NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. T.L.M and Y.R.F
Annotate this CaseRECORD 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NOT FOR PUBLICATION WITHOUT THE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-3704-18T3
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
T.L.M.,
Defendant-Appellant,
and
Y.R.F.,
Defendant.
__________________________
IN THE MATTER OF THE
GUARDIANSHIP OF A.Y.M.,
and E.Y.T.M.,
Minors.
__________________________
Submitted January 27, 2020 – Decided February 18, 2020
Before Judges Rothstadt, Moynihan and Mitterhoff.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Essex County, Docket
No. FG-07-0021-19.
Joseph E. Krakora, Public Defender, attorney for
appellant (Robyn A. Veasey, Deputy Public Defender,
of counsel; Laura Orriols, Designated Counsel, on the
briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Donna Sue Arons, Assistant Attorney
General, of counsel; Merav Lichtenstein, Deputy
Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minors (Meredith Alexis Pollock, Deputy
Public Defender, of counsel; Louise M. Cho, Assistant
Deputy Public Defender, on the brief).
PER CURIAM
Defendant T.L.M. appeals from an April 11, 2019 guardianship judgment,
ordering the termination of her parental rights to her sons, A.Y.M. (Austin) and
E.Y.T.M. (Evan). 1 On appeal, defendant argues that the Dodd removal,2 see
1
One of the children's fathers is unknown, and the other putative father failed
to participate in the trial or appeal from the final judgment. Additionally,
pursuant to Rule 1:38-3(d), we use initials and fictitious names to protect the
confidentiality of the participants in these proceedings.
2
"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).
A-3704-18T3
2 N.J.S.A. 9:6-8.29, of one of her children was improper, that the Division of
Child Protection and Permanency (Division) did not prove all four prongs of the
statutory best interests of the child test under N.J.S.A. 30:4C-15.1(a), that
certain documents were improperly admitted under N.J.R.E. 803(c)(6) and Rule
5:12-4(d), and Rule 5:12-4(d) is unconstitutional. The Division and the Law
Guardian contend that the judgment and order should be affirmed.
After reviewing the record in light of the applicable legal standards, we
affirm substantially for the reasons stated by Judge Nora J. Grimbergen in her
written decision issued with the guardianship judgment, in which she found that
the Division proved the four prongs of the best interests standard articulated in
N.J.S.A. 30:4C-15.1(a). We conclude there is substantial credible evidence in
the record to support the judge's determination that was based primarily on
defendant continuously refusing to participate in treatment for her substance
abuse and mental health issues, which prevented her from being a fit parent.
The facts derived from the record as found by the trial judge are
summarized as follows. Austin was born in February 2017, and Evan was born
in May 2018. At the time Austin was born, defendant already had two additional
children from other relationships who were no longer in her custody. Those two
children were the subject of the Division's investigations between 2013-2016.
A-3704-18T3
3
Although defendant was never substantiated for abuse or neglect, the Division
had concerns about defendant's need for substance abuse treatment before she
could care for her children. The concerns were addressed when a court ordered
in a custody action that the two children be placed with their relatives because
defendant refused to seek any treatment.
The Division became involved with Austin when a reporter contacted the
Division in April 2017 about one of defendant's older children being found at
the bottom of a hotel swimming pool before he was revived and able to survive
his near drowning due to the medical assistance provided by a hotel guest. After
investigating how the child nearly drowned, the Division determined from
defendant and her younger sister that defendant left the child under the
supervision of another person at the swimming pool knowing that her child
could not swim and leaving him without a life vest.
Defendant initially attempted to arrange shared custody of Austin with his
maternal grandmother, but the effort failed when one or both of them failed to
pursue the application in court. Later, the Division was informed that defendant
changed the child's placement to his godmother, which the Division later
approved subject to the godmother's agreement not to let defendant remove the
child from her. However, in July 2017, the Division conducted a Dodd removal
A-3704-18T3
4
and placed Austin with a resource family when defendant threatened the
godmother with harm if she did not turn Austin over to defendant . When the
Division provided defendant with notice of the Dodd removal, defendant
informed a Division worker that she failed to seek any treatment for her
substance abuse. In its supporting complaint filed for care, custody, and
supervision under N.J.S.A. 30:4C-12 (Title Thirty), the Division alleged
defendant did not have stable housing or income, that she continuously failed to
get substance abuse treatment, and repeatedly threatened to take Austin.
During the ensuing months, the Division made arrangements for defendant
to visit with her child and have her evaluated for and attend substance abuse
treatment programs. In addition, as a result of a family meeting that included a
family friend willing to take custody of the child, the Division investigated the
family friend for placement, but she was ruled out based on her having an open
case with the Division.
Court orders directed toward reunification were issued in the Title Thirty
litigation directing defendant to secure income and housing, and to undergo a
psychological and substance abuse evaluation. Although defendant did not seek
out the substance abuse treatment, she did participate in a psychological
evaluation.
A-3704-18T3
5
During the evaluation, defendant admitted hearing her dead brother talk
to her, being depressed, and continually using marijuana on an almost daily
basis. She also confirmed that she did not have stable housing, was living with
various friends and family members, and that she did not have a job.
The psychologist found that defendant had anger management issues and
that defendant demonstrated she suffered with depression and anxiety, which if
left untreated, prevented her from safely parenting her children. The doctor
recommended that defendant be evaluated by a psychiatrist, participate in
therapy and outpatient drug treatment, have supervised visits with her child,
obtain and maintain appropriate housing and employment, and participate in
parenting skills training programs. These recommendations were later
incorporated into additional court orders.
Pursuant to the court's order, a psychiatric evaluation and individual
therapy were arranged for defendant. At the psychiatric evaluation, defendant
acknowledged her substance abuse, that she used marijuana and "Molly
(MDNA, Ecstasy)" within the past three months. She indicated that she: had
been depressed since Austin's birth, had a history of suicide attempts, had no
support, got treatment in the past due to her anger issues, she was "sad all the
time," "her sleep was impaired," had no appetite, "was easily frustrated and
A-3704-18T3
6
angered," had issues with concentration, and heard the voices of her deceased
brother and aunt every day. Defendant stated that she used marijuana to "calm
her down and that it [took] her mind off of her problems, help[ed] her sleep, and
help[ed] with her appetite."
The psychiatrist diagnosed defendant with various disorders and
recommended that defendant be medicated, referred to a substance abuse
treatment program in a dual diagnosis program, which would address both her
mental health and substance abuse issues, and after she completed a program,
engage in therapy. In accordance with the doctor's recommendations, the
Division made referrals for these services, but defendant failed to significantly
comply with any of them.
In the meantime, after already ruling out defendant's mother, her friend
who had a case with the Division, and the child's godmother as possible
placements, the Division at defendant's request, contacted a cousin from North
Carolina who indicated she was willing to have Austin placed with her. The
Division initiated an interstate evaluation request, but after the Department of
Social Services in North Carolina met with the cousin on March 23, 2018, and
received one phone call from her on April 23, 2018, there was no additional
contact, which prompted North Carolina to close the case on May 2, 2018.
A-3704-18T3
7
Additionally, in May 2018, defendant gave birth to Evan. Both mother
and son tested positive for marijuana, and although defendant admitted she used
marijuana a month before Evan's birth, the Division did not substantiate
defendant for abuse or neglect because the child did not display any withdrawal
or other symptoms related to the marijuana. However, defendant informed the
Division that she did not have any means to support or care for the infant until
she "gets herself together." The Division established neglect based upon
defendant's mental illness and her failure to comply with referrals for treatment,
which affected her "sound judgement and rational behavior," and "created a real
and significant risk . . . that [defendant's] actions or inactions placed [Evan] at a
risk of harm."
The Division amended its complaint to also seek custody of Evan. The
court then approved Evan's placement with the same resource family as Austin
and ordered defendant to comply with substance abuse and mental health
services that were to be provided by the Division. In June 2018, the court
approved the Division's permanency plan for Austin, recommending termination
of parental rights and adoption.
Thereafter, defendant ceased contact with the Division. She last visited
Austin in early fall 2018, appeared at a hearing in one matter in December 2018,
A-3704-18T3
8
had her last visit with Evan at that hearing, sporadically participated in services
offered to her, and never attended additional scheduled psychological or
bonding evaluations.
In August 2018, the Division filed its initial guardianship complaint as to
Austin and in December amended it to include Evan. Shortly after, the
psychologist who examined defendant earlier, conducted bonding evaluations.
As to Austin he concluded, the child considered his resource parents as his
psychological parents and that, "he would likely [face] both significant and
enduring harm as there is no other consistent, healthy attachment figure
available to mitigate harm." The doctor concluded that Evan, because of his
age, "ha[d] not yet internalized the representation of a consistent parental
figure." However, the doctor observed that Evan's resource parents were his
"only consistent caregiver" since leaving the hospital at the time of his birth.
Further, he found it important that Evan remain together with his brother, as that
would be beneficial to them both. Defendant, who by that time had not exercised
any visitation with her children for four months, did not appear for the bonding
evaluation.
Defendant also did not appear at the guardianship trial until the judge
rendered her decision, nor were any witnesses offered on her behalf. The only
A-3704-18T3
9
witnesses were the psychologist and a Division caseworker. The psychologist
testified consistent with his evaluation of defendant. He further indicated that
at the time the evaluation was completed, defendant "was not a viable parenting
option for the children. If she were, [he] would have recommended immediate
reunification."
The caseworker testified about the Division's involvement with the family
and that throughout the process, defendant was uncooperative. While defendant
attended the psychological evaluation, she only minimally went to her children 's
supervised visits and continuously failed to address her mental health issues.
During trial, defendant's attorney objected to several documents being
admitted into evidence, which included screening and investigation summaries.
Defendant's attorney also argued that other documents from family therapeutic
programs and other substance abuse related facilitates were also inadmissib le.
In response to defendant's arguments, the Division agreed to redact "third-
party hearsay statements," except for one document. The Division wanted to
admit the documents "just for the purpose of showing that a call came into the
Division and the Division then acted upon that call." For the one unredacted
document, it was the Division's position that the testimony of the reporter was
admissible because the reporter was a substance abuse worker in a program
A-3704-18T3
10
selected for defendant by the Division, which made the reporter a Division
consultant. It argued pursuant to In re Guardianship of Cope, 106 N.J. Super.
336, 343-44 (App. Div. 1969), N.J. Div. of Child Prot. & Permanency v. N.T.,
445 N.J. Super. 478, 500-02 (App. Div. 2016), and Rule 5:12-4(d), that the
information was admissible as a business record exception.
The judge found that the documents were admissible under N.J.R.E.
803(c)(6) and Rule 5:12-4(d). The judge indicated that these organizations were
consultants of the Division and did not believe they were independent providers.
The judge stated that, even though the Division did not create the documents
itself, "the Division referred [defendant] and the children to these various
services, so they [were] consultants" and therefore, admissible. 3
After considering all the unrefuted evidence, the judge issued her decision
and entered the guardianship judgment terminating defendant's parental rights
to Austin and Evan. In the trial judge's written decision, she initially made
credibility findings, concluding that both the psychologist and the caseworker
were credible and giving reasons for her findings. The judge then found that the
3
Notably, the judge admitted the report of the psychiatrist, who did not testify
at trial, for the limited purposes of establishing the Division's reasonable efforts
and for statements made by defendant.
A-3704-18T3
11
Division established "clearly and convincingly by substantial and credible
evidence" that defendant's parental rights should be terminated.
Applying the four prongs of the best interests test, Judge Grimbergen,
found that defendant's use of marijuana, failure to get mental health and
substance abuse treatment, being inconsistent in attending visits with her
children and parenting skills classes, and the need for permanency supported the
finding that Austin's and Evan's "safety, health, [and] development, [would] be
endangered if the . . . relationship between them and [defendant] [was] not
severed." Under prong two, the judge found that defendant's non-compliance
with the many services the Division attempted to provide to her and her
unwillingness to change, supported a finding that the Division's proofs satisfied
that prong.
Under prong three, the judge found that the Division "offered [defendant]
psychological and psychiatric evaluations with different professionals, a
bonding evaluation, individual therapy, parenting classes, visitation, substance
abuse assessments, and various referrals to follow up with [those]
recommendations," which defendant had failed to "meaningfully" pursue. The
Division even considered alternative routes that would not require a termination
of defendant's parental rights.
A-3704-18T3
12
As to the last prong, the judge concluded that the evidence established that
severing the relationship between the resource parents and Austin would do
more harm than good. As to Evan, while the psychologist did not think that the
child would "suffer significant and enduring harm from severing his relationship
with his resource parents, there [were] no other options with regards to
permanency" besides the resource parents. The judge found the resource parents
to be "the only consistent, accessible and responsive caregivers in [Evan's] life
since birth, shy of five days." The judge also found the importance of keeping
Austin and Evan together, as explained by the psychologist, which demonstrated
the need for the two to stay with their resource family. The judge entered the
guardianship judgment and this appeal followed.
Our review of a Family Part judge's decision to terminate parental rights
is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278-79
(2007). We defer to the judge's credibility findings and factual determinations
because the judge has specialized knowledge, as well as a better perspective than
a reviewing court having observed the witnesses firsthand. N.J. Div. of Youth
& Family Servs. v. F.M., 211 N.J. 420, 427 (2012); Cesare v. Cesare, 154 N.J.
394, 412 (1998).
A-3704-18T3
13
In determining whether to terminate a parent's rights to her child, the best
interests of the child typically call for stability and permanency, which are
"favored over 'protracted efforts for reunification[.]'" N.J. Div. of Youth &
Family Servs. v. L.J.D., 428 N.J. Super. 451, 484, 491-92 (App. Div. 2012)
(alteration in original) (quoting N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div. 2004)). Due to the severity of termination and
its effect on parents' constitutional rights, however, the proceedings require
satisfaction of very strict criteria. In re Guardianship of J.N.H., 172 N.J. 440,
471 (2002). In such cases, "[p]resumptions of parental unfitness may not be
used in proceedings challenging parental rights and all doubts must be resolved
against termination." N.J. Div. of Youth & Family Servs. v. L.M., 430 N.J.
Super. 428, 442 (App. Div. 2013) (quoting N.J. Div. of Youth & Family Servs.
v. G.L., 191 N.J. 596, 606 (2007)). Parental rights therefore should only be
terminated "with caution and care, and only in those circumstances in which
proof of parental unfitness is clear." F.M., 211 N.J. at 447.
Termination is warranted where the Division can meet by clear and
convincing evidence the four statutory elements set out in N.J.S.A. 30:4C-
15.1(a). The factors often overlap. M.M., 189 N.J. at 280.
A-3704-18T3
14
As already noted, we conclude, for the reasons stated in Judge
Grimbergen's thoughtful written decision, the Division met the clear and
convincing standard under the best interests test, warranting the termination of
defendant's parental rights. We find no merit to defendant's arguments to the
contrary and conclude that that they are without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E). We only add that we do not
consider defendant's contentions that were not raised before the trial judge about
her child's initial removals and the alleged pendency of custody actions. See
N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 339 (2010)
("Issues not raised below will ordinarily not be considered on appeal unless they
are jurisdictional in nature or substantially implicate the public interest."). In
any event, we conclude they have nothing to do with the guardianship action.
Any challenges should have been raised in the earlier child protective or custody
actions.
Defendant's remaining arguments about Judge Grimbergen's admission of
documents as being in conformity with Rule 5:12-4(d) are equally without merit.
At the outset, we observe "[a]s a general rule with respect to the exclusion
or admission of evidence, we afford '[c]onsiderable latitude . . . [to a] trial court
in determining whether to admit evidence, and that determination will be
A-3704-18T3
15
reversed only if it constitutes an abuse of discretion.'" N.J. Div. of Child Prot.
& Permanency v. N.B., 452 N.J. Super. 513, 521 (App. Div. 2017) (second,
third, and fourth alterations in original) (quoting N.T., 445 N.J. Super. at 492).
Division reports are admissible as business records under N.J.R.E.
803(c)(6), if they "meet[] the standards of N.J.S.A. 9:6-8.46(a)(3), Rule 5:12-
4(d), or Cope." N.T., 445 N.J. Super. at 496.
[T]hose authorities allow the admission of . . . factual
statements in the report made to the author by [the]
Division 'staff personnel (or affiliated medical,
psychiatric, or psychological consultants), [made based
on] 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
Division.
[Ibid. (fourth alteration in original) (quoting Cope, 106
N.J. Super. at 353).]
However,
whether a Division report is offered under N.J.R.E.
803(c)(6), N.J.S.A. 9:6-8.46(a)(3), Rule 5:12-4(d), or
Cope, statements in the report by persons other than
Division staff personnel and affiliated professional
consultants who are reporting their factual observations
are inadmissible hearsay unless they qualify under
another hearsay exception as required by N.J.R.E. 805.
[N.T., 445 N.J. Super. at 497 (emphasis added).]
A-3704-18T3
16
Rule 5:12-4(d) specifically states the Division "shall be permitted to
submit into evidence, pursuant to N.J.R.E. 803(c)(6) and 801(d), reports by staff
personnel or professional consultants." (Emphasis added). An affiliated
consultant includes a professional to whom a Division client has been referred
to by the Division for services. See Cope, 106 N.J. Super. at 344. "Conclusions
drawn from the facts stated therein shall be treated as prima facie evidence,
subject to rebuttal." R. 5:12-4(d).
Additionally, N.J.R.E. 803(c)(6) provides that a statement is admissible if
it is in "writing or other record of acts, . . . made at or near the time of
observation by a person with actual knowledge or from information supplied by
such a person, if the . . . record was made in the regular course of business and
it was the regular practice of that business."
Here, as determined by Judge Grimbergen, the screening summary was
admissible under Rule 5:12-4(d). As defendant acknowledges, the document is
a business record of the Division admissible under the Rule. Contrary to
defendant's contentions, however, the substance abuse counselor's statements
within the document were also admissible because the counselor was acting in
a capacity of a professional consultant to the Division, reporting to the Division
information relating to defendant 's participation and treatment. The summary
A-3704-18T3
17
is a business record under N.J.R.E. 803(c)(6), as the record of the phone call
falls under the "other record of acts," the statements made and the recording of
them by the Division were made in the ordinary course of business for a
counselor, and the statements were made with firsthand knowledge of
defendant's lack of substance abuse treatment.
For the same reasons, the other challenged documents, the rule out letter,
the provider referral forms, the early intervention assessment for Austin, the
letter from a provider, the provider vendor agreement, and emails between
providers and the Division qualify under Rule 5:12-4(d). The authors of those
documents were also Division's consultants, made with firsthand knowledge of
defendant's continued refusal to get assistance for her substance abuse, her
parenting skills, and mental health issues. Therefore, the documents were made
in the ordinary course of business and meet the standards under N.J.R.E.
803(c)(6) and Rule 5:12-4(d).
Even if the records were improperly admitted, we conclude it would be
harmless error. See Rule 2:10-2 ("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."). The Division produced other substantial
evidence supporting the judge's finding that defendant failed to get treatment for
A-3704-18T3
18
her substance abuse and mental health issues, and the effects that had on her
ability to parent her children. The most significant other evidence came from
the psychologist's unrefuted expert testimony.
To the extent we have not specifically addressed any of defendant's
remaining arguments we find them to be without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-3704-18T3
19
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
