NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. E.S.

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NOT FOR PUBLICATION WITHOUT THE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.

E.S.,

Defendant-Appellant.

_________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF D.S.,

Minor.

_______________________________________

February 6, 2014

Submitted January 23, 2014 Decided

Before Judges Grall, Nugent and Accurso.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, FG-19-13-12.

Joseph E. Krakora, Public Defender, attorney for appellant (Douglas M. Greene, Designated Counsel, on the brief).

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

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor, D.S. (Hector Ruiz, Designated Counsel, on the brief).

PER CURIAM

Defendant E.S. appeals from the Family Part's January 7, 2013 final judgment terminating her parental rights to her daughter D.S. (Donna)1. She contends that the Division of Child Protection and Permanency (the Division) failed to establish the first and third prongs of the best interests standard by clear and convincing evidence. Specifically, E.S. argues the Division failed to prove that her mental illness poses an ongoing risk of harm to Donna. She also claims that the Division failed to prove that it provided her with appropriate services to effect reunification. We disagree on both points and affirm.

E.S. suffers from schizoaffective disorder, bipolar type, diagnosed in her mid-teens. She is now thirty-two. Her illness was described by the testifying psychiatrist as a thought disorder characterized by a "continual break from reality," punctuated somewhat regularly by mood disturbance, that is, periods of mania, aggression, violence, depression, and thoughts of suicide. She has been hospitalized at least eight times over a period of approximately fifteen years as a result of her condition.

E.S. was involuntarily committed to Greystone for the first two months of Donna's life, necessitating the removal that began the litigation. A Division caseworker attempting to serve E.S. with the removal papers at St. Claire's, found her in the doorway of the nursery surrounded by three security guards and five nurses. E.S. was shouting at the nursing staff to "Stop [] touching [Donna's] ears. They are made of Jello. I don't trust you. You tried to break her fingers." When the caseworker advised E.S. that the Division was taking Donna into protective custody, she asked the worker whether he was taking her to Israel to train her to fight as a Samurai warrior.

The trial judge appointed a guardian ad litem for E.S. at the Division's request at the outset of the litigation. Donna was placed in the care of E.S.'s parents, where she has remained throughout these proceedings. They are committed to caring for Donna and wish to adopt their granddaughter.

We recounted much of the facts and procedural history of this case in an unpublished opinion on E.S.'s appeal from a final order terminating the Title 9 proceeding. N.J. Div. of Youth & Family Servs. v. E.S., No. A-2277-11 (App. Div. Feb. 6, 2013). We will not repeat those findings here, but incorporate them in this opinion. Instead, we focus on Judge Farber's careful summary of the proofs at the guardianship trial on the first and third prongs.

In chronicling the events confronting the caseworker at the hospital following Donna's birth, Judge Farber noted that he did not do so "to demean or humiliate [E.S.]." He explained that those reports were evidence of what confronted the Division at the outset of this matter, and "sadly, are just a snapshot of an extended period of mental illness experienced by [E.S.]."

The judge noted the unrebutted testimony of the Division's psychiatrist, Michael Gentile, M.D., that E.S.'s condition was chronic and progressive and her prognosis for any recovery sufficient to allow her to assume responsibility for Donna, poor. The judge focused particularly on Gentile's concern over E.S.'s aggressive behaviors, which were echoed by the Division's psychologist, Mark Singer, Ed.D.

Judge Farber noted that Singer testified that E.S.'s test results suggested that she could become "aggressive and hostile, combative when provoked, [and that she] experiences paranoid ideation, which may rise to the level of delusional content, and is prone to mistrust others." The judge characterized those findings as "recurrent themes in the case." The judge highlighted Singer's findings that E.S.'s condition had deteriorated markedly in the months between his evaluations. Singer testified that E.S.'s paranoia, which he witnessed first hand, "paralyzes her" and precludes effective therapy.

Judge Farber correlated the experts' opinions with the fact testimony. He noted the many instances in which witnesses reported that E.S. had become aggressive and violent, as when she broke the windshields of two cars in her parents' driveway, or when she assaulted her father as she and her parents were bathing Donna, resulting in the entry of a domestic violence restraining order against her. Judge Farber also recounted the testimony of a counselor who related that E.S. would arrive at her counseling session in a pleasant mood, only to become aggressive and accusatory when challenged, sometimes to the point of rage.

The judge commented extensively on the services the Division provided E.S. to gauge and strengthen her abilities to parent her daughter. In addition to arranging several psychological evaluations, the judge noted the Division provided E.S. with therapeutic supervised visitation, supervised visitation, and attempts at individual and family therapy. Judge Farber noted the many instances of E.S.'s inappropriate behavior toward Donna during supervised visits arranged by the Division. He specifically noted E.S.'s repeated inability to feed the baby, the many times E.S. undressed her in the cold to smear her with diaper cream or food, her failure to support her head or letting it hit the floor or a changing table, the time when E.S. pulled Donna by the neck to get her into a car seat, and the many times E.S. claimed the baby was having a seizure when nothing out of the ordinary was occurring.

Judge Farber concluded on the basis of this testimony that the Division had carried its burden on the first and third prongs by clear and convincing evidence. The judge noted that E.S.'s involuntary commitment for the first two months of Donna's life meant that she was unavailable to either care for her child or plan for the child's future. Moreover, her long standing mental illness, which both experts testified will almost inevitably worsen, poses an obvious threat to Donna's safety, health, and development. E.S., the judge found,

did not and does not know how to care for a newborn, or now a two-year-old toddler, does not appreciate developmental milestones, nor understand how to nurture a child. She is explosive, at times irrational, frequently confused, and too often a risk to others, including [Donna], when she loses control and becomes irate.

Judge Farber found no likelihood of improvement in E.S.'s condition despite the Division's efforts to provide services, and no alternative to termination.

The law governing termination of parental rights is well settled. The standards are set forth in the four-prong best interests test of N.J.S.A. 30:4C-15.1a. The statute provides "an integrated multi-element test that must be applied to determine whether termination of parental rights is in the best interests of the child." In re Guardianship of D.M.H., 161 N.J. 365, 375 (1999).

Our review of the trial court's application of those standards to the facts of record is limited. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012). We "must determine whether a trial court's decision in respect of termination of parental rights was based on clear and convincing evidence supported by the record before the court." N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004). We may not disturb the trial court's findings "unless they are so wholly unsupportable as to result in a denial of justice." Ibid. (quoting In re Guardianship of J.N.H., 172 N.J. 440, 472

(2002)). Even where the appellant "allege[s] error in the

trial judge's evaluation of the underlying facts and the

implications to be drawn therefrom," deference must be afforded

unless the court "went 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) (citations omitted).

Our review of this record convinces us that no mistake was made, and that Judge Farber's decision is supported by clear and convincing evidence. E.S.'s contention that the Division failed to prove a nexus between E.S.'s mental illness and the potential harm to Donna is belied by the judge's careful findings. Her arguments that the Division failed to provide reasonable services because it suspended visitation, failed to procure all of E.S.'s hospital records for Singer's review, and refused to change E.S.'s caseworker, are not supported by the record and are without sufficient merit to warrant discussion here.

R. 2:11-3(e)(1)(E).

We affirm the termination of parental rights substantially for the reasons expressed by Judge Farber in his thorough and thoughtful oral opinion of January 7, 2013.

Affirmed.

1 We use a fictitious name to protect the child's privacy.