DCPP VS. S.S.-H., IN THE MATTER OF THE GUARDIANSHIP OF A.S. AND AM.S. (FG-09-0162-16, HUDSON COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2019 )

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NOT FOR PUBLICATION WITHOUT THE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-2297-17T1
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
S.S.-H.,
Defendant-Appellant.
__________________________
IN THE MATTER OF THE
GUARDIANSHIP OF A.S.
and AM.S.,
Minors.
__________________________
Submitted January 29, 2019 – Decided February 20, 2019
Before Judges Yannotti, Rothstadt and Gilson.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Hudson County,
Docket No. FG-09-0162-16.
Joseph E. Krakora, Public Defender, attorney for
appellant (Carol A. Weil, Designated Counsel, on the
briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Jason W. Rockwell, Assistant Attorney
General, of counsel; Ellen L. Buckwalter, Deputy
Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minors (Nancy P. Fratz, Assistant Deputy
Public Defender, on the brief).
PER CURIAM
Defendant S.S-H. appeals from the Family Part's January 5, 2018
guardianship judgment and order terminating her parental rights to AM.S. (Anne
Marie) and A.S. (Amy),1 who were nine and seven years old respectively at the
time of the guardianship trial. Defendant contends that plaintiff, the Division of
Child Protection and Permanency (Division), failed to prove by clear and
convincing evidence the third and fourth prongs of the statutory best interests of
the child test, N.J.S.A. 30:4C-15.1(a)(3) and (4). She asserts that the Division
did not "appropriately consider[]" "alternatives to termination and adoption,"
especially placement with relatives as required by N.J.S.A. 9:6B-4(b), and the
1
To protect privacy interests and for ease of reading, we use initials and
fictitious names for the parents and children. R. 1:38-3(d)(12).
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Division failed to provide her with "trauma focused therapy [as] recommended
by [its] own expert," and "failed to prove that termination of parental rights
would not do more harm than good." We find no merit to defendant's arguments
and affirm substantially for the reasons stated by Judge Anthony V. D'Elia in
his comprehensive oral decision placed on the record on January 5, 2018, as
supplemented by his August 28, 2018 written decision issued after our earlier
remand.2
Defendant is the biological mother of Anne Marie and Amy. 3 Although
the Division provided paternity testing, the identity of the children's father was
never established.
The Division first became involved with defendant in 2005 due to
unfounded reports that her drug use and mental instability were endangering her
2
After the appeal was filed, we granted the Law Guardian's motion for a limited
remand to supplement the record, directing the trial judge to address whether
plaintiff proved that it considered alternatives to termination of parental rights
(TPR) as required under N.J.S.A. 30:4C-15.1(a)(3). We consider defendant's
appeal to include the judge's August 24, 2018 and August 28, 2018 orders
addressing that issue after remand.
3
Defendant also has two older children who are not subjects of the present
appeal and who reside with their father, J.H. (Jack). Jack is defendant's former
husband and is not a party in this case.
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older children.4 The Division became involved with Anne Marie in 2010, when
it received a report from defendant's mother on April 14, 2010, alleging that
defendant behaved erratically, abused drugs on a daily basis, was bipolar, and
did not take medication for her condition. It became involved with Amy when
at her birth, she tested positive for cocaine and defendant admitted using that
drug two months earlier while pregnant.
Defendant has long-standing problems with drug addiction and mental
health issues that have led to her involvement in domestic violence, violent and
criminal behaviors, incarcerations, multiple psychiatric hospitalizations, and an
inability to maintain safe and stable housing or otherwise provide for her two
young children. During the course of multiple child welfare litigations, the
Division on its own and in accordance with court orders offered numerous
services to defendant to address her issues. Defendant, however, rarely
complied or successfully completed any programs to treat her addiction or her
mental health issues in order to maintain care and custody of her children. As a
result, since Amy's birth, the children have spent limited time in their mother's
care and, instead, were subjected to years of multiple out-of-home placements.
4
In 2008, it closed defendant's case after the physical custody of her two oldest
children was transferred to their father Jack.
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They are now in the physical custody of a resource family who wishes to adopt
them.
In its attempt to provide services to defendant, the Division arranged for
numerous psychological, psychiatric, and bonding evaluations of defendant and
the children. Dr. Robert Kanen, a psychologist, conducted multiple evaluations
and testified for the Division about his findings at trial. It was his opinion that
defendant suffered from substance abuse issues and a history of bipolar disorder
that impaired her ability to care for her children and to provide them with a safe
and secure home. Kanen's reports indicated that at times during the litigation,
defendant was making some progress in addressing her issues. However,
Kanen's reports continually stated that defendant remained at risk of relapse,
was experiencing severe psychiatric problems, and could not provide the
children with a safe, stable, or secure home. Nevertheless, in the months just
before trial, Kanen withheld a recommendation of TPR and instead suggested
defendant engage in more services.
In his final report, and despite the Division offering the recommended
services, Kanen concluded that defendant could not provide the children with a
permanent, safe, and secure home because her problems were chronic in nature.
At that time, Kanen found that the earlier improvements defendant displayed
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during her preceding evaluation had diminished and that her cognitive abilities
had deteriorated. He noted that defendant was hostile, uncooperative, and
unable to regulate her emotions. He also stated that defendant reported to him
that she had tested positive for cocaine and marijuana and expressed a desire to
resume her use of PCP. Kanen concluded that the reunification of defendant
with the children would expose them to an unnecessary risk of harm.
Dr. Charles E. Daly, another psychologist, also performed evaluations and
testified for the Division at trial. He, too, issued a report early on that was
somewhat optimistic about defendant's progress. Daly was primarily concerned
about defendant's mental health and addiction to drugs. Based on personality
testing, he found defendant demonstrated signs of anxiety, depression, paranoia,
and mania. She also displayed symptoms of schizophrenia, borderline
personality disorder, antisocial behavior, and suicidal ideation. He concluded
that defendant could not safely parent the children in a productive environment .
According to the doctor, defendant's prognosis was "very poor" regarding her
ability to parent the children due to her drug use and mental health problems .
He believed that defendant's ability to change and improve given her history and
assessments was "slim to none."
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In one of his reports, Daly stated that defendant was in need of "trauma
focused therapy," which meant that a person with defendant's experiences
should receive psychotherapy that included trauma therapy, but defendant did
not need "trauma focused therapy" to achieve stability. He confirmed that he
had not seen records from defendant's therapists that reflected their attempts to
address defendant's trauma and her refusal to discuss the issue. In any event, he
stated that the therapy the Division referred defendant to over the years was
"perfectly fine," and while the therapy that defendant needed was available to
her, she did not benefit from the services.
Dr. Larry E. Dumont, a psychiatrist, also conducted multiple evaluations
of defendant and testified for the Division as to his findings. He recommended
that the Division move towards TPR and adoption. Dumont confirmed that
defendant suffered from bipolar disorder. The doctor found that defendant
displayed a lack of ownership of her mental health issues and blamed others f or
her problems. He observed that she specifically blamed the Division for her
shortcomings when her inability to complete treatment was due to her non -
compliance with the recommended therapies for bipolar disorder. Dumont
explained that if defendant experienced a drug relapse, she would not be able to
safely parent the children.
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Kanen also conducted bonding evaluations between the girls and their
resource parents and with defendant. He observed that at that time, because the
children had only been briefly involved with the resource parents, it was too
soon to determine if they had developed a secure attachment. He noted that
Anne Marie referred to her resource parents as her mother and father. The
children were comfortable and interactive with the resource father and while the
children were less interactive with their resource mother, she was more
structured and involved with teaching the children. He observed that the
resource mother was knowledgeable about learning problems and well-
educated. Kanen had no concerns about the resource parents' abilities to meet
the needs of the children. He concluded that the children were in the process of
forming an attachment and seemed desperate to want the resource parent to be
their parents.
Kanen also noted that for their part, the resource parents wanted to adopt
the children. The resource parents could provide the children with stability and
permanency. According to Kanen, the children needed a permanent home and
the resource parents could meet their needs. If the children were removed from
the resource parents, it would affect them negatively and impact their sense of
permanency.
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As to their bonds with defendant, Kanen observed that during the
evaluation, defendant was initially calm but withdrawn from the children,
although she eventually became irritable. Kanen found that the children had an
insecure attachment to her and that she was not capable of providing the children
with a permanent, safe, or secure home. He concluded that while the children
were comfortable with defendant, their bond remained insecure. Also, if the
children were permanently separated from defendant, they would have a brief
separation reaction, but the resource parents could help mitigate any harm.
Daly also performed a bonding evaluation between defendant and the
girls. Daly observed that neither child initiated affection with defendant and
that defendant became irrationally angry with one of the girls for asking to use
the bathroom. Daly concluded that the children needed stability, love, and
predictability and that it would be "unprofessional and irresponsible" for him to
recommend reunification of the children with defendant because it would be
"irresponsible and dangerous."
Defendant's expert, Andrew P. Brown, III, a psychologist, also performed
a bonding evaluation between defendant and her children and testified for
defendant. He believed that the children showed an emotional attachment to
defendant because they were happy to see her and stayed in close proximity to
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her. Moreover, they played with her and showed her affection. When defendant
left the room, the children wanted to still be with defendant, which indicated to
Brown that there was an emotional attachment. Overall, he believed that if the
parental relationship were terminated, that the children would suffer severe harm
including potential social, emotional, personality, behavioral, and mental health
problems. He did not support TPR because of the harm that would befall the
children. However, Brown could not state that defendant should be reunited
with the children. He suggested that defendant continue to visit with the
children until they reach adulthood, but at the same time, he did not reject the
notion that the children should be placed in a permanent and stable home .
Brown did not perform a bonding evaluation between the girls and their
resource parents. However, he explained that a relationship with a natural parent
cannot be replaced and that a child's connection with a natural parent is "deeper."
At the ensuing guardianship trial, in addition to Drs. Kanen, Daly, and
Dumont, the children's resource mother and the Division's Family Services
Specialist, Jasmine Soto, testified. Soto described the Division's involvement
with the family over the years and identified the numerous services offered to
defendant in an effort to enable her to safely parent her children. She also
testified as to how the Division explored alternative placements with multiple
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family members, including defendant's mother and friends of the family that
included Jack's parents, prior to seeking TPR. Defendant did not testify, but
called Brown as her only witness.
After considering the testimony and other evidence adduced at the trial,
Judge D'Elia found that the Division had proven all four prongs of the best
interests test, N.J.S.A. 30:4C-15.1(a), by clear and convincing evidence and that
TPR was in the children's best interests. In his January 5, 2018 oral decision,
the judge reviewed the applicable case law and explained that while substance
abuse or mental health issues alone do not require TPR, defendant's inability to
address and overcome her issues prevented her from providing the children with
a safe and stable home. The judge delineated the numerous placements
throughout the years that the children experienced and he rejected Brown's
suggestion that the children's placements be continued to adulthood because
they needed and were entitled to permanency in their lives now.
Addressing the third prong of the best interests test, the judge considered
defendant's contention that she was never offered the recommended "trauma
focused therapy." He observed that there was no proof that during her years of
being offered therapy, that type of treatment was not included. To the contrary,
the judge found that the issue of her trauma had been raised with defendant and
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rejected by her. Quoting from notes from one of defendant's therapists, the judge
found that her treatment included addressing "her past trauma and assess[ing]
parenting skills," but that defendant expressed to the therapist that she did "not
wish to . . . talk about it." The judge also cited to additional instances where
"[d]efendant has been dismissive of her trauma history." Moreover, he found
that even if it was not offered, based on defendant's history of noncompliance
and terminating her participation in services, there was no likelihood the specific
therapy would have enabled her to care for her children.
Turning to the fourth prong, the judge explained why he found Brown's
opinion incredible and concluded that TPR would not do more harm than good.
He found that based on the Division's experts' opinions, "the children's best
interests [were] served by completely terminating the children's relationship
with . . . [d]efendant[] now [as] they can't be . . . reunified . . . with [d]efendant
now or any time in the foreseeable future."
After our remand, the judge issued a written decision explaining why he
found that the Division proved the third prong's requirement that the Division
explore alternatives to termination. He stated that based upon the caseworker's
and resource parents' uncontroverted testimonies, the Division explained and
explored the possibility of Kinship Legal Guardianship (KLG) with the resource
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parents under N.J.S.A. 3B:12A-1 to -7, and he was satisfied that the parents
understood what KLG meant and that they made an informed decision in favor
of adoption.
On appeal, our review of the trial judge's decision is limited. Cesare v.
Cesare, 154 N.J. 394, 411 (1998). We defer to the Family Part's expertise, id.
at 412, and afford "great deference . . . to the Family Part's findings of fact and
conclusions of law based on those findings." N.J. Div. of Child Prot. and
Permanency v. A.S.K., __ N.J. Super. __, __ (App. Div. 2017) (slip op. at 23),
aff'd o.b., __ N.J. __ (2019). "We will not disturb the family court's decision to
terminate parental rights when there is substantial credible evidence in the
record to support the court's findings." Id. at __ (slip op. at 37) (quoting N.J.
Div. Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)).
After reviewing the record, we conclude that Judge D'Elia's factual
findings are fully supported by the record and, in light of those facts, his legal
conclusions as to the best interests of the child test are unassailable. We find
defendant's arguments to the contrary to be without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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