DCPP VS. M.A.S., IN THE MATTER OF THE GUARDIANSHIP OF M.T.E. AND M.L.E. (FG-11-0008-18, MERCER COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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

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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.

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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

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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
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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
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("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
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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

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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 .

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 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.

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