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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4877-16T1 NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
R.B.,
Defendant-Appellant,
and
A.S., SR.,
Defendant. ______________________________
IN THE MATTER OF THE GUARDIANSHIP OF N.B., a Minor. ______________________________
Submitted October 4, 2018 – Decided October 17, 2018
Before Judges O'Connor and Whipple.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-0132-16. Joseph E. Krakora, Public Defender, attorney for appellant (Arthur D. Malkin, Designated Counsel, on the briefs).
Gurbir S. Grewal, Attorney General, attorney for respondent (Jason W. Rockwell, Assistant Attorney General, of counsel; Jessica M. Steinglass, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Todd S. Wilson, Designated Counsel, on the brief).
PER CURIAM
Defendant R.B. (mother) appeals from a June 28, 2017 judgment
terminating her parental rights to her son, Nevin 1, presently three years of age.
Defendant A.S. (father) is Nevin's biological father; his parental rights to Nevin
were also terminated but A.S. has not appealed from this judgment. 2 On appeal,
the mother contends the Division of Child Protection and Permanency
(Division) failed to prove by clear and convincing evidence the four-prong
standard set forth in N.J.S.A. 30:4C-15.1(a).3
1 The child's name is fictitious in order to protect his identity. 2 In addition, the mother has a biological child with another, D.J.; that child has been in D.J.'s custody since 2012. 3 These four prongs are:
A-4877-16T1 2 After reviewing the record and the applicable legal principles, we reject
the arguments the mother advances and affirm substantially for the reasons
expressed by Judge Lourdes I. Santiago in her comprehensive written opinion.
In lieu of reciting at length the evidence presented by the Division and Nevin's
law guardian in support of terminating the mother's parental rights, we
incorporate by reference Judge Santiago's factual findings because they are
(1) The child's safety, health, or development has been or will continue to be endangered by the parental relationship;
(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;
(3) The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and
(4) Termination of parental rights will not do more harm than good.
[N.J.S.A. 30:4C-15.1(a).]
A-4877-16T1 3 supported by competent evidence presented at trial. See N.J. Div. of Youth &
Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012). However, we highlight
some of the key evidence.
Defendants are the biological parents of four other children, all of whom
are older than Nevin. In 2013, their parental rights to these four children were
involuntarily terminated following a trial. The facts underlying the trial judge's
decision to terminate defendants' parental rights to those four older children are
set forth at length in our opinion affirming the judge's decision, see N.J. Div. of
Child Prot. & Permanency v. R.B., No. A-2762-12 (App. Div. June 26, 2015)
and need not be repeated here. However, to put the present matter in context,
we note the reason why the judge in the previous matter found the Division had
proved the first factor of N.J.S.A. 30:4C-15.1(a) by clear and convincing
evidence.
In 2011, the mother forcibly dropped one of the children, L.S., into a car
seat when she was five weeks old. The impact caused the baby to sustain a head
injury. Despite the fact the baby exhibited significant distress for the ensuing
four days, defendants failed to seek medical attention. By the time the baby was
seen by a doctor four days after the injury, L.S. had suffered irreversible brain
damage and is now in a permanent vegetative state. Had defendants obtained
A-4877-16T1 4 prompt medical treatment, it is likely the baby would have recovered without
sustaining any serious permanent injuries.
Given what happened to L.S. while in defendants' care, when Nevin was
born, the Division conducted an emergency removal and, upon his discharge
from the hospital, placed Nevin in a resource home. The mother has never had
physical custody of Nevin. Because of concerns about the mother's mental
health, two days after the baby's discharge, the court ordered the mother to
obtain mental health treatment, which she commenced approximately two weeks
later. In addition to referring the mother to a therapist, the Division arranged
for the mother to participate in parenting classes and provided to her both
supervised visitation and supervised therapeutic visitation with Nevin.
The mother completed parenting classes and participated in visitation.
She also engaged in individual therapy, but ceased for a number of months when
Medicaid stopped paying for her sessions. Although it was up to the mother to
address the suspension of these benefits, she failed to take any action for three
months, even though the Division offered to help her resolve this problem soon
after her benefits ceased.
During the guardianship trial, the Division called psychologist Frank
Dyer, Ph.D., as its expert witness. Dyer had evaluated the mother in 2012 in
A-4877-16T1 5 connection with the litigation pertaining to her four older children. At that time,
Dyer found that various psychological deficiencies precluded the mother from
adequately parenting her children. Dyer evaluated the mother again in 2015 and
2016 and determined she still lacked the capacity to care for her children because
of, among other things, serious problems with depression and anxiety.
Dyer did find the mother had made some progress insofar as "organizing
her own life." For example, she obtained a job and a place to live. However,
she had not engaged in "any real therapeutic work with respect to the core
psychological issues that create a risk to any children in her care," and continued
to be ill-equipped for the tasks of parenting. He noted "the fact that in her
present therapy [the mother] still offers two different stories of how her daughter
[L.S.] came to suffer severe injuries suggests that the fundamental problems
leading to that incident have not been touched."
Dyer also conducted a bonding evaluation of the mother and Nevin, as
well as of the resource parents and Nevin. Dyer recognized the mother
interacted appropriately with Nevin during the bonding evaluation and that
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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-4877-16T1 NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
R.B.,
Defendant-Appellant,
and
A.S., SR.,
Defendant. ______________________________
IN THE MATTER OF THE GUARDIANSHIP OF N.B., a Minor. ______________________________
Submitted October 4, 2018 – Decided October 17, 2018
Before Judges O'Connor and Whipple.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-0132-16. Joseph E. Krakora, Public Defender, attorney for appellant (Arthur D. Malkin, Designated Counsel, on the briefs).
Gurbir S. Grewal, Attorney General, attorney for respondent (Jason W. Rockwell, Assistant Attorney General, of counsel; Jessica M. Steinglass, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Todd S. Wilson, Designated Counsel, on the brief).
PER CURIAM
Defendant R.B. (mother) appeals from a June 28, 2017 judgment
terminating her parental rights to her son, Nevin 1, presently three years of age.
Defendant A.S. (father) is Nevin's biological father; his parental rights to Nevin
were also terminated but A.S. has not appealed from this judgment. 2 On appeal,
the mother contends the Division of Child Protection and Permanency
(Division) failed to prove by clear and convincing evidence the four-prong
standard set forth in N.J.S.A. 30:4C-15.1(a).3
1 The child's name is fictitious in order to protect his identity. 2 In addition, the mother has a biological child with another, D.J.; that child has been in D.J.'s custody since 2012. 3 These four prongs are:
A-4877-16T1 2 After reviewing the record and the applicable legal principles, we reject
the arguments the mother advances and affirm substantially for the reasons
expressed by Judge Lourdes I. Santiago in her comprehensive written opinion.
In lieu of reciting at length the evidence presented by the Division and Nevin's
law guardian in support of terminating the mother's parental rights, we
incorporate by reference Judge Santiago's factual findings because they are
(1) The child's safety, health, or development has been or will continue to be endangered by the parental relationship;
(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;
(3) The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and
(4) Termination of parental rights will not do more harm than good.
[N.J.S.A. 30:4C-15.1(a).]
A-4877-16T1 3 supported by competent evidence presented at trial. See N.J. Div. of Youth &
Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012). However, we highlight
some of the key evidence.
Defendants are the biological parents of four other children, all of whom
are older than Nevin. In 2013, their parental rights to these four children were
involuntarily terminated following a trial. The facts underlying the trial judge's
decision to terminate defendants' parental rights to those four older children are
set forth at length in our opinion affirming the judge's decision, see N.J. Div. of
Child Prot. & Permanency v. R.B., No. A-2762-12 (App. Div. June 26, 2015)
and need not be repeated here. However, to put the present matter in context,
we note the reason why the judge in the previous matter found the Division had
proved the first factor of N.J.S.A. 30:4C-15.1(a) by clear and convincing
evidence.
In 2011, the mother forcibly dropped one of the children, L.S., into a car
seat when she was five weeks old. The impact caused the baby to sustain a head
injury. Despite the fact the baby exhibited significant distress for the ensuing
four days, defendants failed to seek medical attention. By the time the baby was
seen by a doctor four days after the injury, L.S. had suffered irreversible brain
damage and is now in a permanent vegetative state. Had defendants obtained
A-4877-16T1 4 prompt medical treatment, it is likely the baby would have recovered without
sustaining any serious permanent injuries.
Given what happened to L.S. while in defendants' care, when Nevin was
born, the Division conducted an emergency removal and, upon his discharge
from the hospital, placed Nevin in a resource home. The mother has never had
physical custody of Nevin. Because of concerns about the mother's mental
health, two days after the baby's discharge, the court ordered the mother to
obtain mental health treatment, which she commenced approximately two weeks
later. In addition to referring the mother to a therapist, the Division arranged
for the mother to participate in parenting classes and provided to her both
supervised visitation and supervised therapeutic visitation with Nevin.
The mother completed parenting classes and participated in visitation.
She also engaged in individual therapy, but ceased for a number of months when
Medicaid stopped paying for her sessions. Although it was up to the mother to
address the suspension of these benefits, she failed to take any action for three
months, even though the Division offered to help her resolve this problem soon
after her benefits ceased.
During the guardianship trial, the Division called psychologist Frank
Dyer, Ph.D., as its expert witness. Dyer had evaluated the mother in 2012 in
A-4877-16T1 5 connection with the litigation pertaining to her four older children. At that time,
Dyer found that various psychological deficiencies precluded the mother from
adequately parenting her children. Dyer evaluated the mother again in 2015 and
2016 and determined she still lacked the capacity to care for her children because
of, among other things, serious problems with depression and anxiety.
Dyer did find the mother had made some progress insofar as "organizing
her own life." For example, she obtained a job and a place to live. However,
she had not engaged in "any real therapeutic work with respect to the core
psychological issues that create a risk to any children in her care," and continued
to be ill-equipped for the tasks of parenting. He noted "the fact that in her
present therapy [the mother] still offers two different stories of how her daughter
[L.S.] came to suffer severe injuries suggests that the fundamental problems
leading to that incident have not been touched."
Dyer also conducted a bonding evaluation of the mother and Nevin, as
well as of the resource parents and Nevin. Dyer recognized the mother
interacted appropriately with Nevin during the bonding evaluation and that
Nevin had formed some degree of attachment to her as a result of visitation.
Nevertheless, Dyer opined Nevin's primary attachment figures were his resource
parents. Dyer also testified Nevin's resource parents wish to adopt him.
A-4877-16T1 6 Dyer pointed out that, given Nevin's stage of development, an attachment
figure is critically important. Nevin perceives his resource parents as his
"central attachment figures, his central parental love objects and identification
figures." If taken from them, Nevin would be "very highly likely" to suffer a
traumatic loss, and the mother would not be able to mitigate such loss.
Through his law guardian, Nevin called psychologist Alice Nadelman,
Ph.D., who also evaluated the mother. In Nadelman's opinion, the mother does
not possess the psychological resources necessary to enable her to provide safe
and adequate parental care for Nevin. Nadelman found that although the mother
had participated in individual therapy, she had failed to confront key emotional
problems because she did not want to open "wounds from the past." Further,
Nadelman reported the mother does not believe she needs therapy and will likely
discontinue therapy if Nevin were placed with her. Nadelman also observed the
mother failed to provide a clear plan for Nevin's care if unified with her,
"significantly minimized the impact" losing "his lifelong caregivers" would have
upon him, and had no plan for how she would cope with his "grief, rage, and
regression" if removed from his resource parents' home.
A-4877-16T1 7 The trial court found Dyer and Nadelman credible. The mother did not
introduce any evidence to refute these experts' opinions; in fact, the mother did
not introduce any evidence at all.
Following trial, the judge issued a thorough, forty-seven page opinion in
which she addressed the four factors in N.J.S.A. 30:4C-15.1(a), setting forth her
findings of fact and conclusions of law as to each. The mother contends there
is insufficient evidence to support the judge's conclusion the Division met all
four prongs in this statute by clear and convincing evidence.
In reviewing a case in which the termination of parental rights has been
ordered, we remain mindful of the gravity and importance of our review. See
N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 151 (2010) ("[T]he
process for terminating parental rights is a difficult and intentionally rigorous
one that must be satisfied by a heightened burden of proof . . . ."). Parents have
a constitutionally protected right to enjoy a relationship with their children and
to raise them without State interference. N.J. Div. of Youth & Family Servs. v.
E.P., 196 N.J. 88, 102 (2008).
However, this right is not absolute, as it is limited by the "State's parens
patriae responsibility to protect children whose vulnerable lives or
psychological well-being may have been harmed or may be seriously
A-4877-16T1 8 endangered by a neglectful or abusive parent." F.M., 211 N.J. at 447. The State
has a strong public policy that favors placing children in a permanent, safe, and
stable home. See generally In re Guardianship of K.H.O., 161 N.J. 337, 357-
58 (1999).
In addition, a reviewing court should not disturb the factual findings of
the trial court if they are supported by "adequate, substantial and credible
evidence." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279
(2007) (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div.
1993)). We defer to the trial court's credibility findings and, in particular, its
fact findings because of its expertise in family matters, see N.J. Div. of Youth
& Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010), unless the trial court's
findings are "so wide of the mark that the judge was clearly mistaken." N.J.
Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (citing J.T.,
269 N.J. Super. at 188-89).
We note providing proof a parent has in fact harmed a child is not essential
to showing the first prong of N.J.S.A. 30:4C-15.1(a) has been satisfied. See N.J.
Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-05 (1986). When no
actual harm is proven, the first prong will be satisfied by evidence showing a
parent will endanger the child's health, safety, or welfare. See In re
A-4877-16T1 9 Guardianship of D.M.H., 161 N.J. 365, 383 (1999). A court does not have to
wait until a child is "irreparably impaired by parental inattention or neglect"
before it acts. Id. (citing A.W., 103 N.J. at 616 n.14).
We have examined the mother's arguments the Division failed to satisfy
the four prongs of N.J.S.A. 30:4C-15.1(a). After perusing the record, we
conclude these arguments are without sufficient merit to warrant discussion in a
written opinion, see Rule 2:11-3(e)(1)(E). The judge's thorough opinion
analyzes these prongs, and her findings are amply supported by substantial and
credible evidence, mandating our deference. N.J. Div. of Youth & Family Servs.
v. F.J., 211 N.J. 420, 448-49 (2012); Cesare v. Cesare, 154 N.J. 394, 413 (1998).
Affirmed.
A-4877-16T1 10