DIVISION OF YOUTH AND FAMILY SERVICES and M.D IN THE MATTER OF THE GUARDIANSHIP OF M.J.C a Minor

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3748-10T1

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

L.C.,

Defendant-Appellant,

and

M.D.,

Defendant.

___________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF M.J.C.,

a Minor.

___________________________________

February 27, 2012

Submitted December 12, 2011 Decided

Before Judges A. A. Rodr guez, Sabatino and Fasciale.

On appeal from the Superior Court, Chancery Division, Family Part, Gloucester County, Docket No. FG-08-25-10.

Joseph E. Krakora, Public Defender, attorney for appellant (Angelo G. Garubo, Designated Counsel, on the brief).

Paula T. Dow, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Nora P. Pearce, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian,attorney forM.J.C., aminor (LisaM. Black, Designated Counsel, on the brief).

PER CURIAM

L.C., the birth mother of M.J.C., a boy born in January 2008, appeals from the February 24, 2011 judgment terminating L.C. s parental rights to her son. M.D., the birth father, voluntarily surrendered his parental rights to M.J.C. in favor of the child's foster parents. The judge approved this identified surrender, and M.D. is not a party to this appeal. We affirm.

The incidents that led to the Division of Youth and Family Services' (DYFS) involvement and subsequent filing of a complaint for guardianship of M.J.C. can be summarized as follows. On March 27, 2008, L.C. contacted DYFS for housing assistance. At the time, L.C. was eighteen years old and her son, M.J.C. was seven months old. DYFS referred her to Camden County for assistance. Four months later, she moved into the Eleanor Corbett Shelter with M.J.C.

However, on August 19, 2008, a shelter representative contacted DYFS because another resident heard M.J.C. crying incessantly. The resident entered the room and found M.J.C. with a blanket over his face and sleeping in the same bed as L.C. The shelter staff was concerned that L.C. might suffocate the infant. Moreover, L.C. could not be awakened.

DYFS caseworkers Ja'Net Dingla and Krista Pappas visited the shelter at 11:30 a.m. that day and found that L.C. was still sleeping. M.J.C. was lying next to her in the same bed. A baby bottle filled with curdled milk was near them. The caseworkers questioned L.C. about the milk. L.C. replied that she fed M.J.C. from that bottle, and also fed him Oreo cookies and Hawaiian Punch. According to L.C., she did not hear M.J.C. crying the previous night and no one tried to wake her up. She told the caseworker that M.J.C. had tested positive for marijuana when he was born, but he was allowed to leave the hospital with her. During this conversation, L.C. appeared to be nodding off with M.J.C. in her lap. M.J.C. almost fell off the couch when this happened.

The DYFS worker determined a Dodd1 removal was appropriate and called the Elk Township Police for assistance. M.J.C. was placed in a resource home that day. He remains in that home today and his foster parents wish to adopt him.

DYFS filed a complaint for guardianship. The trial commenced on May 24, 2011. Judge Mary K. White presided. L.C. was not present. Her last appearance in court on this matter had occurred nine months earlier, in August 2010, at a court conference. L.C. missed hearing dates in October and December 2010, and failed to attend mediation a week prior to the trial.

DYFS caseworker Michele Johnson testified at the trial

that since she had been assigned to L.C. s case, L.C. had not requested any visits with M.J.C., called to check up on his status, or attempted to send him something for his birthday in January 2011.

Johnson's testimony highlighted the many services provided to L.C. DYFS arranged for L.C. to attend Turning Point, a residential treatment center. L.C. was diagnosed with cannabis and PCP dependence, as well as possible bipolar disorder. A few weeks later, L.C. was discharged after successfully completing the program; however, counselors at Turning Point indicated to DYFS that L.C.'s "mental health issues caused her to experience difficulty living in community with other clients." In light of L.C.'s aggression and negativity, Turning Point recommended that L.C. continue treatment in a program where her psychiatric issues could be addressed.

L.C. began attending the Family First program through the Center for Family Services. On March 5, 2009, the first day of the program, L.C. tested positive for PCP and alcohol, and admitted to using PCP. A counselor contacted DYFS seven days later to report that L.C. attended only four out of ten required group sessions, and zero out of the three individual counseling sessions. She stopped attending the program altogether and was discharged due to an unsatisfactory performance.

DYFS referred L.C. to the Cooper House Women's Recovery Program. L.C. began treatment on May 1, 2009. There, L.C. attended various programs, including group therapies, substance abuse therapies, anger management classes, and parenting skills classes. She was discharged ten weeks later for "lack of interest with progressing with treatment, sporadic attendance with no documentation, and verbal aggression toward a Cooper House staff/counselor." L.C. tested positive for PCP, marijuana, and barbiturates throughout her time at Cooper House. L.C. began a program at Sikora on July 2, 2009. After engaging in a physical altercation with another patient, L.C. was discharged in late July.

DYFS referred L.C. to Robins' Nest for supervised visits with M.J.C. However, L.C. missed three visits without an excuse and was excused from the program.

On September 25, 2009, DYFS referred L.C. to the Cooper House for intensive outpatient treatment. Due to her unsuccessful participation at Cooper House, she was transferred to My Father's House. She began the program on January 11, 2010. On the next day, L.C. tested positive for PCP and marijuana. L.C. missed several group sessions and claimed she did not have a ride, despite having a bus pass that DYFS provided.

In January 2010, L.C. was again referred by DYFS to Robins' Nest for supervised visitations with M.J.C. The visitations ended on August 12, 2010 because L.C. "missed more than three visits due to being incarcerated, doctor's appointments, and not have [sic] transportation." On August 26, 2010, L.C. was terminated from the Center for Family Services' parenting group because of her lack of attendance.

At trial, the evaluation and bonding reports of Drs. Deibler, Williams, and Loving were admitted into evidence. DYFS submitted the documents as evidence without objection. DYFS arranged for L.C. to be evaluated by Marla W. Deibler, Psy.D., a psychologist. L.C. disclosed to Dr. Deibler that she had been using marijuana daily since she was eight years old, and PCP monthly since she was thirteen years old. She admitted to current suicidal ideation and to starting a fire on purpose in her home when she was eight. She stated that she did not like animals and repeatedly threw her mom's cat down the stairs. L.C. dropped out of high school after the ninth grade. After leaving school, L.C. worked for four months in fast-food services. Subsequently, she depended on public assistance as her only means of support.

L.C. reported a history of attention deficit hyperactivity disorder and depression. She had been prescribed Adderall and Paxil. Dr. Deibler administered various tests that indicated L.C. had a high probability of substance abuse, severe levels of depressive symptoms, problematic parenting skills and knowledge, an extreme potential for emotional and/or behavioral problems, and unmanageable levels of parenting stress.

Dr. Deibler opined that L.C. did not "have the capacity to appropriately and safely parent and supervise her child due to her own psychological instability and suicidal ideation as well as her lack of insight into parenting practices that have endangered her child." She recommended an intensive outpatient program to deal with her psychological and substance issues, as well as random drug screening and parent training. She further believed no visitation with M.J.C. should occur for the time being. Dr. Deibler concluded that a reunification of L.C. and her son should occur only after successful completion of a substance abuse program, sobriety, psychological stability, parenting skills training, improved insight and judgment, and acquiring stable housing.

Gregory Williams, M.D., a psychiatrist and neurologist, conducted a psychiatric evaluation of L.C. During the evaluation, L.C. indicated that she was raped when she was sixteen years old by a man that she accompanied to a tavern. She also stated that her father repeatedly raped her from when she was nine years old until she was seventeen. She believed that her father, and not M.D., was the biological father of M.J.C. L.C. stated that her father knows the child is his. She again indicated her habits of setting and playing with fire, as well as her cruelty to animals. Dr. Williams noted that L.C. displayed a depressed affect and seemed impaired by past trauma.

James L. Loving, Psy.D., a clinical and forensic psychologist, also evaluated L.C. L.C. reported that her relationship with M.D. is over. Dr. Loving diagnosed L.C. with PCP and cannabis dependence, both in self-reported full remission. He additionally believed she suffered from chronic post-traumatic stress disorder, recurrent depressive disorder, and had borderline personality traits. Dr. Loving concluded his report by asserting that "[a]fter considering [L.C.'s] serious history of parenting-related risks, balanced again[st] her important recent progress . . . she cannot be viewed as a safe reunification at this time, or in the near future." Although her recovery seemed to be "genuine and absolutely positive," she is still "tenuous and high-risk." He opined that it is in the best interest of M.J.C. to be adopted by his foster parents.

Dr. Loving also conducted bonding evaluations of M.J.C. and L.C., and between M.J.C. and his foster parents. M.J.C. had lived with his foster parents since the August 2008 removal. Dr. Loving concluded that "[M.J.C.] appears to experience a mostly positive but somewhat weak emotional attachment to [L.C.]." However, M.J.C. clearly exhibited "strong, positive, healthy emotional attachments to his foster families." M.J.C. would "be at very limited risk for suffering serious and enduring emotional harm" if his contact with L.C. were to halt. In contrast, if the relationship and contact of M.J.C. with his foster parents were severed, he would be at "high risk for suffering serious and enduring emotional harm." Ultimately, Dr. Loving indicated that "it would be in the best interests [of M.J.C.] to maintain him in his current home, with adoption being the permanency plan."

There was no testimony from L.C. M.D. testified only about his consent to the identified surrender of his rights.

Judge White terminated L.C.'s parental rights to M.J.C. She based her findings on Johnson s testimony, coupled with the documentary evidence from DYFS, consisting of contact sheets, screening summaries, and the various expert evaluations. The judge found that DYFS had established by clear and convincing evidence that L.C. s parental rights should be terminated pursuant to N.J.S.A. 30:4C-15.1a.

On appeal, L.C. contends:

[DYFS] FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT IT MADE REASONABLE EFFORTS TO PROVIDE SERVICES TO HELP L.C. TO CORRECT THE CIRCUMSTANCES WHICH LED TO M.[J.]C.'S REMOVAL OR THAT L.C. IS UNWILLING OR UNABLE TO ELIMINATE THE HARM FACING THE CHILD.

THE COURT BELOW ERRED IN FINDING THAT TERMINATION WOULD NOT DO MORE HARM THAN GOOD AND [DYFS] FAILED TO SHOW THAT A DELAY OF PERMANENT PLACEMENT WOULD CAUSE OR ADD TO THE HARM.

THE COURT SHOULD HAVE REQUIRED DOCTOR LOVING TO TESTIFY.

DYFS and the Law Guardian for M.J.C. urge affirmance.

A termination of parental rights must be supported by clear and convincing evidence of the following factors announced in N.J. Div. of Youth & Fam. Servs. v. A.W., 103 N.J. 591, 604-05 (1986), and later codified in N.J.S.A. 30:4C-15.1(a):

(1) The child's health and 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. . . .;

(3) [DYFS] 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.

The testimony and other evidence adduced at trial reveals that L.C. is unwilling or unable to overcome her substance abuse and other emotional and psychological challenges in her life. M.J.C. has tested positive for marijuana. He is at risk and L.C. cannot help or protect him. The record demonstrated that L.C. has a history of violence and substance abuse treatment failures.

The applicable standard of appellate review requires that we defer to a trial judge's factual findings when they are based on credible evidence in the record and unless we are convinced those findings 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)); Cesare v. Cesare, 154 N.J. 394, 411-12 (1998).

Although counsel for L.C. did not object to any evidence admitted at trial, L.C. now contends that Dr. Loving's report was inadmissible hearsay. Pursuant to the doctrine of invited error, a party is barred "'from arguing on appeal that an adverse decision below was the product of error, when that party urged the lower court to adopt the proposition now alleged to be error.'" N.J. Div. of Youth and Family Servs. v. M.C. III, 201 N.J. 328, 340 (2010) (quoting Brett v. Great Am. Recreation, 144 N.J. 479, 503 (1996)). In M.C. III, supra, the defendant assented to admission of the pertinent documents, which rendered DYFS unable to ameliorate the alleged evidentiary error that defendant relied on in his appeal. 201 N.J. at 341. Had defendant objected to the specific documents at trial, and the trial court sustained those objections, DYFS would have had an opportunity to address the contentions. Ibid. The Supreme Court concluded that under the circumstances, the defendant was "barred by the doctrine of invited error from contesting for the first time on appeal the admission of the various documents." 201 N.J. at 342.

After agreeing to admit Dr. Loving's report, L.C. now argues that the document constitutes inadmissible hearsay. We hold that L.C. is similarly barred by the doctrine of invited error since L.C. failed to object to the admission of Dr. Loving's report at trial, and now contests the admission for the first time on appeal.

Therefore, after careful review, we conclude that the record contains clear and convincing evidence to support Judge White's findings. We also conclude that the judge applied the correct legal standards to the facts she found. We discern no sound reason for disturbing the judge's findings and affirm substantially for the reasons set forth in Judge White's February 23, 2011 oral decision.

1 A "Dodd removal" refers to the emergency removal of a child without a court order, pursuant to the Dodd Act, N.J.S.A. 9:6-8.21 to -8.82. N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 26 n.11 (2011).