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New Jersey Division of Child Protection and Permanency v. L.A.M.

Superior Court of New Jersey, Appellate Division

October 2, 2013

L.A.M., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF C.G. AND Z.S.M., Minors.


Submitted September 24, 2013

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-159-12.

Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel and on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors C.G. and Z.S.M. (Damen J. Thiel, Designated Counsel, on the brief).

Before Judges Reisner and Carroll.


Defendant L.A.M. appeals from a December 3, 2012 order terminating her parental rights to her children C.G. and Z.S.M. For the reasons that follow, we affirm.


L.A.M. has a history of serious and seemingly intractable drug addiction. She has given birth to eight children and has not been able to care for any of them. C.G., who was born in April 2009, and Z.S.M., who was born in February 2011, are her sixth and seventh children. C.G. and Z.S.M. (the children) each tested positive for cocaine and opiates at birth, and were placed in foster care within days after their birth. The children have never lived with defendant. She failed to maintain a relationship with them and disappeared several months prior to the guardianship trial.

There are no available relative placements. The children are thriving in the care of foster parents who are committed to adopt them.[1] The Division presented unrebutted expert testimony that C.G. had bonded with his foster parent, Z.S.M. was in the process of forming a secure bond with her foster parent, and both children had a paramount need for permanency.

The Division of Child Protection and Permanency (Division) made repeated efforts to provide defendant with services to address her drug problems, but she was non-compliant. Defendant failed to appear for scheduled bonding and psychological evaluations and did not appear at the guardianship trial. In fact, for at least seven months prior to the trial, she had been completely out of touch with the Division case worker and failed to appear for multiple pre-trial proceedings.

Judge Stephen J. Bernstein issued an oral opinion on December 3, 2012, finding that the Division had satisfied all four prongs of the best interests test, N.J.S.A. 30:4C-15.1a.


In striking a balance between a parent's constitutional rights and the children's fundamental needs, courts employ the four-part guardianship test articulated in N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986), and codified in N.J.S.A. 30:4C-15.1a:

a. The division shall initiate a petition to terminate parental rights on the grounds of the "best interests of the child" pursuant to subsection (c) of section 15 of P.L. 1951, c. 138 (C. 30:4C-15) if the following standards are met:
(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-15.1a.]

In their application, the four factors above "'are not discrete and separate, but relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests.'" N.J. Div. of Youth and Family Servs. v. I.S., 202 N.J. 145, 167 (2010) (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 606-07 (2007)).

Upon reviewing Judge Bernstein's decision, we must defer to his factual findings unless they "'went so wide of the mark that a mistake must have been made.'" N.J. Div. Of Youth and Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (citation omitted). If "they are 'supported by adequate, substantial and credible evidence, '" a trial judge's factual findings will not be disturbed on appeal. In re Guardianship of J.T., 269 N.J.Super. 172, 188 (App. Div. 1983) (citation omitted). We review a trial judge's evidentiary rulings for abuse of discretion. State v. J.A.C., 210 N.J. 281, 295 (2012). In light of those legal standards, we find no basis in this record to overturn Judge Bernstein's decision.

On this appeal, defendant raises two arguments. While acknowledging that the Division's case records were admissible in evidence under Rule 5:12-4(d), defendant contends that the Division's evidence was not properly authenticated by the testifying case worker. She also argues that the record contains insufficient evidence to support the trial court's findings by clear and convincing evidence. Having reviewed the trial record, we conclude that those arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following comments.

Defendant's first argument is barred by the doctrine of invited error, because the Division's documents were admitted at the trial without objection. See DYFS v. M.C., III, 201 N.J. 328, 340-41 (2010). Nor can we agree with defendant's second argument. As previously noted, we are bound by the trial judge's factual findings so long as they are supported by sufficient credible evidence. J.T., supra, 269 N.J.Super. at 188. Defendant did not appear at the trial and presented no evidence to rebut the Division's case. The judge accepted the Division's evidence as credible, and that evidence was more than sufficient to prove all four prongs of the best interests test by clear and convincing evidence. See N.J.S.A. 30:4C-15.1a. We affirm substantially for the reasons stated in Judge Bernstein's opinion.


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