NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. Y.O.-E and R.E

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                                NOT FOR PUBLICATION WITHOUT THE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-1658-19T2

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

          Plaintiff-Respondent,

v.

Y.O.-E.,

          Defendant-Appellant,

and

R.E.,

     Defendant.
__________________________

IN THE MATTER OF THE
GUARDIANSHIP OF JC.E.,
a minor.
__________________________

                   Argued November 18, 2020 – Decided December 16, 2020

                   Before Judges Whipple, Rose, and Firko.
            On appeal from the Superior Court of New Jersey,
            Chancery Division, Family Part, Union County, Docket
            No. FG-20-0013-19.

            Clara S. Licata, Designated Counsel, argued the cause
            for appellant (Joseph E. Krakora, Public Defender,
            attorney; Clara S. Licata, on the briefs).

            Julie B. Colonna, Deputy Attorney General, argued the
            cause for respondent (Gurbir S. Grewal, Attorney
            General, attorney; Jane C. Schuster, Assistant Attorney
            General, of counsel; Julie B. Colonna, on the brief).

            Louise M. Cho, Assistant Deputy Public Defender,
            argued the cause for minor (Joseph E. Krakora, Public
            Defender, Law Guardian, attorney; Meredith Alexis
            Pollock, Deputy Public Defender, of counsel; Louise
            M. Cho, of counsel and on the brief).

PER CURIAM

      Defendant Y.O.-E. (Yolanda) appeals from a December 16, 2019

judgment of guardianship terminating her parental rights to her biological child,

JC.E. (Jonathan).1

      On appeal, defendant argues the trial court erred in finding the Division

of Child Protection and Permanency (Division) had met its burden by clear and

convincing evidence for each Title-30 prong. Defendant asserts the Division



1
  For the sake of anonymity and ease of reference, we utilize the pseudonyms
from defendant's brief to protect the parties and the child. See R. 1:38-3(d)(13).


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neglected its duties to her while she herself was in Division custody.

Additionally, defendant contends that the Division should have provided further

support for her during her time trying to improve her situation so she could

parent Jonathan.

      Defendant raises the following issues on appeal:

            POINT I.
            NO DEFERENCE IS OWED TO TRIAL COURT
            LEGAL CONCLUSIONS OR FACT FINDINGS
            UNSUPPORTED BY EVIDENCE THAT IS
            SUBSTANTIAL AND CREDIBLE AND THAT IS
            ALSO CLEAR AND CONVINCING.

            POINT II.
            [DIVISION]'S FAILURE TO ASSIST [YOLANDA]
            IN BECOMING DOCUMENTED WHILE AN
            UNDOCUMENTED CHILD IN [DIVISION]'S
            CUSTODY IN THE 1990'S AND EARLY 2000'S,
            WHICH LED TO INSTABILITY IN HER MENTAL
            HEALTH TREATMENT, EMPLOYMENT, AND
            RESIDENCE, SHOULD BAR [DIVISION] AND A
            COURT      FROM    RELYING    ON    SUCH
            CIRCUMSTANCES      TO   TERMINATE    HER
            PARENTAL RIGHTS TO [JONATHAN]. (Not Raised
            Below).

            POINT III.
            [DIVISION]   DID    NOT   PROVE   THAT
            [JONATHAN]'S SAFETY HAS BEEN OR WILL BE
            ENDANGERED       BY   CONTINUING    THE
            PARENTAL RELATIONSHIP WHEN THERE WAS
            NO PROOF THAT [JONATHAN] HAS BEEN
            HARMED OR EXPOSED TO RISK OF HARM IN


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THE THREE MONTHS HE WAS IN [YOLANDA]'S
CARE.

POINT IV.
[DIVISION] DID NOT PROVE BY CLEAR AND
CONVINCING EVIDENCE THAT [YOLANDA]
WAS UNABLE OR UNWILLING TO ELIMINATE
THE ALLEGED RISK OF HARM TO [JONATHAN],
OR THAT THE DELAY IN PERMANENT
PLACEMENT WOULD ADD TO THE HARM WHEN
[YOLANDA]'S EFFORTS TO WORK, AND TO
ATTEND        THERAPY,       MEDICATION
MANAGEMENT      AND   VISITATION   WERE
THWARTED BY TRANSPORTATION AND
SCHEDULING CONFLICTS [DIVISION] REFUSED
TO ADDRESS AND WHEN HER IMMIGRATION
STATUS MADE IT DIFFICULT TO PAY FOR
SERVICES.

POINT V.
[DIVISION] DID NOT PROVE THAT IT MADE
REASONABLE EFFORTS TO PROVIDE SERVICES
TO REMEDIATE THE CONDITIONS THAT LED TO
[JONATHAN]'S REMOVAL FROM [YOLANDA]'S
HOME WHEN IT FAILED TO ASSIST HER WITH
THE FINANCIAL, TRANSPORTATION, AND
SCHEDULING PROBLEMS THAT INTERFERED
WITH     CONSISTENT   ATTENDANCE     AT
THERAPY.

POINT VI.
EXPERT     OPINION    THAT   SEVERING
[JONATHAN]'S BOND WITH HIS FOSTER
PARENTS     WOULD     CAUSE   SERIOUS
PSYCHOLOGICAL AND EMOTIONAL HARM AND
THAT HE HAS A NEED FOR PERMANENCY IS
INSUFFICIENT WHEN [YOLANDA] HAS NEVER
HAD THE ABILITY TO TIMELY COMPLY WITH

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                   4
            [DIVISION]'S REQUIREMENTS AND WHEN
            [DIVISION] AND THE COURT HAVE USED HER
            IMMIGRATION STATUS AGAINST HER.

      Having carefully reviewed the record, we affirm primarily for the reasons

expressed in the thorough written opinion of Judge Marc R. Brown issued with

the judgment, wherein he found the Division had established by clear and

convincing evidence all four prongs of the best-interests test,  N.J.S.A. 30:4C-

15.1(a), which, in the best interest of the child, permits termination of parental

rights. In re Guardianship of K.H.O.,  161 N.J. 337, 347-48 (1999).

      Our review of the judge's decision is limited. We defer to his expertise as

a Family Part judge, Cesare v. Cesare,  154 N.J. 394, 411-13 (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)).

      Defendant came to this country at a young age as an undocumented

immigrant, was abused by her extended and immediate family, and was

ultimately placed in Division custody. Defendant suffers from severe mental

illness and has struggled to maintain employment, housing and treatment.

Defendant contends that because the Division failed to assist her in achieving


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documented immigration status while she was in its custody, she has been

continuously unable to secure housing, and she was recently held in an

Immigration and Customs Enforcement (ICE) detention facility.         Defendant

asserts the Division's failure to seek documented status precluded her from using

the "social safety net" to seek medical and financial assistance. Moreover, the

Division's failure to seek documented status for her, resulting in her being in

ICE custody, further removed her from Jonathan's life.

      Our review of the record reveals a more complicated picture, which

includes defendant's history of substance abuse, criminal behavior and

domestically violent relationships and includes the fact that defendant no longer

has custody of her five other children. After a thirteen-day guardianship trial

was held with three expert witnesses, two Division employees, and defendant's

immigration attorney, the court found defendant's mental health issues

permeated her life to the point that she was not a fit parent. She was not

compliant with therapy or pharmacological treatment. Defendant had not shown

she could be self-sufficient, was prone to returning to abusive relationships,

struggled to manage her mental health and sacrificed the opportunity to see

Jonathan because of criminal activity, immigration detention and psychological

episodes.


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      Focusing on the third and fourth prongs, the court found that the Division

had made reasonable efforts to provide care, and Jonathan was in the best

alternative placement possible — with resource parents who wanted to adopt

him. Accordingly, the judge held that even though evidence was presented from

both sides, Jonathan saw his resource parents as his psychological parents; he

would not suffer harm from terminating defendant's rights to him, but rather, he

would suffer harm from terminating his relationship with his resource parents.

This appeal followed.

      With leave granted to supplement the record, defendant has added for our

consideration that she has been released from ICE detention, now has

authorization to work, and can more readily access the help she needs through

government assistance. She is also currently living in an apartment.          This

development certainly evidences a commendable change in circumstance, and

defendant contends that such a shift militates against the trial court's foundation

for terminating her rights. We disagree.

      While the court understandably had to discuss, and consider, the issues

that may arise from defendant being in ICE detention, unable to access

employment, housing and medical assistance, we do not consider this change of

circumstances determinative. The trial judge was careful to discuss defendant's


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problematic conditions before detention and regardless of detention.         As

unfortunate and troubling as defendant's life experience has been, it is not in

Jonathan's best interest to delay permanency while his mother's condition

remains fluid.

      Affirmed.




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