NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v M.S.J.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is only binding on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

M.S.J.,

Defendant-Appellant,

and

C.W.,

Defendant.

IN THE MATTER OF THE GUARDIANSHIP

OF C.A.J., a Minor.

October 11, 2016

Submitted September 28, 2016 Decided

Before Judges Alvarez and Accurso.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FG-12-83-15.

Joseph E. Krakora, Public Defender, attorney for appellant (Carol A. Weil, Designated Counsel, on the brief).

Christopher S. Porrino, Attorney General, attorney for respondent (Melissa Schaffer, Assistant Attorney General, of counsel; Robert Guarni, Deputy Attorney General, on the brief).

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

PER CURIAM

M.S.J. appeals from the November 4, 2015 Family Part order terminating her parental rights to her son C.A.J., who was two years old at the time of the trial.1 We affirm, substantially for the reasons stated by Judge Arnold Natali, Jr., in his cogent and thoughtful written opinion issued with the order.

The evidence is thoroughly detailed in the judge's decision. We repeat only that which is necessary. C.A.J. was placed with a resource family days after birth. They wish to adopt.

M.S.J. surrendered her parental rights to her other child before C.A.J. was born. The guardianship proceeding in the earlier case was the culmination of referrals leading to removal after the baby fell onto the floor and was found to be unresponsive. The incident occurred as M.S.J. and her mother, D.J., were fighting.

M.S.J. has cognitive limitations, mental health problems, and some possible substance abuse issues. M.S.J. acknowledges that because of these challenges, she cannot independently care for her child. She instead offered a co-parenting plan with D.J., with whom she lives. D.J. also has cognitive difficulties. When she was a child, M.S.J. and her siblings were temporarily removed from D.J.'s care by the Division of Youth and Family Services, the predecessor agency to the New Jersey Division of Child Protection and Permanency (Division).

M.S.J.'s engagement with services during the pendency of this litigation had mixed results. To her credit, she completed a parenting skills class. She did not follow through with the most significant, however, that being mental health services. She was unable to comply with either recommended therapy or medication.

As Judge Natali noted, even when referred to the multi-cultural services (MCS) agency, a "hands on case management program that also provided parenting skills[,]" no improvement was noted in the area of mental health treatment and medication. The MCS worker on occasion actually drove M.S.J. to the pharmacy to pick up her medication, but she remained non-compliant.

M.S.J. attended supervised visits with C.A.J. and is attached to him, as is D.J., who is employed and was thus able to attend fewer visits. M.S.J. was highly distractible during those sessions, however. She would have to be redirected towards the baby and away from calls on her cell phone. She spent most of one visit consumed with efforts to repair her broken computer tablet, instead of interacting with C.A.J.

Dr. Sandra Wells, a board certified psychologist, conducted the bonding evaluations on behalf of the Division, and concluded that M.S.J., even with the assistance of D.J., could not effectively parent. She too observed during the interview with M.S.J. and D.J. that M.S.J. took several calls from a man D.J. claimed was not welcome in the home. As the Family Part judge observed, Dr. Wells reported that M.S.J. was "in relationships with men who were incarcerated and sex offenders, abusive and controlling, and [M.S.J.] was in these relationships despite living with her mother." D.J. acknowledged that M.S.J.'s relationships were unhealthy, but also acknowledged that she could do nothing about them.

Dr. Wells opined that C.A.J. was very bonded to his resource family and is thriving in their care. She further opined the child would suffer severe psychological harm that M.S.J. could not ameliorate were he to be separated from his resource family. Since he was not bonded to M.S.J. or D.J., whom he viewed as adult playmates, he would not suffer emotional harm if parental rights were terminated.

The trial judge concluded that the Division had proven by clear and convincing evidence all four prongs of the best interests test, N.J.S.A. 30:4C-15.1(a), and that termination of M.S.J.'s parental rights was in the child's best interests. On this appeal, our review of his decision is limited. We defer to his expertise as a Family Part judge, Cesare v. Cesare, 154 N.J. 394, 412 (1998), and we are bound by his factual findings so long as they are supported by sufficient credible evidence. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (citing In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). After reviewing the record, we are satisfied the trial judge's factual findings are fully supported by the record, and in light of those facts, his legal conclusions are unassailable.

M.S.J. contends, to the contrary, that the trial court erred because it did not compel the Division to adequately develop alternatives to termination. But in his decision, the trial judge enumerated the extensive efforts the Division made to explore certain family friends, who were eventually ruled out for health reasons and their failure to stay in touch with the Division. The Division attempted to assist M.S.J. and D.J. in co-parenting, in fact, the judge on two occasions rejected the Division's proposed plan for termination and adoption because he wanted the Division to continue to explore M.S.J.'s co-parenting proposal. Ultimately, the co-parenting proposal was properly found to be unworkable. D.J. is employed four or five days a week, she and M.S.J. have ongoing conflicts, and she, obviously, cannot control the behavior of an adult daughter.

Dr. Wells actually opined that, even together, M.S.J. and D.J. lacked the capacity to co-parent a young child. D.J. has enough difficulty managing her own life, home, M.S.J., and another adult child who resides with her. It is undisputed that M.S.J. struggles to care for herself.

M.S.J.'s grandmother, who lives fifteen minutes away from D.J.'s home, offered to do anything necessary to assist. Unfortunately, the grandmother has only seen the child approximately three times in his life, and has no relationship with him or history with regard to an ability to address the risks M.S.J. poses to the child. And these risks are significant. As the judge said

[M.S.J.'s] immaturity and lack of judgment causes [her] to be unwilling to accept any advice and guidance from her mother, who has her own limitations and defects in parenting [C.A.J.]. The trial record is replete with evidence of this discord of both a historical nature and of recent vintage. [] Dr. Wells provided persuasive and compelling evidence on this point as did all of the Division witnesses. As established by the fact and expert testimony, [C.A.J.'s] welfare, along with his mental and emotional well-being, would be extremely endangered in the care and supervision of [M.S.J] and [D.J.].

The belated offer by C.A.J.'s great-grandmother does not warrant delaying his statutory right to permanency and stability.

With regard to M.S.J.'s challenge to the judge's finding that the first and second prongs of the statutory test had been met, she argues that the child was never harmed while in her care. This argument, however, is unavailing. See In re Guardianship of DMH, 161 N.J. 365, 383 (1999) ("[c]ourts need not wait to act until a child is actually irreparably impaired by parental inattention or neglect." (citations omitted)). Additionally, the judge found the alternative of co-parenting was unworkable, a conclusion that has ample support in the record. See N.J.S.A. 30:4C-15.1(a)(3).

M.S.J. also contends that the Division failed to establish that termination would not do more harm than good. See N.J.S.A. 30:4C-15.1(a)(4). To the contrary, Dr. Wells testified, and the Family Part judge determined, that C.A.J. "is an integral member" of his resource family, and will continue to thrive in their care. Our review of the record establishes this conclusion is also supported by ample substantial credible evidence and should therefore not be disturbed. See N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)).

Removal from his resource family would cause C.A.J. irreparable emotional harm that could not be ameliorated by his family of origin. C.A.J.'s statutory entitlement to permanency, his strong and stable familial relationship with the resource family, and the jeopardy he would face if returned to his biological family, in the balance, mandate only one conclusion that termination will not do more harm than good. See In re Guardianship of J.N.H., supra, 72 N.J. at 478 (2002) ("'[t]he question to be addressed under [this] prong is whether, after considering and balancing the two relationships, the child will suffer greater harm from the termination of ties with her natural parents than from permanent disruption of her relationship with her foster parents.'" (quoting In re Guardianship of K.H.O., 161 N.J. 337, 355 (1999))).

Affirmed.

1 Initially, R.W. was identified as C.A.J.'s father. When paternity tests established otherwise, C.W. was named as the father. C.W. did not participate in the litigation, default was entered against him, and his parental rights were terminated after the trial along with M.S.J.'s rights. He does not join in this appeal.