NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. H.W.

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NOT FOR PUBLICATION WITHOUT THE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

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

H.W.,

Defendant-Appellant.

_________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF A.W.,

A Minor.

__________________________________

October 23, 2013

Submitted October 9, 2013 Decided

Before Judges Simonelli and Haas.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-115-12.

Joseph E. Krakora, Public Defender, attorney for appellant (John A. Salois, Designated Counsel, on the briefs).

John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Cristina E. Ramundo, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian,attorney for minor (Nancy P. Fratz, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant H.W. appeals from the June 19, 2012 judgment of guardianship of the Family Part terminating her parental rights to her daughter, A.W. (Alice).1 She argues the New Jersey Division of Youth and Family Services2 (Division) did not prove the four prongs of the termination statute by clear and convincing evidence. The Office of Law Guardian supports the termination on appeal as it did before the trial court.

Based on our review of the record and applicable law, we are satisfied the evidence in favor of the guardianship petition overwhelmingly supports the decision to terminate H.W.'s parental rights. Accordingly, we affirm substantially for the reasons set forth in Judge David Katz's thorough written opinion issued on June 19, 2012 and in the supplemental, oral opinion he rendered on January 10, 2013. We add the following comments.

We previously reviewed a decision by the Family Part finding that H.W. abused and neglected Alice, and we begin by referencing the essential background facts as set forth in our earlier opinion. N.J. Div. of Youth & Family Servs. v. H.W., No. A-1161-11 (App. Div. Oct. 18, 2012) (slip op. at 2-6). The Division first became involved with the family on February 18, 2010 after H.W. and Alice3 were observed by a police officer sitting in a car parked in front of a furniture store. Id. at 4. The officer ran a license plate check that revealed the car was a rental vehicle and that the rental agency had reported it stolen in July 2009. Ibid. The officer arrested H.W., who made arrangements for her sister to come to the police station to pick up Alice. Id. at 5. The sister advised the Division that H.W. had previously been treated for mental illness. Id. at 6. The sister subsequently returned the child to the Division's care and custody. Ibid.4

Thereafter, H.W. was never able to resume custody of Alice. When she was released from jail after the stolen car charge was dismissed, she lived in a shelter and was unable to secure stable housing. The Division arranged for supervised visitation for H.W. with the child, but she frequently argued with, and threatened, the staff. During the visits, H.W. questioned the child about her foster parents and living arrangements, and also constantly criticized Alice for her appearance. Staff observed that H.W. was unable to engage Alice in activities and would only sit and observe the child. While the child did not demonstrate any developmental delays, over time she became more non-verbal and began acting out in school.

The Division arranged for H.W. to receive psychiatric evaluations. However, she presented false information to one of the doctors and conflicting information to another. She missed two medication monitoring sessions. The Division also scheduled H.W. for counseling sessions, but she was resistant to the Division's request that she participate in parenting skills training.

On May 3, 10, and 24, 2012, Judge Katz conducted a guardianship trial. In addition to relying upon the testimony of its caseworkers, the Division presented expert testimony from Dr. Frank Dyer concerning H.W.'s mental illness. The Law Guardian relied upon the expert testimony of Dr. Eric Kirschner. Defendant did not testify at trial and no witnesses were called on her behalf.

Dr. Dyer performed a psychological evaluation of H.W. He concluded H.W. suffered from "a psychotic ego structure or a compromised adaptive ego functioning." Dr. Dyer described H.W.'s condition as

a severe impairment in the individual's capacity to adapt, that is to get along, to adjust to the normal challenges of daily living in terms of relating appropriately to other people, thinking rationally, interpreting reality rationally and accurately, maintaining proper control and regulation of emotions, being able to regulate anxiety, being able to control impulses as appropriate. And being able to anticipate the consequences of behavior.

Dr. Dyer opined that this condition

should disqualify anyone from being entrusted with the care of a child because somebody with a psychotic ego organization or ego structure will not be able to be adequately attuned to realistic problems involving the child, will not be able to be adequately attuned to realistic problems involving the child, will not be able to respond in a realistic or appropriate manner to behaviors that the child may present, will not be able to model appropriate behaviors or interacting with other adults, which will certainly have an effect on the child's personality development and mental health.

As a result of his diagnosis, Dr. Dyer opined that returning Alice to H.W.'s care would pose a "particularly acute" and a "particularly alarming" threat to the child's safety. He further testified that H.W. "does not display any kind of realistic prognosis for achieving adequate parenting capacity being able to provide, at least minimally, adequate parenting for any child within the foreseeable future." Dr. Dyer stated that H.W. would not "be able to derive significant benefits from any kind of treatment that's offered to her . . . ."

Dr. Dyer also performed a bonding analysis between H.W. and Alice. He found the child had an emotional attachment to her mother, but because H.W. "does not offer any prospect of being able to parent this child within the foreseeable future," Dr. Dyer concluded the best option for Alice was to move forward toward adoption.

Dr. Kirschner reached a similar conclusion. He opined that, due to her mental illness, H.W. could not "manage her impulses" or "tolerate any kind of frustration." This condition would pose a "substantial risk of harm" to any child placed in her care.

Based upon the documentary record and the testimony produced during the trial, Judge Katz concluded that all four prongs of the best interests test, see N.J.S.A. 30:4C-15.1(a), were satisfied by clear and convincing evidence. This appeal followed. After our decision reversing the finding that H.W. had abused and neglected Alice because she drove the child in a car that was reported as stolen, we remanded the matter to Judge Katz to determine whether his opinion as to termination was affected by our decision. The judge responded with additional findings in which he thoroughly explained that, based on the uncontradicted psychological testimony, the best interests test compelled the termination of H.W.'s parental rights.

On appeal, H.W. argues that the Division failed to: (1) prove that Alice was harmed by H.W.'s mental condition; (2) prove that she was unable to eliminate or address any harm that may have been caused; (3) provide her with reasonable services to correct the circumstances that led to the child's placement outside of the home; and (4) demonstrate that termination of H.W.'s parental rights will not do more harm than good. However, the record amply supports Judge Katz's contrary conclusion that the Division satisfied each of the four factors of N.J.S.A. 30:4C-15.1(a).

We first address H.W.'s contention that, because of our reversal of the finding that she abused and neglected Alice, there is no longer a factual basis in the record to support the judge's finding that she "harmed" the child within the intendment of N.J.S.A. 30:4C-15.1(a)(1). This argument lacks merit. As we specifically stated in our prior opinion, "[o]ur determination [was] based solely on a snapshot of the case as presented on the record on May 3, 2010." H.W., supra, slip op. at 12.

At that time, the only information available was that H.W. had used extremely poor judgment in driving her child in a car that had been reported stolen by the rental agency. Since May 3, 2010, however, the full extent of H.W.'s severe mental illness has been revealed. The expert testimony at trial, which was unopposed, demonstrated H.W. is not able to parent Alice and will not be able to do so in the foreseeable future. These facts were simply not available at the time of our prior decision, where we reminded the parties that H.W.'s appeal in this case would "be based on the trial court's record as of June 19, 2012." Id. at 12.

Moreover, it is well settled that termination of parental rights and abuse and neglect matters are distinct causes of action with separate statutory elements and different burdens of proof. N.J. Div. of Youth & Family Servs. v. R.D., 207 N.J. 88, 108-112 (2011). There is no requirement that the Division even pursue an abuse and neglect finding before instituting a termination action. N.J. Div. of Youth & Family Servs. v. A.P., 408 N.J. Super. 252, 259 (App. Div. 2009), certif. denied, 201 N.J. 153 (2010). Thus, our prior ruling on whether there was sufficient evidence in May 2010 to find H.W. had abused and neglected Alice based solely on the single incident at issue at that time, did not bar the trial court from considering the entirety of the record developed in this case over the years in which the Division was involved with this family.

H.W. next argues the Division failed to prove that she actually harmed Alice. However, the Division need not demonstrate actual harm in order to satisfy the first prong of the statutory test for termination under N.J.S.A. 30:4C-15.1(a)(1). In re Guardianship of DMH, 161 N.J. 365, 383 (1999). The test is "whether the child's safety, health, or development will be endangered in the future and whether the [parent is] or will be able to eliminate the harm." N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 440 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002). "[A] psychiatric disability can render a parent incapable of caring for his or her children." N.J. Div. of Youth & Family Servs. v. I.Y.A., 400 N.J. Super. 77, 94 (App. Div. 2008). While "[m]ental illness, alone, does not disqualify a parent from raising a child[,]" we may consider the illness's impact on the child. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 450-51 (2012). We have previously recognized the sad reality that a morally blameless parent's significant, but intractable mental disabilities may render him or her unable to parent. A.G., supra, 344 N.J. Super. at 440.

The uncontradicted expert testimony clearly established that H.W. suffered from significant mental illness, which would pose a substantial threat of harm to Alice if the child were ever returned to her care. The expert testimony further demonstrated that H.W.'s condition would not appreciably change in the future, even if she were fully compliant with her treatment regimen. Judge Katz also recounted the numerous services the Division provided to H.W. and her unwillingness and inability to take full advantage of same.

While Alice had developed an attachment with H.W., the expert testimony supported the judge's conclusion that terminating H.W.'s parental rights would not cause the child more harm than good. The experts agreed that any harm to the child resulting from a severance of the parental relationship would not be enduring. The child was in a stable placement at the time of the judge's decision and the Division was in the process of exploring a number of possible adoptive homes for the child.

The scope of our review of a trial court's decision to terminate parental rights is limited. F.M., supra, 211 N.J. at 448-49. "Because of the family courts' special jurisdiction and expertise in family matters," we accord deference to the trial court's fact-finding and the conclusions that flow logically from those findings of fact. Cesare v. Cesare, 154 N.J. 394, 413 (l998). We are further obliged to defer to the trial judge's credibility determinations and the judge's "'feel of the case' based upon the opportunity of the judge to see and hear the witnesses." N.J. Div. of Youth & Family Servs. v. A.R.G., 361 N.J. Super. 46, 78 (App. Div. 2003) (citing Cesare, supra, 154 N.J. at 411-12; Pascale v. Pascale, 113 N.J. 20, 33 (l988)), aff'd in part and modified in part, 179 N.J. 264 (2004).

When the trial court's findings of fact are supported by adequate, substantial and credible evidence, they are binding on appeal. See Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (l974) (holding an appellate court is not to disturb the factual findings and legal conclusions of the trial judge unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice"). Reversal is required only in those circumstances in which the trial court's findings are "so wide of the mark that a mistake must have been made." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (internal quotation marks and citation omitted).

After appraising the record in light of the findings of fact contained in the trial judge's written and oral opinions, we find nothing that requires our intervention. Judge Katz carefully reviewed the relevant evidence and fully explained his reasons in a logical and forthright fashion.

1 A fictitious name is used to protect the privacy of the child and for ease of reference.

2 Effective June 29, 2012, the New Jersey Division of Youth and Family Services was renamed the Division of Child Protection and Permanency (the "Division"). L. 2012, c. 16.

3 The child was four years old at the time of the Division's first contact with the family.

4 On the basis of these facts, a different judge found that H.W. had abused and neglected Alice by subjecting her to the danger of being in a car that had been reported stolen. H.W., supra, slip op. at 7-8. We reversed this determination in our October 18, 2012 opinion. Id. at 21-22. By that time, the termination proceedings involved in the present appeal had been completed.