DIVISION OF CHILD PROTECTION AND PERMANENCY v. L.M.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                     NOT FOR PUBLICATION WITHOUT THE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-4515-16T4

NEW JERSEY DIVISION OF
CHILD PROTECTION AND
PERMANENCY,

           Plaintiff-Respondent,

     v.

L.M.S.,

           Defendant-Appellant,

     and

B.M.,

          Defendant.
___________________________________

IN THE MATTER OF THE GUARDIANSHIP
OF R.S.-M.,

          a Minor.
___________________________________

           Submitted May 8, 2018 – Decided May 12, 2018

           Before Judges Fisher and Fasciale.

           On appeal from Superior Court of New Jersey,
           Chancery Division, Family Part, Essex County,
           Docket No. FG-07-0156-17.
            Joseph E. Krakora, Public Defender, attorney
            for appellant (John A. Albright, Designated
            Counsel, on the brief).

            Gurbir S. Grewal, Attorney General, attorney
            for respondent (Jason W. Rockwell, Assistant
            Attorney General, of counsel; Diane L. Scott,
            Deputy Attorney General, on the brief).

            Joseph E. Krakora, Public Defender, Law
            Guardian, attorney for minor (Lisa M. Black,
            Designated Counsel, on the brief).

PER CURIAM

       Defendant L.M.S. (defendant) gave birth to a son, R.S.-M.

(Richard), on October 18, 2015. The attending physician made a

referral to the Division of Child Protection and Permanency (the

Division), which, on an emergent basis, removed Richard from

defendant's care and custody on October 23, 2015. After presiding

over a four-day trial in May and June 2017, Judge James R.

Paganelli terminated defendant's parental rights, and she now

appeals, arguing1:

            I. PRONG ONE WAS NOT SATISFIED BY CLEAR AND
            CONVINCING EVIDENCE AS THE COURT CONCEDED THAT
            [DEFENDANT]   NEVER   HARMED   [RICHARD]   BUT
            ERRONEOUSLY CONCLUDED THAT AN UNIDENTIFIED
            "NEUROCOGNITIVE CONDITION" PLACED THE CHILD IN
            DANGER WHEN ALL OF THE EXPERTS AGREED THAT
            [DEFENDANT] DOES NOT HAVE SCHIZOPHRENIA AND
            COULD PARENT WITH ASSISTANCE.




1
    We have renumbered defendant's arguments.

                                  2                          A-4515-16T4
          II. THE TRIAL COURT ERRED IN HOLDING THAT [THE
          DIVISION] PROVED THE SECOND PRONG OF THE "BEST
          INTERESTS" TERMINATION TEST BY CLEAR AND
          CONVINCING EVIDENCE.

          III. THE TRIAL COURT ERRED IN HOLDING THAT
          [THE DIVISION] PROVED THE THIRD PRONG OF THE
          "BEST INTERESTS" TERMINATION TEST AGAINST
          [DEFENDANT] BY CLEAR AND CONVINCING EVIDENCE
          BECAUSE THE DIVISION'S REMOVAL OF [RICHARD]
          BEFORE PROVIDING ANY SERVICES TO [DEFENDANT]
          AND THEN ITS FAILURE TO PROVIDE ANY SERVICES
          UNTIL [RICHARD] WAS OVER A YEAR OLD WERE
          STUNNINGLY UNREASONABLE.

          IV. THE TRIAL JUDGE ERRED IN HOLDING THAT [THE
          DIVISION] PROVED THE FOURTH PRONG OF THE "BEST
          INTERESTS" TERMINATION TEST, THAT TERMINATION
          WILL NOT DO MORE HARM THAN GOOD BY CLEAR AND
          CONVINCING EVIDENCE.

We find insufficient merit in defendant's arguments to warrant

discussion in a written opinion, R. 2:11-3(e)(1)(E), and affirm.

We add only the following few comments.

     Parents have a constitutionally-protected right to the care,

custody and control of their children. Santosky v. Kramer, 
455 U.S. 745, 753 (1982); In re Guardianship of K.H.O., 
161 N.J. 337,

346 (1999). "The rights to conceive and to raise one's children

have been deemed 'essential,' 'basic civil rights . . .,' [that

are] 'far more precious . . . than property rights.'" Stanley v.

Illinois, 
405 U.S. 645, 651 (1972) (citations omitted). "[T]he

preservation and strengthening of family life is a matter of public




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concern    as   being   in   the   interests    of   the   general   welfare."


N.J.S.A. 30:4C-1(a); see also K.H.O., 
161 N.J. at 347.

     The    constitutional     right    to     the   parental   relationship,

however, is not absolute. N.J. Div. of Youth & Family Servs. v.

R.G., 
217 N.J. 527, 553 (2014); N.J. Div. of Youth & Family Servs.

v. A.W., 
103 N.J. 591, 599 (1986). At times, a parent's interest

must yield to the State's obligation to protect children from

harm. N.J. Div. of Youth & Family Servs. v. G.M., 
198 N.J. 382,

397 (2009); In re Guardianship of J.C., 
129 N.J. 1, 10 (1992). To

effectuate these concerns, the Legislature created a test for

determining when a parent's rights must be terminated in a child's

best interests.     In order to obtain parental termination, 
N.J.S.A.

30:4C-15.1(a)     requires    that   the   Division    prove    by   clear   and

convincing evidence the following four prongs:

            (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
            . . .;

            (3) The [D]ivision 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                                A-4515-16T4
          (4) Termination of parental rights will not
          do more harm than good.

See also A.W., 
103 N.J. at 604-11.

     The questions posed by these four statutory prongs are fact-

sensitive and our ability to intercede is limited by the applicable

standard of review, which requires deference to family judges'

factual findings. Cesare v. Cesare, 
154 N.J. 394, 413 (1998).

Here, Judge Paganelli – as explained in his thorough seventy-five

page opinion – found the Division demonstrated, by clear and

convincing evidence, that all four prongs supported termination

of defendant's parental rights. These findings were supported by

evidence the judge was entitled to find credible and are deserving

of our deference. N.J. Div. of Youth & Family Servs. v. F.M., 
211 N.J. 420, 448-49 (2012).

     While it is true, as to the first statutory prong, that the

child was removed from her care shortly after birth – a fact that

defendant urges in arguing she never harmed the child – there is

ample evidential support for the judge's finding that the child's

"health and development" would be "endangered in the future" by

defendant's cognitive deficits. This finding was based on expert

testimony, which the judge credited, that defendant's diagnosis

of "significant neurocognitive disorder . . . creates a foundation

in which she is vulnerable to making significant mistakes as a


                                5                           A-4515-16T4
parent and the normal stress of life given her deficits." The

judge also credited testimony that defendant is not fit to parent

and that no services could rectify her difficulties. The judge's

approach to the circumstances was well-grounded on the principle

that a court "does not have to wait" to act "'until a child is

actually   irreparably     impaired     by   parental      inattention     or

neglect.'" F.M., 
211 N.J. at 449 (quoting In re Guardianship of

D.M.H., 
161 N.J. 365, 383 (1999)). The first prong of the statutory

test is satisfied when a child is endangered, not just when the

child has been actually harmed.

     We also find it necessary to respond to defendant's contention

in Point III that the Division was slow to provide services and

did not, as defendant argues, "provide any services until [Richard]

was over a year old." It may be true that defendant did not begin

parenting classes until the child was thirteen months old, but the

record reveals that defendant was offered other services and missed

appointments   months    earlier.   The   Division   was    also   actively

engaged from the time of the emergency removal shortly after the

child's birth. Family team meetings began in November 2015, when

Richard was a month old, and defendant was then provided with a

psychological evaluation to ascertain what services were needed.




                                    6                               A-4515-16T4
     We need not add to the trial judge's thorough opinion in

demonstrating that his findings on those prongs, as well as prongs

two and four, were well-supported and entitled to deference.

     Affirmed.




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