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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1498-18T1
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
T.V.P.,
Defendant-Appellant,
and
H.K.,
Defendant. ____________________________
IN THE MATTER OF THE GUARDIANSHIP OF E.A.P. ____________________________
Submitted October 3, 2019 – Decided October 10, 2019
Before Judges Fisher and Rose. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-0071-18.
Joseph E. Krakora, Public Defender, attorney for appellant (Elizabeth H. Smith, Designated Counsel, on the brief).
Gurbir S. Grewal, Attorney General, attorney for respondent (Jane C. Schuster, Assistant Attorney General, of counsel; Casey Jonathan Woodruff, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Margo E.K. Hirsch, Designated Counsel, on the brief).
PER CURIAM
Defendant T.V.P. appeals a judgment 1 terminating her parental rights to
the youngest of her four children, E.A.P. (Ellen), born in 2013. 2 Defendant
contends the Division of Child Protection and Permanency (Division) failed to
prove all four prongs of N.J.S.A. 30:4C-15.1(a) by clear and convincing
evidence. The Law Guardian joins the Division in supporting the judgment.
1 The same judgment also terminated the parental rights of Ellen's biological father, H.K., who is not a party to this appeal. Defendant's three other children are in the custody of their father, A.G., and are not parties to this appeal. 2 We use initials and pseudonyms to identify the parties to preserve the confidentiality of these proceedings. R. 1:38-3(d)(12).
A-1498-18T1 2 It is axiomatic that parents have a constitutionally protected right to the
care, custody, and control of their children. Santosky v. Kramer, 455 U.S. 745,
753 (1982); In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). "The rights
to conceive and to raise one's children have been deemed 'essential,' 'basic civil
rights . . .,' and 'rights far more precious . . . than property rights.'" Stanley v.
Illinois, 405 U.S. 645, 651 (1972) (citations omitted). "[T]he preservation and
strengthening of family life is a matter of public concern as being in the interests
of the general welfare . . . ." N.J.S.A. 30:4C-1(a); see also K.H.O., 161 N.J. at
347.
The constitutional right to the parental relationship, however, is not
absolute. N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 553
(2014); N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599
(1986). At times, a parent's interest must yield to the State's obligation to
protect children from harm. N.J. Div. of Youth & Family Servs. v. G.M.,
198 N.J. 382, 397 (2009). To effectuate these concerns, the Legislature
created a test for determining whether a parent's rights must be terminated in
the child's best interests. N.J.S.A. 30:4C-15.1(a) requires that the Division
prove the following four prongs by clear and convincing evidence:
A-1498-18T1 3 (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 court has considered alternatives to termination of parental rights; and
(4) Termination of parental rights will not do more harm than good.
These four prongs are not independent of one another. Rather, they "are
interrelated and overlapping[,] . . . designed to identify and assess what may be
necessary to promote and protect the best interests of the child." N.J. Div. of
Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006).
Parental fitness is the crucial issue. K.H.O., 161 N.J. at 348. Determinations of
parental fitness are very fact sensitive and require specific evidence. Ibid.
Ultimately, "the purpose of termination is always to effectuate the best interests
of the child, not the punishment of the parent." Id. at 350.
A-1498-18T1 4 Having reviewed the record in view of those legal standards, we conclude
Judge James R. Paganelli's factual findings are fully supported by the record,
and, in light of those facts, his legal conclusions are unassailable. We are
satisfied the evidence in favor of the guardianship petition overwhelmingly
supports the judge's decision to terminate defendant's parental rights.
Accordingly, we need not set forth at any length the factual basis for the
judge's decision. Those circumstances were fully explored in his thorough forty-
six-page written decision. Instead, we incorporate by reference the judge's
thorough factual findings and legal conclusions and highlight the most pertinent
facts adduced at the four-day trial.
To support its claim that defendant's parental rights should be terminated,
the Division presented the testimony of two caseworkers and the expert
testimony of Samiris Sostre, M.D., who performed a psychiatric evaluation of
defendant, and Barry Katz, Ph.D., who conducted a bonding evaluation between
defendant and Ellen. The Division also introduced in evidence nearly fifty
documents, including the caseworkers' reports and the doctors' evaluations.
Defendant did not testify or present any evidence.
Judge Paganelli discussed in detail defendant's long psychiatric history,
including her record of non-compliance with mental health services. Defendant
A-1498-18T1 5 was diagnosed by Dr. Katz and Dr. Sostre as suffering from schizophrenia and
post-traumatic stress disorder (PTSD). During an interview with the Division,
defendant self-reported "that she was first diagnosed with depression, anxiety,
paranoid type schizophrenia[,] and PTSD" at least ten years prior. She told the
caseworker "she believed it was optional for her to comply with mental health
services."
Crediting the opinion of Dr. Katz, the judge noted defendant "has been
non-compliant with services over time, resulting in an exacerbation of
instability, severe symptomatology and parental neglect." And, "Dr. Sostre
warn[ed] that poor compliance with medications will certainly lead to a
deterioration and fluctuations in psychotic symptoms."
Turning to the four prongs of the best interests test, the judge aptly
recognized "mental illness, alone[,] does not disqualify a parent from raising a
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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-1498-18T1
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
T.V.P.,
Defendant-Appellant,
and
H.K.,
Defendant. ____________________________
IN THE MATTER OF THE GUARDIANSHIP OF E.A.P. ____________________________
Submitted October 3, 2019 – Decided October 10, 2019
Before Judges Fisher and Rose. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-0071-18.
Joseph E. Krakora, Public Defender, attorney for appellant (Elizabeth H. Smith, Designated Counsel, on the brief).
Gurbir S. Grewal, Attorney General, attorney for respondent (Jane C. Schuster, Assistant Attorney General, of counsel; Casey Jonathan Woodruff, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Margo E.K. Hirsch, Designated Counsel, on the brief).
PER CURIAM
Defendant T.V.P. appeals a judgment 1 terminating her parental rights to
the youngest of her four children, E.A.P. (Ellen), born in 2013. 2 Defendant
contends the Division of Child Protection and Permanency (Division) failed to
prove all four prongs of N.J.S.A. 30:4C-15.1(a) by clear and convincing
evidence. The Law Guardian joins the Division in supporting the judgment.
1 The same judgment also terminated the parental rights of Ellen's biological father, H.K., who is not a party to this appeal. Defendant's three other children are in the custody of their father, A.G., and are not parties to this appeal. 2 We use initials and pseudonyms to identify the parties to preserve the confidentiality of these proceedings. R. 1:38-3(d)(12).
A-1498-18T1 2 It is axiomatic that parents have a constitutionally protected right to the
care, custody, and control of their children. Santosky v. Kramer, 455 U.S. 745,
753 (1982); In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). "The rights
to conceive and to raise one's children have been deemed 'essential,' 'basic civil
rights . . .,' and 'rights far more precious . . . than property rights.'" Stanley v.
Illinois, 405 U.S. 645, 651 (1972) (citations omitted). "[T]he preservation and
strengthening of family life is a matter of public concern as being in the interests
of the general welfare . . . ." N.J.S.A. 30:4C-1(a); see also K.H.O., 161 N.J. at
347.
The constitutional right to the parental relationship, however, is not
absolute. N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 553
(2014); N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599
(1986). At times, a parent's interest must yield to the State's obligation to
protect children from harm. N.J. Div. of Youth & Family Servs. v. G.M.,
198 N.J. 382, 397 (2009). To effectuate these concerns, the Legislature
created a test for determining whether a parent's rights must be terminated in
the child's best interests. N.J.S.A. 30:4C-15.1(a) requires that the Division
prove the following four prongs by clear and convincing evidence:
A-1498-18T1 3 (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 court has considered alternatives to termination of parental rights; and
(4) Termination of parental rights will not do more harm than good.
These four prongs are not independent of one another. Rather, they "are
interrelated and overlapping[,] . . . designed to identify and assess what may be
necessary to promote and protect the best interests of the child." N.J. Div. of
Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006).
Parental fitness is the crucial issue. K.H.O., 161 N.J. at 348. Determinations of
parental fitness are very fact sensitive and require specific evidence. Ibid.
Ultimately, "the purpose of termination is always to effectuate the best interests
of the child, not the punishment of the parent." Id. at 350.
A-1498-18T1 4 Having reviewed the record in view of those legal standards, we conclude
Judge James R. Paganelli's factual findings are fully supported by the record,
and, in light of those facts, his legal conclusions are unassailable. We are
satisfied the evidence in favor of the guardianship petition overwhelmingly
supports the judge's decision to terminate defendant's parental rights.
Accordingly, we need not set forth at any length the factual basis for the
judge's decision. Those circumstances were fully explored in his thorough forty-
six-page written decision. Instead, we incorporate by reference the judge's
thorough factual findings and legal conclusions and highlight the most pertinent
facts adduced at the four-day trial.
To support its claim that defendant's parental rights should be terminated,
the Division presented the testimony of two caseworkers and the expert
testimony of Samiris Sostre, M.D., who performed a psychiatric evaluation of
defendant, and Barry Katz, Ph.D., who conducted a bonding evaluation between
defendant and Ellen. The Division also introduced in evidence nearly fifty
documents, including the caseworkers' reports and the doctors' evaluations.
Defendant did not testify or present any evidence.
Judge Paganelli discussed in detail defendant's long psychiatric history,
including her record of non-compliance with mental health services. Defendant
A-1498-18T1 5 was diagnosed by Dr. Katz and Dr. Sostre as suffering from schizophrenia and
post-traumatic stress disorder (PTSD). During an interview with the Division,
defendant self-reported "that she was first diagnosed with depression, anxiety,
paranoid type schizophrenia[,] and PTSD" at least ten years prior. She told the
caseworker "she believed it was optional for her to comply with mental health
services."
Crediting the opinion of Dr. Katz, the judge noted defendant "has been
non-compliant with services over time, resulting in an exacerbation of
instability, severe symptomatology and parental neglect." And, "Dr. Sostre
warn[ed] that poor compliance with medications will certainly lead to a
deterioration and fluctuations in psychotic symptoms."
Turning to the four prongs of the best interests test, the judge aptly
recognized "mental illness, alone[,] does not disqualify a parent from raising a
child." Where, as here, a parent refuses treatment, however, "the mental illness
poses a real threat to [the] child . . . ." The judge also found defendant's
"significant parenting deficits have not remitted" even though the Division
offered services for several years.
As is often the case, the findings regarding the first prong informed and
overlapped the second. See R.L., 388 N.J. Super. at 88. The judge found
A-1498-18T1 6 defendant was unable or unwilling to eliminate the harm that endangered Ellen
and caused her removal because defendant did not comply with services offered
to address her mental health issues. Because defendant failed to obtain stable
housing, the judge also determined defendant could not provide Ellen with a safe
or suitable home.
Regarding the third prong, the judge found the Division made reasonable
efforts to provide services to defendant to facilitate reunification with Ellen,
including therapeutic visitation, mental health treatment referrals, individual
therapy, transportation assistance, in-home services, and parenting classes.
Noting the Division assessed relative placement and kinship legal guardianship,
the judge found the agency considered alternatives to termination. Because
relatives were not available, however, the judge concluded those options were
not viable here.
In considering the fourth prong, the judge recognized Ellen identified
defendant as her mother, but appeared to be confused about "the reality of their
relationship." During the trial, Ellen was transferred to a new resource home,
so the Division did not conduct a bonding evaluation. But, the caseworker
testified that Ellen's new resource parent was interested in adopting her. The
Division also identified thirty-three additional homes that might be interested in
A-1498-18T1 7 adopting Ellen. Finding termination would free Ellen for adoption, the judge
concluded severing defendant's parental rights would not do more harm than
good.
After carefully canvassing the record in light of the arguments posed by
defendant in this appeal, we conclude the judge's findings are supported by
substantial credible evidence and are entitled to our deference. N.J. Div. of
Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012); Cesare v. Cesare,
154 N.J. 394, 413 (1998). Accordingly, we affirm substantially for the reasons
stated by Judge Paganelli in his comprehensive and well-reasoned written
opinion that accompanied the November 15, 2018 order.
Affirmed.
A-1498-18T1 8