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NOT FOR PUBLICATION WITHOUT THE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