DCPP VS. S.A. AND C.W. IN THE MATTER OF THE GUARDIANSHIP OF AN.A. AND AL.A. (FG-09-0230-18, 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NOT FOR PUBLICATION WITHOUT THE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-1299-18T3
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
S.A.,
Defendant-Appellant,
and
C.W.,
Defendant.
__________________________
IN THE MATTER OF THE
GUARDIANSHIP OF An.A
and Al.A.,
Minors.
__________________________
Submitted February 3, 2020 – Decided March 3, 2020
Before Judges Messano, Ostrer and Vernoia.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Hudson County,
Docket No. FG-09-0230-18.
Joseph E. Krakora, Public Defender, attorney for
appellant S.A. (Robyn A. Veasey, Deputy Public
Defender, of counsel; Louis W. Skinner, Designated
Counsel, on the briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Donna Sue Arons, Assistant Attorney
General, of counsel; Ellen L. Buckwalter, Deputy
Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minors (Margo E.K. Hirsch, Designated
Counsel, on the brief).
PER CURIAM
Defendant S.A. (Sarah) 1 appeals from a Family Part order terminating her
parental rights to her two daughters, An.A. (Andrea), born in August 2013, and
Al.A. (Amy), born in March 2015. The children's biological father, C.W.,
executed an identified surrender of his parental rights to his mother, D.C., who
has served as the children's resource parent since their March 2017 removal from
Sarah's care and who intends to adopt the children.
1
We employ initials and pseudonyms to protect the privacy of the children and
for ease of reference. R. 1:38-3(b)(12).
A-1299-18T3
2
Sarah contends the New Jersey Division of Child Protection and
Permanency (Division) failed to present sufficient evidence clearly and
convincingly establishing the four prongs of the best interests of the child
standard. See N.J.S.A. 30:4C-15.1(a). We have reviewed the record, agree with
the Division and Law Guardian there is substantial credible evidence supporting
the court's determination that termination of Sarah's parental rights is in the
children's best interests, and affirm substantially for the reasons set forth in
Judge Radames Velazquez, Jr.'s thorough written opinion.
During the guardianship trial, the Division presented evidence and
testimony from D.C.; Division caseworker, Jasmine Soto; Dr. Elizabeth
Stillwell, Psy.D., who was qualified as an expert in forensic psychology; and
Dr. Samiris Sostre, M.D., who was qualified as an expert in forensic psychiatry.
Sarah did not attend the trial or present any witnesses or evidence.
Judge Velazquez made detailed factual findings, addressed each element
of the best interests standard set forth in N.J.S.A. 30:4C-15.1(a), and concluded
the Division sustained its burden by presenting clear and convincing evidence it
was in the children's best interests to terminate Sarah's parental rights. We find
sufficient support for, and presume the parties' familiarity with, Judge
Velazquez's findings, which we briefly summarize.
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Judge Velazquez found the Division "presented substantial and persuasive
evidence that the children's health and development has been and will continue
to be endangered" by the parental relationship with Sarah, due to her "untreated
severe mental illness, parental neglect, and housing instability," and that the
children had suffered, and would continue to suffer harm, as a result of Sarah's
inability to parent and her lack of stable housing.
The court noted Dr. Stillwell's and Dr. Sostre's unrebutted testimony Sarah
suffered from schizoaffective disorder, bipolar type, and her refusal to comply
with recommendations for treatment and prescriptions for medication rendered
her unable to safely parent the children. The court also found Sarah suffered
from cognitive impairments that rendered her unable "to understand how her
actions demonstrated poor judgment and parenting skills," and her lack of
insight into her mental health issues posed additional risks of harm to the
children because "she [does not] understand why she should be concerned" about
the treatment of her mental health issues. The judge determined Sarah's failure
to comply with treatment and refusal to take medications prescribed to
ameliorate the effects of her significant mental health issues placed the children
at "substantial risk of harm" and "ensures that [she] will be increasingly unable
to provide a stable and healthy home for her children in the future." The court
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relied on Dr. Sostre's testimony that, without medication, there was a 100
percent chance Sarah would experience additional psychotic episodes that "will
increase in severity and frequency."
Judge Velazquez further found the Division presented clear and
convincing evidence Sarah is unable and unwilling to address the harm to the
children. Relying on the unrebutted expert testimony, the judge found Sarah's
parenting deficits "are inextricably connected to her chronic mental illness, and
her refusal to treat her schizoaffective disorder through psychotropic
medication" and her "inability to understand and appreciate her symptoms[,]
cause[] her to lack the motivation needed to address and treat her mental illness."
Relying on Dr. Stillwell's testimony, Judge Velazquez further determined that
the children have a strong and secure bond with D.C., and they will suffer
additional harm if the permanency that adoption by D.C. will provide is further
delayed.
The judge also detailed the services the Division offered and provided
Sarah to assist her in addressing the circumstances leading to the children 's
removal and placement with D.C., and he considered the reasonableness of the
Division's efforts to provide services "in the context of [Sarah's] unwillingness
to address her mental illness, which was a necessary step towards stabilization
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and reunification." Judge Velazquez noted the Division made referrals for Sarah
to a parent mentor program, parenting skills classes, homemaker services,
individual therapy, and for psychological, psychiatric, and intellectual
assessments and evaluations. The Division further provided housing assistance
to facilitate Sarah's transition from shelters and health care facilities to her own
apartment, and it offered services "focused on stabilizing [her] mental health
and addressing her parenting skills."
As noted by the court, at times Sarah utilized the services and appeared to
make progress towards addressing the issues preventing her from providing the
children with a safe and secure home. However, Sarah's consistent inability and
unwillingness to comply with services and address her mental health issues
through treatment and taking prescribed medications rendered her unable to
parent her children.
The court also found termination of Sarah's parental rights would not do
more harm than good based on Dr. Stillwell's unrebutted psychological and
bonding evaluations and testimony; Sarah's unwillingness to address her mental
health issues; and D.C.'s willingness to provide permanency through adoption.
Without contradiction, Dr. Stillwell testified that a break in the bond between
the children and D.C. "would pose a far greater potential for harm than a break
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from" Sarah and would cause "significant and enduring harm" to the children's
emotional and behavioral development. The court accepted Dr. Stillwell's
testimony that the children share a positive, but inconsistent and insecu re, bond
with Sarah, and they enjoy a positive, secure, and strong bond with D.C., who
the children view as their psychological parent and who provides nurture and
guidance. The court also found Sarah's mental health issues, and her
unwillingness and inability to effectively address them, make it unlikely she will
be able to safely parent the children at any time in the foreseeable future.
Following the court's entry of the October 31, 2018 judgment of
guardianship, Sarah appealed. She offers the following arguments for our
consideration:
[POINT I]
THE [TRIAL] COURT ERRED IN ITS
CONCLUSION THAT TERMINATION OF
PARENTAL RIGHTS IS IN THE BEST INTERESTS
OF THE CHILDREN UNDER N.J.S.A. 30:4C-
15.1[(a)].
I. THE COURT . . . ERRED IN CONCLUDING THAT
ANDREA AND AMY WERE HARMED BY
[SARAH][.]
II. THE COURT . . . ERRED IN CONCLUDING
THAT [SARAH] IS UNWILLING OR UNABLE TO
ELIMINATE THE ALLEGED HARM FACING
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ANDREA AND AMY OR TO PROVIDE A SAFE
AND STABLE HOME[.]
III. THE COURT . . . ERRED IN CONCLUDING
THAT [THE DIVISION] EXERCISED
REASONABLE EFFORTS TO PROVIDE SERVICES
TO HELP [SARAH] TO CORRECT THE
CIRCUMSTANCES THAT LED TO PLACEMENT
OUTSIDE THE HOME[.]
IV. THE COURT'S CONCLUSION THAT
TERMINATION OF PARENTAL RIGHTS WILL
NOT DO MORE HARM THAN GOOD IS
ERRONEOUS[.]
Our review of a trial court order terminating parental rights is limited.
N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). "A
Family Part's decision to terminate parental rights will not be disturbed when
there is substantial credible evidence in the record to support the court's
findings." N.J. Div. of Child Prot. & Permanency v. K.T.D., 439 N.J. Super.
363, 368 (App. Div. 2015) (citing N.J. Div. of Youth & Family Servs. v. F.M.,
211 N.J. 420, 448 (2012)). "We accord deference to factfindings of the family
court because it has the superior ability to gauge the credibility of the witnesses
who testify before it and because it possesses special expertise in matters related
to the family." F.M., 211 N.J. at 448 (citing Cesare v. Cesare, 154 N.J. 394, 413
(1998)). This enhanced deference is particularly appropriate where the court 's
findings are founded upon the credibility of the witnesses' testimony. N.J. Div.
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of Youth & Family Servs. v. H.B., 375 N.J. Super. 148, 172 (App. Div. 2005)
(citing Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 484
(1974)).
"Only when the trial court's conclusions are so 'clearly mistaken' or 'wide
of the mark' should an appellate court intervene and make its own findings to
ensure that there is not a denial of justice." N.J. Div. of Youth & Family Servs.
v. E.P., 196 N.J. 88, 104 (2008) (quoting G.L., 191 N.J. at 605). No deference
is given to the trial court's "interpretation of the law," which we review de novo.
D.W. v. R.W., 212 N.J. 232, 245-46 (2012).
A parent has a constitutionally protected right "to enjoy a relationship with
his or her child." In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). That
right, however, "is not absolute" and is limited "by the State's parens patriae
responsibility to protect children whose vulnerable lives or psychological well-
being may have been harmed or may be seriously endangered by a neglectful or
abusive parent." F.M., 211 N.J. at 447 (citing E.P., 196 N.J. at 102). A parent's
interest must, at times, yield to the State's obligation to protect children from
harm. See N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 397
(2009).
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When terminating parental rights, the court must consider the "best
interests of the child[ren]." K.H.O., 161 N.J. at 347. The Division's petition to
terminate parental rights may only be granted if the following four prongs
enumerated in N.J.S.A. 30:4C-15.1(a) are established 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 division 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.
[N.J.S.A. 30:4C-15.1(a).]
"The four criteria enumerated in the best interests standard are not discrete
and separate; they relate to and overlap with one another to provide a
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comprehensive standard that identifies a child's best interests." K.H.O., 161 N.J.
at 348. "[T]he cornerstone of the inquiry [under N.J.S.A. 30:4C-15.1(a)] is not
whether the biological parents are fit but whether they can cease causing their
child harm." In re Guardianship of J.C., 129 N.J. 1, 10 (1992) (citing N.J. Div.
of Youth & Family Servs. v. A.W., 103 N.J. 591, 607 (1986)).
Sarah argues the court erred by terminating her parental rights because the
Division failed to present sufficient evidence clearly and convincingly
establishing each prong of the best interests standard. We disagree. Judge
Velazquez conducted the required fact-sensitive analysis of the statutory factors,
see K.H.O., 161 N.J. at 348, and the record supports his determination that
Sarah's unwillingness and inability to address her significant and debilitat ing
mental health issues—by failing to comply with treatment recommendations and
take prescribed medications—renders her incapable of parenting Andrea and
Amy; caring for them; addressing their needs; and providing for their safety,
health, and development.
The court accepted the expert testimony Sarah lacked both the ability and
willingness to address the issues that rendered her unable to safely parent her
children, and the testimony was unchallenged by any competent evidence. We
defer to Judge Velazquez's findings because they are supported by substantial
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credible evidence, and his factual findings amply support his conclusion the
Division satisfied each prong of the best interests standard with clear and
convincing evidence. See E.P., 196 N.J. at 104 ("We will not disturb the family
court's decision to terminate parental rights when there is substantial credible
evidence in the record to support the court's findings."). We add only the
following brief comments.
We reject Sarah's claim the evidence was insufficient to support the court's
finding the children suffered harm or were at risk of harm under prongs one and
two of the best interests standard. "Serious and lasting emotional or
psychological harm to children as the result of the action or inaction of their
biological parents can constitute injury sufficient to authorize the termination of
parental rights." In re Guardianship of K.L.F., 129 N.J. 32, 44 (1992).
The evidence established Sarah failed and refused to participate in
treatment and take the prescribed medications required to address her mental
health issues, and the concomitant delays in her ability to parent Andrea and
Amy and provide them with a safe and secure home caused the children
emotional and psychological harm and placed them at risk of future harm. That
evidence supports the court's findings under the first and second prongs of the
best interests standard. See, e.g., F.M., 211 N.J. at 450-51 (stating that untreated
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mental illness that threatens harm to a child may disqualify a parent from raising
the child); K.H.O., 161 N.J. at 353 (stating "the second prong may be met by
indications of parental dereliction and irresponsibility, such as the parent's
continued or recurrent drug abuse, the inability to provide a stable and protect ive
home, [and] the withholding of parental attention and care").
We are not persuaded by Sarah's claim the court erred by finding the
Division provided reasonable services. "The diligence of [the Division's] efforts
on behalf of a parent is not measured by their success," In re Guardianship of
DMH, 161 N.J. 365, 393 (1999), particularly where the lack of success results
from a parent's "failure to cooperate or follow through." N.J. Div. of Youth &
Family Servs. v. C.S., 367 N.J. Super. 76, 119 (App. Div. 2004). The record
evidence demonstrates the Division provided reasonable services in light of
Sarah's individual needs.
Last, Sarah makes no showing the court erred by finding the Division
sustained its burden of establishing prong four of the best interests standard.
The court recognized Sarah enjoyed a positive bond with Andrea and Amy, but
the fourth prong does not require a "showing that no harm will befall the child
as a result of the severing of biological ties." K.H.O., 161 N.J. at 355. Dr.
Stillwell's bonding evaluations and expert testimony support the court 's
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conclusion that termination of parental rights would not do more ha rm than
good.
Any of Sarah's arguments we have not expressly addressed are without
sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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