DCPP VS. L.J. IN THE MATTER OF THE GUARDIANSHIP OF T.J. and O.P. (FG- 09-0107-20, HUDSON COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2021 )

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NOT FOR PUBLICATION WITHOUT THE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-3195-19
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
L.J.,
Defendant-Appellant,
and
T.J. and A.P.,
Defendants.
________________________
IN THE MATTER OF THE
GUARDIANSHIP OF T.J.
and O.P., minors.
________________________
Submitted January 19, 2021 – Decided February 12, 2021
Before Judges Hoffman and Smith.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Hudson County,
Docket No. FG-09-0107-20.
Joseph E. Krakora, Public Defender, attorney for
appellant (Carol A. Weil, Designated Counsel, on the
brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Sookie Bae, Assistant Attorney General, of
counsel; Mary L. Harpster, Deputy Attorney General,
on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minor T.J. (Meredith Alexis Pollock,
Deputy Public Defender, of counsel; Nancy P. Fratz,
Assistant Deputy Public Defender, of counsel and on
the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minor O.P. (Meredith Alexis Pollock,
Deputy Public Defender, of counsel; Lynn B. Norcia,
Designated Counsel, on the brief).
PER CURIAM
Defendant L.J. (Lilly) appeals from a March 27, 2020 judgment of
guardianship terminating her parental rights to her children, T.J. (Tina), born in
2007, and O.P. (Owen), born in 2011.1 We affirm, substantially for the reasons
1
We use initials and pseudonyms to protect the privacy of the family. R. 1:38-
3(d)(12).
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stated by Judge Bernadette N. DeCastro in her comprehensive written opinion.
We add these comments.
The evidence was discussed in detail in Judge DeCastro's opinion. We
summarize the most significant facts here. In May 2018, the Division of Child
Protection and Permanency (the Division) removed Lilly's children from her
home after Tina arrived at school with visible injuries attributed to Lilly's
physical abuse. Further investigation revealed Lilly frequently resorted to
corporal punishment to discipline Tina and Owen, causing the children
significant trauma. For the May 2018 incident, Lilly ultimately pled guilty to
fourth-degree cruelty and neglect of children under N.J.S.A. 9:6-1 and N.J.S.A.
9:6-3.
Beginning in June 2018, the Division referred Lilly for psychological and
anger management services as well as for psychological and parenting
evaluations. Dr. Richard Coco, who conducted a parenting evaluation of Lilly
in October 2018, determined Lilly needed ongoing therapy, otherwise she would
"continue to present a high risk of future abusive behaviors towards her
children[.]" Lilly attended services initially, but was discharged in December
2018, and again in May 2019, following re-referral, for truancy. Following
further evaluations and referrals in the summer and fall of 2019, Lilly began
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attending domestic violence and parenting classes as well as psychotherapy and
individual counseling sessions.
In October 2018, the court lifted its no-contact order, and the Division
began facilitating visitation between Lilly and the children. Attendance at these
visits varied, as the children sometimes declined to attend and Lilly was
sometimes unable to attend. In May 2019, Lilly requested weekend visitation
to accommodate her new work schedule. The Division offered alternate
weekday time slots and attempted to find services which offered weekend
visitation. However, because weekend visitation proved unavailable, Lilly
declined to visit her children from May to November 2019, though she did have
supervised phone calls with her children throughout this period. When she
resumed visitation in November 2019, Lilly initially attended consistently but
her attendance became sporadic in December and January.
The Division initially placed Tina and Owen with Owen's paternal
grandparents, following their removal from Lilly's home. However, Owen's
grandparents struggled with Tina's behavioral issues and requested the Division
place Tina elsewhere. The Division considered multiple members of Tina's
maternal family for a possible placement, but ultimately placed Tina with a non-
relative resource family, where she remains today. Following medical and
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psychological evaluations, the Division also enrolled both Tina and Owen in
significant therapeutic services, which continued at the time of trial.
In July 2019, the Division proposed, and the court approved, a
permanency plan for Tina and Owen, premised on the termination of Lilly's
parental rights and the adoption of the children by their resource families. Judge
DeCastro presided at the guardianship trial, held over four days in February and
March 2020.2
At trial, Dr. Samiris Sostre, an expert in psychiatry, and Dr. Elizabeth
Stilwell, an expert in psychology, testified for the Division. Dr. Sostre, who
conducted a psychiatric evaluation of Lilly in January 2020, diagnosed her with
personality disorder with narcissistic traits, which limited Lilly's ability to
control her anger impulses, empathize with her children, and account for her
actions. Dr. Sostre testified that since the Division became involved in May
2018, Lilly had done little to change her aggressive behavior towards her
children, presenting an ongoing risk of harm to Tina and Owen.
Dr. Stilwell conducted psychological evaluations of Lilly and her children
in October 2019 and bonding evaluations of Lilly, her children, and their
2
The biological fathers of Tina and Owen voluntarily surrendered their parental
rights, in February 2020, before trial began.
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respective resources parents in January 2020. The expert opined that Lilly
"continue[d] to be at-risk to engage in . . . high risk parenting practices" and
Lilly's "belief in the utility of corporal punishment" remained unusually
elevated. Dr. Stilwell recommended long-term psychotherapy but noted Lilly
was unlikely to "utilize and . . . benefit from services in a meaningful way" based
on the barriers presented by her personality disorder and the fact that she made
only minimal gains from therapy and services in the past. Additionally,
regarding the bonding evaluations, Dr. Stilwell found there was no secure bond
between Lilly and her children, and they do not see Lilly as a primary attachment
figure or a psychological parent; in contrast, Tina and Owen were securely
attached to their resource parents, whom they viewed as psychological parents.
Dr. Stilwell opined that both children would suffer significant loss and enduring
harm if they were to be removed from their respective resource parents, and that
Lilly was not capable of mitigating this harm.
Dr. Gerard Figurelli, an expert in psychology, testified for Lilly, having
conducted psychological and parenting evaluations of Lilly in January 2020. Dr.
Figurelli found Lilly was not experiencing a diagnosable psychiatric illness or
substance abuse disorder that would present an impediment to her capacity to
parent safety and adequately, which "was consistent with Dr. Sostre's finding[.]"
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Additionally, Dr. Figurelli noted Lilly's consistent employment provides
stability and support, enhancing "her capacity to be in a position to parent."
However, Dr. Figurelli found Lilly lacked an adequate understanding of
children's behaviors and development needs, ultimately concluding that she
"was not able to parent consistently, safely and adequately at that point in time;
that she needed additional services in order to be able to do so." He
recommended significant services and reassessment in six months.
Chukwudera Egesionu, Lilly's therapist who had been treating her since
August 2019, testified as a fact witness for Lilly. Mr. Egesionu indicated that
Lilly had completed parenting skills and anger management treatment and was
continuing with domestic violence therapy and other individual therapy
sessions. He testified that Lilly has been receptive to and compliant with her
counseling assignments, and that she "expressed willingness to do whatever she
can" for her kids. However, his assessment of Lilly was based entirely on her
self-reporting, as he never observed Lilly with either of her children and did not
know the extent to which Lilly abused her children.
Tina appeared in camera, testifying that she did not want to return to living
with her mother and that she hoped her resource mother would adopt her. The
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resource parents for both Owen and Tina testified they wanted to adopt the child
in their care.
In a twenty-nine page opinion, which detailed the evidence presented at
trial and the history of the family's involvement with the Division, Judge
DeCastro found the Division satisfied all four prongs of the "best interests of
the child" test, N.J.S.A. 30:4C-15.1(a). Judge DeCastro found Lilly's criminal
conviction for cruelty and neglect of children established the first prong, that
"[t]he child’s safety, health, or development has been or will continue to be
endangered by the parental relationship." N.J.S.A. 30:4C-15.1(a)(1).
Based on the expert testimony presented by both the Division and Lilly,
Judge DeCastro found the Division proved the second prong, that "[t]he parent
is unwilling or unable to eliminate the harm facing the child or is unable or
unwilling to provide a safe and stable home for the child and the delay of
permanent placement will add to the harm[.]" N.J.S.A. 30:4C-15.1(a)(2). The
judge referenced the opinions of the Division's experts, Dr. Stilwell and Dr.
Sostre, who established that Lilly had not – and likely could not – eliminate the
risk of harm she posed to her children, especially the harm that would result
from severing the children's bonds with their resource families. Judge DeCastro
also cited the opinion of Lilly's expert, Dr. Figurelli, who testified that Lilly "is
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not currently able to parent in a consistently safe and stable manner as she has
not benefitted from services[,]" though she might "be able to parent in a safe and
stable manner in the foreseeable future if she remains consistently engaged in
the recommended services and if she is able to benefit sufficiently from those
services." (emphasis in original). However, Judge DeCastro found, "there is no
guarantee that [Lilly] will continue to attend services consistently or that she
will benefit from those services[,]" based on Lilly's past engagement in services
and the barriers to progress created by her personality and cognitive issues.
Judge DeCastro found the Division proved it "made reasonable efforts to
provide services to help the parent correct the circumstances which led to the
child’s placement outside the home," establishing the third prong of the best
interests test. N.J.S.A. 30:4C-15.1(a)(3). The judge detailed the Division's
efforts to refer Lilly to various therapeutic services, coordinate visitation for the
family, provide Lilly with transportation to services and visitation, and place
Tina and Owen with relatives. Ultimately, Judge DeCastro found "by clear and
convincing evidence that the Division exerted reasonable efforts" but that Lilly
"failed to comply."
Finally, Judge DeCastro found the Division successfully proved the fourth
prong, that the "[t]ermination of parental rights will not do more harm than
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good." N.J.S.A. 30:4C-15.1(a)(4). The judge cited Dr. Stilwell's testimony and
bonding evaluations, which established that,
if either child were to be separated from their respective
resource parents, they would suffer a significant loss
that would produce enduring harm. A traumatic loss
such as this is likely to bring about both negative short-
term and long-term effects. [Lilly] is not capable of
mitigating the harm that the children would experience
if they were removed from their respective resource
parents and she is unlikely to be able to do so in the
foreseeable future. Both children would be well served
by achieved permanency through adoption with their
resource parents. The expert opined that the
termination of [Lilly]'s parental rights to [Tina] and
[Owen] would not do more harm than good.
The judge therefore found the Division met its burden of proving by clear
and convincing evidence that termination of Lilly's parental rights will not do
more harm than good. Since the Division established all four prongs of the best
interests test, Judge DeCastro found it in the children's best interest to terminate
Lilly's parental rights.
On appeal, Lilly contends the Division failed to prove prongs two, three,
and four of the best interests test. She presents the following points of argument:
LEGAL ARGUMENT
THE TRIAL COURT ERRED TO HOLD THAT DCPP
MET ITS BURDEN TO SHOW TERMINATION OF
LILLY’S PARENTAL RIGHTS WAS WARRANTED
AND IN THE CHILDREN’S BEST INTERESTS.
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POINT I
THE TRIAL COURT ERRED BY TERMINATING
THE MOTHER’S PARENTAL RIGHTS BECAUSE
REASONABLE SERVICES UNDER PRONG THREE
WERE NEVER PROVIDED; DCPP DID NOT
PROVIDE HIGHLY SPECIALIZED THERAPY,
REASONABLE VISITATION OR FAMILY
THERAPY AS RECOMMENDED.
POINT II
THE TRIAL COURT’S LEGAL CONCLUSION
THAT DCPP HAD SATISFIED THE SECOND
PRONG OF THE BEST INTERESTS TEST WAS
ERROR.
POINT III
THE JUDGMENT TERMINATING THE MOTHER’S
PARENTAL RIGHTS MUST BE REVERSED
BECAUSE DCPP FAILED TO PROVE THAT
TERMINATION OF PARENTAL RIGHTS WOULD
NOT DO MORE HARM THAN GOOD.
Our review of Judge DeCastro's decision is limited. We will not disturb
a trial judge's factual findings so long as they are supported by substantial
credible evidence. New Jersey Div. of Youth and Family Services v. R.G., 217
N.J. 527, 552 (2014). We defer to the judge's evaluation of witness credibility,
and to her expertise in family court matters. Id. at 552-53; Cesare v. Cesare,
154 N.J. 394, 411-13 (1998).
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After reviewing the record with those standards in mind, we find no merit
in any of Lilly's arguments concerning the four prongs of the best interests test.
We are satisfied that Judge DeCastro's factual findings as to each prong are
supported by substantial credible evidence in the record, and her thorough
opinion amply addressed the issues. See R.G., 217 N.J. at 552.
The record shows the Division made reasonable efforts to provide
services, facilitate visitation, accommodate Lilly's schedule and needs, and seek
alternatives to reunification. Lilly's inability to eliminate the harm facing her
children cannot reasonably be attributed to any alleged deficiency on the part of
the Division. We therefore agree with Judge DeCastro that the Division proved
all four prongs of the best interests test by clear and convincing evidence, and
that terminating Lilly's parental rights is in Tina's and Owen's best interest.
Affirmed.
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