DIVISION OF CHILD PROTECTION AND PERMANENCY v. M.S.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3944-13T4

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

M.S.,

Defendant-Appellant,

and

C.K.,

Defendant.

______________________________________
 

IN THE MATTER OF THE GUARDIANSHIP OF

P.K.,

minor.

_______________________________________

December 10, 2015

Submitted November 16, 2015 Decided

Before Judges Fasciale and Higbee.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FG-15-34-13.

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

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

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

PER CURIAM

Defendant M.S. (the mother) appeals from a March 6, 2014 judgment of guardianship terminating her parental rights to her four-year-old son, P.K. (the child), and placing the child in the custody of the Division of Child Protection and Permanency (the Division).1 Defendant-father C.K. executed an identified surrender of his parental rights and does not participate in this appeal. We affirm.

The judge conducted a trial over four days from October 2013 to January 2014. The Division produced testimony from its caseworker, Dr. David Brandwein (a psychologist), and Dr. Samiris Sostre (a psychiatrist). The Law Guardian called two witnesses to testify: Dr. William Coffey (a psychologist), and one of the resource parents. The mother did not testify at the trial. We discern the following facts from the evidence adduced at the guardianship trial.

On April 30, 2011, when the child was an infant, the Division received a referral from the child's paternal grandmother. The Division learned that the mother shook the child; yelled at the child; dressed him using her own underwear, tying it so tightly around the child's body so as to cut off his circulation; and struck herself in the head with a baby bottle out of frustration. The grandmother, who had been assisting with child care, advised the Division that the mother had been diagnosed with bipolar disorder, attention deficit hyperactivity disorder (ADHD), and schizophrenia. The Division undertook an investigation of the referral.

The Division obtained information from the Morning Glory Program, a behavioral health partial-care program from which the mother had previously received services. The Division learned that the mother had a history of anxiety, extensive impulse control deficits, cognitive deficits, and severe psychosocial stressors. As a result, the Division was concerned about the safety of the child.

The Division took the mother and the child to the Child Protection Program at Jersey Shore University Medical Center. A doctor evaluated them and concluded the child was not harmed, but the mother presented with a history of mental health issues. The doctor expressed strong concerns about the child's safety in the mother's care.

On May 11, 2011, the Division performed an emergency Dodd removal2 and placed the child with resource parents where he has remained. The child has special needs, but is thriving with his resource parents. The resource mother testified that she wants to adopt the child, and Dr. Coffey opined that an emotional bond existed between the child and the resource parents.

On May 27, 2011, the mother attended a psychological evaluation with Dr. Brandwein, who diagnosed the mother with multiple mental health disorders and recommended that she have no unsupervised contact with the child. He also recommended the mother attend parenting classes and be evaluated by a psychiatrist.

The Division scheduled appointments for the mother with Dr. Alexander Iofin, a psychiatrist. She attended one evaluation with him, but refused to answer any questions. Thereafter, the mother did not return to Dr. Iofin for any subsequently scheduled evaluations.

The Division arranged for the mother to be evaluated by another psychiatrist, Dr. Samiris Sostre, who testified that the mother suffered from significant psychiatric problems and cognitive deficits. Dr. Sostre concluded that the mother was not emotionally stable enough to care for the child.

The judge issued a written opinion evaluating the evidence. Crediting the Division's witnesses, he concluded the Division met its burden by presenting clear and convincing evidence that the best interests of the child was served by terminating the mother's parental rights. The trial judge awarded guardianship to the Division, which would secure the child's adoption.

On appeal, the mother argues that the judge erroneously relied on expert records from the Morning Glory Program, Dr. Iofin, and a day program the mother attended at Preferred Behavioral Health. She contends that these records contained inadmissible references to her mental health problems and history of noncompliance with services. The mother maintains that because the documents were not admitted into evidence, the judge erred by considering them.

We conclude there was no error in the judge's references to the challenged documents. Assuming, arguendo, the judge's reliance on the challenged documents was impermissible, the error was, at best, harmless because there exists independent credible evidence to support the judge's findings.

The first two prongs of the best interests test address the harm caused to the child and a parent's failure to mitigate that harm. N.J.S.A. 30:4C-15.1a(1), (2). The focus of the first prong examines the impact of harm caused by the parent-child relationship on the child's health over time. N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 506 (2004). The harm facing the child "need not be physical . . . . Serious and lasting emotional or psychological harm to [a] child[] as the result of the action or inaction of [his or her] biological parents can constitute injury sufficient to authorize the termination of parental rights." In re Guardianship of K.L.F., 129 N.J. 32, 44 (1992). In fact, a parent's failure to provide a "permanent, safe, and stable home" engenders significant harm to a child. In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999). Similarly, "[a] parent's withdrawal of . . . solicitude, nurture, and care for an extended period of time is in itself a harm that endangers the health and development of the child." Id. at 379 (citing In re Guardianship of K.H.O., 161 N.J. 337, 352-54 (1999)). This constitutes a "failure to provide even minimal parenting . . . ." Ibid.

Moreover, New Jersey has a "strong public policy in favor of permanency." K.H.O., supra, 161 N.J. at 357. See also In re Guardianship of J.C., 129 N.J. 1, 26 (1992) (noting children have "an essential and overriding interest in stability and permanency"). This requires the "best interests" test be "viewed in light of amendments to N.J.S.A. 30:4C-15, which brought New Jersey in conformity with the Federal Adoption and Safe Families Act of 1997 (ASFA), 42 U.S.C.A. 301, 671(16), 675(5)(A)(ii)." N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div.), certif. denied, 180 N.J. 456 (2004). These amendments clarify "[t]he emphasis has shifted from protracted efforts for reunification with a birth parent to an expeditious, permanent placement to promote the child's well-being." Ibid. To this end, "the attention and concern of a caring family is 'the most precious of all resources[,]'" particularly to a young helpless child who needs extensive care and nurturing. D.M.H., supra, 161 N.J. at 379 (quoting N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 613 (1986)).

Drs. Brandwein and Sostre prepared multiple reports and both testified, providing substantial support for the judge's determination that the mother poses an ongoing danger to the child because of her noncompliance and unwillingness to complete treatment or improve her mental health condition.

In May 2011, Dr. Brandwein performed psychological tests and interviewed the mother at length. The mother admitted to him she was not receiving treatment or taking medication for her mental health. Dr. Brandwein diagnosed the mother with mood disorder, not otherwise specified, noting a history of bipolar disorder. He also diagnosed her with psychotic disorder, not otherwise specified, because he determined the mother was delusional, and failed to recognize that she was "affectively unstable," had difficulty focusing, and was explosive and angry. Dr. Brandwein also diagnosed the mother with ADHD and learning disability, by history,3 and suffering from borderline personality traits in light of her affective lability and rage.

Dr. Brandwein recommended that the mother should not be considered as an independent caretaker and opined that there would be "little to no chance that she would be able to be reunified with [the child.]" In May 2013, Dr. Brandwein evaluated M.S. again, performed similar tests as the 2011 evaluation, and opined that, despite treatment efforts, "nothing changed." Dr. Brandwein further opined that the mother did not acknowledge she was mentally ill or needed treatment.

Dr. Sostre expressed similar opinions. In April 2012, Dr. Sostre interviewed the mother and diagnosed her with mood disorder, not otherwise specified, and noted she presented with "pervasive and chronic irritability[,]" as well as "problems functioning." Dr. Sostre opined the mother was too emotionally unstable to care for the child.

In March 2013, Dr. Sostre interviewed the mother and again diagnosed her with mood disorder, not otherwise specified, and an additional diagnosis of schizoaffective disorder. Dr. Sostre specifically opined that the resulting symptoms affected the mother's ability to parent. Dr. Sostre further opined that this would affect her ability to interact with others and recognize the help she needs. Dr. Sostre opined the mother "still had

. . . severe symptoms that were interfering with her ability to care for somebody else[,]" and her prognosis was "poor" because she did not recognize there was a problem and thus was unmotivated to comply with treatment and appeared to have cognitive deficits that respond poorly to therapy. Dr. Sostre further opined that the mother "had problems for years" even before the child was born and that, even if a new medicine regiment was implemented and her mood stabilized, Dr. Sostre did not "know if she [would] be able to parent."

Drs. Brandwein and Sostre separately conducted multiple evaluations, performed independent testing of the mother, and formed their expert opinions. Although Drs. Brandwein and Sostre may have reviewed the challenged documents, their conclusions were formulated and amply supported by their own individual findings of the mother's condition and ability to parent. Thus, there is substantial credible evidence in the record to support the judge's decision. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008).

Moreover, there exists independent evidence in the record of the mother's noncompliane with services. The caseworker testified that the mother refused to attend evaluations with Dr. Iofin, was otherwise unwilling to cooperate with the Division, and had been discharged from Preferred Behavioral Health. And it is undisputed that the mother stopped attending the Morning Glory Program. There is substantial credible evidence in the record, therefore, to support the judge's finding that the mother is unable or unwilling to eliminate the harm that led to the child's removal from the home.

We conclude that the judge's determination the Division clearly and convincingly satisfied the four-prong test outlined in N.J.S.A. 30:4C-15.1a was supported by substantial credible evidence in the record. His conclusion to terminate the mother's parental rights was grounded on analysis of the properly considered facts applied to the law. We reject the mother's arguments and conclude there is no reason to disturb the final judgment granting the Division's request for guardianship of the child.

Affirmed.

1 The Division's involvement with the family began prior to the passage of the June 29, 2012 legislation, which reorganized the Department of Children and Families, including renaming the Division of Youth and Family Services as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012 (amending N.J.S.A. 9:3A-10b). To avoid confusion, we refer to the Division by its current name.

2 A Dodd removal allows the Division to remove a child from the home, before a preliminary hearing, where the Division finds an imminent risk of harm to the child. N.J.S.A. 9:6-8.28a.

3 Dr. Brandwein explained in his testimony that a diagnosis "by history" means that he did not specifically evaluate the mother for that particular diagnosis, but recognized it was present based on the mother's report.