NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. R.B'

RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-4877-16T1
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

         Plaintiff-Respondent,

v.

R.B.,

         Defendant-Appellant,

and

A.S., SR.,

     Defendant.
______________________________

IN THE MATTER OF THE
GUARDIANSHIP OF N.B., a Minor.
______________________________

                   Submitted October 4, 2018 – Decided October 17, 2018

                   Before Judges O'Connor and Whipple.

                   On appeal from Superior Court of New Jersey,
                   Chancery Division, Family Part, Hudson County,
                   Docket No. FG-09-0132-16.
            Joseph E. Krakora, Public Defender, attorney for
            appellant (Arthur D. Malkin, Designated Counsel, on
            the briefs).

            Gurbir S. Grewal, Attorney General, attorney for
            respondent (Jason W. Rockwell, Assistant Attorney
            General, of counsel; Jessica M. Steinglass, Deputy
            Attorney General, on the brief).

            Joseph E. Krakora, Public Defender, Law Guardian,
            attorney for minor (Todd S. Wilson, Designated
            Counsel, on the brief).

PER CURIAM

      Defendant R.B. (mother) appeals from a June 28, 2017 judgment

terminating her parental rights to her son, Nevin 1, presently three years of age.

Defendant A.S. (father) is Nevin's biological father; his parental rights to Nevin

were also terminated but A.S. has not appealed from this judgment. 2 On appeal,

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).3


1
    The child's name is fictitious in order to protect his identity.
2
    In addition, the mother has a biological child with another, D.J.; that child
has been in D.J.'s custody since 2012.
3
    These four prongs are:



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      After reviewing the record and the applicable legal principles, we reject

the arguments the mother advances and affirm substantially for the reasons

expressed by Judge Lourdes I. Santiago in her comprehensive written opinion.

In lieu of reciting at length the evidence presented by the Division and Nevin's

law guardian in support of terminating the mother's parental rights, we

incorporate by reference Judge Santiago's factual findings because they 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;

            (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).]


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supported by competent evidence presented at trial. See N.J. Div. of Youth &

Family Servs. v. F.M.,  211 N.J. 420, 448-49 (2012). However, we highlight

some of the key evidence.

      Defendants are the biological parents of four other children, all of whom

are older than Nevin. In 2013, their parental rights to these four children were

involuntarily terminated following a trial. The facts underlying the trial judge's

decision to terminate defendants' parental rights to those four older children are

set forth at length in our opinion affirming the judge's decision, see N.J. Div. of

Child Prot. & Permanency v. R.B., No. A-2762-12 (App. Div. June 26, 2015)

and need not be repeated here. However, to put the present matter in context,

we note the reason why the judge in the previous matter found the Division had

proved the first factor of  N.J.S.A. 30:4C-15.1(a) by clear and convincing

evidence.

      In 2011, the mother forcibly dropped one of the children, L.S., into a car

seat when she was five weeks old. The impact caused the baby to sustain a head

injury. Despite the fact the baby exhibited significant distress for the ensuing

four days, defendants failed to seek medical attention. By the time the baby was

seen by a doctor four days after the injury, L.S. had suffered irreversible brain

damage and is now in a permanent vegetative state. Had defendants obtained


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prompt medical treatment, it is likely the baby would have recovered without

sustaining any serious permanent injuries.

      Given what happened to L.S. while in defendants' care, when Nevin was

born, the Division conducted an emergency removal and, upon his discharge

from the hospital, placed Nevin in a resource home. The mother has never had

physical custody of Nevin. Because of concerns about the mother's mental

health, two days after the baby's discharge, the court ordered the mother to

obtain mental health treatment, which she commenced approximately two weeks

later. In addition to referring the mother to a therapist, the Division arranged

for the mother to participate in parenting classes and provided to her both

supervised visitation and supervised therapeutic visitation with Nevin.

      The mother completed parenting classes and participated in visitation.

She also engaged in individual therapy, but ceased for a number of months when

Medicaid stopped paying for her sessions. Although it was up to the mother to

address the suspension of these benefits, she failed to take any action for three

months, even though the Division offered to help her resolve this problem soon

after her benefits ceased.

      During the guardianship trial, the Division called psychologist Frank

Dyer, Ph.D., as its expert witness. Dyer had evaluated the mother in 2012 in


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connection with the litigation pertaining to her four older children. At that time,

Dyer found that various psychological deficiencies precluded the mother from

adequately parenting her children. Dyer evaluated the mother again in 2015 and

2016 and determined she still lacked the capacity to care for her children because

of, among other things, serious problems with depression and anxiety.

       Dyer did find the mother had made some progress insofar as "organizing

her own life." For example, she obtained a job and a place to live. However,

she had not engaged in "any real therapeutic work with respect to the core

psychological issues that create a risk to any children in her care," and continued

to be ill-equipped for the tasks of parenting. He noted "the fact that in her

present therapy [the mother] still offers two different stories of how her daughter

[L.S.] came to suffer severe injuries suggests that the fundamental problems

leading to that incident have not been touched."

      Dyer also conducted a bonding evaluation of the mother and Nevin, as

well as of the resource parents and Nevin.         Dyer recognized the mother

interacted appropriately with Nevin during the bonding evaluation and that

Nevin had formed some degree of attachment to her as a result of visitation.

Nevertheless, Dyer opined Nevin's primary attachment figures were his resource

parents. Dyer also testified Nevin's resource parents wish to adopt him.


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      Dyer pointed out that, given Nevin's stage of development, an attachment

figure is critically important.   Nevin perceives his resource parents as his

"central attachment figures, his central parental love objects and identification

figures." If taken from them, Nevin would be "very highly likely" to suffer a

traumatic loss, and the mother would not be able to mitigate such loss.

      Through his law guardian, Nevin called psychologist Alice Nadelman,

Ph.D., who also evaluated the mother. In Nadelman's opinion, the mother does

not possess the psychological resources necessary to enable her to provide safe

and adequate parental care for Nevin. Nadelman found that although the mother

had participated in individual therapy, she had failed to confront key emotional

problems because she did not want to open "wounds from the past." Further,

Nadelman reported the mother does not believe she needs therapy and will likely

discontinue therapy if Nevin were placed with her. Nadelman also observed the

mother failed to provide a clear plan for Nevin's care if unified with her,

"significantly minimized the impact" losing "his lifelong caregivers" would have

upon him, and had no plan for how she would cope with his "grief, rage, and

regression" if removed from his resource parents' home.




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      The trial court found Dyer and Nadelman credible. The mother did not

introduce any evidence to refute these experts' opinions; in fact, the mother did

not introduce any evidence at all.

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

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

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

is insufficient evidence to support the judge's conclusion 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).

      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


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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, 343 (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 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 satisfied. See 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


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Guardianship of D.M.H.,  161 N.J. 365, 383 (1999). A court does not have to

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

before it acts. Id. (citing 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).       The judge's thorough opinion

analyzes these prongs, and her 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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