NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. B.N and A.V

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                                  NOT FOR PUBLICATION WITHOUT THE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-1851-18T3

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

          Plaintiff-Respondent,

v.

B.N.,

          Defendant-Appellant,

and

A.V.,

     Defendant.
_____________________________

IN THE MATTER OF THE
GUARDIANSHIP OF I.N.,

     a Minor.
_____________________________

                    Submitted October 3, 2019 – Decided November 13, 2019

                    Before Judges Nugent and DeAlmeida.
              On appeal from the Superior Court of New Jersey,
              Chancery Division, Family Part, Hudson County,
              Docket No. FG-09-0234-18.

              Joseph E. Krakora, Public Defender, attorney for
              appellant (Robyn A. Veasey, Deputy Public Defender,
              of counsel; Christine Olexa Saginor, Designated
              Counsel, on the briefs).

              Gurbir S. Grewal, Attorney General, attorney for
              respondent (Melissa H. Raksa, Assistant Attorney
              General, of counsel; Julie Beth Colonna, Deputy
              Attorney General, on the brief).

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

PER CURIAM

        Defendant, B.N., the twenty-two-year-old mother of I.N., now age two,

appeals from a judgment terminating her parental rights to the child.1 B.N. has

a younger child who is not involved in this action.            I.N.'s father, A.V.,

voluntarily surrendered his parental rights on the day the guardianship trial

began, and the court dismissed the complaint as to him. B.N. argues that

plaintiff, Division of Child Protection and Permanency (Division), failed to

prove by clear and convincing evidence that terminating her parental rights was

in the child's best interests, under the standards codified in  N.J.S.A. 30:4C-


1
    We use initials to protect the parties' privacy. R. 1:38-3(d).
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                                          2
15.1(a). The Division and the Law Guardian oppose the appeal. Having studied

the record, found the trial court's findings of fact supported by ample credible

evidence, and determined the court's legal analysis to be sound, we affirm.

      When the Division seeks to terminate a parent's constitutionally protected,

fundamental liberty interest in the care, custody, and supervision of a child,

Santosky v. Kramer,  455 U.S. 745, 753 (1982), it must clearly and convincingly

prove, and a court must determine, that terminating parental rights is in the

child's best interests. In a Title 30 proceeding, the "best interests" standard

requires the Division to prove by clear and convincing evidence:

            (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 [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) Termination of parental rights will not do more
            harm than good.

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                                       3
            [N.J.S.A. 30:4C-15.1(a).]

      Here, to prove the statutory criteria, the Division presented the testimony

of three witnesses: Edelly Polanco, one of its Family Service Specialists and

Adoption Caseworkers; Dr. Samiris Sostre, an expert in psychiatry; and Dr.

Robert Miller, an expert in forensic psychology. Polanco testified the Division

responded to an April 10, 2017 referral by interviewing B.N. after she left Isaiah

House, the place the Division had previously arranged for her to live and get

appropriate support. B.N. had packed her belongings and left with I.N. When

interviewed, B.N. admitted that she felt overwhelmed and felt like she could not

parent I.N. She acknowledged she was bipolar, suffered from ADHD, and had

anger issues. She also admitted smoking marijuana throughout her pregnancy

with I.N. and continuing to smoke marijuana. Nonetheless, B.N. said she was

"open for services," so allegations of neglect were not established.

      Based on its investigation, however, the Division executed an emergency

removal of I.N. and the court granted the Division's application for care,

custody, and supervision.2 The Division placed two-month-old I.N. with the


2
  An emergency removal, commonly known as a "Dodd removal," refers to the
emergency removal of a child from the home without a court order pursuant to
 N.J.S.A. 9:6-8.21 to -8.82, known as the Dodd Act. N.J. Div. of Youth & Family
Servs. v. P.W.R.,  205 N.J. 17, 26 n.11 (2011).


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resource mother with whom she currently resides, with whom I.N. is thriving,

and by whom I.N. will be adopted.

      Between I.N.'s emergency removal from B.N. in April 2017 and the

guardianship trial in December 2018, the Division attempted on many occasions

to provide services to help B.N. Initially, B.N. underwent psychological and

psychiatric evaluations.     The psychologist recommended she engage in

individual trauma-based therapy. The psychiatrist recommended she attend

individual therapy and anger management therapy, attend parenting classes, and

consider taking psychotropic medications. He also recommended she engage in

a "Mommy and Me" program. The Division attempted to provide the services

the doctors recommended.       It also referred B.N. to therapeutic supervised

visitation.

      For the most part, B.N. refused to participate in services. She became

very upset with the Division for recommending the Mommy and Me program,

was not interested in attending, and told the Division to take away her visitation

because she did not want it anymore. Although B.N. did not stop attending visits

with I.N., she did not visit the baby on a consistent basis, despite the Division's

continuing encouragement of her to visit I.N.




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      In June 2017, the Division responded to a referral that B.N. had threatened

to strangle I.N.   B.N. denied making the threat but admitted to underage

drinking. She was nineteen years old. She told the Division she was open for

services. The Division determined that the allegation of abuse was unfounded.

      When B.N. failed to attend therapeutic visitation through Catholic

Charities, the Division referred her to therapeutic visitation through Urban

League. The Division also arranged for her to begin individual therapy and

anger management. She declined to do so. She denied needing individual

therapy and she did not attend the parenting classes the Division had arranged.

      In September 2017, B.N. agreed to attend a Mommy and Me program.

Although she showed up for intake and was accepted into the program, she left

without explanation three days later. The Division also referred B.N. to a

program called ACES, an acronym for Academic and Career Exploration

Services, to assist her in getting her GED. In addition, the Division referred

B.N. to an in-parent support service, helped her submit an application to the

Division of Developmental Disability for additional services, and referred her

to a program for victims of human trafficking. Although she attended the latter

program and participated in anger management sessions, she never attended any




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individual therapy or parenting sessions.       She declined services from the

Division of Developmental Disability and refused to fill out an application.

      In November 2017, B.N. began to participate in a Mommy and Me

program because she was pregnant and wanted to keep the child. After B.N.

gave birth to her second child, the Division arranged for B.N. to have supervised

visits with I.N. at the Mommy and Me program where B.N. was residing with

her newborn. Notwithstanding the Division's efforts, B.N. routinely missed

scheduled supervised visits with I.N.       She did, however, receive some job

training, attend some group sessions, and learn "baby care basics" at the Mommy

and Me program. Meanwhile, the Division again arranged for B.N. to visit I.N.,

this time through Family Intervention Services.        B.N.'s participation was

sporadic, and program personnel closed her case in September 2018 due to "a

lack of consistency, a lack of compliance, no-shows, and no participation."

Three months earlier, she had been discharged from the Mommy and Me

program for noncompliance, namely, exceeding the time she was permitted to

be out of the facility overnight.

      From June through August 2018, B.N. lived in Jersey City, where the

Division had found housing for her. She was discharged from the residence for

violating their overnight visitor policy and for possessing marijuana. Thereafter,


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the Division found housing for her through Hudson Welfare Services. During

that time, her pattern of noncompliance with programs the Division arranged

continued. She either did not attend or did not complete the programs. In

addition, B.N. continued to smoke marijuana, claiming it helped her to control

her moods. In September, after receiving a warning about compliance with the

rules of the facility where she was residing, B.N. left the residential program.

She moved to Pennsylvania and has not returned to New Jersey. When the trial

took place in December 2018, B.N. was not receiving any services, though the

Division had arranged for transportation for B.N. so that she could keep

necessary appointments in New Jersey.

      In addition to providing an array of services, the Division assessed a

number of B.N.'s friends and relatives for placement of I.N. These included her

maternal uncle, maternal aunt, A.V.'s uncle, and B.N.'s maternal third cousin.

The Division investigated and ruled out all of them.         None appealed the

Division's decision. The Division was reassessing B.N.'s maternal third cousin

at the time of the guardianship trial.

      Polanco concluded her testimony by reiterating that since I.N. was

removed from B.N.'s care, B.N. had completed none of the Division-provided

or court-ordered services and had never visited I.N. on a consistent basis.


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      Dr. Sostre, the Division's expert in psychiatry, examined B.N. when I.N.

was one and one-half years old. B.N had given birth to her second child. The

doctor explained B.N. had a history of mental illness dating back to early

adolescence and included a diagnosis of bipolar disorder and one suicide

attempt. She was not currently receiving treatment for the mental illness that

plagued her; instead, she was using marijuana to manage her anger and anxiety.

She did not want therapy and did not wish to discuss her past.

      B.N. acknowledged she should be taking some type of psychiatric

medication but refused because she feared the side effects. She told Dr. Sostre

she was not sleeping, thought she was depressed, and had mood swings

sufficiently severe to convince her she suffered from bipolar disorder. She was

aware she had a problem controlling her anger, knew her relationships had been

unstable, and knew she had difficulty maintaining stable housing.

      Dr. Sostre diagnosed B.N. with borderline personality disorder—often

confused with bipolar disorder—and post-traumatic stress disorder (PTSD).

Borderline personality disorder manifests in pervasive maladaptive patterns of

behavior and multiple daily mood swings. Marijuana helps stabilize the mood

swings. Affective instability, poor impulse control, and interpersonal chaotic




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relationships are typical. B.N. was exhibiting these symptoms when the doctor

examined her.

      Dr. Sostre believed the PTSD, marked by a patient's difficulty facing past

trauma, was playing a role in B.N.'s refusal to accept services to address it.

According to the doctor, because B.N.'s insight was very poor, she did not

realize how her past was impacting her present, which played a role in her

refusal to accept services to address her problem. Although Dr. Sostre believed

medication would stabilize B.N.'s moods, and believed her self-medicating with

marijuana was inappropriate and affected her judgment, the doctor was unable

to convince B.N. to start either medication or psychotherapy, the latter being

"the most important piece."

      In view of B.N.'s refusal to accept professional help, her prognosis for

change was poor. Because her prognosis for change was poor, and in view of

her youth, immaturity, impulsive behavior, inability to make adequate decisions,

and self-centeredness, her needs would come before I.N.'s needs, which placed

I.N. at risk.

      Dr. Miller, the Division's expert psychologist, examined B.N. three times,

saw her on a fourth occasion, and conducted bonding evaluations. According to

him, she had a history of abusing marijuana and alcohol. He recounted B.N .'s


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extensive history of trauma, which "explains a lot about why she is unable to

parent." Dr. Miller diagnosed B.N. with "severe mental illness, . . . depression,

post-traumatic stress disorder, and substance abuse." He added that B.N. also

suffered from "a personality history that's characterized by impulsivity, anger,

aggression, and denial of her problems."

      Dr. Miller provided B.N. with a "very transparent Adolescent Parenting

Inventory, which . . . lists the ways people think about parenting." He testified

the results "raise[] significant concerns regarding [B.N. and], her role-reversing

tendency, which means she will use her child to soothe her, as opposed to

placing her own needs aside to focus on the child's emotional needs." The doctor

diagnosed B.N. with post-traumatic stress disorder, which provided her "with a

pathway to getting some help." Although he recommended B.N. begin treatment

with a trauma-focused cognitive behavioral therapy, and though she was initially

open to treatment, she ultimately received none.

      Dr. Miller opined that B.N.'s ability to parent I.N. was poor.      Absent

treatment, she would be unable to recognize emotions in a child, especially a

nonverbal infant. Consequently, "[s]he will become increasingly agitated and

triggered when children enter a toddler phase because children are seeking some

normal autonomy." The doctor explained that if B.N. is "disinhibited by alcohol


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abuse, the child can be harmed." Her prognosis for change was "guarded and

poor."

      Dr. Miller noted B.N. had no plan for parenting I.N. He believed she was

letting I.N. go to focus on her newer child. In his opinion, B.N. was unable to

safely parent I.N. B.N. was "demonstrating a pattern of pathological parenting

that's likely to cause harm or significant risk of harm."

      Dr. Miller conducted bonding evaluations for the resource mother and

B.N. During B.N.'s interaction with I.N., she became increasingly frustrated

when she could not redirect or engage the child, "who remained emotionally

constrained, shutdown, lacking vocalization."       In the doctor's opinion, no

emotional bond existed between B.N. and I.N. No bond or attachment ever

developed.

      In contrast, I.N. had developed a secure attachment with the resource

mother. The resource mother had become I.N.'s psychological parent. Dr.

Miller explained that during the time I.N. had been in the care of the resource

mother, the attachment process had "gone forward normally and naturally as you

would expect and has resulted in an enduring emotional bond." The doctor had

no concern about the resource mother's ability to meet I.N.'s needs. The resource

mother was committed to adopting I.N.


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      Dr. Miller testified that removing I.N. from the resource mother's care

would cause immediate and enduring harm to the child; the child would not be

able to overcome it; and the loss would be catastrophic.           B.N. could not

ameliorate the harm because she is incapable of responding to or recognizing a

child's emotional needs. Terminating B.N.'s parental rights would have no effect

on I.N. as the child had no emotional bond with B.N. The doctor emphasized

that I.N. needs permanency to be able to move forward psychologically.

      B.N. presented no testimony. Based on the Division's evidence, Judge

Bernadette N. DeCastro concluded the Division had clearly and convincingly

proven the four statutory criteria of the best interests of the child test set forth

in  N.J.S.A. 30:4C-15.1(a). The judge terminated B.N.'s parental rights to I.N.

      On appeal, B.N. raises four arguments, which she presents in the

following points:

            THE TRIAL COURT INCORRECTLY APPLIED THE
            LEGAL PRINCIPLES GOVERNING TERMINATION
            OF PARENTAL RIGHTS MATTERS TO THE
            FACTS. THE RECORD DOES NOT SUPPORT
            THOSE VERY PRECISE STANDARDS AND
            THEREFORE TERMINATION OF B.N.'S RIGHTS
            SHOULD BE REVERSED.

            POINT I
            THE TRIAL COURT ERRED IN CONCLUDING
            THAT B.N. HARMED [I.N.] OR EXPOSED HER TO
            A SUBSTANTIAL RISK OF HARM.

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                                        13
            POINT II
            THE TRIAL COURT ERRED IN CONCLUDING
            THAT B.N. WAS UNWILLING OR UNABLE TO
            ELIMINATE ANY PERCEIVED HARM TO HER
            CHILD.

            POINT III
            THE TRIAL COURT FAILED TO PROPERLY
            CONSIDER ALTERNATIVES TO TERMINATION
            OF PARENTAL RIGHTS.

            POINT IV
            THE TRIAL COURT ERRED IN CONCLUDING
            THAT TERMINATION OF B.N.'S PARENTAL
            RIGHTS IS IN THE CHILD'S BEST INTERESTS.

      Having considered B.N.'s arguments in light of the record and applicable

legal principles, we affirm, substantially for the reasons expressed by Judge

DeCastro in her written opinion. B.N.'s arguments are without sufficient merit

to warrant further discussion. R. 2:11-3(e)(1)(E). We add only these comments.

      The four statutory criteria of the best interests of the child test set forth in

 N.J.S.A. 30:4C-15.1(a) "are not discrete and separate, but relate to and overlap

with one another to provide a comprehensive standard that identifies a child's

best interests." N.J. Div. of Youth & Family Servs. v. I.S.,  202 N.J. 145, 167

(2010) (quoting N.J. Div. of Youth & Family Servs. v. P.P.,  180 N.J. 494, 506

(2004)).




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When we review a trial court's determination that the Division either has or has

not satisfied the statutory criteria, we must defer to the court's factual findings

unless they "went so wide of the mark that a mistake must have been made."

N.J. Div. of Youth & Family Servs. v. M.M.,  189 N.J. 261, 279 (2007) (quoting

C.B. Snyder Realty, Inc. v. BMW of N. Am. Inc.,  233 N.J. Super. 65, 69 (App.

Div. 1989)). So long as "they are 'supported by adequate, substantial and

credible evidence,'" such factual findings will not be disturbed on appeal. 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.,  65 N.J. 474, 483-84 (1974)). Moreover,

we owe deference to a trial court's expertise in handling family cases. Cesare v.

Cesare,  154 N.J. 394, 411-13 (1998).

      Here, we conclude the trial judge's factual findings are based on sufficient

credible evidence, and in light of those findings, her legal conclusions are

unassailable. The record amply supports her decision that the termination of

parental rights is in I.N.'s best interests.

      Affirmed.




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