NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. S.B.

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NOT FOR PUBLICATION WITHOUT THE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-0630-15T3

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

S.B.,

Defendant-Appellant.

_________________________________
 

IN THE MATTER OF THE GUARDIANSHIP

OF J.A.B., a minor.

__________________________________

October 19, 2016

Submitted October 11, 2016 Decided

Before Judges Yannotti, Fasciale and Gilson.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FG-01-22-15.

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

Christopher S. Porrino, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Jodie E. Van Wert, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Melissa R. Vance, Assistant Deputy Public Defender, on the brief).

PER CURIAM

S.B. appeals from a September 22, 2015 judgment of guardianship terminating her parental rights to her daughter, J.A.B., who was born in 2013.1 J.A.B.'s father has not been identified and is therefore not involved in this appeal. We affirm.

S.B. has a long history of mental illness, substance abuse, and cognitive limitations. As a result, she has been unable to parent J.A.B. Immediately after giving birth to J.A.B., the court ordered S.B.'s re-hospitalization at Ancora Psychiatric Hospital (Ancora). The Division conducted a Dodd2 removal, obtained court approval, and placed J.A.B. with a foster family. The court then extended S.B.'s civil commitment at Ancora until she was able to find appropriate housing. J.A.B., who is thriving, has since been placed with a different set of foster parents who wish to adopt her.

The guardianship trial began in September 2015. S.B. was unable to appear at trial because she remained hospitalized at Ancora. The Division produced testimony from Dr. Alan Lee, who testified as an expert psychologist; and Jeanette Longo, an adoption supervisor. We discern the following facts from evidence adduced at the trial.

In January 2015, Dr. Lee evaluated S.B. while she was hospitalized at Ancora. During the evaluation, S.B. stated that she had been admitted into Ancora on at least five occasions. Dr. Lee diagnosed her with schizophrenic disorder, which he emphasized is "characterized by a disturbance in her thinking." S.B. has a history of cocaine use, which Dr. Lee testified exacerbates her mental health problems. Dr. Lee also opined that S.B.'s mental illness adversely impacts her substance abuse issues, and that S.B. was unable to provide "a minimally adequate level of parenting."

As to her cognitive limitations, Dr. Lee testified that S.B. received an IQ score of 58, which he stated is "very low" and is at the 0.3 percentile. Dr. Lee characterized S.B.'s thinking as "very simplistic" and her problem solving ability as "poor." According to Dr. Lee, S.B. "would likely have difficulty comprehending multiple steps at a time, and again have difficulty with more abstract reasoning and being able to form ideas on her own." Because of her intellectual deficit, Dr. Lee opined that S.B. is "likely to have difficulty understanding the needs of the child." He stated that her intellectual deficits make it difficult for her to understand her mental health and substance abuse issues.

Dr. Lee further explained that S.B.'s intellectual problems and mental health issues would most likely continue. He attributed that, in part, to S.B.'s repeated psychiatric re-hospitalizations, and her inability to benefit from intensive case management services, medication, and counseling. Dr. Lee testified he had concerns as to S.B.'s level of functioning, even though the Division provided numerous programs for her, such as domestic violence education, parenting classes, and mental health services.

Ms. Longo testified that S.B. had been psychiatrically hospitalized approximately eight times. She explained that the Division referred S.B. for numerous services to address her mental health issues, including Unity Place, PACT, Taylor Care, Family Service Association, and AtlantiCare Behavioral Health's Adult Intervention Services. S.B. was non-compliant in those programs and was discharged from them due to her aggressive behavior.

Ms. Longo described incidents where S.B. was unpredictable and dangerous, further demonstrating S.B.'s instability. In January 2012, S.B. arrived at the Division's offices unannounced stating that "if somebody doesn't come out to the lobby things [are] going to get wild out here." When the Division security guard had asked her what she meant, she stated that she had something in her bag, which the guard understood to mean a weapon. In April 2014, S.B. again appeared at the Division's office for an unannounced visit, and when a Division worker told her that she could not visit her children at that time, she stated, "I'll kill you." During this incident, S.B. stood close to an officer, made a gesture to yawn, and moved toward the officer's gun, but the officer pushed S.B. away.

The judge rendered an oral opinion. He found that the Division satisfied its burden of producing clear and convincing evidence to prove all prongs of the best interests of the child standard. On appeal, S.B. argues that the Division failed to present clear and convincing evidence to demonstrate the second, third, and fourth prongs of the best interests of the child standard. N.J.S.A. 30:4C-15.1(a)(2)-(4).

Parents have a constitutionally protected right to enjoy a relationship with and to raise their children. In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). "The balance between parental rights and the State's interest in the welfare of children is achieved through the best interests of the child standard." Id. at 347. The best interests standard, initially formulated by the Court in New Jersey Division of Youth & Family Services v. A.W., 103 N.J. 591, 604-11 (1986), is now codified in N.J.S.A. 30:4C-15.1(a), and requires the State to establish each of the following criteria by clear and convincing evidence before parental rights may be severed

(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.

[N.J.S.A. 30:4C-15.1(a)(1)-(4).]

The four criteria are not discreet and separate, but overlap to provide a comprehensive standard to identify a child's best interests. N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 167 (2010). The statute's four parts "relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." K.H.O., supra, 161 N.J. at 348. The considerations involved are "extremely fact sensitive" and require particularized evidence that addresses the specific circumstances present in each case. Ibid. (citation omitted). Importantly, the Division bears the burden of establishing each prong by clear and convincing evidence. N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 506 (2004).

The scope of this court's review of a determination terminating a parent's rights is limited. "When a biological parent resists termination of his or her parental rights, the [trial] court's function is to decide whether that parent has the capacity to eliminate any harm the child may already have suffered, and whether that parent can raise the child without inflicting any further harm." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 87 (App. Div. 2006), certif. denied, 190 N.J. 257 (2007). The factual findings which undergird such a judgment "should not be disturbed unless 'they are so wholly insupportable as to result in a denial of justice,' and should be upheld whenever they are 'supported by adequate, substantial and credible evidence.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974); Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 475 (1988)). "[T]he conclusions that logically flow from those findings of fact are, likewise, entitled to deferential consideration upon appellate review." R.L., supra, 388 N.J. Super. at 89.

Applying these standards, we conclude that there is sufficient credible evidence in the record to support the judge's findings as to all four prongs of the best interests test.

The first two prongs of the best interests test address the harm caused to the children and a parent's failure to mitigate that harm. N.J.S.A. 30:4C-15.1(a)(1) and (2). The focus of the first prong examines the impact of harm caused by the parent-child relationship on the child's safety, health, and development over time. P.P., supra, 180 N.J. at 506. The harm facing the child "need not be physical. . . . Serious and lasting emotional or psychological harm to [a] child[] as the result of the action or inaction of [his or her] biological parents can constitute injury sufficient to authorize the termination of parental rights." In re Guardianship of K.L.F., 129 N.J. 32, 44 (1992). In fact, the failure of a parent to provide a "permanent, safe, and stable home" engenders significant harm to a child. In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999). Similarly, a "parent's withdrawal of . . . solicitude, nurture, and care for an extended period of time is in itself a harm that endangers the health and development of the child." Id. at 379 (citing K.H.O., supra, 161 N.J. at 352-54). This constitutes a "failure to provide even minimal parenting. . . ." Ibid.

The second prong relates to "parental unfitness" and can be established by "demonstrat[ing] that the parent is 'unwilling or unable to eliminate the harm' that has endangered the child's health and development [and] demonstrat[ing that] the parent has failed to provide a 'safe and stable home for the child' and a 'delay in permanent placement' will further harm the child." K.H.O., supra, 161 N.J. at 352 (quoting N.J.S.A.30:4C-15.1(a)(2)).

Although S.B. does not challenge the proofs as to prong one, that the child's safety, health or development has been or will continue to be endangered by the parental relationship, we note that the court found S.B. was "unable to engage in minimally adequate parenting due to her functional deficits," which included S.B.'s failure to recognize J.A.B's needs, her failure to maintain consistency and stability for J.A.B., her failure to protect J.A.B., and her own instability.

As to prong two, the court found that S.B. was "unwilling or unable to eliminate the [aforementioned] harm facing [J.A.B.] or to provide a safe and stable home for the child[] and that the delay of permanent placement will only add to the harm thus suffered." Relying on Dr. Lee's testimony, the judge stated

the [c]ourt relies heavily on the testimony of Dr. Lee in this respect that because of the multiple psychiatric admissions, many of which were for a long period of time at Ancora, the fact that she had what Dr. Lee had coined as suicidality, prevalent cocaine use, her inability to recount historical data, that she really had serious mental health issues and that those intellectual deficits that the [c]ourt made reference to earlier are not likely to change irrespective of the amount of care given to her.

Furthermore, Dr. Lee testified that S.B. is unable to provide a safe and stable home for J.A.B. due to her mental health problems, intellectual deficits, and substance abuse history.

As to prong three, the Division is obligated to make "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." N.J.S.A. 30:4C-15.1(a)(3). The Division's efforts should not be measured by its success, but "'must be assessed against the standard of adequacy in light of all the circumstances of a given case. Consistent efforts to maintain and support the parent-child bond are central to the court's determination.'" N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 441 (App. Div. 2009) (quoting D.M.H., supra, 161 N.J.at 393).

Here, the judge found

that the Division ha[d] made reasonable efforts to provide services to [S.B.] and that alternatives to termination of her parental rights have been considered. Included in those reasonable efforts include for [S.B.] therapeutic visitation services through Robin's Nest, parenting skills training through Family Life Center, which unfortunately she was unable to avail herself of because of her serious mental health issues interfering with that service, monitoring [S.B.]'s psychiatric and mental health services provided through Taylor Care, monitoring [S.B.]'s psychiatric and mental health services provided through Unity Place, monitoring her psychiatric and mental health services provided through Adult Intervention Services, obtaining records from Ancora to coordinate her mental health and behavioral health services, a parental capacity evaluation by Dr. Perry, supervised visitation and coordination of services through AtlantiCare Behavioral Health's PACT team, as well as referral to Family Preservation Services which again [S.B] was unable to avail herself of due to her significant mental health issues.

The Division also considered alternatives to termination of parental rights. The Division and the court attempted to learn the identity of J.A.B.'s father. The judge noted that S.B. did not name J.A.B.'s father. Ms. Longo testified that the father was unknown and therefore the Division could not find any paternal relatives with which to place J.A.B. Ms. Longo also testified that S.B. did not provide any relatives for assessment for placement of J.A.B., and although the Division had previously utilized S.B.'s two relatives for "supervisory purposes," they "were not offered as placements."

As to prong four, S.B. contends that J.A.B.'s placement with a new foster family caused more harm than good, and the Division failed to obtain a bonding evaluation of her and J.A.B. On the fourth prong, the judge stated that

the [c]ourt looks to the age of the child, which is basically a year and a half years old [] and who was removed from the mother at the time of birth so there really would [not] be any bond there. The [c]ourt does [not] find that there would be a need for a bonding expert in any event, whether or not Dr. Lee was able to obtain access to [S.B.] in the hospital, which he indicated he could not because it was the hospital policy not to provide admission for that purpose. But the [c]ourt finds it really would [not] be a bond at that age anyway.

The New Jersey Supreme Court has stated that "[t]he question to be addressed under . . . prong [four] is whether, after considering and balancing the two relationships, 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. Generally, this determination requires expert testimony. Ibid. Here, however, there was no need for a bonding evaluation. J.A.B. was one and one-half years old at the time of the trial and had been living apart from S.B. since birth.

Affirmed.

1 S.B. has another child, who was born in 2011. Although the Division is involved with that child, she is not the subject of this appeal.

2 A "Dodd removal" refers to the emergency removal of a child from the home without a court order, as authorized by N.J.S.A. 9:6-8.29 of the Dodd Act, N.J.S.A. 9:6-8.21 to -8.82.