DIVISION OF CHILD PROTECTION AND PERMANENCY v. E.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                        NOT FOR PUBLICATION WITHOUT THE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-0619-17T3


NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

        Plaintiff-Respondent,

v.

E.S.,

     Defendant-Appellant.
__________________________________

IN THE MATTER OF THE GUARDIANSHIP
OF M.C.,

     a Minor.
__________________________________

              Submitted May 7, 2018 – Decided June 7, 2018

              Before Judges Accurso, O'Connor and Vernoia.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Monmouth
              County, Docket No. FG-13-0086-16.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Steven Edward Miklosey,
              Designated Counsel, on the brief).

              Gurbir S. Grewal, Attorney General, attorney
              for respondent (Melissa H. Raksa, Assistant
              Attorney General, of counsel; Joshua Bohn,
              Deputy Attorney General, on the brief).
           Joseph E. Krakora, Public Defender, Law
           Guardian, attorney for minor (M. Alexis
           Pollack, Deputy Public Defender, on the
           brief).

PER CURIAM

       Defendant E.S. appeals from a final judgment terminating

her parental rights to her second child, Meg,1 now three years

old.   She contends the Division of Child Protection and

Permanency failed to prove prongs three and four of the best

interests standard of N.J.S.A. 30:4C-15.1(a)(3)-(4) by clear and

convincing evidence.    The Law Guardian joins the Division in

urging we affirm the judgment.    Having considered defendant's

arguments in light of the record and controlling law, we affirm

the termination of her parental rights.

       The essential facts of this case are as follows.    E.S.,

thirty-six years old, suffers from schizoaffective disorder,

bipolar type, continuous.    The Division received a report that

when E.S. was seven months pregnant with Meg, she was smoking

marijuana and drinking beer.     The reporter knew of E.S.'s

diagnosis and her participation in a mental health program, but

relayed E.S. "sometimes . . . does not let people in the home

when she is supposed to and sometimes she does not take her


1
   This name is fictitious to protect the child's identity. E.S.
surrendered her parental rights to her son born in 2000, and he
was adopted by relatives.

                                  2                            A-0619-17T3
medication."   The referent reported E.S. ate spoiled or rotten

food that had been out all week and when the baby kicked,

explained she used corporal punishment by poking her own

stomach.

     Division workers visited E.S. with a representative of

Resources for Human Development Coastal Wellness (RHD), the

provider supporting E.S. in the community.    RHD reported E.S.

"work[ed] with a team of staff including a Wellness Coach, Life

Skills Specialist, Medical Case Manager, Recovery Support

Practitioner and a MICA [mentally ill chemically addicted]

specialist."   The agency further noted that although E.S. lived

independently, she required support from its staff five to seven

days a week "to maintain in the community."

     E.S. refused to meet with the workers without police being

present, explaining she "was taken away [by] these people, my

father committed suicide[,] and they ruined my life."2   After

police arrived, E.S. continued to refuse to speak with the

Division caseworker, but was amenable to speaking with the

representative of RHD.   E.S. refused Division services during

her pregnancy and the Division had no further contact with her


2
   Although we are unaware of the details, the record makes clear
E.S. was raised by persons other than her parents after her
mother's parental rights were terminated on application of the
Division.

                                3                           A-0619-17T3
until Meg was born in April 2015, when the hospital called the

Division to report its concerns.

    The hospital reported that ten days before Meg was born,

E.S. had been admitted to its crisis unit with "severe and

chronic schizophrenia," and suffering from delusions.      E.S.

tested positive for marijuana at Meg's birth and the hospital

was supervising her contact with the baby out of concern for the

infant.

    The Division effected an emergency removal two days after

the baby was born.   It explored placing Meg with E.S.'s mother,

but ruled her out because of her record with the Division,

stemming from her own history of schizophrenia.   Instead, the

baby was placed with a non-relative resource family.    E.S. was

again hospitalized in a crisis unit in May, a few weeks after

Meg's birth.   Judge Flynn thereafter ordered supervised

visitation once a week for one hour but would not permit E.S. to

hold the baby until she submitted to a psychological evaluation.

E.S. arrived for her first visit with Meg with a hula hoop and

bubbles.

    When E.S. appeared at Division offices for an initial

substance abuse evaluation in June, six weeks after the baby was

born, she volunteered that both she and her mother suffered from

schizophrenia, and that the CIA had implanted devices in both

                                4                            A-0619-17T3
their heads at birth.   Dr. Brandwein, the Division's

psychological expert, interviewed E.S. in July, although he had

not been provided with her mental health records, as E.S. had

yet to sign a release of those records to the Division.       Based

on his clinical interview, Dr. Brandwein advised the Division

that E.S. could be permitted to hold Meg for ten minutes during

her visits.

    In August, E.S. was again hospitalized.     She reported

delusions and required restraints.    In September, the Division

received E.S.'s treatment records from Ancora, which revealed

her eleven hospitalizations between 2009 and 2013, including one

for fifteen months in 2012-2013.     After reviewing those records

and those of E.S.'s hospitalization the prior month, Dr.

Brandwein advised that E.S.'s visitation be suspended until she

complied with all court-ordered evaluations and recommendations,

random urine screens and all RHD recommendations and services,

including a five-day-a-week partial care program and enrollment

in a parenting education program.

    When the matter returned to court later that month, E.S.

was in jail on charges of reckless driving and destruction of

property, but was transported to the hearing.     The court

suspended visitation based on Dr. Brandwein's recommendation and

ordered E.S. to submit to psychiatric and substance abuse

                                5                             A-0619-17T3
evaluations and comply with RHD's recommendations for services.

E.S. attended five of six scheduled visits in all, missing one

only when she was hospitalized.

    E.S.'s psychiatric evaluation, which had to be rescheduled

five times, was begun, but never completed after a fire alarm

interrupted the clinical interview.    She never appeared to

complete the evaluation.   When E.S. finally submitted to a

substance evaluation in January 2016, she tested positive for

both cocaine and marijuana, resulting in a referral to attend a

partial care program at CPC Behavioral Health.    Despite the

urging of both the Division and RHD, E.S. never attended.

    E.S. was admitted to Trenton Psychiatric Hospital in March

and was discharged days later.    The Division lost track of her

two months after that when she stopped responding to any of its

communications.   The Division later learned E.S. was admitted to

Trenton Psychiatric in October 2016, where she remained through

the guardianship trial in September 2017.

    Dr. Brandwein testified at trial that E.S.'s

"schizoaffective disorder is a lifelong condition.    It does not

get cured and cannot be cured, it doesn't go away.    It has to be

managed.   And even with it being properly managed there are

going to be psychiatric hospitalizations."    He explained that

schizoaffective disorder falls across a spectrum of which E.S.

                                  6                         A-0619-17T3
"is at the severe end."   Dr. Brandwein testified he only had

records from 2009, although E.S. told him her first

hospitalization was almost ten years before that, when she was

seventeen.   From the records available to him, Dr. Brandwein

counted eleven hospitalizations over the prior nine years,

"[a]nd we're not talking about in and out of the hospital, 3 or

5 days, get your medication and go.   We're talking about months-

long hospitalizations."

    Regarding his evaluation, Dr. Brandwein testified he

believed he "was seeing [E.S.'s] baseline, that is her best."

He explained she was not in the hospital and able to participate

in the evaluation, but at "that baseline, there was still active

psychosis, voices, believing there was a cochlear implant in her

body, believing there was bio-micro technology in her body."     He

described events observed during E.S.'s visits with Meg, asking

her to be quiet as E.S. read to her from the Bible, as

suggesting E.S. "[was] responding to internal stimuli associated

with her psychotic disorder, raising grave concern about her

ability to care for a child."

    Dr. Brandwein testified that he was not aware of E.S.

having lived in the community without extensive mental health

supportive services in place, including her own mental health

case manager.   He was of the opinion that E.S. could not live

                                7                          A-0619-17T3
independently in the community without that support.      When asked

whether E.S. could live independently with Meg, Dr. Brandwein

responded, "[u]nequivocally no."      He testified there were no

services the Division could have offered to assist E.S. "in

becoming capable of independently parenting."      He explained that

E.S. "is going to struggle to care for herself in the community.

That, even with medication, will never change."       He noted that

before E.S. was admitted to Trenton Psychiatric, she "was found

. . . in her own bed, using her bed as a toilet.      This is a

grave risk factor to [E.S.], never mind to any child that would

be in her care."   Dr. Brandwein concluded he "would not, [he]

strongly would not recommend placing the child in [E.S.'s] care.

Any child, this child.   No children."

    Dr. Brandwein also testified to the strong bond Meg had

developed to the foster parents who had cared for her since she

was two weeks old, noting "[f]or all intents and purposes they

are her psychological parents."       He testified they were meeting

all of her needs, and she was thriving in their care.       Removing

her from them, he opined, would be "highly detrimental" to her

psychological functioning.   Dr. Brandwein testified he did not

conduct a bonding evaluation between E.S. and Meg because

"[b]ased upon the fact that there's been no contact for almost

[two] years" and Meg "doesn't know who she is," there would be

                                  8                           A-0619-17T3
"an infinitesimal chance" of a bond between the two of them.

E.S. did not testify or offer any witnesses.

    Judge Bernstein accepted Dr. Brandwein's testimony, which

he found credible and clear.   The judge found in this "rather

sad case" that because of E.S.'s "long, long history of severe

mental illness," including "psychosis and the delusions,

hallucinations, [and] voices," that she has never been able to

care for Meg.   Specifically, the judge concluded E.S. "is

basically incapable of caring for herself, let alone a small

baby with the needs of a small child."

    As to the third prong of the best interests test, the judge

stated he, "unfortunately" did not think "there is such a thing

as any reasonable efforts that would lead to . . .

reunification" in this case.   The judge found the Division

assessed relatives and "attempted to get [E.S.] into drug

treatment.   She has continued to have mental health management

throughout the case and there really wasn't a lot the Division

could do, nor did the evaluation indicate that there was any

particular treatment that the Division could recommend that

would lead to any type of a reunification."

    The judge noted "the Division followed up with the mental

health management and psychiatrist, got records, and kept up

with the status of her treatment.   But there really wasn't

                                9                            A-0619-17T3
anything special the Division could do separately other than the

treatment that she was already undergoing at the time."    Judge

Bernstein found "under the circumstances, . . . the Division has

made more than reasonable efforts with regard to this particular

case when, in fact, there really isn't any reasonable efforts."

He concluded "[t]here really wasn't anything the Division could

do in this particular case that would change the situation."

    Noting Meg has not seen her mother in over two years,

"[a]nd really, the mother at this point is a stranger to the

child," the judge found a bonding evaluation between the two

"doesn't really make any sense."    Acknowledging the testimony

that Meg is bonded to her foster parents, who wish to adopt her,

and is apparently thriving under their care, the judge found Dr.

Brandwein's opinion that termination would not do more harm than

good, "clearly logical, expected under the circumstances since

this is the only home that this child knows."   Having reviewed

the evidence and heard the testimony of the caseworker and Dr.

Brandwein, Judge Bernstein was satisfied the Division carried

its burden on all four prongs by clear and convincing evidence.

    E.S. appeals, arguing "the Division relied on Dr.

Brandwein's psychological evaluation to provide [her] with

nothing."   "Armed with Dr. Brandwein's opinion that [her] cause

for reunification was essentially hopeless, the Division

                               10                          A-0619-17T3
willfully decided to leave everything to [RHD], spare for

psychiatric evaluations and substance abuse evaluations."        She

contends "[t]he Division failed to satisfy the third prong by

refusing to make a serious effort to locate and provide services

to assist [her] in independently parenting her daughter."        She

argues the Division failed to prove termination would not do

more harm than good because it prevented her "from enjoying

sustained therapeutic visitation with her daughter, and

thereafter used the lack of a bond to deny her a bonding

evaluation."   We reject those arguments because they ignore the

evidence in the record regarding the risk E.S. posed to Meg.

    The third prong of the best interests standard requires the

Division to make "reasonable efforts to provide services to help

the parent correct the circumstances" that necessitated removal

and placement of the child in foster care.     
N.J.S.A. 30:4C-

15.1(a)(3).    "Reasonable efforts" consist of services "to assist

the parents in remedying the circumstances and conditions that

led to the placement of the child and in reinforcing the family

structure . . . ."   
N.J.S.A. 30:4C-15.1(c).   The reasonableness

of the efforts, of course, depends on the facts and

circumstances of each case.    In re Guardianship of D.M.H., 
161 N.J. 365, 393 (1999).



                                11                          A-0619-17T3
    Provision of services under the third prong "contemplates

efforts that focus on reunification," In re Guardianship of

K.H.O., 
161 N.J. 337, 354 (1999), and "may include consultation

with the parent, developing a plan for reunification, providing

services essential to the realization of the reunification plan,

informing the family of the child's progress, and facilitating

visitation," N.J. Div. of Youth & Family Servs. v. M.M., 
189 N.J. 261, 281 (2007).   The services provided to meet the child's

need for permanency and the parent's right to reunification must

be "'coordinated'" and must have a "'realistic potential'" to

succeed.   N.J. Div. of Youth & Family Servs. v. J.Y., 
352 N.J.

Super. 245, 267 n.10 (App. Div. 2002) (quoting N.J.A.C. 10:133-

1.3).

    The reasonableness of the Division's efforts, however, "is

not measured by their success," D.M.H., 
161 N.J. at 393, and

"[t]he failure or lack of success of such efforts does not

foreclose a finding that the Division met its statutory burden

to try to reunify the children with the family."   N.J. Div. of

Youth & Family Servs. v. F.H., 
389 N.J. Super. 576, 620 (App.

Div. 2007).   Moreover, "[e]ven if the Division ha[s] been

deficient in the services offered to" a parent, reversal of the

guardianship judgment will not necessarily be "warranted,



                               12                            A-0619-17T3
because the best interests of the child controls" a court's

determination as to termination of parental rights.    Id. at 621.

    E.S.'s arguments ignore the evidence before the trial court

that she presented a severe and substantial risk of harm to Meg

by reason of her longstanding and intractable schizoaffective

disorder.    See N.J. Div. of Youth & Family Servs. v. A.G., 
344 N.J. Super. 418, 435 (App. Div. 2001).   In the Division's view,

that risk was so great it petitioned the court to prevent E.S.

from holding her daughter during their supervised one-hour

visits.   And although Dr. Brandwein initially advocated to

permit E.S. such contact, he changed his position upon being

provided with almost nine years of her most recent psychiatric

records and instead counselled that visitation be immediately

suspended.

    Dr. Brandwein explained exactly why he found E.S.'s

condition, a condition in which she responded to internal

stimuli, hearing voices and experiencing other delusions even

when maintained on psychotropic medications, posed such an

extreme risk to herself as well as any child in her care.     He

also detailed the extensive services RHD employed to maintain

E.S. in the community and her regularly recurrent

hospitalizations notwithstanding those services.    He described

her mental illness as "severe" and opined that there were no

                                13                          A-0619-17T3
services the Division could provide to make it possible for E.S.

to safely parent Meg.

    Judge Bernstein heard his testimony and accepted his

conclusions.    We generally "defer to the factual findings of the

trial court because it has the opportunity to make first-hand

credibility judgments about the witnesses who appear on the

stand; it has a 'feel of the case' that can never be realized by

a review of the cold record."    N.J. Div. of Youth & Family

Servs. v. E.P., 
196 N.J. 88, 104 (2008) (quoting N.J. Div. of

Youth & Family Servs. v. M.M., 
189 N.J. 261, 293 (2007)).       We do

so here.   There is nothing in the record to suggest that E.S.

could safely parent Meg now or in the foreseeable future.       E.S.

offers nothing to suggest the situation would change with

specific services.    She suffers from a mental disorder that

prevents her from being safely able to parent her daughter, and

there is no evidence to demonstrate that circumstance, which had

persisted for much if not all of E.S.'s adult life, was

amendable to change.    See In re Guardianship of R. G. and F.,


155 N.J. Super. 186, 194-95 (App. Div. 1977).

    Affirmed.




                                14                          A-0619-17T3