NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. M.S.

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                                NOT FOR PUBLICATION WITHOUT THE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-4598-17T3

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

          Plaintiff-Respondent,

v.

M.S.,

     Defendant-Appellant.
______________________________

IN THE MATTER OF THE
GUARDIANSHIP OF J.S.-M.,

     a Minor.
______________________________

                    Submitted January 22, 2019 – Decided January 28, 2019

                    Before Judges Haas, Sumners, and Mitterhoff.

                    On appeal from Superior Court of New Jersey,
                    Chancery Division, Family Part, Monmouth County,
                    Docket No. FG-13-0090-16.
             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; Joshua P. Bohn, Deputy Attorney
             General, on the brief).

             Joseph E. Krakora, Public Defender, Law Guardian,
             attorney for minor (Nancy P. Fratz, Assistant Deputy
             Public Defender, on the brief).

PER CURIAM

      Defendant M.S.1 appeals from the Family Part's May 24, 2018 judgment

of guardianship terminating her parental rights to her daughter, J.S.-M. (Judy),

born in January 2015. Defendant contends that the Division of Child Protection

and Permanency (Division) failed to prove each prong of  N.J.S.A. 30:4C-15.1(a)

by clear and convincing evidence. Defendant also argues that the trial court

incorrectly considered her previous history with the Division in rendering its

decision.2 The Law Guardian supports the termination on appeal as it did before

the trial court.


1
  We refer to defendant by initials, and to the child by a fictitious name, to
protect their privacy. R. 1:38-3(d)(12).
2
  Defendant previously executed identified surrenders of her parental rights to
three other children, and her parental rights to a fourth child were terminated a
few months after Judy was born in 2015.
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      Based on our review of the record and applicable law, we are satisfied that

the evidence in favor of the guardianship petition overwhelmingly supports the

decision to terminate defendant's parental rights, and that the court properly

considered the records introduced in evidence at the trial. Accordingly, we

affirm substantially for the reasons set forth in Judge Terence P. Flynn's

thorough oral decision rendered on May 24, 2018.

      We will not recite in detail the history of the Division's involvement with

defendant. Instead, we incorporate by reference the factual findings and legal

conclusions contained in Judge Flynn's thoughtful decision.         We add the

following comments.

      We are satisfied that commencing with the Division's first contact in this

case with defendant shortly after Judy's birth in January 2015, the Division

provided multiple opportunities for defendant to reunify with her daughter and

address her long-standing mental health issues.         Despite the Division's

intervention, defendant was unable to overcome the deficiencies that rendered

her unable to safely parent Judy. In February 2015, and with court approval,

the Division placed the child with resource parents, who wish to adopt her.

      The Division presented uncontradicted expert testimony that clearly

demonstrated that because of her mental illness, defendant was unable to safely


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parent Judy now or in the future. The Division's expert psychiatrist, Alexander

Iofin, M.D., diagnosed defendant with bipolar disorder unspecified, and

untreatable permanent cognitive limitations, together with three additional, and

untreatable, maladaptive personality traits. As a result, Dr. Iofin opined that

defendant could not serve as an independent caretaker for Judy.

       David Brandwein, Psy.D., an expert psychologist, testified that defendant

was not competent to understand the termination proceeding in which she was

involved and, therefore, the trial court appointed a guardian ad litem to assist

her.   Dr. Brandwein further stated that defendant's condition could not be

improved over time.

       The Division also presented the testimony of Alan Lee, Psy.D., an expert

psychologist.   Dr. Lee opined that defendant's intellectual deficits, bipolar

disorder, and difficulties with clear and accurate thinking made her unable to

provide safe and consistent parenting to Judy.

       Dr. Lee conducted a bonding evaluation of defendant and Judy, and

concluded that any bond between them was disorganized and insecure. Thus,

Dr. Lee stated that there was little risk that Judy would suffer severe and

enduring harm if her relationship with defendant was terminated.

       On the other hand, Dr. Lee found that Judy had a significant and positive


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bond with both of her resource parents. Dr. Lee opined that severing those bonds

would traumatize the child.

      Defendant testified at trial, but did not call any experts to rebut the

testimony presented by Dr. Iofin, Dr. Brandwein, and Dr. Lee.

      In his opinion, Judge Flynn reviewed the evidence presented and

concluded that (1) the Division had proven all four prongs of the best interests

test by clear and convincing evidence,  N.J.S.A. 30:4C-15.1(a) and (2)

termination of defendant's parental rights was in the child's best interests. In

this appeal, our review of the trial judge's decision is limited. We defer to his

expertise as a Family Part judge, Cesare v. Cesare,  154 N.J. 394, 413 (1998),

and we are bound by his factual findings so long as they are supported by

sufficient credible evidence. N.J. Div. of Youth & Family Servs. v. M.M.,  189 N.J. 261, 279 (2007) (citing In re Guardianship of J.T.,  269 N.J. Super. 172, 188

(App. Div. 1993)).

      After reviewing the record, we conclude that Judge Flynn's factual

findings are fully supported by the record and, in light of those facts, his legal

conclusions are unassailable. We therefore affirm substantially for the reaso ns

that the judge expressed in his well-reasoned, comprehensive opinion.




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      In so ruling, we reject defendant's argument that the Division's records

concerning defendant's prior children should not have been considered by the

judge. As amply demonstrated in Judge Flynn's meticulous opinion, defendant's

parental rights in this case were terminated based upon the specific facts

pertaining to Judy, including the evaluations made by the experts concerning

defendant's present condition and its adverse impact on her ability to care for

the child.

      In any event, it is well established that a risk of harm to a child may be

shown "not only from [a parent's] past treatment of the child in question but also

from the quality of care given to other children in [his or her] custody." N.J.

Div. of Youth & Family Servs. v. I.H.C.,  415 N.J. Super. 551, 573-74 (App. Div.

2010) (quoting J. v. M.,  157 N.J. Super. 478, 493 (App. Div. 1978)). Here, the

Division properly presented records concerning defendant's prior interactions

with it in connection with her four older children because this evidence was

highly relevant on the question of whether defendant's parenting deficiencies

were capable of amelioration.

      Affirmed.




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