DCPP VS. E.T. AND T.C., IN THE MATTER OF THE GUARDIANSHIP OF A.J.V.T.-C., J.R.T.-C., AND E.M.T.-C. (FG-15-0056-16, OCEAN COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: October 26, 2018
• Docket: A-3407-16T2
• Status: Unpublished

Opinion

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3407-16T2

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

E.T.

Defendant-Appellant,

and

T.C.

Defendant. ______________________________________

IN THE MATTER OF THE GUARDIANSHIP OF A.J.V.T.-C., J.R.T.-C., and E.M.T.-C.,

Minors. ______________________________________

Submitted September 26, 2018 – Decided October 26, 2018

Before Judges Fuentes, Accurso and Moynihan. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FG-15-0056-16.

Joseph E. Krakora, Public Defender, attorney for appellant E.T. (Gilbert G. Miller, Designated Counsel, on the brief).

Gurbir S. Grewal, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Amy M. Young, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors J.R.T.-C. and E.M.T.-C. (Margo E.K. Hirsch, Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor A.J.V.T.-C. (Meredith A. Pollock, Deputy Public Defender, of counsel; Todd S. Wilson, Designated Counsel, on the brief).

PER CURIAM

Defendant, E.T. (Eliza)1 is the biological mother of three children –

twelve-year-old A.J.V.T.-C. (Anthony), nine-year-old J.R.T.-C. (Jenny), and

seven-year-old E.M.T.-C. (Emily). Defendant appeals from an order entered by

the Family Part in this guardianship case that terminated her parental rights to

1 We use pseudonyms to refer to the parties and their family members to protect their privacy and preserve the confidentiality of these proceedings. R. 1:38- 3(e). We use fictitious first names to refer to adults to avoid confusion. No disrespect is intended. A-3407-16T2 2 her children. The children's biological father, T.C. (Ted) did not attend the

three-day trial conducted by the Family Part. He has not appealed from the final

judgment of the court. Eliza and her family have an extensive history of

involvement with the Division of Child Protection and Permanency (Division)

that dates back to Anthony's birth in 2006. The Division has filed four

guardianship actions and executed two emergency removals of the children, all

related to Eliza's chronic and untreated drug addiction. She has consistently

failed to comply with services offered by the Division over a period of several

years.

Judge Madelin F. Einbinder presided over the guardianship trial. The

Division presented the testimony of four caseworkers who described their

interactions with defendant, Ted, and the children. Psychologist Dr. David

Brandwein testified as an expert witness for the Division. He performed a

psychological evaluation of defendant on April 26, 2016. Dr. Brandwein found

defendant had very limited insight and extremely poor judgment. She "views

psychological problems as a sign of weakness" and consequently refuses to

recognize how her dysfunctional conduct is symptomatic of her mental health

problems.

A-3407-16T2 3 Dr. Brandwein diagnosed defendant with a "[p]ersonality [d]isorder with

[a]ntisocial and [n]arcissistic [f]eatures," and an unspecified opioid-related

disorder. According to Dr. Brandwein, the combined effect of these mental

health issues and abuse problems has rendered defendant unable to safely care

for her children. Dr. Brandwein thus declined to recommend any services for

Eliza. He did "not support [Eliza] as an independent caregiver for the . . .

children"; he found it highly unlikely that she would be able to perform this role

safely and adequately in the foreseeable future.

On October 24, 2016, Dr. Brandwein performed bonding evaluations with

the children and their resource parents, whom the children referred to as

"mommy" and "dad" or "daddy." Dr. Brandwein noted that the children

appeared emotionally happy and well-cared for physically. He opined that "all

three children are securely bonded to their resource parents and look to them as

primary parental figures." Thus, "[s]hould the bond between the children and

their resource parents be broken, all three children are likely to experience a

grief reaction that would include sadness, anxiety, and uncertainty about their

future." In his opinion, separation from the resource parents "is likely to

provoke rather extreme and enduring emotional reactions that would have the

potential to destabilize them emotionally and behaviorally for the long-term."

A-3407-16T2 4 On November 1, 2016, Dr. Brandwein performed a similar bonding

evaluation with defendant and the children. Because defendant was incarcerated

at the time, the evaluation took place in the Ocean County Courthouse. Dr.

Brandwein characterized her interactions with the children as warm and loving.

However, the children appeared to be occasionally distant and distracted. 2 He

nevertheless opined that a "continued relationship with [defendant] would be to

these children's detriment." He found the children "have built healthy, strong,

and secure relationships with their resource parents" and recommended

"immediate termination" of Eliza's parental rights so that the children could be

permanently placed with their resource parents.

On November 14, 2016, psychologist Dr. Maureen Santina performed an

independent bonding evaluation of defendant and the children on behalf of the

Law Guardian. Dr. Santina found defendant "severely and repeatedly minimized

her substance abuse problem and denied its impacts on her children." Dr.

Santina particularly noted that defendant "showed no distress when discussing

2 Dr. Brandwein did not comment on or acknowledge the inherent awkwardness of the setting where these interactions occurred. He also did not consider how defendant's incarceration and pending criminal charges may have exacerbated any uneasiness she may have felt at the time. We nevertheless did not find any basis to question the reliability of his professional assessment of defendant's parental fitness.

A-3407-16T2 5 [Anthony's] traumatic brain injury." 3 Dr. Santina opined that defendant

"exhibited persistent denial of responsibility for her actions and their effects,

and displaces blame onto others for their consequences."

According to Dr. Santina, due to Eliza's "continued lack of recognition of

her own role in her problems with stability and parenting, and her history of

reckless behavior, substance addiction 4 and poor judgment, she cannot be

3 In 2011, defendant was involved in a serious accident when the car she was driving collided head-on with a large truck. She was pregnant with Emily at the time; Anthony and Jenny were also in the car. Anthony suffered a traumatic brain injury, multiple facial fractures, a broken nose, a broken eye socket, and seriously injured his spinal cord. Defendant and Jenny were not seriously injured. The accident occurred in Newark. Defendant resided at the time in Manchester Township, located in Ocean County. Members of defendant's family alleged she had gone to Newark to buy drugs. They claimed Anthony's injuries were caused by a drug dealer who hit the boy with a concrete brick. They also alleged defendant deliberately caused the accident to conceal the true cause of her son's injuries. Anthony told social workers that "a mean man bashed [him] in the face" and that someone hit him in the head with a brick. The police confirmed that the area where the accident occurred was known for illicit drug trafficking. 4 Defendant gave birth to Emily approximately one month after the car accident. Emily tested positive for opiates, displayed withdrawal symptoms, and was treated with morphine. According to the hospital staff, defendant showed signs of intoxication after birth; defendant nearly dropped Emily when she fell asleep while holding her infant daughter. The Division substantiated a case of abuse and neglect against defendant when a post-partum drug test confirmed she used illicit narcotics during the pregnancy. We note, however, that the legal soundness of the Division's decision to substantiate abuse and neglect against defendant under these circumstances is not before us in this appeal. A-3407-16T2 6 considered a reliable or dependable caregiver for her children currently or in the

foreseeable future." She ultimately concluded that Eliza "is not currently

capable of safely and effectively parenting her children, and the prognosis is

very poor that she will become a safe and effective caregiver in the foreseeable

future."

Dr. Santina also conducted a bonding evaluation between Eliza and the

children. She observed the children to be "excessively loud and hyperactive ."

Defendant made little effort to control their behavior. Dr. Santina noted that

when Anthony announced his resource parents' last name as his own, defendant

did not make any effort to correct or dissuade him. Dr. Santina opined that

defendant's "lax and passive parenting would be likely to have a significantly

negative effect on the children's emotional and behavioral functioning if they

were placed in her care." She concluded that defendant "is not currently a safe

and effective caregiver for her children and is not likely to become one in the

foreseeable future" and that the interests of the children "would best be served

by termination of [defendant]'s parental rights." In her opinion, the children

"will not suffer enduring harm by the termination of their mother's parental

rights."

A-3407-16T2 7 Dr. Santina also confirmed that all three children "exhibit a strong,

positive parental attachment to their resource mother" and the resource parents

"will effectively buffer any sense of loss they may feel and would ameliorate

any possible transient harm" which the children might experience as a result of

the termination of parental rights. Defendant did not testify or call any

witnesses.

In a thirty-one-page memorandum of opinion, Judge Einbinder chronicled

defendant's dysfunctional involvement in the lives of these three children. Due

to her chronic and unaddressed substance abuse problem, defendant has caused

irreparable harm to all of her children. After carefully reviewing the evidence,

Judge Einbinder correctly applied the statutory prongs in N.J.S.A. 30:4C-15.1(a)

and terminated the parental rights of both parents. Defendant appeals, arguing

Judge Einbinder erred by finding the Division established, by clear and

convincing evidence, all four statutory prongs. The Law Guardian joins the

Division in opposing defendant's appeal.

It is well-settled that parents have a fundamental constitutional right to

raise their children. N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527,

553 (2014). However, this parental right is tempered by the State's

commensurate responsibility to "protect children whose vulnerable lives or

A-3407-16T2 8 psychological well-being may have been harmed or may be seriously

endangered by a neglectful or abusive parent." N.J. Div. of Youth & Family

Servs. v. F.M., 211 N.J. 420, 447 (2012). The termination of parental rights is

viewed as a "weapon of last resort." Ibid. As this court has aptly noted, "[a]fter

the elimination of the death penalty, we can think of no legal consequence of

greater magnitude than the termination of parental rights." In re Adoption of

Child by J.E.V., 442 N.J. Super. 472, 481 (App. Div. 2015). Thus, a court may

terminate parental rights "only in those circumstances in which proof of parental

unfitness is clear," and with great caution and care. F.M., 211 N.J. at 447.

"The best-interests-of-the-child standard codified at N.J.S.A. 30:4C-

15.1(a) 'aims to achieve the appropriate balance between parental rights and the

State's parens patriae responsibility.'" R.G., 217 N.J. at 554 (quoting N.J. Div.

of Youth & Family Servs. v. M.M., 189 N.J. 261, 280 (2007)). In order to

terminate defendant's parental rights, the Division must prove, by clear and

convincing evidence the following statutory criteria:

(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.

A-3407-16T2 9 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.

[N.J.S.A. 30:4C-15.1(a); see also N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986) (reciting the four controlling factors codified in N.J.S.A. 30:4C-15.1(a)).]

These four statutory factors are not "discrete and separate" but instead,

"they relate to and overlap with one another to provide a comprehensive standard

that identifies a child's best interests." In re Guardianship of K.H.O., 161 N.J.

337, 348 (1999). The Division must prove each of the four factors by clear and

convincing evidence. R.G., 217 N.J. at 554. That standard "is not a hollow

one," N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 168 (2010), as

such evidence produces "a firm belief or conviction as to the truth of the

allegations sought to be established, evidence so clear, direct and weighty and

convincing as to enable the factfinder to come to a clear conviction, without

A-3407-16T2 10 hesitancy, of the precise facts in issue." Ibid. (quoting In re Seaman, 133 N.J.

67, 74 (1993)).

The scope of review on appeals from orders terminating parental rights is

limited. R.G., 217 N.J. at 552. We are bound to uphold the trial court's findings

as long as they are supported by "adequate, substantial, and credible evidence."

Ibid. The Family Part's decision should be reversed or altered on appeal only 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, the

appellate court must give considerable deference to the family court judge's

expertise and opportunity to have observed the witnesses firsthand and evaluate

their credibility. R.G., 217 N.J. at 552-53. The Family Part "has the opportunity

to make first-hand credibility judgments about the witnesses who appear on the

stand; it has a 'feel of the case' that can never be realized by a review of the cold

record." N.J. Div. of Youth & Fam. Servs. v. E.P., 196 N.J. 88, 104 (2008)

(quoting M.M., 189 N.J. at 293).

Additionally, as the fact finder, while the "trial judge is 'not required to

accept all or any part of [an] expert opinion,'" In re Civil Commitment of R.F.,

217 N.J. 152, 156, 174 (2014) (quoting In re D.C., 146 N.J. 31, 59 (1996)), he

A-3407-16T2 11 or she may "place[] decisive weight on [the] expert." Id. at 174. Even where an

appellant alleges "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 (quoting C.B. Snyder Realty, Inc. v. BMW of N. Am. Inc., 233

N.J. Super. 65, 69 (App. Div. 1989)). However, "[a] trial court's interpretation

of the law and the legal consequences that flow from established facts are not

entitled to any special deference." R.G., 217 N.J. at 552 (quoting Manalapan

Realty, LP v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995)).

Against these standards of review, we discern no legal basis to disturb

Judge Einbinder's factual findings or her well-reasoned application of the

statutory prongs in N.J.S.A. 30:4C-15.1(a). Defendant remains unable or

unwilling to address her addiction. The expert witnesses who testified, both in

the Division's case in chief and on behalf of the children through the Law

Guardian, stressed the need for permanency and stability in these children's

lives. Judge Einbinder found the extended family members that defendant

proffered as placement options were unsuitable for this task. We also discern

no legal basis to disturb Judge Einbinder's decision to deny the maternal

grandparents' three motions to intervene in this case. Grandparents do not have

A-3407-16T2 12 a right to intervene absent a showing of psychological parentage which was not

alleged here. Watkins v. Nelson, 163 N.J. 235, 254 (2000).

Affirmed.

A-3407-16T2 13