NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. J.W.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2760-12T1

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

J.W.,

Defendant-Appellant.

____________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF R.J.W., a minor.

____________________________________

February 25, 2014

Submitted September 25, 2013 - Decided

Before Judges Grall and Nugent.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FG-11-10-13.

Joseph E. Krakora, Public Defender, attorney for appellant (Eric R. Foley, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Susan Brown-Pietz, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Noel C. Devlin, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant J.W. is the mother of R.W., born in October 2010. She appeals the Family Part order that terminated her parental rights to him, arguing that the Division of Child Protection and Permanency (the Division) did not prove that termination of her parental rights is in her son's "best interests," as codified in N.J.S.A. 30:4C-15.1(a)(1)-(4). The Division and the Law Guardian oppose defendant's appeal. Having considered defendant's arguments in light of the record and controlling law, we affirm the final judgment terminating her parental rights to R.W.

R.W., now three years old, has suffered since birth from severe medical conditions, congenital abnormalities, and developmental dysfunction. He lacks oral motor skills and can not talk. His many afflictions include a coloboma, or small hole in his left eye and impaired vision in both eyes; multiple mouth formation syndrome and an abnormally small throat, which contribute to swallowing disorders that require him to have a feeding tube; hypoglycemia, which requires frequent medication and monitoring of his blood sugar; and colitis and gastroesophageal reflux disease, which affect his ability to properly digest food. His orthopedic problems include scoliosis, and he has braces on his feet and ankles.

R.W. takes many prescription medicines and undergoes a variety of therapy. During a typical week, he attends more than nine physical therapy sessions and medical appointments. He demands around-the-clock care. The Division's proofs at the guardianship trial centered around the resource parent's devotion to providing R.W. with such care and defendant's inability to do so.

The Division first became involved with defendant and R.W. within two months of R.W.'s birth in October 2010. R.W. had been transferred from his birth hospital to St. Christopher's hospital in Philadelphia, where he received medical care through the latter part of December, 2010. Medical personnel at St. Christopher's fitted R.W. with a feeding tube a week before he was to be discharged. Defendant, then age nineteen, had not visited him much during his hospital stay and had not received the training she needed to feed R.W. through the tube. Hospital staff were concerned that defendant and her mother, with whom defendant lived, both appeared to be cognitively impaired and incapable of dealing with the baby's feeding regimen, especially without training. For those reasons, a worker notified the Division to see if it would assess defendant and R.W. for assistance.

After the Division was informed of defendant's situation and R.W.'s condition, caseworkers arranged for transportation for the defendant so that she could receive the training she needed at the Hospital. Hospital personnel trained defendant to use the feeding tube and discharged R.W. to defendant's care on December 20, 2010.

Less than two months later, R.W. was admitted to St. Christopher's due to inability to maintain weight. He was hospitalized for more than a month. A month after his discharge, he was re-admitted with a diagnosis of "failure to thrive." R.W.'s admission to the hospital for failure to thrive was the first in the sequence of events that culminated in the Division removing him from defendant's custody.

R.W. attended a daycare health center when he was not in the hospital. On April 26, 2011, the day after R.W. was admitted to St. Christopher's for failure to thrive, a social worker from the health center reported R.W.'s condition to the Division. R.W. was not regularly attending the health center, and he had lost twelve ounces in the previous week. When he last appeared at the center before his most recent hospitalization, the front of his head was "sunken in" and his skin was sagging, signs of dehydration. He was weak. The health care center sent him to a local hospital which then transferred him to St. Christopher's. The social worker believed defendant needed additional support with feeding R.W. The Division decided to contact defendant and assess her need, and that of R.W., for services.

During the next two weeks, Division workers twice visited the Trenton home where defendant and R.W. lived with defendant's mother and defendant's five siblings. The house was unsanitary. It was infested with cockroaches, the floor was covered with two inches of dried mud, and the bare mattresses on bedroom floors were soiled. Division caseworkers interviewed defendant, who appeared to be cognitively delayed.

Two days after Division workers visited defendant's home for the second time, medical personnel at St. Christopher's informed the Division that R.W.'s inability to maintain his weight was not due to his medical conditions, but rather was caused or contributed to by his home environment. The Division decided that R.W. had to be removed from the environment for his health and safety.

The Division removed R.W. from defendant's custody, filed a verified complaint alleging that defendant and R.W.'s father had neglected R.W., and obtained an order placing R.W. in the Division's custody, care, and supervision. On the same day, R.W. was discharged from St. Christopher's and the Division placed him in the care of a resource parent (foster mother) with whom he has since remained, and who now intends to adopt him.

Although the Division's initial plan for R.W. was reunification with his mother, the plan changed and the Division filed a guardianship complaint one and one-half years later, on November 26, 2012. During the intervening period, R.W.'s father voluntarily surrendered his parental rights to R.W. in favor of the child's foster mother; the Division removed defendant's siblings from her mother; and the house where defendant had lived with R.W., her mother, and her siblings was condemned. During the same period, the Division provided defendant with a host of services in an effort to enable her to reunite with, and properly care for, R.W.

Two days after the Division removed R.W. from defendant's custody, defendant underwent psychological testing and a psychological examination. The psychologist, Gregory C. Gambone, noted during the clinical interview that defendant had been struggling with environmental hygiene. The tests revealed that defendant suffered from attention function deficits as well as associated short-term memory deficits. The tests also revealed that she exhibited poor non-verbal intellectual functioning with third grade reading skills.

Dr. Gambone concluded that defendant's cognitive function deficits and psychological dysfunction might affect her capacity for parenting and hinder her capacity for a normal adulthood. He also concluded that defendant had only "a superficial understanding of the physical, emotional, intellectual, and social needs of her son." He recommended that she participate in psychiatric evaluation, complete parenting skills training, and engage in short-term individual psychotherapy. Dr. Gambone also recommended that defendant "not currently be considered capable of adequately parenting [R.W.] on an independent basis."

The Division provided defendant with the services recommended by Dr. Gambone. Although defendant was compliant with those services, and though she clearly loved R.W. and wanted to be a mother to him, after more than a year she was still unable to parent R.W. without posing a significant risk to his health.

Defendant attended parenting classes and individual therapy sessions, and also participated in supervised visits with R.W. on a regular basis. Her counselors discussed her personal hygiene. Despite considerable counseling, she made little improvement. For example, after seven months of therapy her therapist reported she "has been extremely difficult to engage." The therapist also reported that defendant was openly opposed to participating in therapy, as evidenced by her repeated statements that she did not need it. The therapist also noted that during supervised visits with her son defendant was "withdrawn and unable to connect with [him] on even a basic level." During the visits, defendant would turn her back on her son, openly ignore him, and refuse to interact with or hold him.

In August 2012 defendant was still resisting counseling. In September 2012, her parenting skills trainer reported that it was "not clear that [defendant] has benefitted from the [parenting] classes since her participation was minimal. She is not overtly receptive to direct parent coaching or instruction."

Meanwhile, R.W.'s foster mother demonstrated that she was totally devoted to providing him with a safe, secure, and nourishing environment. She had begun to care of R.W. following his May 2012 hospitalization for failure to thrive. When he first came to live with her he weighed seven pounds. His weight had steadily increased to twenty-six pounds and four ounces at the time of the guardianship trial. His place on "the growth chart" was now appropriate for his age. R.W.'s medical conditions and functional development had steadily improved while in his foster mother's care.

R.W.'s foster mother has devoted herself to attending to R.W.'s medical, physical, and emotional needs. She lives with her mother, who helps her care for R.W. Three nurses come to her home and assist her during the week. She attends R.W.'s medical appointments, involves herself in his therapy, and reinforces at home what takes place during the therapy sessions. Significantly, she has persisted in obtaining the medical evidence she needs to have R.W.'s insurance pay for devices such as a gait trainer and braces to help R.W. try to walk, and a special chair. Her devotion has produced positive results. Although R.W. can not talk, he is always laughing and smiling. The foster mother is "absolutely committed" to adopting R.W.

Both defendant's inability to parent R.W. and the need for R.W.'s permanent placement with the foster mother were underscored by the psychologists who testified for the Division and the Law Guardian at the guardianship trial. The Division's psychologist, Alan Stuart Gordon, evaluated defendant in March and December, 2012. Through psychological testing and his clinical interviews he determined that defendant had limited comprehension and understanding. She was reading at a fourth grade level and, in the doctor's opinion, could not understand and follow basic medical instructions concerning R.W.'s care. Defendant also suffered from psychological dysfunction of mild to moderate severity, which made it difficult for her to understand the significance of things happening around her. Dr. Gordon concluded after his March 2012 examination that defendant did not have the capacity to parent and would not have that capacity in the future. Even with more training, defendant would not be able to overcome her cognitive difficulties. In short, placing R.W. with defendant would present a high risk to his health.

The doctor's December 2012 evaluation of defendant fortified the conclusions he had reached in March. During the latter evaluation, defendant demonstrated that she did not fully understand either the significance of all the medical treatment R.W. was receiving or the need for R.W. to keep his appointments. Defendant's own appearance and hygiene were unacceptable, which was a concern because R.W. needed to live in a sterile environment due to his extensive medical problems. Defendant's psychological dysfunction had worsened since Dr. Gordon had last seen her in March 2012.

Dr. Gordon concluded that defendant's parenting capacity was poor. She had no insight into her own life or her ability, or inability, to parent a special needs child. Because she did not recognize or realize her own deficiencies, she was incapable of improving them.

The Law Guardian's psychologist, Maureen Santina, reached essentially the same conclusions. She too tested and clinically evaluated defendant. Her evaluation occurred less than three weeks before the guardianship trial began. Based on her psychological testing and clinical interview of defendant, as well as her consideration of legal records and medical reports, Dr. Santina concluded that defendant did not have the ability to adequately or safely parent a more functional child, but certainly not a child like R.W. who has more complex needs emotionally, developmentally, and medically. Due to defendant's cognitive disabilities and her functioning in an intellectually deficient range, it was not likely that she would develop the capabilities to parent R.W. in the foreseeable future.

The psychologists also conducted bonding evaluations. Both concluded that R.W. had no significant attachment to defendant, but had bonded with his foster parent. Dr. Gordon testified that terminating defendant's parental rights would have no effect on R.W., but removing him from his foster mother would affect him negatively and be very detrimental.

Similarly, Dr. Santina opined that there would be no harm if defendant's parental rights were terminated, but severing R.W.'s relationship with his foster parent would have serious detrimental effects, including possible emotional distress, cognitive development regression, and mourning. Dr. Santina believed that separating R.W. from his foster mother would impede his ability to develop. Dr. Santina noted that during the bonding evaluation R.W. responded positively by smiling and laughing in response to his foster mother's attention. The child had clearly bonded with his foster mother. Dr. Santina explained that bonding occurs when a child derives a sense a security, positive emotional feeling, safety, and reassurance from a caregiver.

Based on the foregoing evidence, Judge William Anklowitz found that the Division had clearly and convincingly proved to him that termination of defendant's parental rights was in R.W.'s best interest. Judge Anklowitz set forth the reasons for his decision in a written opinion and entered an order accordingly. Defendant appealed.

Defendant presents the following arguments for our consideration:

POINT I. THE TRIAL COURT MISAPPLIED THE APPROPRIATE LEGAL STANDARDS AND AS A RESULT ERRED IN TERMINATING J.W.'S PARENTAL RIGHTS WHERE THERE WAS NOT CLEAR AND CONVINCING PROOF SUFFICIENT TO SATISFY THE FOUR PRONGS OF N.J.S.A. 30:4C-15.1(a).

A.

The Court's Determination That J.W. Caused Harm To R.W. Is Not Supported By The Record.

B.

There Was Not Clear And Convincing Evidence To Support The Trial Court's Determination That J.W. Was Unwilling Or Unable To Parent Her Child.

C.

The Division Not Only Failed To Provide Reasonable Efforts Toward Reunification, But The Division's Initial Inaction In This Matter Was Partially Responsible For The Need To Remove R.W. From J.W.'s Custody.

1. The Division's inaction to help J.W. prior to removal contributed to the removal itself.

2. The Division's services did not address the underlying problems that led to the removal.

3. The Division failed to provide for adequate visitation for J.W.

D.

The Division Failed To Adequately Consider Alternatives To Termination Of Parental Rights.

E.

The Trial Court's Conclusion That Termination Would Not Do More Harm Than Good Was Not Supported By Adequate, Credible Evidence.

We reject defendant's arguments and affirm the judgment terminating her parental rights as to R.W. substantially for the reasons explained by Judge Anklowitz in his written opinion.

Defendant's constitutional right to raise R.W. "is a right tempered by the State's parens patriae responsibility to protect children whose vulnerable lives or psychological well-being may have been harmed or may be seriously endangered by a neglectful or abusive parent." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 447 (2012) (citing N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 102 (2008)). The State may, under some circumstances, exercise its parens patriae responsibility by terminating one's parental rights. The State may do so, however, only if it first proves to a judge by clear and convincing evidence that terminating a parent's rights is in the best interests of the child. N.J.S.A. 30:4C-15.1(a); F.M., supra, 211 N.J. at 447-48; N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 505-06 (2004).

The best-interests standard is codified in N.J.S.A. 30:4C-15.1(a), which requires that the State establish four elements:

(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.

These four elements "are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999).

When we review a trial court's application of the statutory criteria to its findings of fact, the scope of our review is limited. F.M., supra, 211 N.J. at 448-49. 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." P.P., supra, 180 N.J. at 511. 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)) (internal quotation marks omitted). 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) (internal quotation marks omitted). See also N.J. Div. of Youth & Family Servs. v. J.S., 433 N.J. Super. 69, 80 (App. Div. 2013).

Judge Anklowitz carefully reviewed the evidence presented by the Division and the Law Guardian, and concluded that the Division had satisfied by clear and convincing evidence the legal requirements for terminating one's parental rights. The judge's opinion tracks the statutory requirements of N.J.S.A. 30:4C-15.1(a), and his factual determinations are amply supported by credible evidence in the record. Based on the record, it can not be said that the judge "went so wide of the mark that a mistake must have been made." M.M., supra, 189 N.J. at 279. Defendant's arguments warrant no further discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.