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New Jersey Division of Youth & Family Services v. J.K.V.

Superior Court of New Jersey, Appellate Division

September 16, 2013

J.K.V., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF C.V., a minor.


Submitted September 10, 2013

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FG-14-75-11.

Joseph E. Krakora, Public Defender, attorney for appellant (Kisha M. Hebbon, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Alina B. Wells, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor C.V. (Damen J. Thiel, Designated Counsel, on the brief).

Before Judges Sabatino and Hayden.


Defendant J.K.V., the biological mother of C.V., appeals the Family Part's termination of her parental rights to that child. The termination followed a two-day guardianship trial in June 2012, at which the court heard testimony from two caseworkers from the Division of Youth and Family Services ("the Division"), [1] the Division's expert psychologist, and C.V.'s foster mother.

C.V., who was born in April 2007, is defendant's fifth child. The four older children are not being raised by defendant, who has had a host of long-standing mental health problems and other functional difficulties. C.V.'s father, who apparently impregnated defendant in a sexual assault, has never been identified. At the time of C.V.'s birth, defendant was unemployed and living in a shelter.

Defendant had a very troubled childhood of her own. She spent a substantial portion of her youth in shelters, foster homes, and group homes. She suffered chronic and severe physical and sexual abuse at the hands of her father from the age of six until she was removed from the household at the age of twelve. Thereafter, defendant was abused in her foster and residential placements.

The Division became involved in the present matter in February 2010, when defendant's then-boyfriend, who is now deceased, reported that defendant was unable to care for C.V., who was almost three years old. When a caseworker came to the home to investigate, defendant admitted that she was having hallucinations on a regular basis. A "Dodd"[2] removal of C.V. was undertaken, and the Division placed her with the same foster family that she remained with as of the time of the 2010 trial. Defendant was admitted to a psychiatric hospital, where she received in-patient treatment for more than a year until her release in March 2011.

Although defendant achieved some improvement from her psychiatric treatment, she never was able to stabilize sufficiently to be reunified with C.V. She continued to have blackout episodes after her discharge, and in one incident caused the police to get involved after erroneously claiming that her children were missing. Nevertheless, the Division arranged for defendant to have periodic supervised visits with C.V., which have continued with court approval while the present appeal has been pending.

At the trial the only expert witness who testified, Elizabeth M. Smith, Psy.D., found that defendant has a number of strengths, including that she wants to be a good mother and is warm and attentive to C.V. However, the expert concluded that defendant is extremely fragile, has a major mental illness, is likely to continue to experience bouts of relapse and recovery, may continue to be in relationships with abusive men, and has self-medicated her mental illness. Dr. Smith opined that defendant is barely able to take care of herself, let alone a young child. Moreover, the bonding evaluations performed by Dr. Smith showed that C.V. is flourishing in her foster home and has a secure attachment with the foster mother. Dr. Smith concluded that severing that attachment with the foster mother would be harmful to C.V. By contrast, Dr. Smith found that C.V.'s attachment to defendant was neither secure nor strong. The foster family wishes to adopt C.V.

Defendant did not testify at trial. Nor did she present any competing expert opinion to rebut Dr. Smith. The Law Guardian for C.V. joined with the Division in advocating termination of defendant's parental rights.

After considering the trial testimony and the voluminous documentary exhibits, the trial judge, Hon. Mary Gibbons Whipple, J.S.C., issued a comprehensive written opinion on August 31, 2012, granting the Division's request for termination. Notably, Judge Whipple found the Division's testifying caseworkers to be credible and experienced, and the unrebutted expert testimony of Dr. Smith to be both "credible and compelling." Although the foster mother had been called as a defense witness, the judge found that her testimony essentially supported the Division's position.

The thrust of the trial court's decision was that, although defendant loves her child and had temporarily stabilized some of the manifestations of her conditions by the time of trial, her severe mental health issues have led to a pattern of exposing C.V. to an unstable and risky home environment. Weighing defendant's protracted history of mental health issues against her limited period of stability, and also factoring in C.V.'s own need for permanence and stability, Judge Whipple concluded that defendant was incapable of eliminating the harm to C.V., and that it was in C.V.'s best interests to terminate her parental rights. The judge also found that the Division had provided defendant with reasonable services, including therapeutic services and supervised visitation with C.V.

On appeal, defendant argues that there was insufficient evidence to support the trial court's finding that the Division has proven the statutory tests for termination. Defendant asserts that she has secured stable housing, found a healthy medication balance, and is now capable of providing a secure and stable environment for C.V. She also emphasizes that she has never intentionally harmed C.V. and points to her long and consistent history of attending visitation, as well as the unanimous testimony indicating that she is a loving and dedicated mother.

It is well established that when seeking the termination of a parent's rights under N.J.S.A. 30:4C-15.1(a), the Division has the burden of establishing, by clear and convincing proof, the following elements:

(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) [DYFS] 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-15.1a; see also N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J.Super. 235, 258 (App. Div. 2005) (noting that the balance between fundamental parental rights and the State's parens patriae responsibility is achieved through the best interests of the child standard); N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986) (reciting the four controlling standards later codified in Title 30).]

"On appeal, a reviewing court must determine whether a trial court's decision in respect of termination of parental rights was based on clear and convincing evidence supported by the record before the court." N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004). Appellate review of such a decision is limited. The trial court's factual findings "should not be disturbed unless they are so wholly unsupportable as to result in a denial of justice." In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002) (citations omitted). Applying that deferential standard of review to the record before us, we affirm the final judgment terminating defendant's parental rights as to C.V., substantially for the thorough and cogent reasons set forth in Judge Whipple's lengthy opinion. We add only a few comments.

As to the first statutory prong, N.J.S.A. 30:4C-15.1a(1), the evidence is unassailable that defendant, because of her hallucinations and serious mental health problems, has endangered C.V.'s safety, health, or development. The second prong, N.J.S.A. 30:4C-15.1a(2), is amply established by the caseworkers' accounts of defendant's aberrant behavior and by Dr. Smith's unrefuted expert testimony, which show, despite defendant's efforts, that she is unable to eliminate the harm facing her daughter and to provide her with a safe and stable home in the near future. There is no viable claim that the Division deprived defendant of reasonable services, so the third prong is easily met. N.J.S.A. 30:4C-15.1a(3). Lastly, as to the fourth prong under N.J.S.A. 30:4C-15.1a(4), the judge reasonably concluded from the evidence, including Dr. Smith's comparative bonding evaluations, that termination of defendant's parental rights will not cause C.V. more harm than good.

Simply stated, although we recognize this troubled mother's genuine efforts to maintain her mental health and to continue a relationship with her daughter, there is no realistic basis to disturb the trial judge's sound application of the statutory "best interests" factors.

Affirmed. The trial court shall issue an order within thirty days establishing an appropriate transitional plan to discontinue defendant's visitations.

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