child," was more than amply demonstrated by the evidence adduced at the fact-finding hearing on March 21, 2011. In seeking a finding that Yolanda met the definition contained in N.J.S.A. 9:6-8.21(c)(4), the Division was only required to prove by a preponderance of the evidence that Yolanda was a child "whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his parent or guardian to exercise a minimum degree of care" (emphasis added). In this regard, "proof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of another child." N.J.S.A. 9:6-8.46(a)(1). The fact that Monica was found to have abused or neglected Anne provided ample support for a finding that Yolanda met the definition of an "abused or neglected child." This circumstance, as well as the other evidence presented, provided an adequate basis for the judge's findings and ultimate disposition in this matter, and we have been provided with nothing that would warrant our second-guessing of that determination.

As to the second prong, we examine the Family Part judge's determination as to "whether the parent has cured and overcome the initial harm that endangered the health, safety, or welfare of the child, and is able to continue a parental relationship without recurrent harm to the child." K.H.O., supra, 161 N.J. at 348. The relevant inquiry under the second prong is "whether the parent can become fit in time to meet the needs of the child." N.J. Div. of Youth and Family Servs. v. T.S., 417 N.J. Super. 228, 244 (App. Div. 2010) (citations omitted), certif. denied, N.J. Dep't. of Children & Family v. K.G., 205 N.J. 519 (2011).

In determining that the Division had amply satisfied the second prong, the court reiterated Monica's noncompliance with treatment at Delaware Valley, finding that:

[b]y not treating her mental illness, [Monica] is both unable and unwilling to eliminate the harm facing [Yolanda], thereby satisfying that portion of the second prong. I further find that the delay in permanent placement will add to the harm and I find that from the uncontroverted and highly persuasive testimony of Dr. Jeffrey on that subject.

We also find no merit in defendant's arguments that the second subpart of the statute was not proven. The Division can prove this subpart by demonstrating that the parent has not cured the problems that led to removal of the child. K.H.O., supra, 161 N.J. at 348-49. Here, the court concluded that defendant had not eliminated the risk of harm to the child.

The third prong of the best interests test requires the Division to undertake reasonable efforts to reunite the family. In re Guardianship of D.M.H., 161 N.J. 365, 386-87 (1999). "That prong of the standard contemplates efforts that focus on reunification of the parent with the child and assistance to the parent to correct and overcome those circumstances that necessitated the placement of the child into foster care." K.H.O., supra, 161 N.J. at 354 (citation omitted). "Like considerations of parental fitness, an evaluation of the efforts undertaken by [the Division] to reunite a particular family must be done on an individualized basis." D.M.H., supra, 161 N.J. at 390. Importantly, however, the Division's efforts need not be successful. Id. at 893.

Judge Baxter found that the Division had made extensive efforts to provide services and that such efforts were clearly reasonable:

[T]he Division provided the following services: psychological assessments, a psychiatric assessment, medication monitoring at Project Hope, parenting classes, individual psychotherapy at Delaware Valley Psychological Services, bus passes, creative visitation at Robin's Nest, supervised visitation at the Division offices, and temporary housing at Home Front when [Monica] was homeless. These services are ample. That ultimately the Division's efforts were unsuccessful does not detract from the adequacy of the attempt to achieve reunification.

The third prong also requires the court to consider alternatives to termination of parental rights. N.J.S.A. 30:4C-15.1(a)(3). Such alternatives may include placement of the child with a relative caretaker, which would "obviate the need for termination of parental rights and adoption." N.J. Div. of Youth and Family Servs. v. L.J.D., 428 N.J. Super. 451, 488-89 (App. Div. 2012).

Here, Judge Baxter credited the Division's efforts to place Yolanda with Anthony's sister, S.S. Due to her inability to become licensed, the permanent placement could not occur. Monica did not identify any other relatives for the Division to pursue. The record substantially supported Judge Baxter's determination that the Division did what it could, without success, to secure an alternative to termination.

The fourth prong of the best interests test requires a determination that termination of parental rights will not do more harm than good to the child. K.H.O., supra, 161 N.J. at 354-55. "The question to be addressed . . . 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." Id. 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, that evidence will satisfy the requirement of N.J.S.A. 30:4C-15.1(a)(4)[.]" Id. at 363.

Judge Baxter credited Dr. Jeffrey's testimony regarding the bonding evaluations and found that Yolanda has an "insecure attachment" to Monica and did not regard Monica as a parental authority. By contrast, the judge found that Yolanda had a stronger bond with her foster parent and viewed her as a secure parental authority. Moreover, the judge determined that "the relationship the foster parent had established with [Yolanda] would provide [Yolanda] with the necessary resources to be able to handle any sense of loss she might experience from the termination of [Monica's] parental rights." Like Judge Baxter, we are convinced that Monica is unable to provide the stable and permanent home that Yolanda so desperately needs. We therefore conclude that there is sufficient evidence in the record to support Judge Baxter's finding that termination of Monica's parental rights to Yolanda will not cause the child more harm than good.

1 In light of the sensitive issues involved, we refer to all parties by fictitious names. R. 1:38-3(d).

2 On June 29, 2012, the Governor signed into law A-3101, reorganizing the Department of Children and Families. The Division of Youth and Family Services was renamed and is now known as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012 (amending N.J.S.A. 9:3A-10b).

3 The order also terminated the parental rights of R.T.J, Yolanda's biological father. The court declared him in default, finding that he had not appeared at trial and had expressed no interest in the child. The court also found that R.T.J abandoned Yolanda, whom he had not seen since she was four months old. He has not appealed those determinations.

4 Monica is the biological mother of nine children, seven of whom are not in her custody. Her parental rights were terminated for five of those children, and the court granted custody of the other two children to their respective fathers.

5 On January 13, 2011, the Division noted that Anne had been placed at the Children's Specialized Hospital pending a permanent placement at a long-term care facility, as she required the use of ventilators and feeding tubes and would need life-long specialized care.

6 SERV is a program that provided counseling services to Monica to address her anxiety and post-traumatic stress disorder.