L.K. AND M.K. VS. A.K.(FD-16-0875-12, PASSAIC COUNTY AND STATEWIDE)(RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-4065-15T1
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
M.S.,
Defendant-Appellant.
_____________________________
IN THE MATTER OF THE
GUARDIANSHIP OF T.M.E.C.M.,
A MINOR.
_____________________________
Submitted February 27, 2017 – Decided April 4, 2017
Before Judges Sabatino and Currier.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part,
Burlington County, Docket No. FG-03-45-15.
Joseph E. Krakora, Public Defender, attorney
for appellant (Christine B. Mowry, Designated
Counsel, on the briefs).
Christopher S. Porrino, Attorney General,
attorney for respondent (Melissa H. Raksa,
Assistant Attorney General, of counsel; Kosha
Gala, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minor (Karen A.
Lodeserto, Designated Counsel, on the brief).
PER CURIAM
Defendant M.S.1 appeals from the May 9, 2016 order terminating
her parental rights to her daughter T.M.E.C.M. (Terri).2 She
argues that the Division of Child Protection and Permanency
(Division) did not prove the third and fourth prongs of the best
interests of the child standard as set forth in N.J.S.A. 30:4C-
15.1(a)(3) and (4).3 After a review of these arguments in light
of the applicable legal principles, we affirm.
We derive our facts from the testimony presented at the
guardianship trial that took place on several dates between January
and April 2016.
Defendant has a long history with the Division, which began
providing court-ordered services to her as a teenager, in 1986.
Ten years later, in 1996, the Division became involved with her
as a parent. Over the course of many years, the Family Part on
1
We use initials and pseudonyms for the family members to protect
the privacy of the minors involved.
2
Terri's father, H.M., surrendered his parental rights prior to
the guardianship trial.
3
We acknowledge the letter brief submitted by defendant in
November 2016 in further support of her appeal.
2 A-4065-15T1
multiple occasions granted the Division custody of defendant's two
older children, Peter and Ralph, due to defendant's arrests and
incarceration for various offenses. The Family Court terminated
defendant's parental rights to Ralph in 2008, and we affirmed that
decision. See N.J. Div. of Youth & Family Servs. v. M.S., No. A-
4828-09 (App. Div. Dec. 30, 2011). Ralph was adopted by his
resource parent, L.B. (Linda). Peter also lived temporarily with
Linda until 2013 when he aged out of the child welfare system and
moved in with defendant.
Terri was born in 2012, while the Division still had an open
case for supervision of Peter. She was placed in a resource home
with a paternal relative, R.A. (Ruth), upon her release from the
hospital, where she remained at the time of the trial. Ruth
desires to adopt Terri. Defendant has never had custody of her
daughter.
Defendant suffers from serious medical issues – both physical
and mental. She was hospitalized after Terri's birth, due to
complications from diabetes and MRSA (methicillin-resistant
staphylococcus aureus). As a result of her diabetes she was in a
coma between March and April 2013. After her release from the
hospital, she spent time at various rehabilitation facilities and
did not return home until July 2013.
Over the next several years, defendant suffered additional
3 A-4065-15T1
serious medical problems, including complications from weight loss
surgery, pneumonia, kidney dialysis, and a leg fracture, which
resulted in multiple stays in hospitals and rehabilitation
facilities. She uses a wheelchair and requires significant
assistance with daily life activities, including bathing and
toileting. At the time of trial, Peter was being paid by the
State to serve as her home health aide; he also had a job outside
the home.
Despite her many medical problems, the Division provided
services to defendant in an attempt to effectuate a goal of family
reunification. The services included individual therapy and
parenting classes in her home, and supervised visitation with her
daughter, which included transportation of the child to
defendant's location, be it her home or a medical facility. A
number of visits were canceled because of defendant's medical
problems.
During those visits, defendant was never able to care for
Terri independently. She required assistance from others,
primarily Peter. Nevertheless, the visits generally went
smoothly, with Terri interacting well with defendant and others
present. The only significant safety concern was occasional smoke
in the home, which was problematic given Terri's asthma.
The Division considered, and ruled out, a variety of placement
4 A-4065-15T1
options in addition to Ruth. At trial, defendant complained only
about the rule-out of Linda, Ralph's adoptive mother, who was
considered as a placement for Terri on two separate occasions.
Linda was considered twice as a placement for Terri.
Originally, her home was licensed as a therapeutic home, which
posed two problems. First, one of the children in Linda's care
was sexually aggressive, which presented safety concerns for an
infant. Second, at the time, the Division did not permit dual
licenses of a home as a regular resource home and as a therapeutic
home, and Terri did not require therapeutic services. Therefore,
Linda would have had to change her license to take Terri, meaning
that other children in her care would be removed, a change Linda
was not willing to make. Again in 2015 Linda was reconsidered for
placement, but ultimately it was determined that it was in Terri's
best interests to remain with Ruth.
At the guardianship trial, defendant argued that
reunification was the proper outcome or, in the alternative, Terri
should be placed with her brother Ralph at Linda's home. All of
the parties' experts agreed that defendant was incapable of
providing safe parenting for Terri, and she would not be able to
do so in the foreseeable future, despite the years of services
provided by the Division. Thus, the question became whether there
was anyone else who could assist defendant in parenting Terri.
5 A-4065-15T1
In his 2014 report, the Division's psychologist, Jason
Fleming, Psy.D., recommended that the Division investigate the
ability and willingness of Peter, then twenty-two years old, to
assist in caring for his sister. Similarly, physicians who
examined defendant in 2014 and 2015 suggested she might be able
to physically care for Terri with assistance from Peter, and
defendant asked the Division to consider Peter as a parenting
option.
Occasionally H.M. would live with defendant. He was not
supportive of that plan and reported his concerns to the Division
caseworker. H.M. testified at trial that Peter was "still a kid"
and "not reliable." The Division nevertheless explored Peter as
a parenting option and referred him to parenting classes, but he
did not complete the program.
In addition, the Division referred defendant and Peter for
drug testing; in March 2014 they both tested positive for marijuana
which resulted in a referral for substance abuse evaluations.
Defendant's evaluator recommended only mental health services, not
substance abuse treatment, and in February 2016 she tested negative
for drugs.
Peter's drug use was persistent. He had undergone outpatient
drug treatment before moving in with his mother in 2014, and he
continued to test positive after the Division's March 2014 test.
6 A-4065-15T1
Peter was resistant to further testing and treatment. Ultimately,
Peter underwent a substance abuse evaluation in July 2014, and he
was referred to an outpatient drug treatment program. He did not
attend the program, however, and was discharged as non-compliant.
Peter was evaluated again in February 2015. He tested positive,
was referred to an outpatient drug treatment, and again he did not
attend.
Peter testified at trial that he continued to use drugs, but
he expressed a willingness to undergo drug treatment. At the same
time, he felt "like all the pressure's on me." He did not want
to be the reason his sister was not returned to his mother.
However, Peter denied that his mother needed any assistance in
caring for Terri, and he did not believe that his using marijuana
affected his ability to care for his sister.
The Division presented testimony from psychologist Ronald S.
Gruen, Ed.D., who performed a psychological evaluation of
defendant, and a bonding evaluation of defendant and Terri in
December 2015. He concluded that defendant suffered from serious
medical, emotional, and psychological problems that rendered her
unable to parent her daughter, and her situation was unlikely to
change. Dr. Gruen believed that Terri would be at risk if placed
in defendant's care.
As for bonding, the expert concluded that defendant had an
7 A-4065-15T1
"acquaintanceship relationship" with her daughter, with Terri
viewing defendant as a playmate as opposed to a caregiver. Dr.
Gruen found a "mild attachment" between defendant and Terri, but
no significant psychological bonding. Thus, he opined that
"permanent separation of mother and child would not cause [Terri]
significant and enduring psychological harm."
Dr. Gruen also performed a bonding evaluation between Terri
and her resource parent. He found a secure attachment and a strong
psychological bond had developed over the years between Terri and
Ruth. He further opined that disruption of Terri's psychological
bond with Ruth would cause the child enduring emotional harm. He
recommended that defendant's parental rights be terminated, and
he "strongly endors[ed]" Ruth's adoption of Terri. Dr. Gruen
testified that permanency was important for the child, and if she
were kept "in limbo" it would lead "to high levels of anxiety."
In response to defendant's testimony that Terri had a positive
relationship with her two brothers, Dr. Gruen testified that it
was more important and in her best interests, for Terri to maintain
her parental relationship with Ruth over her playmate
relationships with her siblings.
The Law Guardian presented its expert, psychologist Alan J.
Lee, Psy.D., who also performed a psychological evaluation of
defendant, as well as bonding evaluations between defendant and
8 A-4065-15T1
Terri, and Ruth and Terri.
Dr. Lee diagnosed defendant with depressive disorder, anxiety
disorder, impulse control disorder, and a personality disorder
with antisocial, narcissistic, and avoidant traits. He also could
not rule out posttraumatic stress disorder or organic mental
disorder. Based upon his psychological evaluation, he concluded
that defendant was unable to provide minimally adequate parenting
to Terri at the present time or within the foreseeable future, and
her prognosis for significant and lasting changes was poor.
Based upon Dr. Lee's bonding evaluations, he concluded that
Terri "has an insecure, ambivalent, and detached relationship with
[defendant]," and "there is a low risk of the child suffering
severe and enduring psychological or emotional harm if her
relationship with [defendant] is permanently ended." By contrast,
he opined that Terri "has a significant and positive psychological
attachment and bond with . . . [Ruth]," and "there is a significant
risk of [Terri] suffering severe and enduring psychological and
emotional harm if her relationship with . . . [Ruth] is permanently
ended."
Ultimately, the expert recommended a permanency plan for
Terri that did not involve reunification with defendant, but
instead adoption by Ruth. Dr. Lee testified to the importance of
Terri having permanency with a consistent, stable, nurturing
9 A-4065-15T1
caregiver and that adoption would provide that permanency for her.
Dr. Lee concurred with Dr. Gruen that it would be more
damaging to Terri to lose her relationship with Ruth than to lose
her relationships with her biological siblings.
In support of her case, defendant presented expert testimony
from a psychologist, Andrew Brown, Ph.D., who rendered
psychological evaluations of defendant in 2013 and 2015, and also
performed bonding evaluations between Terri and defendant, and
Terri and Ruth.
Dr. Brown found that in the intervening years between his
evaluations of defendant, she had suffered a significant
deterioration in her mental health. He concluded that as a result
of her psychological issues, defendant was unable to safely parent
her daughter, and she required sustained individual psychotherapy
to address anxiety, mood, and self-esteem issues.
In addressing bonding, Dr. Brown found that Terri had a secure
bond with both defendant and Ruth, and she viewed Ruth as her
psychological parent. In reaching his conclusion about
defendant's bond with Terri, however, he relied in part upon
incorrect information that defendant had been the child's primary
caregiver in the first six months of her life.
Given the results of his bonding assessment, the psychologist
concluded that forced permanent separation of Terri from either
10 A-4065-15T1
defendant or Ruth would cause the child irreparable and enduring
psychological harm and trauma. He therefore opined that it was
in Terri's best interests to pursue a kinship legal guardianship
(KLG), as opposed to termination of defendant's parental rights.
Dr. Brown further testified that Ruth had advised him that
she was amenable to Terri continuing contact with defendant even
after adoption; if this were the case, the expert opined that
Terri would not suffer harm from a termination of her mother's
rights. He was concerned however, that Ruth's assurances of
continued contact between child and biological mother could not
be enforced if there were a termination of parental rights followed
by adoption.
On May 9, 2016, Judge Patricia Richmond rendered a thorough
oral decision. The judge found "much of [defendant's] testimony
and many of the contentions and positions that she has taken are
inherently not believable, do not deserve to have much credibility
assigned to them and demonstrated clear lack of judgment." In a
comprehensive assessment of the evidence presented, the judge
found that the Division had sustained its burden of proving the
elements of N.J.S.A. 30:4C-15(a) by clear and convincing evidence.
She stated:
This child, [Terri], should not have her life
on hold while the Court waits to learn if and
when [defendant] can become a reliable parent.
11 A-4065-15T1
She has not demonstrated her ability to do so
since 1996 and the experts have said she is
not able to do so . . . in the foreseeable
future. And [Terri] simply does not have time
to wait to see what happens.
The judge determined that the child's best interests required
the termination of defendant's parental rights and a judgment of
guardianship was entered.
Defendant argues on appeal that the judge erred in concluding
that the Division satisfied its burden of proof on the third and
fourth prongs of the statutory best interests of the child test
under N.J.S.A. 30:4C-15.1(a)(3)and (4).4
N.J.S.A. 30:4C-15.1(a) authorizes the Division to petition
for the termination of parental rights in the "best interests of
the child" if the following standards are met:
(1) The child's safety, health or development
has been or will continue to be endangered by
the parental relationship;
(2) The 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.
Such harm may include evidence that separating
the child from his resource family parents
would cause serious and enduring emotional or
psychological harm to the child;
(3) The division has made reasonable efforts
to provide services to help the parent correct
the circumstances which led to the child's
4
The Law Guardian joins the Division in opposing the appeal.
12 A-4065-15T1
placement outside the home and the court has
considered alternatives to termination of
parental rights; and
(4) Termination of parental rights will not
do more harm than good.
"Our review of a trial judge's decision to terminate parental
rights is limited." N.J. Div. of Youth & Family Servs. v. G.L.,
191 N.J. 596, 605 (2007) (citing In re Guardianship of J.N.H., 172
N.J. 440, 472 (2002)). "The general rule is that findings by the
trial court are binding on appeal when supported by adequate,
substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394,
411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins.
Co. of Am., 65 N.J. 474, 484 (1974)). Moreover, "[b]ecause of the
family courts' special jurisdiction and expertise in family
matters," we accord even greater deference to the judge's fact
finding. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J.
328, 343 (2010) (alteration in original) (quoting Cesare, supra,
154 N.J. at 413). Unless the trial judge's factual findings are
"so wide of the mark that a mistake must have been made," they
should not be disturbed, even if the reviewing court would not
have made the same decision. N.J. Div. of Youth & Family Servs.
v. M.M., 189 N.J. 261, 279 (2007) (quoting C.B. Snyder Realty,
Inc. v. BMW of N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div.),
certif. denied, 117 N.J. 165 (1989)).
13 A-4065-15T1
Defendant contends that the Division did not meet its burden
to prove prongs three and four of the statute by credible evidence.
She asserts that although the Division did provide her with
adequate services,5 the court did not fully consider under prong
three any alternatives to the termination of parental rights such
as a KLG placement with Linda so that Terri might be raised with
Ralph or a placement with defendant where Peter could assist with
raising his sister.
We are satisfied that Judge Richmond supported her conclusion
with credible evidence that the Division investigated and
reasonably ruled out alternate placements of the child, including
a proposed placement with Linda.
A KLG was correctly rejected because adoption was both
feasible and likely, as Ruth had unequivocally declared her desire
to adopt Terri. N.J.S.A. 3B:12A-6(d)(3); see N.J. Div. of Youth
& Family Servs. v. T.I., 423 N.J. Super. 127, 130 (App. Div. 2011)
(affirming that if adoption is available, KLG cannot be used to
defend against termination of parental rights).
Judge Richmond also reasonably rejected placement with
defendant, with Peter assisting her in raising Terri, given Peter's
failure to complete parenting classes and drug treatment, and his
5
The judge found the efforts of the Division to reunify defendant
with the child were "extraordinary."
14 A-4065-15T1
continued use of drugs. The court reasonably concluded that Peter
lacked the maturity and judgment to serve as a parent or caretaker
to his sister.
Finally, the court reasonably rejected placement with Linda.
Notably, the Division attempted a placement with Linda when Terri
was an infant. Linda rejected that placement because it would
have meant disrupting other children in her home. In the
intervening years, Terri became closely bonded with her resource
parent, and she developed no relationship with Linda. Thus, based
upon the totality of the evidence, including the testimony from
Drs. Gruen and Lee, the court reasonably concluded that disrupting
Terri's placement with Ruth would cause the child severe and
enduring harm.
In arguing that the Division failed to satisfy the
requirements of the fourth prong of the statute, defendant contends
that the judge did not properly assess her relationship with Terri
or Terri's relationship with her biological siblings when she
concluded that termination of parental rights was in the child's
best interests. We disagree.
We are mindful that while the law recognizes the importance
of sibling relationships, there is no requirement that children
be placed with them. Rather, the court must consider what is in
the child's best interests, under the circumstances presented. In
15 A-4065-15T1
re C.R., 364 N.J. Super. 263, 277-78 (App. Div. 2003), certif.
denied, 179 N.J. 369 (2004). See also N.J. Div. of Youth & Family
Servs. v. J.S., 433 N.J. Super. 69, 82 (App. Div. 2013)
("[A]lthough the Division has a statutory duty to evaluate
relatives as potential caretakers, there is no presumption
favoring the placement of a child with such relatives."), certif.
denied, 217 N.J. 587 (2014).
Contrary to defendant's argument, the judge considered the
relationship between Terri and her siblings. She also noted, and
accepted, the opinions of Drs. Gruen and Lee that it would not
harm Terri to lose contact with her siblings. Dr. Gruen noted
that Terri had very limited contact with Ralph, and although there
was "some bond with [Peter], it's not a close and emotional one."
The judge also addressed Dr. Brown's opinion in which he
advocated that parental rights not be terminated but also stated
Terri could not be returned to and parented by defendant. She
noted that the expert based his opinion in part on the strong bond
he found between defendant and Terri which he explained had formed
because defendant was the child's primary caregiver for the first
six or seven months of her life. This was factually incorrect.
As a result, the judge found Dr. Brown's opinion on this issue
lacked credibility.
The court's decision to reject the bonding opinion of Dr.
16 A-4065-15T1
Brown and accept the testimony of the other experts that there was
not a strong maternal bond is entitled to our deference. See N.J.
Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012);
see also In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999).
Additionally, Dr. Brown opined that the court should consider
KLG. When questioned as to his understanding of the law that
requires that if adoption is feasible, a KLG is unavailable, he
stated that he knew the law but still thought KLG was the proper
remedy here. In addressing this statement, the judge stated:
We expect expert witnesses [who] come to court
to understand what the legal standards are.
. . . So Dr. Brown either didn't know what the
law of KLG was or he knew what it was and he
ignored it. Under either of those scenarios,
it leads me to find his opinion to be less
than credible.
We conclude that Judge Richmond supported her findings that
the Division proved all of the prongs by substantial credible
evidence. The judge conducted a well-reasoned assessment of the
evidence and thoroughly considered each prong of the statute. We
affirm substantially for the thoughtful reasons set forth in her
oral decision.
Affirmed.
17 A-4065-15T1