DCPP VS. B.N. AND A v. IN THE MATTER OF THE GUARDIANSHIP OF I.N. (FG-09-0234-18, HUDSON 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NOT FOR PUBLICATION WITHOUT THE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-1851-18T3
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
B.N.,
Defendant-Appellant,
and
A.V.,
Defendant.
_____________________________
IN THE MATTER OF THE
GUARDIANSHIP OF I.N.,
a Minor.
_____________________________
Submitted October 3, 2019 – Decided November 13, 2019
Before Judges Nugent and DeAlmeida.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Hudson County,
Docket No. FG-09-0234-18.
Joseph E. Krakora, Public Defender, attorney for
appellant (Robyn A. Veasey, Deputy Public Defender,
of counsel; Christine Olexa Saginor, Designated
Counsel, on the briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Melissa H. Raksa, Assistant Attorney
General, of counsel; Julie Beth Colonna, Deputy
Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minor (Joseph Hector Ruiz, Designated
Counsel, on the brief).
PER CURIAM
Defendant, B.N., the twenty-two-year-old mother of I.N., now age two,
appeals from a judgment terminating her parental rights to the child.1 B.N. has
a younger child who is not involved in this action. I.N.'s father, A.V.,
voluntarily surrendered his parental rights on the day the guardianship trial
began, and the court dismissed the complaint as to him. B.N. argues that
plaintiff, Division of Child Protection and Permanency (Division), failed to
prove by clear and convincing evidence that terminating her parental rights was
in the child's best interests, under the standards codified in N.J.S.A. 30:4C-
1
We use initials to protect the parties' privacy. R. 1:38-3(d).
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2
15.1(a). The Division and the Law Guardian oppose the appeal. Having studied
the record, found the trial court's findings of fact supported by ample credible
evidence, and determined the court's legal analysis to be sound, we affirm.
When the Division seeks to terminate a parent's constitutionally protected,
fundamental liberty interest in the care, custody, and supervision of a child,
Santosky v. Kramer, 455 U.S. 745, 753 (1982), it must clearly and convincingly
prove, and a court must determine, that terminating parental rights is in the
child's best interests. In a Title 30 proceeding, the "best interests" standard
requires the Division to prove by clear and convincing evidence:
(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 [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.
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[N.J.S.A. 30:4C-15.1(a).]
Here, to prove the statutory criteria, the Division presented the testimony
of three witnesses: Edelly Polanco, one of its Family Service Specialists and
Adoption Caseworkers; Dr. Samiris Sostre, an expert in psychiatry; and Dr.
Robert Miller, an expert in forensic psychology. Polanco testified the Division
responded to an April 10, 2017 referral by interviewing B.N. after she left Isaiah
House, the place the Division had previously arranged for her to live and get
appropriate support. B.N. had packed her belongings and left with I.N. When
interviewed, B.N. admitted that she felt overwhelmed and felt like she could not
parent I.N. She acknowledged she was bipolar, suffered from ADHD, and had
anger issues. She also admitted smoking marijuana throughout her pregnancy
with I.N. and continuing to smoke marijuana. Nonetheless, B.N. said she was
"open for services," so allegations of neglect were not established.
Based on its investigation, however, the Division executed an emergency
removal of I.N. and the court granted the Division's application for care,
custody, and supervision.2 The Division placed two-month-old I.N. with the
2
An emergency removal, commonly known as a "Dodd removal," refers to the
emergency removal of a child from the home without a court order pursuant to
N.J.S.A. 9:6-8.21 to -8.82, known as the Dodd Act. N.J. Div. of Youth & Family
Servs. v. P.W.R., 205 N.J. 17, 26 n.11 (2011).
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resource mother with whom she currently resides, with whom I.N. is thriving,
and by whom I.N. will be adopted.
Between I.N.'s emergency removal from B.N. in April 2017 and the
guardianship trial in December 2018, the Division attempted on many occasions
to provide services to help B.N. Initially, B.N. underwent psychological and
psychiatric evaluations. The psychologist recommended she engage in
individual trauma-based therapy. The psychiatrist recommended she attend
individual therapy and anger management therapy, attend parenting classes, and
consider taking psychotropic medications. He also recommended she engage in
a "Mommy and Me" program. The Division attempted to provide the services
the doctors recommended. It also referred B.N. to therapeutic supervised
visitation.
For the most part, B.N. refused to participate in services. She became
very upset with the Division for recommending the Mommy and Me program,
was not interested in attending, and told the Division to take away her visitation
because she did not want it anymore. Although B.N. did not stop attending visits
with I.N., she did not visit the baby on a consistent basis, despite the Division's
continuing encouragement of her to visit I.N.
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In June 2017, the Division responded to a referral that B.N. had threatened
to strangle I.N. B.N. denied making the threat but admitted to underage
drinking. She was nineteen years old. She told the Division she was open for
services. The Division determined that the allegation of abuse was unfounded.
When B.N. failed to attend therapeutic visitation through Catholic
Charities, the Division referred her to therapeutic visitation through Urban
League. The Division also arranged for her to begin individual therapy and
anger management. She declined to do so. She denied needing individual
therapy and she did not attend the parenting classes the Division had arranged.
In September 2017, B.N. agreed to attend a Mommy and Me program.
Although she showed up for intake and was accepted into the program, she left
without explanation three days later. The Division also referred B.N. to a
program called ACES, an acronym for Academic and Career Exploration
Services, to assist her in getting her GED. In addition, the Division referred
B.N. to an in-parent support service, helped her submit an application to the
Division of Developmental Disability for additional services, and referred her
to a program for victims of human trafficking. Although she attended the latter
program and participated in anger management sessions, she never attended any
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individual therapy or parenting sessions. She declined services from the
Division of Developmental Disability and refused to fill out an application.
In November 2017, B.N. began to participate in a Mommy and Me
program because she was pregnant and wanted to keep the child. After B.N.
gave birth to her second child, the Division arranged for B.N. to have supervised
visits with I.N. at the Mommy and Me program where B.N. was residing with
her newborn. Notwithstanding the Division's efforts, B.N. routinely missed
scheduled supervised visits with I.N. She did, however, receive some job
training, attend some group sessions, and learn "baby care basics" at the Mommy
and Me program. Meanwhile, the Division again arranged for B.N. to visit I.N.,
this time through Family Intervention Services. B.N.'s participation was
sporadic, and program personnel closed her case in September 2018 due to "a
lack of consistency, a lack of compliance, no-shows, and no participation."
Three months earlier, she had been discharged from the Mommy and Me
program for noncompliance, namely, exceeding the time she was permitted to
be out of the facility overnight.
From June through August 2018, B.N. lived in Jersey City, where the
Division had found housing for her. She was discharged from the residence for
violating their overnight visitor policy and for possessing marijuana. Thereafter,
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the Division found housing for her through Hudson Welfare Services. During
that time, her pattern of noncompliance with programs the Division arranged
continued. She either did not attend or did not complete the programs. In
addition, B.N. continued to smoke marijuana, claiming it helped her to control
her moods. In September, after receiving a warning about compliance with the
rules of the facility where she was residing, B.N. left the residential program.
She moved to Pennsylvania and has not returned to New Jersey. When the trial
took place in December 2018, B.N. was not receiving any services, though the
Division had arranged for transportation for B.N. so that she could keep
necessary appointments in New Jersey.
In addition to providing an array of services, the Division assessed a
number of B.N.'s friends and relatives for placement of I.N. These included her
maternal uncle, maternal aunt, A.V.'s uncle, and B.N.'s maternal third cousin.
The Division investigated and ruled out all of them. None appealed the
Division's decision. The Division was reassessing B.N.'s maternal third cousin
at the time of the guardianship trial.
Polanco concluded her testimony by reiterating that since I.N. was
removed from B.N.'s care, B.N. had completed none of the Division-provided
or court-ordered services and had never visited I.N. on a consistent basis.
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Dr. Sostre, the Division's expert in psychiatry, examined B.N. when I.N.
was one and one-half years old. B.N had given birth to her second child. The
doctor explained B.N. had a history of mental illness dating back to early
adolescence and included a diagnosis of bipolar disorder and one suicide
attempt. She was not currently receiving treatment for the mental illness that
plagued her; instead, she was using marijuana to manage her anger and anxiety.
She did not want therapy and did not wish to discuss her past.
B.N. acknowledged she should be taking some type of psychiatric
medication but refused because she feared the side effects. She told Dr. Sostre
she was not sleeping, thought she was depressed, and had mood swings
sufficiently severe to convince her she suffered from bipolar disorder. She was
aware she had a problem controlling her anger, knew her relationships had been
unstable, and knew she had difficulty maintaining stable housing.
Dr. Sostre diagnosed B.N. with borderline personality disorder—often
confused with bipolar disorder—and post-traumatic stress disorder (PTSD).
Borderline personality disorder manifests in pervasive maladaptive patterns of
behavior and multiple daily mood swings. Marijuana helps stabilize the mood
swings. Affective instability, poor impulse control, and interpersonal chaotic
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relationships are typical. B.N. was exhibiting these symptoms when the doctor
examined her.
Dr. Sostre believed the PTSD, marked by a patient's difficulty facing past
trauma, was playing a role in B.N.'s refusal to accept services to address it.
According to the doctor, because B.N.'s insight was very poor, she did not
realize how her past was impacting her present, which played a role in her
refusal to accept services to address her problem. Although Dr. Sostre believed
medication would stabilize B.N.'s moods, and believed her self-medicating with
marijuana was inappropriate and affected her judgment, the doctor was unable
to convince B.N. to start either medication or psychotherapy, the latter being
"the most important piece."
In view of B.N.'s refusal to accept professional help, her prognosis for
change was poor. Because her prognosis for change was poor, and in view of
her youth, immaturity, impulsive behavior, inability to make adequate decisions,
and self-centeredness, her needs would come before I.N.'s needs, which placed
I.N. at risk.
Dr. Miller, the Division's expert psychologist, examined B.N. three times,
saw her on a fourth occasion, and conducted bonding evaluations. According to
him, she had a history of abusing marijuana and alcohol. He recounted B.N .'s
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extensive history of trauma, which "explains a lot about why she is unable to
parent." Dr. Miller diagnosed B.N. with "severe mental illness, . . . depression,
post-traumatic stress disorder, and substance abuse." He added that B.N. also
suffered from "a personality history that's characterized by impulsivity, anger,
aggression, and denial of her problems."
Dr. Miller provided B.N. with a "very transparent Adolescent Parenting
Inventory, which . . . lists the ways people think about parenting." He testified
the results "raise[] significant concerns regarding [B.N. and], her role-reversing
tendency, which means she will use her child to soothe her, as opposed to
placing her own needs aside to focus on the child's emotional needs." The doctor
diagnosed B.N. with post-traumatic stress disorder, which provided her "with a
pathway to getting some help." Although he recommended B.N. begin treatment
with a trauma-focused cognitive behavioral therapy, and though she was initially
open to treatment, she ultimately received none.
Dr. Miller opined that B.N.'s ability to parent I.N. was poor. Absent
treatment, she would be unable to recognize emotions in a child, especially a
nonverbal infant. Consequently, "[s]he will become increasingly agitated and
triggered when children enter a toddler phase because children are seeking some
normal autonomy." The doctor explained that if B.N. is "disinhibited by alcohol
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abuse, the child can be harmed." Her prognosis for change was "guarded and
poor."
Dr. Miller noted B.N. had no plan for parenting I.N. He believed she was
letting I.N. go to focus on her newer child. In his opinion, B.N. was unable to
safely parent I.N. B.N. was "demonstrating a pattern of pathological parenting
that's likely to cause harm or significant risk of harm."
Dr. Miller conducted bonding evaluations for the resource mother and
B.N. During B.N.'s interaction with I.N., she became increasingly frustrated
when she could not redirect or engage the child, "who remained emotionally
constrained, shutdown, lacking vocalization." In the doctor's opinion, no
emotional bond existed between B.N. and I.N. No bond or attachment ever
developed.
In contrast, I.N. had developed a secure attachment with the resource
mother. The resource mother had become I.N.'s psychological parent. Dr.
Miller explained that during the time I.N. had been in the care of the resource
mother, the attachment process had "gone forward normally and naturally as you
would expect and has resulted in an enduring emotional bond." The doctor had
no concern about the resource mother's ability to meet I.N.'s needs. The resource
mother was committed to adopting I.N.
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Dr. Miller testified that removing I.N. from the resource mother's care
would cause immediate and enduring harm to the child; the child would not be
able to overcome it; and the loss would be catastrophic. B.N. could not
ameliorate the harm because she is incapable of responding to or recognizing a
child's emotional needs. Terminating B.N.'s parental rights would have no effect
on I.N. as the child had no emotional bond with B.N. The doctor emphasized
that I.N. needs permanency to be able to move forward psychologically.
B.N. presented no testimony. Based on the Division's evidence, Judge
Bernadette N. DeCastro concluded the Division had clearly and convincingly
proven the four statutory criteria of the best interests of the child test set forth
in N.J.S.A. 30:4C-15.1(a). The judge terminated B.N.'s parental rights to I.N.
On appeal, B.N. raises four arguments, which she presents in the
following points:
THE TRIAL COURT INCORRECTLY APPLIED THE
LEGAL PRINCIPLES GOVERNING TERMINATION
OF PARENTAL RIGHTS MATTERS TO THE
FACTS. THE RECORD DOES NOT SUPPORT
THOSE VERY PRECISE STANDARDS AND
THEREFORE TERMINATION OF B.N.'S RIGHTS
SHOULD BE REVERSED.
POINT I
THE TRIAL COURT ERRED IN CONCLUDING
THAT B.N. HARMED [I.N.] OR EXPOSED HER TO
A SUBSTANTIAL RISK OF HARM.
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POINT II
THE TRIAL COURT ERRED IN CONCLUDING
THAT B.N. WAS UNWILLING OR UNABLE TO
ELIMINATE ANY PERCEIVED HARM TO HER
CHILD.
POINT III
THE TRIAL COURT FAILED TO PROPERLY
CONSIDER ALTERNATIVES TO TERMINATION
OF PARENTAL RIGHTS.
POINT IV
THE TRIAL COURT ERRED IN CONCLUDING
THAT TERMINATION OF B.N.'S PARENTAL
RIGHTS IS IN THE CHILD'S BEST INTERESTS.
Having considered B.N.'s arguments in light of the record and applicable
legal principles, we affirm, substantially for the reasons expressed by Judge
DeCastro in her written opinion. B.N.'s arguments are without sufficient merit
to warrant further discussion. R. 2:11-3(e)(1)(E). We add only these comments.
The four statutory criteria of the best interests of the child test set forth in
N.J.S.A. 30:4C-15.1(a) "are not discrete and separate, but relate to and overlap
with one another to provide a comprehensive standard that identifies a child's
best interests." N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 167
(2010) (quoting N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 506
(2004)).
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When we review a trial court's determination that the Division either has or has
not satisfied the statutory criteria, we must defer to the court's factual findings
unless they "went so wide of the mark that a mistake must have been made."
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. 1989)). So long as "they are 'supported by adequate, substantial and
credible evidence,'" such factual findings will not be disturbed on appeal. In re
Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (quoting Rova
Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 483-84 (1974)). Moreover,
we owe deference to a trial court's expertise in handling family cases. Cesare v.
Cesare, 154 N.J. 394, 411-13 (1998).
Here, we conclude the trial judge's factual findings are based on sufficient
credible evidence, and in light of those findings, her legal conclusions are
unassailable. The record amply supports her decision that the termination of
parental rights is in I.N.'s best interests.
Affirmed.
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