DCPP VS. M.L. AND L.N., IN THE MATTER OF THE GUARDIANSHIP OF M.L. (FG-02-0048-18, BERGEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (CONSOLIDATED)

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NOT FOR PUBLICATION WITHOUT THE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-4164-18T4
A-4165-18T4
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
M.L. and L.N.,
Defendants-Appellants.
IN THE MATTER OF THE
GUARDIANSHIP OF M.L.,
a Minor.
Submitted March 31, 2020 – Decided May 18, 2020
Before Judges Accurso, Gilson and Rose.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FG-02-0048-18.
Joseph E. Krakora, Public Defender, attorney for
appellant M.L. (Robyn A. Veasey, Deputy Public
Defender, of counsel; Christopher Anthony Huling,
Designated Counsel, on the brief).
Joseph E. Krakora, Public Defender, attorney for
appellant L.N. (Robyn A. Veasey, Deputy Public
Defender, of counsel; Carol A. Weil, Designated
Counsel, on the brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Sookie Bae, Assistant Attorney General, of
counsel; Peter Damian Alvino, Deputy Attorney
General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minor (David Ben Valentin, Assistant
Deputy Public Defender, on the brief).
PER CURIAM
In these consolidated matters, a mother, M.L. (Melissa), and a father, L.N.
(Liam), appeal from a judgment terminating their parental rights to their son,
M.L. (Michael), and granting the Division of Child Protection and Permanency
(Division) guardianship, with the plan that the child be adopted by a foster
parent.1 Both parents argue that the Division failed to establish the four prongs
of the best interests of the child standard under N.J.S.A. 30:4C-15.1(a).
1
We use initials and fictitious names to protect privacy interests and the
confidentiality of the record. See R. 1:38-3(d)(12).
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Particularly, defendants focus on the requirements of the third prong, arguing
that the Division failed to provide appropriate services or consider alternatives
to terminating their parental rights. In the alternative, Melissa argues that the
family court did not make sufficiently detailed findings as required by Rule 1:7-
4(a) and, therefore, the matter should be remanded. Finally, Liam argues that
his due process rights and right to counsel were violated because he did not
receive notice of the proceedings until approximately seven months after
Michael was removed.
The Division and Michael's law guardian urge that we affirm and permit
Michael to be adopted. They argue that the family court correctly found all
prongs had been established by clear and convincing evidence and that it is in
Michael's best interest that he be adopted by the family that has raised and cared
for him for over three years. Having reviewed the record in light of the parties'
contentions and the applicable law, we affirm substantially for the reasons
explained by Judge Magali Francois in her oral opinion read into the record on
May 9, 2019.
I.
We discern the facts from the record developed at the two-day
guardianship trial held on October 29, 2018 and December 17, 2018. At trial,
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the Division introduced fifty exhibits and called two witnesses, a DCPP
caseworker and Dr. Robert Miller, a psychologist. Liam also testified and
introduced one exhibit. Melissa did not testify. Judge Francois detailed the
facts and evidence in her opinion. Accordingly, we need only summarize some
of the more relevant facts and procedural history.
Melissa has a history of mental health issues and instability. She has been
diagnosed with bipolar disorder and has a history of poor impulse control, anger
management problems, anxiety, and manic symptoms. In addition, Melissa has
cognitive limitations, and her IQ is forty-nine.
Liam has a history of substance abuse. He admitted that for over twenty
years he used marijuana daily and crack cocaine on an almost daily basis. He
has attended numerous treatment programs but has often failed to complete those
programs and has repeatedly relapsed into using illegal substances.
Melissa and Liam also have a history of instability in their relationship
and housing situation. In 2013, the Division removed their daughter from their
care. Thereafter, when the daughter was nine years old, they surrendered their
parental rights to that child, and she was adopted by Melissa's maternal uncle.
The daughter is not the subject of this matter. Instead, this appeal involves
Michael, who was born in January 2017.
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Shortly after Michael's birth, the hospital where Melissa gave birth
contacted the Division to report concerns about her untreated mental health
issues. That day, the Division initiated an investigation into the care and safety
of Michael. A Division worker interviewed Melissa at the hospital. Melissa
informed the Division that Liam was Michael's father but that she and Liam had
been separated because Liam did not want to be with her after she became
pregnant. She also told the worker that she did not know Liam's whereabouts.
Melissa also told the worker she had no concerns about her own mental
health but acknowledged that she had received mental health services. Melissa
also explained that she planned to stay with her sister and brother-in-law. When
the Division tried to assess that arrangement, however, the sister and brother-in-
law refused to cooperate with the Division. Melissa then threatened to kill
hospital staff and anyone else who tried to take Michael from her.
Concerned about Melissa's mental health, her emotional instability, and
Michael's safety, the Division conducted an emergent removal and assumed
custody of Michael. Thereafter, the family court approved that removal and
placed Michael in the custody of the Division. Because Liam could not be
located and Melissa's family had refused to cooperate with the Division, Michael
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was placed in an unrelated foster home. Michael has remained in that home for
the past three years and the foster mother is committed to adopting Michael.
Following Michael's removal, the Division provided Melissa with various
services. Those services focused on her mental health issues. In March 2017,
Dr. Miller conducted a psychological evaluation of Melissa. Dr. Miller was
already familiar with Melissa because he had evaluated her in 2015 in
connection with the situation involving Melissa's daughter. Dr. Miller
concluded that Melissa lacked motivation to treat her mental health issues and
she did not have a strong support system. Dr. Miller recommended that Melissa
only have supervised contact with Michael because she posed a risk to the child's
wellbeing.
In June and July 2017, Melissa was hospitalized three times due to
psychiatric issues. During those hospitalizations, Melissa denied that she had
mental health issues, stated that she was unwilling to take any medications, and
exhibited anger management issues.
Thereafter, Dr. Samaris Sostre conducted a psychiatric evaluation of
Melissa. Dr. Sostre confirmed Melissa's diagnosis of bipolar disorder. She
recommended that Melissa take an anti-psychotic drug, that she be given regular
psych evaluations to ensure treatment compliance, and that she be further
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evaluated. Dr. Sostre also noted that even if Melissa complied with her mental
health treatment, her limited cognitive abilities presented significant problems
for her ability to care for Michael.
There is no evidence that Melissa complied with Dr. Sostre's
recommendations. Instead, in December 2017, Melissa left New Jersey and
began living in North Carolina. While Melissa periodically returned to New
Jersey during the guardianship proceedings, she never established a stable living
situation that would be appropriate for Michael.
Meanwhile, the Division searched for and finally located Liam in June
2017. In August 2017, a paternity test confirmed that Liam was Michael's father.
Thereafter, the Division offered Liam various services, including substance
abuse treatment, parenting classes, and parenting time. Following evaluations,
Liam was recommended for various substance abuse treatment programs, but
was discharged or failed to complete most of those programs. In 2018, Liam
repeatedly tested positive for continued use of marijuana and cocaine.
In January and October 2018, Dr. Miller conducted psychological
evaluations of Liam. Liam admitted that he had a long history of using
marijuana and cocaine and he acknowledged "long periods of homelessness" due
to drug addiction. Liam also admitted that he had relapsed after attending
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treatment programs. In addition, Liam acknowledged a history of domestic
violence with Melissa.
Dr. Miller opined that Liam had made no progress between January and
October 2018. In that regard, Dr. Miller testified that Liam's psychological
health and substance abuse appeared to have worsened during that time.
Accordingly, Dr. Miller opined that Liam demonstrated a lack of insight into his
problems and remained at high risk of substance abuse relapse. Dr. Miller
concluded that Liam could not provide minimal parenting care for Michael.
Dr. Miller also conducted bonding evaluations, assessing the bond
between Liam and Michael and Michael and his foster mother. Dr. Miller
concluded that terminating the relationship between Michael and Liam would
not result in any immediate or enduring harm since there was a limited bond.
By contrast, Dr. Miller opined that Michael had a secure, strong, and positive
bond with his foster mother. In that regard, Dr. Miller opined that the foster
mother was Michael's psychological parent.
After hearing all the evidence, Judge Francois issued her decision on May
9, 2019. She found the testimony of the Division worker and Dr. Miller to be
candid and credible. She found Liam's testimony lacked candor. Judge Francois
then made detailed findings of fact and conclusions of law.
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Addressing prong one, Judge Francois found that Melissa and Liam posed
an immediate and substantial risk of harm to Michael. She noted that Melissa's
extensive history of untreated mental health issues combined with her lack of
awareness presented a risk to Michael because Melissa was unable to provide a
safe and suitable environment for her son. Concerning Liam, Judge Francois
found that Liam's failure to attend treatment programs for his substance abuse
posed a significant risk to Michael.
With respect to prong two, Judge Francois found that neither Melissa nor
Liam was willing to eliminate the risk of harm they posed to Michael. She found
that Melissa was unable to acknowledge her mental health issues and that she
had consistently refused treatment. Similarly, Liam had refused to address his
substance abuse issues and was unable to remain sober.
Turning to prong three, Judge Francois found that the Division had made
extensive efforts to provide services to help both parents. Judge Franco is also
found that the Division had made reasonable efforts to explore family
placements but had reasonably ruled out those potential family placements.
Finally, examining prong four, Judge Francois found clear and convincing
evidence that termination of Melissa's and Liam's parental rights would not do
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more harm than good. In making those findings, the Judge Francois relied on
the unrebutted and credible testimony of Dr. Miller.
II.
On appeal, Melissa and Liam argue that the trial court erred in terminating
their parental rights. As already noted, both parents challenge each of the four
prongs, but take particular exception to Judge Francois' findings on prongs three
and four. Melissa argues that Judge Francois failed to make a finding that no
alternative to termination of parental rights existed. She also challenges Judge
Francois' findings regarding the Division's efforts to place Michael with a family
member. Liam also challenges the Division's efforts to find an alternative to
termination. In addition, he contends that his due process rights were violated
because the Division did not find him earlier in the process. We are not
persuaded by any of these arguments.
A review of the record establishes that all of Judge Francois' findings
concerning the four prongs are supported by substantial, credible evidence. See
N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012) (quoting
N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)).
Moreover, Judge Francois correctly summarized the law and correctly applied
the law to her factual findings. See N.J. Div. of Child Prot. & Permanency v.
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P.O., 456 N.J. Super. 399, 407 (App. Div. 2018). Judge Francois appropriately
relied on the unrebutted testimony of Dr. Miller, who conducted several
evaluations and had a factual basis for his opinions. In that regard, our Supreme
Court has noted: "In a termination of parental rights trial, the evidence often
takes the form of expert . . . testimony by psychiatrists, psychologists, and other
mental health professionals." N.J. Div. of Child Prot. and Permanency v.
R.L.M., 236 N.J. 123, 146 (2018) (citing Lassiter v. Dep't of Soc. Servs., 452
U.S. 18, 30 (1981)).
Regarding prong three, Melissa and Liam argue that Judge Francois
improperly relied on embedded hearsay evidence in the Division's reports
regarding the resource mother's willingness to adopt. Initially it should be noted
that the evidence was not prejudicial because there is nothing in the record to
suggest that the resource mother was not willing to adopt Michael. Indeed,
neither Melissa nor Liam offered any evidence to the contrary. Moreover,
Melissa's and Liam's counsel did not properly object to the statement at trial.
Instead, on the first day of trial, Melissa's counsel objected to embedded hearsay
in the expert reports and the Division's contact sheets and requested that the
Division's records be authenticated. Liam's counsel joined in that objection and
stated that counsel would object to any additional hearsay statements as they
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arose. When the Division employee testified that the resource parent wished to
adopt, neither Melissa's nor Liam's counsel objected. Had counsel properly
raised their hearsay objections, "the Division could have taken steps to satisfy
any evidentiary requirements." M.C. III, 201 N.J. at 340 (quoting Brett, 144
N.J. at 503). Consequently, we discern no reversible error.
Melissa also argues that Judge Francois erred by finding prong four of the
best interests test without conducting a comparative bonding evaluation between
her and Michael. While a bonding evaluation is often helpful and necessary,
here it was not. Michael was removed from Melissa several days after his birth.
Thereafter, Melissa never made sustained efforts to form a bond with Michael.
The Division provided Melissa with regular opportunities to visit with Michael.
Melissa, however, missed twenty-two visits with Michael in 2017 and she only
attended one visit in 2018. Moreover, in late 2017 she left New Jersey to live
in North Carolina. Here, again, the Division offered her assistance in traveling
to and from North Carolina to facilitate visitation, but she did not take advantage
of those opportunities. Accordingly, Melissa was not prejudiced by the absence
of a bonding evaluation because there was no evidence to establish that Melissa
had bonded with Michael. Given those facts, the lack of a bonding evaluation
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is not a ground for a reversal. See N.J. Div. of Youth & Family Servs. v. B.G.S.,
291 N.J. Super. 582, 593 (App. Div. 1996).
Liam also argues for the first time on appeal that his due process rights
were violated because the Division failed to promptly locate him and failed to
immediately appoint counsel to represent him in the early stages of the
proceedings. In that regard, Liam argues that if he were provided more time to
seek out substance abuse treatment after Michael was removed, he might have
been able to be reunified with Michael. We generally do not consider arguments
that were not properly raised before the trial court. See State v. Robinson, 200
N.J. 1, 20 (2009) (quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234
(1973)).
Even if we were to consider these arguments, Liam offers no evidence to
suggest that the Division unduly delayed contacting him. Instead, the record
establishes that the Division was initially unable to locate Liam and contacted
Liam promptly once it had located him. Liam, moreover, was not prejudiced by
the Division's delay. He had approximately sixteen months to obtain appropriate
substance abuse treatment. Moreover, Liam's arguments regarding the removal
proceeding are moot. See N.J. Div. of Youth & Family Servs. v. A.P., 408 N.J.
Super. 252, 264 (App. Div. 2009) (holding that procedural defects in a Title
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Nine action are moot when a parent's due process rights are fully protected by a
Title Thirty action). Here, Liam was notified of the guardianship trial and was
represented by counsel at that trial. See Greenfield v. N.J. Dep't of Corrs., 382
N.J. Super. 254, 257–58 (App. Div. 2006) (citation omitted) ("An issue is moot
when the decision sought in a matter, when rendered, can have no practical effect
on the existing controversy.").
To the extent we have not discussed defendants' remaining arguments, it
is because they are without sufficient merit to warrant discussion in this written
opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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