DCPP VS. M.D., IN THE MATTER OF THE GUARDIANSHIP OF G.D. (FG-06-0036-15, CUMBERLAND COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-2357-17T4
NEW JERSEY DIVISION OF
CHILD PROTECTION AND
PERMANENCY,
Plaintiff-Respondent,
v.
M.D.,
Defendant-Appellant.
______________________________
IN THE MATTER OF THE
GUARDIANSHIP OF G.D.,
a Minor.
_______________________________
Submitted December 4, 2018 – Decided December 12, 2018
Before Judges Sabatino, Haas and Mitterhoff.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Cumberland County,
Docket No. FG-06-0036-15.
Joseph E. Krakora, Public Defender, attorney for
appellant (John A. Salois, Designated Counsel, on the
brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Melissa H. Raksa, Assistant Attorney
General, of counsel; Katrina A. Sansalone, Deputy
Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minor (Noel C. Devlin, Assistant Deputy
Public Defender, of counsel and on the brief).
PER CURIAM
Defendant M.D.1 appeals from the Family Part's June 19, 2017 judgment
of guardianship terminating his parental rights to his daughter G.D. (Ginger),
born in January 2014. Defendant contends that the Division of Child Protection
and Permanency (Division) failed to prove each prong of N.J.S.A. 30:4C-15.1(a)
by clear and convincing evidence. 2 The Law Guardian supports the termination
on appeal as it did before the trial court.
Based on our review of the record and applicable law, we are satisfied that
the evidence in favor of the guardianship petition overwhelmingly supports the
1
We refer to the adult parties by initials, and to the children by fictitious names,
to protect their privacy. R. 1:38-3(d)(12).
2
The Division also sought to terminate the parental rights of Ginger's mother,
M.B. However, M.B. passed away during the trial.
A-2357-17T4
2
decision to terminate defendant's parental rights. Accordingly, we affirm
substantially for the reasons set forth in Judge Harold U. Johnson, Jr.'s thorough
and thoughtful oral decision rendered on June 19, 2017.
We will not recite in detail the history of the Division's involvement with
defendant. Instead, we incorporate by reference the factual findings and legal
conclusions contained in Judge Johnson's decision, and add the following
comments.
When Ginger was born, she tested positive for Subutex, a drug used to
treat opioid addiction. M.B.'s family advised the Division that she had obtained
the drug illegally. Defendant, who had previously been diagnosed with
schizophrenia and bipolar disorder, refused to cooperate with the Division. The
parents only visited the baby once while she was in the hospital. M.B. appeared
to be under the influence, and defendant fell asleep while holding Ginger and
almost dropped her. On March 1, 2014, the Division performed a "Dodd"
removal3 of Ginger.4 When she was four months old, the Division placed Ginger
3
A "Dodd removal" refers to the emergency removal of a child without a court
order, pursuant to the Dodd Act, N.J.S.A. 9:6-8.21 to -8.82. N.J. Div. of Youth
& Family Servs. v. P.W.R., 205 N.J. 17, 26 n.11 (2011).
4
Defendant previously appealed from the Family Part's September 28, 2015
order terminating the Division's action seeking care and custody of Ginger
A-2357-17T4
3
with her maternal aunt and uncle. These resource parents have cared for Ginger
ever since, she is strongly bonded to them, and they wish to adopt her.5
The Division provided multiple opportunities to defendant to reunify with
his child, and address his long-standing mental health issues and opioid
dependency problems. None of these interventions proved successful. The
Division's expert psychologist, Dr. James Loving, evaluated defendant and
concluded he was suffering from "serious mental health symptoms" that created
the risk of "erratic and potentially dangerous behavior." Dr. Loving noted that
defendant exhibited "severe adjustment problems in terms of anxiety and
depression," "delusional thinking," "psychotic thinking[,]" and other
schizophrenic behaviors.
Dr. Loving opined that defendant's "prognosis for change" was "very
poor" because he refused to acknowledge his problems, undergo regular
treatment, or take appropriate medications. As a result, Dr. Loving testified that
pursuant to N.J.S.A. 9:6-8.21 to -8.106 and N.J.S.A. 30:4C-12 (the FN matter),
and directing the case to proceed as a guardianship action under N.J.S.A. 30:5C-
15(c) (the FG matter). N.J. Div. of Child Protection and Permanency v. M.D.,
No. A-1920-15 (App. Div. Oct. 27, 2017) (slip op. at 2). We dismissed that
appeal as moot for the reasons set forth in our opinion. Ibid.5
Defendant and M.B. have another child, A.D. (Audrey), born in November
2015. Audrey now lives with Ginger under the care of the same resource
parents.
A-2357-17T4
4
defendant was "not in a position to provide safe, stable, healthy parenting . . . in
the foreseeable future."
Dr. Loving also diagnosed defendant with "opioid use disorder" based on
his use of "opiate pills" like Suboxone for his addiction, and "substance use
disorder" as evidenced by his past use of cocaine and marijuana. While the
Suboxone defendant used was prescribed by an urgent care doctor in Princeton,
and previously by a primary care doctor in Atlantic City,6 defendant refused to
participate in long-term pain management and drug treatment programs offered
by the Division to address his abuse of opioids. Dr. Loving testified that while
continued Suboxone use can sometimes be a realistic plan for some patients,
defendant reported that he planned to wean himself off this medication by taking
Percocet, one of the drugs he was taking when he became addicted. Therefore,
Dr. Loving opined that defendant needed "a longer term pain management plan"
in order to address his substance abuse issues. However, defendant refused to
participate in such a program.
6
Neither of these doctors appeared at the trial. The urgent care doctor told the
Division caseworker that she prescribed Suboxone because defendant told her
he was "receiving psychiatric care and attending treatment through Narcotics
Anonymous." However, defendant was not participating in any mental health
or substance abuse treatment programs.
A-2357-17T4
5
Defendant did not offer any expert testimony contradicting Dr. Loving's
detailed opinions on his serious mental health and opioid use problems.
Defendant also failed to contradict Dr. Loving's expert opinion that he did not
have a strong bond with Ginger, especially when compared to the resource
parents, who "she had come to know . . . as her primary, most central parent
figures." As a result, Dr. Loving opined that if defendant's parental rights were
terminated, there would only be a slight risk of harm to the child. On the other
hand, there was a high risk that Ginger would suffer serious and enduring
emotional harm if she was removed from the care of her resource parents.
After the Division rested and M.B. completed her testimony, the judge
granted defendant's request to represent himself during his defense case.
Defendant testified on his own behalf, and voiced many of the same paranoid
ideations Dr. Loving described at trial. Among other things, defendant alleged
that the police were tracking him through his mobile phone and threatening to
harm him. He claimed he was involved in a traffic accident with a police c ar
that the police "staged" in order to persuade him to drop certain lawsuits. He
stated he contacted the FBI and the U.S. Justice Department to intervene after
the police attempted to extort him. At other times, he asserted he lived in "safe
A-2357-17T4
6
houses" because he was a confidential informant and, therefore, he could not
disclose his address to the Division.
As noted above, defendant did not call any expert witness to address Dr.
Loving's testimony. On the last day of trial, he presented the testimony of a
Division supervisor, who confirmed that defendant had not participated in any
mental health or substance abuse programs. Defendant also asked Judge
Johnson to issue a subpoena compelling both resource parents to appear in court
so he could question them to determine whether they were harming Ginger. The
judge asked defendant to provide a factual basis for his claim, and a proffer of
what their testimony would allegedly reveal. However, defendant was unable
to do so. Therefore, the judge ruled that a subpoena was not appropriate. 7
In his opinion, Judge Johnson reviewed the evidence presented and
concluded that (1) the Division had proven all four prongs of the best interests
test by clear and convincing evidence, N.J.S.A. 30:4C-15.1(a); and (2)
termination of defendant's parental rights was in the child's best interests. In
7
The judge also rejected defendant's request to call his girlfriend, V.M., as a
character witness because she had only limited information about defendant
since he admitted he had only known her for about five months. However, the
judge stated he would take notice that if she testified, this individual would , "in
all probability," state that defendant "has been good for the limited times perhaps
that he has seen her children."
A-2357-17T4
7
this appeal, our review of the trial judge's decision is limited. We defer to his
expertise as a Family Part judge, Cesare v. Cesare, 154 N.J. 394, 413 (1998),
and we are bound by his factual findings so long as they are supported by
sufficient credible evidence. N.J. Div. of Youth & Family Servs. v. M.M., 189
N.J. 261, 279 (2007) (citing In re Guardianship of J.T., 269 N.J. Super. 172, 188
(App. Div. 1993)).
After reviewing the record, we conclude that Judge Johnson's factual
findings are fully supported by the record and, in light of those facts, his legal
conclusions are unassailable. We therefore affirm substantially for the reasons
that the judge expressed in his well-reasoned opinion, and briefly address the
following matters.
Like Judge Johnson, we reject defendant's argument that the Division
failed to meet its burden of establishing that Ginger's "safety, health, or
development has been or will continue to be endangered by the parental
relationship" under N.J.S.A. 30:4C-15.1(a)(1). Defendant alleges that he has
never cared for the child, who has lived with her resource parents since May
2014 and, therefore, he was never in a position to "harm" her.
However, there is no requirement that the Division pursue an abuse and
neglect finding as a condition for terminating a defendant's parental rights. N.J.
A-2357-17T4
8
Division of Youth & Family Servs. v. A.P., 408 N.J. Super. 252, 259 (App. Div.
2009). Thus, the appropriate test is not whether defendant actually harmed
Ginger, but "whether the child's safety, health or development will be
endangered in the future and whether [defendant is] or will be able to eliminate
the harm." N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418,
440 (App. Div. 2001). Applying that standard, Dr. Loving's uncontradicted
expert testimony amply supports the judge's conclusion that defendant's serious
and untreated mental health problems would place Ginger squarely in harm's
way if she were placed in defendant's custody, and that this harm could not be
eliminated for the foreseeable future.
We also reject defendant's contention that the Division failed to establish
that he was "unwilling or unable to eliminate the harm facing" Ginger under
N.J.S.A. 30:4C-15.1(a)(2). Defendant asserts that because he was taking
Suboxone to address his opioid addiction, there was no requirement that he
participate in any formal substance abuse treatment program and, therefore, he
should not have been faulted for refusing to do so. However, Dr. Loving opined
that a long-term treatment plan was necessary in order to enable defendant to
reduce or eliminate his reliance on Suboxone, especially in view of defendant's
admission that he intended to wean himself off the drug by taking Percocet, an
A-2357-17T4
9
even more dangerous and addictive medication. In addition, defendant's
argument concerning his substance abuse issues ignores the fact that defendant's
mental health problems, which he has also refused to address, formed the
primary basis for the judge's finding that defendant could not safely parent
Ginger now or in the future.
For these same reasons, we are unable to agree with defendant's argument
that the Division failed to make "reasonable efforts to provide services to help
[him] correct the circumstances which led to [Ginger's] placement outside the
home" under N.J.S.A. 30:4C-15.1(a)(3). Contrary to defendant's assertion,
defendant's participation in a long-term substance abuse and pain management
program was necessary to help him address his opioid addiction, yet defendant
declined this service. He also refused to engage in the mental health services
the Division offered. 8
Defendant also argues that the Division did not "consider[] alternatives to
termination of parental rights" under N.J.S.A. 30:4C-15.1(a)(3) because it did
not explore kinship legal guardianship (KLG). However, it is clear that KLG
8
Defendant also argues that the Division failed to provide him with appropriate
housing. However, he concedes he told the Division on several occasions that
he could not provide it with his address because of his work as a confidential
informant and because he did not want the police to know where he lived.
A-2357-17T4
10
was not an appropriate alternative in this case because the resource parents, who
were also caring for Ginger's sibling, wanted to adopt her. N.J. Div. of Youth
& Family Servs. v. P.P., 180 N.J. 494, 512-13 (2004) (holding that "when the
permanency provided by adoption is available, [KLG] cannot be used as a
defense to termination of parental rights").
Finally, defendant alleges that Judge Johnson improperly denied his
request to subpoena the resource parents as witnesses, which prevented him
from demonstrating under N.J.S.A. 30:4C-15.1(a)(4) that the termination of his
parental rights would "do more harm than good" because the resource parents,
who intended to adopt Ginger, were not treating her properly. We disagree.
Our standard of review of a trial court's decisions on evidentiary questions
is well settled. "When a trial court admits or excludes evidence, its
determination is 'entitled to deference absent a showing of an abuse of
discretion, i.e., [that] there has been a clear error of judgment.'" Griffin v. City
of E. Orange, 225 N.J. 400, 413 (2016) (alteration in original) (quoting State v.
Brown, 170 N.J. 138, 147 (2001)). "Thus, we will reverse an evidentiary ruling
only if it 'was so wide [of] the mark that a manifest denial of justice resulted.'"
Ibid. (quoting Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999)).
A-2357-17T4
11
Applying this highly deferential standard of review, we discern no basis
for disturbing Judge Johnson's decision to deny defendant's request. As
defendant concedes, "there is no explicit constitutional right to compulsory
process in a termination of a parental rights case[.]" Indeed, it is well established
that the Sixth Amendment does not apply to civil matters, like this termination
of parental rights case. N.J. Div. of Child Prot. & Permanency v. R.L.M., 450
N.J. Super. 131, 143 (App. Div. 2017) (citing N.J. Div. of Youth & Family
Servs. v. M.Y.J.P., 360 N.J. Super. 426, 467 (App. Div. 2003)); cf. N.J. Div. of
Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 634 (App. Div. 2010)
(noting Sixth Amendment safeguards do not apply to civil abuse or neglec t
case).
Moreover, Judge Johnson allowed defendant to cross-examine all of the
witnesses and to call a Division caseworker as his own witness. In denying
defendant's request to subpoena the resource parents, the judge explained that
defendant was unable to specify any factual basis for his allegation that the
resource parents may have harmed the child. Indeed, defendant could not even
provide a proffer of their intended testimony. In addition, defendant never
lodged any complaint with the Division about the resource parents, and the
Division's records and Dr. Loving's expert testimony disclosed nothing
A-2357-17T4
12
untoward in their treatment of Ginger. Therefore, the judge did not abuse his
discretion by denying defendant's request to subpoena the resource parents.
In sum, children are entitled to a permanent, safe and secure home. We
acknowledge "the need for permanency of placements by placing limits on the
time for a birth parent to correct conditions in anticipation of reuniting with the
child." N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 111
(App. Div. 2004). As public policy increasingly focuses on a child's need for
permanency, "[t]he emphasis has shifted from protracted efforts for
reunification with a birth parent to an expeditious, permanent placement to
promote the child's well-being." Ibid. (citing N.J.S.A. 30:4C-11.1). That is
because "[a] child cannot be held prisoner of the rights of others, even those of
his or her parents. Children have their own rights, including the right to a
permanent, safe and stable placement." Ibid.The question then is "whether the parent can become fit in time to meet
the needs of the children." N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J.
Super. 235, 263 (App. Div. 2005); see also P.P., 180 N.J. at 512 (indicating that
even if a parent is trying to change, a child cannot wait indefinitely). After
carefully considering the record, Judge Johnson reasonably determined that
defendant was unable to parent Ginger, and would not be able to do so for the
A-2357-17T4
13
foreseeable future. Under those circumstances, we agree with the judge that any
further delay of permanent placement would not be in the best interests of the
child.
Affirmed.
A-2357-17T4
14