NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. M.D.

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                                NOT FOR PUBLICATION WITHOUT THE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-2357-17T4

NEW JERSEY DIVISION OF
CHILD PROTECTION AND
PERMANENCY,

          Plaintiff-Respondent,

v.

M.D.,

     Defendant-Appellant.
______________________________

IN THE MATTER OF THE
GUARDIANSHIP OF G.D.,

     a Minor.
_______________________________

                    Submitted December 4, 2018 – Decided December 12, 2018

                    Before Judges Sabatino, Haas and Mitterhoff.

                    On appeal from Superior Court of New Jersey,
                    Chancery Division, Family Part, Cumberland County,
                    Docket No. FG-06-0036-15.
             Joseph E. Krakora, Public Defender, attorney for
             appellant (John A. Salois, Designated Counsel, on the
             brief).

             Gurbir S. Grewal, Attorney General, attorney for
             respondent (Melissa H. Raksa, Assistant Attorney
             General, of counsel; Katrina A. Sansalone, Deputy
             Attorney General, on the brief).

             Joseph E. Krakora, Public Defender, Law Guardian,
             attorney for minor (Noel C. Devlin, Assistant Deputy
             Public Defender, of counsel and on the brief).

PER CURIAM

      Defendant M.D.1 appeals from the Family Part's June 19, 2017 judgment

of guardianship terminating his parental rights to his daughter G.D. (Ginger),

born in January 2014. Defendant contends that the Division of Child Protection

and Permanency (Division) failed to prove each prong of  N.J.S.A. 30:4C-15.1(a)

by clear and convincing evidence. 2 The Law Guardian supports the termination

on appeal as it did before the trial court.

      Based on our review of the record and applicable law, we are satisfied that

the evidence in favor of the guardianship petition overwhelmingly supports the



1
  We refer to the adult parties by initials, and to the children by fictitious names,
to protect their privacy. R. 1:38-3(d)(12).
2
 The Division also sought to terminate the parental rights of Ginger's mother,
M.B. However, M.B. passed away during the trial.
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decision to terminate defendant's parental rights.      Accordingly, we affirm

substantially for the reasons set forth in Judge Harold U. Johnson, Jr.'s thorough

and thoughtful oral decision rendered on June 19, 2017.

      We will not recite in detail the history of the Division's involvement with

defendant. Instead, we incorporate by reference the factual findings and legal

conclusions contained in Judge Johnson's decision, and add the following

comments.

      When Ginger was born, she tested positive for Subutex, a drug used to

treat opioid addiction. M.B.'s family advised the Division that she had obtained

the drug illegally.    Defendant, who had previously been diagnosed with

schizophrenia and bipolar disorder, refused to cooperate with the Division. The

parents only visited the baby once while she was in the hospital. M.B. appeared

to be under the influence, and defendant fell asleep while holding Ginger and

almost dropped her. On March 1, 2014, the Division performed a "Dodd"

removal3 of Ginger.4 When she was four months old, the Division placed Ginger


3
  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).
4
  Defendant previously appealed from the Family Part's September 28, 2015
order terminating the Division's action seeking care and custody of Ginger


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with her maternal aunt and uncle. These resource parents have cared for Ginger

ever since, she is strongly bonded to them, and they wish to adopt her.5

      The Division provided multiple opportunities to defendant to reunify with

his child, and address his long-standing mental health issues and opioid

dependency problems. None of these interventions proved successful. The

Division's expert psychologist, Dr. James Loving, evaluated defendant and

concluded he was suffering from "serious mental health symptoms" that created

the risk of "erratic and potentially dangerous behavior." Dr. Loving noted that

defendant exhibited "severe adjustment problems in terms of anxiety and

depression,"   "delusional   thinking,"       "psychotic   thinking[,]"   and     other

schizophrenic behaviors.

      Dr. Loving opined that defendant's "prognosis for change" was "very

poor" because he refused to acknowledge his problems, undergo regular

treatment, or take appropriate medications. As a result, Dr. Loving testified that



pursuant to  N.J.S.A. 9:6-8.21 to -8.106 and  N.J.S.A. 30:4C-12 (the FN matter),
and directing the case to proceed as a guardianship action under  N.J.S.A. 30:5C-
15(c) (the FG matter). N.J. Div. of Child Protection and Permanency v. M.D.,
No. A-1920-15 (App. Div. Oct. 27, 2017) (slip op. at 2). We dismissed that
appeal as moot for the reasons set forth in our opinion. Ibid.
5
  Defendant and M.B. have another child, A.D. (Audrey), born in November
2015. Audrey now lives with Ginger under the care of the same resource
parents.
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defendant was "not in a position to provide safe, stable, healthy parenting . . . in

the foreseeable future."

      Dr. Loving also diagnosed defendant with "opioid use disorder" based on

his use of "opiate pills" like Suboxone for his addiction, and "substance use

disorder" as evidenced by his past use of cocaine and marijuana. While the

Suboxone defendant used was prescribed by an urgent care doctor in Princeton,

and previously by a primary care doctor in Atlantic City,6 defendant refused to

participate in long-term pain management and drug treatment programs offered

by the Division to address his abuse of opioids. Dr. Loving testified that while

continued Suboxone use can sometimes be a realistic plan for some patients,

defendant reported that he planned to wean himself off this medication by taking

Percocet, one of the drugs he was taking when he became addicted. Therefore,

Dr. Loving opined that defendant needed "a longer term pain management plan"

in order to address his substance abuse issues. However, defendant refused to

participate in such a program.




6
  Neither of these doctors appeared at the trial. The urgent care doctor told the
Division caseworker that she prescribed Suboxone because defendant told her
he was "receiving psychiatric care and attending treatment through Narcotics
Anonymous." However, defendant was not participating in any mental health
or substance abuse treatment programs.
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      Defendant did not offer any expert testimony contradicting Dr. Loving's

detailed opinions on his serious mental health and opioid use problems.

Defendant also failed to contradict Dr. Loving's expert opinion that he did not

have a strong bond with Ginger, especially when compared to the resource

parents, who "she had come to know . . . as her primary, most central parent

figures." As a result, Dr. Loving opined that if defendant's parental rights were

terminated, there would only be a slight risk of harm to the child. On the other

hand, there was a high risk that Ginger would suffer serious and enduring

emotional harm if she was removed from the care of her resource parents.

      After the Division rested and M.B. completed her testimony, the judge

granted defendant's request to represent himself during his defense case.

Defendant testified on his own behalf, and voiced many of the same paranoid

ideations Dr. Loving described at trial. Among other things, defendant alleged

that the police were tracking him through his mobile phone and threatening to

harm him. He claimed he was involved in a traffic accident with a police c ar

that the police "staged" in order to persuade him to drop certain lawsuits. He

stated he contacted the FBI and the U.S. Justice Department to intervene after

the police attempted to extort him. At other times, he asserted he lived in "safe




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houses" because he was a confidential informant and, therefore, he could not

disclose his address to the Division.

      As noted above, defendant did not call any expert witness to address Dr.

Loving's testimony. On the last day of trial, he presented the testimony of a

Division supervisor, who confirmed that defendant had not participated in any

mental health or substance abuse programs.          Defendant also asked Judge

Johnson to issue a subpoena compelling both resource parents to appear in court

so he could question them to determine whether they were harming Ginger. The

judge asked defendant to provide a factual basis for his claim, and a proffer of

what their testimony would allegedly reveal. However, defendant was unable

to do so. Therefore, the judge ruled that a subpoena was not appropriate. 7

      In his opinion, Judge Johnson reviewed the evidence presented and

concluded that (1) the Division had proven all four prongs of the best interests

test by clear and convincing evidence,  N.J.S.A. 30:4C-15.1(a); and (2)

termination of defendant's parental rights was in the child's best interests. In



7
   The judge also rejected defendant's request to call his girlfriend, V.M., as a
character witness because she had only limited information about defendant
since he admitted he had only known her for about five months. However, the
judge stated he would take notice that if she testified, this individual would , "in
all probability," state that defendant "has been good for the limited times perhaps
that he has seen her children."
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this appeal, our review of the trial judge's decision is limited. We defer to his

expertise as a Family Part judge, Cesare v. Cesare,  154 N.J. 394, 413 (1998),

and we are bound by his 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)).

      After reviewing the record, we conclude that Judge Johnson's factual

findings are fully supported by the record and, in light of those facts, his legal

conclusions are unassailable. We therefore affirm substantially for the reasons

that the judge expressed in his well-reasoned opinion, and briefly address the

following matters.

      Like Judge Johnson, we reject defendant's argument that the Division

failed to meet its burden of establishing that Ginger's "safety, health, or

development has been or will continue to be endangered by the parental

relationship" under  N.J.S.A. 30:4C-15.1(a)(1). Defendant alleges that he has

never cared for the child, who has lived with her resource parents since May

2014 and, therefore, he was never in a position to "harm" her.

      However, there is no requirement that the Division pursue an abuse and

neglect finding as a condition for terminating a defendant's parental rights. N.J.


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Division of Youth & Family Servs. v. A.P.,  408 N.J. Super. 252, 259 (App. Div.

2009). Thus, the appropriate test is not whether defendant actually harmed

Ginger, but "whether the child's safety, health or development will be

endangered in the future and whether [defendant is] or will be able to eliminate

the harm." N.J. Div. of Youth & Family Servs. v. A.G.,  344 N.J. Super. 418,

440 (App. Div. 2001). Applying that standard, Dr. Loving's uncontradicted

expert testimony amply supports the judge's conclusion that defendant's serious

and untreated mental health problems would place Ginger squarely in harm's

way if she were placed in defendant's custody, and that this harm could not be

eliminated for the foreseeable future.

      We also reject defendant's contention that the Division failed to establish

that he was "unwilling or unable to eliminate the harm facing" Ginger under

 N.J.S.A. 30:4C-15.1(a)(2).    Defendant asserts that because he was taking

Suboxone to address his opioid addiction, there was no requirement that he

participate in any formal substance abuse treatment program and, therefore, he

should not have been faulted for refusing to do so. However, Dr. Loving opined

that a long-term treatment plan was necessary in order to enable defendant to

reduce or eliminate his reliance on Suboxone, especially in view of defendant's

admission that he intended to wean himself off the drug by taking Percocet, an


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                                         9
even more dangerous and addictive medication.          In addition, defendant's

argument concerning his substance abuse issues ignores the fact that defendant's

mental health problems, which he has also refused to address, formed the

primary basis for the judge's finding that defendant could not safely parent

Ginger now or in the future.

      For these same reasons, we are unable to agree with defendant's argument

that the Division failed to make "reasonable efforts to provide services to help

[him] correct the circumstances which led to [Ginger's] placement outside the

home" under  N.J.S.A. 30:4C-15.1(a)(3).      Contrary to defendant's assertion,

defendant's participation in a long-term substance abuse and pain management

program was necessary to help him address his opioid addiction, yet defendant

declined this service. He also refused to engage in the mental health services

the Division offered. 8

      Defendant also argues that the Division did not "consider[] alternatives to

termination of parental rights" under  N.J.S.A. 30:4C-15.1(a)(3) because it did

not explore kinship legal guardianship (KLG). However, it is clear that KLG



8
  Defendant also argues that the Division failed to provide him with appropriate
housing. However, he concedes he told the Division on several occasions that
he could not provide it with his address because of his work as a confidential
informant and because he did not want the police to know where he lived.
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                                      10
was not an appropriate alternative in this case because the resource parents, who

were also caring for Ginger's sibling, wanted to adopt her. N.J. Div. of Youth

& Family Servs. v. P.P.,  180 N.J. 494, 512-13 (2004) (holding that "when the

permanency provided by adoption is available, [KLG] cannot be used as a

defense to termination of parental rights").

      Finally, defendant alleges that Judge Johnson improperly denied his

request to subpoena the resource parents as witnesses, which prevented him

from demonstrating under  N.J.S.A. 30:4C-15.1(a)(4) that the termination of his

parental rights would "do more harm than good" because the resource parents,

who intended to adopt Ginger, were not treating her properly. We disagree.

      Our standard of review of a trial court's decisions on evidentiary questions

is well settled.    "When a trial court admits or excludes evidence, its

determination is 'entitled to deference absent a showing of an abuse of

discretion, i.e., [that] there has been a clear error of judgment.'" Griffin v. City

of E. Orange,  225 N.J. 400, 413 (2016) (alteration in original) (quoting State v.

Brown,  170 N.J. 138, 147 (2001)). "Thus, we will reverse an evidentiary ruling

only if it 'was so wide [of] the mark that a manifest denial of justice resulted.'"

Ibid. (quoting Green v. N.J. Mfrs. Ins. Co.,  160 N.J. 480, 492 (1999)).




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         Applying this highly deferential standard of review, we discern no basis

for disturbing Judge Johnson's decision to deny defendant's request.               As

defendant concedes, "there is no explicit constitutional right to compulsory

process in a termination of a parental rights case[.]" Indeed, it is well established

that the Sixth Amendment does not apply to civil matters, like this termination

of parental rights case. N.J. Div. of Child Prot. & Permanency v. R.L.M.,  450 N.J. Super. 131, 143 (App. Div. 2017) (citing N.J. Div. of Youth & Family

Servs. v. M.Y.J.P.,  360 N.J. Super. 426, 467 (App. Div. 2003)); cf. N.J. Div. of

Youth & Family Servs. v. N.S.,  412 N.J. Super. 593, 634 (App. Div. 2010)

(noting Sixth Amendment safeguards do not apply to civil abuse or neglec t

case).

         Moreover, Judge Johnson allowed defendant to cross-examine all of the

witnesses and to call a Division caseworker as his own witness. In denying

defendant's request to subpoena the resource parents, the judge explained that

defendant was unable to specify any factual basis for his allegation that the

resource parents may have harmed the child. Indeed, defendant could not even

provide a proffer of their intended testimony. In addition, defendant never

lodged any complaint with the Division about the resource parents, and the

Division's records and Dr. Loving's expert testimony disclosed nothing


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untoward in their treatment of Ginger. Therefore, the judge did not abuse his

discretion by denying defendant's request to subpoena the resource parents.

      In sum, children are entitled to a permanent, safe and secure home. We

acknowledge "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 & Family Servs. v. C.S.,  367 N.J. Super. 76, 111

(App. Div. 2004). As public policy increasingly focuses on a child's need for

permanency, "[t]he 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. (citing  N.J.S.A. 30:4C-11.1). That is

because "[a] child cannot be held prisoner of the rights of others, even those of

his or her parents. Children have their own rights, including the right to a

permanent, safe and stable placement." Ibid.

      The question then is "whether the parent can become fit in time to meet

the needs of the children." N.J. Div. of Youth & Family Servs. v. F.M.,  375 N.J.

Super. 235, 263 (App. Div. 2005); see also P.P.,  180 N.J. at 512 (indicating that

even if a parent is trying to change, a child cannot wait indefinitely). After

carefully considering the record, Judge Johnson reasonably determined that

defendant was unable to parent Ginger, and would not be able to do so for the


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                                       13
foreseeable future. Under those circumstances, we agree with the judge that any

further delay of permanent placement would not be in the best interests of the

child.

         Affirmed.




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