NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. A.J.

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NOT FOR PUBLICATION WITHOUT THE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,1

Plaintiff-Respondent,

v.

A.J.,

Defendant-Appellant.

__________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF Z.J., a minor.

___________________________________

December 9, 2014

Submitted November 5, 2014 Decided

Before Judges Messano and Hayden.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FG-16-44-13.

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 (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Melissa Medoway, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Karen A. Lodeserto, Designated Counsel, on the brief).

PER CURIAM

Defendant A.J. (Allyce)2 appeals from a March 31, 2014 Family Part judgment of guardianship, which terminated her parental rights to her daughter Z.J. (Zoey) and awarded guardianship to the Division of Child Protection and Permanency (the Division).3 Allyce 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 the applicable law, we affirm.

The record reveals that Allyce has a long history with the Division, which began in 2007. She gave birth to Zoey, her fifth child, in March 2012. Allyce's oldest child was placed with a relative. The three other children were the subjects of guardianship proceedings and Allyce's parental rights to them had been terminated previously.

Allyce has a lengthy history of severe mental illness, having been diagnosed with bipolar disorder, schizoaffective disorder and severe personality disorders. She also had a moderate cognitive impairment. She had a number of psychiatric hospitalizations and has refused to continue to take the prescribed medications. After the Division's July 2012 removal of Zoey at the age of four months, Allyce refused to engage in psychiatric services, take her medication, or engage in services offered by the Division. She visited Zoey about four times up to December 2012. Allyce also did not attend many of the child protective services court hearings, the guardianship litigation hearings, or either of the trial dates, although she was represented by an attorney at most of the hearings.

The Division filed for guardianship on May 2, 2013. On March 31, 2014, after a two-day non-consecutive trial, Judge George E. Sabbath issued a comprehensive written opinion terminating Allyce's parental rights to Zoey. The judge concluded, based upon the best interests of the child test set forth in N.J.S.A. 30:4C-15.1(a), that there was clear and convincing evidence that Allyce's parental rights should be terminated so that Zoey could be adopted. This appeal followed.

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.

[Ibid. See also N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 166 (2010).]

These factors are not discrete or separate elements, but should be considered together to provide a complete picture of what is in the best interests of the child. I.S., supra, 202 N.J. at 166-67; 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 were "so wide of the mark that a mistake must have been made." M.M., supra, 189 N.J. at 279 (internal quotation marks and citation 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 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 Allyce's parental rights.

From our independent review of the record, we agree that substantial evidence exists to support the judge's conclusion. We affirm essentially for the reasons expressed in Judge Sabbath's cogent opinion. We add only the following comments.

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, 378 (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)).

Here the evidence is both uncontradicted and overwhelming that Allyce suffers from significant and untreated mental illness and cognitive impairment, which seriously interferes with her ability to parent Zoey or any child. Dr. Robert Kanen, Psy.D., testified based on evaluations of Allyce in 2010 and 2012 that her mental illness and cognitive impairment were chronic in nature and were unlikely to change. In Dr. Kanen's opinion, Allyce's deficiencies "seriously impair her ability to supervise, protect, or care for [a] child." According to Dr. Kanen, Allyce's disclosure to him, that she had not taken medication prescribed to treat her mental illness for many years, reinforced his conclusion that Allyce's longstanding inability to parent was likely to continue. In addition, Dr. Kanen opined that Zoey was securely bonded to her foster mother, who wished to adopt her, and would suffer serious and enduring harm by being removed from her.

We agree with Judge Sabbath's conclusion that the Division proved the first and second prong of the best interest of the child test as Allyce was simply unable to provide a safe and stable home for Zoey in the foreseeable future. While the root of Allyce's deficiencies may be her unrelenting mental illness and cognitive impairment, as we have previously noted, "[t]hat the parents may be morally blameless is not sufficient to tip the scales in their favor." N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 438 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002).

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 child's removal. K.H.O., supra, 161 N.J. at 354. Judge Sabbath found that despite being relieved of the requirement to provide services to Allyce because of the previous three terminations of parental rights, the Division had attempted to provide Allyce with appropriate services under the circumstances. However, she declined all services and did not stay in contact with the Division. The record shows that Allyce refused to attend psychological evaluations, was inconsistent with visitation, and told the caseworker that she would not participate in any Division services. Under these circumstances, we agree with Judge Sabbath that the Division's efforts were reasonable as "[t]he diligence of [the Division's] efforts on behalf of a parent is not measured by their success." D.M.H., supra, 161 N.J. at 393.

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 [or his] natural parents than from the permanent disruption of her [or his] relationship with her [or his] foster parents." K.H.O., supra, 161 N.J. at 355. Allyce contends that the judge could not determine prong four without a comparative bonding evaluation. See N.J. Div. Of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 440 (App. Div. 2009) (noting "we can envision very few scenarios in which comparative evaluations would not be required."). Here, Zoey had not lived with Allyce since she was four months old and Allyce had visited infrequently for the next few months. At the time of the trial, Zoey had not seen her mother in fifteen months. Moreover, Allyce's mental illness and cognitive impairment prevented her from being a viable option for placement. Consequently, we are satisfied that this is one of the rare instances when a comparative bonding evaluation was not warranted.

Moreover, we are in accord with Judge Sabbath that, balancing the lack of harm to Zoey from the termination of Allyce'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).

The Division sought termination based on both on abandonment, N.J.S.A. 30:4C-15.1(b), and on the best interests of the child, N.J.S.A. 30:4C-15.1(a). The Division's case on the first day of trial focused on its allegation that Allyce had abandoned Zoey, which was rejected by the judge. Noting that the standard of evidence for the best interests of the child test was clear and convincing evidence, the judge adjourned the trial, over objection from Allyce's attorney, for the parties to properly address the second ground for termination, the best interests of the child. Allyce argues that the adjournment constituted double jeopardy. Allyce also contends that the trial judge abused his discretion by adjourning the trial and requiring additional evidence on the best interests of the child cause of action. We reject both claims.

First, it is well settled that a guardianship trial is civil in nature. In re Guardianship of Dotson, 72 N.J. 112, 118 (1976). Thus, it is not a criminal proceeding to which the constitutional prohibition against double jeopardy applies. See Santosky v. Kramer, 455 U.S. 745, 764, 102 S. Ct. 1388, 1400, 71 L. Ed. 2d 599, 613 (1982) (noting that "[u]nlike criminal defendants, natural parents have no 'double jeopardy' defense against repeated state termination efforts.").

Further, Allyce had the opportunity to present evidence and cross-examine witnesses when the trial continued. She does not explain how she was prejudiced by the adjournment. As the grant or denial of a continuance rests within the sound discretion of the court, Kosmowski v. Atlantic City Med. Ctr., 175 N.J. 568, 575 (2003), we judge a continuation of a trial under an abuse of discretion standard. We will not interfere with a court's decision unless it appears a party "suffered manifest wrong or injury." State v. Hayes, 205 N.J. 522, 537 (2011). As we perceive no prejudice to Allyce, who did not attend or present evidence either day of the trial, we see no reason to interfere with the court's discretionary decision.

In sum, we conclude that Judge Sabbath did not err in determining that Zoey's best interests require termination of Allyce's parental rights so that she can be adopted by her present resource parent.

Affirmed.

1 Effective June 29, 2012, the Division of Youth and Family Services was renamed the Division of Child Protection and Permanency. L. 2012, c. 16.

2 We use pseudonyms to protect the privacy of the family.

3 Zoey's father is unknown as the originally named father was ruled out by a DNA test. The parental rights of Zoey's father "whomsoever he may be" were terminated at the time of the guardianship trial.