                                      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                                NOT FOR PUBLICATION WITHOUT THE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-2629-17T1

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

          Plaintiff-Respondent,

v.

O.P.,1

          Defendant-Appellant,

and

K.V.

     Defendant.
____________________________

IN THE MATTER OF THE
GUARDIANSHIP OF M.V.,

     a Minor.
____________________________


1
  We use initials and pseudonyms to protect the privacy rights of the litigants
and the child. R. 1:38-3(d)(12).
            Argued January 24, 2019 – Decided May 2, 2019

            Before Judges Fuentes, Vernoia and Moynihan.

            On appeal from Superior Court of New Jersey,
            Chancery Division, Family Part, Hudson County,
            Docket No. FG-09-0154-17.

            Ryan T. Clark, Designated Counsel, argued the cause
            for appellant (Joseph E. Krakora, Public Defender,
            attorney; Ryan T. Clark, on the brief).

            Mohamed Barry, Deputy Attorney General, argued the
            cause for respondent (Gurbir S. Grewal, Attorney
            General, attorney; Jason W. Rockwell, Assistant
            Attorney General, of counsel; Mohamed Barry, on the
            brief).

            Rachel E. Seidman, Assistant Deputy Public Defender,
            argued the cause for minor (Joseph E. Krakora, Public
            Defender, Law Guardian, attorney; Rachel E. Seidman,
            on the brief).

PER CURIAM

      Defendant O.P. (Olga) is the biological mother of M.V. (Mary), a child

born in 2008. She appeals from the final judgment of guardianship entered

against her by Judge Bernadette N. De Castro terminating her parental rights to

her daughter. The genesis of the guardianship complaint filed against defendant

by the Division of Child Protection and Permanency (Division) here is found in

DCPP v. O.P. and K.V., No. A-5602-16 (App. Div. May 2, 2019), in which this

court affirmed a final order issued by Judge De Castro in which:

                                                                       A-2629-17T1
                                      2
            Judge De Castro found, by a preponderance of the
            evidence, that defendant abused and neglected her
            seven-year-old daughter within the meaning of N.J.S.A.
            9:6-8.21(c)(4), by failing to report the sexual abuse
            committed by the child's biological father for eighteen
            months, by allowing the child to continue to reside in
            the same premises as the perpetrator of the abuse, and
            by allowing the perpetrator to have unsupervised access
            to the child. Defendant's conduct constituted gross
            negligence and placed the child at a substantial risk of
            harm.

            [O.P., slip op. at 16.]

      This court held Judge De Castro's findings were supported by a

preponderance of the competent, credible evidence the Division presented at the

fact-finding hearing. O.P., slip op. at 4-15. The Division proved "defendant

acted with reckless disregard for her daughter's safety." O.P., slip op. at 17

(citing G.S. v. Dep't of Human Servs., 157 N.J. 161, 182 (1999)). Based on the

parties' failure to participate in court-ordered services, the Division filed a

verified guardianship complaint seeking to terminate the parental rights of both

defendant and Mary's biological father K.V. (Kevin). On July 12, 2017, the

Division commenced this guardianship action. On the same date, the Family

Part terminated the Title 9 action, and Mary's legal custody continued with the

Division.




                                                                        A-2629-17T1
                                       3
       Judge De Castro conducted a guardianship trial on January 8, 9, and 12,

2018. An attorney assigned by the Office of the Public Defender, Office of

Parental Representation appeared on defendant's behalf. Defendant did not

appear at any of these trial dates. Kevin entered an identified surrender of his

parental rights on September 27, 2017. He is not a part of this appeal. By the

time the guardianship trial began, Mary had been residing with her paternal

grandparents for over a year.

      As the judge who presided over the fact-finding hearing in the Title 9 case,

Judge De Castro was thoroughly familiar with defendant's personal history of

sexual abuse as a child, her lifelong struggle with mental illness, and her

documented substance abuse problems. Division caseworker Jessica Ceballos

testified at length about the mental health services offered to defendant.

Unfortunately, defendant either failed to attend the programs or attended

sporadically. She was ultimately terminated due to her aggressive behavior,

failure to attend, or a combination of these factors.

      Defendant's interactions with Mary during the pendency of these

proceedings were sporadic and emotionally traumatic to the child. Mary did not

like her mother's "hostility towards others . . . [and] remarks [defendant] would

make regarding . . . [Mary's] paternal grandparents." Of particular concern to


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                                        4
Ceballos was the behavior defendant exhibited during a visit scheduled to

celebrate the child's ninth birthday.

            Q. What happened on that date?

            A. So, it was [Mary’s] birthday, ninth birthday. And
            we had brought [Mary] to the Division . . . office to see
            her mother. Her mother wanted to see her. . . . While
            this occurred, the Division met with [defendant] on the
            fourth floor to . . . re-engage with her and . . . explore
            having an FTM, a family team meeting.

                   ....

            A. And you know, we explored if she received a court
            order. She said . . . to stop sending her . . . harassing
            mail. So, to the point she became so combative and
            . . . hostile about . . . that [and] security had to get
            involved.

      Ceballos testified that she was able to calm down defendant sufficiently

to make the visit with the child possible. After the visit ended, Mary told

Ceballos she did not want to see her mother again. The Division referred Mary

for psychotherapy treatment with psychologist Frank Dyer, Ph.D., who was also

admitted as an expert witness at the guardianship trial without objection. Judge

De Castro also reviewed and relied on the report of a psychological examination

of defendant performed by Dr. Samiris Sostre on September 21, 2016. Dr. Dyer

also interviewed Mary before the June 2017 bonding evaluation.



                                                                         A-2629-17T1
                                        5
      The psychological experts presented by the Division to Judge De Castro

reached a general consensus regarding Mary's relationship with defendant. The

child was not bonded to her biological mother. The permanent severance of

contact with defendant was in the child's best interest and would not cause her

emotional harm. Judge De Castro found, and the record supports, that defendant

"is vulnerable to poor judgment, emotional volatility, and irrationally hostile

behaviors." Defendant lacks the insight and stability to protect her daughter

from emotional harm.      Defendant's failure to report the egregious sexual

molestation her six-year-old daughter endured by her own biological father is

the most powerful evidence of defendant's severely impaired judgment. As Dr.

Dyer explained:

            Placing a child in the care of somebody who suffers
            from [borderline personality] disorder when it is not
            adequately addressed by therapy or medication or some
            combination of therapy and medication would expose
            the child to very distressing, frightening, disorganizing
            mood states and emotional flare-ups on the part of the
            individual caring for them. Typically, it would expose
            a child to extreme conflict in whatever intimate
            relationships the caretaker may be involved in.

      Conversely, according to Dr. Dyer, Mary has formed a strong bond with

her paternal grandparents, which is reciprocated by these adults. Based on his

bonding evaluations, Dr. Dyer opined, within a reasonable degree of


                                                                        A-2629-17T1
                                       6
psychological certainty, that Mary is emotionally bonded to her paternal

grandparents. His testimony included the following elaboration on this issue:

             It's my opinion, again, to a reasonable degree of
             psychological certainty, that the benefits to [Mary] of
             permanency with her [paternal] grandparents, to whom
             she is attached, and by whom she explicitly states she
             wishes to be adopted, that the benefits of that
             relationship would far outweigh any negative impact of
             a loss of the -- the mother's parental rights to her.

      The paternal grandparents have expressed a desire to adopt the child. It

is vitally important to emphasize that Kevin will not be a part of this

arrangement and will not have any contact with the child. The record shows that

the Division's case was largely uncontested because defendant did not attend

any part of the trial.

      Our standard of review of a Family Part judge's decision based on a

combination of testimonial evidence and the application of legal principles

involving the court's subject matter jurisdiction is well-settled. We are bound

to defer to the trial judge's expertise in this area of law, provided the decision is

supported by competent evidence in the record. Cesare v. Cesare, 154 N.J. 394,

412 (1998). However, a trial judge's interpretation of the law and legal findings

are reviewed de novo. N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J.

527, 552-53 (2014).


                                                                             A-2629-17T1
                                         7
      Parents have a fundamental constitutional right to raise their children.

Stanley v. Illinois, 405 U.S. 645, 651 (1972); NJ Div. of Youth & Family Servs.

v. A.W., 103 N.J. 591, 599 (1986). "However, the constitutional protection

surrounding family rights is tempered by the State's parens patriae responsibility

to protect the welfare of children." N.J. Div. of Youth & Family Servs. v. J.Y.,

352 N.J. Super. 245, 261 (App. Div. 2002) (citing Parham v. J.R., 442 U.S. 584,

603 (1979)). "The balance between parental rights and the State's interest in the

welfare of children is achieved through the best interests of the child standard."

In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999).

      The Legislature and our Supreme Court resolved the constitutional tension

between parental rights and the welfare of children.        In A.W., the Court

examined four factors that the Division must prove by clear and convincing

evidence before parental rights may be terminated. 103 N.J. at 604-11. These

four factors were then codified by the Legislature in N.J.S.A. 30:4C-15.1(a):

            (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

                                                                          A-2629-17T1
                                        8
              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.

These four factors "are not discrete and separate; they relate to and overlap with

one another to provide a comprehensive standard that identifies a child's best

interests." K.H.O., 161 N.J. at 348.

      Here, defendant argues the Division did not present sufficient evidence to

prove, by clear and convincing evidence, any one of the four prongs codified in

N.J.S.A. 30:4C-15.1(a). Defendant's arguments lack sufficient merit to warrant

further discussion in a written opinion.       R. 2:11-3(e)(1)(E).      We affirm

substantially for the reasons expressed by Judge De Castro in her memorandum

of opinion.

      Affirmed.




                                                                           A-2629-17T1
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