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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1550-18T3
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
K.E,
Defendant-Appellant,
and
B.S.,
Defendant. _________________________
IN THE MATTER OF THE GUARDIANSHIP OF C.S.
a Minor. _________________________
Submitted January 28, 2020 – Decided February 14, 2020
Before Judges Fisher and Gilson. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FG-02-0032-17.
Joseph E. Krakora, Public Defender, attorney for appellant (Robyn A. Veasey, Deputy Public Defender, of counsel; Jennifer M. Kurtz, Designated Counsel, on the briefs).
Gurbir S. Grewal, Attorney General, attorney for respondent (Jane C. Schuster, Assistant Attorney General, of counsel; Natasha C. Fitzsimmons, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (David Ben Valentin, Assistant Deputy Public Defender, on the brief).
PER CURIAM
K.E. (Kayla) appeals from a judgment terminating her parental rights to
her son, C.S. (Chris) and granting guardianship to the Division of Child
Protection and Permanency (the Division). 1 Kayla argues that the trial court
erred in finding that it was in Chris' best interests to terminate her parental rights.
N.J.S.A. 30:4C-15.1(a). In particular, she challenges the findings of prongs two,
three, and four of the best-interests test, contending that Chris has special needs
and no adoptive home had been identified for him.
1 We use initials and fictitious names to protect privacy interests and the confidentiality of the record. See R. 1:38-3(d)(12). A-1550-18T3 2 The Division and Chris' law guardian urge that we affirm and permit Chris
to become available for selective home adoption. They argue that all the experts
who evaluated Kayla and Chris agree that it was in Chris' best interests to
terminate Kayla's parental rights. Having reviewed the record in light of the
parties' contentions and the applicable law, we affirm substantially for the
reasons explained by Judge William R. DeLorenzo, Jr. in his thorough, 105-page
written opinion filed on November 21, 2018.
The facts and evidence were detailed in Judge DeLorenzo's opinion, which
was rendered after a six-day trial. Consequently, we need only summarize some
of the facts. Kayla and B.S. (Brandon) are the biological parents of two children,
Chris and K.S. (Kyle). Kyle is now over the age of eighteen and the Division's
plan for him is independent living. Brandon did not participate in the trial and
he has not appealed from the judgment terminating his parental rights.
Accordingly, this appeal focuses on Chris, who was born in April 2005, and
Kayla.
Kayla has a history of issues involving mental health, substance abuse,
and domestic violence. Her most persistent problems arise from her mental
health. Since 2014, Kayla has undergone a series of mental health evaluations
and received various treatments. She has been diagnosed with bipolar disorder
A-1550-18T3 3 and has demonstrated anger management problems and instability. Kayla has
also failed to consistently take her prescribed mental health medications. On at
least four occasions, Kayla has been hospitalized for psychiatric reasons.
Several of those hospitalizations involved involuntary commitments because
Kayla was cutting herself or threatening suicide.
The Division has been involved with Kayla and her two sons since 2008.
Chris and Kyle were removed from the care of Kayla and Brandon in 2008
because Brandon and Kayla had a physical fight in front of the boys. After the
boys were returned to their parents' custody in 2009, the Division continued to
receive multiple referrals concerning domestic violence between the parents and
injuries to both Kyle and Chris.
In 2014, Chris and Kyle were again removed from their parents' custody
based on concerns that Kayla was using cocaine, leaving the children
unattended, and that her mental health was deteriorating. Since that removal,
Chris has been in the custody of the Division and he has not returned to the care
of Kayla.
While in the Division's custody, Chris has been in several resource homes
and he is currently at a treatment home. Chris is diagnosed with Attention
A-1550-18T3 4 Deficit Hyperactivity Disorder (ADHD) and attends a special therapeutic
school. He has developmental disabilities and has engaged in self-harm.
At trial, three experts testified: Dr. Samiris Sostre, a psychiatrist; Dr.
Robert Miller, a psychologist; and Dr. Elayne Weitz, a psychologist. Those
experts evaluated Kayla and found that she suffers from a number of mental
health problems. The experts opined that Kayla could not provide appropriate
care for Chris and that her mental health had little chance of improving to a level
that would permit her to care for Chris.
Dr. Miller and Dr. Weitz each performed bonding evaluations of Kayla
and Chris. Both experts opined that Kayla's unstable mental health problems
had caused psychological harm to Chris. Both experts also testified that
terminating Kayla's parental rights will ultimately benefit Chris because such a
termination is his only chance to achieve permanency. In that regard, Dr. Weitz
opined that even if there was no adoptive home available for Chris, terminating
Kayla's parental rights was still in Chris' best interests.
The Division also presented testimony from three workers at the trial: a
caseworker; a child-specific recruiter; and an adoption supervisor. In addition,
the Division submitted into evidence a number of documents. Dr. Weitz
testified on behalf of the law guardian. Kayla also testified at trial.
A-1550-18T3 5 After hearing all of the testimony and considering the various exhibits,
Judge DeLorenzo made detailed findings of fact and conclusions of law. He
found all the experts and the Division's workers to be credible. He found Kayla's
testimony to be incredible. Judge DeLorenzo then found that the Division had
proven by clear and convincing evidence all four prongs necessary for
termination of parental rights under N.J.S.A. 30:4C-15.1(a).
With regard to prong one, Judge DeLorenzo found that Chris had been
harmed by exposure to domestic violence between his parents and by Kayla's
mental health and instability.
Concerning prong two, Judge DeLorenzo found that Kayla was unable or
unwilling to eliminate the harm because she denies her mental health problems
and does not consistently treat those problems. Judge DeLorenzo also found
that further delay in a permanent placement for Chris "will only further harm
him."
Turning to prong three, Judge DeLorenzo found that the Division had
made extensive efforts to provide services to help Kayla address her mental
health and instability. In that regard, he reviewed the numerous psychological
and psychiatric evaluations, parenting classes, and therapy that had been
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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-1550-18T3
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
K.E,
Defendant-Appellant,
and
B.S.,
Defendant. _________________________
IN THE MATTER OF THE GUARDIANSHIP OF C.S.
a Minor. _________________________
Submitted January 28, 2020 – Decided February 14, 2020
Before Judges Fisher and Gilson. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FG-02-0032-17.
Joseph E. Krakora, Public Defender, attorney for appellant (Robyn A. Veasey, Deputy Public Defender, of counsel; Jennifer M. Kurtz, Designated Counsel, on the briefs).
Gurbir S. Grewal, Attorney General, attorney for respondent (Jane C. Schuster, Assistant Attorney General, of counsel; Natasha C. Fitzsimmons, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (David Ben Valentin, Assistant Deputy Public Defender, on the brief).
PER CURIAM
K.E. (Kayla) appeals from a judgment terminating her parental rights to
her son, C.S. (Chris) and granting guardianship to the Division of Child
Protection and Permanency (the Division). 1 Kayla argues that the trial court
erred in finding that it was in Chris' best interests to terminate her parental rights.
N.J.S.A. 30:4C-15.1(a). In particular, she challenges the findings of prongs two,
three, and four of the best-interests test, contending that Chris has special needs
and no adoptive home had been identified for him.
1 We use initials and fictitious names to protect privacy interests and the confidentiality of the record. See R. 1:38-3(d)(12). A-1550-18T3 2 The Division and Chris' law guardian urge that we affirm and permit Chris
to become available for selective home adoption. They argue that all the experts
who evaluated Kayla and Chris agree that it was in Chris' best interests to
terminate Kayla's parental rights. Having reviewed the record in light of the
parties' contentions and the applicable law, we affirm substantially for the
reasons explained by Judge William R. DeLorenzo, Jr. in his thorough, 105-page
written opinion filed on November 21, 2018.
The facts and evidence were detailed in Judge DeLorenzo's opinion, which
was rendered after a six-day trial. Consequently, we need only summarize some
of the facts. Kayla and B.S. (Brandon) are the biological parents of two children,
Chris and K.S. (Kyle). Kyle is now over the age of eighteen and the Division's
plan for him is independent living. Brandon did not participate in the trial and
he has not appealed from the judgment terminating his parental rights.
Accordingly, this appeal focuses on Chris, who was born in April 2005, and
Kayla.
Kayla has a history of issues involving mental health, substance abuse,
and domestic violence. Her most persistent problems arise from her mental
health. Since 2014, Kayla has undergone a series of mental health evaluations
and received various treatments. She has been diagnosed with bipolar disorder
A-1550-18T3 3 and has demonstrated anger management problems and instability. Kayla has
also failed to consistently take her prescribed mental health medications. On at
least four occasions, Kayla has been hospitalized for psychiatric reasons.
Several of those hospitalizations involved involuntary commitments because
Kayla was cutting herself or threatening suicide.
The Division has been involved with Kayla and her two sons since 2008.
Chris and Kyle were removed from the care of Kayla and Brandon in 2008
because Brandon and Kayla had a physical fight in front of the boys. After the
boys were returned to their parents' custody in 2009, the Division continued to
receive multiple referrals concerning domestic violence between the parents and
injuries to both Kyle and Chris.
In 2014, Chris and Kyle were again removed from their parents' custody
based on concerns that Kayla was using cocaine, leaving the children
unattended, and that her mental health was deteriorating. Since that removal,
Chris has been in the custody of the Division and he has not returned to the care
of Kayla.
While in the Division's custody, Chris has been in several resource homes
and he is currently at a treatment home. Chris is diagnosed with Attention
A-1550-18T3 4 Deficit Hyperactivity Disorder (ADHD) and attends a special therapeutic
school. He has developmental disabilities and has engaged in self-harm.
At trial, three experts testified: Dr. Samiris Sostre, a psychiatrist; Dr.
Robert Miller, a psychologist; and Dr. Elayne Weitz, a psychologist. Those
experts evaluated Kayla and found that she suffers from a number of mental
health problems. The experts opined that Kayla could not provide appropriate
care for Chris and that her mental health had little chance of improving to a level
that would permit her to care for Chris.
Dr. Miller and Dr. Weitz each performed bonding evaluations of Kayla
and Chris. Both experts opined that Kayla's unstable mental health problems
had caused psychological harm to Chris. Both experts also testified that
terminating Kayla's parental rights will ultimately benefit Chris because such a
termination is his only chance to achieve permanency. In that regard, Dr. Weitz
opined that even if there was no adoptive home available for Chris, terminating
Kayla's parental rights was still in Chris' best interests.
The Division also presented testimony from three workers at the trial: a
caseworker; a child-specific recruiter; and an adoption supervisor. In addition,
the Division submitted into evidence a number of documents. Dr. Weitz
testified on behalf of the law guardian. Kayla also testified at trial.
A-1550-18T3 5 After hearing all of the testimony and considering the various exhibits,
Judge DeLorenzo made detailed findings of fact and conclusions of law. He
found all the experts and the Division's workers to be credible. He found Kayla's
testimony to be incredible. Judge DeLorenzo then found that the Division had
proven by clear and convincing evidence all four prongs necessary for
termination of parental rights under N.J.S.A. 30:4C-15.1(a).
With regard to prong one, Judge DeLorenzo found that Chris had been
harmed by exposure to domestic violence between his parents and by Kayla's
mental health and instability.
Concerning prong two, Judge DeLorenzo found that Kayla was unable or
unwilling to eliminate the harm because she denies her mental health problems
and does not consistently treat those problems. Judge DeLorenzo also found
that further delay in a permanent placement for Chris "will only further harm
him."
Turning to prong three, Judge DeLorenzo found that the Division had
made extensive efforts to provide services to help Kayla address her mental
health and instability. In that regard, he reviewed the numerous psychological
and psychiatric evaluations, parenting classes, and therapy that had been
provided for Kayla. Judge DeLorenzo also found that the Division had
A-1550-18T3 6 considered various alternatives to termination of parental rights, but there was
no realistic alternative.
Finally, with regard to prong four, Judge DeLorenzo found clear and
convincing evidence that termination of Kayla's parental rights would not do
more harm than good. In making that finding, the judge relied on the unrebutted
and credible testimony of Dr. Miller and Dr. Weitz. Judge DeLorenzo noted
that both experts opined that Chris would not suffer severe or enduring harm in
being separated from Kayla and that both experts had significant concerns about
continued contact between Kayla and Chris because of Kayla's harmful behavior
towards Chris.
On this appeal, Kayla argues that the trial court erred in terminating her
parental rights. As already noted, she takes particular exception to Judge
DeLorenzo's findings on prongs two, three, and four. She argues that she has
made efforts to address her mental health and that it would not be in Chris' best
interests to terminate her parental rights particularly when no adoptive home had
been identified for Chris.
A review of the record establishes that all of the trial court's findings
concerning the four prongs are supported by substantial credible evidence. See
N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012) (quoting
A-1550-18T3 7 N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)).
Moreover, Judge DeLorenzo correctly summarized the law and correctly applied
the law to his factual findings. See N.J. Div. of Child Prot. & Permanency v.
P.O., 456 N.J. Super. 399, 407 (App. Div. 2018). Judge DeLorenzo
appropriately relied on the unrebutted testimony of Dr. Miller and Dr. Weitz,
both of whom conducted a number of evaluations and had a factual basis for
their opinions. In that regard, our Supreme Court has noted: "In a termination
of parental rights trial, the evidence often takes the form of expert . . . testimony
by psychiatrists, psychologists, and other mental health professionals." N.J.
Div. of Child Prot. and Permanency v. R.L.M., 236 N.J. 123, 146 (2018) (citing
Lassiter v. Dep't of Soc. Servs., 452 U.S. 18, 30 (1981)).
Kayla correctly points out that at the time of the guardianship trial, the
Division had not found a caregiver willing to adopt Chris. Instead, Chris was at
a special treatment home and the Division was searching for an appropriate
selective adoption home. Despite that significant problem, all the experts who
testified at trial agreed that Kayla was not in a position to provide appropriate
care to Chris. Several of the experts also opined that even continuing supervised
visitation was harmful to Chris. Consequently, Chris' best chance for
permanency was termination of Kayla's parental rights so that selective home
A-1550-18T3 8 adoption could occur as quickly as possible. We discern no basis to disagree
with the factual findings and legal conclusions reached by Judge DeLorenzo.
Affirmed.
A-1550-18T3 9