DCPP VS. F.B., D.M., S.M., AND D.B., IN THE MATTER OF THE GUARDIANSHIP OF D.L.B., JR., T.M.B., AND M.A.B. (FG-04-0126-18, CAMDEN 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NOT FOR PUBLICATION WITHOUT THE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-5084-17T1
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
F.B.,
Defendant-Appellant,
and
D.M., S.M., and D.B.,
Defendants.
______________________________
IN THE MATTER OF THE
GUARDIANSHIP OF D.L.B., JR.,
T.M.B., and M.A.B.,
Minors.
_______________________________
Argued May 6, 2019 – Decided May 14, 2019
Before Judges Sabatino, Haas and Susswein.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Camden County,
Docket No. FG-04-0126-18.
Ryan T. Clark, Designated Counsel, argued the cause
for appellant (Joseph F. Krakora, Public Defender,
attorney; Ryan T. Clark, on the briefs).
Ashley L. Davidow, Deputy Attorney General, argued
the cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Melissa H. Raksa, Assistant
Attorney General, of counsel; Ashley L. Davidow, on
the brief).
Todd S. Wilson, Designated Counsel, argued the cause
for minor D.L.B., Jr. (Joseph E. Krakora, Public
Defender, Law Guardian, attorney; Todd S. Wilson, on
the brief).
Cory H. Cassar, Designated Counsel, argued the cause
for minor T.M.B. (Joseph E. Krakora, Public Defender,
Law Guardian, attorney; Cory H. Cassar, on the brief).
Margo E.K. Hirsch, Designated Counsel, argued the
cause for minor M.A.B. (Joseph E. Krakora, Public
Defender, Law Guardian, attorney; Margo E.K. Hirsch,
on the brief).
PER CURIAM
Defendant F.B. 1 appeals from the Family Part's June 21, 2018 judgment
of guardianship terminating her parental rights to her three children, D.L.B., Jr.
1
We refer to the adult parties by initials, and to the children by fictitious names,
to protect their privacy. R. 1:38-3(d)(12).
A-5084-17T1
2
(Donald), born in 2006, T.M.B. (Trevor), born in 2010, and M.A.B. (Mia), born
in 2012.2 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. The Law Guardian supports the termination on
appeal as it did before the trial court.
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. Accordingly, we affirm
substantially for the reasons set forth by Judge Francine I. Axelrad in her
thorough and thoughtful oral opinion rendered on June 21, 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 Axelrad's decision. We add only the following
comments.
We are satisfied that commencing with the Division's first contact with
defendant and her children in 2007, the Division provided multiple opportunities
for defendant to address her long-standing mental health issues. However,
2
The judgment also terminated the parental rights of Donald's father, D.B.;
Trevor's father, D.M.; and Mia's father, S.M. The children's fathers have not
filed appeals from that determination.
A-5084-17T1
3
despite the Division's intervention, defendant was unable to overcome the
deficiencies that rendered her unable to safely parent Donald, Trevor, and Mia.
Accordingly, the children have been in the Division's custody since March 2013,
except for an eight-month period between December 31, 2016 and August 3,
2017. The Division's goal is select home adoption 3 of all three children by the
same resource parents.
The Division presented uncontradicted expert testimony that clearly and
convincingly demonstrated that because of her mental illness, defendant could
not safely parent the children now or in the future. The Division's expert clinical
and forensic psychologist, Dr. Linda R. Jeffrey, diagnosed defendant with
schizoaffective disorder, severe and chronic adjustment disorder, and a
personality disorder reflecting paranoid features. Dr. Jeffrey found this mental
illness to be pervasive in nature and likely to adversely affect and decrease
defendant's parenting capacity.
Although defendant's condition could be treated to some degree with
medication, defendant was noncompliant with her treatment regimen and
continually relapsed into mental illness. Significantly, Dr. Jeffrey found that
3
Select home adoption refers to "a process that includes looking for an adoptive
home in New Jersey and registering the child[ren] on the national adoption
exchange." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 98 (2008).
A-5084-17T1
4
defendant's "inability to achieve sustained remission from serious features of
mental illness presents a significant risk of harm to her children. She is likely
to display poor parenting judgment, instability and a lack of personal insight and
attunement to her children's needs." Dr. Jeffrey concluded that defendant was
not prepared to provide a minimum level of safe parenting for the children.
Dr. Jeffrey conducted a bonding evaluation of defendant and Donald,
Trevor, and Mia, and found there was only an insecure attachment between
defendant and the children. Dr. Jeffrey explained that this insecure attachment
placed the children at risk of harm because it taught the children to associate
affection with insecurity and was not constructive for their social development.
Defendant did not testify at trial and did not offer any expert testimony
contradicting the opinions expressed by Dr. Jeffrey.
In her extensive opinion, Judge Axelrad reviewed the evidence presented
at the three-day trial, 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
children's best interests. In this appeal, our review of the trial judge's decision
is limited. We defer to her expertise as a Family Part judge, Cesare v. Cesare,
154 N.J. 394, 413 (1998), and we are bound by her factual findings so long as
A-5084-17T1
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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 Axelrad's factual
findings are fully supported by the record and, in light of those facts, her legal
conclusions are unassailable. We therefore affirm substantially for the rea sons
that the judge expressed in her well-reasoned opinion.
In so ruling, we reject defendant's contention that she should have been
given more time to demonstrate that she would now finally comply with taking
her medication. As Dr. Jeffrey explained in her uncontracted expert testimony,
medication compliance is one of the most serious problems in the treatment of
mental illnesses. Dr. Jeffrey found that, like many patients, defendant exhibited
a common cycle over the course of her interactions with the Division between
2007 and 2018. During that period, she would sometimes temporarily recover
from her mental illness, but become symptomatic again because she chose to
stop taking her medications.
This cycle resulted in defendant acting out in ways that were harmful to
herself and harmful to the children. For example, although defendant was
briefly reunited with the children beginning on December 31, 2016 after she
A-5084-17T1
6
resumed taking her medications, she abruptly stopped doing so sometime prior
to early August 2017. As a result, the Division had to again remove the children
from defendant's care after the police, who were responding to a report of
defendant yelling out of her window for several hours at a dog, found her in a
manic and agitated state. Defendant was thereafter hospitalized for
approximately sixty days.
Children are entitled to a permanent, safe and secure home. We
"acknowledg[e] the need for permanency of placements by placing limits on the
time for a birth parent to correct conditions in anticipation of reuniting with the
child." N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 111
(App. Div. 2004). As public policy increasingly focuses on a child's need for
permanency, "[t]he emphasis has shifted from protracted efforts for
reunification with a birth parent to an expeditious, permanent placement to
promote the child's well-being." Ibid. (citing N.J.S.A. 30:4C-11.1). That is
because "[a] child cannot be held prisoner of the rights of others, even those of
his or her parents. Children have their own rights, including the right to a
permanent, safe and stable placement." Ibid.The question then is "whether the parent can become fit in time to meet
the needs of the children." N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J.
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Super. 235, 263 (App. Div. 2005); see also N.J. Div. of Youth & Family Servs.
v. P.P., 180 N.J. 494, 512 (2004) (indicating that even if a parent is trying to
change, a child cannot wait indefinitely).
After carefully considering the expert testimony of Dr. Jeffrey, Judge
Axelrad reasonably determined that defendant was still unable to parent the
three children, and would not be able to do so for the foreseeable future. Under
those circumstances, we agree with the judge that any further delay of permanent
placement would not be in the best interests of the children.
We also reject defendant's contention that the Division violated the
Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 to 12213, by failing
to provide her with services that accommodated and were tailored to her
disabilities. Defendant did not raise this argument before the trial court and it
does not involve jurisdictional or public interest concerns. See Nieder v. Royal
Indem. Ins. Co., 62 N.J. 229, 234 (1973) (citing Reynolds Offset Co., Inc. v.
Summer, 58 N.J. Super. 542, 548 (App. Div. 1959)). Moreover, it is well
established that "the ADA does not provide a defense to a termination of parental
rights proceeding" because to do so "would improperly elevate the rights of the
parent above those of the child." N.J. Div. of Youth & Family Servs. v. A.G.,
344 N.J. Super. 418, 442 (App. Div. 2001). Finally, similar to the circumstances
A-5084-17T1
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in A.G., the Division here provided defendant with services to address the
problems engendered by her mental illness. As was the case in A.G., "those
efforts did not bear fruit." Ibid.All other points raised on appeal by defendant lack sufficient merit to
warrant further discussion. R. 2:11-3(e)(1)(E).
Affirmed.
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