Opinion
DOCKET NO. A-6191-12T3
09-29-2014
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. E.R., Defendant-Appellant, and Z.A. Defendant. IN THE MATTER OF THE GUARDIANSHIP OF R.A. and T.A., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Janet Allegro, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; David Futterman, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Elahna Strom Weinflash, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Manahan. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FG-14-43-12. Joseph E. Krakora, Public Defender, attorney for appellant (Janet Allegro, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; David Futterman, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Elahna Strom Weinflash, Assistant Deputy Public Defender, on the brief). PER CURIAM
Defendant E.R. appeals a judgment terminating her parental rights to two children, R.A. and T.A., who were born on October 2, 2010, and January 17, 2012, respectively. Defendant contends that the judge's determination was contrary to the weight of the evidence. We find no merit in her arguments and affirm.
The children's father made an identified surrender of his parental rights to their paternal grandparents.
Parents have a constitutionally protected right to the care, custody and control of their children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394-95, 71 L. Ed. 2d 599, 606 (1982); In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). "The rights to conceive and to raise one's children have been deemed 'essential,' 'basic civil rights . . .,' and 'rights far more precious . . . than property rights.'" Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212, 31 L. Ed. 2d 551, 558 (1972) (internal citations omitted). "[T]he preservation and strengthening of family life is a matter of public concern as being in the interests of the general welfare." N.J.S.A. 30:4C-1(a); see also K.H.O., supra, 161 N.J. at 347.
The constitutional right to the parental relationship, however, is not absolute. N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 553 (2014); N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986). At times, a parent's interest must yield to the State's obligation to protect children from harm. N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 397 (2009); In re Guardianship of J.C., 129 N.J. 1, 10 (1992). To effectuate these concerns, the Legislature created a test for determining whether a parent's rights must be terminated in the child's best interests. N.J.S.A. 30:4C-15.1(a) requires that the Division of Child Protection and Permanency prove by clear and convincing evidence the following four prongs:
(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;See also A.W., supra, 103 N.J. at 604-11.
(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 . . .;
(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.
During a three-day trial, the Division provided the testimony of caseworkers, as well as the expert testimony of Frank Dyer, Ph.D., to support its claim that defendant's parental rights should be terminated. The Law Guardian provided the expert testimony of Rachel Nelson, Ph.D., and the testimony of the children's paternal grandfather who, with his wife, are the children's current foster parents. Defendant offered only her own testimony in response.
We need not set forth at any length the factual basis for Judge Maritza Berdote Byrne's decision to terminate defendant's parental rights. These circumstances were fully explored in the judge's thorough twenty-seven-page written decision. Judge Byrne discussed in detail defendant's multiple psychiatric hospital stays, which commenced when she was twelve years old. Defendant was diagnosed as suffering from schizoaffective disorder, sometimes with psychotic features. The judge found that, historically, defendant has been non-compliant with treatment and has displayed aggressive and violent behavior even when compliant.
The judge relied on the expert testimony of Dr. Dyer, who observed that the implications for defendant's psychological profile "are extremely negative with respect to parenting capacity." The judge stated in her opinion that Dr. Dyer had made the following observations about defendant:
is a psychiatric patient who has had at least 10 hospitalizations, has recently displayed agitation and hallucinations, and has a history of violent behavior that she rationalizes as an appropriate response. . . . [Her] contact with reality is tenuous at best. . . .He also found this risk would persist even if defendant co-parented with a capable caretaker.
[Defendant] is clearly lacking the judgment, self-control, capacity for accurate reality testing, and emotional stability necessary for keeping a child safe and meeting the child's basic needs. She has no insight into her psychiatric problems, and views any adjustment difficulty that she may have as being the result of behaviors of others who are working to undermine her interests. . . .
[Defendant] would be impossible to supervise if either or both of the children were placed in her care. [Her] vulnerability to psychotic breaks with reality and her history of violence predict an extreme risk of harm for any child who may be in her care.
The judge additionally relied on Dr. Nelson's opinion that removing the children from their grandparents would, in the judge's words, "cause a continuing and potentially lifelong harm to R.A., and a significant harm – at least short term – to T.A.[,] because of his younger age." The judge also agreed with Dr. Nelson's determination that kinship legal guardianship was not an option.
The judge also made findings regarding defendant's testimony. She found defendant "coherent and oriented" when answering questions posed by her attorney, but, during cross-examination, defendant "became extremely defensive and her responses lacked coherence, becoming disjointed."
In light of the unrebutted expert testimony credited by the judge, as well as her consideration of the other evidence adduced at trial, the judge concluded that the four prongs of the statutory test were clearly and convincingly proven. After carefully canvassing the record in light of the arguments posed by defendant in this appeal, we conclude that the judge's findings are supported by credible evidence and are entitled to our deference. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012); Cesare v. Cesare, 154 N.J. 394, 413 (1998). We, therefore, affirm substantially for the reasons set forth by Judge Byrne in her cogent and thoughtful written opinion.
We lastly note that, after filing this appeal, defendant moved in this court for supplementation of the record on appeal with information regarding her progress since the trial concluded. By order entered on December 18, 2013, we denied the motion without prejudice and instead granted a temporary remand for the limited purpose of allowing defendant to move in the trial court for relief from the judgment pursuant to Rule 4:50. Defendant's trial court application was denied for reasons expressed by Judge Byrne in a comprehensive written opinion. Our December 18, 2013 order permitted the filing of an amended notice of appeal if the motion were denied; this court was advised by counsel's letter dated March 12, 2014, that defendant had elected not to file an amended notice of appeal.
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Affirmed I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION