DCPP VS. T.C. AND A.A.M., IN THE MATTER OF THE GUARDIANSHIP OF E.A.M. (FG-07-0188-17, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (CONSOLIDATED) ( 2019 )

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NOT FOR PUBLICATION WITHOUT THE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-3188-17T3
A-3189-17T3
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
T.C. and A.A.M.,
Defendants-Appellants.
______________________________
IN THE MATTER OF THE
GUARDIANSHIP OF E.A.M.,
a Minor.
______________________________
Submitted January 14, 2019 – Decided January 23, 2019
Before Judges Sabatino, Haas and Mitterhoff.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Essex County, Docket
No. FG-07-0188-17.
Joseph E. Krakora, Public Defender, attorney for
appellant T.C. (Eric R. Foley, Designated Counsel, on
the briefs).
Joseph E. Krakora, Public Defender, attorney for
appellant A.A.M. (Howard P. Danzig, Designated
Counsel, on the briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Jason W. Rockwell, Assistant Attorney
General, of counsel; Amy L. Bernstein, Deputy
Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minor (Danielle Ruiz, Designated Counsel,
on the brief).
PER CURIAM
In these consolidated appeals, defendant A.M.1 ("the mother") and T.C.
("the father") seek to overturn the Family Part's March 1, 2018 final judgment
of guardianship terminating their respective parental rights to their biological
daughter, E.A.M. ("Emily"). Emily, who is now the age of three, has two older
half-siblings and a younger half-sibling that are the biological children of the
mother. The father is not the biological father of Emily's half siblings with the
mother. Those half-siblings have been placed with other caretakers and are not
parties to the present litigation.
1
We use initials and pseudonyms to protect the privacy of the children. R.
1:38-3(d)(12).
A-3188-17T3
2
After a three-day guardianship trial at which the defendant parents
presented no witnesses, the trial judge issued a detailed thirty-five-page written
opinion concluding that the Division of Child Protection and Permanency ("the
Division" or "DCPP"), had proven by clear and convincing evidence all four
necessary prongs of N.J.S.A. 30:4C-15.1(a), to warrant the termination of
defendants' respective parental rights.
Among other things, the trial judge found that: neither defendant is fit to
parent Emily, given their persisting limitations; both parents have endangered
Emily's safety, health, and development and they are unable or unwilling to
eliminate that risk of harm and provide her with a stable home; the Division has
made reasonable efforts to provide services to the parents without success and
adequately explored alternative caretakers; and terminating the parents' rights to
Emily, who has bonded favorably with a resource parent who is committed to
adopting her, would do no more harm than good. The judge specifically found
credible the unrebutted trial testimony of the Division's evaluating psychologist
whom the court characterized as "well-qualified." We affirm.
I.
The record shows the mother was sexually abused as a child. She has been
diagnosed with bipolar disorder, Post Traumatic Stress Disorder ("PTSD"), and
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major depression. She suffers from hallucinations as well as memory loss after
allegedly being struck in the head as a minor. As a child, the mother herself was
the subject of the Division's intervention. She has a long history of
unemployment and instability.
On February 28, 2016, the mother took the three children to the hospital
to be treated for minor injuries. At the hospital, the mother "zoned out" when
hospital staff were interacting with her. Staff members called the Division, and
the mother was thereafter involuntarily committed for psychiatric treatment.
The Division conducted an emergency removal 2 after arriving at the hospital and
placed the two older half-siblings with one resource family and placed Emily,
who was only an infant at the time, with a different resource family.
The mother has been diagnosed with various neuropsychological
disorders and continues to have functional difficulties. During the course of the
litigation, the Division offered her various services, only a few of which she
pursued. She was sporadic in her visits with the child. The mother eventually
moved to Georgia and had another child, whom she also is not raising.
2
A Dodd removal is an emergent removal of a minor without a court order
pursuant to N.J.S.A. 9:6-8.21 to -8.82 (the Dodd Act). N.J. Div. of Youth &
Fam. Servs. v. P.W.R., 205 N.J. 17, 26 n.11 (2011).
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The father, meanwhile, has had multiple incarcerations and chronic
substance abuse problems with both marijuana and alcohol. While this litigation
was pending, he failed multiple urine screens. The father has never lived in the
same household as the child. He did complete various services but continued to
be unable to be an effective and responsible parent. Notably, he never offered
to serve as the caretaker of the child.
The father did suggest the Division consider his god-sister T.B., who is
raising a different child (another half-sibling of Emily) that he fathered with
another woman. However, that potential caregiver failed to provide the Division
with the necessary paperwork on time and there was no proof that she was
actually able to take Emily into her own home. Consequently, the Division ruled
her out.
Meanwhile, the testimony from the Division's caseworker, which the trial
court found credible, reflects that Emily has been doing well in the care of her
resource parent. As we have already noted, that resource parent wishes to adopt
her.
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II.
On appeal, each parent's brief challenges the trial court's findings as to
them individually, concerning all four prongs of the statutory test under N.J.S.A.
30:4C-15.1(a).
In her brief, the mother raises the following points:
POINT I: THE SIBLING RIGHTS OF [EMILY] AS
WELL AS HER THREE SIBLINGS SHOULD NOT
HAVE BEEN IGNORED.
POINT II: THE FACTS BELOW DO NOT SUPPORT
A LEGAL FINDING THAT ALL FOUR PRONGS
UNDER N.J.S.A. 30:4C-15.1(a) WERE MET IN THIS
CASE.
POINT III: THERE WAS INSUFFICIENT
EVIDENCE TO PROVE BY CLEAR AND
CONVINCING EVIDENCE THAT [EMILY]'S
SAFETY, HEALTH OR DEVELOPMENT HAS BEEN
OR WILL CONTINUE TO BE ENDANGERED BY
THE PARENTAL RELATIONSHIP UNDER THE
FIRST PRONG: THERE WAS NO HARM CAUSED
OR THREATENED.
POINT IV: THERE WAS INSUFFICIENT
EVIDENCE UNDER THE SECOND PRONG TO
CONCLUDE THAT [THE MOTHER] WAS
UNWILLING TO ELIMINATE A HARM.
POINT V: DCPP FAILED TO PROVE BY CLEAR
AND CONVINCING EVIDENCE THAT IT MADE
REASONABLE EFFORTS TO HELP [THE
MOTHER] AND THE COURT FAILED TO
CONSIDER ALTERNATIVES TO TERMINATION
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OF HER PARENTAL RIGHTS UNDER THE THIRD
PRONG.
POINT VI: THERE WAS INSUFFICIENT
EVIDENCE TO SUPPORT THE TRIAL COURT'S
LEGAL CONCLUSION THAT TERMINATION OF
[THE MOTHER]'S PARENTAL RIGHTS WILL NOT
DO MORE HARM THAN GOOD, UNDER THE
FOURTH PRONG.
In his brief, the father argues:
THE JUDGMENT OF GUARDIANSHIP SHOULD
BE REVERSED BECAUSE THE COURT
MISAPPLIED THE LAW IN FINDING THAT DCPP
MET ITS BURDEN OF PROOF UNDER THE FOUR
PRONGS OF THE "BEST INTEREST" STANDARD
PURSUANT TO N.J.S.A. 30:4C-15.1.
A. The court misapplied the prevailing legal standards
under the first prong where DCPP failed to establish by
clear and convincing evidence that [the father] harmed
or could not cease harming [Emily].
B. The court misapplied the prevailing legal standards
under the second prong of the "best interest" standard
whereby [the father] can become a fit parent in the
foreseeable future.
C. The trial court misapplied the prevailing legal
[s]tandards under the third prong of the "best interest"
standard and failed to articulate how the "efforts"
provided by DCPP were reasonable and helped to
facilitate reunification.
D. Termination of parental rights will do more harm
than good.
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In considering these points, we are mindful that our appellate review of a
trial court's decision to terminate parental rights is limited. See N.J. Div. of
Youth & Family Servs. v. R.G., 217 N.J. 527, 554 (2014) (citing In re
Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). 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. 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). However, a trial
court's interpretations of the law and the subsequent legal consequences of the
facts are afforded no special deference. See R.G., 217 N.J. at 552.
Applying these well-established principles of appellate review, we affirm
the termination of defendants' parental rights, substantially for the sound reasons
expressed in Judge James R. Paganelli's written opinion of March 1, 2018
accompanying the final judgment. The judge's decision is amply supported by
substantial evidence in the record and is consistent with the applicable legal
standards.
The only issue warranting brief discussion is the parents' argument that
the placement of Emily with a non-relative resource parent violates the Child
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Placement Bill of Rights, N.J.S.A. 9:6B-1 to -6. In this regard, the parents claim
that the court failed to adequately consider placing Emily with her other half-
siblings. The mother did not argue this particular point in the trial court. The
father did raise the issue, albeit belatedly, when he asked for and was denied an
adjournment after the trial evidence already had been presented and the record
had closed. Despite these procedural shortcomings, we choose to address the
sibling placement issue in the public interest. Nieder v. Royal Indem. Ins. Co.,
62 N.J. 229, 234 (1973).
There is no tender of competent proof that the father's god-sister, or any
other caretaker of Emily's half-siblings, is willing and capable to care for this
additional child. Meanwhile, the weight of the evidence on the fourth prong
concerning the child's best interests, clearly establishes that Emily should not be
taken away from the resource parent, who has cared for her capably for nearly
three years since she was a young infant. The cited statute is not violated by the
trial court's well-reasoned decision.
In sum, we agree with the Division and the Law Guardian that both the
trial proofs and the governing law support the final judgment and that
defendants' arguments to set it aside should be rejected.
Affirmed.
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