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

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NOT FOR PUBLICATION WITHOUT THE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.

B.S.,

Defendant-Appellant.

____________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF R.S., a Minor.

____________________________________

January 27, 2017

Submitted January 23, 2017 Decided

Before Judges Sabatino and Haas.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FG-12-80-15.

Joseph E. Krakora, Public Defender, attorney for appellant (Robert W. Ratish, Designated Counsel, on the briefs).

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

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

PER CURIAM

After a guardianship trial that the defendant mother, B.S., failed to attend, the Family Part terminated her parental rights to her son, R.S. She now appeals the May 10, 2016 final judgment. The child's identified biological father had previously surrendered his own parental rights and did not participate in the trial.

Defendant has undisputed mental health issues, including a diagnosis of bipolar disorder. She gave birth to R.S. in February 2013 at the age of eighteen, at a time when she was not taking medication due to her pregnancy. A month after R.S. was born, defendant had a violent argument with her own mother, the child's maternal grandmother. The child was present during the incident. The police were called, and defendant was charged with assault and other offenses. Defendant stipulated to an established finding of abuse or neglect for this incident.

Defendant was admitted to a hospital with suicidal thoughts. The Division of Child Protection and Permanency ("DCPP") interceded, and the child was temporarily placed with a maternal great aunt.

When the child was about three months old, he developed a respiratory infection and was taken to the hospital. The great aunt did not tell the Division about this, and the Division learned of it instead through a hospital social worker. The great aunt also left R.S. unsupervised at the hospital, in violation of a court order.

After defendant was released from the hospital, she was initially allowed supervised visits with her son and regained custody about five months later. She was offered services by the Division, took advantage of them for a while, but generally did not complete them, except for appearing at visitations with her son when she did not have custody.

Defendant was arrested for a second domestic violence incident in February 2014, striking her mother while the mother was holding R.S. Again, defendant stipulated to a finding of abuse or neglect.

These events prompted the Division to remove the child a second time and place him in a foster home. Eventually, the original foster mother's daughter and husband took over as caregivers. According to the unrebutted testimony of the Division's psychological expert, Dr. Barry Katz, the child has been bonding well with his foster family. Defendant repeatedly failed to appear for several scheduled bonding evaluation sessions, and left one attempted session prematurely claiming she needed to go pay a parking ticket.

Since the time of the child's second removal, defendant has continued to struggle with mental health issues. Despite the Division often arranging rides, she has repeatedly failed to attend many of the programs, counseling, evaluations, and meetings offered by the Division. She blames transportation and lack-of-insurance problems for her inability to attend and compete services. She remains unemployed and without stable housing.

The Division ruled out the great aunt as an alternative placement because of the hospital incident, as well as a past domestic violence episode in which she was apparently a victim. There are no other relatives who the Division has approved as possible caretakers.

The Division's three witnesses at trial were Dr. Katz, a Division adoption worker, and another Division employee. Defendant presented no witnesses of her own.

In a detailed opinion on May 10, 2016, the trial judge, Hon. Lorraine Pullen, found that the Division had proven all four prongs required for termination under N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence.

On appeal, defendant claims that the Division's proofs were inadequate under all four prongs of the statute. Her central theme is that she has been unable to channel her behavior because of her untreated, or inadequately treated, bipolar disorder, and that the Division has unreasonably failed to offer her the proper services to address her condition. The Law Guardian supports termination and joins with the Division in urging affirmance.

Our scope of review of a guardianship judgment is limited. See N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014) (citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). The reviewing court should not disturb the factual findings of the trial court if they are supported by "adequate, substantial and credible evidence[.]" N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). We remain mindful, however, that this traditional scope of review is broadened "where the focus of the dispute is . . . alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom[.]" R.G., supra, 217 N.J. at 552 (quoting J.T., supra, 269 N.J. Super. at 188-89). In such instances, a trial court's interpretations of the law and subsequent legal consequences of the facts are afforded no special deference. See R.G., supra, 217 N.J. at 552.

Applying this scope of review and the applicable legal principles to the trial record, we affirm the final judgment, substantially for the sound reasons expressed in Judge Pullen's detailed opinion. The Division amply demonstrated all four prongs necessary under the statute to terminate defendant's parental rights.

With respect to the first and second prongs, the record easily shows that defendant, by her behavior, has exposed R.S. to substantial risks of harm, and that she has been unable or unwilling to eliminate those risks. N.J. Dept. of Children & Families v. A.L., 213 N.J. 1, 25 (2013). Among other things, defendant has persisting mental health and behavioral issues, has engaged in two stipulated acts of domestic violence that endangered the child, has on numerous times been arrested for criminal conduct, and has been unable to maintain stable housing or employment.

With respect to the third prong, the trial court reasonably concluded that the Division repeatedly offered defendant appropriate mental health and other services that she failed to complete, M.M., supra, 189 N.J. at 281. The services included psychological, anger management, parenting, housing, and financial assistance.

As the trial judge noted, defendant's mental health issues failed to improve largely because she did not make appointments or even remain at a fixed location long enough for the Division to drive her to treatment. Defendant refused to engage in attempted bonding evaluations, and would fall out of contact due to her own instability or incarceration. We are unpersuaded by her claim on appeal that the Division did not offer the proper services or should have done more to help her.

We are likewise unpersuaded that the Division fell short of its obligations under prong three to investigate other relatives as alternative caregivers. N.J. Div. of Youth & Family Servs. v. J.S., 433 N.J. Super. 69, 81-82 (App. Div. 2013), certif. denied, 217 N.J. 587 (2014). The great aunt was appropriately ruled out due to the hospital incident and other negative information, and there were no other Division-approved relative caregivers despite reasonable efforts.

Lastly, we uphold the trial judge's findings that the termination would not inflict more harm than good upon the child. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 609 (2007). The evidence is unrefuted that the foster family has bonded with R.S. and cared for him capably. The absence of a comparative bonding evaluation of defendant, which normally would be desired, is due to her own failures to cooperate with several attempts to complete one. Her recalcitrance and unreliability should not permit further delay in achieving permanency for the child. N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 116 (App. Div.) (emphasizing permanency as "central factor" in guardianship cases), certif. denied, 180 N.J. 456 (2004). See also In re Guardianship of K.H.O., 161 N.J. 337, 358-59 (1999).

All other points raised on appeal by defendant lack sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).

Affirmed.