DCPP VS. S.A. AND C.W. IN THE MATTER OF THE GUARDIANSHIP OF AN.A. AND AL.A. (FG-09-0230-18, HUDSON 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NOT FOR PUBLICATION WITHOUT THE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-1299-18T3

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

Plaintiff-Respondent,

v.

S.A.,

Defendant-Appellant,

and

C.W.,

Defendant.
__________________________

IN THE MATTER OF THE
GUARDIANSHIP OF An.A
and Al.A.,

Minors.
__________________________

Submitted February 3, 2020 – Decided March 3, 2020

Before Judges Messano, Ostrer and Vernoia.
 On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Hudson County,
Docket No. FG-09-0230-18.

Joseph E. Krakora, Public Defender, attorney for
appellant S.A. (Robyn A. Veasey, Deputy Public
Defender, of counsel; Louis W. Skinner, Designated
Counsel, on the briefs).

Gurbir S. Grewal, Attorney General, attorney for
respondent (Donna Sue Arons, Assistant Attorney
General, of counsel; Ellen L. Buckwalter, Deputy
Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minors (Margo E.K. Hirsch, Designated
Counsel, on the brief).

PER CURIAM

Defendant S.A. (Sarah) 1 appeals from a Family Part order terminating her

parental rights to her two daughters, An.A. (Andrea), born in August 2013, and

Al.A. (Amy), born in March 2015. The children's biological father, C.W.,

executed an identified surrender of his parental rights to his mother, D.C., who

has served as the children's resource parent since their March 2017 removal from

Sarah's care and who intends to adopt the children.

1
We employ initials and pseudonyms to protect the privacy of the children and
for ease of reference. R. 1:38-3(b)(12).
A-1299-18T3
2
 Sarah contends the New Jersey Division of Child Protection and

Permanency (Division) failed to present sufficient evidence clearly and

convincingly establishing the four prongs of the best interests of the child

standard. See N.J.S.A. 30:4C-15.1(a). We have reviewed the record, agree with

the Division and Law Guardian there is substantial credible evidence supporting

the court's determination that termination of Sarah's parental rights is in the

children's best interests, and affirm substantially for the reasons set forth in

Judge Radames Velazquez, Jr.'s thorough written opinion.

During the guardianship trial, the Division presented evidence and

testimony from D.C.; Division caseworker, Jasmine Soto; Dr. Elizabeth

Stillwell, Psy.D., who was qualified as an expert in forensic psychology; and

Dr. Samiris Sostre, M.D., who was qualified as an expert in forensic psychiatry.

Sarah did not attend the trial or present any witnesses or evidence.

Judge Velazquez made detailed factual findings, addressed each element

of the best interests standard set forth in N.J.S.A. 30:4C-15.1(a), and concluded

the Division sustained its burden by presenting clear and convincing evidence it

was in the children's best interests to terminate Sarah's parental rights. We find

sufficient support for, and presume the parties' familiarity with, Judge

Velazquez's findings, which we briefly summarize.

A-1299-18T3
3
 Judge Velazquez found the Division "presented substantial and persuasive

evidence that the children's health and development has been and will continue

to be endangered" by the parental relationship with Sarah, due to her "untreated

severe mental illness, parental neglect, and housing instability," and that the

children had suffered, and would continue to suffer harm, as a result of Sarah's

inability to parent and her lack of stable housing.

The court noted Dr. Stillwell's and Dr. Sostre's unrebutted testimony Sarah

suffered from schizoaffective disorder, bipolar type, and her refusal to comply

with recommendations for treatment and prescriptions for medication rendered

her unable to safely parent the children. The court also found Sarah suffered

from cognitive impairments that rendered her unable "to understand how her

actions demonstrated poor judgment and parenting skills," and her lack of

insight into her mental health issues posed additional risks of harm to the

children because "she [does not] understand why she should be concerned" about

the treatment of her mental health issues. The judge determined Sarah's failure

to comply with treatment and refusal to take medications prescribed to

ameliorate the effects of her significant mental health issues placed the children

at "substantial risk of harm" and "ensures that [she] will be increasingly unable

to provide a stable and healthy home for her children in the future." The court

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relied on Dr. Sostre's testimony that, without medication, there was a 100

percent chance Sarah would experience additional psychotic episodes that "will

increase in severity and frequency."

Judge Velazquez further found the Division presented clear and

convincing evidence Sarah is unable and unwilling to address the harm to the

children. Relying on the unrebutted expert testimony, the judge found Sarah's

parenting deficits "are inextricably connected to her chronic mental illness, and

her refusal to treat her schizoaffective disorder through psychotropic

medication" and her "inability to understand and appreciate her symptoms[,]

cause[] her to lack the motivation needed to address and treat her mental illness."

Relying on Dr. Stillwell's testimony, Judge Velazquez further determined that

the children have a strong and secure bond with D.C., and they will suffer

additional harm if the permanency that adoption by D.C. will provide is further

delayed.

The judge also detailed the services the Division offered and provided

Sarah to assist her in addressing the circumstances leading to the children 's

removal and placement with D.C., and he considered the reasonableness of the

Division's efforts to provide services "in the context of [Sarah's] unwillingness

to address her mental illness, which was a necessary step towards stabilization

A-1299-18T3
5
and reunification." Judge Velazquez noted the Division made referrals for Sarah

to a parent mentor program, parenting skills classes, homemaker services,

individual therapy, and for psychological, psychiatric, and intellectual

assessments and evaluations. The Division further provided housing assistance

to facilitate Sarah's transition from shelters and health care facilities to her own

apartment, and it offered services "focused on stabilizing [her] mental health

and addressing her parenting skills."

As noted by the court, at times Sarah utilized the services and appeared to

make progress towards addressing the issues preventing her from providing the

children with a safe and secure home. However, Sarah's consistent inability and

unwillingness to comply with services and address her mental health issues

through treatment and taking prescribed medications rendered her unable to

parent her children.

The court also found termination of Sarah's parental rights would not do

more harm than good based on Dr. Stillwell's unrebutted psychological and

bonding evaluations and testimony; Sarah's unwillingness to address her mental

health issues; and D.C.'s willingness to provide permanency through adoption.

Without contradiction, Dr. Stillwell testified that a break in the bond between

the children and D.C. "would pose a far greater potential for harm than a break

A-1299-18T3
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from" Sarah and would cause "significant and enduring harm" to the children's

emotional and behavioral development. The court accepted Dr. Stillwell's

testimony that the children share a positive, but inconsistent and insecu re, bond

with Sarah, and they enjoy a positive, secure, and strong bond with D.C., who

the children view as their psychological parent and who provides nurture and

guidance. The court also found Sarah's mental health issues, and her

unwillingness and inability to effectively address them, make it unlikely she will

be able to safely parent the children at any time in the foreseeable future.

Following the court's entry of the October 31, 2018 judgment of

guardianship, Sarah appealed. She offers the following arguments for our

consideration:

[POINT I]

THE [TRIAL] COURT ERRED IN ITS
CONCLUSION THAT TERMINATION OF
PARENTAL RIGHTS IS IN THE BEST INTERESTS
OF THE CHILDREN UNDER N.J.S.A. 30:4C-
15.1[(a)].

I. THE COURT . . . ERRED IN CONCLUDING THAT
ANDREA AND AMY WERE HARMED BY
[SARAH][.]

II. THE COURT . . . ERRED IN CONCLUDING
THAT [SARAH] IS UNWILLING OR UNABLE TO
ELIMINATE THE ALLEGED HARM FACING

A-1299-18T3
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 ANDREA AND AMY OR TO PROVIDE A SAFE
AND STABLE HOME[.]

III. THE COURT . . . ERRED IN CONCLUDING
THAT [THE DIVISION] EXERCISED
REASONABLE EFFORTS TO PROVIDE SERVICES
TO HELP [SARAH] TO CORRECT THE
CIRCUMSTANCES THAT LED TO PLACEMENT
OUTSIDE THE HOME[.]

IV. THE COURT'S CONCLUSION THAT
TERMINATION OF PARENTAL RIGHTS WILL
NOT DO MORE HARM THAN GOOD IS
ERRONEOUS[.]

Our review of a trial court order terminating parental rights is limited.

N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). "A

Family Part's decision to terminate parental rights will not be disturbed when

there is substantial credible evidence in the record to support the court's

findings." N.J. Div. of Child Prot. & Permanency v. K.T.D., 439 N.J. Super.

363, 368 (App. Div. 2015) (citing N.J. Div. of Youth & Family Servs. v. F.M.,

211 N.J. 420, 448 (2012)). "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." F.M., 211 N.J. at 448 (citing Cesare v. Cesare, 154 N.J. 394, 413

(1998)). This enhanced deference is particularly appropriate where the court 's

findings are founded upon the credibility of the witnesses' testimony. N.J. Div.

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8
of Youth & Family Servs. v. H.B., 375 N.J. Super. 148, 172 (App. Div. 2005)

(citing Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 484

(1974)).

"Only when the trial court's conclusions are so 'clearly mistaken' or 'wide

of the mark' should an appellate court intervene and make its own findings to

ensure that there is not a denial of justice." N.J. Div. of Youth & Family Servs.

v. E.P., 196 N.J. 88, 104 (2008) (quoting G.L., 191 N.J. at 605). No deference

is given to the trial court's "interpretation of the law," which we review de novo.

D.W. v. R.W., 212 N.J. 232, 245-46 (2012).

A parent has a constitutionally protected right "to enjoy a relationship with

his or her child." In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). That

right, however, "is not absolute" and is limited "by the State's parens patriae

responsibility to protect children whose vulnerable lives or psychological well-

being may have been harmed or may be seriously endangered by a neglectful or

abusive parent." F.M., 211 N.J. at 447 (citing E.P., 196 N.J. at 102). A parent's

interest must, at times, yield to the State's obligation to protect children from

harm. See N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 397

(2009).

A-1299-18T3
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 When terminating parental rights, the court must consider the "best

interests of the child[ren]." K.H.O., 161 N.J. at 347. The Division's petition to

terminate parental rights may only be granted if the following four prongs

enumerated in N.J.S.A. 30:4C-15.1(a) are established 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.
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;

(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.

[N.J.S.A. 30:4C-15.1(a).]

"The four criteria enumerated in the best interests standard are not discrete

and separate; they relate to and overlap with one another to provide a

A-1299-18T3
10
comprehensive standard that identifies a child's best interests." K.H.O., 161 N.J.

at 348. "[T]he cornerstone of the inquiry [under N.J.S.A. 30:4C-15.1(a)] is not

whether the biological parents are fit but whether they can cease causing their

child harm." In re Guardianship of J.C., 129 N.J. 1, 10 (1992) (citing N.J. Div.

of Youth & Family Servs. v. A.W., 103 N.J. 591, 607 (1986)).

Sarah argues the court erred by terminating her parental rights because the

Division failed to present sufficient evidence clearly and convincingly

establishing each prong of the best interests standard. We disagree. Judge

Velazquez conducted the required fact-sensitive analysis of the statutory factors,

see K.H.O., 161 N.J. at 348, and the record supports his determination that

Sarah's unwillingness and inability to address her significant and debilitat ing

mental health issues—by failing to comply with treatment recommendations and

take prescribed medications—renders her incapable of parenting Andrea and

Amy; caring for them; addressing their needs; and providing for their safety,

health, and development.

The court accepted the expert testimony Sarah lacked both the ability and

willingness to address the issues that rendered her unable to safely parent her

children, and the testimony was unchallenged by any competent evidence. We

defer to Judge Velazquez's findings because they are supported by substantial

A-1299-18T3
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credible evidence, and his factual findings amply support his conclusion the

Division satisfied each prong of the best interests standard with clear and

convincing evidence. See E.P., 196 N.J. at 104 ("We will not disturb the family

court's decision to terminate parental rights when there is substantial credible

evidence in the record to support the court's findings."). We add only the

following brief comments.

We reject Sarah's claim the evidence was insufficient to support the court's

finding the children suffered harm or were at risk of harm under prongs one and

two of the best interests standard. "Serious and lasting emotional or

psychological harm to children as the result of the action or inaction of their

biological parents can constitute injury sufficient to authorize the termination of

parental rights." In re Guardianship of K.L.F., 129 N.J. 32, 44 (1992).

The evidence established Sarah failed and refused to participate in

treatment and take the prescribed medications required to address her mental

health issues, and the concomitant delays in her ability to parent Andrea and

Amy and provide them with a safe and secure home caused the children

emotional and psychological harm and placed them at risk of future harm. That

evidence supports the court's findings under the first and second prongs of the

best interests standard. See, e.g., F.M., 211 N.J. at 450-51 (stating that untreated

A-1299-18T3
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mental illness that threatens harm to a child may disqualify a parent from raising

the child); K.H.O., 161 N.J. at 353 (stating "the second prong may be met by

indications of parental dereliction and irresponsibility, such as the parent's

continued or recurrent drug abuse, the inability to provide a stable and protect ive

home, [and] the withholding of parental attention and care").

We are not persuaded by Sarah's claim the court erred by finding the

Division provided reasonable services. "The diligence of [the Division's] efforts

on behalf of a parent is not measured by their success," In re Guardianship of

DMH, 161 N.J. 365, 393 (1999), particularly where the lack of success results

from a parent's "failure to cooperate or follow through." N.J. Div. of Youth &

Family Servs. v. C.S., 367 N.J. Super. 76, 119 (App. Div. 2004). The record

evidence demonstrates the Division provided reasonable services in light of

Sarah's individual needs.

Last, Sarah makes no showing the court erred by finding the Division

sustained its burden of establishing prong four of the best interests standard.

The court recognized Sarah enjoyed a positive bond with Andrea and Amy, but

the fourth prong does not require a "showing that no harm will befall the child

as a result of the severing of biological ties." K.H.O., 161 N.J. at 355. Dr.

Stillwell's bonding evaluations and expert testimony support the court 's

A-1299-18T3
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conclusion that termination of parental rights would not do more ha rm than

good.

Any of Sarah's arguments we have not expressly addressed are without

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

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