DIVISION OF CHILD PROTECTION AND PERMANENCY v. I.F.A.

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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-4591-16T2

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

I.F.A.,

Defendant-Appellant.

IN THE MATTER OF THE
GUARDIANSHIP OF R.J.A.,
a minor.
________________________________

Submitted April 17, 2018 – Decided May 3, 2018

Before Judges Reisner, Hoffman, and Mayer.

On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Atlantic
County, Docket No. FG-01-0072-16.

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

Gurbir S. Grewal, Attorney General, attorney
for respondent (Melissa Dutton-Schaffer,
Assistant Attorney General, of counsel;
Juliana Stiles, Deputy Attorney General, on
the brief).

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

PER CURIAM

Defendant I.F.A.1 appeals from a June 14, 2017 judgment of

guardianship terminating her parental rights regarding her son,

R.J.A. (Robert). The Division of Child Protection and Permanency

(Division) and Robert's Law Guardian support the judgment.

Defendant raises the following arguments:

POINT I

BECAUSE THE DIVISION FAILED TO PROVE BY CLEAR
AND CONVINCING EVIDENCE THAT [DEFENDANT'S]
PARENTAL RIGHTS TO [ROBERT] SHOULD BE
TERMINATED, THE TRIAL COURT'S ORDER
TERMINATING [DEFENDANT'S] PARENTAL RIGHTS
MUST BE VACATED.

(1) The trial court erred when it found that
the Division proved that [defendant's]
parental relationship with [Robert] presented
a risk of harm.

(2) The trial court was wrong when it found
that [defendant] was unable to mitigate the
harm that might result from reunification.

(3) The trial court erred in finding that the
Division satisfied prong three.

1
We use initials and pseudonyms to protect the parties' privacy
interests. R. 1:38-3(e).

2 A-4591-16T2
(4) The trial court erred when it found that
[Robert] would be harmed through gradual
reunification with or from continued contact
with his biological mother.

Based on our review of the record, we affirm for the reasons

expressed by Judge W. Todd Miller in his forty-nine page written

decision, dated June 14, 2017, finding that the Division proved

all four prongs of the best interests test,
N.J.S.A. 30:4C-15.1(a).

We find that the judge's factual findings are supported by

substantial credible evidence. See N.J. Div. of Youth & Family

Servs. v. R.G.,
217 N.J. 527, 552 (2014).

Judge Miller's comprehensive written opinion details the

facts and lengthy history of the Division's involvement leading

to the termination of defendant's parental rights. We briefly

summarize the relevant facts.

Defendant gave birth to Robert on October 30, 2008. The

identity of Robert's biological father is unknown. Robert was

born with severe disabilities and significant cognitive

impairments. The Division became involved with Robert the day

after his birth, based on the hospital's concern that defendant

lacked the ability to meet her son's extensive medical needs.

Shortly after his birth, Robert was transferred to another hospital

for specialized treatment. That hospital advised the Division

that defendant was not capable of caring for her son and

3 A-4591-16T2
recommended Robert be transferred to a long-term care pediatric

facility that would meet Robert's intensive medical needs.2 In

December 2008, the Division filed a verified complaint for care

and supervision of Robert.

Robert remained in a New Jersey long-term care pediatric

facility from 2009 to 2012. During that time, defendant was living

in Maryland and searching for stable housing and employment.

Robert and defendant were reunified in September 2012.

Thereafter, Maryland Child Protective Services (CPS) received

several referrals regarding defendant's inability to properly care

for Robert and the lack of suitable housing for the family. In

October 2012, Robert was hospitalized in Maryland for a "failure

to thrive" workup.

In November 2012, the family moved to Mexico, and then to

Florida in April 2013. Between 2013 and 2015, Robert was

hospitalized several times, and Florida CPS received numerous

referrals regarding defendant's inability to parent and care for

Robert.

Defendant and Robert returned to New Jersey in June 2015.

Defendant was without permanent housing or a job. Based on a

2
During the pendency of the guardianship trial, Robert resided
at an approved medical group home because of his significant
medical and developmental issues.

4 A-4591-16T2
medical issue, defendant sought treatment at a New Jersey hospital

and brought Robert with her. The hospital reported to the Division

that Robert had severe disabilities and defendant lacked the

necessary medical equipment to care for her son. Robert was

admitted to the hospital and the Division sought and obtained an

emergency removal for Robert. Throughout 2015, the Division

retained custody of Robert, who was transferred to several

different hospitals and care facilities. Defendant returned to

Florida and failed to cooperate with the Division and Robert's

caregivers.

In March 2016, the Division filed a complaint for guardianship

of Robert. The family court conducted a contested trial on four

separate dates in May and June 2017. The judge heard testimony

from several experts regarding defendant's ability to parent and

care for Robert. In addition, the judge reviewed the experts'

written evaluations assessing defendant's psychological and

emotional functioning and her bond with Robert.

The Division presented expert testimony from Dr. Alan J. Lee,

a psychologist. Dr. Lee performed a psychological evaluation of

defendant and bonding evaluation of defendant and Robert. As part

of his psychological evaluation, Dr. Lee found defendant likely

suffers from serious mental illness, including psychotic

condition, possible schizophrenic condition, and delusional-

5 A-4591-16T2
bizarre and paranoid-persecutory belief systems. Dr. Lee

concluded that defendant's judgment, decision-making, and sense

of reality were seriously impaired. According to Dr. Lee,

defendant would not "be able to function as a minimally adequate

parent to [Robert]" at this time or "within the foreseeable

future." Consequently, he supported "other permanency planning

for [Robert] besides reunification to [defendant]." As part of

his bonding evaluation, Dr. Lee opined that Robert's attachment

to his mother was "insecure" and "limited," and there would be a

low risk of harm to Robert if his relationship with defendant was

permanently severed.

Dr. Jo Anne Gonzalez, a psychologist, testified for the Law

Guardian. She opined that defendant suffers from delusional

disorder and was unable to process her son's physical, behavioral,

and developmental disabilities and needs. According to Dr.

Gonzalez, defendant's delusions, particularly regarding the

severity of her son's conditions, interfered with defendant's

ability to parent Robert. Dr. Gonzalez "recommend[ed] that

termination of parental rights [would] be an appropriate goal

based on [defendant's] abilities to provide the kind of care that

[Robert] will need." Dr. Gonzalez further testified that defendant

would be unable to parent Robert "even if he was not having the

6 A-4591-16T2
issues that he has," as defendant is "not able to provide

[appropriate] care for any child."

Dr. Aida Ismael-Lennon, a psychologist, testified for

defendant. She also performed a mental health evaluation of

defendant and bonding evaluation of defendant and Robert.

Significantly, Dr. Lennon was unaware of the history related to

defendant's caring for Robert, particularly the lengthy gaps in

time when he received care from the hospitals or the pediatric

facility rather than defendant. Dr. Lennon agreed with the other

testifying experts that defendant could not care for Robert as of

the time of trial. It was Dr. Lennon's hope that, upon receipt

of proper services, including full-time medical assistance,

defendant would be able to parent her son appropriately. On the

issue of bonding with Robert, Dr. Lennon testified there was a

"secure" bond between the two. She opined it would be harmful to

Robert's well-being if defendant's parental rights were

terminated, as defendant was "the only person who's been a

caregiver in his life since he was born." However, Dr. Lennon was

not informed that defendant was mostly absent during the early

years of Robert's life, which, according to Lennon, are "the most

crucial years" for developing a bond. Dr. Lennon also opined that

Robert and defendant shared a bond based on her observation of

certain physical behaviors. However, Dr. Lennon was unaware that

7 A-4591-16T2
Robert displays those same physical behaviors with his caregivers

at the long-term care pediatric facility.

In his written opinion, Judge Miller concluded that the

Division satisfied the four prongs of the best interests test by

clear and convincing evidence. In general, the judge found the

testimony of Drs. Gonzalez and Lee to be more convincing than the

testimony of defendant's expert. The judge found Dr. Lennon

credible, but discounted her testimony, as her assessment focused

only on defendant's recent interactions with Robert and the

doctor's limited observation. Dr. Lennon lacked information

regarding the significant time period when defendant had little

or no contact with Robert, particularly during the critical years

of birth to age four.

Regarding prong one, Judge Miller found Robert's "safety,

health, and development have been, and will continue to be

endangered by the child's parental relationship with [defendant]."

The judge noted defendant's mental health deficits, homelessness,

and financial issues "all put [Robert] at risk."

As to prong two, the judge found that the Division proved

that defendant was unwilling or unable to eliminate harm to Robert

or provide a safe and stable home. The judge noted defendant's

paranoia, poor judgment, failure to engage in the services offered

by the Division, failure to maintain stable employment, failure

8 A-4591-16T2
to obtain suitable housing, and transient lifestyle without

providing proper supplies and medical equipment for Robert's

extraordinary medical needs, all evidence her inability or

unwillingness to eliminate the harm to Robert.

Regarding prong three, the judge found the Division made more

than reasonable efforts to provide services to defendant since

2008. The judge noted that the Division sought to provide services

to defendant for eight years and the "Division went overboard in

terms of its patience [and] services, . . . and that is all

encompassing under the reasonable efforts."

As to prong four, the judge relied upon the findings and

conclusions of Drs. Lee and Gonzalez that termination of

defendant's parental rights will not do more harm than good. The

judge rejected defendant's argument that Robert's severe

disabilities would impair his ability to be adopted and that the

judge should consider that factor in deciding whether to terminate

her parental rights. Considering defendant's history of denying

medical treatment for Robert, interfering with or declining to

consent to treatment when Robert was hospitalized, and abandoning

Robert for lengthy periods of time, the judge found defendant was

going to undermine and impede Robert's care if defendant's parental

rights were not terminated. The judge also found that the Division

has a "select home adoption process" whereby Robert could be

9 A-4591-16T2
adopted by a family willing to take care of a child with severe

disabilities. The Division provided testimony describing in

detail the disabled children who had previously been adopted

through this process. The Division also explained that termination

of parental rights is a prerequisite for a child to be eligible

for the select home adoption process.

In assessing the fourth prong, the judge asked rhetorically

whether it was better to terminate defendant's parental rights or

permit her to

stay in [Robert's] life and have her interfere
with his medical treatment, undermine . . .
him every time he needs some help,
intermittently show up and see him, leave him
for long periods of time, put chicken soup in
his feeding tube, put . . . diluted formula
in his feed[ing] tube, [and] take his
colostomy bag off when she's not supposed to.

The judge concluded that it was in Robert's "best interest and it

will do no more harm if the Division goes further into the select

home [adoption] process and tries to find a loving and caring home

for [Robert] notwithstanding his medical and other disabilities."

Our review of a decision terminating parental rights is

limited. N.J. Div. of Youth & Family Servs. v. M.M.,
189 N.J.
261, 278 (2007). The factual findings that support such a judgment

"should not be disturbed unless 'they are so wholly insupportable

as to result in a denial of justice,' and should be upheld whenever

10 A-4591-16T2
they are 'supported by adequate, substantial and credible

evidence.'" In re Guardianship of J.T.,
269 N.J. Super. 172, 188

(App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Inv'rs Ins.

Co. of Am.,
65 N.J. 474, 483-84 (1974)).

We reject defendant's arguments based on Judge W. Todd

Miller's comprehensive and well-reasoned written decision applying

the testimony and evidence to each of the four prongs for

termination. Defendant's appellate contentions are without

sufficient merit to warrant further discussion.

R. 2:11-3(e)(1)(E). We add only the following comment.

Although the Division was unable to identify a family who

sought to adopt Robert, the testimony from the Division established

that despite Robert's serious medical and developmental issues,

adoption remained a realistic goal. The judge was presented with

detailed testimony describing children who had severe special

needs and were adopted within the past two years by families

capable of providing a loving and safe home environment for a

child with deficits similar to those suffered by Robert. Our

Supreme Court has recognized that "there will be circumstances

when the termination of parental rights must precede the permanency

plan. A multiply-handicapped child or a young adolescent might

not be adoptable at the time of the termination proceedings." N.J.

Div. of Youth & Family Servs. v. A.W.,
103 N.J. 591, 611 (1986).

11 A-4591-16T2
Affirmed.

12 A-4591-16T2

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