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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3133-16T2 A-0635-17T2
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
K.M.,
Defendant-Appellant,
and
R.A.,
Defendant. _________________________________
IN THE MATTER OF N.A.,
Minor. _________________________________
Submitted June 4, 2018 – Decided June 8, 2018
Before Judges Sabatino and Firko.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket Nos. FN-09-0304-16 and FG-09-0137-17. Joseph E. Krakora, Public Defender, attorney for appellant K.M. (Meghan K. Gulczynski, Designated Counsel, on the briefs).
Gurbir S. Grewal, Attorney General, attorney for respondent (Jason W. Rockwell, Assistant Attorney General, of counsel; Kenneth M. Cabot, Deputy Attorney General, on the brief in A-3133-16; Ellen L. Buckwalter, Deputy Attorney General, on the briefs in A-0635-17).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Olivia Belfatto Crisp, Assistant Deputy Public Defender, on the briefs).
PER CURIAM
These related back-to-back appeals, which we consolidate for
purposes of this opinion, involve a two-year-old girl, N.A.,1 who
was born in February 2016. The child's birth mother is appellant
K.M. The child's birth father, R.A., has not appealed the rulings
of the trial court, including the termination of his own parental
rights.
I.
N.A. was born prematurely at thirty weeks, when her mother's
placenta erupted. The child received no prenatal care. She
weighed only three pounds and six ounces at birth and was placed
on a respirator at the hospital. She was diagnosed with abnormally
high bilirubin in her blood, and did not open her eyes for a period
1 Pursuant to Rule 1:38-3(d)(12), we use initials to protect the privacy of the child and the other parties.
2 A-3133-16T2 of time. The mother tested positive for marijuana and cocaine at
birth, and cocaine was also found in the baby's system. The mother
admitted that she had used drugs through the last trimester of the
pregnancy, including the day before the child was born.
The mother had no stable housing or employment. She has a
long history of drug abuse and related incarcerations and
homelessness.
Notably, the mother did not visit the baby for the month when
she was in the Neonatal Intensive Care Unit, even though the
Division of Child Protection and Permanency contends it provided
her with bus tickets to enable such visitation. The mother claimed
that she planned to take care of the baby at a friend's house.
However, the Division's assigned caseworker did not find a bassinet
there, and the person living at the address provided by the mother
denied knowing the mother.
Once the newborn, N.A., was released from the hospital, the
Division soon conducted an emergency removal and placed her with
a resource parent. The resource parent has been the child's
ongoing caretaker since that time.
N.A. has special needs due to delays in her gross motor skills
and communication skills. N.A.'s resource parent is aware of her
needs and has cooperated with the therapy prescribed by the
Division to aid the child's development.
3 A-3133-16T2 Appellant and R.A. previously had their parental rights
terminated in July 2016 with respect to their son, J.M. The son
had also tested positive for drugs at birth in April 2014. J.M.
has since been placed permanently with a paternal uncle. The
termination of both parents' rights as to J.M. was affirmed by
this court in a June 2017 unpublished opinion. N.J. Div. of Child
Prot. & Permanency v. K.M., No. A-5108-15 (App. Div. June 7, 2017)
(slip op. at 6).
The parents each have longstanding drug abuse issues. The
mother previously left the "Mommy and Me" caregiving program after
only three weeks with J.M. She has frequently moved and been
unable to maintain employment or steady housing. Most importantly,
she has never been able to overcome her drug dependency.
Throughout N.A.'s life, the mother has been recalcitrant and
difficult to locate. She continued to test positive for drugs on
multiple occasions after N.A.'s birth. Additionally, the mother's
visits with N.A. were infrequent and highly sporadic, except for
times when she was incarcerated. The mother failed to submit to
psychological and bonding evaluations until she was incarcerated.
She repeatedly failed to comply with substance abuse evaluations
during the litigation. In sum, the mother has failed to take
advantage of nearly all of the services offered to her by the
Division.
4 A-3133-16T2 II.
Given these failures, the Division charged the mother with
child abuse and neglect under N.J.S.A. 9:6-8.21(c)(4)(b). A fact
finding hearing was held on September 22, 2016.
Judge Lois Lipton conducted the fact-finding hearing. She
found the sole testifying witness, Division caseworker Vivian
Acosta, to be credible. The judge expressly declined to rely on
a finding that the baby had suffered from drug withdrawal symptoms.
Nevertheless, she found that, although drug use can no longer be
a per se basis to find abuse and neglect, see N.J. Div. of Youth
& Family Servs. v. A.L., 213 N.J. 1, 23 (2013), the mother's
behavior and indifference to the child's needs were sufficient
additional factors, beyond the baby's positive drug screen, to
support a finding of abuse and neglect.
On appeal in the abuse or neglect case (A-3133-16), the mother
contends that the trial court unfairly penalized her for her
poverty and homelessness. She asserts there is no sufficient
corroborating evidence of the child suffering harm or withdrawal,
emphasizing that A.L. holds that drugs in a newborn's system cannot
be the sole basis for finding abuse or neglect. She argues there
was no proof of actual or likely harm to the child here, and that,
in essence, the court improperly shifted the burden of persuasion
5 A-3133-16T2 from the Division to her. She also complains that the Division
did not do enough to try to reunify the family.
Our review of Judge Lipton's findings is guided by well-
established standards. As the Supreme Court has underscored, the
purpose of Title 9 is "to protect children 'who have had serious
injury inflicted upon them' and make sure they are 'immediately
safeguarded from further injury and possible death.'" A.L., 213
N.J. at 18 (quoting N.J.S.A. 9:6-8.8(a)). "The law's 'paramount
concern' is the 'safety of the children,' and 'not the culpability
of parental conduct[.]'" Ibid. (internal citations omitted). "The
focus in abuse and neglect matters . . . is on promptly protecting
a child who has suffered harm or faces imminent danger." Ibid.
(citing N.J.S.A. 9:6-8.21(c)(4)).
A court's finding of abuse or neglect must be based on a
preponderance of the evidence when the proof is considered in its
totality. N.J.S.A. 9:6-8.46(b)(1). "[I]n child abuse and neglect
cases the elements of proof are synergistically related. Each
proven act of neglect has some effect on the child. One act may
be 'substantial' or the sum of many acts may be 'substantial.'"
N.J. Div. of Youth & Family Servs. v. C.H., 414 N.J. Super. 472,
481 (App. Div. 2010) (internal citations omitted). The Title 9
proof standard is less stringent than in guardianship cases for
the termination of parental rights, which must instead be proven
6 A-3133-16T2 by clear and convincing evidence. See N.J.S.A. 30:4C-15.1(a);
N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 554
(2014) (citation omitted) (recognizing the "clear and convincing"
evidence standard required for a termination case).
Abuse and neglect, as defined by N.J.S.A. 9:6-8.21(c), occurs
when:
a child whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent or guardian . . . to exercise a minimum degree of care . . . in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of excessive corporal punishment; or by any other acts of a similarly serious nature requiring the aid of the court . . . .
[N.J.S.A. 9:6-8.21(c)(4)(b).]
The statute does not require that the child experience actual
harm. N.J.S.A. 9:6-8.21(c)(4)(b); see also N.J. Div. of Youth &
Family Servs. v. F.M., 211 N.J. 420, 449 (2012) (explaining that
the Division need not wait until a child experiences an actual
injury) (citing In re Guardianship of D.M.H., 161 N.J. 365, 383
(1999) (stating that the court does not need to "wait to act until
a child is actually irreparably impaired by parental inattention
or neglect")). Instead, a child can be abused and neglected if
his or her physical, mental, or emotional condition has been
7 A-3133-16T2 "impaired or is in imminent danger of becoming impaired . . . ."
N.J.S.A. 9:6-8.21(c)(4). The Title 9 analysis is fact-sensitive,
and the court must consider the totality of the circumstances.
See N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 33
(2011). The primary focus of the statute is to preserve the safety
of the child. N.J.S.A. 9:6-8.8(a).
The Supreme Court has instructed that the abuse and neglect
standard under Title 9 is satisfied when the Division demonstrates
that a parent has failed to exercise a minimum degree of care.
See G.S. v. Dep't of Human Servs., 157 N.J. 161, 181 (1999)
(citations omitted). A "minimum degree of care" encompasses
conduct that was "grossly or wantonly negligent, but not
necessarily intentional." Id. at 178. Wanton negligence equates
to conduct that was done with the knowledge that injury is likely
to result. Ibid. A parent's action or inaction can rise to the
level of wanton negligence even if he or she did not intend to
cause injury. See id. at 179. The Court has recognized in this
regard that a parent should be liable for the foreseeable
consequences of his or her choices. See ibid.
A parent's long-term drug abuse can satisfy the statutory
test for abuse or neglect. To be sure, "'[N]ot all instances of
drug ingestion by a parent will substantiate a finding of abuse
or neglect.'" A.L., 213 N.J. at 24 (quoting N.J. Div. of Youth &
8 A-3133-16T2 Family Servs. v. V.T., 423 N.J. Super. 320, 332 (App. Div. 2011)).
However, ongoing irresponsible behavior by a drug-addicted parent,
and his or her failure to take advantage of services offered by
the Division that might help him or her overcome his or her
deficits, can suffice to meet the Division's burden of proof. See
N.J. Div. of Youth & Family Servs. v. L.M., 430 N.J. Super. 428,
444 (App. Div. 2013) (affirming finding of harm under first prong
of best interest standard based on the mother's "continued drug
use, lack of appropriate housing, and failure to attend
treatment").
Our review of the trial court's findings is limited. We must
defer to the factual findings of the Family Part if they are
sustained by "adequate, substantial, and credible evidence" in the
record. N.J. Div. of Child Prot. & Permanency v. N.B., 452 N.J.
Super. 513, 521 (App. Div. 2017) (citation omitted). In this
regard, we afford great deference to the trial judge's credibility
findings, as the judge had the first-hand opportunity to observe
the testimony when it was presented. Rova Farms Resort, Inc. v.
Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (citations
omitted). Thus, we specifically defer to Judge Lipton's finding
that caseworker Acosta, the sole testifying witness at the hearing,
was credible.
9 A-3133-16T2 By contrast, "'where the focus of the dispute is . . . alleged
error in the trial judge's evaluation of the underlying facts and
the implications to be drawn therefrom,' the traditional scope of
review is expanded." N.J. Div. of Youth & Family Servs. v. M.M.,
189 N.J. 261, 279 (2007) (citations omitted). "A trial court's
interpretation of the law and the legal consequences that flow
from established facts are not entitled to any special deference."
Manalapan Realty, LP v. Manalapan Twp. Comm., 140 N.J. 366, 378
(1995) (citations omitted).
Applying these standards, we agree with the Division and the
Law Guardian there is ample evidence in the record to support
Judge Lipton's findings of abuse or neglect by the preponderance
standard, and that the findings comport with the applicable law
under Title 9. The facts here are stronger than those involved
in A.L., in light of this mother's behavior in not endeavoring
diligently to develop a relationship with the child, her failure
to have a realistic plan in place for the baby's care after her
birth and release from the hospital, and her uncooperative and
irresponsible behavior. The child was placed in imminent danger
of harm due to the mother's wanton failure to provide a "minimum
degree of care . . . ." See N.J.S.A. 9:6-8.21(c)(4); G.S., 157
N.J. at 181. We reject defendant's arguments that the trial court
misapplied the law, or that it ruled against defendant merely
10 A-3133-16T2 because of her poverty or homelessness. The record provides a
solid basis for the court's determination under Title 9, and we
decline to set it aside.
III.
The subsequent guardianship trial was presided over by Judge
Lourdes I. Santiago. The judge, who issued a twenty-six-page
written opinion on September 19, 2017, found that the four prongs
necessary for termination of a parent's rights were met by clear
and convincing evidence as to both the mother and the father.
Judge Santiago began by noting the history of domestic
violence in the family, including incidents between the mother's
own mother and the mother's older daughter and between the
grandmother and the grandmother's husband. The judge cited to the
parents' long history of substance abuse and incarceration. The
judge stated that custody of an older child of the mother had been
granted to a paternal aunt in Alabama. She also found significant
the termination of the parents' rights as to J.M., which preceded
this case as to his sibling N.A.
Both parents failed to attend substance abuse evaluations.
When they did, they usually had positive urine screens. There
were also intermittent periods of incarceration of both parents
for various offenses. The parents missed numerous scheduled
visitations with N.A.
11 A-3133-16T2 Neither the mother nor the father attended the guardianship
trial. Neither the mother nor the father presented any testimony
in his or her behalf. Apparently, the mother's plan for the child
was to attempt to reconcile with the father and reunify the family.
Dr. Frank Dyer, the Division's expert, found that her plan was
unrealistic. He opined that the best interests of the child were
in remaining with her resource parent, who is the only parental
figure N.A. has known consistently. The resource parent reportedly
wishes to adopt N.A.
Dr. Dyer also conducted bonding evaluations. His evaluation
with the mother, conducted at a jail, showed the child recognized
her. The mother interacted with N.A. in an appropriate manner.
Even so, Dr. Dyer observed the child exhibited stronger ties in
the bonding session with the resource parent. Dr. Dyer opined the
mother posed a "high risk of relapse" due to her drug usage. He
further opined that N.A. would be "at extreme risk of harm" if she
were turned over to the mother's care.
The Division ruled out any other relatives suggested by the
mother, including the paternal uncle caring for N.A.'s brother,
who does not have the space to take on another child. Likewise,
the mother's sister, who is a foster parent, does not have suitable
space.
12 A-3133-16T2 On appeal in the guardianship matter (A-0635-17), the mother
raises the following issues: (1) the trial was unfairly moved up
eight weeks; (2) her trial attorney was ineffective in failing to
file a motion to have the court order the Division to provide her
with services; (3) the judge improperly relied on a complex hearsay
opinion within the Division's records that the baby was exhibiting
symptoms of drug withdrawal; (4) the Division did not provide
adequate services; and (5) the Division improperly denied the
mother's request to place N.A. with the mother's sister and did
not explore the possibility of Kinship Legal Guardianship ("KLG").
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, N.J. Div. of Child
Prot. & Permanency v. T.U.B., 450 N.J. Super. 210, 240 (App. Div.
2017) (citation omitted), the following criteria:
(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;
13 A-3133-16T2 (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.
[N.J.S.A. 30:4C-15.1(a); see also 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).]
As with appeals from Title 9 abuse or neglect decisions, our
scope of review of appeals from orders terminating parental rights
under Title 30 is similarly constrained. In such termination
appeals, the trial court's findings generally should be upheld so
long as they are supported by "adequate, substantial, and credible
evidence." R.G., 217 N.J. at 552 (citation omitted). A decision
in this context 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) (citation omitted).
We must give substantial deference to the trial judge's
opportunity to have observed the witnesses first hand and to
evaluate their credibility. R.G., 217 N.J. at 552. We also must
recognize the considerable expertise of the Family Part, which
adjudicates many cases brought by the Division under Title 9 and
14 A-3133-16T2 Title 30 involving the alleged abuse or neglect of children. See
N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448
(2012) (citation omitted).
Having considered the record from the guardianship trial in
light of these standards, we reject the mother's arguments and
affirm the final judgment of termination. We do so substantially
for the reasons expressed by Judge Santiago in her comprehensive
written decision. We only add a few comments.
The procedural decision to move up the guardianship trial to
an earlier date than was initially contemplated was well within
the trial court's wide discretion over trial scheduling. See,
e.g., State v. Miller, 216 N.J. 40, 47 (2013). Moreover, the
scheduling change had no discernible effect on the outcome of the
guardianship trial, because the mother persisted in being non-
compliant with services throughout the entire litigation. It is
sheer speculation to believe that the outcome of the trial would
have produced a different result had it been conducted a few months
later. The mother fails to show she was prejudiced by the
adjournment. In addition, the expeditious disposition of the case
is consistent with N.A.'s important interest in attaining
permanency. See In re Guardianship of K.H.O., 161 N.J. 337, 357
(1999) (recognizing New Jersey's strong public policy favoring
permanency).
15 A-3133-16T2 Appellant's claim under N.J. Div. of Youth & Family Servs.
v. B.R., 192 N.J. 301, 308-09 (2007), alleging that her trial
attorney was ineffective and thus the judgment must be set aside,
is patently without merit. The thrust of this claim is that trial
counsel should have advocated that the mother receive more
services. But the mother was already granted and offered an
abundance of services approved by the court and the Division.
Among other things, those services included drug abuse
evaluations, drug testing, visitation, an exploration of housing
assistance and a re-integration program, and bus passes or other
needed transportation. Unfortunately, as Judge Santiago aptly
noted, the mother did little to take advantage of the services
that were provided or offered to her.
Appellant next argues that the trial court improperly
admitted hearsay evidence presented by the Division. This argument
provides no basis for reversal. To be sure, the Division's proofs
did include certain hearsay opinions, embedded in the
investigation records, concerning N.A.'s medical condition and a
perceived manifestation of post-birth withdrawal symptoms.
Arguably, those portions of the record, to the extent they involved
complex and disputed expert opinions by a nurse or a physician,
should not have been admitted over defense counsel's objection.
See N.J.R.E. 808; N.B., 452 N.J. Super. at 526 (citations omitted);
16 A-3133-16T2 N.J. Div. of Child Prot. & Permanency v. N.T., 445 N.J. Super.
478, 501-02 (App. Div. 2016).
Even so, we conclude this evidential point is of no
consequence to the ultimate outcome of this appeal. Regardless
of whether there was or was not competent proof that N.A. was
harmed by her mother's prenatal drug abuse and whether N.A.
actually manifested withdrawal symptoms, a "mother's inability to
provide any nurturing or care for her daughter for [a] prolonged
period is a harm to [the child] that is cognizable under the best
interests standard." K.H.O., 161 N.J. at 356 (citing A.W., 103
N.J. at 604-11); see In re Guardianship of D.M.H., 161 N.J. at
380-81 (noting that a parent's withholding of parental solicitude,
nurture, and care for an extended time is cognizable harm). This
potential for harm resulting from the mother's inability to nurture
for prolonged periods of time, was aptly recognized by Judge
Santiago in her written opinion.
The proofs of the risks of harm to the child in this case,
independent of N.A.'s alleged withdrawal symptoms, were
formidable. Hence, the claimed violation of the hearsay rules is
of no moment in this case. See R. 2:10-2 (instructing that trial
court decisions shall not be reversed on appeal unless appellant
demonstrates error that is "clearly capable of producing an unjust
result"); see also State v. Macon, 57 N.J. 325, 333 (1971).
17 A-3133-16T2 We reject appellant's next contention that the Division did
not make "reasonable efforts" to provide her with services before
terminating her parental rights. N.J.S.A. 30:4C-15.1(a)(3). As
we have already noted, and as is well delineated in Judge
Santiago's opinion, the Division repeatedly provided or offered
services to the mother in this case. The failure of those services
to result in the reunification of N.A. lies with appellant herself,
whose record of missed appointments and overall lack of cooperation
was abysmal.
Nor is there any merit to appellant's claim that the Division
and the court failed to explore viable options to termination.
The Division did not act precipitously in ruling out other
relatives as potential caretakers. The Division reasonably
determined that the mother's sister R.M., and C.B., the paternal
uncle who assumed custody of N.A.'s brother, were not feasible
options. In addition, the Division reasonably ruled out the
mother's adult daughter, M.H., after discovering that M.H. was in
a boarding home, and did not have her own place to live, and was
unemployed.
Appellant's contention that the court should have explored
and approved KLG also fails. The law is clear that KLG is not an
option unless there is no one willing to adopt the child. See
N.J. Div. of Youth & Family Servs. v. L.L., 201 N.J. 210, 222-24
18 A-3133-16T2 (2010) (discussing KLG at length); In re Adoption of Child by
Nathan S., 396 N.J. Super. 378, 387 (Ch. Div. 2006) (discussing
how KLG is not an option unless adoption is not feasible). Here,
the record reflects the resource parent, who has raised N.A. nearly
from birth, is interested in adopting her.
In sum, we agree with the trial court, the Division, and the
Law Guardian that the evidence clearly and convincingly supports
all four prongs of the termination criteria. N.J.S.A. 30:4C-
15.1(a). As the unrebutted expert testimony of Dr. Dyer
establishes, it is in the best interests of this child, despite
her tender years, to be on the road to adoption by her resource
parent, who was found capable of managing her special needs. The
court's termination of the parental rights of this drug-addicted
mother, who showed no realistic signs of becoming a fit caretaker,
and who spurned most of the services offered to her, was consistent
with the evidence and with the governing law.
All other points raised by appellant in these consolidated
appeals, to the extent we have not already addressed them, lack
sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).
Affirmed.
19 A-3133-16T2