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NOT FOR PUBLICATION WITHOUT THE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-4170-15T1
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
S.G.,
Defendant-Appellant.
_________________________________
IN THE MATTER OF THE GUARDIANSHIP
OF S.H.G.,
Minor.
_________________________________
Submitted March 29, 2017 – Decided July 20, 2017
Before Judges Fuentes, Simonelli and Carroll.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Essex County,
Docket No. FG-07-0232-15.
Joseph E. Krakora, Public Defender, attorney
for appellant (Cary L. Winslow, Designated
Counsel, on the brief).
Christopher S. Porrino, Attorney General,
attorney for respondent (Andrea M. Silkowitz,
Assistant Attorney General, of counsel; Fatime
Meka, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minor (Sean P. Lardner,
Designated Counsel, on the brief).
PER CURIAM
Defendant S.G. is the biological mother of S.H.G., a boy born
in April 2012. The boy's biological father is dead. Defendant
appeals from the Judgment of Guardianship entered by the Family
Part on May 13, 2016, terminating her parental rights to her son.
The guardianship judgment permits S.H.G. to be adopted by his
maternal grandmother and her husband. Defendant is also the
biological mother of S.H., a girl born in October 2005. S.H has
a different biological father from S.H.G. This guardianship
petition originally sought to terminate defendant's parental
rights over S.H., but these plans changed to reunification with
the child's biological father. Thus, S.H. is not a part of this
appeal.
In this appeal, defendant argues the Division of Child
Protection and Permanency (Division) failed to establish by clear
and convincing evidence the four statutory prongs in N.J.S.A.
20:4C-15.1a governing the best interests of the child. Defendant
also maintains the Division did not establish that kinship legal
guardianship (KLG) under N.J.S.A. 3B:12A-6 was not a viable option
to termination. After reviewing the record and mindful of our
standard of review, we affirm substantially for the reasons
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expressed by Judge David B. Katz in his oral opinion delivered
from the bench on May 13, 2016.
Before discussing the evidence presented at the guardianship
trial, we will first briefly summarize defendant's history of
involvement with the Division. On February 8, 2012, the Division
received an anonymous referral that defendant was driving around
all hours of the day and night with S.H., who was then six years
old. Defendant was pregnant with S.H.G. at the time. The
anonymous reporter claimed to have seen defendant drinking alcohol
and smoking marijuana despite being pregnant. After investigating
the allegations, the Division concluded they were unfounded.
The Division received another referral concerning defendant
on December 4, 2013. At the time, S.H.G.'s late father was
contesting his child support obligation. He alleged he saw
defendant consume alcohol and become inebriated around her
children. He also claimed defendant suffered from bipolar
disorder. Defendant declined the Division's offer of assistance.
The Division also concluded the allegations were unfounded.
The next complaint the Division received came from
defendant's mother and sister. On April 1, 2014, they reported
being concerned over the children's well-being because of
defendant's substance abuse problem. Defendant was allegedly
using embalming fluid. Although defendant denied the allegations,
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S.H., who was then eight years old, told Division investigators
that she did not feel safe around her mother. According to the
child, defendant had been acting "weird," like a "zombie."
Defendant eventually admitted to the Division caseworker that she
had been using Phencyclidine (PCP) as much as three times per
week.
On April 1, 2014, defendant tested positive for PCP in a test
administered by the Newark Renaissance House. The Division
executed an emergent Dodd removal1 of S.H.G. that same day and
placed him with his maternal aunt. On June 18, 2014, S.H.G. was
relocated by the Division to his maternal grandmother's house. He
remained in her care from that day forward, including throughout
the guardianship trial.
The guardianship trial occurred on May 10, 2016. The Division
presented the testimony of two witnesses, psychologist Dr. Mark
Singer and Division caseworker Arianna Concepcion. Neither the
Law Guardian nor defendant called any witnesses. Judge Katz's
findings were based entirely on the testimony of these two
witnesses and the documentary evidence admitted without objection.
1
"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." N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J.
Super. 593, 609 n.2 (App. Div. 2010).
4 A-4170-15T1
Judge Katz found these witnesses credible. Defendant was
thirty-seven years old when this matter was tried before Judge
Katz. She admitted to smoking PCP since she was in her mid-
twenties. Although she denied using cocaine, heroin, or any other
opiates, she tested positive for cocaine when she was tested in
the courthouse. She has been treated for mental illness in an
intensive outpatient setting. She was admitted into inpatient
substance abuse rehabilitation programs, but tested positive for
PCP numerous times while she was there.
Judge Katz found that during the first year after the removal
of S.H.G., the Division arranged for defendant to receive substance
abuse assessment and treatment in many different inpatient
programs. She has received domestic violence counseling,
psychological and psychiatric evaluations, referrals to "Mommy and
Me" programs, psychotherapy, and parenting skills classes. She
consistently failed to take advantage of these services.
With respect to defendant's ability or willingness to safely
parent her son, Judge Katz found that Dr. Singer "had a command
of the facts and the psychological principles that he applied to
those facts." Judge Katz accepted Dr. Singer's opinion that
defendant's continued use of PCP under these circumstances
demonstrated her inability to create stability in her life. This
also created an unstable environment for her son. Her failure to
5 A-4170-15T1
take advantage of the services made available to her by the
Division was also indicative of her inability to change, at least
in the foreseeable future.
With respect to S.H.G., Judge Katz relied on Dr. Singer's
testimony to find that the child "has a significant attachment to
[defendant]." However, the maternal grandmother, as the
caregiver, has also become "a significant parental figure in
S.H.G.'s life." Although both of these women played an important
role in the child's life, Judge Katz accepted Dr. Singer's
assessment that the caregiver could mitigate the emotional harm
caused by severing S.H.G.'s relationship with defendant. In fact,
Dr. Singer opined that S.H.G. would be at risk of harm if reunified
with his biological mother. In short, reunification with defendant
was not in the child's best interest.
Based on the evidence presented, Judge Katz applied the
settled principles of law and carefully considered each of the
four prongs in N.J.S.A. 30:4C-15.1a as construed by the Supreme
Court in In re Guardianship of K.H.O., 161 N.J. 337, 348-52 (1999).
We are satisfied the Division proved each of the four statutory
prongs by clear and convincing evidence. We will not repeat Judge
Katz's comprehensive review of the evidence and the legal
conclusions that he made therefrom. We discern no legal basis to
disturb Judge Katz's findings or to question his legal analysis.
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The evidence presented by the Division is uncontroverted. We
defer to Judge Katz's credibility assessment of the witnesses'
testimony because of his expertise in family matters and his
ability to develop a "feel of the case that can never be realized
by a review of the cold record." N.J. Div. of Youth & Family
Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010) (citation omitted).
We thus affirm substantially for the reasons he expressed in his
oral opinions that he delivered from the bench on May 13, 2016.
Affirmed.
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