DIVISION OF CHILD PROTECTION AND PERMANENCY v. A.C.

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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0328-17T3

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

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

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