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NOT FOR PUBLICATION WITHOUT THE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-0328-17T3
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
A.C.,
Defendant-Appellant,
and
A.W.C., SR.,
Defendant.
_________________________________
IN THE MATTER OF THE GUARDIANSHIP
OF A.W.C., JR.,
a Minor.
_________________________________
Submitted May 10, 2018 – Decided June 19, 2018
Before Judges Simonelli and Gooden Brown.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Monmouth
County, Docket No. FG-13-0050-17.
Joseph E. Krakora, Public Defender, attorney
for appellant (Phuong Dao, Designated Counsel,
on the briefs).
Gurbir S. Grewal, Attorney General, attorney
for respondent (Melissa H. Raksa, Assistant
Attorney General, of counsel; Rachel Simone
Frey, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minor (Charles
Ouslander, Designated Counsel, on
the brief).
PER CURIAM
Defendant A.C.1 appeals from the September 5, 2017 judgment
of guardianship that terminated her parental rights to her son,
A.W.C., Jr., born in November 2012.2 Defendant contends that
plaintiff New Jersey Division of Child Protection and Permanency
(Division) failed to prove each prong of N.J.S.A. 30:4C-15.1(a)
by clear and convincing evidence. The Law Guardian supported
termination before the trial court and, on appeal, joins the
Division in urging us to affirm. Having considered the parties'
arguments in light of the record and applicable legal standards,
we affirm.
1
Pursuant to Rule 1:38-3(d), we use initials to protect the
confidentiality of the participants in these proceedings.
2
The judgment of guardianship also terminated the parental rights
of A.W.C., defendant's husband and A.W.C., Jr.'s biological
father. However, he does not participate in this appeal.
2 A-0328-17T3
N.J.S.A. 30:4C-15.1(a) requires the Division to petition for
termination of parental rights on the grounds of the "best
interests of the child" if the following standards are met:
(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 harm3
. . . ;
(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.
On January 4, 2017, the Division filed a verified complaint
to terminate defendant's parental rights and award the Division
guardianship of A.W.C., Jr. Judge Stephen J. Bernstein conducted
a four-day guardianship trial during which the Division and
defendant each presented four witnesses. In addition, numerous
documentary exhibits were admitted into evidence.
3
"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." N.J.S.A. 30:4C-
15.1(a)(2).
3 A-0328-17T3
We will not recite in detail defendant's extensive history
of substance abuse and mental health issues that has plagued her,
resulted in multiple hospitalizations for attempted suicide, and
led to her involvement with the Division as an adult since 2009.4
Defendant's lengthy involvement with the Division has generated
numerous court orders compelling her to comply with substance
abuse treatment, psychiatric care for bi-polar disorder and post-
traumatic stress disorder, medication monitoring, and safety
protection plans. Suffice it to say that the guardianship
complaint that is the subject of this appeal followed the emergency
removal of A.W.C., Jr. in March 2014, when A.W.C., Jr.'s paternal
grandparents discovered drug paraphernalia in the upstairs
apartment of their split level home, where defendant had been
residing with their son and grandson, and ejected the couple from
their home. Earlier drug screens administered to defendant at the
Division's request were positive for heroin, cocaine and morphine.
4
Defendant has two older children, neither of whom was still in
her care. In 2009, the Division removed the younger child, born
in June 2009, from her care due to her non-compliance with mental
health treatment. He was later adopted by his maternal grandmother
in 2011 after defendant surrendered her parental rights. The
older child, born in September 2004, was in the custody of her
biological father by court order under the Family Part's non-
dissolution ("FD") docket. Each of defendant's three children has
a different father. Defendant also had a history of involvement
with the Division as a child herself as a result of being sexually
abused by her father.
4 A-0328-17T3
As a result, the Division was granted care, custody, and
supervision of A.W.C., Jr., pursuant to N.J.S.A. 9:6-8.21 and
30:4C-12, and placed him with his paternal grandparents where he
has remained since.
At the trial, caseworkers Jane Siegmund and Heather Delapa
testified about the Division's involvement with defendant, and
Alan Lee, Psy. D., the Division's expert in the field of forensic
psychology, testified about the psychological and bonding
evaluations he conducted at the Division's request. A.W.C., Jr.'s
paternal grandmother also testified for the Division about her and
her husband's commitment to adopting their grandson.
For the defense, defendant testified on her own behalf,
objecting to the termination of her parental rights. Defendant
produced as witnesses Jeanine Schmidt and Laurie Vincent, the
Director and Certified Associate Addiction Counselor,
respectively, at Hogar Crea Women's Center (Hogar), the
residential treatment facility defendant was attending at the time
of the trial, to vouch for her progress in treatment since her
admission in November 2016 and her negative drug screens while at
the program. Defendant's mother also testified on her behalf,
acknowledging that defendant "was on a downward spiral" prior to
entering Hogar, confirming how well defendant had done at Hogar,
and describing the close relationship defendant had with her son.
5 A-0328-17T3
Andrew Brown, Ph. D., an expert in the field of psychology,
testified for defendant about the psychological and bonding
evaluations he conducted and his disagreements with the Division's
expert.
Siegmund and Delapa detailed the Division's involvement with
defendant since its inception. Siegmund testified that while
defendant resided at the paternal grandparents' home, she was
unemployed, paid no rent and received social security disability.
After she was ejected from their home in March of 2014, she was
homeless and had no contact with the Division or her son for
several months. Once defendant resumed contact with the Division
in October 2014, she received numerous substance abuse
evaluations, random urine screens, referrals to inpatient and
outpatient substance abuse programs, medication monitoring, and
psychiatric treatment. However, according to Siegmund, although
"[t]here were times where [defendant] was consistent[,]" the
"majority of the time she was inconsistent" with both substance
abuse and mental health treatment, consistently tested positive
for illicit substances, and failed to complete the programs.
Delapa testified that defendant was also "inconsistent with taking
[her] medication[s]" and reported that as recent as March of 2016,
defendant had a psychotic episode during which "she was on the
6 A-0328-17T3
front lawn of her mother's house . . . threatening to commit
suicide."
As to visitation, although the Division arranged for
supervised visitation, Delapa confirmed that there was no
visitation during the "periods of time that [defendant] was
missing." When she reappeared, her visits were "sporadic" and
"there were concerns about her sleeping" during visits. Once it
became apparent that defendant's intermittent disengagements and
failure to comply with treatment prevented her from maintaining
sobriety and mental health long term, the Division's goal changed
from reunification to kinship legal guardianship (KLG) and
ultimately adoption by the paternal grandparents. Despite the
court relieving the Division of its obligation to make reasonable
efforts on September 19, 2016, the Division continued to offer
visitation, mental health services, and substance abuse treatment,
and attempted to locate defendant whenever she was missing.
In January of 2017, the Division located defendant at Hogar,
an unlicensed residential substance abuse program in Pennsylvania
that defendant found "on her own." According to witness accounts,
the program lasted eighteen to twenty-two months with follow-up
aftercare. The therapeutic component of the program consisted of
long-term residents and program graduates counseling new
residents. Residents were transported to an outside professional
7 A-0328-17T3
facility for psychological and psychiatric treatment as needed.
In defendant's case, she had four visits to a psychiatrist during
her nine-and-a-half months at Hogar. Delapa learned from the
program director that they were willing to change the program
guidelines to allow an early discharge for defendant given the
ongoing termination proceedings. Once the Division located
defendant at Hogar, it reinstated regular supervised visitation,
alternating transporting A.W.C., Jr. to Pennsylvania to visit
defendant between the Division and the maternal grandmother.
A.W.C., Jr.'s paternal grandmother testified for the Division
and confirmed that she and her husband were committed to adopting
their grandson. She indicated that although they initially
considered KLG, they decided against it because A.W.C., Jr. needed
"stability." She described her grandson as "very verbal" and
"highly intelligent" but acknowledged that "[h]e has special
needs," including an eye condition for which he underwent surgery
and "core problems" for which he received therapy. Nonetheless,
she was confident that she and her husband would be able to meet
his needs. She also confirmed that they were willing to facilitate
continued contact with A.W.C., Jr.'s maternal relatives, including
his half-brother and defendant, as long as defendant's mother
supervised the contact, because she believed "kids need to know
their parents[.]" During their testimony, defendant and her mother
8 A-0328-17T3
contradicted the paternal grandmother's testimony in this regard
and expressed their belief that they would not have access to
A.W.C., Jr. if defendant's parental rights were terminated and he
was adopted by his paternal grandparents. However, defendant's
mother acknowledged that on one occasion when the paternal
grandmother objected to A.W.C., Jr. visiting defendant, it was
based on her concern that A.W.C., Jr. would be exposed to one of
defendant's boyfriends who had a drinking problem. According to
defendant, she severed all ties with that boyfriend as a result.
After conducting a psychological evaluation of defendant as
well as bonding evaluations with defendant and each of A.W.C.,
Jr.'s paternal grandparents on March 29, 2017, Dr. Lee concluded
that "[defendant] would not be able to provide a minimally adequate
level of parenting to [A.W.C., Jr.]" now and within the foreseeable
future. Dr. Lee's conclusion was based on defendant's "mental
health issues," "maladaptive personality and [character]
traits[,]" "substance abuse risk," "instability in . . . multiple
areas of her life[,]" and "lack of parenting knowledge and
parenting experience." Dr. Lee noted that these issues persisted
years after A.W.C., Jr. was removed and defendant was provided
with different services. According to Dr. Lee, even defendant
attributed her plight to her doing "too little too late." Further,
defendant herself acknowledged that after completing Hogar,
9 A-0328-17T3
A.W.C., Jr. would still have to remain with his paternal
grandparents until she was able to pursue vocational training,
secure employment, obtain suitable housing and "get on her own two
feet again."
Dr. Lee diagnosed defendant with personality disorder NOS
with borderline dependent and narcissistic traits, as well as
depressive disorder, anxiety disorder, post-traumatic stress
disorder, and polysubstance use disorder. He did not, however,
"find compelling evidence . . . that she has bipolar disorder per
se." Although Dr. Lee did not find any "gross deficits in her
intellectual functioning[,]" he determined that defendant was
"psychologically less mature than most adults[,]" "has
difficulties with coping and problem-solving," "tends to be
impulsive" and "reckless and [has] difficulty sustaining
consistency in her life and lifestyle." Dr. Lee pointed to
defendant's history of "unstable residence, unstable relationships
[and] unstable employment" as well as her limited knowledge of
parenting and child rearing after having three children. Given a
four-year-old child's need for "consistency[,]" "stability[,]"
"protection and guidance[,]" Dr. Lee concluded that defendant
"would face and exhibit significant problems to be a minimally
adequate parent" to A.W.C., Jr. He also stressed that because
defendant's substance abuse occurred over time and subsequent to
10 A-0328-17T3
completing some substance abuse programs, there was a "heightened
risk for substance abuse relapse."
As to the bonding evaluations, Dr. Lee described A.W.C.,
Jr.'s attachment to defendant "as being ambivalent and insecure."
Because Dr. Lee did not consider the attachment "to be a
significant and positive bond," he concluded that there was "a low
risk of [A.W.C., Jr.] suffering severe and enduring harm if his
relationship with [defendant] [was] permanently ended." On the
other hand, Dr. Lee described A.W.C., Jr.'s attachment to each
paternal grandparent "as a significant and positive bond." As a
result, according to Dr. Lee, "there [was] a significant risk of
[A.W.C., Jr.] suffering severe and enduring harm if this
relationship . . . [was] permanently ended." Further, Dr. Lee
opined that while it was "likely that the paternal grandparents
would be able to mitigate any possible harm" from terminating
defendant's parental rights, defendant would not be able to
"mitigate the harm that [A.W.C., Jr.] would be expected to have
by leaving the paternal grandparents."
The defense expert disagreed with most of Dr. Lee's
conclusions. After conducting a psychological and bonding
evaluation of defendant on July 18, 2017, as well as bonding
evaluations with A.W.C., Jr.'s paternal grandparents on July 11,
2017, Dr. Brown agreed that defendant was not currently capable
11 A-0328-17T3
of being a minimally adequate parent for her son. However, he
opined that assuming defendant completed Hogar, continued to
receive counseling and psychotherapy, and remained compliant with
her psychiatric care and psychotropic medication regimen, she
"could in the near future" be a minimally adequate parent for her
son. Although Dr. Brown could not determine how long it would
take for defendant to be able to provide full time care for her
son, he recommended "a reevaluation at some point to determine her
current emotional and behavioral status."
Dr. Brown also found that A.W.C., Jr. viewed his paternal
grandparents as his psychological parents but did not make a
similar finding for defendant. Nonetheless, he opined that while
A.W.C., Jr. "show[ed] a secure attachment" to both defendant and
his paternal grandparents, if defendant's parental rights were
terminated and A.W.C., Jr. was adopted by his paternal
grandparents, "[A.W.C., Jr.] runs the risk of experiencing
psychological injury" that his paternal grandparents "would not
be able to mitigate." On the other hand, according to Dr. Brown,
although A.W.C., Jr. would suffer harm if he was removed from his
paternal grandparents, defendant was capable of mitigating that
harm. Dr. Brown's conclusion that termination of defendant's
parental rights would pose "a threat to [A.W.C., Jr.'s]
development" and "do more harm than benefit" was premised on his
12 A-0328-17T3
belief that while defendant recognized the importance of A.W.C.,
Jr. having an ongoing relationship with his paternal grandparents,
his paternal grandparents did not recognize the importance of
A.W.C., Jr. having an ongoing relationship with his mother.
Following the trial, on September 5, 2017, Judge Bernstein
issued an oral decision in which he determined the Division had
proven, "by clear and convincing evidence," "all four prongs" of
the best interests standard. The judge described defendant's
progress at Hogar "for the last nine-and-a-half months" as
"commendable." He acknowledged that, by all accounts, defendant
had "been able to remain drug-free and abstinent" while at Hogar,
and "had good intentions throughout this case" as evidenced by her
involvement in several programs and completing "some of the
programs."
However, because defendant had relapsed in the past and become
non-compliant with "her mental health issues" after completing
programs, the judge determined she had an unknown and unpredictable
future. The judge noted that, "despite all the Division
involvement and all the services being offered[,] . . . she [had]
never really addressed completely her mental health and drug
addiction issues." The judge agreed with Dr. Lee that defendant
had "never really addressed the issues that [had] plagued her
since childhood" and found it significant that defendant was not
13 A-0328-17T3
being honest about her issues during Dr. Lee's evaluation of her.
As a result, the judge found that defendant had "not alleviated
the harm . . . that prevented her from caring for [her
son] . . . and which continued to make . . . her incapable of
caring for" him, despite the Division's "reasonable efforts."
The judge recounted defendant's lengthy history of
involvement with the Division "going back five or six years" before
A.W.C., Jr. was born. He detailed defendant's mental health
history, including her diagnosis for "PTSD and bipolar
disorder[,]" her "several suicide attempts," and her "periods of
depression," and concluded that the peer counseling and four visits
to the psychiatrist while attending Hogar could not "seriously
address[] those issues." The judge noted that both experts
testified that defendant needed intensive psychotherapy and
psychotropic medications to treat her disorders, which are
"conditions that can be extremely hard to treat." Further, the
judge was concerned that defendant would be discharged from Hogar
"without any plans" concerning where she was "going to live," how
she was "going to survive financially," what education program to
pursue, "how she would care for her child, [or] what [she was]
going to do with her own life."
The judge noted that despite her "progress in the last nine-
and-a-half months" at Hogar, defendant had not had "the same
14 A-0328-17T3
stressors that appear when you are out on your own" and which
defendant had "never been able to address" for herself." Further,
according to the judge, either when A.W.C., Jr. "was in her
custody" or "in the last three-and-a-half years that he's been out
of her custody[,]" defendant had never demonstrated "that [A.W.C.,
Jr.] could rely upon her" for "food, clothing, shelter, [and]
medical [care]" or "[t]o take care of him when he's crying and in
need." Indeed, according to the judge, even her own expert
admitted that defendant was "not capable of parenting at this
particular time" and suggested reevaluating in six months.
In evaluating the divergent expert testimony, the judge
rejected Dr. Brown's testimony as illogical and unbelievable, and
found Dr. Lee's testimony "credible and believable based on the
history of this case and all the facts that have taken place." As
to Dr. Brown's opinion of defendant's ability to parent in the
future, the judge did not find it believable "to any type of degree
of psychological certainty" because it was "speculative" and
purely "hopeful wishing."
Regarding the bonding evaluations, the judge credited Dr.
Lee's opinion "that there [was] an insecure bond" between defendant
and A.W.C., Jr. He disputed Dr. Brown's finding of "a secure
bond" between defendant and her son based on them living "together
[until] he was a year and three or four months old," given the
15 A-0328-17T3
fact that defendant disappeared and abandoned her son "for six,
eight months at a time." The judge found it incredible that
"disappearing from [the life of] a child does not
dissipate . . . any bond that could have occurred." Equally
implausible to the judge was Dr. Brown's opinion that defendant
and the paternal grandparents had "the same bond" when defendant
only visited with her son over three-and-a-half years "compared
to the time spent and the care that's given by the paternal
grandparents on a day-to-day basis twenty-four/seven."
Further, the judge rejected Dr. Brown's opinion that
defendant was "capable of dissipating the harm that would [be]
cause[d] by taking [A.W.C., Jr.] away from the . . . paternal
grandparents . . . who have cared for him" since "he was a year
and three or four months old." Likewise, the judge found Dr.
Brown's opinion that the paternal grandparents could not
"dissipate the potential harm" caused by termination of
defendant's parental rights "totally illogical," particularly
since Dr. Brown admitted that the paternal grandparents were, in
fact, A.W.C., Jr.'s "psychological parents" and that their home
was the only one he had known.
In this regard, the judge concluded that the paternal
grandparents "clearly love him, take care of him, have seen to all
his needs," and could mitigate "any harm that could be caused by
16 A-0328-17T3
termination of parental rights." Moreover, the judge believed the
paternal grandmother that "she would allow [defendant] to continue
to maintain a relationship, probably through the [maternal]
grandmother." The judge concluded that A.W.C., Jr. "is growing
up and needs stability, needs permanency," and KLG was "not
available in this case" because the paternal grandparents were
"committed to adoption." The judge entered a memorializing order,
and this appeal followed.
Our scope of review on appeals from orders terminating
parental rights is limited. In such cases, we will generally
uphold the trial court's findings, so long as they are supported
by "adequate, substantial, and credible evidence." N.J. Div. of
Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014). Such a
decision should only be reversed or altered on appeal if the trial
court's findings were "so wholly unsupportable as to result in a
denial of justice." N.J. Div. of Youth & Family Servs. v. P.P.,
180 N.J. 494, 511 (2004) (quoting In re Guardianship of J.N.H.,
172 N.J. 440, 472 (2002)). We must give substantial deference to
the family court judge's special expertise and opportunity to have
observed the witnesses firsthand and evaluate their credibility.
R.G., 217 N.J. at 552-53. Contrary to defendant's contention, as
the fact finder, a "trial judge is 'not required to accept all or
any part of [an] expert opinion[].'" In re Civil Commitment of
17 A-0328-17T3
R.F., 217 N.J. 152, 174 (2014) (alteration in original) (quoting
In re D.C., 146 N.J. 31, 61 (1996)). Even where, as here, the
appellant alleges "error in the trial judge's evaluation of the
underlying facts and the implications to be drawn therefrom,"
deference must be afforded unless the judge "went so wide of the
mark that a mistake must have been made." N.J. Div. of Youth &
Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (first quoting In
re Guardianship of J.T., 269 N.J. Super. 172, 188-89 (App. Div.
1993); then quoting C.B. Snyder Realty, Inc. v. BMW of N. Am.
Inc., 233 N.J. Super. 65, 69 (App. Div. 1989)).
Guided by these standards, we conclude that Judge Bernstein's
factual findings are amply supported by the credible evidence in
the record, and his legal conclusions are unassailable. "It is
not our place to second-guess or substitute our judgment for that
of the family court, provided that the record contains 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). The judge reviewed the evidence presented at
trial, made detailed findings as to each prong of N.J.S.A. 30:4C-
15.1(a), and concluded that the Division met by clear and
convincing evidence all of the legal requirements for a judgment
of guardianship. The judge's opinion tracks the statutory
requirements of N.J.S.A. 30:4C-15.1(a) and accords with applicable
18 A-0328-17T3
case law. See, e.g., F.M., 211 N.J. at 447-54; N.J. Div. of Youth
& Family Servs. v. E.P., 196 N.J. 88, 103-07 (2008); In re
Guardianship of K.H.O., 161 N.J. 337, 347-63 (1999); In re
Guardianship of D.M.H., 161 N.J. 365, 375-93 (1999). We thus
affirm substantially for the reasons Judge Bernstein expressed in
his well-reasoned oral opinion.
Affirmed.
19 A-0328-17T3