DIVISION OF CHILD PROTECTION AND PERMANENCY v. S.R.

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NOT FOR PUBLICATION WITHOUT THE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-0

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

S.R.,

Defendant-Appellant.

______________________________

IN THE MATTER OF THE

GUARDIANSHIP OF SO.R., Minor.

______________________________

January 27, 2017

Submitted January 9, 2017 Decided

Before Judges Haas and Currier.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FG-01-53-15.

Joseph E. Krakora, Public Defender, attorney for appellant (Ruth Harrigan, Designated Counsel, on the briefs).

Christopher S. Porrino, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Erin O'Leary, Assistant Attorney General, on the brief).

Joseph Krakora, Public Defender, Law Guardian, attorney for minor (Nancy P. Fratz, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant S.R. appeals from the guardianship judgment and order terminating her parental rights to her daughter So.R. (Sally).1 After reviewing the record in light of the contentions advanced on appeal and the applicable legal principles, we affirm.

We derive the following facts from the record developed during the guardianship hearing that took place over several days in February and March 2016.

In May 2013, the New Jersey Division of Child Protection and Permanency (Division) received a referral from AtlantiCare Regional Medical Center for a newborn infant, Sally. The hospital was concerned about defendant, the child's mother, because of her history of mental health and domestic violence as well as a lack of stable housing. The treating physician at the time noted defendant had made several statements that did "not make sense" and she had "given conflicting stories" to them.

During the investigation, defendant advised that she was diagnosed with mental health disorders at the age of five and had been the victim of sexual and physical abuse. Once she turned eighteen years old, defendant told investigators she stopped taking medication for her mental impairments because she did not like the way they made her feel. Defendant further stated that she did not suffer from any mental illness, but rather had post-traumatic stress disorder (PTSD) from her childhood and teenage experiences, and therefore, she refused to take any medication that psychiatrists had recommended to her.

After completing its initial investigation, the Division determined that defendant's home was safe for Sally to reside in; defendant also agreed to undergo a psychiatric evaluation and begin services.

In August 2013, the Division received another referral when defendant appeared at a medical center complaining of personal medical issues and demonstrating a "bizarre" manner. Sally was wearing a diaper without any other clothes; when asked why Sally was not wearing clothing, defendant explained that she was "too weak to care for the baby."

The Division enacted a safety plan in which defendant's contact with Sally would need to be supervised at all times by an approved supervisor, Andy, defendant's then paramour. When Andy left the baby alone with defendant, a second supervisor, Terry, was approved to monitor defendant.

Because of ongoing concerns of incidents of domestic violence between defendant and Andy, as well as defendant's continuing physical and mental health problems, her non-compliance with the safety plan, and lack of family support, the Division executed an emergency Dodd2 removal on September 18, 2013. Sally was placed with Terry where she remained at the time of trial. Terry wishes to adopt the child.

Defendant has been evaluated by psychologists and psychiatrists and treated by numerous therapists. Several of those experts were asked to provide the court with the results of their respective evaluations. Alexander Iofin, M.D., conducted a psychiatric assessment of defendant in July 2015, after reviewing extensive treatment and assessment records of psychologists and psychiatrists. Dr. Iofin noted that defendant's history of multiple in-patient psychiatric admissions reflected a "significant and severe chronic psychiatric pathology." His diagnoses included bipolar disorder, schizophrenia, and PTSD, and he described defendant as having an abnormal mental status upon meeting her. The expert explained defendant's psychiatric disability as an "impairment in all levels of functioning including parenting functioning as well." He stated: "It's her illness that makes her not capable, not suitable to take care for many years for the child because of her mental problems."

Dr. Iofin concluded that defendant would continue to decompensate mentally as time progressed. Even if she were to follow a medication schedule, which he found extremely unlikely based on her past behavior, she might have improvement in her functioning but would still have periods of deterioration. The expert reiterated the findings of many other experts, however, he noted that defendant was adamant she did not have any psychiatric problems nor was in need of medication.

Jennifer Perry, a clinical psychologist, conducted an evaluation of defendant as well as bonding evaluations between Sally and defendant, and Terry and the child. In reviewing defendant's extensive medical history, Dr. Perry concluded that defendant had "a life long history of chronic and persistent serious mental illness that has not been amenable to treatment." The expert noted the consistency in evaluations and medical reports through the years of recurring notations of "emotional instability, outbursts of anger, bizarre behavior and thoughts, poor judgment and decision making," difficulty with relationships, poor parenting skills, lack of social support, and "a denial of the fact that she has these serious problems." Although the recommended course of treatment for a bipolar disorder is a combination of psychotropic medication and psychotherapeutic intervention, defendant advised Dr. Perry she would not be willing to take any medication because she believed she had been stable since she stopped taking the prescriptions, and she does not feel that she requires it. Defendant expressed no understanding as to why her child was not living with her or why she would be in need of additional treatment.

When questioned as to whether defendant could be an adequate caregiver for her child, Dr. Perry responded

I think given that she's had mental health treatment since she was five years old and the Division has provided services for the past three . . . years and those have not adequately addressed the symptoms and the concerns that have been raised. So it's extremely unlikely that additional treatment would effect any further significant change, especially given [defendant's] unwillingness to admit that there's an underlying issue. And given the deficits in parenting skills as well as the lack of attachment between her and [Sally] I can't foresee in the future that she would be an appropriate care taker for her.

After observing Sally with defendant, Dr. Perry opined that there was very little attachment between them. She explained: "[Sally] made no acknowledgment that she even knew [defendant]. And there were no changes in that as the session progressed." She also noted defendant did not bring any toys, presents, food or diapers to the session.

Dr. Perry next described her observations of Sally and Terry together. "[Sally] was almost a completely different child with the resource parent. She was animated. She laughed throughout. She was singing. She was verbal." Dr. Perry opined there was a secure attachment between Sally and Terry and to lose the resource parent would be a traumatic experience for the child. To the contrary, the psychologist did not believe there would be any impact on Sally if the relationship with her mother were to be severed.

Defendant presented the testimony of Jesse Whitehead, Jr., a clinical psychologist, at trial. He discussed the various diagnoses other medical professionals had made, but advised that his testing led him to a different conclusion. Dr. Whitehead determined defendant was suffering from PTSD stemming from her abusive childhood. He recommended in-patient treatment where she could be stabilized on medication anti-depressants and an anti-psychotic prescription. Dr. Whitehead opined that once defendant was stabilized medically, a better assessment could be made of her parenting potential. The expert conceded that at the time of his evaluations continuing up to the trial, defendant was incapable of independent unsupervised parenting of her child. He also testified that defendant would have to be fully committed to both therapy and a medication regimen, but conceded it was unlikely, as defendant had informed him that she did not need medication and believed she functioned well without it.

Finally, Jennifer Bayne, a licensed social worker, testified that she had been providing therapeutic services to defendant since May 2015. Bayne described defendant as having trauma-related symptoms. She did not believe these symptoms would affect defendant's ability to parent. She also testified that defendant had informed her she was not willing to take medication.

On March 29, 2016, Judge Jeffrey J. Waldman issued a comprehensive written decision in which he reviewed the evidence and applicable law. Judge Waldman terminated defendant's parental rights, finding that the Division had satisfied each of the prongs set forth in N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. A judgment of guardianship was entered the same date.

This appeal followed.3

N.J.S.A. 30:4C-15.1(a) authorizes the Division to petition for the termination of parental rights in the "best interests of the child" if the following standards are met

(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.

"Our review of a trial judge's decision to terminate parental rights is limited." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters," we accord even greater deference to the judge's fact finding. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (alteration in original) (quoting Cesare, supra, 154 N.J. at 413). Unless the trial judge's factual findings are "so wide of the mark that a mistake must have been made," they should not be disturbed, even if the reviewing court would not have made the same decision. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (quoting C.B. Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989)).

Defendant contends that the Division did not meet its burden to prove any of the prongs of the statute by credible evidence. After reviewing defendant's arguments in light of the record and applicable legal principles, we conclude that none of them have merit, and her challenge to the sufficiency of proofs to support any of the four prongs lacks sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(1)(E).

We conclude that Judge Waldman supported his finding that the Division proved all of the prongs by substantial credible evidence. The judge conducted a well-reasoned assessment of the evidence and thoroughly considered each prong of the statute. We affirm substantially for the thoughtful reasons set forth in his written decision.

1 We use pseudonyms and initials to refer to the individuals in this case for the purposes of confidentiality and clarity.

2 A "Dodd removal" refers to the emergency removal of a child from the parent or guardian, without a court order, pursuant to N.J.S.A. 9:6-8.29.

3 The Law Guardian for the minor joins the Division in opposing the appeal.