DCPP VS. Y.M.K., IN THE MATTER OF THE GUARDIANSHIP OF A.M.K., JR. (FG-07-0023-18, ESSEX 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NOT FOR PUBLICATION WITHOUT THE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-3776-17T2

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

Plaintiff-Respondent,

v.

Y.M.K.,

Defendant-Appellant.
_____________________________

IN THE MATTER OF THE
GUARDIANSHIP OF A.M.K., JR.,

a Minor.
_____________________________

Submitted February 27, 2019 – Decided May 7, 2019

Before Judges Alvarez and Nugent.

On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Essex County, Docket
No. FG-07-0023-18.
 Joseph E. Krakora, Public Defender, attorney for
appellant (Carol A. Weil, Designated Counsel, on the
brief).

Gurbir S. Grewal, Attorney General, attorney for
respondent (Jason W. Rockwell, Assistant Attorney
General, of counsel; Casey J. Woodruff, Deputy
Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minor (Meredith A. Pollock, Deputy Public
Defender, of counsel; Cory H. Cassar, Designated
Counsel, on the brief).

PER CURIAM

Defendant, Y.M.K., appeals from an April 10, 2018 guardianship

judgment terminating her parental rights to her child, A.M.K., now nine years

old. The child's father is deceased. Defendant contends plaintiff, the Division

of Child Protection and Permanency (the Division), failed to prove by clear and

convincing evidence that terminating her parental rights was in her child's best

interests, the standard codified in N.J.S.A. 30:4C-15.1(a). The Division and the

Law Guardian oppose the appeal. We affirm.

Parents have a constitutionally protected, fundamental liberty interest in

the care, custody, and supervision of their children. Santosky v. Kramer, 455

U.S. 745, 753 (1982); N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J.

261, 279 (2007). Nonetheless, that interest is not absolute and "must be

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balanced against the State's parens patriae responsibility to protect the welfare

of children." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605

(2007) (quoting M.M. 189 N.J. at 294-95). In some cases, termination of a

parent's constitutionally protected interest may be necessary to protect a

child. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986).

The Division is "the State agency for the care, custody, guardianship,

maintenance and protection of children." State ex rel. J.S., 202 N.J. 465, 477

(2010) (quoting N.J.S.A. 30:4C-2(a)). When the Division seeks to terminate a

person's parental rights, a court must determine if doing so is in the child's or

children's best interests. The "best interests" standard is codified in N.J.S.A.

30:4C-15.1(a), which requires the Division prove by clear and convincing

evidence:

(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. . . .;

(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

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 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.

See also A.W., 103 N.J. at 604-11.

Family courts deciding the profound issues involving the welfare of

children have special expertise and their fact finding is entitled to deference by

appellate courts. Cesare v. Cesare, 154 N.J. 394, 413 (1998). For that reason,

we will not disturb a Family Part judge's findings of fact unless "convinced that

they are so manifestly unsupported by or inconsistent with the competent,

relevant and reasonably credible evidence as to offend the interests of

justice." Id. at 412 (quoting Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J.

474, 484 (1974)). We owe no deference, however, to "[a] trial court's

interpretation of the law and the legal consequences that flow from established

facts." Manalapan Realty, LP v. Twp. Comm of Manalapan, 140 N.J. 366, 378

(1995).

Here, to prove the statutory criteria for terminating parental rights, the

Division presented the testimony of two employees, an Adoption Worker and a

Supervising Family Service Specialist in the Permanency-Adoption unit. The

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Division also presented the testimony of a psychiatrist and psychologist, and

introduced into evidence fifty-two documentary exhibits.

Defendant testified against the advice of her counsel. Suffice it to say that

her testimony illustrated her significant mental health issues.

Following the guardianship trial, Judge James R. Paganelli issued a

comprehensive written opinion in which he concluded the Division had

sustained its burden of proving by clear and convincing evidence the statutory

criteria delineated in N.J.S.A. 30:4C-15.1 for terminating parental rights. Judge

Paganelli recounted the psychiatrist's recitation of defendant's "history of

alcohol abuse, psychiatric hospitalization, delusions, grandiosity, and

unkemptness." The judge found significant the psychiatrist's testimony that

defendant's lack of insight into her bi-polar disorder contributed to her inability

to manage and treat her symptoms. The judge also noted the psychiatrist's

diagnosis of defendant's schizoaffective disorder, a combination of bi -polar

disorder and schizophrenia, the latter a psychotic disorder. Judge Paganelli

found credible the psychiatrist's opinion that due to the nature of defendant's

symptoms, namely, her disorganization, "her failure to recognize her own

disorder and how it impacted others, her inability to behave socially, her poor

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5
executive functioning, her inability to recognize cues in the environment, she

has been rendered unable to safely parent [her child]."

Judge Paganelli also found credible the testimony of the Division's expert

psychologist, who had examined defendant on four occasions. The judge noted

the psychologist's opinion that defendant's child had come to view defendant "as

a central parental figure in his life" and that should defendant's parental rights

be terminated, the child "would likely experience a negative reaction that would

produce development disruptions." The judge also credited, however, the

psychologist's opinion that defendant was unable to provide her child "with

consistent adequate care and supervision due to her mental illness," and "that

any reaction [the child] may experience from being permanently separated from

his mother could be mitigated through achieving permanency in [a] supportive

home and through psychotherapy."

Last, the judge found credible the psychologist's opinion that "in this

particular case, the risk of harm to [the child], if returned to [defendant's] care,

outweighs the risk of experiencing a negative reaction to termination of their

relationship."

Defendant contends on appeal that the Division did not appropriately

consider alternatives to termination of defendant's parental rights. She insists

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the Division failed to clearly and convincingly establish the third statutory prong

of the best interests criteria. She also contends the Division failed to prove that

termination of defendant's parental rights would not do more harm than good.

The record refutes defendant's arguments. As Judge Paganelli aptly noted,

"[t]he diligence of the Division's efforts on behalf of a parent is not measured

by their success." The judge detailed the Division's provision of services to

defendant, as well as the Division's consideration of alternatives to termination.

The judge noted the Division had conducted relative assessments and had

attempted to place the child with a sibling in Pennsylvania. The Division's

expert testimony refutes defendant's contention that the Division failed to prove

termination of parental rights would not do more harm than good.

We affirm, substantially for the reasons expressed by Judge Paganelli in

his written opinion. Judge Paganelli's opinion recounts in detail the Division's

proofs, and his analysis of those proofs tracks the statutory elements of N.J.S.A.

30:4C-15.1(a). The judge's factual determinations are amply supported b y

credible evidence in the record. Considering defendant's arguments and Judge

Paganelli's decision in light of the record and controlling legal principles, it can

hardly be said that the judge "went so wide of the mark that a mistake must have

been made." M.M., 189 N.J. at 279.

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Affirmed.

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