NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. P.H.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2397-12T1

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,1

Plaintiff-Respondent,

v.

P.H.,

Defendant-Appellant.

_________________________________________

IN THE MATTER OF THE GUARDIANSHIP OF

M.H. and X.H.,

Minors.

_________________________________________

May 13, 2014

Argued April 1, 2014 Decided

Before Judges Messano, Hayden, and Lisa.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FG-16-19-12.

Sarah L. Monaghan, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Monaghan, on the briefs).

Peter D. Alvino, Senior Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Karen Kleppe Lembo, Deputy Attorney General, on the brief).

Caitlin McLaughlin, Designated Counsel, argued the cause for the minors (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. McLaughlin, on the brief).

PER CURIAM

Defendant P.H. (Pam)2 appeals from the January 9, 2013 Family Part judgment of guardianship, which terminated her parental rights to her children M.H. (Michael) and X.H. (Xia) and awarded guardianship to the Division.3 Pam contends that the Division did not demonstrate by clear and convincing evidence the four prongs of the best interests of the child test, N.J.S.A. 30:4C-15.1(a). The Law Guardian supports termination and urges us to affirm the trial judge's determination. Having reviewed the record in light of the contentions of the parties and applicable law, we affirm.

The record reveals that Pam has a long history of psychiatric treatment for bipolar disorder and schizophrenia with numerous hospitalizations since her first psychiatric breakdown at the age of twenty, including an eighteen-month commitment in 1996. In 1998, Pam began receiving social security disability (SSD) for her bipolar disorder. Pam married Daniel4 in 2007, and they had Michael in 2009, and Xia in 2010.

The Division first became involved with the family in August 2009, when a hospital social worker reported that Pam, the mother of then-three-month old Michael, was involuntarily committed after bizarre behavior and noncompliance with her medical care. The reporter relayed that Pam had a history of mental illness and alleged that Daniel was using drugs and alcohol. Thereafter, Pam remained in the hospital until October 2009, and, when Daniel allegedly admitted regularly hearing voices, the Division removed Michael, charging the parents with abuse and neglect of their children under Title Nine.5 After a Title Nine fact-finding hearing, the judge determined that the Division had not proven abuse or neglect under N.J.S.A. 9:6-8.21. Pam regained custody of Michael in January 2010,6 but the Division continued to provide care and supervision and services.

Pam became pregnant with Xia and ceased taking her psychotropic medication, but did not inform the Division. In September 2010, less than a month after Xia was born, Pam was involuntarily committed after a violent episode occurred in the presence of the children; she was released later that month. When Pam's family conveyed to the Division that they could not care for the children, the Division performed an emergency removal. The Division placed the children with a maternal aunt, but, due to the aunt's licensing issues, the children were later moved to a non-relative foster home. In December 2010, Pam was readmitted to the hospital for psychiatric treatment and remained there until February 2011.

In July 2011, the court determined that Pam had abused and neglected her children under N.J.S.A. 9:6-8.21(c) by placing them at risk of harm due to her mental illness and noncompliance with necessary treatment. The court rejected Pam's claim that she stopped her medication due to her gynecologist's recommendation, finding it irrelevant as to whether she recklessly and wantonly placed her children at substantial risk of harm. In August 2011, the court approved the Division's permanency plan for termination of parental rights followed by adoption.

In September 2011, after approximately one year in non-relative foster care, the children were placed with their paternal aunt, S.H. (Summer), who lived in New York. On September 28, 2011, the Division filed a guardianship complaint seeking termination of Pam's parental rights to Michael and Xia and dismissed the Title Nine proceeding.7

Judge George E. Sabbath held the guardianship trial on three nonconsecutive days in November and December 2012. At the trial, Grace Barrientos, a Division case manager; Gillian Batts, a Division adoption worker; Dr. Michael P. Gentile, M.D., an expert in psychiatry; and Dr. Robert P. Kanen, Ph.D., an expert in psychology and bonding, testified for the Division. Pam testified on her own behalf, and Dr. Frederica G. Brown, a licensed psychologist, also testified on her behalf.

On January 9, 2013, Judge Sabbath issued a comprehensive oral opinion terminating Pam's parental rights to Michael and Xia. The judge concluded that the Division proved each of the four prongs of the best interests of the child analysis, N.J.S.A. 30:4C-15.1(a), by clear and convincing evidence. The judge observed that there was no parental fault or bad intention involved; rather, "it [was] a case of [Pam's] mental illness precluding her from safely parenting[.]"

The judge opined that the evidence overwhelmingly showed that Pam suffered from bipolar schizoaffective disorder mania, a permanent psychological disorder. Pam's mental illness was described as longstanding and chronic with her first incident arising at the age of twenty and progressively worsening as the years continued. The judge found that "[u]nder the totality of the circumstances, . . . [Pam was] inclined to follow her own instincts, rather than medical and other professional advice and treatment due to [her] narcissistic issues[.]"

Pam's mental health issues, the judge stated, posed a risk of severe and enduring harm, not just because Pam was incapable of caring for them, but also because of the lack of permanency caused by the necessity of numerous removals. Indeed, Michael was removed when he was four months old, and thereafter both children endured numerous removals and placements before finally coming to reside with Summer.

Moreover, Pam had engaged in numerous incidents of violence, including smashing a television and laptop with a hammer, threatening people, kicking at moving cars, hiding in the bushes, lashing out at others with a belt, and having to be removed from a train for disruption. The judge noted that these incidents were "representative of the mania aspects of her mental illness[.]"

The judge found credible Dr. Kanen, who "concluded that Pam's mental illness rendered her unable to safely parent the children now or in the foreseeable future." The doctor asserted that during Pam's manic episodes, the children would be exposed to harm due to Pam's lack of judgment and control, as well as Pam's personality disorder that would cause her to be indifferent to the needs of others, including her children. Additionally, the doctor noted that a manic episode resulting in commitment occurred while Pam was taking her medication, which demonstrated that the children were at risk even if Pam remained compliant with her medication.

The judge found significant Dr. Kanen's testimony that Pam suffered from auditory hallucinations, paranoia, and insomnia coupled with repeated instances of noncompliance with her treatment, revealing a likelihood of a continued need for long-term hospitalization or the possibility of future arrests. Dr. Kanen concluded that Pam could not "parent a child independently and would become overwhelmed with the demands of day-to-day childcare," exposing the children to an unnecessary risk of harm if they were returned.

Judge Sabbath also relied on the opinion of Dr. Gentile, whose opinion mirrored Dr. Kanen's. Dr. Gentile concluded that "the capacity by [Pam] to parent [was] poor due to her lack of insight and her history with respect to prior commitments[.]" The doctor also found that "due to her schizoaffective disorder, the children would be at risk if she was their parenting custodian" because "the children might become incorporated into her psychosis and suffer physical risk of harm and . . . secondarily suffer neglect." The doctor observed that, while Pam was in a manic state, the children could be subject to a risk of homicide if they remained in her care. Dr. Gentile opined that Pam's condition is permanent, she was unable to appreciate her need to remain on medication, she could not benefit from psychotherapy, there was no cure for her condition, and she needed constant observation.

Judge Sabbath determined that Dr. Brown's opinion that Pam had gained insight into her mental illness, achieved stability, would likely not relapse into noncompliance again, could parent "with a lot of support," and that the children were bonded to her, was implausible in light of the credible opinions and reports submitted by Drs. Kanen and Gentile. The judge found Dr. Brown's evaluation incredible; unsupported by the factual history of the case and Pam's own admissions; and that it failed to take into account Pam's commitment history, the children's need for permanency, or the risk of harm to the children should Pam cease to take her medication and enter a period psychosis. Based on the credible psychological testimony, the judge rejected Pam's contention that she no longer presented a risk of harm because she had not had a recent hospitalization.

Moreover, Judge Sabbath found Drs. Kanen and Gentile's testimony and reports consistent with and supported by the evidence in the record. Thus, the judge found that the Division had proven that Pam presented a continued risk to the children's safety, health, and development, and that Pam was unable to ameliorate that harm due to her longstanding mental conditions.

Further, Judge Sabbath determined that despite Pam's chronic and serious mental illness, the Division provided numerous services. The judge also found that no alternative to termination existed as several relatives were considered for placement, but were ruled out. The judge agreed with the Division that Kinship Legal Guardianship (KLG) was not appropriate because the children were placed with a relative willing to adopt them.

Finally, Judge Sabbath determined that the "termination of parental rights [would] not do more harm than good, and [would] be in the best interest of the children." The bonding evaluations, which the judge relied on, revealed that Michael, who had resided with his mother for approximately ten months, showed an insecure and avoidant attachment to her, often seen in children who feel threatened and who have had an unreliable caretaker. Xia, who resided with Pam for only a few days after her birth, had no attachment to Pam. Pam was, at times, "unpredictably inappropriate," and her illness interfered with her ability to parent. The judge noted that Dr. Kanen concluded the children would not suffer serious and enduring harm from removal, but they would be at risk if returned.

On the other hand, the judge found that the children had a good relationship with Summer who they looked to "for their needs revealing a trust and security with [her] at this critical phase in their development[.]" Indeed, the children demonstrated "close to a secure attachment" to Summer, who was "capable of providing them with a permanent, safe, and secure home." The judge found, based on the doctors' evaluations, that "[r]emoving them from her care would expose them to an unnecessary risk of harm," and the children's best interests would be served remaining with Summer. This appeal followed.

From our independent review of the record we agree that substantial evidence exists to support the judge's termination of Pam's parental rights. We affirm essentially for the reasons expressed in Judge Sabbath's thoughtful and thorough opinion. We add only the following.

In a guardianship proceeding, we are required to strike a balance between the constitutional right of parents to raise their children and a child's right to be free from serious physical and mental abuse. In re Guardianship of K.H.O., 161 N.J. 337, 346-47 (1999); see also N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279-80 (2007). When seeking termination of parental rights under N.J.S.A. 30:4C-15.1(a), the Division has the burden of establishing by clear and convincing evidence 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.

These factors are not discrete or separate elements, but should be considered together to provide a picture of what is in the best interests of the child. N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 167 (2010); N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 258 (App. Div. 2005).

On this appeal, our review of Judge Sabbath's decision is limited. Ordinarily, we will defer to a trial judge's factual determination unless those findings "went so wide of the mark that a mistake must have been made." M.M., supra, 189 N.J. at 279 (internal quotation marks and citations omitted). We will not disturb the Family Part's factual findings so long as "they are 'supported by adequate, substantial and credible evidence.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (citations omitted).

We owe this deference to the trial judge because he or she has had "the opportunity to make first-hand credibility judgments" and to gain "a 'feel of the case'" over time, thus supporting a level of factual understanding that cannot be gleaned by an appellate court's review of a written record. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (quoting M.M., supra, 189 N.J. at 293). Gauged by those standards, we find no basis to disturb Judge Sabbath's credibility determinations, his factual findings, or his conclusion to terminate Pam's parental rights.

The first prong of the best interests test under N.J.S.A. 30:4C-15.1(a)(1) requires us to "determine whether the 'child's safety, health or development has been or will continue to be endangered by the parental relationship.'" M.M., supra, 189 N.J. at 281 (quoting N.J.S.A. 30:4C-15.1(a)(1)); see also In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999). The second prong relates to parental unfitness and requires the court to decide "'whether it is reasonably foreseeable that the parents can cease to inflict harm upon the children entrusted to their care.'" I.S., supra, 202 N.J. at 167 (quoting N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 607 (1986)). As to the first and second prongs, the credible evidence is clear and convincing that Pam's severe mental illness and chronic noncompliance with medical treatment endangered Michael and Xia, and as of the time of the trial or in the foreseeable future, Pam was not and would not be able to safely parent her children.

Pam is not morally culpable or blameworthy; rather, her mental illness renders her incapable of safely parenting her children. See N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 450-51 (2012) (finding that mental illness may give rise to termination of parental rights where the "illness poses a real threat to a child"); N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 439-40 (App. Div. 2001) (terminating parental rights where parents had not harmed children and no evidence showed they would intentionally harm them, but mental illness rendered them incapable of safely parenting), certif. denied, 171 N.J. 44 (2002).

Contrary to Pam's contention on appeal, our prior reversal of the finding of abuse and neglect in the Title Nine litigation has no bearing on our conclusion that the Division proved that the termination of Pam's parental rights was appropriate here. Termination of parental rights does not require a prior finding abuse or neglect under Title Nine; so long as the four criteria of N.J.S.A. 30:4C-15.1 are proven by clear and convincing evidence, a person's parental rights may be terminated. N.J. Div. of Youth & Family Servs. v. K.M., 136 N.J. 546, 556-57 (1994). Indeed, the Division "may bring an action for the termination of parental rights under . . . N.J.S.A. 30:4C-15 without first bringing an action under Title 9." N.J. Div. of Youth & Family Servs. v. A.P., 408 N.J. Super. 252, 259 (App. Div. 2009), certif. denied, 201 N.J. 153 (2010); see also F.M., supra, 211 N.J. at 443-44.

The third prong contemplates that the Division will make reasonable efforts to assist the parent to correct and overcome the circumstances that led to the removal of the child. K.H.O., supra, 161 N.J. at 354. Judge Sabbath reasonably found that the Division had provided Pam with a wide array of services. For over two years the Division worked intensively with Pam to promote reunification. Nevertheless, "[t]he diligence of DYFS's efforts on behalf of a parent is not measured by their success." D.M.H., supra, 161 N.J. at 393. Moreover, the Division did consider alternatives to termination, explored and ruled out numerous family placements, and appropriately ruled out KLG. See N.J. Div. of Youth & Family Servs. v. S.V., 362 N.J. Super. 76, 88 (App. Div. 2003) (finding that where adoption is feasible and likely, KLG is inappropriate).

Finally, the fourth prong, which addresses whether termination will do more harm than good, focuses on whether "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. In analyzing the evidence in light of this prong, the judge relied heavily on the bonding evaluations and testimony of both the Division's experts, which he found more credible than Dr. Brown's. We are in accord with Judge Sabbath that, balancing the lack of harm to Michael and Xia from the termination of Pam's parental rights with the benefit of remaining in a stable permanent home, termination of parental rights will do much good and minimal harm. A child cannot wait for a parent to become fit. See 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).

In sum, we conclude that Judge Sabbath did not err in determining that Michael and Xia's best interests require termination of Pam's parental rights so that they can be adopted by Summer.

Affirmed.

1 A reorganization of the Department of Children and Families included the renaming of the New Jersey Division of Youth and Family Services as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012. We will refer to it as the Division.

2 We use pseudonyms to protect the privacy of the parties and the minors.

3 The children's father, D.H. (Daniel) executed a general surrender of his parental rights to both children on December 22, 2010.

4 Daniel was diagnosed with paranoid schizophrenia in 1986 and bipolar disorder in 2004.

5 N.J.S.A. 9:6-8.21 to -8.73.

6 Daniel had moved to New York and was undergoing substance abuse treatment. He was not allowed to reside with Pam or have unsupervised visitation until he had addressed his substance abuse issues.

7 Pam subsequently filed an appeal from the order finding abuse and neglect under Title Nine. On May 17, 2013, we reversed the abuse and neglect finding against Pam. N.J. Div. of Youth & Family Servs. v. P.H., No. A-1935-11 (App. Div. May 17, 2013) (slip op. at 2, 19). We concluded that the Division had not met its burden of proving that Pam was grossly and wantonly negligent in deciding to risk deterioration of her own mental health to prevent possible harm to her fetus. Id. (slip op. at 15).