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NOT FOR PUBLICATION WITHOUT THE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-0543-18T2
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
J.T.B.,
Defendant-Appellant.
___________________________
IN THE MATTER OF THE
GUARDIANSHIP OF J.M.R.B.,
a Minor.
___________________________
Submitted June 4, 2019 – Decided June 19, 2019
Before Judges Rothstadt and Natali.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Gloucester County,
Docket No. FG-08-0032-18.
Joseph E. Krakora, Public Defender, attorney for
appellant (Robyn A. Veasey, Deputy Public Defender,
of counsel; Lauren Derasmo, Designated Counsel, on
the briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Melissa Dutton Schaffer, Assistant
Attorney General, of counsel; Erica L. Sharp, Deputy
Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minor (Meredith Alexis Pollock, Deputy
Public Defender, of counsel and on the brief).
PER CURIAM
Defendant J.T.B. (John)1 appeals from the Family Part's September 18,
2018 Judgment of Guardianship terminating his parental rights to J.M.R.B.
(Jessica), who was eight years old at the time of the guardianship trial. We
affirm because we find substantial credible evidence in the record to support the
judge's determination.
The facts as developed at trial are summarized here. Defendant is the
biological father of Jessica, who was born in 2012. The Division of Child
Protection and Permanency (Division) first became involved with Jessica's
mother, D.M.D. (Denise), in September 2011 when she tested positive for
1
To protect privacy interests and for ease of reading, we use initials and
fictitious names for the parents and children. R. 1:38-3(d)(12).
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2
cocaine at a prenatal visit. Denise tested negative for cocaine at Jessica's birth,
and in June 2013, custody was returned to Denise and the case was closed.
The Division again became involved with Denise in October 2015, after
she had been hospitalized three times in one week and tested positive for various
drugs. At that point, P.T. (Pamela), Jessica's maternal great-aunt, was granted
temporary custody of Jessica. On April 22, 2016, Denise passed away, and on
May 2, 2016, John obtained custody of Jessica. Until then, Jessica had only
resided with Denise and Pamela. The Division closed its case in June of 2016.
In July of 2016, the Division received a referral from V.R. (Vivian), John's
partner, who stated that John and Jessica had moved into her home in May of
that year. Vivian suspected that John was using cocaine and stated that he had
committed acts of domestic violence against her and physically abused Jessica.
John had left Vivian's home with Jessica the night before and the two were
staying at a motel, which Division workers visited that day to speak to John
about the allegations in the referral, which John denied. Later that evening,
caseworkers and police officers returned to the motel and found Jessica asleep
alone in a third-floor room. John stated that his cousin was in the room caring
for Jessica, but officers did not see anyone else in the room and when asked,
Jessica said that only John had been watching her that day.
A-0543-18T2
3
As a result of this incident, the Division implemented a safety protection
plan (SPP). John identified his aunt and uncle, who agreed to act as supervisors.
The caseworker explained that John needed to be "supervised within sight and
sound at all times with [Jessica]" and that "at no time should [John] leave the
home alone with [Jessica] or be alone with [Jessica]." Five days later, the
Division learned that John and Jessica left the aunt and uncle's home. John's
aunt suspected that they returned to Vivian's home. Intake workers arrived at
Vivian's home later that evening and found John and Jessica there. John stated
that he was not aware that he had to remain at his aunt and uncle's home until
further notice from the Division. Due to the violation of the SPP, the Division
conducted a Dodd removal of Jessica on July 20, 2016. 2 The court upheld the
emergency removal and placed Jessica in Vivian's care and granted John
supervised visitation. The court ordered John to obtain stable housing, complete
substance abuse and parental capacity evaluations, and submit to random drug
screens.
In the months that followed, John tested positive on numerous occasions
for cocaine and alcohol and was never able to demonstrate a sustained period of
2
A Dodd removal is an emergent removal of a minor without a court order
pursuant to the Dodd Act, N.J.S.A. 9:6-8.21 to -8.82. N.J. Div. of Child Prot.
& Permanency v. T.U.B., 450 N.J. Super. 210, 215 n.2 (App. Div. 2017).
A-0543-18T2
4
sobriety. John was also largely noncompliant with services that the Division
offered. He missed several visitation dates with Jessica. His parental capacity
evaluation was rescheduled six times due to his failure to appear for
appointments, he failed to appear for ten substance abuse evaluations, and he
never attended substance abuse treatment as ordered.
In January 2017, Jessica was removed from Vivian's care and ultimately
placed with Pamela, based on John's request. In May 2017, John was warned
that noncompliance with services would result in the Division's permanency
plan recommendation to the court to change from reunification to adoption. The
caseworker reminded John that Jessica had been in placement since July of 2016,
there was only one month before the court hearing for permanency, and several
services had still not been completed.
On July 31, 2017, John attended a parenting capacity evaluation
performed by Dr. Meryl Udell. The doctor recommended parenting classes and
substance abuse treatment for John, and that reunification not be considered
until John demonstrated nine to twelve months of recovery.
On September 27, 2017, the court approved the Division's plan to
terminate John's parental rights followed by kinship legal guardian ship (KLG)
or adoption. Although John completed the parental capacity evaluation, he
A-0543-18T2
5
"continue[d] to test positive for cocaine and alcohol and has failed to complete
court-ordered substance abuse re-evaluation/treatment and parenting
education." He also lacked stable housing. On November 6, 2017, the Division
filed its Complaint for Guardianship.
In June 2018, Dr. James Loving performed a psychological evaluation of
John where John "flatly denied the allegations that ha[d] been made against him"
and "disputed every one of the incriminating details that [Dr. Loving] ha[d]
summarized from the records," including living apart from Jessica for long
periods of time, Vivian's allegations that resulted in the SPP, and failing to visit
with Jessica. John denied noncompliance with the Division's services except
because of practical reasons, such as his work schedule and a recent car
accident.3 Dr. Loving found that John gave the Division "no choice but to err in
the direction of safety" because he posed risks as a parent and after a year of the
Division's involvement, he was "essentially at 'square one' in terms of embarking
on services that could help him assess his problem areas and then address them."
Dr. Loving concluded that John had a "dismal prognosis" for complying with
3
Notably, John never substantiated his excuses with any documents such as
police reports about the accident or medical reports about his injuries or
treatment that prevented him from complying with services and visitation.
A-0543-18T2
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services in the future and was "not likely to provide a safe, stable home for
[Jessica] in the foreseeable future."
Dr. Loving also performed bonding evaluations between Jessica and both
John and Pamela. In his findings, he noted that Jessica had only lived under
John's primary care for three months, while she had spent several lengthy
periods with Pamela, who "has arguably been the most constant and recurring
parent figure [Jessica] has known." Although Dr. Loving observed that J essica
had a strong attachment to both John and Pamela, he opined that if John's
parental rights were terminated, it would "place [Jessica] at only mild or low
risk for long-term emotional harm," as she "has spent the majority of her young
lifetime outside the primary care of her father, so this outcome would not
represent a significant or meaningful change to her." According to Dr. Loving,
Pamela would be able to mitigate this low risk of emotional harm. However, if
Jessica were removed from Pamela's care, the "move and associated loss and
disruption would place her at a rather high risk for long-term emotional harm,"
especially considering the early loss of her mother. Dr. Loving's opinion was
that John would not be able to mitigate this risk of harm.
At the 2018 guardianship trial, Diana Blocker, the assigned caseworker,
and Dr. Loving testified for the Division. Blocker stated that John completed a
A-0543-18T2
7
substance abuse evaluation in August 2016, after several referrals and
appointments, and completed two hair follicle tests, both of which were positive
for cocaine. Blocker testified that John did not complete parenting classes, had
not been able to demonstrate a sustained period of sobriety, and had
demonstrated "[m]inimal compliance at best" with urine drug screens. John's
compliance with Division-supervised visitation was "[s]poradic." As of that
date, John had not adequately addressed the risk of harm that led to Jessica's
removal or the Division's concerns regarding substance abuse or parenting. As
to John's ability to care for Jessica, Blocker stated that
right now, we just have no evidence that anything has
changed. All the services that we've tried to provide
have not been completed, so therefore we have no
baseline to see what progress has been made at this
point. [John] is inconsistent with his contact with
J[essica], so we don't even have that to go on. And it's
just we're not sure if any of the issues that led to her
removal have been officially remedied at this point.
When asked whether it seemed like any of those issues would be remedied in
the foreseeable future, Blocker stated that she "ha[d] no indication that they
would be." Blocker contended that Jessica desired to remain with Pamela and
feels safe in Pamela's home. Additionally, "as long as they know that [John] is
sober and he's a safe person, a safe caregiver, [Pamela and her family] would be
willing to maintain contact even if they adopt[.]"
A-0543-18T2
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Dr. Loving reiterated that John maintained custody of Jessica for only
three months and that she had spent most of her life residing with Pamela. Dr.
Loving noted John's noncompliance with the services offered to him and
"intermittent or sporadic" drug use since Jessica's removal. Dr. Loving
concluded to a reasonable degree of psychological certainty that: (1) John
exhibits no signs of a major mental health issue, other than substance abuse, and
has no intellectual limitations that would stand in the way of parenting; (2) John
poses a risk in terms of substance abuse, specifically as to cocaine; and (3) there
are other areas of potential risk, including child abuse and domestic violence,
which "may or may not be barriers to safe reunification" but "the Division has
not been able to assess fully and rule out because of [John's] non-cooperation
and his lack of candor over the past two years." Like Blocker, Dr. Loving saw
John "as being basically at square one . . . in terms of reunification efforts,
having not completed any services to help ensure that he has addressed whatever
substance abuse problem he has and . . . to make sure those other areas are not
barriers to reunification." Defendant did not testify or call any witnesses.
After considering the testimony and documents admitted into evidence,
the trial court judge entered the guardianship judgment that ordered termination
of defendant's parental rights. In her oral decision placed on the record on
A-0543-18T2
9
September 18, 2018 and September 20, 2018, the judge found that the Division
had proven all four prongs of the best interests of the child test, N.J.S.A. 30:4C-
15.1(a), and that termination of defendant's parental rights was in Jessica's best
interests.
The judge found that prong one was satisfied by John leaving Jessica alone
in the motel room; later violating the SPP, which created a "clear" risk of harm
to Jessica; the allegations of domestic violence between John and Vivian; and
John's unabated drug abuse. The judge found that the Division proved prong
two because John "never took the need for services seriously." He failed to
complete any assessments or treatments aimed at addressing his substance abuse
and parenting issues, and frequently missed scheduled visits.
Regarding prong three, the judge found that "the Division's efforts were
very reasonable in this matter." The Division "ha[d] a very good initial plan"
that included multiple referrals for the services John required. In terms of
exploring other alternatives, the judge stated that Pamela "is somebody [John]
wanted and requested the Division to look at twice," and that the Division
considered KLG.
The judge found the fourth prong to be proven based on Dr. Loving's
unrefuted conclusion from his bonding evaluations that Jessica would not suffer
A-0543-18T2
10
more harm than good as a result of termination and that Jessica shared a very
close, loving bond with Pamela. The judge also noted that Jessica's exhibited
"resilience is already grounded on what her aunt has done to care for" her, and
that Pamela supports Jessica visiting with John.
On appeal, defendant argues the following points:
POINT I
THE APPELLATE DIVISION MUST REVERSE
THE JUDGMENT OF GUARDIANSHIP BECAUSE
DCPP FAILED TO PROVE THAT THE FATHER'S
RELATIONSHIP WITH HIS CHILD WAS
HARMFUL NOR THAT TERMINATION OF
PARENTAL RIGHTS AND ADOPTION BY THE
MATERNAL GREAT AUNT WOULD SERVE THE
CHILD'S BEST INTERESTS.
A. J.T.B. HAS NOT HARMED HIS CHILD
WITHIN THE MEANING OF N.J.S.A. 30:4C-
15.1(a)(1).
B. THE TRIAL COURT'S DECISION
THAT THE SECOND PRONG OF THE STATUTE
WAS SATISFIED WAS NOT SUPPORTED BY
SUBSTANTIAL, CREDIBLE EVIDENCE.
C. THE RECORD DOES NOT CONTAIN
SUFFICIENT EVIDENCE TO SUPPORT A
FINDING THAT DCPP MET ITS BURDEN OF
PROOF UNDER THE THIRD PRONG OF THE
STATUTE.
A-0543-18T2
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1. DCPP MADE NO EFFORT TO
OFFER SERVICES IN PENNSYLVANIA WHERE
J.T.B. RESIDED.
2. THE TRIAL COURT DID NOT
PROPERLY CONSIDER ALTERNATIVES TO
TERMINATION OF J.T.B.'S PARENTAL RIGHTS.
D. THE CONCLUSION THAT
TERMINATION WOULD NOT DO MORE HARM
THAN GOOD WAS NOT SUPPORTED BY THE
EVIDENCE.
On appeal, our review of the trial judge's decision is limited. We defer to
her expertise as a Family Part judge, Cesare v. Cesare, 154 N.J. 394, 412 (1998),
and we are bound by her 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)).
Parents have a constitutionally protected right to the care, custody, and
control of their children. Santosky v. Kramer, 455 U.S. 745, 753 (1982). "The
rights to conceive and to raise one's children have been deemed 'essential,' 'basic
civil rights . . . ,' and 'rights far more precious . . . than property rights.'" Stanley
v. Illinois, 405 U.S. 645, 651 (1972) (alterations in original) (citations omitted).
"[T]he preservation and strengthening of family life is a matter of public concern
A-0543-18T2
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as being in the interests of the general welfare . . . ." N.J.S.A. 30:4C-1(a); see
also In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999).
The constitutional right to the parental relationship, however, is not
absolute. K.H.O., 161 N.J. at 347. At times, a parent's interest must yield to the
State's obligation to protect children from harm. N.J. Div. of Youth & Family
Servs. v. G.M., 198 N.J. 382, 397 (2009); In re Guardianship of J.C., 129 N.J.
1, 10 (1992). To effectuate these concerns, the Legislature codified a test for
determining whether a parent's rights must be terminated in the child's best
interests. N.J.S.A. 30:4C-15.1(a) requires that the Division prove by clear and
convincing evidence the following four prongs:
(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 considered
alternatives to termination of parental rights; and
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(4) Termination of parental rights will not do more
harm than good.
See also N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11
(1986).
Applying these guiding principles, we conclude from our review of the
record that the trial judge's factual findings are fully supported by the evidence
and, in light of those facts, her legal conclusions are unassailable. We also
conclude that defendant's arguments challenging the judge's determinations are
without sufficient merit to warrant discussion in a written opinion. R. 2:11-
3(e)(1)(E).
Affirmed.
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