NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. R.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NOT FOR PUBLICATION WITHOUT THE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.

R.S.,

Defendant-Appellant.

_________________________________
 

IN THE MATTER OF THE GUARDIANSHIP

OF J.J.C., E.D.S-S., and J.L.C.,

JR., minors.

________________________________________________________________

Submitted May 18, 2015 Decided June 17, 2015

Before Judges Espinosa and St. John.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FG-13-52-14.

Joseph E. Krakora, Public Defender, attorney for appellant (Theodore J. Baker, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Megan E. Shafranski, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors J.J.C., E.D.S.-S., and J.L.C., Jr. (Melissa R. Vance, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant R.S. (Rose)1 appeals from the September 23, 2014 order terminating her parental rights as to her three sons,2 E.D.S.-S. (Evan) (born December 17, 2010), J.J.C. (Jack) (born February 26, 2012), and J.L.C., Jr. (Joey) (born September 16, 2013).3 We affirm, substantially for the reasons set forth in the oral decision delivered by Judge Terence P. Flynn.

A trial court's decision to terminate parental rights is subject to limited appellate review. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). "[I]f supported by adequate, substantial, and credible evidence in the record," the trial court's findings of fact are entitled to deference. Ibid.; see also Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). The family court's decision to terminate parental rights will not be disturbed "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).

Termination of parental rights is warranted when the Division establishes by clear and convincing evidence, N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 168 (2010), that

(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-15.1(a).]

Rose argues the Division failed to meet its burden as to the first and second prongs of N.J.S.A. 30:4C-15.1(a). She also argues the trial court erred in terminating her parental rights to her youngest son, Joey, because it did not make any findings specific to him. After reviewing these arguments in light of the record and applicable case law, we conclude that none of these arguments have merit.

The State presented testimony from five Division caseworkers and Dr. Todd Traina, a clinical psychologist, who conducted psychological and bonding evaluations. Dr. Maureen R. Santina testified on behalf of the Law Guardian as to her psychological and bonding evaluations. Dr. Alexander Iofin testified as to the psychiatric evaluation he conducted of Rose pursuant to court order. All three experts concluded Rose's mental illness made her incapable of independently parenting the children. Aside from her own testimony, Rose did notpresent any evidence in rebuttal. Because Judge Flynn recounted the relevant facts at length in his comprehensive oral decision, we need not repeat them here and review salient facts relevant to the issues on appeal.

I.

Harm, as addressed by the first prong of the statutory test, "involves the endangerment of the child's health and development resulting from the parental relationship." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). "The harm shown . . . must be one that threatens the child's health and will likely have continuing deleterious effects on the child." Id. at 352. However, the Division need not show that a child was actually harmed; the risk of harm is sufficient. See In re Guardianship of D.M.H. 161 N.J. 365, 383 (1999). "Courts need not wait to act until a child is actually irreparably impaired by parental inattention or neglect." Ibid.

"Mental illness, alone, does not disqualify a parent from raising a child. But it is a different matter if a parent refuses to treat his mental illness [and] the mental illness poses a real threat to a child . . . ." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 450-51 (2012). Proof of harm must be established by competent expert medical testimony as to the extent of the parent's mental illness and its impact on the parent's ability to safely parent the child. N.J. Div. of Youth & Family Servs. v. I.Y.A., 400 N.J. Super. 77, 93-94 (App. Div. 2008). Ultimately, "a psychiatric disability can render a parent incapable of caring for his or her children," even in the absence of physical abuse or neglect. Id. at 94; see also N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 439 (App. Div. 2001) (holding that although "no physical abuse or neglect was asserted . . . the parents' mental illnesses created an environment in which they were unable to adequately care for and raise the children"), certif. denied, 171 N.J. 44 (2002).

Judge Flynn cited the case law concerning mental illness and recounted the details of Rose's mental illness, diagnoses, hospitalization, sporadic compliance and resistance to treatment. He found clear and convincing evidence to satisfy the first prong because the severity of Rose's mental illness placed the children "at risk, and that they would be raised in an inherently dangerous and unpredictable environment." By way of example, he cited a text message Rose sent in which she threatened to starve herself or kill her child. Rose sent the text message in question to J.L.C. when she was pregnant with Jack. The exact text message read as follows

Bye u aint got to worry boot me and my kids bc ill starve bc of u and lil man too and so this. Bby in my belly will too and im juz gna put ur son up for adoption. Or kill him.

Rose explained her intent to a caseworker, stating she sent the text when she was angry because J.L.C. was attempting to end the relationship. She said her threat was to kill the unborn child, not Evan, and that she was referring to having an abortion, although she was eight months pregnant at the time. She also said she did not really intend to starve herself and she was just trying to tell J.L.C. she did not have enough food for both her and Evan. The judge opined that any interpretation of the text reflected harm because even if Rose did not intend to kill Evan, she would abandon him if she starved herself to death.

The judge's finding of harm based upon Rose's mental illness was amply supported by the record in this case, which includes the three expert opinions as to the extent of Rose's mental illness and her own pattern of refusing to commit to treatment.

Rose's life has been marred by mental illness and domestic violence since her childhood. She first received mental health care and medication at the age of fourteen. She has had multiple hospitalizations, including one in which she admitted herself after getting a frying pan to beat her roommate. Despite an awareness that she has bipolar disorder, Rose has only sporadically engaged in treatment, repeatedly found reason to cease taking medication, and openly admitted she is not committed to the long-term treatment all the mental health experts state she needs.

Dr. Traina diagnosed Rose with bipolar disorder, severe, with psychotic features; sexual abuse victim; physical abuse victim;4 and paranoid personality features. He also noted she had "very poor insight into her need for psychiatric treatment." Dr. Traina did not believe Rose could be a primary caregiver, stating, "[a]ny child left under her care at this time will likely be vulnerable to both neglect and abuse due to her erratic behavior when she is excited." He opined Rose should have only supervised visitation with her children.

Dr. Santina also diagnosed Rose with bipolar disorder and personality disorders. She concluded Rose could not safely and effectively parent her children now or "in the foreseeable future." She explained that treatment of Rose's personality disorders would require years of commitment to therapy and concluded several years of treatment would be required to "make a significant impact," which was problematic in light of the children's need for permanency.

Dr. Iofin opined that Rose required life-long mental health treatment. He stated this treatment would be best facilitated by a program that could actively control her compliance with medications. Based on her "severe degree of psychiatri[c] illness," he recommended that Rose not be an independent caregiver of any minor child.

Another persistent theme in Rose's life has been her inability to comprehend her crucial need for treatment of her mental illness and the impediment her resistance to treatment presents to her ability to parent her children. She admits she has bipolar disorder but considers that illness, even if untreated, to be no obstacle to parenting.

By way of example, during Dr. Traina's second evaluation, Rose stated she did not need a day program as she can function well and did not want to take medication any longer. Rose admitted her mother was bipolar and yet maintained she was able to parent her children despite the fact that Rose was removed from her care when she was two years old, in and out of foster care until she was nine, and then removed again when her mother was incarcerated for stabbing Rose's stepfather. When Dr. Traina pointed out that Rose's mother had serious problems and her children were removed from her care, Rose did not comprehend the relevance of his response.

Rose has a well-established history of stopping taking her medication. After the threatening text message was reported to the Division, Rose told the responding caseworker she had been diagnosed with ADD and bipolar disorder but did not take her medication because it made her very tired. Again, after briefly attending a mental health program, where she was prescribed Lithium, Seroquel, Prozac, Abilify, Lamictal, and Trazdone, she ceased taking all these medications when she found out she was pregnant with Jack in August 2011. Rose told Dr. Traina of several occasions when she stopped taking her medications, at one point flushing them down the toilet. She also told Dr. Traina she would only engage in mental health treatment and take medication until she regains custody of her children. She said she will not continue afterward "because [Jack] will need her."

Rose also denied her need for treatment to Dr. Iofin, who stated that, throughout the examination, Rose maintained she does not have psychiatric problems and does not need to be under the care of a psychiatrist. Similarly, Dr. Santina found that Rose's "interest in and motivation for treatment is below average" and Rose "sees little need for personal change."

Both Jack and Joey were put in the Division's care at birth. However, there is evidence in the record of the impact of Rose's mental illness upon the level of care she was able to provide to Evan. When the Division responded to the referral concerning the text message, the caseworker was able to observe Evan, thirteen months old at the time, and Rose's interaction with him. Evan's clothing and skin were dirty, he "had an odor to him," and he appeared to not have had a diaper change in quite some time. He fell and bumped his head several times during the interview. Rose did not go to his aid, commenting that he fell all the time. When Evan sought comfort from Rose, she yelled at him.

In short, the evidence that Rose's mental illness posed a risk of harm to her children was compelling.

II.

"The second prong, in many ways, addresses considerations touched on in prong one." F.M., supra, 211 N.J. at 451. "The State must show not only that the child's health and development have been and continue to be endangered, but also that the harm is likely to continue because the parent is unable or unwilling to overcome or remove the harm." K.H.O., supra, 161 N.J. at 348. The willingness of a parent to address the harm is not sufficient; the question is whether the parent is capable or will be capable of eliminating the harm. See A.G., supra, 344 N.J. Super. at 440. This prong can be met upon a showing that "the parent is unable to provide a safe and stable home for the child and that the delay in securing permanency continues or adds to the child's harm." K.H.O., supra, 161 N.J. at 348-49.

Judge Flynn found the Division met the second prong based on Rose's inconsistency with treatment and her declaration she would end treatment after regaining custody of her children. The judge noted the experts agreed that the reluctance to participate in treatment was unlikely to change. He also cited Rose's failures to maintain steady residence and employment and her inability to control the "chaos which is often part of the family life."

Rose argues the trial court failed to take into account her current compliance with her mental health program and the fact she successfully completed all other service requirements. However, the court's finding regarding the second prong is also amply supported by the record.

Judge Flynn acknowledged the extent of services Rose had engaged in. However, he noted her past assertions that she would be compliant for the sake of the Division's proceedings, and once the case concluded, she would discontinue therapy and medication. The judge pointed to Rose's sporadic compliance and the testimony of the experts that Rose is resistant to treatment and change. As Dr. Santina noted, even if Rose completely committed to treatment, it would take many years for her to make the progress necessary to parent a child. This testimony was uncontroverted.

Rose did not demonstrate such a commitment. Even allowing for a willingness on her part to comply with services, the competent, credible evidence supported the finding that her mental illness made her unable to eliminate the threat of harm to her children. See, e.g., In re Guardianship of R., 155 N.J. Super. 186, 194-95 (App. Div. 1977) (explaining that lack of culpability or fault on the part of the parent cannot overcome the parent's inability to eliminate harm due to mental illness).

Moreover, the court's finding that Rose could not maintain a stable living environment for the children was supported by the fact that Rose could not secure stable housing or employment during the entire course of the litigation. These facts, coupled with the risk that delay in permanent placement would "become[] a harm in and of itself," A.G., supra, 344 N.J. Super. at 434, amply support the trial court's finding that the Division met its burden as to the second prong.

III.

Finally, we address Rose's contention that the trial judge failed to make necessary findings as to Joey. This argument lacks merit. Judge Flynn stated his decision pertained to "the Guardianship of [Evan, Jack and Joey]" and then proceeded to refer to the children collectively. There is no indication that his findings did not apply to all three children.

Moreover, the evidence of Rose's conduct before Joey was born is highly relevant to a determination as to whether her parental rights to Joey should be terminated. "Predictions as to probable future conduct can only be based upon past performance. . . . Evidence of parents' fitness or unfitness can be gleaned . . . from the quality of care given to other children in their custody." N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 616 (App. Div.) (quoting J. v. M., 157 N.J. Super. 478, 493 (App. Div.), certif. denied, 77 N.J. 490 (1978)), certif. denied, 192 N.J. 68 (2007). The fact that a child's removal at birth precludes the parents from ever mistreating him or her does not "have any legal or factual significance" in a termination proceeding. J. v. M., supra, 157 N.J. Super. at 493. "We cannot conceive that the Legislature intended to guarantee to parents at least one chance to kill or abuse each child." Ibid.

Judge Flynn carefully considered each of the statutory prongs and cited adequate, substantial evidence in the record to support his conclusion that each of the prongs was proven by clear and convincing evidence in findings that related to all three children. It is evident that the harm posed by Rose's mental illness and her inability to overcome that harm applied equally to Joey as it did to his siblings.

Although Rose has not challenged the sufficiency of the evidence as to the third and fourth prongs regarding Evan and Jack, we note support in the record for the following conclusions. The Division made reasonable efforts to provide appropriate services to Rose. All three boys live with the same resource family who wants to adopt them. Both Jack and Joey have been with the family since birth and Evan has lived with them since he was nineteen months old. Appropriate alternative placements were not available. Bonding evaluations reflected a strong bond between the boys and their resource family. In contrast, they have no bond with Rose, who also lacks an ability to ameliorate the loss they would suffer if removed from their resource family. The boys' best interest is served by the permanency they will obtain through the termination of Rose's parental rights and their adoption by the resource family.

Affirmed.

1 Pseudonyms are used to protect the privacy of the children.

2 Rose surrendered her parental rights to her first child, J.S.W., who was born in 2008 when she was nineteen. The guardianship complaint originally sought the termination of her rights to Evan and Jack. Prior to trial, the court granted the Division's motion to amend the complaint to include Joey.

3 The order also terminated the parental rights of J.L.C., Jack and Joey's natural father, and of E.D.S., Evan's natural father. Neither father appealed the termination.

4 Rose was a victim of both sexual and physical abuse.