NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. R.F.

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NOT FOR PUBLICATION WITHOUT THE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.

R.F.,

Defendant-Appellant,

and

J.A.,

Defendant.

IN THE MATTER OF THE GUARDIANSHIP

OF J.A., a Minor.

November 23, 2015

Submitted November 2, 2015 - Decided

Before Judges Carroll and Sumners.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-263-14.

Joseph E. Krakora, Public Defender, attorney for appellant (Mark E. Kleiman, Designated Counsel, on the brief).

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

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

PER CURIAM

Defendant R.F. appeals from the Family Part's January 30, 2015 final judgment terminating her parental rights to her son J.A., born in January 2013.1 Defendant contends that the New Jersey Division of Child Protection and Permanency (Division) failed to prove each of the four prongs of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. Specifically, defendant argues that the trial court erred in concluding that her mental health issues and failure to comply with services posed a past or future danger to J.A. She also contends that the Division failed to make reasonable efforts to assist her in remediating her psychiatric problems. After reviewing the evidence presented to the trial court, and in light of prevailing legal standards and arguments presented, we affirm.

We will not recite in detail the history of the Division's involvement with defendant. Instead, we incorporate by reference the factual findings and adopt the legal conclusions contained in Judge Mark J. Nelson's twenty page written decision. We add the following comments.

Judge Nelson conducted a two-day guardianship trial in January 2015. The Division presented the testimony of expert psychologist Frank Dyer, Ph.D.; expert psychiatrist Samiris Sostre, M.D.; Division caseworker William Larrinaga; and J.A.'s resource mother and maternal aunt, M.P. Defendant did not testify or call any witnesses.

Judge Nelson carefully reviewed the evidence presented, and concluded that the Division proved by clear and convincing evidence the four prongs of the best interests test, codified in N.J.S.A. 30:4C-15.1a(1) to -15.1a(4) 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 . . .;

(3) The [D]ivision 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.

See also N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986).

Pertinent to this appeal, Judge Nelson found that

[R.F.] was referred for psychiatric treatment on at least four occasions by the Division. [R.F.] was referred to Dr. Wang of North Hudson Community Action Corp. in August 2013 and December 2013. . . . [R.F.] was referred for psychiatric treatment to Christ Hospital by caseworker Mejia in February 2014. Finally, [R.F.] was referred to the Jersey City Medical Center for psychiatric treatment in October 2014. The caseworker [,] [] Larrianaga[,] testified that he provided R.F. with a letter to contact the Jersey City Medical Center in October 2014[,] and that when he later met [with] her, she indicated that she lost the letter. [] Larrianaga testified that he provided [R.F.] with a new letter in November 2014[,] and that she again failed to call. [] Larrianaga further testified and the court finds credible that he met with [R.F.] on January 7, 2015 ([five] days before the start of the trial) and [] Larrianaga actually sat there with [R.F.] while she called the Jersey City Medical Center for an appointment.

The judge noted that the testimony of the Division experts was "quite consistent." Dr. Sostre

opined quite strongly that [R.F.] does not recognize her medical/psychiatric deficits and therefore does not think or understand that she has a problem and so therefore [] is not likely to follow up with her psychiatric issues. Dr. Sostre indicated that lifelong psychiatric treatment would be required for [R.F.] and she would need to comply with psychiatric treatment for six to twelve months to demonstrate enough progress to even consider reunification.

The judge further noted that "Dr. Dyer diagnosed [R.F.] with personality disorder NOS" which "prevents [her] from placing the child's needs above her own." Importantly, "Dr. Dyer emphasized that [J.A.] has been diagnosed on the Autistic Spectrum which will require vigilant care and that [R.F.] is absolutely incapable of providing that care."

With regard to the first prong of the best interests test, Judge Nelson found by clear and convincing evidence that "R.F. has long standing untreated mental health issues." The judge determined that, although the Division put numerous services in place to enable R.F. to deal with her psychiatric issues, she failed to comply. The court accepted the opinions of Drs. Sostre and Dyer that, "without complying with these services, [R.F.] is simply unable to parent this child."

The second prong "relate[s] to and overlap[s] with" the first prong to create "a comprehensive standard that identifies a child's best interests." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). Here, the judge accepted the unrebutted testimony of the Division's experts who concluded that "[R.F.] is simply unable to provide a safe and stable home for this child now or in the foreseeable future."

Judge Nelson determined that the third prong was readily proven by the Division's offering of a myriad of services to R.F. The judge explained

The Division has, in fact, been working with [R.F.] since the first referral in March 2013. The Division promptly referred [R.F.] for psychological evaluation by Dr. Jewelewicz-Nelson and psychiatric evaluation by Dr. Dumont to determine what services she would need to become fit to parent. The Division followed the recommendations of both doctors and offered the recommended services to [R.F.]. The Division offered psychiatric treatment and medication monitoring to [R.F.] along with parenting skills classes and specialized parenting skills classes for children with special needs. The Division also offered anger management and batterer's counseling, individual counseling, family team meetings, visitation and participation in the meeting with the Early Intervention program and transportation for all of these services. On a more particular note, the Division referred [R.F.] for psychiatric treatment on four separate occasions (if not more). . . . There is [] no evidence that she complied with any of the services other than the parenting skills.

Finally, the judge concluded that termination will not do more harm than good. The judge again cited the uncontroverted expert opinion of Dr. Dyer who found that, based upon his bonding evaluation, J.A. was bonded with his foster parents but "does not have an attachment with [R.F.]."

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).

Our review of this record convinces us that no mistake was made, and that Judge Nelson's decision is supported by clear and convincing evidence and carefully tracks the statutory requirements of N.J.S.A. 30:4C-15.1a. Defendant's contention that the trial court erred in concluding that her mental health issues and failure to comply with services posed a past or future danger to J.A. is belied by the judge's thoughtful findings. Her argument that the Division failed to make reasonable efforts to assist her in remediating her psychiatric problems is not supported by the record and is without sufficient merit to warrant discussion here. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons the judge expressed in his comprehensive and well-reasoned written opinion.

Affirmed.

1 The judgment also terminated the parental rights of J.A.'s biological father, Jh.A. Jh.A. executed a voluntary surrender of his parental rights on January 12, 2015, and is not involved in this appeal.