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NOT FOR PUBLICATION WITHOUT THE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-0619-17T3
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
E.S.,
Defendant-Appellant.
__________________________________
IN THE MATTER OF THE GUARDIANSHIP
OF M.C.,
a Minor.
__________________________________
Submitted May 7, 2018 – Decided June 7, 2018
Before Judges Accurso, O'Connor and Vernoia.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Monmouth
County, Docket No. FG-13-0086-16.
Joseph E. Krakora, Public Defender, attorney
for appellant (Steven Edward Miklosey,
Designated Counsel, on the brief).
Gurbir S. Grewal, Attorney General, attorney
for respondent (Melissa H. Raksa, Assistant
Attorney General, of counsel; Joshua Bohn,
Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minor (M. Alexis
Pollack, Deputy Public Defender, on the
brief).
PER CURIAM
Defendant E.S. appeals from a final judgment terminating
her parental rights to her second child, Meg,1 now three years
old. She contends the Division of Child Protection and
Permanency failed to prove prongs three and four of the best
interests standard of N.J.S.A. 30:4C-15.1(a)(3)-(4) by clear and
convincing evidence. The Law Guardian joins the Division in
urging we affirm the judgment. Having considered defendant's
arguments in light of the record and controlling law, we affirm
the termination of her parental rights.
The essential facts of this case are as follows. E.S.,
thirty-six years old, suffers from schizoaffective disorder,
bipolar type, continuous. The Division received a report that
when E.S. was seven months pregnant with Meg, she was smoking
marijuana and drinking beer. The reporter knew of E.S.'s
diagnosis and her participation in a mental health program, but
relayed E.S. "sometimes . . . does not let people in the home
when she is supposed to and sometimes she does not take her
1
This name is fictitious to protect the child's identity. E.S.
surrendered her parental rights to her son born in 2000, and he
was adopted by relatives.
2 A-0619-17T3
medication." The referent reported E.S. ate spoiled or rotten
food that had been out all week and when the baby kicked,
explained she used corporal punishment by poking her own
stomach.
Division workers visited E.S. with a representative of
Resources for Human Development Coastal Wellness (RHD), the
provider supporting E.S. in the community. RHD reported E.S.
"work[ed] with a team of staff including a Wellness Coach, Life
Skills Specialist, Medical Case Manager, Recovery Support
Practitioner and a MICA [mentally ill chemically addicted]
specialist." The agency further noted that although E.S. lived
independently, she required support from its staff five to seven
days a week "to maintain in the community."
E.S. refused to meet with the workers without police being
present, explaining she "was taken away [by] these people, my
father committed suicide[,] and they ruined my life."2 After
police arrived, E.S. continued to refuse to speak with the
Division caseworker, but was amenable to speaking with the
representative of RHD. E.S. refused Division services during
her pregnancy and the Division had no further contact with her
2
Although we are unaware of the details, the record makes clear
E.S. was raised by persons other than her parents after her
mother's parental rights were terminated on application of the
Division.
3 A-0619-17T3
until Meg was born in April 2015, when the hospital called the
Division to report its concerns.
The hospital reported that ten days before Meg was born,
E.S. had been admitted to its crisis unit with "severe and
chronic schizophrenia," and suffering from delusions. E.S.
tested positive for marijuana at Meg's birth and the hospital
was supervising her contact with the baby out of concern for the
infant.
The Division effected an emergency removal two days after
the baby was born. It explored placing Meg with E.S.'s mother,
but ruled her out because of her record with the Division,
stemming from her own history of schizophrenia. Instead, the
baby was placed with a non-relative resource family. E.S. was
again hospitalized in a crisis unit in May, a few weeks after
Meg's birth. Judge Flynn thereafter ordered supervised
visitation once a week for one hour but would not permit E.S. to
hold the baby until she submitted to a psychological evaluation.
E.S. arrived for her first visit with Meg with a hula hoop and
bubbles.
When E.S. appeared at Division offices for an initial
substance abuse evaluation in June, six weeks after the baby was
born, she volunteered that both she and her mother suffered from
schizophrenia, and that the CIA had implanted devices in both
4 A-0619-17T3
their heads at birth. Dr. Brandwein, the Division's
psychological expert, interviewed E.S. in July, although he had
not been provided with her mental health records, as E.S. had
yet to sign a release of those records to the Division. Based
on his clinical interview, Dr. Brandwein advised the Division
that E.S. could be permitted to hold Meg for ten minutes during
her visits.
In August, E.S. was again hospitalized. She reported
delusions and required restraints. In September, the Division
received E.S.'s treatment records from Ancora, which revealed
her eleven hospitalizations between 2009 and 2013, including one
for fifteen months in 2012-2013. After reviewing those records
and those of E.S.'s hospitalization the prior month, Dr.
Brandwein advised that E.S.'s visitation be suspended until she
complied with all court-ordered evaluations and recommendations,
random urine screens and all RHD recommendations and services,
including a five-day-a-week partial care program and enrollment
in a parenting education program.
When the matter returned to court later that month, E.S.
was in jail on charges of reckless driving and destruction of
property, but was transported to the hearing. The court
suspended visitation based on Dr. Brandwein's recommendation and
ordered E.S. to submit to psychiatric and substance abuse
5 A-0619-17T3
evaluations and comply with RHD's recommendations for services.
E.S. attended five of six scheduled visits in all, missing one
only when she was hospitalized.
E.S.'s psychiatric evaluation, which had to be rescheduled
five times, was begun, but never completed after a fire alarm
interrupted the clinical interview. She never appeared to
complete the evaluation. When E.S. finally submitted to a
substance evaluation in January 2016, she tested positive for
both cocaine and marijuana, resulting in a referral to attend a
partial care program at CPC Behavioral Health. Despite the
urging of both the Division and RHD, E.S. never attended.
E.S. was admitted to Trenton Psychiatric Hospital in March
and was discharged days later. The Division lost track of her
two months after that when she stopped responding to any of its
communications. The Division later learned E.S. was admitted to
Trenton Psychiatric in October 2016, where she remained through
the guardianship trial in September 2017.
Dr. Brandwein testified at trial that E.S.'s
"schizoaffective disorder is a lifelong condition. It does not
get cured and cannot be cured, it doesn't go away. It has to be
managed. And even with it being properly managed there are
going to be psychiatric hospitalizations." He explained that
schizoaffective disorder falls across a spectrum of which E.S.
6 A-0619-17T3
"is at the severe end." Dr. Brandwein testified he only had
records from 2009, although E.S. told him her first
hospitalization was almost ten years before that, when she was
seventeen. From the records available to him, Dr. Brandwein
counted eleven hospitalizations over the prior nine years,
"[a]nd we're not talking about in and out of the hospital, 3 or
5 days, get your medication and go. We're talking about months-
long hospitalizations."
Regarding his evaluation, Dr. Brandwein testified he
believed he "was seeing [E.S.'s] baseline, that is her best."
He explained she was not in the hospital and able to participate
in the evaluation, but at "that baseline, there was still active
psychosis, voices, believing there was a cochlear implant in her
body, believing there was bio-micro technology in her body." He
described events observed during E.S.'s visits with Meg, asking
her to be quiet as E.S. read to her from the Bible, as
suggesting E.S. "[was] responding to internal stimuli associated
with her psychotic disorder, raising grave concern about her
ability to care for a child."
Dr. Brandwein testified that he was not aware of E.S.
having lived in the community without extensive mental health
supportive services in place, including her own mental health
case manager. He was of the opinion that E.S. could not live
7 A-0619-17T3
independently in the community without that support. When asked
whether E.S. could live independently with Meg, Dr. Brandwein
responded, "[u]nequivocally no." He testified there were no
services the Division could have offered to assist E.S. "in
becoming capable of independently parenting." He explained that
E.S. "is going to struggle to care for herself in the community.
That, even with medication, will never change." He noted that
before E.S. was admitted to Trenton Psychiatric, she "was found
. . . in her own bed, using her bed as a toilet. This is a
grave risk factor to [E.S.], never mind to any child that would
be in her care." Dr. Brandwein concluded he "would not, [he]
strongly would not recommend placing the child in [E.S.'s] care.
Any child, this child. No children."
Dr. Brandwein also testified to the strong bond Meg had
developed to the foster parents who had cared for her since she
was two weeks old, noting "[f]or all intents and purposes they
are her psychological parents." He testified they were meeting
all of her needs, and she was thriving in their care. Removing
her from them, he opined, would be "highly detrimental" to her
psychological functioning. Dr. Brandwein testified he did not
conduct a bonding evaluation between E.S. and Meg because
"[b]ased upon the fact that there's been no contact for almost
[two] years" and Meg "doesn't know who she is," there would be
8 A-0619-17T3
"an infinitesimal chance" of a bond between the two of them.
E.S. did not testify or offer any witnesses.
Judge Bernstein accepted Dr. Brandwein's testimony, which
he found credible and clear. The judge found in this "rather
sad case" that because of E.S.'s "long, long history of severe
mental illness," including "psychosis and the delusions,
hallucinations, [and] voices," that she has never been able to
care for Meg. Specifically, the judge concluded E.S. "is
basically incapable of caring for herself, let alone a small
baby with the needs of a small child."
As to the third prong of the best interests test, the judge
stated he, "unfortunately" did not think "there is such a thing
as any reasonable efforts that would lead to . . .
reunification" in this case. The judge found the Division
assessed relatives and "attempted to get [E.S.] into drug
treatment. She has continued to have mental health management
throughout the case and there really wasn't a lot the Division
could do, nor did the evaluation indicate that there was any
particular treatment that the Division could recommend that
would lead to any type of a reunification."
The judge noted "the Division followed up with the mental
health management and psychiatrist, got records, and kept up
with the status of her treatment. But there really wasn't
9 A-0619-17T3
anything special the Division could do separately other than the
treatment that she was already undergoing at the time." Judge
Bernstein found "under the circumstances, . . . the Division has
made more than reasonable efforts with regard to this particular
case when, in fact, there really isn't any reasonable efforts."
He concluded "[t]here really wasn't anything the Division could
do in this particular case that would change the situation."
Noting Meg has not seen her mother in over two years,
"[a]nd really, the mother at this point is a stranger to the
child," the judge found a bonding evaluation between the two
"doesn't really make any sense." Acknowledging the testimony
that Meg is bonded to her foster parents, who wish to adopt her,
and is apparently thriving under their care, the judge found Dr.
Brandwein's opinion that termination would not do more harm than
good, "clearly logical, expected under the circumstances since
this is the only home that this child knows." Having reviewed
the evidence and heard the testimony of the caseworker and Dr.
Brandwein, Judge Bernstein was satisfied the Division carried
its burden on all four prongs by clear and convincing evidence.
E.S. appeals, arguing "the Division relied on Dr.
Brandwein's psychological evaluation to provide [her] with
nothing." "Armed with Dr. Brandwein's opinion that [her] cause
for reunification was essentially hopeless, the Division
10 A-0619-17T3
willfully decided to leave everything to [RHD], spare for
psychiatric evaluations and substance abuse evaluations." She
contends "[t]he Division failed to satisfy the third prong by
refusing to make a serious effort to locate and provide services
to assist [her] in independently parenting her daughter." She
argues the Division failed to prove termination would not do
more harm than good because it prevented her "from enjoying
sustained therapeutic visitation with her daughter, and
thereafter used the lack of a bond to deny her a bonding
evaluation." We reject those arguments because they ignore the
evidence in the record regarding the risk E.S. posed to Meg.
The third prong of the best interests standard requires the
Division to make "reasonable efforts to provide services to help
the parent correct the circumstances" that necessitated removal
and placement of the child in foster care. N.J.S.A. 30:4C-
15.1(a)(3). "Reasonable efforts" consist of services "to assist
the parents in remedying the circumstances and conditions that
led to the placement of the child and in reinforcing the family
structure . . . ." N.J.S.A. 30:4C-15.1(c). The reasonableness
of the efforts, of course, depends on the facts and
circumstances of each case. In re Guardianship of D.M.H., 161
N.J. 365, 393 (1999).
11 A-0619-17T3
Provision of services under the third prong "contemplates
efforts that focus on reunification," In re Guardianship of
K.H.O., 161 N.J. 337, 354 (1999), and "may include consultation
with the parent, developing a plan for reunification, providing
services essential to the realization of the reunification plan,
informing the family of the child's progress, and facilitating
visitation," N.J. Div. of Youth & Family Servs. v. M.M., 189
N.J. 261, 281 (2007). The services provided to meet the child's
need for permanency and the parent's right to reunification must
be "'coordinated'" and must have a "'realistic potential'" to
succeed. N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J.
Super. 245, 267 n.10 (App. Div. 2002) (quoting N.J.A.C. 10:133-
1.3).
The reasonableness of the Division's efforts, however, "is
not measured by their success," D.M.H., 161 N.J. at 393, and
"[t]he failure or lack of success of such efforts does not
foreclose a finding that the Division met its statutory burden
to try to reunify the children with the family." N.J. Div. of
Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 620 (App.
Div. 2007). Moreover, "[e]ven if the Division ha[s] been
deficient in the services offered to" a parent, reversal of the
guardianship judgment will not necessarily be "warranted,
12 A-0619-17T3
because the best interests of the child controls" a court's
determination as to termination of parental rights. Id. at 621.
E.S.'s arguments ignore the evidence before the trial court
that she presented a severe and substantial risk of harm to Meg
by reason of her longstanding and intractable schizoaffective
disorder. See N.J. Div. of Youth & Family Servs. v. A.G., 344
N.J. Super. 418, 435 (App. Div. 2001). In the Division's view,
that risk was so great it petitioned the court to prevent E.S.
from holding her daughter during their supervised one-hour
visits. And although Dr. Brandwein initially advocated to
permit E.S. such contact, he changed his position upon being
provided with almost nine years of her most recent psychiatric
records and instead counselled that visitation be immediately
suspended.
Dr. Brandwein explained exactly why he found E.S.'s
condition, a condition in which she responded to internal
stimuli, hearing voices and experiencing other delusions even
when maintained on psychotropic medications, posed such an
extreme risk to herself as well as any child in her care. He
also detailed the extensive services RHD employed to maintain
E.S. in the community and her regularly recurrent
hospitalizations notwithstanding those services. He described
her mental illness as "severe" and opined that there were no
13 A-0619-17T3
services the Division could provide to make it possible for E.S.
to safely parent Meg.
Judge Bernstein heard his testimony and accepted his
conclusions. We generally "defer to the factual findings of the
trial court because it has the opportunity to make first-hand
credibility judgments about the witnesses who appear on the
stand; it has a 'feel of the case' that can never be realized by
a review of the cold record." N.J. Div. of Youth & Family
Servs. v. E.P., 196 N.J. 88, 104 (2008) (quoting N.J. Div. of
Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007)). We do
so here. There is nothing in the record to suggest that E.S.
could safely parent Meg now or in the foreseeable future. E.S.
offers nothing to suggest the situation would change with
specific services. She suffers from a mental disorder that
prevents her from being safely able to parent her daughter, and
there is no evidence to demonstrate that circumstance, which had
persisted for much if not all of E.S.'s adult life, was
amendable to change. See In re Guardianship of R. G. and F.,
155 N.J. Super. 186, 194-95 (App. Div. 1977).
Affirmed.
14 A-0619-17T3