NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. P.M.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5617-07T45617-07T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

P.M.,

Defendant-Appellant.

___________________________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF S.M., a minor.

___________________________________________________

 

Submitted May 11, 2009 - Decided

Before Judges R. B. Coleman and Sabatino.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FG-16-64-08.

Yvonne Smith Segars, Public Defender, attorney for appellant (Richard Sparaco, Designated Counsel, on the brief).

Anne Milgram, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Leland S. McGee, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minor (Nancy E. Scott, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant P.M. appeals from an order of the Chancery Division, Family Part, dated June 16, 2008, which terminated P.M.'s parental rights to her daughter S.M., and awarded guardianship of the child to the Division of Youth And Family Services (the Division or DYFS) to consent to adoption. Based on our careful review of the record, we conclude that there is ample evidence to support the Chancery Division's order. We affirm.

We summarize the relevant facts from the testimony of witnesses and documents admitted into evidence. S.M., born on March 28, 2006, is the issue of an incestuous relationship between defendant and her father, Pe.M. That illicit relationship began when P.M. was seventeen years old. Pe.M. confessed to having intercourse with his underaged daughter, and paternity testing confirmed that he is the father of S.M. He was convicted of second degree sexual assault. He gave a general surrender of his parental rights to S.M. Consequently, Pe.M. is not involved in this appeal prosecuted by P.M.

S.M. has several medical problems, including global developmental delays, microcephaly (small head circumference), blindness and hearing impairment. Although the Division became involved with the family of Pe.M. as far back as November 1988, its involvement relating to this matter began when S.M. was about nine months old, in response to a report that Pe.M. had been having sexual relations with his daughter P.M. and that he had fathered P.M.'s child, S.M. The referent also alleged that defendant was not properly attending to S.M.'s obvious medical needs. The Division referred the family to Unlimited Care Services for in-home nursing services and referred P.M. for a psychological assessment.

Defendant's compliance with in-home services was minimal. When the Division advised defendant to cooperate with such services, she stated that she did not know what the problem was, since S.M. was "okay." Although defendant was transported to her scheduled psychological evaluation, she refused to complete it, presumably out of fear that any information she disclosed might incriminate her father. Eventually, on February 9, 2007, Unlimited Care Services informed the Division that it would be terminating services for defendant due to her non-compliance. Unlimited Care Services had made approximately fifteen attempts to provide in-home services, but defendant met with its worker only twice. Great Falls Pediatrics also reported to the Division that S.M., who had been a patient of its office since December 2006, had a poor follow-up record. She had missed medical appointments that had been scheduled to address her vision/gaze abnormality, as well as a possible hearing deficit and neurological concerns.

A Division worker made an unannounced visit to the home on February 23, 2007 and observed that the home, although apparently clean, had little food. At that time, defendant was unemployed and behind in rent. The worker advised defendant to seek assistance from WIC, for baby food and formula. The Division worker observed that S.M. was having difficulty holding up her head. The infant's head "constantly fell back or from side to side." Defendant was given instructions on how to hold S.M.'s head.

Defendant continued missing doctor's appointments for S.M and minimizing S.M.'s medical problems. She expressed her belief that S.M. had no medical problems, except for her eyes "bob[bing] up and down," for a reason unknown to her. On March 7, 2007, the Division removed S.M. from defendant's care on an emergency basis due to concerns that the child's medical issues were not being addressed by defendant. S.M. was placed in a foster home for medically fragile children.

P.M.'s mother, J.S., who lived in Florida, initially expressed interest in caring for S.M. To that end, the Division initiated an interstate home study. However, in January 2008, the grandmother informed the Division that she could not care for S.M. due to her own medical conditions, which include seizures and blackouts. Later that month, defendant spoke of a relative living in Detroit as a possible resource, but she gave no further information, despite requests by the Division.

S.M. was evaluated by several specialists. A geneticist, Dr. Jennifer Ibrahim, expressed concern about her future development, and diagnosed S.M. with failure to thrive, microcecepahly, and possible blindness. Dr. Ibrahim opined that S.M.'s constellation of symptoms could be related to consanguinity. In a medical evaluation conducted at the Audrey Hepburn Children's House (AHCH), S.M. was diagnosed as legally blind, with possible hearing loss and suffering from global developmental delays.

The Division provided supervised visitations between defendant and S.M. and observed during such visits that defendant did not know what to do when S.M. cried. P.M. needed to be prompted to feed S.M. and to change her diaper and needed instruction on how to feed her properly. The Division referred defendant to parenting classes, which she did not complete. The Division also referred defendant for psychological and psychiatric evaluations.

On March 20 and April 2, 2007, Dr. James F. Battaglia completed a psychological evaluation of defendant. According to Dr. Battaglia, defendant's overall intelligence is in the Borderline-Mildly Mentally Retarded Range, and her academic skills are "very limited." He concluded that defendant "does not have the intellectual or emotional wherewithal to care for her child and her special needs." Dr. Battaglia further concluded that P.M. will not "be able to learn the needed knowledge and skills, anticipate dangerous situations, actively problem solve as novel situations arise, or know when to seek guidance." Dr. Battaglia recommended that defendant attend vocational training and weekly therapy, and that she not be left alone with S.M. for long periods of time.

On April 15, 2007, Dr. Samiris Sostre completed a psychiatric evaluation of defendant and diagnosed her with major depressive disorder, possible borderline intelligence and dependent traits. During the evaluation, defendant disclosed that she knew that the sexual relationship with her father was wrong, that he was physically abusive towards her and that she felt guilty for his incarceration. P.M. was then living with a new boyfriend of three months and his sister. She was having frequent episodes of anger that involve some paranoia.

Dr. Sostre opined that P.M. was not capable of caring for S.M. because "[h]er symptoms [were] too acute and would interfere with her capacity to appropriately care for a baby." She also expressed concerns about P.M.'s judgment since she would allow her infant to live in a home with a man she had known for only a short time. Dr. Sostre recommended for P.M. medication, psychotherapy and psychological testing to assess her cognitive abilities.

On May 30, 2007, P.M. was referred to Family Intervention Services (FIS) for individual counseling, medication and medication monitoring. Although P.M. attended her intake appointment, she failed to attend subsequent sessions. By September 13, 2007, she had missed most of her counseling appointments and two intake appointments with the Barnert Hospital Center COPE program to receive parenting training.

On June 26, 2007, Judge Michael K. Diamond determined by a preponderance of the evidence that defendant had abused or neglected S.M. by "fail[ing] to provide proper medical care for [this] severely disabled child (blind and global developmental delays)." Thereafter, on January 3, 2008, the Division filed a Complaint for Guardianship, seeking to terminate the parental rights of P.M. and Pe.M. and committing S.M. to the guardianship of the Division. As previously noted, Pe.M. gave a general surrender of his personal rights. P.M. failed to appear in court on the March 14, 2008 return date; and the court entered default against her.

On March 20, 2008, FIS, which had been providing supervised visitations, reported that defendant "appear[ed] to be in denial of her daughter's blindness and . . . sometimes does not watch her closely and allows her to walk into things and hurt herself."

A guardianship trial was held on April 23 and June 16, 2008 before Judge George E. Sabbath. Prior to the start of the trial, defendant asked the court to vacate the default entered against her. She stated that she knew there was a court hearing scheduled for March 14, 2008, but she nonetheless traveled to Florida on March 5, 2008 with the intention to stay there permanently. She stated she understood that if she moved to Florida, she would not be able to continue weekly visits with S.M. The court granted defendant's application to vacate the default against her.

Defendant stipulated that she had a voluntary relationship with her father, however, the Deputy Attorney General expressed doubt that defendant could consent under the criminal statute. Counsel for defendant clarified that by "voluntary," defendant did not mean in the criminal sense, but rather "in the normal, everyday day sense." The trial court found this relevant in terms of "her parenting ability to understand that that doesn't happen between a parent and a child."

During the trial, the Division offered the testimony of Division workers Lindsay Slack and Gillian Batts and that of Dr. Battaglia. Defendant testified on her own behalf, but offered no other witnesses. The court found that defendant "demonstrated a lack of credibility."

At the time of trial, S.M. was receiving physical therapy, speech therapy and services through the Commission for the Blind. She was not then living in a pre-adoptive home. She had been in seven different foster homes, but the Division had identified a prospective, adoptive family. In consideration of S.M.'s limitations, the plan the Division had initiated was to introduce her to the prospective, adoptive family gradually, until she formed a bond.

During the trial, counsel for defendant objected to the admission of Dr. Sostre's written report into evidence because Dr. Sostre was not testifying. The court overruled the objection. Division worker Gillian Batts testified that he was the custodian of the records regarding this case and that Dr. Sostre is a Division consultant who had completed a psychiatric evaluation of defendant as part of regular case planning by the Division.

At the conclusion of all the proofs, the trial judge found that the Division met the four prongs of the best interests test by clear and convincing evidence and terminated defendant's parental rights to S.M. On June 16, 2008, the judge placed an oral decision on the record and issued a Judgment of Guardianship terminating defendant's parental rights to S.M.

On appeal, defendant raises the following arguments for our consideration:

POINT I: THERE WAS INSUFFICIENT EVIDENCE TO PROVE BY CLEAR AND CONVINCING EVIDENCE THE STATUTORY REQUIREMENTS OF N.J.S.A. 30:4C- 15 AND 30:4C-15.1.

A. THERE WAS INSUFFICIENT EVIDENCE TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT S.M.'S SAFETY, HEALTH OR DEVELOPMENT HAS BEEN OR WILL CONTINUE TO BE ENDANGERED BY THE PARENTAL RELATIONSHIP UNDER FACTOR NUMBER ONE.

B. THERE WAS INSUFFICIENT EVIDENCE TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT THE DEFENDANT WAS UNWILLING OR UNABLE TO ELIMINATE THE HARM FACING S.M., OR IS UNABLE OR UNWILLING TO PROVIDE A SAFE AND STABLE HOME FOR HER DAUGHTER, AND THE DELAY OF PERMANENT PLACEMENT WILL ADD TO THE HARM, UNDER FACTOR NUMBER TWO.

C. DYFS FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT IT MADE REASONABLE EFFORTS TO HELP THE PARENT CORRECT THE CIRCUMSTANCES WHICH LED TO THE CHILD'S PLACEMENT WITH THE FOSTER PARENT, AND THE COURT FAILED TO CONSIDER ALTERNATIVES TO TERMINATION OF HER PARENTAL RIGHTS.

D. THERE WAS INSUFFICIENT EVIDENCE TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT TERMINATION OF DEFENDANT'S PARENTAL RIGHTS WILL NOT DO MORE HARM THAN GOOD, UNDER FACTOR NUMBER FOUR.

POINT II: THE COURT IMPROPERLY RELIED UPON THE EXPERT REPORT OF THE PSYCHIATRIST, WHO DID NOT TESTIFY, IN FINDING THAT THE CHILD WOULD BE AT RISK IF RETURNED TO THE DEFENDANT.

I.

We shall address each of those arguments in turn. First, however, we acknowledge that our analysis of defendant's arguments is guided by certain well-established legal principles. Among these principles is the recognition that "[p]arents have a fundamental constitutional right to raise their children." N.J. Div. of Youth and Family Servs. v. J.Y., 352 N.J. Super. 245, 261 (App. Div. 2002). However, such right is not absolute. In re Guardianship of K.H.O., 161 N.J. 337, 346-47 (1999). Rather, parental rights are "tempered by the State's parens patriae responsibility to protect the welfare of children." Id. at 347 (citing In re Guardianship of J.C., 129 N.J. 1, 10 (1992)). The best interests of the child ("best interests") standard governs this balance and has been codified in N.J.S.A. 30:4C-15.1. Ibid.

Pursuant to that statutory standard, in an action by the Division to terminate parental rights, the Division shows by clear and convincing evidence that:

(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 Division 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)(1)-(4).]

These "four criteria . . . are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." K.H.O., supra, 161 N.J. at 348.

Termination of parental rights is a severe state action in that it permanently severs "the relationship between children and their biological parents." J.C., supra, 129 N.J. at 10. Thus, when biological parents oppose the termination of parental rights, "the court's function will ordinarily be to decide whether the parents can raise their children without causing them further harm." Ibid. The considerations involved in this inquiry are "extremely fact sensitive and require particularized evidence that address the specific circumstances in the given cases." K.H.O., supra, 161 N.J. at 348. "Appellate review of a trial court's decision to terminate parental rights is limited, and the trial court's factual findings 'should not be disturbed unless they are so wholly unsupportable as to result in a denial of justice.'" In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002) (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)).

Defendant challenges the trial court's finding that she harmed S.M. (1) by engaging in an incestuous relationship, and (2) through medical neglect and parenting deficiencies. Defendant further contends that the first prong of the best interests standard has not been met because there were "no particular acts of abuse or cruelty." Rather, defendant argues that she was "a victim, pure and simple," because (1) her father was guilty of sexual assault; (2) she was seventeen and incapable of giving legal consent for the relationship that led to her pregnancy; and (3) she is of "borderline intelligence." Hence, defendant now argues the court erred in finding that she harmed S.M. by engaging in the incestuous relationship and by "expos[ing] the child to a harm that would normally be appreciated by a person who could comprehend the . . . effects of one's conduct."

In the context of the first prong of the best interests standard, harm refers to "the endangerment of the child's health and development resulting from the parental relationship," and it may constitute one egregious harm or "the effect of harms" over time. K.H.O., supra, 161 N.J. at 348. It also includes the risk for future harm. N.J. Div. of Youth and Family Servs. v. A.G., 344 N.J. Super. 418, 440 (App. Div. 2001) (citing N.J.S.A. 30:4C-15.1(a)). Thus, harm may include congenital deficits resulting from conduct that would normally be appreciated by a person who could comprehend the effects of such conduct. However, accepting defendant's argument that she was the victim of her father and that she should not be penalized, that rationale would not preclude the trial judge from considering the effect upon the child. For example, in A.G., supra, we said "[t]hat the parents may be morally blameless is not sufficient to tip the scales in their favor. Although it is a factor which may be considered, [the child's] safety and emotional well-being in this case depend on him remaining with his foster parents." 344 N.J. Super. at 438-39 (internal citation omitted).

Likewise, in K.H.O., the Court held that "[d]rug use during pregnancy, in and of itself, does not constitute a harm to the child under N.J.S.A. 30:4C-15.1(a)(1)," even though the Court recognized that drug use during pregnancy poses serious risks to the unborn. K.H.O., supra, 161 N.J. at 349-51 (citations omitted). However, "an infant born addicted to drugs and suffering the resultant withdrawal symptoms has suffered harm that endangers her health and development within the meaning of [the statute]." Id. at 351 (citations omitted). The fact that S.M. suffers from congenital deficits that stem directly from her incestuous relationship with her father is less significant than the fact that P.M. was neglectful after the birth of the child. P.M. failed to appreciate and to attend to S.M.'s special medical needs.

Notably, a court does not have to wait "until a child is actually irreparably impaired by parental inattention or neglect." In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999) (citing N.J. Div. of Youth and Family Servs. v. A.W., 103 N.J. 591, 616 (1986)). Indeed, we have observed that "[t]he absence of physical abuse or neglect is not conclusive on the issue of custody. The trial court must consider the potential for serious psychological damage to the child inferential from the proofs." In re Guardianship of R.G. and F., 155 N.J. Super. 186, 194-195 (App. Div. 1977) (citing Sorentino v. Family and Children's Soc'y of Elizabeth, 72 N.J. 127, 131-32 (1976)).

In this regard, the mental impairment or limitations of a parent are valid concerns that can, in certain cases, warrant the removal of a child from the parent's care and even the termination of parental rights. See, e.g., A.G., supra, 344 N.J. Super. 418 (affirming termination of parental rights where the parents did not have the "mental status sufficient to eliminate the risk of future harm to the child"); R.G., supra, 155 N.J. Super. 186 (holding that the Division established a prima facie case where the parents' mental disorders "adversely affect[ed] their ability to parent"); In re Guardianship of D.N., 190 N.J. Super. 648 (J. & D.R. Ct. 1983), cited with approval in A.G., supra, 344 N.J. Super. at 440 (terminating parental rights where "the mother was mentally retarded" and was unable to care for the child's needs without full-time supervision of the Division). In both A.G. and R.G., the children had not actually been harmed, "nor [was] there any evidence to show that [the parents] would intentionally harm the child. But that is not the test." A.G., supra, 344 N.J. Super. at 440.

In the present case, the court found that the first prong was "manifestly proved" and not "seriously disputed." The court found that defendant harmed S.M. not only by engaging in an incestuous relationship, but also through "medical neglect and parenting deficiencies." Even though defendant testified that she recalled missing only two medical appointments for S.M., the court found that her testimony was contradicted by the Division's witnesses and the record. For example, (1) Great Falls Pediatrician reported that defendant was missing S.M.'s appointments, and (2) S.M. was not thriving in defendant's care. The court found that defendant missed many medical appointments for S.M. and "demonstrated a lack of ability to comprehend the child's significant physical impairments."

We are satisfied that the record supports the trial court's determination that the Division met this prong by clear and convincing evidence.

Regarding the second prong, defendant contends that "there was insufficient evidence to prove by clear and convincing evidence that she was unwilling or unable to eliminate the harm facing S.M., or is unable or unwilling to provide a safe and stable home for her daughter, and the delay of permanent placement will add to the harm." This prong "relates to parental unfitness." K.H.O., supra, 161 N.J. at 352. "Thus, the second prong may be met by indications of parental dereliction and irresponsibility, such as the parent's continued" problematic behavior, "the inability to provide a stable and protective home," and "the withholding of parental attention and care." Id. at 353. Accordingly, "[a] delay caused by [the parent]'s failure to assume a responsible parental role in securing permanent placement" for the child is a harm in itself. Id. at 354.

Here, the trial court found that "the psychiatric and psychological impairments of the defendant are permanent and to the extent that she cannot be effectively rehabilitated," her "cognitive, intellectual and emotional disabilities preclude her from safely and adequately parenting [S.M.]." That finding is supported by the expert opinion of Dr. Battaglia, who opined that S.M. would be at risk if returned to defendant's care. Dr. Battaglia expressed the further view that defendant will not "be able to learn the needed knowledge and skills, anticipate dangerous situations, actively problem solve as novel situations arise, or know when to seek guidance." The court's finding is also supported by the report of Dr. Sostre, who likewise opined that defendant was not able to care appropriately for S.M.

The court noted that S.M.'s "needs are so great in terms of her physical disabilities, the challenges that she faces in terms of her blindness and her other disabilities, will add to the harm if . . . they are not immediately . . . addressed." S.M. has "almost daily appointments" and according to Dr. Battaglia and Dr. Sostre, defendant had not been, and would not be in the future, capable of "keep[ing] up with these appointments and medical treatments."

In addition, the court found that defendant failed to take advantage of the services that were offered to facilitate reunification, even though she was neither working nor in school. Defendant did not complete parenting classes and eventually discontinued participation in services altogether. Consistently, she took no steps to have her new live-in boyfriend evaluated by the Division, even though she testified that she intended to have him help raise S.M. She had been told by the Division that anyone living in her home had to be assessed by the Division.

Because of defendant's failure to avail herself of services, the court found that "indicates a continuing inability to appreciate and comprehend what her obligations are in order to parent safely." Defendant's failure to assume a responsible parental role to provide safety and permanency for S.M. is a harm under the second prong. Accordingly, her contention that termination of parental rights was premature lacks merit. As we have previously recognized, "[b]oth federal and New Jersey statutes reflect reforms acknowledging the need for permanency of placements by placing limits on the time for a birth parent to correct conditions in anticipation of reuniting with the child." N.J. Div. of Youth and Family Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div.), certif. denied, 180 N.J. 456 (2004). "The emphasis has shifted from protracted efforts for reunification with a birth parent to an expeditious, permanent placement to promote the child's well-being." Ibid.

Indeed, under Title 30, the Division is required to pursue termination of parental rights where the parent "has failed for a period of one year to remove the circumstances or conditions that led to the removal or placement of the child, although physically and financially able to do so, notwithstanding the Division's reasonable efforts to assist the parent or guardian in remedying the conditions." N.J.S.A. 30:4C-15(d) and (f). Here, defendant had more than one year to participate in services geared towards reunification but failed to do so. Therefore, we are satisfied that the Division met the second prong of the best interests standard by clear and convincing evidence.

With regard to the third prong, defendant does not contend that the Division failed to offer her reasonable services toward reunification. Rather, she contends that the Division did not "fully explore potential placement within the defendant's family." More specifically, defendant maintains that the Division should have recognized that, due to her low intellectual functioning, she was not capable of providing sufficient information regarding her relatives in Detroit; and that the Division should have been more proactive in seeking such information.

As part of the effort to maintain the integrity of the family as a living unit, "the court must consider the alternatives to termination of parental rights and whether the Division acted reasonably." A.W., supra, 103 N.J. at 591, 608; A.G., supra, 344 N.J. Super. at 435 (citing N.J.S.A. 30:4C-15.1(a)(3)). The Division reasonably pursued possible placement of S.M. with J.S., the maternal grandmother. J.S. eventually informed the Division that she was unable to care for S.M. We reject defendant's argument that the Division failed to meet its burden under this prong because it did not investigate more proactively and, hence, did not discover some unknown, unnamed relatives who allegedly lived in Detroit. Defendant's argument to that effect lacks sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).

Addressing the fourth prong, defendant contends that because the prospective adoptive parents were not yet caring for S.M. at the time of trial, "this potential placement was speculative and too remote for the court to make a decision that the termination of parental rights of the defendant would not do more harm than good." N.J.S.A. 30:4C-15.1. This prong of the best interests standard "'serves as a fail-safe against termination even where the remaining standards have been met.'" Ibid. at 88 (quoting N.J. Div. of Youth and Family Servs. v. G.L., 191 N.J. 596, 609 (2007)). "The question ultimately is not whether a biological mother or father is a worthy parent, but whether a child's interest will best be served by completely terminating the child's relationship with that parent." N.J. Div. of Youth and Family Servs. v. E.P., 196 N.J. 88, 108 (2008).

The trial court found that "the Division [was] working on an adoption in an orderly fashion in order to acquaint the child with the proposed adoptive parents." At the time of trial, the Division had identified an adoptive home and had initiated a process to introduce S.M. gradually to the prospective adoptive family. That gradual process was planned in consideration of S.M.'s special needs, including her limited ability to understand and respond to her environment. The court further found that defendant is not capable of providing the protections that S.M. needs, and it determined that "[i]n this case termination ensures that the child will receive permanency and safety, mainly proper and adequate medical care in a safe and permanent home."

As stated above, Dr. Battaglia opined that defendant will not be able to acquire the skills that are necessary to care for her child. Defendant did not offer any evidence or testimony disputing Dr. Battaglia's opinion. Therefore, defendant essentially proposes that permanency be delayed indefinitely. "Keeping the child in limbo, hoping for some long term unification plan, would be a misapplication of the law." A.G., supra, 344 N.J. Super. at 438 (citing In re Adoption of a Child by P.S., 315 N.J. Super. 91, 121 (App. Div. 1998)).

We are satisfied the trial court's approval of the proposed gradual introduction is a sound exercise of discretion, especially in light of the clear and convincing evidence that defendant is not now, and will not be in the foreseeable future, capable of providing a permanent, safe and stable home for S.M. In such circumstances, termination of P.M.'s parental rights will ensure permanency, safety and proper care for S.M. and will not do more harm than good.

II.

We turn next to defendant's challenges to certain evidentiary rulings made by the trial court. She contends we should reverse the court's judgment because "the court improperly relied upon the expert report of [Dr. Sostre], who did not testify, in finding that the child would be at risk if returned to [defendant]." Defendant contends that such report "contained inadmissible hearsay opinions."

N.J.R.E. 803(c)(6) allows the admission of regularly kept business records. It states in relevant part:

A statement contained in a writing or other record of acts, events, conditions, and, subject to Rule 808, opinions or diagnoses, made at or near the time of observation by a person with actual knowledge or from information supplied by such a person, if the writing or other record was made in the regular course of business and it was the regular practice of that business to make it, unless the sources of information or the method, purpose or circumstances of preparation indicate that it is not trustworthy.

[N.J.R.E. 803(c)(6).]

We acknowledge that even though evidence of medical findings may be admissible under the business records exception, a court has discretion to exclude conclusions by experts based on "the degree of complexity of the procedures utilized in formulating the conclusions expressed in the [expert's] report." Nowacki v. Cmty. Med. Ctr., 279 N.J. Super. 276, 283 (App. Div. 1995) (citations omitted); see also In re Commitment of G.G.N., 372 N.J. Super. 42, 56 (App. Div. 2004) (holding that expert opinions within business records are not admissible if the expert is not testifying, "unless the trial judge finds that the circumstances involved in rendering the opinion, including the motive, duty, and interest of the declarant, whether litigation was contemplated by the declarant, the complexity of the subject matter, and the likelihood of accuracy of the opinion, tend to establish its trustworthiness").

In In re Guardianship of Cope, 106 N.J. Super. 336 (App. Div. 1969), this court addressed the admissibility of records from the Division and its consultants. In Cope, the panel determined that certain business records should be admitted to avoid what would be "an intolerable disruption" to the New Jersey State Bureau of Children's Services. Thus, we held that the Bureau should be permitted to submit into evidence "reports by Bureau staff personnel (or affiliated medical, psychiatric, or psychological consultants), prepared from their own first-hand knowledge of the case, at a time reasonably contemporaneous with the facts they relate, and in the usual course of their duties with the Bureau." Ibid. See also R. 5:12-4(c).

In the case at bar, a Division worker testified that Dr. Sostre is a Division consultant, and that the doctor prepared his report in the usual course of case planning. Therefore, admission of that report, which is consistent with the testimony of Dr. Battaglia, was within the trial court's discretion and consistent with Cope. In any event, the probative value of the report was not substantially outweighed by the risk of undue prejudice. N.J.R.E. 403(a).

Defendant further contends that the court erred by incorporating into its findings the June 26, 2007 finding of neglect made against defendant in the FN case brought pursuant to Title 9. We disagree. The Division may file a petition to terminate parental rights "[w]henever . . . it appears that a court wherein a complaint has been proffered as provided in chapter 6 of Title 9 of the Revised Statutes, has entered a conviction against the parent . . . of any child because of abuse, abandonment, neglect of or cruelty to such child." N.J.S.A. 30:4C-15(a); see also N.J. Div. of Youth and Family Servs. v. K.M., 136 N.J. 546, 556 (1994), ("On the confirmation of abuse or neglect, N.J.S.A. 9:2-18 permits agencies to file a complaint in Superior Court seeking to terminate parental rights pursuant to Title 30."). On the other hand, a complaint to terminate parental rights under Title 30 does not require a previous finding of abuse or neglect under Title 9. Ibid.

The incorporation of the court's previous finding of neglect under Title 9 is relevant to the guardianship matter. The previous finding of neglect is part of the factual context of the guardianship litigation. See N.J. Div. of Youth and Family Servs. v. L.A., 357 N.J. Super. 155, 158-59 (App. Div. 2003) (holding that records from a previous proceeding regarding the father's sexual abuse against his oldest daughter, were relevant to provide context to the child neglect and abuse case against the mother); N.J. Div. of Youth and Family Servs. v. J.T., 354 N.J. Super. 407, 414 (App. Div. 2002), certif. denied, 175 N.J. 432 (2003) (holding that the Family Court did not err by taking judicial notice of its prior findings in an earlier domestic violence hearing).

Moreover, we have noted that while Title 9 and Title 30 require different standards of proof, "[j]udges are perfectly capable of recognizing the different issues involved, different standards of proof required and different remedies sought without 'pre-judging' a defendant so to implicate due process concerns." J.T., supra, 354 N.J. Super. at 414 (quoting N.J. Div. of Youth and Family Servs. v. L.C., 346 N.J. Super. 435, 439 (App. Div. 2002)). The court findings that were incorporated in this case were that defendant "failed to provide proper medical care for [her] severely disabled child." Apart from that reference, other sufficient, credible evidence was offered at trial, of missed medical appointments and of S.M.'s need for medical care, to support the guardianship court's finding that defendant medically neglected S.M. The court's oral opinion reflects the court's independent finding of medical neglect, without regard to the FN case. For example, under its analysis of prong one, the court found that prong was "manifestly proved" and not "seriously disputed."

 
We are satisfied that the trial court did not err by incorporating in its findings the prior finding of neglect against defendant. In any event, defendant has failed to establish a substantial impact of that separate ruling on the outcome of the case. "Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result . . . ." R. 2:10-2.

Affirmed.

WIC refers to Women, Infants and Children. WIC provides federal grants to states for supplemental foods, health care and education for low-income parents and to infants and children up to age five who are found to be at nutritional risk. United States Department of Agriculture, http://www.fns.usda.gov/WIC (last visited June 15, 2009).

According to the law guardian, S.M.'s foster parent, with whom she had been living at the time of trial, has since expressed a commitment to adopt her.

(continued)

(continued)

28

A-5617-07T4

RECORD IMPOUNDED

June 26, 2009