NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. S.B IN THE MATTER OF THE GUARDIANSHIP OF S.M.B a Minor

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                                NOT FOR PUBLICATION WITHOUT THE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-4733-16T2
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

         Plaintiff-Respondent,

v.

S.B.,

     Defendant-Appellant.
__________________________

IN THE MATTER OF THE
GUARDIANSHIP OF S.M.B.,
a Minor.
__________________________

                   Submitted September 21, 2018 – Decided October 25, 2018

                   Before Judges O'Connor and DeAlmeida.

                   On appeal from Superior Court of New Jersey,
                   Chancery Division, Family Part, Essex County,
                   Docket No. FG-07-0113-17.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Stephania Saienni-Albert, Designated
                   Counsel, on the briefs).
             Gurbir S. Grewal, Attorney General, attorney for
             respondent (Jason W. Rockwell, Assistant Attorney
             General, of counsel; Erika C. Callejas, 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 S.B. (mother) appeals from a Family Part judgment

terminating her parental rights to her daughter, S.M.B. (Sarah), presently three

years of age.1 The identity of Sarah's biological father is not known.

       The mother contends the Division of Child Protection and Permanency

(Division) failed to prove by clear and convincing evidence the four-prong

standard set forth in  N.J.S.A. 30:4C-15.1(a).2 After reviewing the record and


1
  We employ initials to protect the mother's and the child's privacy, and use a
pseudonym to refer to the child for ease of reference.
2
    These four prongs are:

             (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 resource family parents would cause serious and
             enduring emotional or psychological harm to the child;
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the applicable legal principles, we reject the arguments she advances and

affirm substantially for the reasons expressed by Judge Wayne J. Forrest in his

comprehensive written opinion.       In lieu of reciting at length the evidence

presented by the Division in support of terminating the mother's parental

rights, we incorporate by reference Judge Forrest's factual findings because

they are supported by competent evidence presented at trial. 3 N.J. Div. of

Youth & Family Servs. v. F.M.,  211 N.J. 420, 448-49 (2012). We highlight

some of the key evidence.

        Sarah was born in July 2015. While she and the mother were still in the

hospital following her birth, the hospital staff noted the mother did not have

"full cognitive capacity to care for an infant," and contacted the Division. The

Division immediately effectuated an emergency removal of the child and



___________________

              (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).]
3
    The mother neither attended nor introduced any evidence at trial.
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placed her in a resource home.       Shortly thereafter, the Division obtained

temporary custody of Sarah, who has never been in her mother's custody.

      During the guardianship trial, a Division caseworker testified to the

following.     Although she submitted to various evaluations and completed

parenting classes, the mother did not submit to a substance abuse assessment

or participate in psychological therapy, as had been recommended by one of

the evaluators. The mother was appropriate when she visited the child, yet for

many months failed to see the child at all. The mother was not able to secure

housing or employment and depended upon her own mother for financial

support.     However, her own mother was herself unable to maintain stable

housing for any appreciable length of time. All of the relatives the mother

suggested as potential caregivers were ruled out and none appealed the

Division's rule-out determination.   Finally, the caseworker noted Sarah was

doing well in the home of her resource mother, who wanted to adopt the child.

      The Division called psychologist Mark Singer, Ed. D., as its expert

witness. Dr. Singer conducted a psychological evaluation of the mother, as

well as a bonding evaluation of the child with both the mother and resource

mother.      Dr. Singer noted documents he reviewed about the mother's

background indicated she had significant cognitive deficits in the frontal lobe,

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which control decision-making, long-term planning, and logical thinking. The

objective tests he performed and his clinical evaluation were consistent with

the background information provided in the documents.

      While there is no indication the mother would deliberately harm a child,

Singer found she did not have the emotional or cognitive resources to create

stability in her life and thus could not do the same for Sarah. Because of her

poor psychological functioning, she was "not a viable parenting option" for the

child and not likely to become one. Her frontal lobe deficit was "not subject to

. . . remediation" and thus was "not likely to change over time."

      As for the bonding evaluation between the mother and child, Singer did

find the mother conducted herself appropriately and the child appeared

comfortable in her presence. However, the child did not view the mother as a

significant parental figure.   By contrast, when with the resource mother, the

child exhibited behavior revealing she was far more attached to the latter, who

Singer found was her psychological parent.

      Singer opined that, if removed from the resource mother's care, there is a

significant risk the child will suffer "feelings of loss, low self-esteem, [and]

insecurity" and will have "difficulty forming meaningful attachments later in

life," and the mother will not be able to mitigate the harm the child would

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endure. Given the child's attachments to the resource mother, Singer found the

child will not likely have a significant or enduring reaction to the termination

of the mother's parental rights. In fact, he was of the opinion the termination

of the mother's parental rights and the child's adoption by the resource mother

was the "only viable option" for the child.

      Following the trial, the judge issued a thorough, forty-page opinion in

which he addressed the four factors in  N.J.S.A. 30:4C-15.1(a), setting forth his

findings of fact and conclusions of law as to each. The mother contends there

is insufficient evidence to support the judge's findings and conclusions that the

Division met all four prongs in this statute by clear and convincing evidence.

      In reviewing a case in which the termination of parental rights has been

ordered, we remain mindful of the gravity and importance of our review. See

N.J. Div. of Youth & Family Servs. v. I.S.,  202 N.J. 145, 151 (2010) ("[T]he

process for terminating parental rights is a difficult and intentionally rigorous

one that must be satisfied by a heightened burden of proof . . . ."). Parents

have a constitutionally protected right to enjoy a relationship with their

children and to raise them without State interference. N.J. Div. of Youth &

Family Servs. v. E.P.,  196 N.J. 88, 102 (2008).




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      However, this right is not absolute, as it is limited by the "State's parens

patriae responsibility to protect children whose vulnerable lives or

psychological well-being may have been harmed or may be seriously

endangered by a neglectful or abusive parent." F.M.,  211 N.J. at 447. The

State has a strong public policy that favors placing children in a permanent,

safe, and stable home. See generally In re Guardianship of K.H.O.,  161 N.J.
 337, 357-58 (1999).

      In addition, a 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 defer to the trial court's credibility findings and, in particular,

its fact findings because of its expertise in family matters, see N.J. Div. of

Youth & Family Servs. v. M.C. III,  201 N.J. 328, 342-43 (2010), unless the

trial court's findings are "so wide of the mark that the judge was clearly

mistaken." N.J. Div. of Youth & Family Servs. v. G.L.,  191 N.J. 596, 605

(2007) (citing J.T.,  269 N.J. Super. at 188-89).

      We note that providing proof a parent has in fact harmed a child is not

essential to showing the first prong of  N.J.S.A. 30:4C-15.1(a) has been

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satisfied. N.J. Div. of Youth & Family Servs. v. A.W.,  103 N.J. 591, 604-05,

(1986). When no actual harm is proven, the first prong will be satisfied by

evidence showing a parent will endanger the child's health, safety, or welfare.

See In re Guardianship of D.M.H.,  161 N.J. 365 (1999). A court does not have

to wait until a child is "irreparably impaired by parental inattention or neglect"

before it acts. Id. (quoting A.W.,  103 N.J. at 616 n.14).

      We have examined the mother's arguments the Division failed to satisfy

the four prongs of  N.J.S.A. 30:4C-15.1(a).       After perusing the record, we

conclude these arguments are without sufficient merit to warrant discussion in

a written opinion. See Rule 2:11-3(e)(1)(E). Judge Forrest's thorough opinion

analyzes these prongs, and his findings are amply supported by substantial and

credible evidence, mandating our deference. N.J. Div. of Youth & Family

Servs. v. F.J.,  211 N.J. 420, 448-49 (2012); Cesare v. Cesare,  154 N.J. 394,

413 (1998).

      Affirmed.




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