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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0016-16T1
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
K.S.,
Defendant-Appellant,
and
T.R.,
Defendant. __________________________________
IN THE MATTER OF THE GUARDIANSHIP OF Z.B. AND K.A.Z.B., minors. __________________________________
Submitted June 1, 2017 - Decided June 21, 2017
Before Judges Lihotz, O'Connor and Mawla.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FG-11-03-16.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven Edward Miklosey, Designated Counsel, on the brief). Christopher S. Porrino, Attorney General, attorney for respondent (Melissa Dutton Schaffer, Assistant Attorney General, of counsel; Joshua P. Bohn, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Louise M. Cho, Assistant Deputy Public Defender, on the brief).
PER CURIAM
Defendant K.S. appeals from an August 15, 2016 judgment,
terminating her parental rights and granting guardianship to
plaintiff, the Division of Child Protection and Permanency (the
Division) for the purpose of securing the adoption of her two
biological children, Z.B. and K.A.Z.B., ages eight and three,
respectively. On appeal, defendant argues the Division failed to
prove the statutory prongs necessary to terminate parental rights,
by clear and convincing evidence. We have reviewed her arguments
in light of the record and applicable law. We conclude the trial
judge's findings are sufficiently supported by the record
evidence. Accordingly, we affirm.
Defendant experienced repeated and severe trauma and loss
starting at age nine, when she was sexually molested by a male
relative. A few years later, her stepfather was murdered, shortly
followed by the death of her mother. Consequently, defendant
suffers from post-traumatic stress disorder. Defendant gave birth
2 A-0016-16T1 to her older child when she was thirteen. At that time, defendant
was diagnosed with bipolar disorder and post-partum depression,
when she reported auditory and visual hallucinations, began
cutting herself, attempted suicide, and experienced thoughts of
harming her infant. She was hospitalized, commenced therapy, and
prescribed Abilify and Lamictal.
The Division became involved with the family in 2010.
Defendant was placed in the residential custody of her maternal
aunt, and, with defendant's consent, her child was placed in the
residential custody of another maternal aunt. Problems arose.
Defendant and her custodial aunt became engaged in a physical
altercation, defendant assaulted a school official when caught
stealing, she experienced suicidal ideations, and was again
hospitalized. When interviewed by the Division, defendant's aunts
both requested to relinquish custody of defendant and her child.
On July 1 and 2, 2011, the Division conducted an emergency
removal of defendant and her child. After a short stay at Harbor
House Adolescent Shelter, defendant and her child were reunited
in a resource home.
The Division's attempts to place defendant with family
members was unsuccessful. Defendant's biological father was
unwilling and unable to provide a suitable home for her and her
child; her grandfather, who lived in Florida, was unable to cope
3 A-0016-16T1 with defendant's mental health issues. A cousin in Florida was
disqualified when she failed to complete half the necessary
parenting classes and maintain contact with the Division.
Defendant struggled in school, was adjudicated delinquent,
and failed to follow her resource mother's house rules, as she
would leave for several hours without telling anyone where she was
going.
The Division arranged for various services, which included
individual mental health treatment, medication, grief counseling,
anger management, life skills, parenting classes, and enrollment
in the Strengthening Adolescent Families through Empowerment
"Mommy and Me" program. Defendant made positive strides in her
own individual care and that of her child. Unfortunately, within
a year, her condition deteriorated. On November 7, 2012, the
Division amended its complaint to seek care and custody of
defendant's child, which was granted. Defendant's reunification
efforts were renewed and she and her child were placed in the
legal and physical custody of her cousin in Florida. There,
defendant became pregnant with her second child and returned to
New Jersey. Defendant, now over eighteen, agreed to continue with
the Division's recommended services and returned to her former
resource home.
4 A-0016-16T1 In a few months, defendant expressed frustration complying
with the services she was to engage. She told the Division to
"just take" the children, which prompted an emergency removal from
her care and the initiation of litigation.
Defendant resumed participation with the Division, attended
services, supervised visits, medication monitoring, and therapy,
which were recommended by Alexander Iofin, M.D., a psychiatrist,
to control defendant's significant psychiatric and behavioral
difficulties. Defendant initiated efforts to find employment and
housing. She maintained contact with the children through
supervised visitation.
A psychological evaluation by Amy Becker-Mattes, Ph.D.,
recommended defendant continue medication management and therapy
and re-enroll in a Mommy and Me program. Defendant registered for
evening classes at Mercer County Community College, continued
supervised visitation, and began overnight-supervised visits at
the Children's Home Society. Unfortunately, defendant changed her
residence, cancelled visits, was terminated from her parenting
classes for non-attendance, failed to attend one-half of the
scheduled therapy sessions, and was expelled from the shelter
residence for violating curfew. Defendant moved in with a friend.
The judge ordered a continuation of services, including
defendant's participation in a Mommy and Me program. Locating a
5 A-0016-16T1 program proved difficult; defendant's request for placement was
rejected because she had been dismissed from similar programs.
The Division located the NJ Mentor program, which proposed placing
defendant in a therapeutic home under the supervision of resource
parents, which would demonstrate stabilization, a necessary
precondition for admittance into the Mommy and Me program.
Defendant declined the arrangement and also refused to participate
in an updated psychiatric evaluation with Dr. Becker-Mattes,
advising she would be out-of-town.
The Division learned defendant was living with a boyfriend
and working for Burlington Coat Factory. Defendant reported she
was not taking her prescribed medications as directed and
acknowledged she experienced anger management difficulties.
Consequently, the Division reevaluated its permanency goal for the
children. Learning this, defendant resumed her medication, agreed
to attend trauma-focused counseling, restarted parenting classes,
and had supervised visitation.
Dr. Iofin updated his psychiatric evaluation on July 1, 2015.
Although he did not alter his prior findings, he now recommended
defendant receive random drug screens because of the proclivity
for drug use among people suffering the types of psychiatric issues
as defendant.
6 A-0016-16T1 The Division filed for guardianship on July 29, 2015. By
then defendant had moved again, lost her job, was not maintaining
her medication, missed counseling sessions despite being provided
transportation, was terminated from therapy for nonattendance,
missed the first day of a new job, and tested positive for cocaine.
Dr. Becker-Mattes updated her psychological evaluation on
August 14, 2015. She also performed bonding evaluations between
the children and their resource parents, then between defendant
and the children. Defendant retained Andrew P. Brown III, Ph.D.,
who performed similar bonding evaluations.
Other family members were contacted as possible resource
placements for the children. Defendant's father, sister, and
cousin did not respond to the Division's requests, or failed to
complete the requisites for placement. The older child's father
was located in Florida, and was considered, but he neither
expressed a desire nor expended the effort to cooperate with the
Division. The child's paternal grandmother was considered, but
the Florida Department of Children and Families declined her
application for licensure. The Division could not locate the
younger child's father.
Trial began on January 12, 2016. The Division presented
testimony from caseworker, Tamika Somorin, the children's resource
mother, and LaToya Gaines, a Division adoption caseworker. The
7 A-0016-16T1 Division's expert was Dr. Becker-Mattes, and numerous documents
were admitted into evidence. Defendant presented expert testimony
from Dr. Brown and testimony from Edwige Paul Theokas, her
counselor and her former foster mother. Finally, defendant
testified on her own behalf.
We detail the expert testimony. Dr. Becker-Mattes
administered standardized testing, reviewed defendant's records,
and conducted clinical interview sessions. She concurred with
defendant's diagnosis of bipolar disorder, which required regular
mood stabilizing medication and ongoing therapy. Dr. Becker-
Mattes explained people suffering from bipolar disorder commonly
avoid taking medication during manic episodes, which becomes
problematic during subsequent depressive episodes. Specific to
defendant, she reviewed her history of stability periods followed
by lapses and noncompliance. Dr. Becker-Mattes explained these
periods of lapsed medication posed a significant risk to the
children because, when defendant did not take her medication, she
experienced mood swings, excessive irritability, excessive energy,
and impaired judgment.
From her evaluation, Dr. Becker-Mattes concluded defendant
could not serve as an independent caretaker for the children. Of
particular concern was defendant's inconsistencies with medication
monitoring, which in turn resulted in defendant's abandonment of
8 A-0016-16T1 other services. Dr. Becker-Mattes also noted defendant's
standardized test results showed an "elevated [g]randiosity
subscale." She interpreted the results as showing defendant
displayed interpersonal overconfidence, preventing her willingness
to listen to others, even though she needed assistance and
guidance.
In discussing the bonding evaluation results, Dr. Becker-
Mattes observed defendant was very affectionate with the children;
she nuzzled and kissed them. She later withdrew emotionally and
was "on edge." Defendant issued many instructions and reprimanded
the one-year-old when she dropped cards, causing the child to cry.
She deflected this by stating: "I don't care about that attitude
stuff; I'm not [the children's resource mother]." Further, in Dr.
Becker-Mattes' opinion, defendant overstimulated the children,
which was a stressful and unhealthy dynamic for all.
Dr. Becker-Mattes opined defendant's very sudden change in
behavior reflected she was not properly taking her medication.
Overall, Dr. Becker-Mattes concluded the bond between mother and
children was "quite negative."
In contrast, Dr. Becker-Mattes concluded the bonding between
the children and their resource parents was strong and positive.
The resource parents participated in structured and goal-oriented
activities and provided the children with positive feedback and
9 A-0016-16T1 encouragement. The younger child appeared particularly
affectionate, putting her head on the resource mother's knees;
also, the older child appeared calmer and more relaxed than with
defendant.
Dr. Becker-Mattes concluded the children would suffer harm
if separated from their resource parents. She also stated
defendant was not likely, or able, to mitigate the harm resulting
from such a loss.
Dr. Brown was qualified as an expert in clinical
neuropsychology. Dr. Brown's methodology was similar to Dr.
Becker-Mattes, as he administered different standardized tests and
conducted a clinical interview. He rejected the use of various
projective tests, including the personality assessment inventory
cited by Dr. Becker-Mattes, because they were of poor "reliability
and validity." Further, he noted defendant had no confirmed
history of child abuse, making tests measuring that possibility
more likely to result in a false positive. He criticized the
Division's treatment of defendant as unfair, suggesting it was
"paying lip service" to the goal of reunification.
Dr. Brown reviewed defendant's records, confirming she
suffered from bipolar disorder, for which she was prescribed
medication, and engaged in "sporadic" treatment. He emphasized
defendant's efforts and successes, including graduating from high
10 A-0016-16T1 school, gaining employment, and maintaining a residence. He
reviewed her current circumstances of housing and employment,
describing them as stable, and noted she was making future plans.
He highlighted defendant was "putting forth a great deal of effort
at her young age . . . despite her past, despite her traumas, to
be a mother to her children." He noted defendant expressed
awareness of her inappropriate behavior and agreed she needed
help.
Dr. Brown noted defendant's continued success hinged upon
education, and a developed awareness and understanding of bipolar
disorder, asserting "if [defendant] remains compliant with her
psychiatric management, then I think the prognosis is very good."
Dr. Brown agreed, "80% of bipolar patients stop taking their
medication," which was a very likely possibility in defendant's
case. He advocated defendant would overcome relapses with
"cognitive behavior therapy," which he did not find referenced in
defendant's records. Dr. Brown "had no concerns" about defendant's
ability to provide independent care for the children because her
composite score on testing "did not render her to be outside of
the norm of the community."
Dr. Brown also concluded the children were bonded to
defendant, she did not display "episodes of anger, . . . shallow
frustration tolerance or irritability or . . . anything that would
11 A-0016-16T1 indicate she was a threat to harm her children." Further, "[s]he
showed patience. She responded gently to her children. So her
symptoms, again, appear to be under control."
He agreed the children were comfortable with their resource
parents, with whom they were bonded and appeared closer to the
resource mother than the father. Dr. Brown testified the resource
parents were the children's psychological parents, but defendant
was their natural parent, and consequently, their bond with her
was stronger, particularly the bond by the older child. Dr. Brown
believed it was rare for children to have a stronger bond by a
third-party than with their natural parent.
Dr. Brown opined both children would suffer irreparable harm
from losing contact with defendant: the older child because the
bond was so strong and the younger child, who would sense the loss
experienced by the older sibling. The younger child would have a
deeper sense of loss when separated from the resource parents and
would need therapy. Any loss could be mitigated if defendant
maintained a relationship between the younger child and the
resource parents or if defendant could maintain contact with the
children if adopted by the resource parents.
On cross-examination, Dr. Brown noted defendant told him the
positive hair follicle test occurred because she "touched
cocaine." When asked whether he believed defendant or thought
12 A-0016-16T1 that was possible, he stated it "was not [his] field of expertise,"
but conceded those with bipolar disorder who do not take their
medication have a tendency to self-medicate with illicit drugs.
Dr. Brown acknowledged he did not follow-up with information
related by the resource mother regarding the children. For
example, the older child wets the bed prior to seeing defendant
and expressed fear when discussing her. In April 2016, the older
child told defendant he wanted to live with his resource mother
during this time. Dr. Brown conceded a "primary byproduct of
bipolar disorder is a dysregulation of anger and emotion and sleep
and so on" and agreed "in the past without medication, [defendant]
was probably very horrible"; yet Dr. Brown refuted the future
possibilities were governed by this past conduct.
Finally, Dr. Brown agreed his bonding conclusions were based
on defendant's assertion she cared for her older child for the
first five years; Dr. Brown admitted he had no knowledge the child
was in the custody of defendant's aunt.
The children's resource parent discussed the children's
status. She agreed she would allow defendant future contact with
the children were she permitted to adopt them. Defendant's
counselor stated she consistently attended parenting classes for
six months and self-reported maintaining stable housing for three
months and employment. The counselor discussed defendant's self-
13 A-0016-16T1 reports, made six months earlier, regarding medication compliance,
which were later learned to be inaccurate.
Defendant's former foster mother discussed their past
relationship, refuting any claim she asked defendant to leave.
She emphasized her willingness to provide help to defendant and
the children in the future. The Division's adoption caseworker
confirmed defendant was working at an Amazon warehouse and lived
in the same residence for the past six months.
Defendant confirmed her sustained housing and current
employment. She insisted she remained medication compliant since
her younger child was born in 2014, even though she did not always
attend the medication monitoring sessions. When confronted,
defendant asserted no current need for medication. She described
her apartment of nine months, which accommodated the children, and
stated she enrolled in a nursing program at Mercer County Community
College. Supplemental information showed defendant completed the
educational course and was hired as a certified nursing assistant
at a nursing home. She currently attended therapy and maintained
participation in medication monitoring since December 2015, noting
her dosage of Abilify was recently lowered. She expressed love
for her children and her intention to provide stable, safe care
for them. She continued therapeutic visits.
14 A-0016-16T1 The judge delivered a comprehensive oral opinion on August
11, 2016. She found the Division established all four prongs of
the best interests test, and ordered defendant's parental rights
terminated to free the children for adoption. On appeal, defendant
argues the findings were not supported by the weight of the
evidence. She requests we reverse the guardianship judgment.
The scope of our review of a trial court's decision to
terminate parental rights is limited. In re Guardianship of
J.N.H., 172 N.J. 440, 472 (2002). We are obliged to accord
deference to the trial judge's factual findings, based upon the
opportunity of the judge to see and hear the witnesses, as
"[p]articular deference is owed to credibility determinations."
N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 185
(2010); see also N.J. Div. of Youth & Family Servs. v. M.M., 189
N.J. 261, 279 (2007); Cesare v. Cesare, 154 N.J. 394, 411-12
(1998). A judgment of a trial judge "should not be overthrown
except upon the basis of a carefully reasoned and factually
supported (and articulated) determination, after canvassing the
record and weighing the evidence, that the continued viability of
the judgment would constitute a manifest denial of justice." In
re Adoption of a Child by P.F.R., 308 N.J. Super. 250, 255 (App.
Div. 1998) (quoting Baxter v. Fairmont Food Co., 74 N.J. 588, 597-
98 (1977)). Reversal is required only in those circumstances when
15 A-0016-16T1 the stated findings are "so wide of the mark that a mistake must
have been made." M.M., supra, 189 N.J. at 279 (citations omitted).
However, the "traditional scope of review is expanded" when
the appellant challenges, in particular, the trial judge's
evaluation of the underlying facts and the implications drawn from
those facts. Ibid.; see also N.J. Div. of Youth & Family Servs.
v. G.L., 191 N.J. 596, 605 (2007) ("There is an exception to that
general rule of deference: Where the issue to be decided is an
'alleged error in the trial judge's evaluation of the underlying
facts and the implications to be drawn therefrom,' we expand the
scope of our review" (quoting In re Guardianship of J.T., 269 N.J.
Super. 173, 189 (App. Div. 1993))). "Despite such circumstances,
deference will still be accorded to the trial judge's findings
unless it is determined that they went so wide of the mark that
the judge was clearly mistaken." G.L., supra, 191 N.J. at 605.
Indeed, this court accords no special deference to the trial
court's "interpretation of the law and the legal consequences that
flow from established facts[,]" Manalapan Realty, L.P. v. Twp.
Comm. of Manalapan, 140 N.J. 366, 378 (1995), which this court
reviews de novo. Dep't of Envtl. Prot. v. Kafil, 395 N.J. Super.
597, 601 (App. Div. 2007).
"The Federal and State Constitutions protect the
inviolability of the family unit." In re Adoption of a Child by
16 A-0016-16T1 W.P. & M.P., 308 N.J. Super. 376, 382 (1998) (citing Stanley v.
Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212-13, 31 L. Ed.
2d 551, 558-59 (1972)), vacated on other grounds, 163 N.J. 158
(2000). Parents hold a constitutionally protected, fundamental
liberty interest in raising their biological children. Santosky
v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394, 71 L. Ed. 2d
599, 606 (1982). However, government "is not without
constitutional control over parental discretion in dealing with
children when their physical or mental health is jeopardized."
Parham v. J.R., 442 U.S. 584, 603, 99 S. Ct. 2493, 2504, 61 L. Ed.
2d 101, 119 (1979) (citing Wisconsin v. Yoder, 406 U.S. 205, 230,
92 S. Ct. 1526, 1540, 32 L. Ed. 2d 15, 33 (1972)). The State, as
parens patriae, may sever the parent-child relationship to protect
the child from serious physical and emotional injury. W.P. &
M.P., supra, 308 N.J. Super. at 382.
When a child's biological parent resists termination of
parental rights, the court must determine whether the parent can
raise the child without causing harm. In re Guardianship of J.C.,
129 N.J. 1, 10 (1992). The cornerstone of our inquiry is not
whether the parent is fit, but whether the parent can "cease
causing their child harm" and become fit to assume the parental
role within time to meet the child's needs. Ibid. "The analysis
. . . entails strict standards to protect the statutory and
17 A-0016-16T1 constitutional rights of the natural parents." Ibid. "The burden
rests on the party seeking to terminate parental rights 'to
demonstrate by clear and convincing evidence' that risk of 'serious
and lasting [future] harm to the child' is sufficiently great as
to require severance of the parental ties." W.P. & M.P., supra,
308 N.J. Super. at 383 (quoting J.C., supra, 129 N.J. at 10).
Examination "focuses upon what course serves the 'best
interests' of the child." Ibid.; see also N.J. Div. of Youth &
Family Servs. v. A.W., 103 N.J. 591, 612 (1986) (requiring the
State to satisfy the "best interests of the child" test by clear
and convincing evidence before termination of parental rights can
be ordered). More specifically, the four-pronged statutory test
requires the Division to prove:
(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
18 A-0016-16T1 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 In re Guardianship of K.H.O., 161 N.J. 337, 347-48 (1999).]
These standards are neither discrete nor separate; they
overlap to provide a composite picture of what may be necessary
to advance the best interests of the children. I.S., supra, 202
N.J. at 167; K.H.O., supra, 161 N.J. at 348 (stating the statute's
four parts "relate to and overlap with one another to provide a
comprehensive standard that identifies a child's best
interests.").
"The considerations involved in determinations of parental
fitness are 'extremely fact sensitive' and require particularized
evidence that address the specific circumstances in the given
case." K.H.O., supra, 161 N.J. at 348 (quoting In re Adoption of
Children by L.A.S., 134 N.J. 127, 139 (1993)).
Clear-and-convincing evidence is "that which 'produce[s] in the mind of the trier of fact 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 hesitancy of the precise facts in issue.'"
[In re Seaman, 133 N.J. 67, 74 (1993) (alterations in original) (quoting In re
19 A-0016-16T1 Boardwalk Regency Casino License Applicant, 180 N.J. Super. 324, 339 (App. Div. 1981), modified, 90 N.J. 361 (1982)).]
We turn to defendant's arguments, challenging the weight of
the Division's evidence and whether it satisfactorily met this
high burden. Defendant maintains the judge erred when concluding
the first prong was satisfied because "injury to children need not
be physical to give rise to State termination of biological parent-
child relationships." In re Guardianship of K.L.F., 129 N.J. 32,
44 (1992) (citing J.C., supra, 129 N.J. at 18). Emphasizing there
is no proof of physical harm to either child and the children were
not subjected to her past unstable housing, defendant believes she
fully refuted the Division's evidence directed to prove prong one.
We are not persuaded.
It is not necessary to wait "until a child is actually
irreparably impaired by parental inattention or neglect" in order
to find child harm. In Guardianship of D.M.H., 161 N.J. 365, 383
(1999). The Supreme Court has instructed "[s]erious 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." K.L.F., supra, 129 N.J. at 44 (citing J.C., supra, 129
N.J. at 18). "The child's right to a permanent home has gained
increasing prominence" in this analysis. N.J. Div. of Youth &
20 A-0016-16T1 Family Servs. v. P.P., 180 N.J. 494, 505 (2004) (quoting In re
Adoption of Children by G.P.B., Jr., 161 N.J. 396, 404 (1999)).
"Children must not languish indefinitely in foster care while a
birth parent attempts to correct the conditions that resulted in
an out-of-home placement." N.J. Div. of Youth & Family Servs. v.
S.F., 392 N.J. Super. 201, 209 (App. Div. 2007).
Accordingly, when reviewing the evidence, a trial judge
should not focus "on a single or isolated . . . or past harm";
instead, the judge must consider "the effect of harms arising from
the parent-child relationship over time on the child's health and
development." K.H.O., supra, 161 N.J. at 348. Indeed, "[a]
parent's withdrawal of . . . solicitude, nurture, and care for an
extended period of time is in itself a harm that endangers the
health and development of [a] child." D.M.H., supra, 161 N.J. at
379.
We applaud defendant's efforts made immediately prior to
trial: she continued her education in the nursing profession; she
had not moved for nine months; and retained employment. We wish
defendant continued success in maintaining milestones as she
conquers the difficulties presented by her illness. If these six
months were isolated as the basis for review, our conclusions
might be different. However, we cannot ignore the totality of the
evidence. Defendant's successes as demonstrated at trial remain
21 A-0016-16T1 fragile, particularly in light of her sporadic, inconsistent
history of repeated compliance and relapse.
The Division's involvement with the family began in 2010.
The trial judge correctly considered defendant's acts and
omissions beginning in 2014, rather than emphasizing behaviors
during her youth. Since the younger child was born, the evidence
reveals defendant's inability to sustain a safe and secure home
for the children. She engaged in explosive episodes of anger when
things were not as she wished; she rejected assistance from the
Division and its providers as working against her. Other behaviors
reflected a deterioration of her mental health and her decision-
making skills by inconsistently engaging in treatment; rebuffing
the importance of counseling, which included an emphasis on
medication compliance and monitoring because her claims of
consistent medication compliance were untrustworthy; declining
services she felt unnecessary or restrictive; allowing services
to terminate because of excessive absences; rejecting house rules
with which she found fault; living in nine different residences
during the prior two-year period; withholding information from the
Division and even her own evaluator, including at times her
whereabouts; engaging in criminal conduct, which resulted in
incarceration; and dabbling in cocaine use.
22 A-0016-16T1 The judge concluded the evidence showed a very high risk of
harm to the children as a result of the parental relationship,
before and after the Division obtained custody. See M.M., supra,
189 N.J. at 290. The judge emphasized defendant's lack of
demonstrated stability, essential for the children's security.
She found the Division demonstrated erratic, unpredictable, and
dangerous behaviors by defendant when she was not engaged in
treatment. Even defendant's expert conceded repeated relapses by
sufferers of bipolar disorder were common and expected. The lack
of a safe, permanent home constitutes "harm" under the best
interests standard. D.M.H., supra, 161 N.J. at 383; J.C. supra,
129 N.J. at 26 (holding as an underlying concern a child's need
for permanency within a reasonable amount of time). Also, the
judge acknowledged defendant's conduct during these periods was
"probably very horrible." See N.J. Div. of Youth & Fam. Servs.
v. A.G., 344 N.J. Super. 418, 439-40 (App. Div. 2001) (noting
mental illness of a parent may create an environment where the
parent is incapable of safely caring for the children), certif.
denied, 171 N.J. 44 (2002).
Defendant's syllogism suggesting a finding of harm because
of her illness opens the possibility for all bipolar parents to
be considered unfit is rejected. The trial judge very precisely
found it was not defendant's mental disorder itself, but her
23 A-0016-16T1 failure to engage in necessary treatment consistently, which
satisfied prong one.
Dr. Brown's hypothesis, which blamed the Division for
triggering defendant's relapses, is also rejected. The record
shows when an extended visit was cancelled because the children
were ill, defendant's disappointment triggered her relapse.
However, life is filled with disappointments, large and small. If
similar disappointments are sufficient to trigger defendant's
relapse, serious exposure to potential harm is present.
The evidence further satisfies the related prong two.
Defendant's repeated relapses, caused by her inability or
unwillingness to consistently address and treat her mental
illness, constituted harm. These relapses, which went unabated,
posed a risk to the safety and security of the children. See Div.
of Youth & Family Servs. v. F.M., 211 N.J. 420, 450-51 (2012).
The sustained success immediately before trial was the longest
experienced by defendant. The judge considered this and concluded
six months were insufficient to show defendant had conquered the
impediments to reunification and would consistently follow
through, placing the children's needs first. The judge, crediting
Dr. Becker-Mattes' evaluation, concluded defendant
"over[]estimated her capabilities and minimized her limitations."
24 A-0016-16T1 A myriad of efforts, extended by the Division to achieve
reunification, was recounted by the trial judge. The Division
provided "coordinated" services, which had a "realistic potential"
of success. N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J.
Super. 245, 267 n.10 (App. Div. 2002). The judge acknowledged
programs which defendant completed. She also discussed those not
completed because of defendant's unwillingness to cooperate, which
impeded achieving reliability as an independent caregiver. The
judge rejected Dr. Brown's suggestion the Division's efforts were
not addressed to reunification or the services were insufficient.
Reasonable efforts to locate family members as viable placements
for the children was also proven. See N.J. Div. of Youth & Family
Servs. v. K.L.W., 419 N.J. Super. 568, 582 (App. Div. 2011)
(commenting the Division is not obligated "to search the fifty
states or even the twenty-one counties to identify [relatives]
. . . .").
We defer to these findings grounded on unrefuted evidence in
the record. We also reject defendant's argument the Division was
required to re-investigate and re-assess family members determined
to be unqualified caregivers.
The final prong demands proof "[t]ermination of parental
rights will not do more harm than good" to the affected children.
N.J.S.A. 30:4C-15.1(a)(4). This "fail-safe" guards against
25 A-0016-16T1 termination of rights where a judge concludes termination is
inappropriate, even in light of proof of the first three prongs.
G.L., supra, 191 N.J. at 609.
Defendant relies on the experts' observation she is an
affectionate mother, who has a bond with her children. She argues
insufficient weight was given to Dr. Brown's opinion the older
child will suffer irreparable harm if the bond with his mother is
permanently severed.
The bonding experts were at odds on this point. The trial
judge credited the analysis of the Division's expert, Dr. Becker-
Mattes, finding Dr. Brown's opinion was "not in accord with the
overwhelming credible evidence offered in this trial . . . to the
contrary." Further, she found Dr. Brown's conclusion of
defendant's mental stability was internally inconsistent with his
suggested expectation she would experience relapses, as well as
the record showing a pattern of "primarily noncompliance." The
judge also discredited Dr. Brown's opinion because it heavily
relied on defendant's clinical interview statements rather than
"the voluminous information chronicled in her long history with
the Division."
The judge evaluated the evidence of the stress experienced
by the children, before, during, and after visits. She noted Dr.
Brown admitted the younger child's stronger bond rests with the
26 A-0016-16T1 resource parents, who are the only caregivers the child has known.
Further, the older child considers them as psychological parents
and had the fortitude to reveal to his resource mother the desire
to stay in their care. Both experts acknowledged the safe and
secure bond between the children and their nurturing resource
parents, who can aid them to overcome a loss. The resource parents
readily recognized the children's needs and were committed to
facilitating those needs.
We defer to the judge's factual findings, based on her ability
to hear the witnesses and watch their testimony. Her thorough
findings fulfill her "responsibility to make sense of the competing
views presented by the experts and to assure a complete and
balanced presentation of all relevant and material evidence
sufficient to enable it to make a sound determination of the
child's best interests." K.L.F., supra, 129 N.J. at 44.
In light of our review, we conclude Judge Audrey P.
Blackburn's judgment terminating defendant's parental rights and
awarding guardianship to facilitate adoption of the children by
their resource parents is amply supported by the evidence and will
not be disturbed. Judge Blackburn properly weighed the testimony
of each witness, as well as the other evidence to determine the
children's best interests, which she concluded were stability and
27 A-0016-16T1 permanency. J.C., supra, 129 N.J. at 26. We discern no error in
applying the facts to the applicable law.
Affirmed.
28 A-0016-16T1