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

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NOT FOR PUBLICATION WITHOUT THE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-0

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

Y.H.,

Defendant-Appellant.

_______________________________

IN THE MATTER OF THE GUARDIANSHIP

OF S.H.,

a Minor.

__________________________________________

September 21, 2016

Submitted September 14, 2016 Decided

Before Judges Alvarez and Manahan.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FG-02-87-14.

Joseph E. Krakora, Public Defender, attorney for appellant (Thomas G. Hand, Designated Counsel, on the briefs).

Christopher S. Porrino, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Yao Xiao, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (David Valentin, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant Y.H. appeals from a Family Part order dated October 21, 2015, terminating her parental rights to her daughter, S.H., who was three years old at the time of the guardianship trial. We affirm, substantially for the reasons set forth in Judge Gregg A. Padovano's comprehensive and well-reasoned fifty-six-page opinion.

The evidence is outlined in detail in the judge's opinion. A summary will suffice here. S.H. was born in 2012, the child of defendant and an unknown father known only as "Jose[.]" The Division of Child Protection and Permanency (Division) received a referral from local police after it was discovered that defendant had left the three-month-old child alone in her apartment. Defendant suffered from significant mental health issues, and was unable to provide adequate healthcare, stable housing, or economic security for the child. Because defendant was incapable of caring for her, the child was placed in a resource home.

Throughout the litigation, defendant demonstrated a long-standing aversion to mental health treatment. She also refused to accept services to assist her in obtaining medical coverage, stable housing, or economic support. Defendant largely failed to complete parenting classes or maintain steady employment. She never presented the Division with any plan for the child's care. Defendant was either inconsistent in visiting the child, avoided her responsibilities when she did care for her, or refused to visit with the child altogether.

The Division presented testimony that the child was thriving in her resource home, and the resource parent wished to adopt her. The Division and the Law Guardian (on behalf of the child) each presented expert testimony that the child had a secure bond with her resource parent and would suffer severe and enduring harm if separated from her.1 The experts opined that the child would suffer no harm if defendant's parental rights were terminated. Both experts also concluded that notwithstanding the positive relationship between the child and her godparents, removal from the resource home and placement with the godparents would be harmful to the child.

In his opinion, the judge found that the Division had proven all four prongs of the best interests test, N.J.S.A. 30:4C-15.1(a). As such, the termination of defendant's parental rights was in the child's best interests.

With respect to the first prong of the best interests test, the judge concluded there was clear and convincing evidence of harm to the child based on defendant leaving the child unattended when "only a few months old, along with her documented mental health issues, unstable housing, and her inability to maintain employment . . . ." The judge concluded that those "deficits have caused harm to the child" and "endanger [her] future safety, health, and development." The judge continued, "[m]ost compelling on this issue is the testimony and multiple reports of the mental health professionals indicating [defendant's] inability to take responsibility for her own actions and failure to provide for the welfare of her child by failing to comply with services, provide suitable housing and financial support." The judge heavily relied on defendant's history of mental illness and her failure to seek treatment, and ultimately found that defendant "would continue to endanger [the child's] safety, health and development should she be reunified with [defendant.]"

As to the second prong of the test, the judge concluded defendant was "unwilling or unable to eliminate the harm facing the child" as a result of her "pattern of denial and avoidance concerning treatment of her psychiatric diagnosis as well as the lack of any evidence of any real attempt . . . to secure stable housing or consistent financial support . . . ." The judge pointed to a lack of documentary or other evidence supporting defendant's claim that she could not procure insurance, Medicaid or financial aid. Similarly, the judge noted defendant's failure to substantiate her "unilateral claim of having shingles" which was the purported reason for her "refusal to visit with the child for months during 2014 and 2015[.]" The judge also reasoned that while defendant had a right to refuse medical treatment, "the law draws its boundaries when decisions such as that affect others, and most compellingly when the affected other is the child of the actor."

Regarding the third prong of the best interests test, the judge concluded there was clear and convincing evidence showing the Division made reasonable efforts to provide services to help defendant. In particular, the judge noted a referral to Families First,2 as well as various psychiatric, psychological and other mental health treatment referrals made by the Division, and defendant's failure to take advantage of those services. The judge rejected defendant's argument that the child should be placed with her godparents, relying on the experts' conclusions that removing the child from the resource home and placing her with the godparents would be detrimental.

With respect to the fourth prong, the judge concluded that based on the credible testimony of the experts, there was convincing evidence that termination of parental rights would not do more harm than good. The judge reasoned that given the length of the case defendant "had more opportunity than some parents to cure the problems that led to removal and to achieve reunification." He also rejected the godmother's testimony regarding a lasting harm to the child as not reliable because it was outweighed by the experts' testimony.

The Supreme Court first articulated the best interests standard in N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 602-11 (1986). The Legislature subsequently amended Title 30 in 1991 to conform to the court's holding in A.W., codifying the standard at N.J.S.A. 30:4C-15.1(a). The statute provides that the Division must prove

(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 [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.

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

The four factors are not independent of each other; rather, they are "interrelated and overlapping . . . designed to identify and assess what may be necessary to promote and protect the best interests of the child." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006) (citation omitted), certif. denied, 190 N.J. 257 (2007). Application of the test is "extremely fact sensitive" requiring "particularized evidence that addresses the specific circumstances of the individual case." Ibid. (citation and internal quotation marks omitted). The burden of proof is on the Division to establish its case by a clear and convincing evidence standard. Ibid.; see also In re Guardianship of J.N.H., 172 N.J. 440, 464 (2002); N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 447-48 (2012); N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004).

On appeal, our review of the judge's decision is limited. We defer to his expertise as a Family Part judge, Cesare v. Cesare, 154 N.J. 394, 412 (1998), and we are bound by his factual findings so long as they are supported by sufficient credible evidence. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (citing In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). After reviewing the record, we conclude that the judge's factual findings are fully supported by the record and, in light of those facts, his legal conclusions are unassailable.

Defendant contends that the trial court erred in admitting into evidence non-testifying expert reports. Defendant also asserts that the judge erred in finding that she harmed the child, and in finding that the Division provided her with reasonable services, particularly as they relate to her financial difficulties. Those arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

1 Additional reports from non-testifying experts were also admitted into evidence.

2 Defendant was also referred to Mentoring Moms and EPIC parenting program. She completed the EPIC program, but did not complete Mentoring Moms.