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

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NOT FOR PUBLICATION WITHOUT THE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 binding only 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-4882-14T4

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

A.A.,

Defendant-Appellant,

and

J.R.,

Defendant.

___________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF A.R. and A.Y.-S.R., minors.

___________________________________

December 9, 2016

Submitted November 29, 2016 Decided

Before Judges Fisher and Ostrer.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-212-15.

Joseph E. Krakora, Public Defender, attorney forappellant (AnthonyJ. Vecchio, Designated Counsel, on the briefs).

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

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors A.R. and A.Y.-S.R. (Lisa M. Black, Designated Counsel, on the brief).

PER CURIAM

Defendant A.A. appeals from a June 17, 2015, judgment of guardianship, terminating her parental rights to her daughters, A.R. (Amy), born in October 2012, and A.Y.-S.R. (Alexandra), born in November 2013.1 We affirm.

As the trial judge set forth the facts at length, a summary suffices here. A.A. committed an aggravated assault of Amy when she was five months old. A.A. shook Amy so violently that she suffered severe and permanent brain damage. A.A. then delayed seeking treatment. As a result of the assault, Amy cannot see and can barely hear. She suffers from global development delays and will have seizures for the rest of her life. As of trial, two years after the assault, she remained hospitalized but medically stable.

The assault was not the first incident of physical abuse. Judge Mark J. Nelson credited a physician, Dr. Elizabeth Hodgson, who testified that Amy had also suffered previous head trauma and broken bones that were not accidental.

Upon further investigation of Amy's injuries, A.A. was arrested. She was incarcerated when she gave birth to Alexandra. Her second daughter was placed thereafter with a foster parent, who continued to care for her as of trial.

In March 2014, A.A. admitted she abused or neglected Amy. In January 2015, A.A. pleaded guilty to second-degree aggravated assault and was sentenced to a five-year term of incarceration. Under the No Early Release Act, N.J.S.A.2C:43-7.2, she is ineligible for parole before 2017.2

Although A.A. was afforded some visitation with Alexandra, psychological experts for A.A. and for the Division of Child Protection and Permanency (Division) agreed that Alexandra lacked a meaningful bond with A.A. The Division's expert, Dr. Robert Miller, stated Alexandra was developing a strong bond with her foster parent, which would solidify around age two. Amy's injuries rendered her unable to bond or attach to anyone.

Dr. Miller stated that A.A. had severe parenting deficits and posed a high risk of neglect. A.A.'s expert, Dr. Barry Katz, agreed that A.A. lacked the current ability to parent. But he asserted that, with the assistance of various forms of therapeutic intervention, she might become fit in the future. He stated that A.A.'s parenting ability should be reassessed after two years.

The Division proposed a select home adoption for Amy and adoption of Alexandra by her foster parent.

Judge Nelson found that the Division proved by clear and convincing evidence all four prongs of the best interests test codified at N.J.S.A. 30:4C-15.1(a)

(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).]

See also N.J. Div. of Youth and Family Servs. v. A.W., 103 N.J. 591, 604-10 (1986). With respect to prong three, the statute defines "reasonable efforts" to mean

attempts by an agency authorized by the division to assist the parents in remedying the circumstances and conditions that led to the placement of the child and in reinforcing the family structure, including, but not limited to

(1) consultation and cooperation with the parent in developing a plan for appropriate services;
 
(2) providing services that have been agreed upon, to the family, in order to further the goal of family reunification;

 
(3) informing the parent at appropriate intervals of the child's progress, development, and health; and

 
(4) facilitating appropriate visitation.

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

On appeal, A.A. does not challenge the court's findings as to prongs one, two, and four. She contends the court erred regarding prong three because the Division failed to provide psychotherapy to A.A. while she was incarcerated and failed to timely and adequately seek out and evaluate a relative placement for the children. The Law Guardian joins the Division in opposing the appeal.

We affirm substantially for the reasons stated by Judge Nelson in his cogent written opinion. We add the following comments.

Our scope of review of the trial court's order is limited, In re Guardianship of J.N.H., 172 N.J.440, 472 (2002). We defer to the trial judge's factual findings that are rooted in his familiarity with the case, his opportunity to make credibility judgments based on live testimony, and his expertise in family and child welfare matters. Cesare v. Cesare, 154 N.J.394, 412-13 (1998). We will affirm the Family Part's decision to terminate parental rights when substantial, credible evidence in the record supports the court's findings. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J.88, 104 (2008). By contrast, we are not bound in any way by the trial court's legal conclusions. N.J. Div. of Youth and Family Servs. v. I.S., 202 N.J.145, 183 (2010) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J.366, 378 (1995)).

We analyze the Division's efforts to provide services "with reference to the circumstances of the individual case." In re Guardianship of DMH, 161 N.J.365, 390 (1999). The Division's efforts are "not measured by their success." Id.at 393. Judge Nelson acknowledged that the Division's psychologist recommended that A.A. receive psychotherapy and counseling, yet the Division made no attempt to engage a private therapist to provide those services to A.A. while incarcerated.3 However, the court noted that as a whole, the Division made reasonable efforts to provide services, including arranging for visits with her children.

We shall not disturb that finding. We acknowledge that the Division "may not ignore requests or avoid providing services to an incarcerated parent." N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 558 (2014). But we have held that, "[e]ven if the Division had been deficient in the services offered," reversal may not be warranted under the circumstances, "because the best interests of the child controls." N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 621 (App. Div.), certif. denied, 192 N.J. 68 (2007).

A.A.'s own expert, Dr. Katz, opined that A.A. would need two years of successful psychotherapy before ascertaining whether she would be able to safely parent her children. The Division's expert, Dr. Miller, opined that psychotherapy would not remediate A.A.'s parental deficits.

The court found that delaying permanency for at least another two years would be contrary to the children's best interests. During that time, Alexandra would become more firmly attached to her foster parent. Furthermore, the Division had begun the process of finding a select home adoption and had already identified a possible match. We defer to the court's finding.

Also unavailing is A.A.'s argument that the Division did not satisfy its responsibility to explore placement of the children with relatives. The Division is obliged to "search for relatives who may be willing and able to provide the care and support required by child." N.J.S.A. 30:4C-12.1(a). However, there is no presumption in favor of placement with a relative. N.J. Div. of Youth & Family Servs. v. M.F., 357 N.J. Super. 515, 528-29 (App. Div. 2003). Furthermore, even when the Division fails to comply with its obligation to search for relatives, "[d]elay of permanency or reversal of termination . . . is warranted only when it is in the best interests of the child." N.J. Div. of Youth & Family Servs. v. K.L.W., 419 N.J. Super. 568, 581 (App. Div. 2011).

The judge found that the Division satisfactorily considered relative placements. For example, the Division explored placing both children with L.L., their maternal grandmother who resided in Florida. L.L. was disqualified, however, when Florida officials found her home inadequate. The Division also considered the children's maternal aunt, T.C., but she voluntarily refused the responsibility. In addition, the Division ruled out the father's current wife, C.V., because she had criminal convictions relating to the matter.

At the time of the trial, the Division was also considering another maternal aunt, M.A., for placement. A.A. contends the Division should have explored placement with M.A. sooner because the Division was aware of M.A.'s existence since 2014. However, according to the Division's caseworker, M.A. initially had only expressed an interest in assisting L.L. The Division did not act unreasonably in exploring the relatives who had expressed a willingness to care for the children.

In sum, we discern no error in the court's finding that the Division satisfied prong three, as well as the remaining elements of the best interests test.

Affirm.

1 J.R., the father of both girls, voluntarily surrendered his parental rights to both children during the proceedings below.

2 J.R. pleaded guilty to second-degree endangering the welfare of a child and received a three-year prison sentence.

3 A.A. did not present evidence, nor did the court find, that the jail would have permitted the regular entry of an outside therapist to treat A.A.