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NOT FOR PUBLICATION WITHOUT THE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

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

A.V.W.,

Defendant-Appellant,

and

D.C.,

Defendant.

______________________________

IN THE MATTER OF THE GUARDIANSHIP

OF M.S.W., a minor.

_______________________________

December 8, 2015

Submitted November 16, 2015 Decided

Before Judges Simonelli and Carroll.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-174-13.

Joseph E. Krakora, Public Defender, attorney for appellant (Peter N. Milligan, Designated Counsel, on the brief).

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

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

PER CURIAM

Defendant A.V.W. appeals from the Family Part's June 17, 2014 final judgment terminating her parental rights to her infant daughter, M.S.W.1 For the reasons that follow, we affirm.

M.S.W. was born in November 2011. In May 2012, M.S.W. was diagnosed with non-organic failure to thrive because she had failed to properly gain weight and no medical condition contributed to the weight loss. On May 10, 2012, the Division of Child Protection and Permanency (Division) removed M.S.W. from defendant's care due to its dual concerns that M.S.W. was not getting the proper nutrition, and the unsanitary condition of the family's home. M.S.W. has since remained in the care of her foster mother, who is committed to adopting her.

The guardianship trial commenced on March 4, 2014, and continued on April 10, June 2, June 3, and June 17, 2014. The Division presented the testimony of pediatrician Hanan Tanuous, M.D., who treated M.S.W. when she was hospitalized for weight loss in May 2012. Dr. Tanuous concluded that the cause of M.S.W.'s failure to thrive was nutritional, and that the child gained weight at the hospital after being fed the same formula that she received at home. While hospitalized, M.S.W. was also evaluated by pediatric endocrinologist Elizabeth Korn, M.D. Dr. Korn testified that although tests revealed that M.S.W. had a borderline low thyroid level, this thyroid condition did not cause the child's failure to thrive.

Defendant countered with the testimony of Stephen Kairys, M.D., an expert in pediatrics and child abuse. Dr. Kairys did not interview defendant or examine M.S.W. Based on his review of the child's medical records, Dr. Kairys also concluded that M.S.W. displayed symptoms of non-organic failure to thrive. In his opinion, this condition

[fell] into [the] [c]ategory of a young mother with not a lot of skills or expertise or knowledge with a child with a lot of different intercurrent illnesses, just not giving the baby enough calories or a child not interested in feeding and mother not knowing how to help the baby to feed better.

Through the testimony of Division caseworker Lashandra Drake, and the introduction of numerous exhibits, the Division established that it made repeated efforts to provide defendant with services to address her mental health and substance abuse issues during the two-year period following the child's removal. These services included psychological and psychiatric evaluations, parenting skills classes, individual counseling, referral to Vocational Rehabilitation Services, substance abuse evaluations and referrals, transportation assistance, and supervised parenting time. Defendant failed to comply with these services, except for parenting classes that she completed only after having been previously terminated for non-compliance. Additionally, there was a span of months when defendant did not visit with M.S.W.

According to the expert testimony presented at trial by the Division's psychologist, Eric Kirschner, Ph.D., defendant minimized her role in the events that resulted in M.S.W.'s removal. Dr. Kirschner determined that there was "a very real issue of mental illness here," and that defendant "lacks a great deal of insight or awareness or appreciation into how she has, as a parent, any sort of contributing type of role in the welfare of her child." Although defendant reported that she had been diagnosed with bipolar disorder, she refused to take the prescribed medication. Dr. Kirschner opined that defendant "continues to be a risk for neglect or harm of a child." He concluded that defendant would not be able to parent in the foreseeable future without creating a risk of harm to the child.

During bonding evaluations that he conducted, Dr. Kirschner observed that M.S.W. displayed a greater attachment to her foster mother than she did to defendant. He concluded that terminating defendant's parental rights "would not have a serious and enduring harm or impact on the child." To the contrary, M.S.W. identified her foster mother as her mother and psychological parent, and would suffer "significant and irreparable" harm if their relationship was severed.

The Law Guardian supported the Division's request for termination of defendant's parental rights and presented the testimony of its psychological and bonding expert, Mark Singer, Ed.D. Based upon his evaluation, Dr. Singer similarly concluded that defendant minimized her responsibility for the events that led to M.S.W.'s removal, and that defendant "was not likely to become a viable parenting option for [M.S.W.] in the foreseeable future." Defendant offered various, contradictory reasons why she had not complied with services offered by the Division. Dr. Singer observed that defendant "still maintains attitudes[] [that] are suggestive of high risk parenting."

With respect to his bonding evaluations, Dr. Singer noted that M.S.W. views defendant as "a familiar figure in her life" but "not a consistent parental figure." In contrast, M.S.W. views her foster mother as her psychological parent, who "has been the only consistent parental figure in the child's life." Dr. Singer concluded that removing M.S.W. from her foster mother's care would cause her "serious and enduring harm" and that defendant was incapable of mitigating that harm. In sum, Dr. Singer opined that terminating defendant's parental rights "would afford [M.S.W.] the opportunity to achieve permanency and consistency [and] would produce more good than harm to the child."

Judge Stephen J. Bernstein issued an oral opinion on June 17, 2014, finding that the Division had satisfied all four prongs of the best interests test, N.J.S.A. 30:4C-15.1a. As to prong one, Judge Bernstein found no evidence of any medical issue that caused M.S.W.'s severe weight loss and failure to thrive. Viewing "the totality of the circumstances," including defendant's living conditions, mental health issues, and cognitive limitations, the judge concluded that the child was at substantial risk of harm. Likewise, the judge found that defendant's unwillingness to comply with recommended services, coupled with the unrefuted testimony of Drs. Kirschner and Singer, established that the conditions suffered by defendant, which placed the child at risk, continued and were not likely to be eliminated. As to prong three, the court was satisfied that the Division "made more than reasonable efforts with regard to referrals and services [they] provided," and also made reasonable efforts to contact the one individual that defendant identified as a potential relative placement. Finally, the judge found credible the testimony of both Drs. Kirschner and Singer that defendant is not capable of caring for M.S.W. either presently or in the foreseeable future. Relying on their unrefuted expert testimony, the court found by clear and convincing evidence that termination would not cause more harm than good.

On appeal, defendant raises the following points for our consideration

POINT I

THE JUDGMENT OF GUARDIANSHIP TERMINATING [DEFENDANT'S] PARENTAL RIGHTS SHOULD BE REVERSED SINCE [THE DIVISION] DID NOT PROVE THAT TERMINATION OF PARENTAL RIGHTS WAS IN THE CHILD'S BEST INTEREST BY CLEAR AND CONVINCING EVIDENCE.

(A) The Trial Court Inappropriately Assigned the Burden of Proof to [Defendant] for Prong 1.

(B) The Trial Court Inappropriately Relied Upon the Merits of the Original Removal to Support a Finding Under Prong 1.

(C) [Defendant] is Not Unable or Unwilling to Eliminate the Harm Facing Her Child.

(D) [The Division] Failed to Carry its Burden That It Made Reasonable Efforts to Provide Services To [Defendant].

Our scope of review on appeals from orders terminating parental rights is limited. In such cases, the trial court's findings generally should be upheld so long as they are supported by "adequate, substantial, and credible evidence." N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014). A decision in this context should only be reversed or altered on appeal if the trial court's findings were "so wholly unsupportable as to result in a denial of justice." N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004). We must give substantial deference to the trial judge's opportunity to have observed the witnesses first hand and to evaluate their credibility. R.G., supra, 217 N.J. at 552. 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).

In N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591 (1986), the Supreme Court identified four factors that must be analyzed when deciding whether the termination of parental rights is in a child's best interests. Id. at 604-11. In accord with the standards articulated in A.W., the Legislature codified these factors as follows

(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-15.1a.]

The four factors "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).

The Division bears the burden of establishing each enumerated prong by clear and convincing evidence. P.P., supra, 180 N.J. at 506. In that vein, "all doubts must be resolved against termination of parental rights." K.H.O., supra, 161 N.J. at 347. However, the best interests of the child remain the ultimate consideration. N.J.S.A. 30:4C-15.

In the present matter, we are satisfied that Judge Bernstein's findings, related to each of the four prongs, are supported by substantial credible evidence in the record and are entitled to our deference. We are additionally persuaded that the judge applied the correct legal principles in concluding from those facts that the Division established, by clear and convincing evidence, termination was in M.S.W.'s best interests. We add the following comments.

The appropriate test under the first prong is "whether the child's safety, health or development will be endangered in the future and whether the parents are or will be able to eliminate the harm." N.J. Div. of Youth and Family Servs. v. A.G., 344 N.J. Super. 418, 440 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002). Causing harm and the inability to eliminate it are related factors. Thus, the evidence that supports one, informs, and may support the other. In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999). The record supports Judge Bernstein's finding that the Division satisfied its burden of proof as to the first prong of the best interests test.

Contrary to defendant's argument, Judge Bernstein did not assign the burden of proof to defendant as to this prong. Rather, the judge merely noted the expert testimony and medical reports that no medical issues caused M.S.W.'s failure to thrive. The record amply demonstrates that defendant either could not or would not acknowledge her role in the events that led to the child's severe weight loss and resulting hospitalization. She failed to address her mental health issues or take her prescribed medications, and had no desire to change. As a result, Judge Bernstein properly concluded that defendant placed M.S.W. at risk of harm.

This same evidence also clearly and convincingly demonstrated defendant's inability or unwillingness to prevent harm to the child's safety, health or development, thereby supporting the judge's findings under the second prong. The expert testimony of Drs. Kirschner and Singer at the guardianship trial clearly and convincingly established that defendant is unable to ameliorate the harm to M.S.W. either now or in the foreseeable future. Coupled with their unrefuted opinions that M.S.W. would suffer substantially from disruption with her foster mother, the requisite proofs to establish the second prong were satisfied.

Turning to the third prong, the Division provided numerous psychiatric and substance abuse evaluations, parenting classes and visitation, but defendant was non-compliant. A parent's continued refusal to engage in services suggests that the Division's efforts to reunite the family are no longer reasonable. A.W., supra, 103 N.J. at 610. Defendant is clearly not willing to participate in services, evidenced by the number of appointments she missed. While she eventually completed parenting classes, as to all other services she demonstrated repeated noncompliance. To continue to offer services where the parent is not engaging is futile and only prolonging the inevitable. Ibid. The Division thus provided reasonable services.

Finally, the fourth prong requires a court to ask the question: "whether, after considering and balancing the two relationships, the child will suffer a greater harm from the

termination of ties with her natural parents than from the permanent disruption of her relationship with her foster parents." K.H.O., supra, 161 N.J. at 355.

Judge Bernstein accepted the shared conclusion of Drs. Kirschner and Singer that M.S.W. would suffer significant and enduring harm if her relationship with her foster mother were severed. On the other hand, the record was devoid of similar harm that would inure to the child if her relationship with defendant was severed. M.S.W. was removed from defendant at the age of five months, and at the time of trial she had lived with her foster mother for more than two years and had a paramount need for permanency.

In summary, we are bound by the trial judge's factual findings so long as they are supported by sufficient credible evidence. R.G., supra, 217 N.J. at 552. Here, Judge Bernstein accepted the Division's evidence as credible, and that evidence was more than sufficient to prove all four prongs of the best interests test by clear and convincing evidence.

Affirmed.

1 The father's parental rights were also terminated and he has not appealed.