DIVISION OF CHILD PROTECTION AND PERMANENCY v. J.W.

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                        NOT FOR PUBLICATION WITHOUT THE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-4378-16T1

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

        Plaintiff-Respondent,

v.

J.W.,

        Defendant-Appellant,

and

K.E.S.,

     Defendant.
___________________________________

IN THE MATTER OF THE GUARDIANSHIP
OF Z.U.S. and K.C.S., minors.
___________________________________

              Submitted April 23, 2018 – Decided June 1, 2018

              Before Judges Sabatino and Ostrer.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Essex County,
              Docket No. FG-07-0249-16.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Kisha M. Hebbon, Designated
              Counsel, on the brief).
            Gurbir S. Grewal, Attorney General, attorney
            for respondent (Jason W. Rockwell, Assistant
            Attorney   General,  of   counsel;  Danielle
            DiSanto, Deputy Attorney General, on the
            brief).

            Joseph E. Krakora, Public Defender, Law
            Guardian, attorney for minors (Melissa R.
            Vance, Assistant Deputy Public Defender, on
            the brief).

PER CURIAM

     Defendant    J.W.     appeals    from    a    May   31,      2017    judgment

terminating her parental rights to her daughters, Z.U.S. and

K.C.S.,   born,   respectively,       in   2015    and   2016.1      With     brief

exceptions in Z.U.S.'s case, the girls have lived their entire

lives with their maternal aunt, who wants to adopt them. Defendant

contends the Division of Child Protection and Permanency failed

to establish any of the four prongs of the best interests test.

See 
N.J.S.A. 30:4C-15.1(a).          The Law Guardian joins the Division

in supporting the judgment.       We affirm.

     At the guardianship trial, the Division relied on a voluminous

documentary record, testimony of the adoption caseworker, and

expert    testimony   of   psychiatrist      Samiris      Sostre,        M.D.,   and

psychologist, Sean P. Hiscox, Ph.D.                The court found all the

Division's witnesses to be credible.              Defendant testified on her


1
  The children's father, K.E.S., does not appeal from the
termination of his rights. Therefore, we use "defendant" to refer
only to J.W.

                                       2                                    A-4378-16T1
own behalf.    Although the court did not find that defendant

intended to mislead, the court was unable to credit defendant's

testimony largely because of her poor insight and her misperception

of past events.

     The trial court reviewed the evidence at length in its

opinion. Suffice it to say here that defendant's persistent mental

illness is at the heart of this case.   Defendant is diagnosed with

paranoid schizophrenia.    She has been hospitalized on multiple

occasions in the past, resided in a group home for psychiatric

patients for a period of time, and had been living in a homeless

shelter for a year at the time of trial.      Defendant denied her

mental illness and stated she cooperated with treatment – which

she did inconsistently – only in order to attempt to regain custody

of her daughters.

     Despite five months of medication compliance, she was unable

to work, or maintain suitable housing.    According to Dr. Sostre,

defendant continued to experience symptoms, including auditory

hallucinations.   Dr. Sostre opined that defendant's prognosis was

poor.   Because of the severity of her symptoms, defendant would

be unable to be in tune with her children emotionally, to meet

their needs, and to interact with others, such as nurses, teachers

and caretakers.



                                 3                          A-4378-16T1
       Dr. Hiscox testified that defendant's denial of her mental

illness was a significant impediment to her ability to function

as a parent in the future.              He opined that she was "unable or

unwilling to provide a stable and safe living situation and

lifestyle for her daughters."                Indeed, she was barely able to

manage herself and the current demands on her.

       In bonding evaluations, defendant related appropriately with

her daughters, who viewed her as one would an extended family

member and not a primary attachment figure.                        By contrast, the

children were firmly bonded to their maternal aunt, whom they

viewed    as   their    psychological            parent    and   central    attachment

figure.

       Dr. Hiscox opined that termination of parental rights would

not cause more harm than good, and the aunt would be able to

mitigate any harm.           On the other hand, if the girls were removed

from   their    aunt,    they     would      suffer       significant   harm,      which

defendant      would    be    unable    to       mitigate.       Notably,    the    aunt

reportedly professed an interest in allowing the girls to maintain

a relationship with defendant.

       After    reviewing      the     evidence       and    the   well-established

principles of law governing termination of parental rights, Judge

Linda L. Cavanaugh concluded that the Division satisfied by clear

and convincing evidence all four prongs of the best interest test:

                                             4                                  A-4378-16T1
          (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 [or her] 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).]

     Defendant challenges each of these findings.   Yet, our scope

of review of the trial court's judgment 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 her familiarity

with the case, her opportunity to make credibility judgments based

on live testimony, and her expertise in family matters.      Cesare

v. Cesare, 
154 N.J. 394, 412-13 (1998).   Although we are not bound

by the trial court's legal conclusions, N.J. Div. of Youth and

Family Servs. v. I.S., 
202 N.J. 145, 183 (2010), we will affirm

the Family Part's decision to terminate parental rights when

                                5                           A-4378-16T1
substantial, credible evidence in the record supports the court's

findings, N.J. Div. of Youth and Family Servs. v. E.P., 
196 N.J.
 88, 104 (2008).    Applying that deferential standard of review, we

affirm substantially for the reasons set forth in Judge Cavanaugh's

cogent and comprehensive written opinion.

     We add the following additional comments.   Defendant contends

the trial court erred because the Division presented no evidence

of actual harm.    She contends the court terminated her parental

rights simply because she suffers from a mental illness.           We

disagree.

     "Mental illness, alone, does not disqualify a parent from

raising a child.   But it is a different matter if a parent refuses

to treat his [or her] mental illness" and "the mental illness

poses a real threat to [the] child . . . ."      N.J. Div. of Youth

and Family Servs. v. F.M., 
211 N.J. 420, 450-51 (2012). A mentally

ill parent "may be morally blameless," but that "is not sufficient

to tip the scales in [his or her] favor" if the illness impairs

the ability to parent.    N.J. Div. of Youth and Family Servs. v.

A.G., 
344 N.J. Super. 418, 438 (App. Div. 2001).

     Regarding prongs one and two, it is well-settled that the

Division is not required to demonstrate actual harm to satisfy the

best interest test.      Id. at 440.   The trial court recognized

defendant's genuine love and attachment to her daughters.       Yet,

                                  6                         A-4378-16T1
defendant's mental illness, especially the near certainty that it

will be untreated in the future, poses a risk of "[s]erious and

lasting emotional or psychological harm," which satisfies prong

one.   See In re Guardianship of K.L.F., 
129 N.J. 32, 44 (1992).

       Given defendant's denial of her mental illness, she also is

"unable or unwilling to prevent harm" to her daughters, which

satisfies prong two.      N.J. Div. of Youth and Family Servs. v.

M.M., 
189 N.J. 261, 289 (2007).    The record evidence supported the

trial court's finding that "separating the child[ren] from [their]

resource    family   parent[]   would   cause   serious   and   enduring

emotional or psychological harm to the child[ren]."             
N.J.S.A.

30:4C-15.1(a)(2).

       Further, defendant had no realistic plan or ability to care

for the children on her own.       Defendant's plan for raising the

children involved moving in with her sister, who was already

serving as the girls' psychological parent.

       As for prong three, defendant does not dispute that the

Division offered her an array of services, including parenting

classes and mental health treatment.       She principally faults the

Division and the court for failing to allow her to exercise

unsupervised visitation, which she contends would have enabled her

to demonstrate her ability to parent her daughters.        However, the

Division is only required to provide reasonable services.             The

                                   7                             A-4378-16T1
Division's efforts are "assessed against the standard of adequacy

in light of all the circumstances of a given case."          In re

Guardianship of D.M.H., 
161 N.J. 365, 393 (1999).        Given her

circumstances, it was not unreasonable for the Division and court

to deny defendant's request for unsupervised visitation.

     Finally, the expert testimony provided sufficient credible

evidence to support the court's prong four finding that termination

would not cause more harm than good.   Defendant contends that the

parental relationship could have been preserved without harm to

the children "because the children were already being cared for

by their maternal aunt, [defendant] had liberal visitation with

the children at their aunt's home, and [defendant] stated that she

would allow the children to continue to reside with their aunt if

her parental rights were not terminated."     However, there was no

evidence that the aunt, who specifically rejected kinship legal

guardianship, would have been willing to play such a supportive

role indefinitely; nor was there any assurance that defendant

would be permitted to reside at her sister's home at all.          "A

child's need for permanency is an important consideration under

the fourth prong."   M.M., 
189 N.J. at 281.    We shall not disturb

the trial court's determination that such permanency would be

achieved by terminating defendant's parental rights.



                                 8                          A-4378-16T1
Affirmed.




            9   A-4378-16T1