NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. L.A.

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                                NOT FOR PUBLICATION WITHOUT THE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-4776-16T1

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

          Plaintiff-Respondent,

v.

L.A.,

     Defendant-Appellant.
______________________________

IN THE MATTER OF THE
GUARDIANSHIP OF A.A.,

     a Minor.
_______________________________

                    Submitted December 4, 2018 – Decided January 23, 2019

                    Before Judges Sabatino and Mitterhoff.

                    On appeal from Superior Court of New Jersey,
                    Chancery Division, Family Part, Union County, Docket
                    No. FG-20-0004-17.
            Joseph E. Krakora, Public Defender, attorney for
            appellant (Suzanne J. Shaw, Designated Counsel, on
            the brief).

            Gurbir S. Grewal, Attorney General, attorney for
            respondent (Jason W. Rockwell, Assistant Attorney
            General, of counsel; Tara B. LeFurge, Deputy Attorney
            General, on the brief).

            Joseph E. Krakora, Public Defender, Law Guardian,
            attorney for minor (Karen A. Lodeserto, Designated
            Counsel, on the brief).

PER CURIAM

      L.A. appeals from a June 22, 2017 judgment terminating her parental

rights to her daughter A.A. 1 and granting the Division of Child Protection and

Permanency ("Division") guardianship of A.A., with the plan that A.A. be

adopted by her resource parent. L.A. argues that the Division failed to prove

prongs two and four prong of  N.J.S.A. 30:4C-15.1(a) by clear and convincing

evidence as required to terminate parental rights. L.A. also argues that the trial

court erroneously allowed A.A.'s resource parent to testify via telephone. The

Division and the child's law guardian urge that we affirm the judgment and allow

the adoption to proceed. Having considered the parties' arguments in light of

the record and applicable legal standards, we affirm substantially for the reasons


1
   We use initials to protect the confidentiality of the participants in these
proceedings. R. 1:38-3(d)(12).
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set forth by Judge James Hely in his comprehensive oral decision rendered on

June 22, 2017.

      The facts and evidence are detailed in Judge Hely's oral opinion, which he

rendered after a three-day trial. A summary of the relevant facts will suffice

here. L.A. has a long history with the Division. The instant matter was referred

to the Division by way of L.A.'s roommate who informed the Division that L.A.

was smoking crack cocaine in front of then-five-year-old A.A. The Division

removed A.A. from L.A.'s care after L.A. admitted to using cocaine and drinking

alcohol, and an investigation revealed that L.A. had often left A.A. home alone.

      After A.A.'s removal, L.A. was diagnosed with recurrent and severe major

depressive disorder, schizoaffective disorder – depressive type, cocaine and

opioid dependence, and an unspecified personality disorder.

      Throughout the litigation, the Division referred L.A. to multiple services

for her mental health and substance abuse issues. However, L.A. was discharged

from each of these programs for non-compliance with its rules or non-

attendance.   Several of the programs from which L.A. was discharged

recommended that L.A. participate in a program that could offer her a higher

level of care. L.A. repeatedly tested positive for drug use and admitted to




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relapsing into opiate abuse. She also admitted that she was not taking her

prescribed medication for her mental health issues.

      Prior to A.A's placement with her maternal aunt, and current resource

parent, A.H., the Division placed A.A. with a different relative. However, A.A.

was ultimately removed from that home after it was reported that L.A. asked

A.A. numerous inappropriate and probing questions regarding her resource

home during supervised visits.

      During the three-day trial, the Division applied to the court to permit A.H.

to testify telephonically because she had recently been in a car accident and had

two school-aged children to care for, which made travel from her home in

Delaware difficult. The Law Guardian supported the Division's application.

L.A. objected. The court permitted A.H. to testify telephonically, but provided

that if the method of testimony proved ineffective, the court would require her

appearance at a future date. L.A. indicated that she found the trial court's

resolution "agreeable."     Following her telephonic testimony, all parties

consented to the procedure and did not seek an additional date from the court.

      During A.H.'s testimony, she expressed her strong preference for adoption

and noted that her husband shared that preference. She explained that she had

entered into a kinship legal guardianship arrangement involving her grandson,


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who also resides in her home, but that she preferred to adopt her niece A.A.,

because the family had dealt with over twenty-five years of L.A.'s drug abuse

and aggression. A.H. felt adoption within the family was in A.A.'s best interest.

      On June 22, 2017, the trial court entered a decision and order terminating

L.A.'s parental rights and awarding the Division guardianship of A.A. The court

concluded that the Division proved by clear and convincing evidence all four

prongs of the statutory test for the termination of parental rights under  N.J.S.A.

30:4C-15.1(a).

      On appeal, L.A. first contends that the trial court erred by allowing A.H.

to testify telephonically. Appellate courts review a trial court's evidentiary

rulings for abuse of discretion. Estate of Hanges v. Metro. Prop. & Cas. Ins.

Co.,  202 N.J. 369, 374 (2010).

      Generally, "issues not raised below will . . . not be considered on appeal

unless they are jurisdictional in nature or substantially implicate the public

interest." N.J. Div. of Youth & Family Servs. v. M.C. III,  201 N.J. 328, 339

(2010). However, "appellate court[s] may, in the interests of justice, notice plain

error not brought to the attention of the trial or appellate court[,]" if "it is of such

a nature as to have been clearly capable of producing an unjust result[.]" R.

2:10-2.


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      Moreover, the court rules "do not expressly require [live witness

testimony], or directly prohibit remote testimony by telephone." State v. Santos,

 210 N.J. 129, 139 (2012).

            The test [for whether to allow telephonic testimony] is
            comprised of two parts. First, the court must determine
            whether the opposing party has consented to the
            testimony or whether there is a "special circumstance,"
            also referred to as an "exigency," Second, the court
            must be satisfied that the "witness' identity and
            credentials are known quantities" and that there is some
            "circumstantial voucher of the integrity of the
            testimony."

            [Id. at 141 (citations omitted) (quoting Aqua Marine
            Products, Inc. v. Pathe Computer Control Systems
            Corp.,  229 N.J. Super. 264, 275 (App. Div. 1988)).]

      After review of the record and the applicable legal principles, we conclude

that the trial court properly exercised its discretion in allowing A.H. to testify

telephonically. Estate of Hanges,  202 N.J. at 374. L.A., through counsel,

consented to the telephonic testimony; thus, the court was not required to make

any specific findings of special circumstances. See Santos,  210 N.J. at 141.

That said, the trial court did find that A.H.'s recent car accident, her lack of

access to a vehicle with which to drive from Delaware to New Jersey, and her

custody of two school-aged children amounted to special circumstances

warranting telephonic testimony. See ibid. L.A. did not object to any of these


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findings during trial, and cannot do so now, as they do not "substantially

implicate the public interest" or create a genuine risk of unjust result. See M.C.

III,  201 N.J. at 339; R. 2:10-2.

      Additionally, there were no questions raised that the person on the phone

might not be A.H. and there were no objections raised that her testimony was

not competent. Thus, we conclude that the trial court properly exercised its

discretion by allowing A.H. to testify via telephone. Estate of Hanges,  202 N.J.

at 374.

      Next, L.A. contends that the Division failed to prove with clear and

convincing evidence prongs two and four of  N.J.S.A. 30:4C-15.1(a).

      Appellate review of a trial court order terminating parental rights is

limited. N.J. Div. of Youth & Family Servs. v. G.L.,  191 N.J. 596, 605 (2007).

"A Family Part's decision to terminate parental rights will not be disturbed when

there is substantial credible evidence in the record to support the court's

findings." N.J. Div. of Child Prot. & Permanency v. K.T.D.,  439 N.J. Super.
 363, 368 (App. Div. 2015) (citing N.J. Div. of Youth & Family Servs. v. F.M.,

 211 N.J. 420, 448 (2012)). "Only when the trial court's conclusions are so

'clearly mistaken' or 'wide of the mark' should an appellate court intervene and

make its own findings to ensure that there is not a denial of justice." N.J. Div.


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of Youth & Family Servs. v. E.P.,  196 N.J. 88, 104 (2008) (quoting G.L.,  191 N.J. at 605).

      When addressing the termination of parental rights, the court must

consider the "best interests of the child." In re Guardianship of K.H.O.,  161 N.J.
 337, 347 (1999). The Division's petition to terminate parental rights may only

be granted if the following four prongs enumerated in  N.J.S.A. 30:4C-15.1(a)

are established by clear and convincing evidence:

            (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 [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).]


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      "The four criteria enumerated in the best interests standard 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.,  161 N.J.

at 348. The considerations involved in applying the best interests test a re

"'extremely fact sensitive' and require particularized evidence that address the

specific circumstance in the given case." N.J. Div. of Youth & Family Servs. v

M.M.,  189 N.J. 261, 280 (2007) (quoting N.J. Div. of Youth & Family Servs. v.

R.L.,  388 N.J. Super. 81, 88 (App. Div. 2005)).

      The second prong focuses on parental unfitness and overlaps with the

proofs that are relied upon in regards to prong one. D.M.H.,  161 N.J. at 379.

When a court is considering this prong, it "should only determine whether it is

reasonably foreseeable that the parents can cease to inflict harm upon the

children entrusted to their care." N.J. Div. of Youth & Family Servs. v. A.W.,

 103 N.J. 591, 607 (1986). To satisfy this inquiry, the Division may show that

the parent is unable to provide a safe and stable home and "that the delay in

securing permanency continues or adds to the child's harm." K.H.O.,  161 N.J.

at 348-49. While the focus under the second prong "is not whether the parent is

now fit, but 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


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(App. Div. 2006), "[c]hildren must not languish indefinitely in foster care while

a parent attempts to correct the conditions that resulted in an out-of-home

placement." N.J. Div. of Youth & Family Servs. v. S.F.,  392 N.J. Super. 201,

209-10 (App. Div. 2007) (citing K.H.O.,  161 N.J. at 111).

      Under the fourth prong, the inquiry is whether "the child will suffer a

greater harm from the termination of ties with her natural parents than from the

permanent disruption of her relationship with her foster parents." K.H.O.,  161 N.J. at 355. It does not, however, "require a showing that no harm will befall

the child as a result of the severing of biological ties." Ibid. The Division's

proofs should include testimony by an expert who has had an opportunity to

make a "comprehensive, objective, and informed evaluation of the child's

relationship with the foster parent[,]" and the court must also consider "parallel

proof relating to the child's relationship with his or her natural parents in

assessing the existence, nature, and extent of the harm facing the child." Ibid.;

F.M.,  211 N.J. at 453. See also M.M.,  189 N.J. at 286-88; N.J. Div. of Youth &

Family Servs. v. R.G.,  217 N.J. 527, 564-65 (2014). However, where the

termination is "not predicated upon bonding, but rather reflect[s] [the child's]

need for permanency and [the biological parent's] inability to care for [the child]

in the foreseeable future[,]" a lack of a bonding evaluation is not fatal to the


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Division's case. N.J. Div. of Youth & Family Servs. v. B.G.S.,  291 N.J. Super.
 582, 593-94 (App. Div. 1996).

      After review of the trial record, and in light of the legal standards above,

we conclude that the substantial credible evidence in the record supports the trial

court's findings with respect to both the second and fourth prongs. First, L.A.'s

persistent inability to comply with mental health and drug abuse treatment

demonstrates that she cannot eliminate the harm to A.A. in the near future. See

A.W.,  103 N.J. at 607; F.M.,  375 N.J. Super. at 263; S.F.,  392 N.J. Super. at
 209-10.    The Division's evidence demonstrated that L.A. was repeatedly

discharged from services for mental health and drug abuse treatment, to which

she was referred by the Division, for lack of compliance. L.A. also repeatedly

tested positive for drugs after being referred to the Division, and has admitted

to relapsing.

      Additionally, regarding the fourth prong, the trial court's finding that the

Division satisfied its burden was based primarily on L.A.'s inability to provide

"a safe and healthy home for her child." We disagree with L.A.'s contention that

proof under prong four requires expert testimony. Given that the trial court

found that L.A. exhibits severe and persistent parenting deficits, and that it based

its findings for prong four on those evidenced deficits, the trial court did not err


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in concluding that terminating L.A.'s parental rights will do A.A. more good

than harm. See K.T.D.,  439 N.J. Super. at 368; B.G.S.,  291 N.J. Super. at 593-

94. For these reasons, we find that the trial court's findings on prongs two and

four are supported by substantial credible evidence in the record.

      The remaining arguments raised by L.A. are without sufficient merit to

warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




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