DCPP VS. L.A.G.-C. AND D.F.M.M., IN THE MATTER OF GUARDIANSHIP OF E.M.L.M.G. (FG-11-0029-19, MERCER 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NOT FOR PUBLICATION WITHOUT THE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-3722-19
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
L.A.G.-C., 1
Defendant-Appellant,
and
D.F.M.M,
Defendant.
_________________________
IN THE MATTER OF THE
GUARDIANSHIP OF
E.M.L.M.G., a minor.
_________________________
1
We use initials or pseudonyms to protect the privacy of the parties involved
in this appeal. R. 1:38-3(d)(12).
Argued May 12, 2021 – Decided June 28, 2021
Before Judges Fuentes, Rose and Firko.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Mercer County,
Docket No. FG-11-0029-19.
Ryan T. Clark, Designated Counsel, argued the cause
for appellant (Joseph E. Krakora, Public Defender,
attorney; Ryan T. Clark, on the briefs).
Nicholas Dolinsky, Deputy Attorney General, argued
the cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Jane C. Schuster, Assistant Attorney
General, of counsel; Nicholas Dolinsky, on the brief).
Todd Wilson, Designated Counsel, argued the cause for
minor (Joseph E. Krakora, Public Defender, Law
Guardian, attorney; Meredith Alexis Pollock, Deputy
Public Defender, of counsel; Todd Wilson, on the
brief).
PER CURIAM
Defendant L.A.G.-C. (Lora) is the biological mother of E.M.L.M.G.,
(Erica), a little girl born in November 2017. Defendant appeals from the
Judgment of Guardianship entered by the Family Part on May 18, 2020,
terminating her parental rights to her daughter. 2 Defendant argues the trial judge
2
The Family Part also terminated the parental rights of Erica's biological father
D.F.M.M. He did not independently challenge the court's judgment and is not a
party to this appeal.
2 A-3722-19
improperly permitted the Division of Child Protection and Permanency
(Division) to present hearsay evidence to satisfy, by clear and convincing
evidence, the grounds to terminate her parental rights under N.J.S.A. 30:4C-
15(a). We disagree and affirm.
I.
Erica is defendant's third child. Her first daughter, J.A.G., was born in
2014; her son R.J.A. was born in 2015. Both of these children are in the custody
of their biological father and neither are part of this appeal.
The Division's involvement in defendant's life began on May 18, 2016,
when a "reporter" alleged defendant had left her then two-year-old daughter
J.A.G and one-year-old son R.J.A. with a friend in a residence located on South
Clinton Avenue in Trenton. The reporter claimed "[t]he mother has been
prostituting herself . . . was fed up with the children and left . . . [them] with her
. . . friend; she left the birth certificates, health insurances and other documents
without any plans to return; and left no diapers or clothes." The friend "had to
leave the [S]tate" and left the children with the reporter's mother.
According to the Division's Investigation Summary, Investigator
Fitzgerald called the reporter to obtain more information about the children's
welfare. The woman who answered the phone explained that she had called the
3 A-3722-19
Division on her mother's behalf because her mother spoke only Spanish. The
reporter told Investigator Fitzgerald that her mother is married to defendant's
father. The children had been in the caller's mother's care for over two weeks.
Approximately an hour after this telephone call, Division Investigators
Fitzgerald and Chew responded to the location where the children were staying.
Defendant was present with the children when they arrived. Because these two
Investigators did not speak Spanish, Investigator Mercedes responded to the
home to assist with interpreting.
The children did not have any visible injuries or bruises and "appeared to
be clean and in good health at [the] time." The Investigation Summary further
indicated that defendant "did not appear to be under the influence of any
substances or alcohol[.]" She provided the Investigators with her social security
number, and denied having: (1) any physical or psychiatric problems; (2) any
current issues with or history of substance abuse; (3) any police involvement;
and (4) any prior history with the Division. Defendant told the Investigators
that the children's biological father was incarcerated at the time for domestic
violence because he was physically abusive. She obtained a temporary
restraining order against him, but "dropped it" shortly thereafter.
4 A-3722-19
Defendant was living with her brother and his fiancée at the time the
Division investigated these allegations. She "denied that she told anyone that
she didn't want her children or was fed up." She also denied "that she was
prostituting" herself. Although she was unemployed, she was actively seeking
permanent employment. In the meantime, she received public assistance in the
form of $500 per month from the Supplemental Nutrition Assistance Program
(SNAP) and $400 per month from the Temporary Assistance for Needy Families
(TANF). 3 The Summary Report noted that defendant claimed "her brother
agreed to care for his niece and nephew until his sister can get her own place or
when their father is released from jail."
Defendant's brother told the Investigators that although she did not live
with him, defendant came to visit the children and buy them food. The Summary
Report's lengthy, well-documented analysis concluded on July 25, 2016, more
than three months after the Division's initial response. It determined that the
allegations of "Physical Abuse-Substantial Risk of Physical Injury/Environment
Injurious to Health and Welfare" against defendant concerning her then two
infant children were "[n]ot [e]stablished."
3
See Work First New Jersey Act, N.J.S.A. 44:10-55 to -70.
5 A-3722-19
On August 13, 2016, nineteen days after the Division completed its
investigation and reached its final findings related to the May 18, 2016 incident,
defendant brought her infant son to the emergency room of a hospital because
he was having difficulty breathing allegedly due to aspirating milk. Division
caseworker Fabiola Herrera testified at the guardianship trial that the child was
admitted and remained hospitalized for three days. Herrera testified that the boy
"had to be transferred to [the Children's Hospital of Philadelphia] . . . because
he had broken ribs [and] bruises that were healing at different stages.
[Defendant] was not able to provide an explanation of how that happened."
Division records noted the boy "was severely dehydrated and still having
breathing difficulties." He had visible "bruising on both of his arms." Defendant
told the hospital staff that three days earlier she "grabbed the child too hard
because he was falling and she was afraid that he was going to hit his head."
Her efforts proved to be ineffective because the child "sustained two small
bumps on his head." According to the Division report, the boy's aunt arrived at
the hospital shortly after defendant. The aunt told the Division caseworker that
she suspected defendant's paramour D.F.M.M. was physically abusing the
children. After further investigation, the Division concluded D.F.M.M. placed
defendant's daughter J.A.G., and son R.J.A. "at risk of harm." With respect to
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R.J.A., the Division found D.F.M.M. neglected him by not seeking timely
medical attention and did not inform defendant of the incident that caused the
child's injuries.
The Division ultimately found sufficient evidence to conclude defendant
neglected the children "due to her inconsistent testimonies on who may have
hurt her child[.]" On December 5, 2016, the Division removed the children from
defendant's care and placed them in non-relative resource homes. Caseworker
Herrera addressed this issue as part of her testimony at the guardianship trial:
[I]t was determined that the kids were going to be
removed because [defendant] was not able to provide
an explanation of how [the injuries] happened. It was
[defendant who] reported to the Division that she was
at work when this happened. [D.F.M.M.] was watching
[R.J.A.]. And when she came home there were
concerns that he was not able to breath[e]. And that's
how he end[ed] up at the hospital.
In February 2018, the Division placed both children in the custody of their
biological father. As Caseworker Herrera explained, the biological father
completed services. He was able to secure stable
housing. The visits that were taking place at the time
were appropriate. He . . . remediated . . . the concerns
that the Division had when the removal happened.
Right after he was released from jail he engaged in
parenting services, anger management.
7 A-3722-19
Although defendant attended Division-sponsored parenting classes, her
housing situation remained unstable. She also continued her romantic
relationship with D.F.M.M., notwithstanding his failure to comply with any of
the services ordered by the court.
II.
We next describe how defendant's activities led to the termination of her
parental rights of her third child. The day after defendant gave birth to Erica in
November 2017, Division caseworker Carmen Gonzalez responded to the
hospital and spoke to the nurse who was present at the time. The nurse reported
"'the birth was vaginal, last night . . . at 7 p.m.' The baby girl weighed [nine
pounds and one ounce]." Defendant was breastfeeding the baby. The only
person who had come to visit up to that point was defendant's paramour
D.F.M.M., the baby's biological father.
Caseworker Gonzalez interviewed both parents to ascertain their current
financial status and what plans they had for the care of their newly born
daughter. Both parents said they did not have any money to buy diapers or any
other necessities associated with the care of an infant. Defendant was
unemployed and D.F.M.M. claimed he earned $3,000 per month working "in a
roofing company for his friends." However, he did not have any money because,
8 A-3722-19
two months earlier, he paid for his grandmother's airfare to fly from their native
country, and visit him. He did not respond when Caseworker Gonzalez asked
him why he did not save this money in anticipation of the baby's birth.
At caseworker Gonzalez's request, D.F.M.M. left the room to allow her to
speak privately with defendant. Defendant told Gonzalez that she was expecting
to receive $300 from her father "to help with rent," but she had been unable to
communicate with him since a hurricane struck Puerto Rico. 4 With respect to
domestic violence, the Division's contact sheet shows defendant assured
caseworker Gonzalez that D.F.M.M. had "never hit [her]." She wanted him to
be a part of the baby's life now that they were together.
Caseworker Gonzalez instructed the nurse and the hospital social worker
"to not have the baby go home until [the Division] come[s] tomorrow." On
November 3, 2017, when Erica was just three days old, the Division executed
an emergency Dodd removal. 5 The contact sheet that documents the emergency
4
Pursuant to N.J.R.E. 201(b), we take judicial notice that on September 16,
2017, Hurricane Maria, a Category 5 storm, devastated the northeastern
Caribbean islands. Puerto Rico was particularly ravaged by this massive
hurricane.
5
A "Dodd removal" refers to the emergency removal of a child from the home
without a court order, pursuant to the Dodd Act, which, as amended, is found at
N.J.S.A. 9:6-8.21 to -8.82. The Act was authored by former Senate President
Frank J. "Pat" Dodd in 1974.
9 A-3722-19
removal of this healthy newborn girl was prepared by Division caseworker
Karen Marin and approved by Supervisor Kimberly Noel. The Division
provided the following explanation for taking this action:
Despite attempts by [the Division] to work with the
family regarding preparing for the arrival of [Erica], the
family was not prepared with the necessary supplies to
care for this child. The only items the family had were
a few outfits and a sheet set. This coupled with the
Established finding against [D.F.M.M.], for physical
abuse of [defendant's] son and his lack of compliance
in completing any services to address the underlying
issues, [the Division] was not able to ensure the safety
and welfare of this new baby.
Caseworker Marin also noted that defendant "was visibly upset and crying"
when she signed the Dodd removal form that informed her of the date and time
of the court hearing.
At the guardianship trial, the Deputy Attorney General (DAG) asked
caseworker Herrera to clarify for the judge what plans the Division had for baby
Erica at that time:
A. The Division removed [Erica] on November 3rd.
She was placed in a known-relative approved home
with the Division.
Q. And so what . . . was the plan with respect to [Erica]?
A. At the time the plan was reunification with
[defendant] and [D.F.M.M.].
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Q. What did the Division do . . . to attempt to execute
this plan?
A. There were services that were court[-]ordered at the
removal hearing. [Defendant] was court[-]ordered to
do a psychological evaluation, engage in parenting
classes, supervised visitation. And any
recommendations by the psychological [evaluation].
And [D.F.M.M.] was part of the previous -- was part of
the litigation before [Erica] was born, but he requested
to be dismissed in May of 2017 because he said he was
not the biological parent to either child. And he was
dismissed from that litigation. So there were services
that he was already . . . court[-]ordered to do before
[Erica] was born. So when [Erica] was born he was
required to do services in order for the Division to . . .
move forward with the reunification plan.
At the start of December 2017, the Division referred both defendant and
D.F.M.M. for psychological evaluations to determine the type of mental health
services needed to help them care for their infant daughter. At the start of 2018,
the Division arranged for them to attend parenting classes at the Mercer County
Hispanic Association (MCHA). They received in-home parenting classes and
had supervised visitation with Erica. The psychologist recommended both
couple's counseling and individual counseling.
Individual counseling was provided as a form of intervention services
through Catholic Charites. This organization did not require insurance,
employed Spanish-speaking staff, and was a "walk-in," with no prior
11 A-3722-19
appointment necessary. Caseworker Herrera first provided defendant and
D.F.M.M. with information about Catholic Charites in the beginning of March
2018. D.F.M.M. did not participate. Defendant began attending these services
three months later in June 2018. Catholic Charities referred her to Millhill
services for individual counseling and anger management.
Defendant did not consistently participate in these services. The agencies
involved ultimately notified the Division of her lack of progress. Caseworker
Herrera testified:
I called to check up how [defendant] was doing. But
on October 30th . . . 201[8], they notified me that she
was about to be terminated because of her low level of
compliance with the service. By then they were not
able to come up with a treatment plan for her because
she was not really engaged in services.
Herrera contacted defendant and explained to her that if she missed her
October 30, 2018, appointment, she was going to lose this opportunity to
improve her life and regain custody of Erica. Herrera told her that "because of
the limited Spanish-speaking relations, she was going to be put on a waiting list
and that was not going to be beneficial because, basically, she was going to be
without a service for a period of time." At that time, defendant was homeless
and unemployed; her relationship with her other two children was not going
well; and despite her denials, she remained romantically involved with Erica's
12 A-3722-19
biological father D.F.M.M., a man who had been emotionally destructive to her
and physically abusive to her two other children.
The Division also presented the testimony of Karen Garcia, an adoption
caseworker, who works "towards the goal of adoption but also concurrently
work[s] towards reunification." Garcia explained that this seemingly
oxymoronic mission requires her to facilitate the adoption of a child who has
been placed in a resource home of a family that may or may not be related to the
biological parents, while at the same time providing services to those biological
parents who may still be capable of turning "their case around."
Garcia testified that she first met defendant in December 2018, while the
latter was working at Popeye's. Garcia testified that defendant quit this job
approximately two weeks thereafter and told her she was "leaving for Puerto
Rico in December" 2018. Consistent with her dual mission, Garcia arranged for
defendant to undergo an updated psychological evaluation in February 2019,
and referred her to parenting classes at Family Growth. This prompted the
following exchange at trial:
Q. We heard some testimony yesterday that there have
already been other parenting courses, the Mercer
County Hispanic Association courses and then courses
at Legacy Treatment Services. Why was she being
referred for yet another treatment provider . . . or
parenting program?
13 A-3722-19
A. So, I had contacted [the counselor at Legacy Center]
in February of 2019 just to kind of get some clarity.
She had told me that [defendant] did complete
parenting classes through [MCHA] but they weren't
effective. Apparently she couldn't prepare the [baby's
milk] bottle properly and she had unrealistic
expectations for [Erica].
So they recommended her for the, the Milestone
Developmental Program, which she did complete. And
then they recommended her for the STEP Program,
which is their parenting classes, but she didn't attend
any of the sessions. So, once, once she was discharged
from Legacy, one of the recommendations was that she
attend parenting classes. So then that's when I referred
her to Family Growth.
According to Garcia, defendant "was going through a hard time" in April
2019. She went to Puerto Rico to be with her "very sick" father and stayed there
until he died more than a month later. When she returned to New Jersey in May
2019, she had been discharged from the parenting skills program at Family
Growth. In response to Garcia's suggestion, defendant re-enrolled in the
program in June 2019. By September 18, 2019, the third day of the
Guardianship trial, defendant had not completed the parenting skills program.
Garcia made clear, however, that the program staff was still willing to work with
her: "they didn't discharge her. They never mentioned anything about potentially
discharging her. I feel like they were pretty understanding with her father's
situation."
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Between January 2019 and August 2019, defendant's employment was at
best sporadic. After she left her job at Popeye's in December 2018, she remained
unemployed until May 2019, when she began working for a cleaning company.
She left that job a month later and remained unemployed until she began
working as a cashier at a grocery store in August 2019. Although defendant
produced a weekly paystub showing she worked forty-two hours one week,
Garcia testified she was "not sure if she's working fulltime now."
With respect to housing, defendant resided at the Home Front shelter from
February 2018 until she secured a suitable apartment with the assistance of the
Board of Social Services in April 2019. Unfortunately, this arrangement proved
to be short lived. At a case management conference held on July 9, 2019, the
DAG represented to the court that defendant had not paid rent for the three
months, amounting to $2,895. On July 2, 2019, the Special Civil Part, landlord-
tenant court issued a warrant of removal that required defendant to vacate the
apartment on July 3, 2019, but stayed the execution of the warrant to September
2019. However, the Board of Social Services again intervened on defendant's
behalf and paid the entire rental arrears. Defendant eventually reduced her
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monthly rent obligation by subletting one of the bedrooms in the apartment to
another family. 6
The next phase of the guardianship trial focused on defendant's
relationship with Erica. In this context, the Division called Dr. Antonio Burr,
who was admitted as an expert witness in psychology without objection. In
addition to providing psychotherapy to private patients, his practice includes
cases referred by the Division for psychotherapy and reunification between
parents and children. At the Division's request, Dr. Burr conducted two
psychological evaluations of defendant, the first on February 1, 2019, and the
second on January 16, 2020.
Dr. Burr provided his initial findings and recommendations in a report
dated March 20, 2019. His task was "to assess [defendant's] mental status and
psychological state, as well as her attitude, capacity and disposition to provide
a stable home and primary parenting to [Erica] in a safe and stable home
environment free of substance abuse or domestic violence, according to
normative standards of care and protection." Mindful that defendant's primary
6
The record does not include a copy of defendant's lease. We note, however,
that subletting a room in an apartment is not commonly allowed by landlords or
sanctioned by municipal housing codes.
16 A-3722-19
language is Spanish, it is important to note that Dr. Burr conducted his
evaluations of defendant in Spanish, without an interpreter. 7
Dr. Burr found defendant's "mood was calm [and] her affect was full range
and appropriate to context." He also found no indication that her cognition and
affect were compromised by psychopathology. Although her insight "was very
limited and superficial . . . [h]er reasoning, social comprehension and judgment
were adequate overall." She admitted that her relationship with Erica's
biological father D.F.M.M., had been "very intense and very problematic." By
contrast, defendant told Dr. Burr that she "had been cooperative and in
compliance, and she is now ready to present herself separately[.]"
Despite what Dr. Burr characterized as her "compelling narrative," from
a clinical perspective, he opined that defendant exhibited "several problems
related to the current status of her rehabilitation . . . with substance abuse,
domestic violence, psychological treatment, visitation, and with her overall
ability to structure a stable living situation without major disruptions." Dr. Burr
next saw defendant on January 16, 2020, for a follow up clinical assessment. In
7
As part of the voir dire for his admission as an expert witness, Dr. Burr
revealed the following particular feature of his educational background: "I grew
up in Chile in South America where I graduated from high school and then I did
two years of law school. I didn't continue my law education because of political
circumstances and I moved to the United States where I was actually born."
17 A-3722-19
a report dated January 26, 2020, Dr. Burr made the following comments with
respect to her behavior:
While it is noted that [defendant] made significant
progress (since my first evaluation) in terms of her
having obtained housing and part-time employment,
and also on her attitude and demeanor in the way she
related to [Erica] during the bonding evaluation, there
are several areas of concern regarding the quality of her
functioning, with implications regarding reunification
and permanency.
These concerns relate to her poor skills to manage
stress, the matter of control of her anger and her
behavioral impulsiveness potentially, deriving in
domestic violence, her continued documented
substance abuse, and the matter of her poor
adaptiveness in terms of planning, problem solving and
decision making, all of which would impact on her
parenting of [Erica].
[Emphasis added.]
Dr. Burr reiterated these concerns when he testified at the guardianship
trial. He also noted defendant's erratic behavior with respect to her contacts
with Erica. His review of the Division's visitation logs indicated that her
attendance actually decreased in 2019. Between December 2017 to December
2018, she had forty-two scheduled visits, but attended only twenty-six times.
From February 2019 to December 2019, she attended seventeen out of forty-
eight visits. This constituted only thirty-five percent of the total available
18 A-3722-19
visitation opportunities. Dr. Burr found the incongruity between her professed
intentions and her actual performance revealed a troubling pattern of instability.
He explained:
[T]here is an issue that I believe, from a clinical point
of view, is fairly central and that is the matter of the
ability to regulate one's moods and affects in order to
engage in behaviors that are conducive to your purpose.
And in this case, clearly, this was not the case . . . . I
discussed with [defendant] the issue of planning for the
child were the child to be reunited with her.
....
[T]he context of that inquiry is that when the child was
removed at birth [defendant] was entirely unprepared
for the child. She did not have the minimum resources
-- diapers, a place to live . . . a [car] seat, anything . . .
to receive the child. And the Division considered that
sufficient cause to remove the child.
Two years later the question of how are you planning
[to meet] the . . . child['s] needs, again, [defendant]
presented . . . not a very elaborate plan which included,
you know, taking the child to childcare then . . . she
would hire somebody to pick the child from childcare,
take her to her home, the babysitter's home.
....
And [defendant], as we discussed it, saw that this was
not really a plan conducive to promote the stability of a
child; that she would have to rethink and she would
have to consider the matter further. And . . . she seemed
rather surprised that this would not be a plan because
she really hadn't thought about it.
19 A-3722-19
Dr. Burr opined that defendant did not have the ability to address these
problems and was not capable of coping with this stress. He found she did not
have the skills to manage her moods or address the issues he identified that
resulted from her relative inability to manage or regulate her moods or affects.
For these reasons, Dr. Burr did not support reunification between Erica and her
biological mother.
On the issue of bonding, Dr. Burr found defendant was affectionate but
passive and inactive. She essentially watched Erica during the visiting session
instead of initiating interactive contact with the child. Although Erica was
familiar with defendant, the attachment appeared to be derivative as opposed to
grounded in a genuine parent-child bond. Dr. Burr noted that defendant was
more active with Erica during the second bonding evaluation on January 16,
2020. She was affectionate and physically engaging. She sat on the carpet with
her toys and helped Erica play with them. Although the relationship was
affectionate this time and more positive, Dr. Burr did not find the type of strong
bond expected between a parent and child.
Dr. Burr's bonding evaluation between Erica and her foster parents was
noticeably different. He described Erica's foster parents as extremely attentive,
very caring and actively affectionate. Dr. Burr found the foster parents
20 A-3722-19
promoted a variety of age-appropriate developmental behavior, such as language
skills that included child-relevant sounds and words which they modeled for
Erica. Dr. Burr opined that Erica had bonded with the foster parents and they
had become her psychological parental figures. Without objection, Dr. Burr
testified that the foster resource parents expressed to him their desire to adopt
Erica.
Dr. Burr opined that defendant was not capable of providing Erica with a
stable and predictable home environment. This is illustrated in the following
responses to the DAG's questions:
Q. Do you have an opinion on whether [defendant] has
the skills necessary to mitigate any of the harm you
were discussing that, that could occur to the child if she
were removed from the current resource parents?
A. I don't . . . think she has the skills. I don't think
[defendant] -- although she's a very nice person[,] I
don't think she has the insight to understand what the
child would be going through. I don't think that she has
the necessary elaboration in her thinking to ameliorate
the harm the child would sustain if separated from these
foster parents with whom she has formed a very, very
significant bond.
The DAG also asked Dr. Burr whether he believed the foster parents had
the skills and sensitivity necessary to protect the child from any emotional
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trauma caused by the termination of defendant's parental rights. Dr. Burr opined
that the foster parents were prepared to meet this challenge:
A. Based on my observation of them in the bonding
evaluation, I do think that they have the skills, the
insight, the language, the . . . ability to articulate for the
child what . . . the parenting situation is. And I think
that in my experience, and I think in every situation of
adoption children will have questions. Whether they
have them now . . . it's not likely that [Erica] would
have questions now -- but in the future, as they develop,
as they grow into adults . . . who have been adopted
even in successful adoptions always have questions
about their parentage, why they weren't parented by
their biological parents, what happened. They want to
know the story.
And it is very, very important that the persons who have
adopted have that capacity to answer those questions,
to engage in that conversation . . . with the child.
Q. And do you believe that these resource parents have
the ability to engage with . . . the child?
A. I do.
The DAG also recalled caseworker Karen Garcia to document the various
family members and individuals associated with defendant the Division
contacted to determine whether any of them had an interest in taking care of
Erica. Caseworker Garcia described these documents as "rule out letters."
Q. What's a rule out letter?
22 A-3722-19
A. It's after we've reached out to a family member or a
friend, well, pretty much anybody that the client has
given us their name and phone number regarding
placing the child with them while the child is in our
custody. If they rule[] themselves out, they expressed
for any reason that they can't take care of the child then
we send out a rule out letter just explaining when we
had the conversation with them and their reasoning as
to why they're being ruled out after the conversation we
had with them.
Caseworker Garcia testified she contacted Erica's biological paternal
uncle H.M., and R.M., Erica's paternal grandmother and her paramour P.M., to
determine whether they wanted to be evaluated for Erica's possible placement
with them in Ecuador. None of these individuals expressed any interest in
assuming reasonability for Erica's care and safety. Caseworker Garcia also
testified concerning the results of defendant's substance abuse evaluation
conducted in November 2019. The Board of Social Services reportedly closed
defendant's case after she missed "two or three appointments." Four substance
abuse screenings of defendant's urine taken in January 2020 tested positive for
marijuana. The Division again referred her to outpatient treatment.
Defendant testified on February 5, 2020 at the Guardianship trial with the
assistance of a court-certified Spanish language interpreter. In response to her
attorney's questions, defendant stated that she had an apartment with a separate
room for Erica. She described it as "a big room. It's wide, big. It's decorated.
23 A-3722-19
It has her diapers, her belongings, a table for her to eat, plates. She has clothing."
She worked from three to nine o'clock but was willing to work part-time in order
to care for daughter. She also mentioned that she shared the apartment with a
man she described as her boyfriend. He knew that she wanted Erica to live in
the apartment and was willing to help her "financially" and with "transportation"
because he had a car.
On cross-examination, defendant clarified that she worked for a
supermarket for the past seven months. Before this job, she was unemployed
and fell three months behind on her rent. She avoided eviction with the
assistance of the Board of Social Services. Her boyfriend worked in the
supermarket's meat department.
III.
The judge who presided over the Guardianship trial issued a fifty-six-page
memorandum of opinion on May 18, 2020. The first forty pages of the
memorandum consists of a recitation of the testimony of the witnesses, a brief
description of some of the documents admitted at trial, a list of the twenty-nine
exhibits presented by the Division, followed by a list of the five exhibits
presented by the Law Guardian. The next eleven pages contain a description of
the four statutory prongs in N.J.S.A. 30:4C-15(a) and the cases that have
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reaffirmed the Division's obligation to prove, by clear and convincing evidence,
that termination of defendant's parental rights is warranted.
The judge's analysis of the case against defendant does not begin until
page forty-two. He wrote that prong one requires the Division to prove by clear
and convincing evidence that "[the] child's safety, health or development has
been or will continue to be endangered by the parental relationship." N.J.S.A.
30:4C-15.l(a)(l). Against this statutory standard, the judge made the following
finding:
Here, it is evident that [Erica's] safety, health or
development has been and will continue to be
endangered by the parental relationship with
[defendant]. [Defendant] did complete some of the
services that the Division required of her as evidenced
by the certificates of completion. That being said, she
never demonstrated sufficient stability to justify
[Erica's] return to her care. She had issues securing
stable housing, she was unable to maintain
employment, she frequently missed supervised visits
and/or failed to confirm them [twenty-four] hours in
advance, and her psychological evaluations showed
that she was unable to handle the stresses of everyday
life and parenting. Moreover, [defendant] repeatedly
abused marijuana in an attempt to cope with her stress,
and no testimony or evidence was offered during this
trial to prove that she recovered from her substance
abuse issues.
The second prong of the best interests' standard under N.J.S.A. 30:4c-15.
l(a)(2) relates to parental unfitness. The Division must prove, by clear and
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convincing evidence, that defendant is unwilling or unable to eliminate the harm
Erica faces if she is allowed to be in her care and custody. Alternatively, the
Division may prove that defendant is unwilling or unable to provide a safe and
stable home for this three-year-old child and delay in finding a permanent
placement will exacerbate her harm. In re Guardianship of K.H.O., 161 N.J.
337, 352 (1999). However, there is also a countervailing constitutional principle
that "'clearly favors keeping children with their natural parents and resolving
care and custody problems within the family.'" N.J. Div. of Child Prot. and
Permanency v. R.L.M., 236 N.J. 123, 144 (2018), (quoting N.J. Div. of Youth
& Family Servs. v. I.S., 202 N.J. 145, 165 (2010)).
The judge found the Division met its burden of proof related to parental
unfitness under N.J.S.A. 30:4c:15. l(a)(2).
[Defendant's] approach to this litigation and to her
relationship with her child demonstrated that she is
unable to eliminate the harm facing [Erica] and is
unable to provide a safe and stable home for her.
[Defendant] has a lengthy history with the Division and
had two children removed from her care prior to
[Erica]. Because of this, [defendant] was on notice from
the time that she was pregnant with [Erica] that she
would have to properly prepare for the baby's arrival or
she would likely be removed from her care. Upon
[Erica's] birth, [defendant] was not prepared, had no
money saved, and limited baby supplies. The Division
continued to assist [defendant] to help her reunify with
[Erica]. Although she did engage in some services, she
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ultimately failed to meaningfully and consistently
comply with Division requests and court orders,
[defendant] had a consistent pattern of missing
supervised visits, losing or failing to secure
employment, and abusing marijuana to cope with day-
to-day stressors.
Furthermore, a delay in securing permanency for
[Erica] will only add to her harm. Since birth, she has
been placed in one resource home. Her resource
parents have made clear to the Division that they are
willing to adopt her. A bonding evaluation concluded
that [Erica] identifies her resource parents as her real
parents.
The third prong requires the Division to make reasonable efforts to
provide services to help defendant correct the circumstances which led to Erica's
involuntary removal and placement outside the home. The court must consider
the alternatives to termination of parental rights. N.J.S.A. 30:4C-15.1(a)(3).
The United States Supreme Court has noted that this phase of the termination of
parental rights trial often requires expert testimony from mental health
professionals. See Lassiter v. Dep't of Soc. Servs., 452 U.S. 18, 30 (1981)
("[T]he ultimate issues with which a termination hearing deals are not always
simple . . . . Expert medical and psychiatric testimony, which few parents are
equipped to understand and fewer still to confute, is sometimes presented.")
Here, the trial judge found the Division proved by clear and convincing
evidence "that it made reasonable efforts to provide services to assist
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[defendant] in having [Erica] returned to her care." Dr. Burr's testimony
described at length the services made available to defendant. He also assessed
defendant's level of participation as well as the effectiveness of the various
programs intended to address her substance abuse problem and provide her with
basic parenting skills. Despite defendant's initial willingness to cooperate with
and participate in these services, Dr. Burr opined that she was unable to sustain
the required level of commitment.
The Division also investigated the possibility of placing Erica with
members of her paternal family as alternatives to termination of defendant's
parental rights. These efforts proved to be futile. The Division's mission is to
explore all possibilities while mindful that time is of the essence. Our Supreme
Court has made clear that in guardianship cases, "the child's need for
permanency and stability emerges as a central factor." K.H.O., 161 N.J. at 357.
Finally, under prong four, the judge must determine whether the
termination of parental rights will not do more harm than good. N.J.S.A. 30:4C-
15.1(a)(4). Here, the trial judge found the Division established, by clear and
convincing evidence, that termination of defendant's parental rights to Erica
would not do more harm than good. The judge noted that Dr. Burr's bonding
evaluations showed Erica emotionally bonded with her resource family and
28 A-3722-19
views the two parental figures as her true parents. By contrast, Dr. Burr opined
that defendant was unable to cope with the everyday stressors associated with
life and parenting responsibilities. The judge found Dr. Burr was a credible
witness and accepted his reports and testimony as competent evidence.
As an appellate court, our standard of review of a Family Part's order
terminating parental rights is limited. In re Guardianship of J.N.H., 172 N.J.
440, 472 (2002). We are bound to uphold the trial court's factual findings when
they are supported by adequate, substantial, and credible evidence. N.J. Div. of
Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008). We defer to the trial
court's credibility determinations "because it has the opportunity to make first-
hand credibility determinations about the witnesses who appear on the stand; it
has a 'feel of the case' that can never be realized by a review of the cold record."
Ibid. Finally, due to its specific jurisdiction, the Family Part has developed a
"special expertise in the field of domestic relations" that warrants deferential
review of matters predicated on factual findings. Cesare v. Cesare, 154 N.J.
394, 412-13 (1998).
In this light, we discern no legal basis to disturb the final Judgment of
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Guardianship entered by the Family Part terminating defendant's parental rights
to her biological daughter.
Affirmed.
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