NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. T.T and E.P. and R.H

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                                NOT FOR PUBLICATION WITHOUT THE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-3408-19

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

          Plaintiff-Respondent,

v.

T.T.,

          Defendant-Appellant,

and

E.P. and R.H.,

     Defendants.
________________________

IN THE MATTER OF THE
GUARDIANSHIP OF D.P.,
M.P., and D.T., minors.
________________________

                   Submitted February 3, 2021 – Decided March 1, 2021

                   Before Judges Whipple, Rose, and Firko.
            On appeal from the Superior Court of New Jersey,
            Chancery Division, Family Part, Salem County, Docket
            No. FG-17-0018-19.

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

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

            Joseph E. Krakora, Public Defender, Law Guardian,
            attorney for minors (Meredith A. Pollock, Deputy
            Public Defender, of counsel; Noel C. Devlin, Assistant
            Deputy Public Defender, of counsel and on the brief).

PER CURIAM

      Defendant, T.T. (Terry), 1 mother of D.P. (Dylan), M.P. (Melissa), and

D.T. (Drew), appeals from an April 17, 2020 judgment of guardianship

terminating her parental rights for her three children. 2

      Dylan was born in 2011. Melissa was born in 2013 to the same father.

Shortly after Melissa was born, the Division of Child Protection and



1
  We refer to adult parties and to children by fictitious names to protect their
privacy; in doing so, we mean no disrespect. R. 1:38-3(d)(12).
2
  Terry had previously surrendered her parental rights to a daughter who is now
an adult.
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Permanency (Division) received a referral regarding Terry after a neighbor had

spotted her acting erratically outside of her apartment, writing on a mattress near

a dumpster. The neighbor believed there was an infant alone in the apartment.

The Division investigated and was able to confirm that Terry left Dylan and

Melissa alone in the apartment while she was outside. Terry claimed to have

recently broken up with Dylan and Melissa's father, and reported she was in a

relationship with a country music star.       The inside of the apartment was

unsuitable for raising two young children, so the Division effected an emergency

removal3 and placed Dylan and Melissa into resource homes.

      The Division arranged for Terry to receive psychiatric care in order to

reunify her with her children.      She was diagnosed with major depressive

disorder, schizophrenia, and schizoaffective disorder, as well as persistent

delusions and hallucinations. For a period after the removal, defendant failed to

maintain her prescribed medication regiment, with her condition deteriorating

to the point of near homelessness. Eventually, however, defendant started to

respond positively to a course of treatment she could maintain and was reunited

with Dylan and Melissa in September 2016, a few months after having another



3
 An emergency, or "Dodd," removal refers to the emergency removal of a child
without a court order, pursuant to the Dodd Act,  N.J.S.A. 9:6-8.21 to -8.82.
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child, Drew.     The Division closed its file on Terry, with her living in an

apartment with her three children and continuing community health treatment in

place.

         However, by March 2018, after Terry failed to pick up Melissa from her

bus stop, the Division dispatched investigators to her apartment, and again, the

Division found the premises unsuited to raising three young children. The

Division performed an emergency removal and placed the children in separate

resource homes. At the time of the trial, all three siblings were still placed in

separate resource homes.

         Dylan was placed with a resource mother, her husband, and children.

Melissa, too, was placed with a resource mother and father and their children.

Drew was placed with a couple, their biological son, and three-year-old twins

previously placed by the Division. All three families communicate and have

maintained arrangements for Drew, Melissa, and Dylan to visit with each other.

All three children and the resource parents underwent bonding evaluations, as

did Terry. Those evaluations were considered by the court at trial.




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      After a nine-day trial4 held between December 2019 and April 2020, Judge

Mary K. White terminated Terry's parental rights as to Dylan, Melissa, and

Drew. Judge White found that despite the Division's efforts, Terry's inability to

control her mental health struggles satisfied each of the four prongs of the best

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

      Judge White found that the health, safety, and development of the children

were and would continue to be in danger if the parental relationship were

maintained, highlighting Terry's refusal to consistently take her medication and

seek treatment for her mental health issues. This compromised Terry's ability

to parent effectively, since "[a] child's safety depends on [his or her] parent's

ability to take medication and react appropriately while on medication." Judge

White classified this as a volitional act, in that Terry at some point made a

conscious decision to cease taking the prescriptions that allowed her to manage

her mental illness.




4
   Due to the restrictions as a result of Covid-19, the court was operating under
the Supreme Court's March 27, 2020, Omnibus Order, which implemented
emergency modification to court operations, including transition to video
proceedings to minimize in-person contact. Thus, subsequent to the in-person
trial where all testimony was in person, the judge delivered her decision via
ZOOM videoconferencing with the parties.
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      Judge White reasoned that even without the act of not taking her

medication, Terry had demonstrated enough reckless behavior to pose a risk to

her children's safety, health, and development. Finally, Judge White found that

the act of living with a parent struggling with a severe case of mental illness

constituted harm.

      Terry's mental illness did not constitute a per se prong one finding.

Rather, the trial court carefully considered the effect Terry's mental illness had

on her children and found that her incoherent and erratic behavior, inability to

maintain a clean and safe home, inability or unwillingness to maintain her

medication, and repeated instances constituted a risk that the children's safety,

health, or development would be harmed by a continuance of the parental

relationship. This appeal followed.

      Terry raises the following issues on appeal:

            I. THERE WAS INSUFFICIENT EVIDENCE IN THE
            RECORD TO SUPPORT THE TRIAL COURT'S
            CONCLUSION THAT [TERRY] EITHER HARMED
            HER CHILDREN OR POSED A RISK OF HARM TO
            THEM SUFFICIENT TO SATISFY PRONG ONE OF
            N.J.S.A.  30:4C-15.1[(a)]  AND   JUSTIFY
            TERMINATION OF HER PARENTAL RIGHTS.

            II. THERE WAS INSUFFICIENT EVIDENCE IN THE
            RECORD TO SUPPORT A FINDING THAT
            [TERRY] WAS UNABLE OR UNWILLING TO
            ELIMINATE HARM TO HER CHILDREN.

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            III. THERE WAS INSUFFICIENT EVIDENCE IN
            THE RECORD TO SUPPORT THE LEGAL
            CONCLUSION THAT [THE DIVISION] PROVIDED
            SUFFICIENT    SERVICES    TO    SUPPORT
            REUNIFICATION AND MADE REASONABLE
            EFFORTS TO REUNIFY THIS FAMILY.

            IV. THERE WAS INSUFFICIENT EVIDENCE IN
            THE RECORD TO SUPPORT THE LEGAL
            CONCLUSION   THAT    TERMINATION       OF
            PARENTAL RIGHTS WOULD NOT DO MORE
            HARM THAN GOOD TO D.P., M.P., AND D.T.

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

her expertise as a Family Part judge, Cesare v. Cesare,  154 N.J. 394, 411-13

(1998), and we are bound by her 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)). We conclude the factual findings of Judge White are

fully supported by the record and the legal conclusions drawn therefrom are

unassailable.   Judge White gave thoughtful attention to the importance of

permanency and stability from the perspective of all three children 's needs, and

she 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




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interest of the child, permits termination of parental rights. In re Guardianship

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

      Affirmed.




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