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DOCKET NO. A-2565-06T4






J.J.O. and D.M.O.,




OF A.D.O., a minor.



Submitted October 2, 2007 - Decided

Before Judges Coburn, Grall and Chambers.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, FG-12-93-06.

Yvonne Smith Segars, Public Defender, attorney for appellant J.J.O (William J. Sweeney, Designated Counsel, on the brief).

Yvonne Smith Segars, Public Defender, attorney for appellant D.M.O (Alan I. Smith, Designated Counsel, on the brief).

Anne Milgram, Attorney General, attorney for respondent (Patrick DeAlmeida, Assistant Attorney General, of counsel; Elizabeth A. Smith, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minor (Noel C. Devlin, Assistant Deputy Public Defender, on the brief).


Defendants J.J.O. and D.M.O., each represented by separate counsel, appeal from the judgment of guardianship entered on October 18, 2006, terminating their parental rights to A.D.O., a minor, and granting guardianship to the Division of Youth and Family Services ("DYFS"), and directing that a complaint of adoption be filed. Since the decision of the trial court is supported by competent, clear and convincing evidence, we affirm.

A.D.O. was born in December 2004, to J.J.O., the mother, and D.M.O., the father, who are married to each other. Shortly after the child's birth, the caseworker at the hospital contacted DYFS expressing concern about the parents' ability to care for the child. DYFS obtained a fifteen day consent order from the parents which allowed it to place the child with R.I., a niece of the mother. The child has remained with R.I. since that time, and R.I. has indicated her intent to adopt the child once defendants' parental rights are terminated.

In support of its initial plan of reunification, DYFS provided the parents with parenting skills training, psychiatric and psychological evaluations, services referrals and supervised visitation with A.D.O. The parents complied with all of DYFS' requests. The parents have had weekly visitation with the child at their home.

Both parents have serious mental health issues, and both have a history of noncompliance with treatment recommended by their doctors. They were evaluated on behalf of DYFS by Dr. Karen Wells, a psychologist, and Dr. Alexander Iofin, M.D., a psychiatrist. Dr. Edward Johnson, a psychologist, conducted a bonding evaluation of the parents and the child, and of R.I. and the child. Dr. Jonathan Mack, a psychologist retained on behalf of the father, conducted a bonding evaluation between the father and child.

The mother suffers from mental illness. She also has physical disabilities, including cerebral palsy, sleep apnea, and seizures, and she uses a wheelchair. She had stopped her medication for mental health problems when she was pregnant. Dr. Wells found the mother to have a major depressive disorder. Dr. Iofin, the psychiatrist, testified that the mother has an affective disorder that is either bipolar or depressive. He described her mental condition as "chronic and unchangeable" and "a very serious condition." The mother had been hospitalized numerous times for her mental illness, most recently in the spring before the child was born. Due to the number of the mother's hospitalizations in the past, the doctor opined that hospitalization was likely to happen again.

The father suffers from schizophrenia and a depressive disorder. He was diagnosed with schizophrenia at the age of nineteen while he was in the military. He was discharged from the military for this condition. Over the years he has had at least five inpatient hospitalizations for acute deterioration in his psychiatric condition. His last psychiatric hospitalization was in 1998. While earlier in his life he had some problems with drug use and alcoholism, those problems had abated. Without a doctor's advice, he unilaterally stopped taking his medication in 2004, during the time his wife was pregnant with A.D.O.

Dr. Iofen, who conducted a psychiatric evaluation of the father, testified that schizophrenia is a chronic, degenerative disease. He would reasonably anticipate that the father would have another episode of psychiatric deterioration, whether or not he was on medication. The fact that the father was not taking his medication makes it more probable that he will have a relapse. The doctor explained that schizophrenia is an unpredictable disease. The schizophrenia could cause the father to become distractible, ambivalent and dysphoric which could lead to neglect of the child. In a psychotic episode, he could become delusional and harm the child. Dr. Wells, the psychologist, also testified to the chronic and unpredictable nature of the disease.

Dr. Iofin found that neither parent could be considered a viable caregiver for the child. Dr. Wells felt "very strongly that [A.D.O.] would be placed at risk" of unintentional harm by either parent, and she could not recommend permanent placement of the child in their care.

In his bonding evaluation, Dr. Edward Johnson stated:

The [parents] seemed to love their daughter and desire the best for her. However, beyond that they did not seem to be ready to offer a secure and safe home base to their daughter. On the contrary, [A.O.] presented as happy and secure with [R.I.]. Again [A.O.] has not been ruled out of her parents' lives, and there is no indication that there will be any marked limitation of access to her in the future. It is my clinical impression that [A.O.] will suffer a grief and separation reaction if she were to be removed from her current caregiver, [R.I.]. It is also my clinical impression that the biological parents do not have the capacity to help the child recover from this loss; consequently, the child would be likely to suffer serious and enduring harm.

The father's expert, Dr. Jonathan Mack, a psychologist, presented a contrary view. He found no evidence of a current schizophrenic or psychotic disorder in the father, despite his past history. The doctor testified that the father would be a fit parent. However, he testified that the mother would need an aide if she were left alone with the child. Dr. Mack conducted a bonding evaluation and found the child quiet and relatively unresponsive to R.I. and also to the parents. He opined that the child had a positive bond with R.I. and the father, but she was a little more responsive to R.I. He stated that it would be detrimental for the child to have her bond with her father terminated.

In a lengthy decision placed on the record on October 18, 2006, the trial judge granted the application to terminate parental rights. The judge found the evaluation of the father's illness by Drs. Wells and Iofin to be more credible than that presented by Dr. Mack. He found that DYFS had proven by clear and convincing evidence the four prongs necessary for termination of parental rights under N.J.S.A. 30:4C-15.1(a).

The parents were found to be sincere and genuine in their love for the child and their desire to raise her. The trial judge noted that the defendants were caring parents and that they would never intentionally harm the child. Nevertheless, due to their mental disabilities, they were found to be unable to undertake parenting A.D.O. The law guardian appointed to represent the child in these proceedings had also supported termination of parental rights.

The trial judge noted the importance of finding a permanent home for a child that is a "safe, stable and secure" home where the caregivers are able to meet the child's emotional, physical and psychological needs. With great compassion, the trial judge stated:

I feel that [J.J.O.] and [D.O.], but for their mental health issues, would be good parents, and I know that they want it [a safe, stable, secure home for child] more than anything else in this whole wide world and that she is now a live child, a beautiful baby girl, and she is theirs. But, quite frankly, from [A.O.]'s point of view, their disabilities are such that it would prevent them, based upon my analysis of the information, testimony and reports presented in this trial, from being able to offer her that very same stable, safe, secure home.

Under the applicable standard of review, we must defer to the trial judge's findings unless they are so "wholly unsupportable as to result in a denial of justice." In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). In the case before this court, the trial judge's findings, set forth in his comprehensive decision, are amply supported by the competent and credible evidence. Even in circumstances such as this, where a parent has not intentionally harmed the child, would not do so, and has not had an opportunity to raise the child, parental rights may be terminated where the serious and long term mental illness of the parent renders the parent incapable of caring for the child, which is a harm in itself. N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 440 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002).








October 24, 2007