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NOT FOR PUBLICATION WITHOUT THE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-2629-17T1
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
O.P.,1
Defendant-Appellant,
and
K.V.
Defendant.
____________________________
IN THE MATTER OF THE
GUARDIANSHIP OF M.V.,
a Minor.
____________________________
1
We use initials and pseudonyms to protect the privacy rights of the litigants
and the child. R. 1:38-3(d)(12).
Argued January 24, 2019 – Decided May 2, 2019
Before Judges Fuentes, Vernoia and Moynihan.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Hudson County,
Docket No. FG-09-0154-17.
Ryan T. Clark, Designated Counsel, argued the cause
for appellant (Joseph E. Krakora, Public Defender,
attorney; Ryan T. Clark, on the brief).
Mohamed Barry, Deputy Attorney General, argued the
cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Jason W. Rockwell, Assistant
Attorney General, of counsel; Mohamed Barry, on the
brief).
Rachel E. Seidman, Assistant Deputy Public Defender,
argued the cause for minor (Joseph E. Krakora, Public
Defender, Law Guardian, attorney; Rachel E. Seidman,
on the brief).
PER CURIAM
Defendant O.P. (Olga) is the biological mother of M.V. (Mary), a child
born in 2008. She appeals from the final judgment of guardianship entered
against her by Judge Bernadette N. De Castro terminating her parental rights to
her daughter. The genesis of the guardianship complaint filed against defendant
by the Division of Child Protection and Permanency (Division) here is found in
DCPP v. O.P. and K.V., No. A-5602-16 (App. Div. May 2, 2019), in which this
court affirmed a final order issued by Judge De Castro in which:
A-2629-17T1
2
Judge De Castro found, by a preponderance of the
evidence, that defendant abused and neglected her
seven-year-old daughter within the meaning of N.J.S.A.
9:6-8.21(c)(4), by failing to report the sexual abuse
committed by the child's biological father for eighteen
months, by allowing the child to continue to reside in
the same premises as the perpetrator of the abuse, and
by allowing the perpetrator to have unsupervised access
to the child. Defendant's conduct constituted gross
negligence and placed the child at a substantial risk of
harm.
[O.P., slip op. at 16.]
This court held Judge De Castro's findings were supported by a
preponderance of the competent, credible evidence the Division presented at the
fact-finding hearing. O.P., slip op. at 4-15. The Division proved "defendant
acted with reckless disregard for her daughter's safety." O.P., slip op. at 17
(citing G.S. v. Dep't of Human Servs., 157 N.J. 161, 182 (1999)). Based on the
parties' failure to participate in court-ordered services, the Division filed a
verified guardianship complaint seeking to terminate the parental rights of both
defendant and Mary's biological father K.V. (Kevin). On July 12, 2017, the
Division commenced this guardianship action. On the same date, the Family
Part terminated the Title 9 action, and Mary's legal custody continued with the
Division.
A-2629-17T1
3
Judge De Castro conducted a guardianship trial on January 8, 9, and 12,
2018. An attorney assigned by the Office of the Public Defender, Office of
Parental Representation appeared on defendant's behalf. Defendant did not
appear at any of these trial dates. Kevin entered an identified surrender of his
parental rights on September 27, 2017. He is not a part of this appeal. By the
time the guardianship trial began, Mary had been residing with her paternal
grandparents for over a year.
As the judge who presided over the fact-finding hearing in the Title 9 case,
Judge De Castro was thoroughly familiar with defendant's personal history of
sexual abuse as a child, her lifelong struggle with mental illness, and her
documented substance abuse problems. Division caseworker Jessica Ceballos
testified at length about the mental health services offered to defendant.
Unfortunately, defendant either failed to attend the programs or attended
sporadically. She was ultimately terminated due to her aggressive behavior,
failure to attend, or a combination of these factors.
Defendant's interactions with Mary during the pendency of these
proceedings were sporadic and emotionally traumatic to the child. Mary did not
like her mother's "hostility towards others . . . [and] remarks [defendant] would
make regarding . . . [Mary's] paternal grandparents." Of particular concern to
A-2629-17T1
4
Ceballos was the behavior defendant exhibited during a visit scheduled to
celebrate the child's ninth birthday.
Q. What happened on that date?
A. So, it was [Mary’s] birthday, ninth birthday. And
we had brought [Mary] to the Division . . . office to see
her mother. Her mother wanted to see her. . . . While
this occurred, the Division met with [defendant] on the
fourth floor to . . . re-engage with her and . . . explore
having an FTM, a family team meeting.
....
A. And you know, we explored if she received a court
order. She said . . . to stop sending her . . . harassing
mail. So, to the point she became so combative and
. . . hostile about . . . that [and] security had to get
involved.
Ceballos testified that she was able to calm down defendant sufficiently
to make the visit with the child possible. After the visit ended, Mary told
Ceballos she did not want to see her mother again. The Division referred Mary
for psychotherapy treatment with psychologist Frank Dyer, Ph.D., who was also
admitted as an expert witness at the guardianship trial without objection. Judge
De Castro also reviewed and relied on the report of a psychological examination
of defendant performed by Dr. Samiris Sostre on September 21, 2016. Dr. Dyer
also interviewed Mary before the June 2017 bonding evaluation.
A-2629-17T1
5
The psychological experts presented by the Division to Judge De Castro
reached a general consensus regarding Mary's relationship with defendant. The
child was not bonded to her biological mother. The permanent severance of
contact with defendant was in the child's best interest and would not cause her
emotional harm. Judge De Castro found, and the record supports, that defendant
"is vulnerable to poor judgment, emotional volatility, and irrationally hostile
behaviors." Defendant lacks the insight and stability to protect her daughter
from emotional harm. Defendant's failure to report the egregious sexual
molestation her six-year-old daughter endured by her own biological father is
the most powerful evidence of defendant's severely impaired judgment. As Dr.
Dyer explained:
Placing a child in the care of somebody who suffers
from [borderline personality] disorder when it is not
adequately addressed by therapy or medication or some
combination of therapy and medication would expose
the child to very distressing, frightening, disorganizing
mood states and emotional flare-ups on the part of the
individual caring for them. Typically, it would expose
a child to extreme conflict in whatever intimate
relationships the caretaker may be involved in.
Conversely, according to Dr. Dyer, Mary has formed a strong bond with
her paternal grandparents, which is reciprocated by these adults. Based on his
bonding evaluations, Dr. Dyer opined, within a reasonable degree of
A-2629-17T1
6
psychological certainty, that Mary is emotionally bonded to her paternal
grandparents. His testimony included the following elaboration on this issue:
It's my opinion, again, to a reasonable degree of
psychological certainty, that the benefits to [Mary] of
permanency with her [paternal] grandparents, to whom
she is attached, and by whom she explicitly states she
wishes to be adopted, that the benefits of that
relationship would far outweigh any negative impact of
a loss of the -- the mother's parental rights to her.
The paternal grandparents have expressed a desire to adopt the child. It
is vitally important to emphasize that Kevin will not be a part of this
arrangement and will not have any contact with the child. The record shows that
the Division's case was largely uncontested because defendant did not attend
any part of the trial.
Our standard of review of a Family Part judge's decision based on a
combination of testimonial evidence and the application of legal principles
involving the court's subject matter jurisdiction is well-settled. We are bound
to defer to the trial judge's expertise in this area of law, provided the decision is
supported by competent evidence in the record. Cesare v. Cesare, 154 N.J. 394,
412 (1998). However, a trial judge's interpretation of the law and legal findings
are reviewed de novo. N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J.
527, 552-53 (2014).
A-2629-17T1
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Parents have a fundamental constitutional right to raise their children.
Stanley v. Illinois, 405 U.S. 645, 651 (1972); NJ Div. of Youth & Family Servs.
v. A.W., 103 N.J. 591, 599 (1986). "However, the constitutional protection
surrounding family rights is tempered by the State's parens patriae responsibility
to protect the welfare of children." N.J. Div. of Youth & Family Servs. v. J.Y.,
352 N.J. Super. 245, 261 (App. Div. 2002) (citing Parham v. J.R., 442 U.S. 584,
603 (1979)). "The balance between parental rights and the State's interest in the
welfare of children is achieved through the best interests of the child standard."
In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999).
The Legislature and our Supreme Court resolved the constitutional tension
between parental rights and the welfare of children. In A.W., the Court
examined four factors that the Division must prove by clear and convincing
evidence before parental rights may be terminated. 103 N.J. at 604-11. These
four factors were then codified by the Legislature in N.J.S.A. 30:4C-15.1(a):
(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
A-2629-17T1
8
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.
These four factors "are not discrete and separate; they relate to and overlap with
one another to provide a comprehensive standard that identifies a child's best
interests." K.H.O., 161 N.J. at 348.
Here, defendant argues the Division did not present sufficient evidence to
prove, by clear and convincing evidence, any one of the four prongs codified in
N.J.S.A. 30:4C-15.1(a). Defendant's arguments lack sufficient merit to warrant
further discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm
substantially for the reasons expressed by Judge De Castro in her memorandum
of opinion.
Affirmed.
A-2629-17T1
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DCPP VS. O.P. AND K v. IN THE MATTER OF THE GUARDIANSHIP OF M v. (FG-09-0154-17, HUDSON COUNTY AND STATEWIDE) (RECORD IMPOUNDED)
Combined Opinion