DCPP VS. M.M. AND R.C., IN THE MATTER OF THE GUARDIANSHIP OF M.M. (FG-07-0157-19, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2021 )

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NOT FOR PUBLICATION WITHOUT THE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-2639-19
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
M.M.
Defendant-Appellant,
and
R.C.
Defendant.
_________________________
IN THE MATTER OF THE
GUARDIANSHIP OF M.M.,
a minor.
_________________________
Submitted October 14, 2021 – Decided November 22, 2021
Before Judges Gilson and Gummer.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Essex County, Docket
No. FG-07-0157-19.
Joseph E. Krakora, Public Defender, attorney for
appellant (James D. O'Kelly, Designated Counsel, on
the briefs).
Andrew J. Bruck, Acting Attorney General, attorney for
respondent (Sookie Bae-Park, Assistant Attorney
General, of counsel; Meaghan Goulding, Deputy
Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minor (Meredith Alexis Pollock, Deputy
Public Defender, of counsel; Louise M. Cho, Assistant
Deputy Public Defender, of counsel and on the brief).
PER CURIAM
Defendant M.M. (Melanie)1 appeals from the final judgment of the Family
Part terminating her parental rights to her biological daughter M.M. (Mary) and
the denial of her subsequent motion to vacate the judgment due to purportedly
changed circumstances, specifically her mother's decision not to adopt Mary and
the willingness of a great aunt to be assessed as a potential placement.2 After
1
We use fictitious names and initials for ease of reading and to protect the
identities of the parties. R. 1:38-3(d)(12).
2
Mary's biological father, R.C. (Robert), is not a party to this appeal.
A-2639-19
2
reviewing the record developed at trial and mindful of our standard of review,
we affirm.
I.
The Division of Child Protection and Permanency (the Division) first had
contact with Melanie when it received a referral in 2014 alleging Melanie and
her then-boyfriend were engaging in drug use while caring for her first
biological daughter, M.M. (Michelle). The Division eventually found the
allegations of abuse unsubstantiated. A court subsequently awarded Michelle's
father sole legal and physical custody of Michelle.
A.
On May 3, 2018, the Division received a referral from a hospital social
worker alleging Melanie, who was then thirty-four weeks pregnant, had come to
the emergency room for the fourth time during her pregnancy, complaining of
"vomiting, indigestion, fever, and chills" and testing positive for phencyclidines
(PCP). The social worker described Melanie as "appear[ing] to have significant
mental health issues as a result of long-term abuse of the drug." Four weeks
later, Melanie gave birth to Mary. When both Melanie and Mary tested positive
for PCP, hospital staff contacted the Division. The Division interviewed
Melanie at the hospital. She was jittery and unfocused and admitted she had
A-2639-19
3
smoked PCP during the last month. Mary "present[ed] with withdrawal
symptoms," including increased sucking, crying, and tremors, and was treated
with morphine. Mary was discharged from the hospital two and a half weeks
after her birth and was placed in a resource home.
Two days after Mary's discharge, Melanie executed an agreement with the
Division, in which she consented to completing a substance-abuse evaluation.
After missing the first five scheduled substance-abuse evaluations, Melanie
participated in an evaluation on September 14, 2018. The evaluator concluded
Melanie needed treatment. Melanie agreed to participate in an outpatient
program with Airmid Counseling Services ("Airmid"). A positive PCP test
would result in "a mandatory referral for residential treatment." Melanie's initial
test was positive for PCP. She successfully completed a thirty-day, inpatient
detoxification program at a facility called Turning Point. Turning Point
recommended Melanie, after completing its thirty-day program, attend a
"Mommy and Me" program, which provides housing and parenting classes to
new mothers with substance-abuse issues, enabling them to work on those issues
in a "24-hour structured environment." Melanie declined to participate in that
program, stating she had received a housing voucher and wanted to get an
apartment. Melanie returned to Airmid for outpatient counseling but tested
A-2639-19
4
positive for PCP the day she was discharged from the detoxification program
and in eight tests conducted over the next two months, even though the Division
had told her a positive test would result in a referral for long-term residential
treatment.
After testing positive for PCP through December 2018, Melanie was
referred to a long-term residential treatment facility but declined to attend, again
stating she needed to secure housing before attending any residential treatment
program. For months Melanie continued to test positive for PCP and to reject
the Division's repeated recommendations she enter a detoxification program
followed by a long-term treatment program for her PCP use. In April and May
2019, she returned to Turning Point for detoxification but left both times before
completing the program, against medical advice. In June, she entered a short-
term residential program at another facility but left after only two days. She
continued to test positive for PCP in April, May, and June but insisted she would
participate only in an outpatient program.
In the year following Mary's birth, while the Division was working with
Melanie to have her agree to enter an inpatient treatment program so that she
could address her substance-abuse issues and be reunited with Mary, Mary
continued to reside with the resource family. The Division facilitated supervised
A-2639-19
5
visits between Melanie and Mary, asked Melanie and Robert to identify any
relatives or friends who would be willing to provide care to Mary, and explored
several possible relative placements for Mary. Mary was not placed with those
relatives because they were either unwilling or deemed unable to care for her.
Gina, Mary's maternal grandmother, initially told the Division she did not
want to be considered as a potential caregiver for Mary because she had a busy
work and school schedule. In a September 7, 2018 letter, the Division confirmed
that information and told Gina she could ask to be reconsidered if she had a
change of circumstances. Gina also was concerned that if she accepted
placement, Melanie would not take the necessary steps for reunification. After
time had passed with insufficient progress, Gina decided to rearrange her
schedule so she could care for Mary. In a June 10, 2019 letter, Gina confirmed
she wanted to adopt Mary. A Division worker assessed her home and placed
Mary with Gina on June 21, 2019. One of her original resource parents told a
Division caseworker her family loved Mary and would "love" to have her
returned to them if her placement with Gina was unsuccessful.
In a June 11, 2019 order, the trial judge approved the Division's decision
to change Mary's goal from reunification to termination of parental rights
followed by adoption. The judge found Melanie had been non-compliant with
A-2639-19
6
multiple inpatient substance-abuse programs "despite consistently testing
positive for PCP," had "refused to remain in inpatient treatment for any
significant length of time," had "left multiple inpatient programs against medical
advice," and had requested outpatient treatment "despite clear recommendations
that she must attend an inpatient program." The Division filed the complaint in
this action on June 27, 2019.
Before trial, Robert executed a document voluntarily surrendering his
parental rights to Gina. At a November 20, 2019 hearing, conducted by the same
judge who presided over the trial, Robert confirmed under oath his intention to
surrender his parental rights to Gina. Gina attended that hearing and stated
under oath, "I would like to adopt [Mary]."
B.
The trial judge began a three-day trial on January 6, 2020. A Division
caseworker testified about the services the Division had provided to Melanie
since Mary's birth, the repeated recommendations for inpatient treatment and
Melanie's failure to comply, Melanie's numerous positive tests for PCP, and
Gina's intention to adopt Mary. Another Division employee testified Gina
wanted to adopt Mary and that Gina had submitted to the Division a signed
"Acknowledgement of Receipt of Adoption/KLG Fact Sheet," stating she had
A-2639-19
7
received a copy of the "Fact Sheet of Differences between Adoption and Kinship
Legal Guardianship" and had discussed those differences with a Division
employee.
Melanie objected to the admission into evidence of Gina's June 10, 2019
letter about her desire to adopt Mary, arguing it was inadmissible third-party
hearsay. The trial judge held the letter was admissible pursuant to N.J.R.E.
803(c)(3) for the limited purpose of expressing Gina's intent to adopt Mary and
would not be considered for any other purpose.
Psychologist Elizabeth Stilwell testified Melanie was "not capable of . . .
independently caring for her daughter now or in the foreseeable future." She
stated Melanie's parenting-capacity prognosis was poor due to her chronic PCP
use and longstanding behaviors, including lack of impulse control, mood
lability, aggressiveness, treatment resistance, and difficulty remaining in contact
with reality. Dr. Stilwell also opined Melanie's prognosis for maintaining
sobriety was poor and that even though "at some level, [Melanie] knows what it
is that she needs to do in order to be reunified with her children . . . she has
repeatedly demonstrated that she's unable to do that." Dr. Stilwell concluded
Mary would be at risk if she were reunited with Melanie due to Melanie's
prolonged instability, lack of behavioral and impulse control, and poor executive
A-2639-19
8
functioning and decision-making. Conversely, she did not "expect to see a
significant disruption in [Mary], should [Melanie's] parental rights be
terminated." According to Dr. Stilwell, Mary did not see Melanie as a "primary
attachment figure." Overall, Dr. Stilwell believed termination of Melanie's
parental rights would not do more harm than good, noting "[t]ermination of
parental rights would afford [Mary] the opportunity to achieve permanency, and
that permanency being through adoption by her maternal grandmother."
In addition to her testimony, Dr. Stilwell's written evaluation was admitted
into evidence with no objection from Melanie. The evaluation included
information regarding Dr. Stilwell's December 6, 2019 interview with Gina.
According to Dr. Stilwell, Gina "reported that she is interested in adopting
[Mary] if she should become legally free."
In her closing argument, Melanie's counsel argued, among other things,
the Division had not established it had considered alternatives to termination of
parental rights, such as kinship legal guardianship (KLG). Counsel for the
Division pointed out Melanie had not raised the KLG issue until her counsel's
closing argument and asserted the trial judge should reject that last-minute
contention when the record was clear Gina had been advised of the KLG option
but intended to adopt Mary. Mary's law guardian supported the termination of
A-2639-19
9
Melanie's parental rights, arguing, among other things, the record contained no
evidence to support KLG was in Mary's best interest.
On February 11, 2020, the trial judge issued an oral decision and a
comprehensive written opinion and order, holding the Division had proven by
clear and convincing evidence all four prongs of the statutory best-interests-of-
the-child test, N.J.S.A. 30:4C-15.1(a), and terminating Melanie's parental rights.
In reaching her conclusion, the trial judge cited Melanie's continued PCP use,
the Division's continuous efforts to provide her with treatment services ,
Melanie's repeated noncompliance with the offered services, and the testimony
of the Division's witnesses, whom the trial judge found to be credible.
Recognizing a court must consider alternatives to termination of parental rights,
the trial judge found the Division had "explored relative placement[] options"
and tailored its efforts "to the needs of [Melanie] in order to reunify [Mary] with
her," but "[t]o this day, [Melanie] has not remediated the circumstances that
resulted in [Mary's] removal and continues to test positive for PCP."
After Melanie appealed that decision, the Division, at Gina's request,
removed Mary from Gina's home and placed her in the care of her former non-
relative resource parents, who are now committed to adopting Mary. We granted
Melanie's subsequent motion for a remand for the limited purpose of allowing
A-2639-19
10
Melanie to file with the trial court a Rule 4:50 motion, seeking to vacate the
judgment terminating her parental rights. In her vacation motion, Melanie
argued Mary's placement change and the existence of another potential relative
resource (Mary's maternal great aunt) constituted changed circumstances that
rendered inequitable the continued enforcement of the judgment terminating her
parental rights. Melanie contended it would be in Mary's best interest to vacate
the judgment and have the Division assess Mary's great aunt as a potential
relative placement.
After hearing oral argument, the trial judge on August 26, 2020, issued an
order and written opinion denying Melanie's motion, finding she had "not
present[ed] any changed circumstances as to herself and [had] not present[ed]
any evidence that the circumstances that caused [Mary's] removal [had] been
remediated." The judge considered the resource parents' commitment to
adopting Mary and that Mary had lived with them from her hospital release after
birth until her placement with Gina. In comparison, the great aunt had not
asserted an "unequivocal intent to adopt" Mary, only a "mere willingness to be
assessed," and Melanie previously had not offered the great aunt as a potential
placement. Recognizing placement with a relative is preferred but not required,
the judge held "[t]o prolong litigation in order for the Division to explore the
A-2639-19
11
great aunt at this juncture would only impede [Mary's] already set path to
permanency." Acknowledging Dr. Stilwell's testimony that Mary would
experience "significant disruption" if removed from Gina, the judge also
referenced Dr. Stilwell's testimony that Mary would not experience significant
harm from terminating the relationship with Melanie and found Melanie's
"continued unfitness to parent is at issue, regardless of the attachment [Mary]
may have had" with Gina. Denying the motion, the judge concluded Melanie
"continues to be an unfit parent and [Mary's] need for permanency and stability
remains paramount."
Mary amended her notice of appeal to include the denial of her vacation
motion.
II.
We review a judgment of termination of parental rights mindful that we
are bound to uphold the Family Part judge's factual findings if they are supported
by "adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394,
411-12 (1998); see also N.J. Div. of Child Prot. & Permanency v. M.M., 459
N.J. Super. 246, 256 (App. Div. 2019). Our Supreme Court adopted that
deferential standard of review because Family Part judges are presumed to have
a "specialized knowledge and experience in matters involving parental
A-2639-19
12
relationships and the best interests of children." N.J. Div. of Youth & Fam.
Servs. v. F.M., 211 N.J. 420, 427 (2012). We are bound to defer to the trial
court's credibility determinations also because the trial judge's proximity to the
litigants provides "a 'feel of the case' that can never be realized by a review of
the cold record." N.J. Div. of Youth & Fam. Servs. v. E.P., 196 N.J. 88, 104
(2008) (quoting N.J. Div. of Youth & Fam. Servs. v. M.M., 189 N.J. 261, 293
(2007)). We review de novo a trial court's legal conclusions. N.J. Div. of Youth
& Fam. Servs. v. R.G., 217 N.J. 527, 552 (2014).
A.
N.J.S.A. 30:4C-15.1(a) states:
The [D]ivision shall initiate a petition to terminate
parental rights on the grounds of the "best interests of
the child" pursuant to . . . [N.J.S.A.] 30:4C-15 if the
following standards are met:
(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;
(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
A-2639-19
13
the court has considered alternatives to termination of
parental rights; and
(4) Termination of parental rights will not do more
harm than good.
See N.J. Div. of Child Prot. & Perm. v. T.S., 463 N.J. Super. 142, 163 (App.
Div. 2020) (holding Family Part's determination of parental capacity must "be
guided by the four-prong standard codified in N.J.S.A. 30:4C-15.1(a)"). In this
appeal, Melanie challenges only the trial judge's findings that the Division
established the second part of the third prong and the fourth prong. Melanie also
contends the trial court erred in finding Gina's letter was admissible under
N.J.R.E. 803(c)(3) and in denying her motion to vacate the judgment.
Relying on M.M, 459 N.J. Super. 246, Melanie bases much of her
argument on the trial judge's purported error in not exploring or articulating
whether Gina could have or would have served as a kinship legal guardian
instead of an adoptive mother. That argument is rendered moot by the
undisputed fact that after the trial, Gina asked the Division to remove Mary from
her home. Debating now whether more could have or should have been said or
done concerning Gina serving as a kinship legal guardian would ignore the
reality of Mary's life now: Gina does not want to care for Mary or have her in
A-2639-19
14
her home; Mary is with people who cared for her in the first year of her life and
are committed to caring for her as adoptive parents for the rest of her life.
This case is not M.M. In M.M., we were unable to affirm the trial court's
finding as to the third statutory prong "because the factual record, which [was]
based upon a series of somewhat inconsistent and conditional hearsay
statements, [was] insufficiently clear with respect to issues concerning adoption
and the potential alternative of KLG." Id. at 257. The record in M.M. contained
references to multiple statements by the resource parents indicating they were
willing to adopt but would consider or even prefer KLG. Id. at 266-70; see also
id. at 273 (referencing the resource parents' "equivocal and ambiguous hearsay
statements"). "Viewing all of these bits of hearsay in their totality," we could
not determine whether the resource parents were committed to adoption,
"regardless of the possible alternative of KLG." Id. at 273.
In contrast, the record before us in this case is clear and consistent. The
documentary evidence – Gina's letter, her executed "Acknowledgement of
Receipt of Adoption/KLG Fact Sheet," and Dr. Stilwell's report – demonstrates
Gina's intent to adopt and that her intent was an informed one. See id. at 260(finding "decision of a resource parent to choose adoption over KLG must be an
informed one"). The testimony of both Division employees likewise established
A-2639-19
15
Gina's intent to adopt and that she formed that intention having been provided
information regarding KLG as a viable alternative. This record is devoid of any
evidence Gina would have considered KLG in lieu of adoption. Unlike the M.M.
trial judge, who was faced with a "muddy" record full of contradictory
statements, id. at 265, the only evidence before this trial judge was: having been
informed of the KLG option and the differences between adoption and KLG,
Gina intended to adopt. A finding of KLG by this judge would have been
factually and legally unsupported. See N.J. Div. of Youth & Fam. Servs. v. S.F.,
392 N.J. Super. 201, 209 (App. Div. 2007) (holding KLG is a viable alternative
"when adoption is neither feasible nor likely").
Melanie faults the trial judge for admitting into evidence over her
objection Gina's letter for the limited purpose of expressing Gina's intent to
adopt Mary. We have recognized that the circumstance of communications by
and with resource parents being all hearsay statements is not unusual in
guardianship litigation. M.M., 459 N.J. Super. at 266. In M.M., we declined to
address the appropriateness of the trial court considering hearsay statements
attributed to the resource parents. Noting "counsel did not consistently oppose
the admission of such hearsay," id. at 276, we held "[h]earsay subject to a well-
founded objection is generally evidential if no objection is made" and " [w]hen
A-2639-19
16
objectionable hearsay is admitted in a bench trial without objection, we presume
that the fact-finder appreciates the potential weakness of such proofs, and takes
that into account in weighing the evidence." Ibid. (quoting N.J. Div. of Child
Prot. & Permanency v. J.D., 447 N.J. Super. 337, 348-49 (App. Div. 2016)).
Similarly, here, Melanie at trial did not object to the admission into
evidence the executed "Acknowledgement of Receipt of Adoption/KLG Fact
Sheet," Dr. Stilwell's evaluations, or the testimony of the Division workers
regarding Gina's submission of that executed form or her intent to adopt. By not
objecting, Melanie invited error and "deprived the Division of the opportunity
to overcome any objection." N.J. Div. of Youth & Fam. Servs. v. M.C. III, 201
N.J. 328, 341 (2010). Melanie's counsel's decision not to object to those other
documents and the Division employees' testimony may have been strategic given
Gina's possible testimony about Melanie. See id. at 342 ("Particularly where
defense counsel may have made a strategic decision to try the case based on the
documents, instead of possibly facing a witness's direct testimony, it would be
unfair to the Division to reverse on this issue."). According to Dr. Stilwell, Gina
told her Melanie could not care for Mary because of her addiction to illicit
substances and when she asked Gina about allowing Melanie to have contact
with Mary after she was adopted, Gina responded: "I am thinking about it. I
A-2639-19
17
am not sure if she will be able to visit if she doesn't behave. She will kick the
door and pushed my neighbor down to get to me. I gave her one more chance.
She knows if she messes up then that is it." That statement, made only one
month prior to trial, does not demonstrate an interest in KLG; it demonstrates
the opposite. Even if admission of the letter was error, it does not warrant
reversal given the other evidence before the court.
We recognize the better course would have been for the trial judge to
articulate expressly her consideration of the KLG alternative in her opinion.
That she did not expressly address it is not reversible error. Again, this case is
not M.M. In M.M., we faulted the trial judge for not "explain[ing] or
reconcil[ing] the vacillating and ambiguous statements" of the resource parents.
459 N.J. Super. at 275. Here, with a consistent and clear record, the trial judge
had nothing to reconcile. Recognizing she had to consider "alternatives to
termination of parental rights" and finding the Division had "explored relative
placement options," the trial judge concluded the Division had established the
third statutory prong by clear and convincing evidence. We see no reason to
disturb that conclusion. And we see no reason to disturb the judge's findings
regarding the fourth prong, which were supported by adequate and substantial
A-2639-19
18
credible evidence in the record. Accordingly, we affirm the final judgment
terminating Melanie's parental rights to Mary.
B.
We affirm the denial of Melanie's vacation motion substantially for the
reasons set forth in the trial judge's comprehensive, written decision. To vacate
a judgment terminating parental rights, a party must establish (1) changed
circumstances that justify vacating the judgment and (2) vacating the judgment
is in the child's best interest. In re Guardianship of J.N.H., 172 N.J. 440, 473-
75 (2002); N.J. Div. of Youth & Fam. Servs. v. T.G., 414 N.J. Super. 423, 434-
35 (App. Div. 2010). As the trial judge found, the great aunt's mere willingness
to be assessed and Gina's decision not to adopt do not constitute changed
circumstances that justify vacating the judgment given Mary's long-time
resource parents' undisputed commitment to adopt her and Melanie's failure to
present evidence regarding a change in her unfitness to parent. The trial judge
correctly held Mary's "need for permanency and stability remain paramount,"
see J.N.H., 172 N.J. at 475, and that Melanie had not established vacation of the
judgment was in Mary's best interest.
Affirmed.
A-2639-19
19