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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4771-17T1
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
M.A.S.,
Defendant-Appellant. _____________________________
IN THE MATTER OF THE GUARDIANSHIP OF M.T.E. and M.L.E.,
Minors. _____________________________
Argued May 16, 2019 – Decided June 4, 2019
Before Judges Simonelli, Whipple and Firko.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FG-11-0008-18. Laura Orriols, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Laura Orriols, on the briefs).
Christina Anne Duclos, Deputy Attorney General, argued the cause for respondent (Gurbir S. Grewal, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Christina Anne Duclos, on the brief).
Meredith Alexis Pollock, Deputy Public Defender, argued the cause for minor (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Nancy P. Fratz, Assistant Deputy Public Defender, on the brief).
PER CURIAM
Defendant M.A.S., the biological mother of M.T.E. and M.L.E., born in
October 2013 and August 2015, respectively, appeals from the June 1, 2018
judgment of guardianship, which terminated her parental rights to the children.
Defendant contends the trial judge erred in finding that plaintiff Division of
Child Protection and Permanency (Division) proved prongs three and four of
N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence, and in admitting the
testimony of the Division's psychological expert. We reject these contentions
and affirm.
We will not recite in detail the history of the Division's involvement wit h
the family. Instead, we incorporate by reference the factual findings set forth in
A-4771-17T1 2 Judge Wayne J. Forrest's comprehensive written opinion, dated June 1, 2018.
We add the following comments.
Defendant stipulated to David Brandwein, Psy.D. testifying as an expert
in the field of psychology and did not question his qualifications. Brandwein
conducted a psychological evaluation of defendant, as well as bonding
evaluations between defendant and the children, and between the resource
parents and the children.
Brandwein testified that defendant has an IQ of sixty-three, which
indicates she suffers from an intellectual disability, which is a life-long
condition that could not be remediated through services. Brandwein opined that
due to defendant's low level of intellectual functioning she could not
independently parent her children and would not be able to do so in the
foreseeable future.
Brandwein acknowledged that defendant had complied with the services
the Division provided to her; however, she had not benefited from those
services, as her hygiene and parenting skills were still of concern. Defendant's
lack of insight and understanding of her deficits also limited her ability to
change her behavior.
A-4771-17T1 3 According to Brandwein, defendant did not understand why the Division
removed children from her. Defendant averred that her cousins had made false
allegations of neglect, and denied ever neglecting the children in terms of
feeding and bathing them, or in the conditions of the home. Defendant also
believed her lack of housing was the only reason she was not reunited with her
children. She admitted she had no support system, but denied she needed help
in caring for the children.
Brandwein opined that defendant's intellectual disability created
significant problems with her general reasoning, insight, and judgment, and this
negatively affected her ability to care for herself, let alone safely parent her
children, or understand and meet the children's needs. Brandwein did not
believe defendant would knowingly abuse her children. However, he opined
that her condition created a risk of neglect through acts of omission that would
endanger the children in terms of "[c]onsistent care for the children, consistent
attention to their physical needs, consistent attention to their psychological
needs, consistent attention to their educational needs, [and] consistent attention
to their medical needs."
Furthermore, Brandwein believed the risk to the children if placed with
defendant would be "persistent and quite high." He did not foresee a time when
A-4771-17T1 4 defendant's abilities would improve to the point that she could safely parent the
children on her own. She would require "[twenty-four/seven] one hundred
percent around the clock supervision, which is not feasible with children this
young for, basically, [fifteen] or [sixteen] years." Brandwein opined that
defendant was unable to safely parent children of such young ages, who would
be totally dependent upon her to meet their needs, and she would struggle to
raise a child with special needs, which may be the case with M.T.E.
In terms of bonding, Brandwein observed that the children did not have a
secure psychological bond with defendant and did not look to her to fulfill
parental functions. Rather, their primary parental attachment was to their
resource parents, who were capable of providing them with safe and stable
nurturance. Brandwein opined that the children would not suffer enduring
psychological harm if their relationship with defendant was severed, although
M.T.E. might display a short-term grief reaction, which could be alleviated
through her relationship with her resource parents. Brandwein further opined
that both children, and particularly M.L.E., were likely to suffer significant and
enduring harm if their relationship with their resource parents was severed.
Ultimately, Brandwein concluded the risk of harm that would arise from
placing the children in defendant's care far outweighed the risk of harm in
A-4771-17T1 5 severing their relationship with her. Moreover, Brandwein saw no benefit in
delaying permanency for the children, because the risk of placing the children
with defendant would not decrease over time, whereas the risk associated with
removing them from their resource parents would become greater. Brandwein
believed it was in the children's best interests to be adopted by their resource
parents. However, he was adamant that the children could not be safely placed
with defendant, regardless of the permanency plan. Brandwein's testimony was
undisputed.
On appeal, defendant contends Judge Forrest erred in admitting and
relying on Brandwein's testimony because Brandwein: (1) was unqualified to
testify about individuals with intellectual disabilities; and (2) testified
inaccurately that defendant demonstrated no improvement from the services she
received.
Defendant stipulated to Brandwein testifying as an expert in the field of
psychology and did not question his qualifications. Therefore, the doctrine of
invited error prevents her from contesting his qualifications on appeal. N.J. Div.
of Child Prot. & Permanency v. A.B., 231 N.J. 354, 367 (2017); N.J. Div. of
Youth & Family Servs. v. M.C. III, 201 N.J. 328, 340-41 (2010).
A-4771-17T1 6 In any event, defendant's contention lacks merit. Brandwein testified to
his relevant experience, and his education and experience is set forth in his
curriculum vitae. Moreover, both his testimony and his expert's report reflect
his expertise and understanding of defendant's intellectual functioning and
abilities as it pertains to her capacity to parent her children.
In addition, Brandwein testified that the records he reviewed, from June,
July, and November 2016, reflected concerns about defendant's "ability to use
the skills that she had learned." He further testified that these concerns were
consistent with his findings as to defendant's intellectual deficits and her level
of insight and functioning, which were based not only upon his review of the
records, but also his psychological evaluation of defendant.
Defense counsel cross-examined Brandwein about the limited number of
records he reviewed, and argued in summation that his review was inadequate.
Thus, Judge Forrest understood the bases for Brandwein's opinions, as well as
defendant's arguments on the matter.
In his written opinion, Judge Forrest implicitly rejected defendant's
argument. The judge found Brandwein to be a credible witness "based on his
thorough understanding of the facts of the case, his candid responses to
questions posed to him and his educational training and lengthy experience as a
A-4771-17T1 7 licensed psychologist." Thus, the judge relied on Brandwein's testimony.
However, the judge also relied on the testimony of a Division caseworker, as
well as the judge's own review of the documentary record, to conclude that the
Division had proven all four prongs of N.J.S.A. 30:4C-15.1(a) by clear and
convincing evidence. Accordingly, we find no error, let alone plain error, in the
admission of Brandwein's testimony. R. 2:10-2.
Defendant does not challenge Judge Forrest's findings on prongs one and
two of N.J.S.A. 30:4C-15.1(a). She contends the judge erred in finding the
Division proved prongs three and four of N.J.S.A. 30:4C-15.1(a) by clear and
convincing evidence.
Our Supreme Court has established the standard of review in parental
termination cases:
Our task as an appellate court is to determine whether the decision of the family court in terminating parental rights is supported by "'substantial and credible evidence' on the record." 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. . . . We will not overturn a family court's factfindings unless they are so "wide of the mark" that our intervention is necessary to correct an injustice. It is not our place to second-guess or substitute our judgment for that of the family court, provided that the record contains
A-4771-17T1 8 substantial and credible evidence to support the decision to terminate parental rights.
[N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012) (citations omitted) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007); N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)).]
Applying this standard, we discern no reason to reverse.
Prong Three
Defendant argues Judge Forrest erred in finding the Division proved prong
three by clear and convincing evidence because services the Division provided
to her were not reasonable, as they were not tailored to her intellectual disability
and needs. We disagree.
"The third prong requires an evaluation of whether [the Division] 'made
reasonable efforts to provide services to help the parent' remedy the
circumstances that led to removal of the children from the home." F.M., 211
N.J. at 452 (quoting N.J.S.A. 30:4C-15.1(a)(3)). The emphasis on the third
prong
is on the steps taken by [the Division] toward the goal of reunification. "The diligence of [the Division's] efforts on behalf of a parent is not measured by" whether those efforts were successful. "'Reasonable efforts' may include consultation with the parent, developing a plan for reunification, providing services essential to the realization of the reunification plan,
A-4771-17T1 9 informing the family of the child's progress, and facilitating visitation." Experience tells us that even [the Division's] best efforts may not be sufficient to salvage a parental relationship.
[Ibid. (citations omitted) (quoting In re Guardianship of DMH, 161 N.J. 365, 393 (1999); M.M., 189 N.J. at 281).]
As part of the inquiry, "the court must consider the alternatives to termination
of parental rights and whether the Division acted reasonably." N.J. Div. of
Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 434-35 (App. Div. 2001).
"The reasonableness of the Division's efforts depends on the facts in each
case." Id. at 435. "Reasonable efforts depend on the facts and circumstances of
each case." N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 557
(2014). "Services that may address one family's needs will not be helpful to
another." DMH, 161 N.J. at 390. Therefore, "[w]hether particular services are
necessary in order to comply with the diligent efforts requirement must . . . be
decided with reference to the circumstances of the individual case before the
court, including the parent's active participation in the reunification effort."
Ibid.; see also N.J. Div. of Child Prot. & Permanency v. T.D., 454 N.J. Super.
353, 382-83 (App. Div. 2018) (finding the Division failed to provide reasonable
services that accounted for the defendant's mobility issues, where she suffered
from multiple sclerosis and used a wheelchair); A.G., 344 N.J. Super. at 442
A-4771-17T1 10 ("The Division's efforts in providing classes and parenting programs must by
their very nature take into consideration the abilities and mental conditions of
the parents.").
Nevertheless, "[t]he diligence of [the Division's] efforts on behalf of a
parent is not measured by their success. Thus, the parent's failure to become a
caretaker for his [or her] children is not determinative of the sufficiency of [the
Division's] efforts at family reunification." DMH, 161 N.J. at 393. Rather, the
Division's "efforts must be assessed against the standard of adequacy in light of
all the circumstances of a given case." Ibid. Moreover, even if the services
offered were deficient, reversal of a termination order is not necessarily
warranted. The best interests of the children controls. N.J. Div. of Youth &
Family Servs. v. L.J.D., 428 N.J. Super. 451, 488 (App. Div. 2012).
Citing the documentary record, Judge Forrest found "the Division has
made numerous and continuous efforts to provide services to [defendant] in
order to reunify her with her children," including "weekly supervised visitation
. . . psychological and bonding evaluations, parental capacity evaluations,
substance abuse evaluations, urine screens, life skills training, parenting classes,
individual counseling, assistance with SSI and housing assistance and referrals."
The judge also noted the Division regularly held family team meetings and
A-4771-17T1 11 visited the children in their resource home, provided the children with necessary
early intervention and medical services, provided transportation assistance to
defendant, and considered the potential caregivers suggested by defendant .
Judge Forrest acknowledged defendant complied with most of the services
the Division offered her. However, citing Brandwein's testimony, the judge
concluded that due to defendant's intellectual disability "she is incapable of
retaining and utilizing the techniques she learns from the services the Division
offered her[,]" and "she could never be able to independently raise young
children such as [her children]," even if services were continued. The judge
concluded:
Such circumstances are apparently not [defendant's] fault and it is unfortunate that a parent apparently so willing to take care of her children is intellectually unable to do so appropriately and safely. However, the right of [defendant] to independently care for [her children] must be weighed against the right of the children to have permanency with secure and stable caregivers who are well-equipped to ensure the children's health, safety, welfare and education.
Consistent with Judge Forrest's findings and conclusions, and contrary to
defendant's arguments on appeal, the record reflects that the Division provided
defendant with services geared to her specific needs, including parenting skills
training, life skills training, and discussions about and referrals to the
A-4771-17T1 12 Department of Developmental Disabilities (DDD) and the Board of Social
Services (BOSS), in order for her to access assistance with finances, medical
insurance, and housing. The Division is not at fault for defendant's failure to
benefit from the services she completed, or her refusal to fully cooperate with
the DDD and BOSS. Moreover, the Division was under no obligation to provide
defendant with full-time supervision to assist in caring for the children, which
Brandwein testified was the only service that would permit safe reunification.
See In re Guardianship of D.N., 190 N.J. Super. 648, 654 (J. & D.R. Ct. 1983)
(considering termination of parental rights where both parents suffered from
intellectual disabilities).
Defendant relies upon T.D., 454 N.J. Super. at 383, in which we faulted
the Division for relying solely upon its expert's opinion that the defendant could
not parent independently because she suffered from multiple sclerosis. We
stated the Division should have obtained the defendant's medical records, as it
had been ordered to do, in order to determine the full extent of her physical
limitations and what supports or services she might need to parent successfully.
Ibid.
However, this case is distinguishable from T.D. Here, defendant suffers
from an intellectual disability that severely limits her ability to safely and
A-4771-17T1 13 appropriately parent her children. The scope of defendant's disability was set
forth in her original parenting capacity evaluation, in which specific services
were recommended, as well as in Brandwein's report and testimony. There was
no indication here that more testing or analysis, or a review of medical records
was necessary. Moreover, unlike in T.D., the Division provided services
directly relevant to addressing defendant's parenting deficits. However, her
disability prevented her from benefiting from those services.
It is irrelevant that defendant is morally blameless for the disability that
renders her unable to independently parent her young children. See A.G., 344
N.J. Super. at 438; In re Guardianship of R., 155 N.J. Super. 186, 194-95 (App.
Div. 1977). The court's focus must be on determining the best interests of the
children. A.G., 344 N.J. Super. at 442. Judge Forrest did so here. The record
supports his factual findings and conclusions that the Division established prong
three by clear and convincing evidence.
Prong Four
Prong four of N.J.S.A. 30:4C-15.1(a) requires the Division to show by
clear and convincing evidence that "[t]ermination of parental rights will not do
more harm than good." The fourth prong serves as a "'fail-safe' inquiry guarding
against an inappropriate or premature termination of parental rights." F.M., 211
A-4771-17T1 14 N.J. at 453. "The question ultimately is not whether a biological mother or father
is a worthy parent, but whether a child's interest will best be served by
completely terminating the child's relationship with that parent." E.P., 196 N.J.
at 108. The court must determine "whether . . . the child will suffer a greater
harm from the termination of ties with [his or] her natural parents than from the
permanent disruption of [his or] her relationship with [his or] her foster parents."
In re Guardianship of K.H.O., 161 N.J. 337, 355 (1999).
Because harm to the child stemming from termination of parental rights is
inevitable, "the fourth prong of the best interests standard cannot require a
showing that no harm will befall the child as a result of the severing of biological
ties." Ibid. Rather, the court's inquiry is one of comparative harm, for which
the court must consider expert evaluations of the strength of the child's
relationship to the biological parents and the foster parents. Ibid. Thus, "[t]o
satisfy the fourth prong, the [Division] should offer testimony of a well qualified
expert who has had full opportunity to make a comprehensive, objective, and
informed evaluation of the child's relationship with both the natural parents and
the foster parents." F.M., 211 N.J. at 453 (quoting M.M., 189 N.J. at 281).
"Under this prong, an important consideration is '[a] child's need for
permanency.' Ultimately, a child has a right to live in a stable, nurturing
A-4771-17T1 15 environment and to have the psychological security that his most deeply formed
attachments will not be shattered." Ibid. (alteration in original) (quoting M.M.,
189 N.J. at 281).
Judge Forrest found there was "no realistic likelihood that [defendant] will
be able to safely and appropriately care for her children now or in the foreseeable
future," because she
continues to suffer from an irreversible intellectual disability that limits her ability to apply learned parenting skills and care for her children independently, lacks stable housing and employment, is incapable of understanding how to appropriately discipline her children or how to address basic hygienic needs and does not comprehend the severity of the issues that led to her children's removal after they have been out of her custody for over two years.
Judge Forrest relied upon Brandwein's testimony regarding his
psychological evaluation of defendant, and Brandwein's opinion that defendant
would never be in a position to safely and adequately parent her children. The
judge also relied upon Brandwein's testimony regarding the bonding evaluations
and the children's need for permanency. The judge concluded that termination
of defendant's parental rights would not do more harm than good, as termination
would provide the children with the permanency and stability they require,
because they will be made legally free for adoption by their resource parents .
A-4771-17T1 16 The record supports Judge Forrest's factual findings and conclusion that
the Division established prong four by clear and convincing evidence. The
record evidences no realistic possibility that defendant will ever be able to safely
and appropriately parent her children, and certainly not in time to meet their
permanency needs. Moreover, Brandwein testified, without contradiction, that
the children would not suffer enduring harm should their relationship with
defendant be severed, but were likely to suffer significant and enduring harm
should their relationship with their resource parents be severed. See N.J. Div. of
Youth & Family Servs. v. B.G.S., 291 N.J. Super. 582, 592 (App. Div. 1996).
We are satisfied that Judge Forrest's opinion tracks the statutory
requirements of N.J.S.A. 30:4C-15.1(a), accords with applicable case law, and
is amply supported by the record.
Affirmed.
A-4771-17T1 17