DCPP VS. K.B. AND P.G. IN THE MATTER OF THE GUARDIANSHIP OF G.B.(FG-19-0028-15, SUSSEX 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NOT FOR PUBLICATION WITHOUT THE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-3767-15T2

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

Plaintiff-Respondent,
v.

K.B.,1

Defendant-Appellant,

and

P.G.,

Defendant.
_________________________________

IN THE MATTER OF THE GUARDIANSHIP
OF G.B.,

Minor.
_________________________________

Submitted March 8, 2017 – Decided August 31, 2017

Before Judges Fuentes, Simonelli and Gooden
Brown.

1
Pursuant to Rule 1:38-3(d)(12), we use initials to protect the
confidentiality of the parties in these proceedings.
 On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Sussex County,
Docket No. FG-19-0028-15.

Joseph E. Krakora, Public Defender, attorney
for appellant (Carol A. Weil, Designated
Counsel, on the briefs).

Christopher S. Porrino, Attorney General,
attorney for respondent (Andrea M. Silkowitz,
Assistant Attorney General, of counsel;
Victoria Almeida Galinski, Deputy Attorney
General, on the brief).

Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minor (Charles
Ouslander, Designated Counsel, on the brief).

PER CURIAM

Defendant K.B. is the biological mother of a nine-year-old

girl identified here as G.B. Defendant appeals from the Family

Part's Judgment of Guardianship terminating her parental rights

to her daughter. We affirm.

It is undisputed that defendant has a severe and chronic

substance abuse problem involving prescription opiate-based

medication, heroin, and cocaine. In response to the risk of

imminent harm defendant's addiction posed to G.B., the Division

of Child Protection and Permanency (Division) executed an

emergency Dodd removal2 of the child on April 10, 2014. On April

2
"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

2 A-3767-15T2
14, 2014, the Division filed a Verified Complaint and Order to

Show Cause (OTSC) in the Family Part against defendant and the

child's biological father, P.G., based on evidence showing that

defendant's addiction was causing the child to be abused and

neglected within the meaning of N.J.S.A. 9:6-8.21c(4).

Specifically, a Division investigation discovered the child was

not properly attended and exhibited signs of neglect in the form

of poor hygiene, had been excessively absent or tardy to school,

and displayed inappropriate aggressive behavior.

The Family Part found the Division's decision to execute an

emergency Dodd removal of G.B. under these circumstances was

appropriate. The court found defendant's drug use while G.B. was

in her custody placed the child's life in imminent danger and

compromised her health and safety. The court awarded the Division

temporary custody of G.B. and permitted defendant to have

supervised visits. P.G., did not attend the OTSC hearing and was

not granted visitation rights.3

Act was authored by former Senate President Frank J. 'Pat' Dodd
in 1974." See N.J. Div. of Youth & Family Servs. v. P.W.R., 205
N.J. 17, 26 n.11 (2011) (quoting N.J. Div. of Youth & Family Servs.
v. N.S., 412 N.J. Super. 593, 609 n.2 (App. Div. 2010)).
3
P.G. did not attend any of the hearings involving this case. On
December 11, 2015, he voluntarily surrendered his parental rights
to his daughter, G.B. He is not part of this appeal.

3 A-3767-15T2
 On May 22, 2014, the return date of the OTSC, the Family Part

ordered defendant to submit to psychological and substance abuse

evaluations and attend psychotherapy sessions. The court also

continued its previous order awarding temporary custody of G.B.

to the Division. The next hearing connected to this Title 9

litigation took place on June 30, 2014. On that date, the court

found defendant noncompliant with its order requiring her to submit

to psychological and substance abuse evaluations and attend and

participate in psychotherapy. Furthermore, because she had

previously tested positive for oxycodone, the court ordered

defendant to provide medical evidence authorizing her use of this

powerful opiate-based medication. The court directed the Division

to arrange for G.B. to participate in therapy to help her address

and reduce her aggressive behavior. Finally, in response to G.B.'s

request, the court barred her maternal grandfather, A.B.,4 from

having any contact with her.

On August 8, 2014, defendant waived her rights to a fact-

finding hearing under N.J.S.A. 9:6-8.44 and knowingly and

voluntarily stipulated that she had taken opiate-based medication

without a prescription from a physician. Defendant admitted that

4
The Division had previously substantiated A.B. for abuse after
he allegedly held a knife in a threatening fashion while arguing
with K.B.

4 A-3767-15T2
she was under the influence of this narcotic medication while she

had custody of G.B., and thus placed the child at substantial risk

of imminent harm. With respect to her ethnic and cultural

heritage, defendant stated under oath that neither she nor the

child's father was "an enrolled member of an American Indian tribe

or eligible to be an enrolled member[.]"5

At a permanency hearing conducted on March 4, 2015, the Family

Part found the Division's plan for termination of defendant's

parental rights to G.B. was an appropriate and acceptable goal

under the circumstances. The court found the Division provided

defendant with reasonable services to address and treat her

addiction, including psychological evaluations, random drug

screens, and domestic violence services. Despite this, defendant

had not made meaningful progress in dealing with her substance

abuse problem. On April 13, 2015, the Division filed a complaint

for guardianship of G.B. Consequently, the court dismissed the

Title 9 abuse and neglect complaint and directed the Division to

proceed with its Title 30 guardianship case.

5
In an order dated November 7, 2016, this court granted the
Division's unopposed motion to supplement the appellate record
with respect to this issue. As a result, the record now contains
unrebutted evidence that the Division complied with the
requirements of the Indian Child Welfare Act. See 25 U.S.C.A. §§
1901–63. It is also established, by clear and convincing evidence,
that defendant was neither enrolled nor eligible to be enrolled
in a Native American tribe, specifically the Cherokee Nation.

5 A-3767-15T2
 Judge James A. Farber presided over the guardianship trial,

which was conducted over two non-sequential days on January 25,

2016 and April 25, 2016. Defense counsel notified defendant of

the date and time of both trial dates. Defendant arrived late for

the first trial date and did not attend the second date due to her

hospitalization in connection with her substance abuse problem.

However, defendant's attorney was present and advocated on her

behalf on both days. In lieu of describing in detail the evidence

the Division presented at the guardianship trial, we will

incorporate by reference Judge Farber's comprehensive factual

findings which are reflected in his oral decision delivered from

the bench on April 25, 2016. We will only briefly mention Judge

Farber's key findings in support of the termination of defendant's

parental rights to G.B.

The Division produced school records showing that on February

19, 2014, G.B.'s teacher reported G.B. was wearing "dirty and

unkempt clothes" that were too small for her. The teacher reported

she had "difficulty" contacting defendant or G.B.'s father about

the child's failure to complete homework assignments. During

this time period, G.B. had eighteen unexcused absences and was

tardy eleven times. In response to defendant's request, the school

administration switched G.B.'s schedule from morning to afternoon

sessions. However, this resulted in an increase in the number of

6 A-3767-15T2
unexcused absences. G.B. was also inappropriately physically

aggressive with other children in the school. Her behavioral

problems in this respect included "tripping, pushing, and pulling"

a handicapped child and "stealing other items." G.B. told her

teacher that "her mom sleeps a lot[]" and "drink[s] to the point

of intoxication."

Judge Farber noted defendant had stipulated that her

substance abuse problem had placed G.B. at risk of harm. The

Division's investigation revealed, and Judge Farber accepted as

credible, that G.B. witnessed defendant's drug use. Defendant was

arrested on September 22, 2014 for possession of heroin and

hypodermic needles. She admitted to using five to ten bags of

heroin per day. On December 2, 2014, the Division received a

report from St. Joseph's Medical Center that defendant had been

released from jail while she was thirty-two weeks pregnant.6

Defendant admitted to using heroin and appeared to be under the

influence at the time. Defendant tested positive for opiates

numerous times thereafter.

6
Defendant gave birth to her second child in January 2015. Her
pregnancy was high risk due to her continued use of heroin. The
child tested positive for opiates at birth. The Division took
custody of the infant. Defendant signed herself out of the
hospital against medical advice.

7 A-3767-15T2
 On September 24, 2015, psychologist Dr. Mark Singer conducted

a bonding evaluation with G.B. and defendant. Dr. Singer also

attempted to perform a psychological evaluation of defendant, but

was unable to complete it because defendant left the office without

completing the requisite personality test. Dr. Singer concluded

that G.B. continued to view defendant as a significant parental

figure. However, he opined that the child's attachment to her

mother under these circumstances was unhealthy. He did not

consider defendant to be a viable parental option.

Dr. Singer also conducted a bonding evaluation between G.B.

and her resource foster parents. He opined that G.B. had formed

a healthy relationship with them and had acknowledged them as her

caregivers. According to Dr. Singer, this acknowledgement creates

"the foundation for a meaningful parent-child attachment." Dr.

Singer noted that G.B.'s feelings about defendant had evolved.

Although she initially viewed a permanent separation from her

mother as a negative event, current data indicates that her

relationship with her foster parents will buffer and mitigate this

emotional trauma.

In addition to Dr. Singer, the Division presented testimony

from Division caseworkers Renata Cuoco and Meghan Berkery, as well

as probation officer Andrea Halstead. Cuoco testified about the

child's experience with her foster parents. Cuoco also oversaw

8 A-3767-15T2
the services the Division provided to defendant to assist her in

addressing her substance abuse problem. Despite these efforts,

defendant continued to test positive for cocaine and opiate-based

medications, including morphine and oxycodone. Defendant was

discharged from Lennard Clinic, Inc. and Morris County After Care

Center for failing to follow the treatment modalities offered at

these facilities. Caseworker Berkery's testimony corroborated

Cuoco's account of the Division's interactions with defendant.

"Permanent termination of parental rights is the ultimate

intrusion on the right to raise a child." N.J. Dep't of Children

& Families, Div. of Youth & Family Servs. v. A.L., 213 N.J. 1, 25

(2013). To justify termination of parental rights, the Division

must establish:

(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.
Such harm may include evidence that separating
the child from his resource family parents
would cause serious and enduring emotional or
psychological harm to the child;

(3) The [D]ivision 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 the court has

9 A-3767-15T2
 considered alternatives to termination of
parental rights; and

(4) Termination of parental rights will not
do more harm than good.

[N.J.S.A. 30:4C-15.1a.]

The Supreme Court has made clear that these four prongs are

not "'discrete and separate,' but 'relate to and overlap with one

another to provide a comprehensive standard that identifies a

child's best interests.'" N.J. Div. of Youth & Family Servs. v.

G.L., 191 N.J. 596, 606–07 (2007) (quoting In re Guardianship of

K.H.O., 161 N.J. 337, 348 (1999)). Here, Judge Farber found all

of the witnesses called by the Division credible. We are bound

to defer to these findings. See Cesare v. Cesare, 154 N.J. 394,

411–13 (1998).

Against these standards of review, we are satisfied Judge

Farber correctly applied the four-prong best interest standard to

find, by clear and convincing evidence, that terminating

defendant's parental rights will not do more harm than good to

G.B. Judge Farber emphasized Dr. Singer's testimony that

defendant's conduct "is destructive" to G.B. By contrast, the

child's foster parents have "become [her] psychological parents"

and "though there would be harm from severing the relationship

between mother and daughter," the foster parents could "mitigate

that harm[,] which would therefore not be severe or enduring."

10 A-3767-15T2
 The record is replete with unrebutted evidence that the

Division offered defendant services and afforded her multiple

opportunities to address her severe and chronic substance abuse

problem. The record shows defendant failed to take advantage of

these services and continued on a path of self-destruction.

Although the Division was unable to help defendant, it timely and

successfully intervened to rescue her daughter from her mother's

abuse and neglect, and thereafter found foster parents able and

willing to provide this child with a loving and nurturing

environment. The Law Guardian, who is charged with representing

G.B. in this appeal, also agrees that termination of defendant's

parental rights is in G.B.'s best interest.

We thus affirm substantially for the reasons expressed by

Judge Farber in his oral decision delivered from the bench on

April 25, 2016.

Affirmed.

11 A-3767-15T2