DCPP VS. L.M.A. AND A.C. IN THE MATTER OF THE GUARDIANSHIP OF A.L.C. AND S.M.C. (FG-07-0157-16, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED)(CONSOLIDATED) ( 2018 )

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NOT FOR PUBLICATION WITHOUT THE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 NOS. A-4929-15T3
A-4931-15T3
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
L.M.A. and A.C.,
Defendants-Appellants.
_________________________________
IN THE MATTER OF THE GUARDIANSHIP
OF A.L.C. and S.M.C., Minors.
_________________________________
Submitted May 15, 2018 – Decided June 11, 2018
Before Judges Reisner, Hoffman, and Mayer.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Essex County,
Docket No. FG-07-0157-16.
Joseph E. Krakora, Public Defender, attorney
for appellant A.C. (Victor E. Ramos, Assistant
Deputy Public Defender, of counsel and on the
briefs).
Joseph E. Krakora, Public Defender, attorney
for appellant L.M.A. (Ruth A. Harrigan,
Designated Counsel, on the briefs).
Gurbir S. Grewal, Attorney General, attorney
for respondent (Jason W. Rockwell, Assistant
Attorney General, of counsel; Jaclyn Parks and
Lisa J. Rusciano, Deputy Attorney Generals,
on the briefs).
Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minor (Todd Wilson,
Designated Counsel, on the brief).
PER CURIAM
Defendants L.M.A. (Lisa)1 and A.C. (Anthony), appeal from a
June 29, 2016 order terminating their parental rights to their
children A.L.C. (Andrew), born in April 2014, and S.M.C. (Sarah),
born in April 2015. Lisa also appeals from a January 16, 2018
order, entered after a remand from this court, denying her motion
to vacate the guardianship order pursuant to Rule 4:50-1. The
children's Law Guardian, and the Division of Child Protection and
Permanency (Division), contend that we should affirm the orders
on appeal.
After reviewing the record, we affirm the June 29, 2016 order,
substantially for the reasons stated by Judge Stephen J. Bernstein
in his oral opinion issued on the same date as the order. Judge
Bernstein's factual findings are supported by substantial credible
evidence, including his evaluation of witness credibility, and
based on those findings his legal conclusions are correct.
1
We use initials and pseudonyms to protect the parties' privacy.
2 A-4929-15T3
Finding no abuse of the trial court's discretion in denying
Lisa's Rule 4:50-1 motion on remand, we affirm the January 16,
2018 order substantially for the reasons stated by Judge David B.
Katz in his opinion of the same date.2
I
For purposes of this opinion, we summarize the most pertinent
trial evidence. Both defendants have multiple children – with
multiple partners - in addition to Andrew and Sarah. Neither
defendant has been able to care for any of those children; they
are all either living with another biological parent or in foster
care.3
Anthony has a significant criminal history and was
incarcerated for over a year while this case was pending. His
history includes a 2005 arrest for allegedly molesting a male
child. In his testimony at the guardianship trial, Anthony did
not deny touching the child inappropriately, although he asserted
that the charges were dropped because there was no "penetration"
2
Because Judge Bernstein was unavailable to handle the remand
within the time frame set forth in our remand order, the case was
reassigned to Judge Katz.
3
As noted later in this opinion, defendants had a third child
together after the Division obtained custody of Andrew and Sarah.
The Division filed a separate guardianship action concerning that
child, which resulted in termination of defendants' parental
rights.
3 A-4929-15T3
and the parents did not cooperate with the prosecution. Anthony
also admitted beating one of Lisa's other children with a belt,
although he denied the child's allegation that Anthony punched
him. Significantly, Anthony also has a documented history of
domestic violence. He admitted assaulting his ex-wife, and he
admitted assaulting Lisa when some of their children were present.
At the time of the guardianship trial, Anthony had no concrete
plans to parent his children. Instead, he planned to move out of
state and reunite with his ex-wife.4 The Division presented
unrebutted expert testimony that Anthony was not a psychologically
fit parent and had no bond with the children. The trial judge
credited that testimony.
The record supports the conclusion that Lisa was unable or
unwilling to protect the children from Anthony, and she was
unwilling to end their relationship. Initially, she abetted
Anthony in his efforts to conceal his identity and thus conceal
his criminal record, including the 2005 sexual assault charge and
convictions for aggravated assault and weapons possession. Later,
she minimized and denied his acts of domestic violence, and brought
4
In his trial testimony, Anthony asserted that, in the
alternative, he might move with the children to Ohio, using money
he would purportedly obtain from cooperating with criminal law
enforcement authorities. The trial court later described
Anthony's plans as "pie in the sky."
4 A-4929-15T3
the children to visit Anthony despite a court order that he have
no contact with them. She lied about her own continued
relationship with Anthony, even concealing the fact that she had
another child (Anna) with him, after telling the Division that
their relationship was over.5
Lisa also failed to deal with her drug problems. She attended
several drug treatment programs but relapsed in January 2016.
Thereafter, even as the June 2016 trial approached, she repeatedly
tested positive for drugs, including oxycodone, oxymorphone, and
marijuana. She gave birth to Anna, her sixth child, on April 20,
2016, and tested positive for marijuana at the birth.
Some additional details will further illustrate Anthony and
Lisa's toxic relationship and Lisa's inability to protect the
children. On August 8, 2014, Anthony brutally attacked Lisa. The
police found Lisa wandering in the street with one of her older
children and Andrew, who was then a baby. Lisa was bleeding and
bruised. She had a bite mark on her face, and bruises and bite
marks on her body. Nonetheless, Lisa initially denied that Anthony
had assaulted her and refused to sign a complaint. She later
refused to acknowledge to the Division that their relationship was
5
Anthony participated in the deception as well, denying that
Anna was his child until the court ordered him to take a paternity
test. We granted the Division's motion to supplement the record
with that information.
5 A-4929-15T3
marked by domestic violence, and she repeatedly refused to attend
domestic violence counseling. In October 2014, the Division
obtained custody of Andrew and all of the other children living
with Lisa, due to evidence of a continuing pattern of domestic
violence and Lisa's persistent failure to keep Anthony away from
the children.
Despite a court order precluding Anthony from having contact
with any of the couple's children, when Lisa was eventually allowed
unsupervised visitation with the children, she brought them to
visit Anthony at a halfway house where he was incarcerated. She
then denied doing this, until the Division confronted her with the
institution's security video showing that she was present with the
children.
When Lisa became pregnant with Sarah, she tried to conceal
the pregnancy from the Division. Due to concerns about the child's
safety, the agency took custody of Sarah on April 29, 2015, three
days after her birth.
Lisa's pattern of deception continued as the case was pending.
During a February 22, 2016 psychological evaluation with Dr.
Singer, Lisa minimized her drug problem and denied that she was
pregnant. At that time, Dr. Singer recommended that the Division
give Lisa another four months to address her problems. When the
Division notified Dr. Singer that Lisa had relapsed into drug use,
6 A-4929-15T3
and that she recently had a sixth child while testing positive for
marijuana, he recommended a re-evaluation. Dr. Singer's second
evaluation, on May 19, 2016, led to his recommendation that Lisa
was unable to safely parent Andrew and Sarah. Notably, Dr. Singer
opined that, even if Lisa successfully completed a drug treatment
program, she would need at least a year of complete sobriety before
she could possibly safely regain custody of the children. Dr.
Singer also testified that Lisa suffered from depression and
appeared to be self-medicating with illegal drugs instead of taking
her prescribed psychiatric medication.
Sarah has been living in foster care since two days after she
was born. On April 4, 2016, a few months before the guardianship
trial began, she was moved to the same resource home where Andrew
was living. Sarah has no parent-child relationship with either
Lisa or Anthony. She was still a baby when Dr. Singer performed
a bonding evaluation with the resource parents in 2016, but
according to Dr. Singer, she had the beginning of a bond with
them. She has now lived with the resource family for an additional
two years.
Andrew has been with the same resource family since 2014, and
they have become his psychological parents. According to Dr.
Singer, although Andrew has a bond with Lisa, it is not the same
as his parent-child connection with the resource parents. They
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could mitigate any harm that would occur if Lisa's parental rights
to Andrew were terminated. Anthony was incarcerated or subject
to a no-contact order for most of Andrew's life, and Andrew has
no parent-child relationship with him.
In his oral opinion, Judge Bernstein found that the Division
had satisfied the four prongs of the best interests test, N.J.S.A.
30:4C-15.1(a), and that termination of defendants' parental rights
was in the children's best interests. He found that the children's
need for a stable and permanent home was paramount and neither
parent could provide that home.
The judge found that Anthony was Lisa's "kryptonite" – a
destructive force in her life – but she could not disentangle
herself from the relationship. He also found that Lisa was
persistently deceptive, and her refusal to acknowledge her
problems stymied the Division's many attempts to provide her with
services. The judge accepted Dr. Singer's opinion that Lisa could
not safely act as a parent and was unlikely to be able to do so
in the future.
The judge likewise found that Anthony could not safely parent
the children. He found that Anthony had no parent-child
relationship with the children, and had no realistic plan to care
for them. The judge also found that Anthony could not safely care
for the children due to his lack of stability, his history of
8 A-4929-15T3
violent conduct, and his failure to cooperate with the Division's
multiple efforts to provide him with drug treatment.
II
To obtain termination of parental rights, the Division must
satisfy all four prongs of the following test:
(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) 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.
[N.J.S.A. 30:4C:15.1(a).]
These four prongs are neither discrete nor separate, but
overlap "to provide a comprehensive standard that identifies a
child's best interests." N.J. Div. of Youth & Family Servs. v.
F.M., 211 N.J. 420, 448 (2012) (citation omitted); In re
Guardianship of K.H.O., 161 N.J. 337, 348 (1999). "The
9 A-4929-15T3
considerations involved are extremely fact sensitive and require
particularized evidence that address[es] the specific
circumstances in the given case." N.J. Div. of Youth & Family
Servs. v. R.G., 217 N.J. 527, 554 (2014) (citation omitted)
(alteration in original). The Division must prove by clear and
convincing evidence all four statutory prongs. Ibid.Our review of the Family Part judge's decision in a
guardianship case is limited. R.G., 217 N.J. at 552. "[T]he
trial court's factual findings should be upheld when supported by
adequate, substantial, and credible evidence." Ibid. We accord
deference to factual findings of the Family Part given its
"superior ability to gauge the credibility of the witnesses who
testify before it and because it possesses special expertise in
matters related to the family." F.M., 211 N.J. at 448. We will
not overturn a family court's findings unless they were "so wide
of the mark that the judge was clearly mistaken." N.J. Div. of
Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007).
We will not disturb a trial court's ruling on a Rule 4:50-1
motion, absent "a clear abuse of discretion." Hous. Auth. of
Morristown v. Little, 135 N.J. 274, 283 (1994).
III
On this appeal, Lisa presents the following points of
argument:
10 A-4929-15T3
POINT I: THE LOWER COURT ERRED IN ITS
CONCLUSION THAT TERMINATION OF PARENTAL RIGHTS
WAS IN THE BEST INTEREST OF THE CHILDREN
BECAUSE THE FOUR PRONGS OF THE BEST INTERESTS
TEST WERE NOT PROVEN BY CLEAR AND CONVINCING
EVIDENCE.
(A)
REVERSAL IS WARRANTED BECAUSE THE EVIDENCE
PRESENTED DID NOT SUPPORT THE LOWER COURT'S
CONCLUSION THAT ANDREW AND SUSAN'S SAFETY,
HEALTH OR DEVELOPMENT WAS OR WILL CONTINUE TO
BE ENDANGERED BY THE PARENTAL RELATIONSHIP.
(B)
THE COURT'S CONCLUSIONS THAT LISA WAS UNABLE
OR UNWILLING TO ELIMINATE THE HARM FACING HER
CHILDREN AND UNWILLING OR UNABLE TO PROVIDE A
SAFE AND STABLE HOME ENVIRONMENT WERE
ERRONEOUS.
(C)
THE TRIAL JUDGE ERRED IN HIS DETERMINATION
THAT DCPP SATISFIED THE REASONABLE EFFORTS
STANDARD BECAUSE IT FAILED TO PROVIDE SERVICES
THAT WERE REASONABLE UNDER ALL THE
CIRCUMSTANCES AND THE COURT DID NOT EXPLORE
ALTERNATIVES TO TERMINATION.
1. THE TRIAL JUDGE ERRED IN HIS
DETERMINATION THAT DCPP'S
UNREASONABLE COOKIE CUTTER
APPROACH, RATHER THAN TAILORED
SERVICES, SATISFIED THE THIRD PRONG
OF THE TEST.
2. THE TRIAL JUDGE ERRED IN HIS
DETERMINATION THAT DCPP SATISFIED
THE THIRD PRONG OF THE BEST INTEREST
TEST BECAUSE IT PROVIDED SERVICES
THAT WERE NOT APPROPRIATE UNDER THE
CIRCUMSTANCES AND THAT VIOLATED THE
11 A-4929-15T3
PROVISIONS OF THE AMERICANS WITH
DISABILITIES ACT. (42 U.S.C. § 12101ET SEQ.) (NOT RAISED BELOW)
3. THE TRIAL JUDGE FAILED TO MAKE
A DETERMINATION THAT DCPP
CONSIDERED ALTERNATIVES TO
TERMINATION.
(D)
REVERSAL IS WARRANTED BECAUSE THE EVIDENCE
PRESENTED DID NOT SUPPORT THE LOWER COURT'S
CONCLUSION THAT TERMINATION OF PARENTAL RIGHTS
WOULD NOT DO MORE HARM THAN GOOD.
We decline to address Lisa's arguments directed to the
Americans With Disabilities Act (ADA), 42 U.S.C. §§ 12101 to 12213,
because they were not presented to the trial court. See Zaman v.
Felton, 219 N.J. 199, 226-27 (2014). However, even if we consider
the arguments they are without merit, because the Division's
failure to comply with the ADA is not a defense to a guardianship
action. See N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J.
Super. 418, 442 (App. Div. 2001). Lisa's related argument, that
the Division failed to provide services "tailored" to her
psychological needs, was not supported by any expert or lay
testimony. In fact, Lisa did not present any witnesses at the
trial.
Contrary to Lisa's arguments, substantial credible evidence
supports the judge's findings as to the first three prongs of the
best interests test. Lisa contends that the Division did not do
12 A-4929-15T3
enough to convince her to attend domestic violence counseling. We
disagree. The Division repeatedly referred Lisa for counseling.
She chose not to attend. The agency is not required to force a
parent to accept services. Lisa attempts to present her drug
problems in a positive light by arguing that she was "making
progress toward sobriety" at the time of the trial. However,
viewed in the light most pertinent to her children's welfare, even
as the trial date approached she was still abusing oxycodone and
other drugs and was not able to safely parent the children.
The record also supports a finding that the Division
appropriately considered possible relative placements. A few
months before the trial, Lisa put forth her mother as a possible
alternate placement. At that point, Andrew had been with the same
resource family for nearly four years, and Sarah was thriving in
the same pre-adoptive home. There was no evidence that the
grandmother was ready, willing or able to adopt the children.
Likewise, substantial credible evidence supports Judge
Bernstein's finding that the Division satisfied the fourth prong
of the best interests standard. Lisa's appellate arguments,
presented prior to the remand, are without sufficient merit to
warrant further discussion. R. 2:11-3(e)(1)(E).
Lisa's post-remand arguments, relating to her Rule 4:50-1
motion, are without sufficient merit to warrant discussion beyond
13 A-4929-15T3
that set forth in the trial court's opinion and these brief
additional comments. Her belated completion of a drug treatment
program and an eight-session domestic violence program does not
warrant vacating the order terminating her parental rights to
these children. There is no evidence that Lisa has made the kind
of dramatic turnaround in her life, as occurred in In re
Guardianship of J.N.H., 172 N.J. 440 (2002).
As importantly, unlike the child in J.N.H., there is no
evidence that Andrew and Sarah are suffering from severe adjustment
problems in foster placement. Id. at 479-80. At the time of the
guardianship trial, both children were thriving in a stable
placement with resource parents who were committed to adopting
them. Lisa presented no evidence that those circumstances have
changed. Hence, there was no basis to re-visit the trial court's
original findings as to the children's best interests. Ibid. Nor
was there a need to hold a plenary hearing on the remand. As
Judge Katz noted, after a recent guardianship trial involving yet
another of Lisa's children, the court terminated her parental
rights despite the current evidence of her drug treatment and DV
classes.
IV
In his appeal, Anthony presents the following points of
argument:
14 A-4929-15T3
I. TERMINATION OF A.C.'S PARENTAL RIGHTS WAS
NOT WARRANTED UNDER THE "BEST INTERESTS TEST"
OF N.J.S.A. 30:4C-15.1A.
A. The Court Erred In Deeming The First Prong
Of The Test Satisfied By Clear And Convincing
Evidence Where A.L.C. Was Not Endangered By
The Circumstances That Resulted In His Removal
And S.M.C. Was Born Several Months Thereafter,
Where The Basis Of A.C.'S Incarceration Would
Not Have Endangered The Children, A.C. Worked
And Assisted L.M.A. With Household Expenses
Prior To Incarceration And A.C. Pursued
Services While Incarcerated.
B. The Court Erred In Deeming The Second Prong
Of The Test Satisfied By Clear And Convincing
Evidence Where A.C. Engaged In Services While
Incarcerated, Maintained Housing And
Employment By The Time Of Trial And Provided
Alternate Permanency Plans For The Two
Children.
C. The Court Erred In Finding Prong Three Of
The Test Satisfied Where DCPP Was Aware Of
Services Recommended By An Evaluating
Psychologist But DCPP Did Not Provide, Discuss
Or Encourage A.C. To Avail Himself Of Those
Services And Where The Court Failed To
Consider The Merits Of R.A. As A Potential
Relative Caretaker.
1. The Record Does Not Support a
Finding That DCPP Made Reasonable
Efforts to Provide Services to
Reunify The Family.
2. The Record Does Not Establish
that the Court Below Considered
Alternatives to Termination of
Parental Rights.
D. The Court Erred In Deeming the Fourth Prong
Satisfied by Clear and Convincing Evidence
Where The Bonding Evaluation Represented
15 A-4929-15T3
A.C.'S First Contact With His Children in Over
a Year, DCPP's Expert Could Not Conclude a
Bond Existed Between S.M.C. and the Foster
Parents, And the Expert Prioritized Parenting
Capacity, Which A.C. Had Clearly Demonstrated,
Above the Bonding Evaluation.
Those contentions are without sufficient merit to warrant
discussion, beyond the following comments. See R. 2:11-
3(e)(1)(E). Anthony minimizes the extent of his domestic violence,
which resulted in Andrew being placed in foster care. Like Lisa,
Anthony also fails to acknowledge the harmful effect on children
of remaining in foster care because their parents cannot get their
lives in order. See In re Guardianship of D.M.H., 161 N.J. 365,
379 (1999). He blames the Division for his own failure to take
advantage of services the Division tried to arrange for him. To
the extent that the Division focused greater effort on providing
services to Lisa, it acted reasonably, because Anthony told the
Division that he planned to move out of state and let Lisa parent
the children.
Affirmed.
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