DCPP VS. K.M. AND R.A. IN THE MATTER OF THE GUARDIANSHIP OF N.A. (FN-09-0304-16 AND FG-09-0137-17, HUDSON 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NOT FOR PUBLICATION WITHOUT THE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 NO. A-3133-16T2
A-0635-17T2

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

K.M.,

Defendant-Appellant,

and

R.A.,

Defendant.
_________________________________

IN THE MATTER OF N.A.,

Minor.
_________________________________

Submitted June 4, 2018 – Decided June 8, 2018

Before Judges Sabatino and Firko.

On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Hudson County,
Docket Nos. FN-09-0304-16 and FG-09-0137-17.
 Joseph E. Krakora, Public Defender, attorney
for appellant K.M. (Meghan K. Gulczynski,
Designated Counsel, on the briefs).

Gurbir S. Grewal, Attorney General, attorney
for respondent (Jason W. Rockwell, Assistant
Attorney General, of counsel; Kenneth M.
Cabot, Deputy Attorney General, on the brief
in A-3133-16; Ellen L. Buckwalter, Deputy
Attorney General, on the briefs in A-0635-17).

Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minor (Olivia Belfatto
Crisp, Assistant Deputy Public Defender, on
the briefs).

PER CURIAM

These related back-to-back appeals, which we consolidate for

purposes of this opinion, involve a two-year-old girl, N.A.,1 who

was born in February 2016. The child's birth mother is appellant

K.M. The child's birth father, R.A., has not appealed the rulings

of the trial court, including the termination of his own parental

rights.

I.

N.A. was born prematurely at thirty weeks, when her mother's

placenta erupted. The child received no prenatal care. She

weighed only three pounds and six ounces at birth and was placed

on a respirator at the hospital. She was diagnosed with abnormally

high bilirubin in her blood, and did not open her eyes for a period

1
Pursuant to Rule 1:38-3(d)(12), we use initials to protect the
privacy of the child and the other parties.

2 A-3133-16T2
of time. The mother tested positive for marijuana and cocaine at

birth, and cocaine was also found in the baby's system. The mother

admitted that she had used drugs through the last trimester of the

pregnancy, including the day before the child was born.

The mother had no stable housing or employment. She has a

long history of drug abuse and related incarcerations and

homelessness.

Notably, the mother did not visit the baby for the month when

she was in the Neonatal Intensive Care Unit, even though the

Division of Child Protection and Permanency contends it provided

her with bus tickets to enable such visitation. The mother claimed

that she planned to take care of the baby at a friend's house.

However, the Division's assigned caseworker did not find a bassinet

there, and the person living at the address provided by the mother

denied knowing the mother.

Once the newborn, N.A., was released from the hospital, the

Division soon conducted an emergency removal and placed her with

a resource parent. The resource parent has been the child's

ongoing caretaker since that time.

N.A. has special needs due to delays in her gross motor skills

and communication skills. N.A.'s resource parent is aware of her

needs and has cooperated with the therapy prescribed by the

Division to aid the child's development.

3 A-3133-16T2
 Appellant and R.A. previously had their parental rights

terminated in July 2016 with respect to their son, J.M. The son

had also tested positive for drugs at birth in April 2014. J.M.

has since been placed permanently with a paternal uncle. The

termination of both parents' rights as to J.M. was affirmed by

this court in a June 2017 unpublished opinion. N.J. Div. of Child

Prot. & Permanency v. K.M., No. A-5108-15 (App. Div. June 7, 2017)

(slip op. at 6).

The parents each have longstanding drug abuse issues. The

mother previously left the "Mommy and Me" caregiving program after

only three weeks with J.M. She has frequently moved and been

unable to maintain employment or steady housing. Most importantly,

she has never been able to overcome her drug dependency.

Throughout N.A.'s life, the mother has been recalcitrant and

difficult to locate. She continued to test positive for drugs on

multiple occasions after N.A.'s birth. Additionally, the mother's

visits with N.A. were infrequent and highly sporadic, except for

times when she was incarcerated. The mother failed to submit to

psychological and bonding evaluations until she was incarcerated.

She repeatedly failed to comply with substance abuse evaluations

during the litigation. In sum, the mother has failed to take

advantage of nearly all of the services offered to her by the

Division.

4 A-3133-16T2
 II.

Given these failures, the Division charged the mother with

child abuse and neglect under N.J.S.A. 9:6-8.21(c)(4)(b). A fact

finding hearing was held on September 22, 2016.

Judge Lois Lipton conducted the fact-finding hearing. She

found the sole testifying witness, Division caseworker Vivian

Acosta, to be credible. The judge expressly declined to rely on

a finding that the baby had suffered from drug withdrawal symptoms.

Nevertheless, she found that, although drug use can no longer be

a per se basis to find abuse and neglect, see N.J. Div. of Youth

& Family Servs. v. A.L., 213 N.J. 1, 23 (2013), the mother's

behavior and indifference to the child's needs were sufficient

additional factors, beyond the baby's positive drug screen, to

support a finding of abuse and neglect.

On appeal in the abuse or neglect case (A-3133-16), the mother

contends that the trial court unfairly penalized her for her

poverty and homelessness. She asserts there is no sufficient

corroborating evidence of the child suffering harm or withdrawal,

emphasizing that A.L. holds that drugs in a newborn's system cannot

be the sole basis for finding abuse or neglect. She argues there

was no proof of actual or likely harm to the child here, and that,

in essence, the court improperly shifted the burden of persuasion

5 A-3133-16T2
from the Division to her. She also complains that the Division

did not do enough to try to reunify the family.

Our review of Judge Lipton's findings is guided by well-

established standards. As the Supreme Court has underscored, the

purpose of Title 9 is "to protect children 'who have had serious

injury inflicted upon them' and make sure they are 'immediately

safeguarded from further injury and possible death.'" A.L., 213

N.J. at 18 (quoting N.J.S.A. 9:6-8.8(a)). "The law's 'paramount

concern' is the 'safety of the children,' and 'not the culpability

of parental conduct[.]'" Ibid. (internal citations omitted). "The

focus in abuse and neglect matters . . . is on promptly protecting

a child who has suffered harm or faces imminent danger." Ibid.

(citing N.J.S.A. 9:6-8.21(c)(4)).

A court's finding of abuse or neglect must be based on a

preponderance of the evidence when the proof is considered in its

totality. N.J.S.A. 9:6-8.46(b)(1). "[I]n child abuse and neglect

cases the elements of proof are synergistically related. Each

proven act of neglect has some effect on the child. One act may

be 'substantial' or the sum of many acts may be 'substantial.'"

N.J. Div. of Youth & Family Servs. v. C.H., 414 N.J. Super. 472,

481 (App. Div. 2010) (internal citations omitted). The Title 9

proof standard is less stringent than in guardianship cases for

the termination of parental rights, which must instead be proven

6 A-3133-16T2
by clear and convincing evidence. See N.J.S.A. 30:4C-15.1(a);

N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 554

(2014) (citation omitted) (recognizing the "clear and convincing"

evidence standard required for a termination case).

Abuse and neglect, as defined by N.J.S.A. 9:6-8.21(c), occurs

when:

a child whose physical, mental, or emotional
condition has been impaired or is in imminent
danger of becoming impaired as the result of
the failure of his parent or guardian . . .
to exercise a minimum degree of care . . . in
providing the child with proper supervision
or guardianship, by unreasonably inflicting or
allowing to be inflicted harm, or substantial
risk thereof, including the infliction of
excessive corporal punishment; or by any other
acts of a similarly serious nature requiring
the aid of the court . . . .

[N.J.S.A. 9:6-8.21(c)(4)(b).]

The statute does not require that the child experience actual

harm. N.J.S.A. 9:6-8.21(c)(4)(b); see also N.J. Div. of Youth &

Family Servs. v. F.M., 211 N.J. 420, 449 (2012) (explaining that

the Division need not wait until a child experiences an actual

injury) (citing In re Guardianship of D.M.H., 161 N.J. 365, 383

(1999) (stating that the court does not need to "wait to act until

a child is actually irreparably impaired by parental inattention

or neglect")). Instead, a child can be abused and neglected if

his or her physical, mental, or emotional condition has been

7 A-3133-16T2
"impaired or is in imminent danger of becoming impaired . . . ."

N.J.S.A. 9:6-8.21(c)(4). The Title 9 analysis is fact-sensitive,

and the court must consider the totality of the circumstances.

See N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 33

(2011). The primary focus of the statute is to preserve the safety

of the child. N.J.S.A. 9:6-8.8(a).

The Supreme Court has instructed that the abuse and neglect

standard under Title 9 is satisfied when the Division demonstrates

that a parent has failed to exercise a minimum degree of care.

See G.S. v. Dep't of Human Servs., 157 N.J. 161, 181 (1999)

(citations omitted). A "minimum degree of care" encompasses

conduct that was "grossly or wantonly negligent, but not

necessarily intentional." Id. at 178. Wanton negligence equates

to conduct that was done with the knowledge that injury is likely

to result. Ibid. A parent's action or inaction can rise to the

level of wanton negligence even if he or she did not intend to

cause injury. See id. at 179. The Court has recognized in this

regard that a parent should be liable for the foreseeable

consequences of his or her choices. See ibid.

A parent's long-term drug abuse can satisfy the statutory

test for abuse or neglect. To be sure, "'[N]ot all instances of

drug ingestion by a parent will substantiate a finding of abuse

or neglect.'" A.L., 213 N.J. at 24 (quoting N.J. Div. of Youth &

8 A-3133-16T2
Family Servs. v. V.T., 423 N.J. Super. 320, 332 (App. Div. 2011)).

However, ongoing irresponsible behavior by a drug-addicted parent,

and his or her failure to take advantage of services offered by

the Division that might help him or her overcome his or her

deficits, can suffice to meet the Division's burden of proof. See

N.J. Div. of Youth & Family Servs. v. L.M., 430 N.J. Super. 428,

444 (App. Div. 2013) (affirming finding of harm under first prong

of best interest standard based on the mother's "continued drug

use, lack of appropriate housing, and failure to attend

treatment").

Our review of the trial court's findings is limited. We must

defer to the factual findings of the Family Part if they are

sustained by "adequate, substantial, and credible evidence" in the

record. N.J. Div. of Child Prot. & Permanency v. N.B., 452 N.J.

Super. 513, 521 (App. Div. 2017) (citation omitted). In this

regard, we afford great deference to the trial judge's credibility

findings, as the judge had the first-hand opportunity to observe

the testimony when it was presented. Rova Farms Resort, Inc. v.

Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (citations

omitted). Thus, we specifically defer to Judge Lipton's finding

that caseworker Acosta, the sole testifying witness at the hearing,

was credible.

9 A-3133-16T2
 By contrast, "'where the focus of the dispute is . . . alleged

error in the trial judge's evaluation of the underlying facts and

the implications to be drawn therefrom,' the traditional scope of

review is expanded." N.J. Div. of Youth & Family Servs. v. M.M.,

189 N.J. 261, 279 (2007) (citations omitted). "A trial court's

interpretation of the law and the legal consequences that flow

from established facts are not entitled to any special deference."

Manalapan Realty, LP v. Manalapan Twp. Comm., 140 N.J. 366, 378

(1995) (citations omitted).

Applying these standards, we agree with the Division and the

Law Guardian there is ample evidence in the record to support

Judge Lipton's findings of abuse or neglect by the preponderance

standard, and that the findings comport with the applicable law

under Title 9. The facts here are stronger than those involved

in A.L., in light of this mother's behavior in not endeavoring

diligently to develop a relationship with the child, her failure

to have a realistic plan in place for the baby's care after her

birth and release from the hospital, and her uncooperative and

irresponsible behavior. The child was placed in imminent danger

of harm due to the mother's wanton failure to provide a "minimum

degree of care . . . ." See N.J.S.A. 9:6-8.21(c)(4); G.S., 157

N.J. at 181. We reject defendant's arguments that the trial court

misapplied the law, or that it ruled against defendant merely

10 A-3133-16T2
because of her poverty or homelessness. The record provides a

solid basis for the court's determination under Title 9, and we

decline to set it aside.

III.

The subsequent guardianship trial was presided over by Judge

Lourdes I. Santiago. The judge, who issued a twenty-six-page

written opinion on September 19, 2017, found that the four prongs

necessary for termination of a parent's rights were met by clear

and convincing evidence as to both the mother and the father.

Judge Santiago began by noting the history of domestic

violence in the family, including incidents between the mother's

own mother and the mother's older daughter and between the

grandmother and the grandmother's husband. The judge cited to the

parents' long history of substance abuse and incarceration. The

judge stated that custody of an older child of the mother had been

granted to a paternal aunt in Alabama. She also found significant

the termination of the parents' rights as to J.M., which preceded

this case as to his sibling N.A.

Both parents failed to attend substance abuse evaluations.

When they did, they usually had positive urine screens. There

were also intermittent periods of incarceration of both parents

for various offenses. The parents missed numerous scheduled

visitations with N.A.

11 A-3133-16T2
 Neither the mother nor the father attended the guardianship

trial. Neither the mother nor the father presented any testimony

in his or her behalf. Apparently, the mother's plan for the child

was to attempt to reconcile with the father and reunify the family.

Dr. Frank Dyer, the Division's expert, found that her plan was

unrealistic. He opined that the best interests of the child were

in remaining with her resource parent, who is the only parental

figure N.A. has known consistently. The resource parent reportedly

wishes to adopt N.A.

Dr. Dyer also conducted bonding evaluations. His evaluation

with the mother, conducted at a jail, showed the child recognized

her. The mother interacted with N.A. in an appropriate manner.

Even so, Dr. Dyer observed the child exhibited stronger ties in

the bonding session with the resource parent. Dr. Dyer opined the

mother posed a "high risk of relapse" due to her drug usage. He

further opined that N.A. would be "at extreme risk of harm" if she

were turned over to the mother's care.

The Division ruled out any other relatives suggested by the

mother, including the paternal uncle caring for N.A.'s brother,

who does not have the space to take on another child. Likewise,

the mother's sister, who is a foster parent, does not have suitable

space.

12 A-3133-16T2
 On appeal in the guardianship matter (A-0635-17), the mother

raises the following issues: (1) the trial was unfairly moved up

eight weeks; (2) her trial attorney was ineffective in failing to

file a motion to have the court order the Division to provide her

with services; (3) the judge improperly relied on a complex hearsay

opinion within the Division's records that the baby was exhibiting

symptoms of drug withdrawal; (4) the Division did not provide

adequate services; and (5) the Division improperly denied the

mother's request to place N.A. with the mother's sister and did

not explore the possibility of Kinship Legal Guardianship ("KLG").

When seeking the termination of a parent's rights under

N.J.S.A. 30:4C-15.1(a), the Division has the burden of

establishing, by clear and convincing proof, N.J. Div. of Child

Prot. & Permanency v. T.U.B., 450 N.J. Super. 210, 240 (App. Div.

2017) (citation omitted), the following criteria:

(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;

13 A-3133-16T2
 (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

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

[N.J.S.A. 30:4C-15.1(a); see also N.J. Div.
of Youth & Family Servs. v. A.W., 103 N.J.
591, 604-11 (1986) (reciting the four
controlling standards later codified in Title
30).]

As with appeals from Title 9 abuse or neglect decisions, our

scope of review of appeals from orders terminating parental rights

under Title 30 is similarly constrained. In such termination

appeals, the trial court's findings generally should be upheld so

long as they are supported by "adequate, substantial, and credible

evidence." R.G., 217 N.J. at 552 (citation omitted). A decision

in this context should only be reversed or altered on appeal if

the trial court's findings were "so wholly unsupportable as to

result in a denial of justice." N.J. Div. of Youth & Family Servs.

v. P.P., 180 N.J. 494, 511 (2004) (citation omitted).

We must give substantial deference to the trial judge's

opportunity to have observed the witnesses first hand and to

evaluate their credibility. R.G., 217 N.J. at 552. We also must

recognize the considerable expertise of the Family Part, which

adjudicates many cases brought by the Division under Title 9 and

14 A-3133-16T2
Title 30 involving the alleged abuse or neglect of children. See

N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448

(2012) (citation omitted).

Having considered the record from the guardianship trial in

light of these standards, we reject the mother's arguments and

affirm the final judgment of termination. We do so substantially

for the reasons expressed by Judge Santiago in her comprehensive

written decision. We only add a few comments.

The procedural decision to move up the guardianship trial to

an earlier date than was initially contemplated was well within

the trial court's wide discretion over trial scheduling. See,

e.g., State v. Miller, 216 N.J. 40, 47 (2013). Moreover, the

scheduling change had no discernible effect on the outcome of the

guardianship trial, because the mother persisted in being non-

compliant with services throughout the entire litigation. It is

sheer speculation to believe that the outcome of the trial would

have produced a different result had it been conducted a few months

later. The mother fails to show she was prejudiced by the

adjournment. In addition, the expeditious disposition of the case

is consistent with N.A.'s important interest in attaining

permanency. See In re Guardianship of K.H.O., 161 N.J. 337, 357

(1999) (recognizing New Jersey's strong public policy favoring

permanency).

15 A-3133-16T2
 Appellant's claim under N.J. Div. of Youth & Family Servs.

v. B.R., 192 N.J. 301, 308-09 (2007), alleging that her trial

attorney was ineffective and thus the judgment must be set aside,

is patently without merit. The thrust of this claim is that trial

counsel should have advocated that the mother receive more

services. But the mother was already granted and offered an

abundance of services approved by the court and the Division.

Among other things, those services included drug abuse

evaluations, drug testing, visitation, an exploration of housing

assistance and a re-integration program, and bus passes or other

needed transportation. Unfortunately, as Judge Santiago aptly

noted, the mother did little to take advantage of the services

that were provided or offered to her.

Appellant next argues that the trial court improperly

admitted hearsay evidence presented by the Division. This argument

provides no basis for reversal. To be sure, the Division's proofs

did include certain hearsay opinions, embedded in the

investigation records, concerning N.A.'s medical condition and a

perceived manifestation of post-birth withdrawal symptoms.

Arguably, those portions of the record, to the extent they involved

complex and disputed expert opinions by a nurse or a physician,

should not have been admitted over defense counsel's objection.

See N.J.R.E. 808; N.B., 452 N.J. Super. at 526 (citations omitted);

16 A-3133-16T2
N.J. Div. of Child Prot. & Permanency v. N.T., 445 N.J. Super.

478, 501-02 (App. Div. 2016).

Even so, we conclude this evidential point is of no

consequence to the ultimate outcome of this appeal. Regardless

of whether there was or was not competent proof that N.A. was

harmed by her mother's prenatal drug abuse and whether N.A.

actually manifested withdrawal symptoms, a "mother's inability to

provide any nurturing or care for her daughter for [a] prolonged

period is a harm to [the child] that is cognizable under the best

interests standard." K.H.O., 161 N.J. at 356 (citing A.W., 103

N.J. at 604-11); see In re Guardianship of D.M.H., 161 N.J. at

380-81 (noting that a parent's withholding of parental solicitude,

nurture, and care for an extended time is cognizable harm). This

potential for harm resulting from the mother's inability to nurture

for prolonged periods of time, was aptly recognized by Judge

Santiago in her written opinion.

The proofs of the risks of harm to the child in this case,

independent of N.A.'s alleged withdrawal symptoms, were

formidable. Hence, the claimed violation of the hearsay rules is

of no moment in this case. See R. 2:10-2 (instructing that trial

court decisions shall not be reversed on appeal unless appellant

demonstrates error that is "clearly capable of producing an unjust

result"); see also State v. Macon, 57 N.J. 325, 333 (1971).

17 A-3133-16T2
 We reject appellant's next contention that the Division did

not make "reasonable efforts" to provide her with services before

terminating her parental rights. N.J.S.A. 30:4C-15.1(a)(3). As

we have already noted, and as is well delineated in Judge

Santiago's opinion, the Division repeatedly provided or offered

services to the mother in this case. The failure of those services

to result in the reunification of N.A. lies with appellant herself,

whose record of missed appointments and overall lack of cooperation

was abysmal.

Nor is there any merit to appellant's claim that the Division

and the court failed to explore viable options to termination.

The Division did not act precipitously in ruling out other

relatives as potential caretakers. The Division reasonably

determined that the mother's sister R.M., and C.B., the paternal

uncle who assumed custody of N.A.'s brother, were not feasible

options. In addition, the Division reasonably ruled out the

mother's adult daughter, M.H., after discovering that M.H. was in

a boarding home, and did not have her own place to live, and was

unemployed.

Appellant's contention that the court should have explored

and approved KLG also fails. The law is clear that KLG is not an

option unless there is no one willing to adopt the child. See

N.J. Div. of Youth & Family Servs. v. L.L., 201 N.J. 210, 222-24

18 A-3133-16T2
(2010) (discussing KLG at length); In re Adoption of Child by

Nathan S., 396 N.J. Super. 378, 387 (Ch. Div. 2006) (discussing

how KLG is not an option unless adoption is not feasible). Here,

the record reflects the resource parent, who has raised N.A. nearly

from birth, is interested in adopting her.

In sum, we agree with the trial court, the Division, and the

Law Guardian that the evidence clearly and convincingly supports

all four prongs of the termination criteria. N.J.S.A. 30:4C-

15.1(a). As the unrebutted expert testimony of Dr. Dyer

establishes, it is in the best interests of this child, despite

her tender years, to be on the road to adoption by her resource

parent, who was found capable of managing her special needs. The

court's termination of the parental rights of this drug-addicted

mother, who showed no realistic signs of becoming a fit caretaker,

and who spurned most of the services offered to her, was consistent

with the evidence and with the governing law.

All other points raised by appellant in these consolidated

appeals, to the extent we have not already addressed them, lack

sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).

Affirmed.

19 A-3133-16T2