DCPP VS. E.S. AND F.W., IN THE MATTER OF THE GUARDIANSHIP OF F.W. (FG-02-0076-15, BERGEN 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NOT FOR PUBLICATION WITHOUT THE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-1224-16T1
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
E.S.,
Defendant-Appellant,
and
F.W.,
Defendant.
_____________________________
IN THE MATTER OF THE
GUARDIANSHIP OF F.W.,
Minor.
_____________________________
Submitted September 12, 2018 – Decided September 26, 2018
Before Judges Haas and Mitterhoff.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FG-02-0076-15.
Joseph E. Krakora, Public Defender, attorney for
appellant (Carleen M. Steward, Designated Counsel, on
the brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Jason W. Rockwell, Assistant Attorney
General, of counsel; Natasha C. Fitzsimmons, Deputy
Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minor (Noel C. Devlin, Assistant Deputy
Public Defender, on the brief).
PER CURIAM
Defendant E.S.1 appeals the trial court's November 7, 2016 judgment of
guardianship that terminated her parental rights to her daughter, F.W., born in
January 2014. Defendant contends that plaintiff New Jersey 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 supported
termination before the trial court and, on appeal, joins the Division in urging us
to affirm. Having considered the parties' arguments in light of the record and
applicable legal standards, we affirm.
1
Pursuant to Rule 1:38-3(d), we use initials to protect the confidentiality of the
participants in these proceedings.
A-1224-16T1
2
N.J.S.A. 30:4C-15.1(a) requires the Division to petition for termination of
parental rights on the grounds of 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 2 . .
.;
(3) The [D]ivision has made reasonable efforts to
provide services to help the parent correct the
circumstances which led to the child's 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.
In June 2015, the Division filed a verified complaint to terminate
defendant's parental rights and award the Division guardianship of F.W.3 Judge
2
"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." N.J.S.A. 30:4C15.1(a)(2).
3
The Division also sought to terminate the parental rights of F.W.'s father. On
August 15, 2016, F.W.'s father made an identified surrender of F.W to F.W.'s
current resource parent.
A-1224-16T1
3
William R. DeLorenzo, Jr., presided over the six-day guardianship trial, during
which the Division presented four witnesses: caseworker Barbara Whalen; Dr.
Michael Gentile; caseworker Debbie Gomez; and Dr. Robert Miller. Defendant
presented testimony from a friend from Alcoholics Anonymous ("AA") and
testified on her on behalf. 4 In addition, numerous documentary exhibits were
admitted into evidence. On November 7, 2016, Judge DeLorenzo issued a fifty-
seven page written opinion finding that the Division established by clear and
convincing evidence the statutory grounds for terminating E.S.'s parental rights
to F.W.
The evidence is outlined in detail in the judge's opinion. A summary will
suffice here. E.S.'s history with the Division dates back to 2007. The Division
has responded to referrals regarding domestic violence between E.S. and F.W.'s
father, as well as E.S.'s mental health and erratic behavior. On May 9, 2014, the
Division received a referral from the shelter where E.S. was residing with F.W.,
claiming that E.S. left F.W. unattended, threatened other people at the shelter
with knives, and had accused F.W.'s father of sexually abusing her. The
Division had previously responded to a referral regarding E.S.'s erratic behavior
4
F.W.'s father also presented three witnesses at trial.
A-1224-16T1
4
at the shelter. Based on concerns about E.S.'s mental health and ability to care
for F.W., the Division emergently removed F.W. from E.S.'s care.
Upon removal from E.S., the Division took F.W. to Hackensack
University Medical Center for an examination. Hospital staff discarded F.W. 's
clothes because they smelled of urine and feces and determined that F.W. had
severe eczema and a fever. The examination ruled out that F.W. was subjected
to sexual abuse. F.W. was placed in a non-relative resource home, where she
remains to date. On May 13, 2014, the Family Part granted the Division custody,
care, and supervision of F.W. 5 The court ordered E.S. to comply with
recommendations from a substance abuse evaluation and to submit to a
psychiatric evaluation and comply with recommendations. The court also
afforded E.S. four hours of supervised visitation per week.
Throughout the litigation, E.S. did not fully comply with her substance
abuse and mental health treatments. E.S. completed two substance abuse
treatment programs, as well as domestic violence counseling. Nonetheless, the
evidence established at trial showed that E.S. suffered multiple relapses and at
times refused to submit urine screens. Further, psychological and psychiatric
5
On September 24, 2014, E.S. stipulated that she had abused or neglected F.W.
by suffering from untreated mental health issues that posed a substantial risk of
harm to F.W.
A-1224-16T1
5
evaluations reflected that E.S. suffered from suicidal ideation, refused to take
psychopathic medications, and had limited insight into her mental health
conditions. Additionally, in May 2014, E.S. posted threatening and harassing
statements about Division personnel on social media.
E.S. also attended her supervised visitation inconsistently. Through
February 2015, the Family Part had suspended E.S.'s visitation pending the
results of a psychiatric evaluation and E.S.'s compliance with treatment services
and medication monitoring. E.S. attended the sessions in February and March
2015, but her participation became inconsistent in April 2015. E.S. did not visit
F.W. between April 2015 and July 2015. Visitation was suspended from July
2015 to September 2015 because E.S. had relapsed.
Between September 2015 and December 2015, E.S. cancelled visits with
F.W. at the Division because the visits were "too much'' and it was too hard for
her to maintain sobriety while visiting. Additionally, Division workers noted
that when E.S. did attend visitation, E.S. did not stay for more than one -half of
the allotted time for each session, E.S. would not change F.W.'s diaper, and F.W.
was reluctant to go to E.S. Nevertheless, beginning in December 2015, E.S.
attended supervised visitation on a consistent basis, changed F.W.'s diaper, and
stayed for the full time provided.
A-1224-16T1
6
At trial, the Division's experts testified that E.S. was not fit to parent F.W.
and had limited insight into her mental health conditions. Dr. Gentile diagnosed
E.S. with post-traumatic stress disorder, borderline personality disorder, severe
alcohol use disorder, and specific learning disabilities. Dr. Gentile testified that
E.S. had been non-compliant with taking prescribed medications, had made
suicide threats, and struggled with alcohol and drug use. Dr. Gentile opined that
if E.S. failed to take her medication as prescribed, he would not recommend E.S.
be reunited with F.W. even if she was otherwise in full compliance.
Likewise, Dr. Miller testified that E.S. was reluctant to acknowledge her
mental health disorders, was non-complaint with medication and treatment, and
posed a risk of exposing F.W. to harm. He noted that E.S.'s plan was for F.W.'s
father to obtain custody of F.W., so that E.S. could visit F.W. Additionally,
based on the bonding evaluations he conducted, Dr. Miller concluded that there
was no secure bond between E.S. and F.W. In contrast, Dr. Miller concluded
that there was a secure bond between E.S. and her resource mother, that the
resource mother was E.S.'s psychological parent, and that separation of F.W.
from her resource parent would cause F.W. significant harm. Based on his
findings, Dr. Miller recommended that the Division seek termination of E.S. 's
parental rights with the plan of adoption of F.W. by her resource parent.
A-1224-16T1
7
At trial, E.S. testified that she was still pursuing substance abuse recovery
and had started a new treatment program in March 2016. She also testified that
she had requested parenting classes from the Division, which the Division did
not provide. E.S. also testified that she did not intend to continue attending AA
meetings and that she did not believe she needed her prescribed medications
E.S. presented no expert testimony.
In his written opinion, Judge DeLorenzo found that the Division
established each of the four prongs under N.J.S.A. 30:4C-15.1(a) by clear and
convincing evidence. With respect to prong one, the trial court found F.W.'s
safety, health, and well-being were endangered by the parental relationship with
E.S. based on E.S.'s failure to meet F.W.'s physical needs at the time of removal.
The trial court further found that F.W. continued to be endangered by E.S.'s
failure to appropriately deal with her mental health and substance abuse issues.
Turning to prong two, the trial court found that E.S. was unable to eliminate the
harm to F.W. because E.S. demonstrated only a superficial understanding of her
parental deficits and alcohol dependence and because a delay in permanent
placement would cause further harm to F.W. Under prong three, the trial court
found that the Division provided reasonable efforts to help E.S. correct the
circumstances that led to F.W.'s placement, including mental health and
A-1224-16T1
8
substance abuse treatments, supervised visitation, and exploring and ruling out
placement with F.W.'s maternal grandmother as an alternative to termination of
parental rights. With respect to prong four, the trial court found that termination
of parental rights would not do more harm than good to F.W. based on the
conclusions from Dr. Miller's bonding evaluation.
Our scope of review on appeals from orders terminating parental rights is
limited. In such cases, we will generally uphold the trial court's findings, so
long as they are supported by "adequate, substantial, and credible evidence."
N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014). The
decision should only be reversed or altered on appeal if the trial court 's findings
were "so wholly unsupportable as to result in a denial of justice." N.J. Div. of
Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004) (quoting In re
Guardianship of J.N.H., 172 N.J. 440, 472 (2002)).
Likewise, we must give substantial deference to the family court judge's
special expertise and opportunity to have observed the witnesses firsthand and
evaluate their credibility. R.G., 217 N.J. at 552-53. Moreover, as the fact finder,
while the "trial judge is 'not required to accept all or any part of [an] expert
opinion,' " he or she may "place[ ] decisive weight on [the] expert." In re Civil
Commitment of R.F., 217 N.J. 152, 156, 174 (2014) (first alteration in original).
A-1224-16T1
9
Even where, as here, the appellants allege "error in the trial judge's evaluation
of the underlying facts and the implications to be drawn therefrom, " deference
must be afforded unless the judge "went so wide of the mark that a mistake must
have been made." M.M., 189 N.J. at 279 (first quoting In re Guardianship of
J.T., 269 N.J. Super. 172, 188-89 (App. Div. 1993); then quoting C.B. Snyder
Realty, Inc. v. BMW of N. Am. Inc., 233 N.J. Super. 65, 69 (App. Div. 1989)).
Guided by these standards, we conclude that Judge DeLorenzo's factual
findings are amply supported by the credible evidence in the record, and his
legal conclusions are unassailable. "It is not our place to second-guess or
substitute our judgment for that of the family court, provided that the record
contains substantial and credible evidence to support the decision to terminate
parental rights." F.M., 211 N.J. at 448-49.
Here, the judge reviewed the evidence presented at trial, made detailed
findings as to each prong of N.J.S.A. 30:4C-15.1(a), and concluded that the
Division met by clear and convincing evidence all of the legal requirements for
a judgment of guardianship. The judge's opinion tracks the statutory
requirements of N.J.S.A. 30:4C-15.1(a) and accords with applicable case law.
See, e.g., F.M., 211 N.J. at 447-54; N.J. Div. of Youth & Family Servs. v. E.P.,
196 N.J. 88, 103-07 (2008); K.H.O., 161 N.J. at 347-63; In re Guardianship of
A-1224-16T1
10
D.M.H., 161 N.J. 365, 375-93 (1999). We thus affirm substantially for the
reasons Judge DeLorenzo expressed in his well-reasoned written opinion and,
like the judge, find defendants' arguments unavailing.
Affirmed.
A-1224-16T1
11