NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. E.G.

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                                 NOT FOR PUBLICATION WITHOUT THE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-3872-17T4

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

           Plaintiff-Respondent,

v.

E.G.,

           Defendant-Appellant,

and

D.L.J., Sr.,

     Defendant.
____________________________

IN THE MATTER OF THE
GUARDIANSHIP OF D.L.J., Jr.,

     a Minor.
____________________________

                    Submitted January 8, 2019 – Decided January 25, 2019

                    Before Judges Suter and Geiger.
            On appeal from Superior Court of New Jersey,
            Chancery Division, Family Part, Atlantic County,
            Docket No. FG-01-0044-17.

            Joseph E. Krakora, Public Defender, attorney for
            appellant (Louis W. Skinner, Designated Counsel, on
            the briefs).

            Gurbir S. Grewal, Attorney General, attorney for
            respondent (Melissa H. Raksa, Assistant Attorney
            General, of counsel; Iraisa C. Orihuela-Reilly, Deputy
            Attorney General, on the brief).

            Joseph E. Krakora, Public Defender, Law Guardian,
            attorney for the minor (Melissa R. Vance, Assistant
            Deputy Public Defender, on the brief).

PER CURIAM

      Defendant E.G.1 appeals from an April 13, 2018 judgment of guardianship

terminating her parental rights to her son, D.L.J., Jr., presently eleven years old.

On January 22, 2018, D.L.J., Jr.'s father, D.L.J., Sr., made an identified

surrender of his parental rights to D.L.J., Jr. to the child's paternal aunt and

uncle, T.D.B. and R.B., and does not appeal from the judgment. After a two-

day guardianship hearing, during which E.G. and two witnesses testified, Judge

W. Todd Miller terminated E.G.'s parental rights, finding that the Division of


 1 Pursuant to Rule 1:38-3(d), we use initials to protect the confidentiality of the
participants in these proceedings.



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Child Protection and Permanency (Division) satisfied all four prongs of the best

interests standard set forth in  N.J.S.A. 30:4C-15.1(a) by clear and convincing

evidence.2

       On appeal, E.G. contends the Division failed to prove by clear and

convincing evidence the four-prong statutory standard. After reviewing the

record and applicable legal principles, we reject E.G.'s contentions and affirm

substantially for the reasons expressed by Judge Miller in his comprehensive

oral and written opinions.



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;

       (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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      In essence, E.G. argues there was no clear and convincing evidence to

prove all four prongs of the statutory best interests test. E.G. asserts the record

shows she successfully raised two other children and that D.L.J., Jr.'s wishes

were "all but ignored."     She contends there is no substantial and credible

evidence in the record to show she harmed D.L.J., Jr. She also contends the

Division "was manipulating the situation beginning when [D.L.J., Jr.] was

placed with [T.D.B.]"     She claims the Division's "actions throughout their

involvement indicate that adoption was their goal from the beginning." E.G's

arguments are without sufficient merit to warrant further discussion, beyond the

following comments. R. 2:11-3(e)(1)(E).

      Judge Miller's opinions reviewed the evidence in great detail. A summary

will suffice here. D.L.J., Jr. is an eleven-year-old boy who has been out of the

care of his mother since she refused to comply with the Division's requests that

she participate in services in 2016. 3 He was removed from E.G.'s custody after

he had missed 109 days of school and was tardy an additional ten days. He was

behind academically when he was removed. He had no bed and was smoking




3
  E.G. has a long history with the Division dating back to 2005. In 2006, she
pleaded guilty to abuse and neglect of a child,  N.J.S.A. 9:6-3.
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cigarettes that were allegedly "dipped in embalming fluid." D.L.J., Jr. has

resided with his paternal aunt and uncle since shortly after his initial removal.

      The Division presented unrebutted expert testimony of Dr. Alan Lee, a

forensic psychologist, who testified E.G. is cognitively limited and has

significant mental illness. E.G.'s full scale I.Q. is 53, placing her in the lowest

one percent. She reads at a fourth grade level. Her Global Assessment of

Functioning (GAF)4 was 32, reflecting a moderate to severe level of impairment.

      E.G.'s diagnostic impression included the following mental disorders:

Psychotic Disorder Not Otherwise Specified (NOS) (Provisional), Rule out

Schizophrenia, Rule Out Organic Mental Disorder, Rule Out Bipolar Disorder,

Impulse Control Disorder NOS, History of Substance Abuse (Collateral

History), Mild Mental Retardation (Provisional), Rule Out Borderline

Intellectual Functioning, Reading Disorder NOS, and Personality Disorder NOS

with Borderline Anti-Social Traits. E.G. has disturbed thinking and perception

of reality. Her prognosis is poor for lasting change.



4
   "The GAF score is on an objective scale of zero to one hundred, with ten
representing a homicidal or suicidal individual and one hundred representing
someone who is functioning normally." State v. J.T.,  455 N.J. Super. 176, 193
n.8 (App. Div. 2018). It is used by mental health clinicians and physicians to
rate the social, occupational, and psychological functioning of adults.


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      Dr. Lee concluded E.G. is not able to function as a minimally adequate

parent for D.L.J., Jr., based on her mental health issues, maladaptive personality

and character traits, and impairment of her cognitive and intellectual

functioning.

      Over a significant period, E.G. repeatedly failed to cooperate with the

Division's efforts to provide treatment and services.5 Her visitation with D.L.J.,

Jr. was sporadic.6 The Division's expert's unrebutted opinion was that E.G.

could not minimally parent D.L.J., Jr. now or in the foreseeable future, was

unable to provide a safe and stable home for D.L.J., Jr., and did not and cannot

nurture him. E.G.'s bond with D.L.J., Jr. was ambivalent and insecure. On the

other hand, there was a low risk of psychological or emotional harm if D.L.J.,

Jr.'s relationship with E.G. was severed.

      The Division's expert further opined D.L.J., Jr. has a positive and secure

bond with his resource parents who provide a positive, nurturing, and secure

home for him.      There is a significant risk D.L.J., Jr. will suffer severe




5
  E.G. repeatedly missed service appointments, including multiple substance
abuse evaluations and two psychological evaluations.
6
  E.G. had no visits with D.L.J., Jr. between June 2016 and January 2017. She
attended only four visits with D.L.J., Jr. between February 2017 and April 2017.
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psychological or emotional harm if his relationship with T.D.B. or R.B. is

severed.

      As to credibility, Judge Miller found E.G.'s testimony "to be unreliable

due to her unresolved mental health deficits." Her testimony was "confused,

evasive, and non-responsive to questions." She displayed poor recall. The

majority of her testimony "was completely at odds" with the testimony of the

Division's expert or caseworker and the documented record. The judge stated

"[s]he appeared 'off' to the untrained eye."

      Judge Miller found Dr. Lee's testimony to be unbiased and "convincing,

reliable and credible in regards to his psychological and bonding opinions." The

judge concluded "[h]is testimony was clear, precise, and corroborated by the

Division's case notes and records," and "was not impeached during cross-

examination." Judge Miller also found the testimony of caseworker Stephanie

Martinez credible.

      E.G. contends there is no substantial and credible evidence showing she

harmed D.L.J., Jr. As recognized by Judge Miller, harm is not limited to

physical abuse or neglect of children. Mental illnesses can be so serious and

debilitating that they render a parent "unable to adequately care for and raise the

children." N.J. Div. of Youth & Family Servs. v. A.G.,  344 N.J. Super. 418, 439


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(App. Div. 2001) (citing In re Guardianship of R.G. & F.,  155 N.J. Super. 186,

194 (App. Div. 1977)).

      Our review of Judge Miller's decision is limited and deferential. In re

Guardianship of J.N.H.,  172 N.J. 440, 472 (2002). We will not disturb a trial

judge's factual findings so long as they are supported by substantial credible

evidence. See N.J. Div. of Youth & Family Servs. v. R.G.,  217 N.J. 527, 552

(2014). We defer to the judge's evaluation of witness credibility, and to his

expertise in family court matters. Id. at 552-53. Because the record contains

substantial credible evidence to support Judge Miller's findings, there is no basis

for us to disturb his well-reasoned decision. While we do not doubt that E.G.

loves her son, she is not capable of caring for him by providing a safe and stable

home for him. D.L.J., Jr. needs, and is entitled to, the security of a permanent

home, with his resource parents, who wish to adopt him. D.L.J., Jr. wanted to

be adopted by them if he was unable to return to his mother.

      Affirmed.




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